text:
    STATE of Ohio, Plaintiff-Appellee v. Cornelius LYNCH, Defendant-Appellant
    No. 105122
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    Mark Stanton, Cuyahoga County Public Defender, BY: Jeffrey Gamso, Assistant Public Defender, Courthouse Square, Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Edward R. Fadel, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., Keough, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Cornelius Lynch ("Lynch"), brings this appeal challenging his convictions for rape and kidnapping. Specifically, Lynch argues that the trial court erred by denying his motions to dismiss the indictment based on preindictment delay, the state engaged in prosecutorial misconduct, he was denied the effective assistance of counsel, and that the charges should have been dismissed based on double jeopardy grounds. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant appeal arose from an incident that occurred between Lynch and his girlfriend's daughter, M.H. At the time of the incident, M.H. was 12 years old, and Lynch had been living with his girlfriend, S.P., and M.H. for a few years. M.H. alleged that Lynch sexually assaulted her on May 26, 1994. M.H. reported the incident to her mother the next morning, and M.H. went to the hospital where a rape kit examination was performed. M.H. spoke with hospital staff and the police about the incident, and she indicated that Lynch was her assailant. Cuyahoga County Division of Children and Family Services ("CCDCFS") investigators also interviewed M.H. and Lynch. Approximately two weeks later, M.H. recanted her allegations against Lynch.

{¶ 3} Although M.H. recanted her allegations, her rape kit was submitted to the Ohio Bureau of Criminal Investigation ("BCI") for DNA testing in August 2012. DNA testing established that Lynch could not be excluded as the source of semen on the vaginal swab from the rape kit.

{¶ 4} After learning of the DNA match, investigators reinterviewed M.H. and S.P. M.H. informed the investigators that Lynch assaulted her in May 1994.

{¶ 5} On May 15, 2014, in Cuyahoga C.P. No. CR-14-585501-A, the Cuyahoga County Grand Jury returned a three-count indictment charging Lynch with (1) rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(b), with a furthermore specification alleging that Lynch purposely compelled the victim to submit by force or threat of force, (2) rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(b), and (3) kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(4). Count 1 alleged that Lynch engaged in vaginal intercourse with M.H., and Count 2 alleged that Lynch engaged in cunnilingus with M.H. Lynch was arraigned on May 30, 2014. He pled not guilty to the indictment. Shortly after Lynch was indicted, S.P. died.

{¶ 6} Lynch's counsel filed a motion to withdraw on July 2, 2014. The trial court granted counsel's motion, and the court assigned a new attorney to represent Lynch on July 9, 2014.

{¶ 7} On October 31, 2014, Lynch's counsel filed motions for independent DNA analysis and to dismiss the indictment based on preindictment delay. Lynch's counsel filed a supplemental motion to dismiss based on preindictment delay on November 17, 2014. On February 12, 2015, the trial court denied defense counsel's motion to dismiss.

{¶ 8} On August 5, 2015, Lynch's counsel filed a motion for reconsideration of the motion to dismiss for preindictment delay. The trial court denied defense counsel's motion for reconsideration on October 2, 2015.

{¶ 9} On February 2, 2016, Lynch's counsel filed a second supplemental motion to dismiss based on preindictment delay. On February 12, 2016, the trial court denied defense counsel's motion to dismiss.

{¶ 10} A jury trial commenced on March 7, 2016. On March 10, 2016, the trial court declared a mistrial based on an issue that arose with one of the 12 jurors. On March 11, 2016, Lynch's second attorney filed a motion to withdraw as counsel. The trial court granted counsel's motion, and the court assigned a new attorney to represent Lynch on March 17, 2016.

{¶ 11} On September 9, 2016, Lynch's counsel filed a motion to reconsider the defense's previous motions to dismiss based on preindictment delay. After holding a hearing, the trial court denied the motion to reconsider on September 13, 2016.

{¶ 12} A second jury trial commenced on September 15, 2016. At the close of trial, the jury found Lynch guilty on all three counts on September 20, 2016. The trial court referred Lynch to the probation department for a presentence investigation report and set the matter for sentencing.

{¶ 13} The trial court held a sentencing hearing on October 20, 2016. The trial court merged Counts 1 and 3 for sentencing purposes. The state elected to sentence Lynch on Count 1. The trial court imposed a prison term of 15 years to life on Count 1, and a prison term of 15 years to life on Count 2. The trial court ordered the counts to run concurrently. The trial court found Lynch to be a sexually oriented offender and reviewed his reporting requirements.

{¶ 14} On November 1, 2016, Lynch filed the instant appeal challenging his convictions. He assigns four errors for review, which we will address out of order for ease of discussion:

I. [Lynch's] rights to due process and a fair trial were violated when the trial court denied his motion to dismiss for pre-indictment delay and then denied his motion to reconsider that ruling.
II. Prosecutorial misconduct encouraging the jury to convict based on sympathy for M.H. violated [Lynch's] constitutional rights to a fair trial and due process and to be convicted based only on the evidence against him.
III. Counsel provided constitutionally ineffective assistance when he failed to object to the prosecutor's improper argument as set forth in the [s]econd [a]ssignment of [e]rror.
IV. Because there was no manifest necessity for the trial court to grant a mistrial, the constitutional protection against being twice put in jeopardy for the same offense required that the charges against [Lynch] be dismissed.

II. Law and Analysis

A. Preindictment Delay

{¶ 15} In his first assignment of error, Lynch argues that the trial court erred by denying his motions to dismiss the indictment based on preindictment delay.

{¶ 16} The statute of limitations for a criminal offense is a defendant's primary protection against overly stale criminal charges. U.S. v. Marion , 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, in some circumstances, the Due Process Clause of the Fifth Amendment provides limited protection against preindictment delay. U.S. v. Lovasco , 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The Ohio Supreme Court has held that "[a]n unjustifiable delay between the commission of an offense and a defendant's indictment therefor[e], which results in actual prejudice to the defendant, is a violation of the right to due process of law." State v. Luck , 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus.

{¶ 17} The Ohio Supreme Court recently reaffirmed a two-part, burden-shifting test to determine whether preindictment delay constitutes a due process violation. State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13 (" Jones I "). First, the burden is on the defendant to present evidence of actual prejudice; once a defendant does so, the burden then shifts to the state to produce evidence of a justifiable reason for the delay. Id. at ¶ 13, citing State v. Whiting , 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). "A court must determine whether the defendant has established actual prejudice to his ability to defend himself before independently determining whether the state met its burden of establishing a justifiable reason for the delay in bringing charges." State v. Hunter, 2017-Ohio-4180, 92 N.E.3d 137, ¶ 11 (8th Dist.), citing Jones I at ¶ 16-18, 29.

A determination of actual prejudice involves " 'a delicate judgment' " and a case-by-case consideration of the particular circumstances. State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting [ Marion at 325, 92 S.Ct. 455 ]. A court must "consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay." Id. [The Ohio Supreme Court] has suggested that speculative prejudice does not satisfy the defendant's burden. Id. at ¶ 56 (noting that Walls's claims of prejudice were speculative at best);
[ State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 100 ] (noting the difficulty for defendants claiming unconstitutional preindictment delay because "proof of prejudice is always speculative").
The "possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice." (Emphasis [sic].) Id. at ¶ 105, citing Marion at 325-326 [92 S.Ct. 455]. Those are "the real possibilit[ies] of prejudice inherent in any extended delay," and statutes of limitations sufficiently protect against them. Marion at 326 [92 S.Ct. 455]. That does not mean, however, that demonstrably faded memories and actually unavailable witnesses or lost evidence cannot satisfy the actual-prejudice requirement.

Jones I at ¶ 20-21.

{¶ 18} In the instant matter, during the trial court's September 13, 2016 hearing on appellant's motion to reconsider, defense counsel argued that Lynch suffered actual prejudice as a result of the significant delay in prosecution. Specifically, defense counsel explained that "the main reason for the actual prejudice [is] the death of [S.P.] * * * she made statements at the time of the incident letting at least hospital personnel know as well as police that she did not believe [M.H.] was telling the truth." (Tr. 581.) Defense counsel further asserted that the state was unable to show that the delay in prosecution was reasonable. The state argued that S.P.'s unavailable testimony would not be exculpatory due to the DNA evidence linking Lynch to M.H.'s rape kit. The state explained that the police ceased the active investigation in 1994 because M.H. recanted her allegations against Lynch, and that the case was reopened when the prosecution received the new DNA evidence linking Lynch to the rape kit.

{¶ 19} The trial court indicated that it reviewed the case law set forth in Jones I , State v. Jones , 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, 2017 WL 242177 (" Jones II "), Luck , 15 Ohio St.3d 150, 472 N.E.2d 1097, and Whiting , 84 Ohio St.3d 215, 217, 702 N.E.2d 1199. In denying defense counsel's motion to reconsider, the trial court found the facts of this case to be distinguishable from Jones II. The trial court concluded, "I'm not convinced that actual prejudice has occurred from the delay. Even if we get to, you know, the point of actual prejudice in this case. In looking at it when the burden shifts to the State to show that it was not unjustifiable, you know, based on the facts here, I do find that a delay was justifiable anyway." (Tr. 596-597.)

{¶ 20} In reviewing a trial court's decision on a motion to dismiss for preindictment delay, this court applies a de novo standard of review to the legal issues, but we afford great deference to the trial court's findings of fact. Hunter , 2017-Ohio-4180, 92 N.E.3d 137, at ¶ 16, citing State v. Smith , 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, 2014 WL 3400677, ¶ 23, and State v. Wade , 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, 2008 WL 4174867, ¶ 45.

{¶ 21} In the instant matter, Lynch argues that he was prejudiced by the preindictment delay because S.P. passed away and, thus, was not available to testify; CCDCFS records were lost; and information regarding the rape kit's chain of custody was lost.

{¶ 22} First, regarding S.P.'s lost testimony, Lynch asserts that (1) S.P. knew that M.H.'s allegations could not be true; (2) S.P. told the hospital personnel that Lynch was in bed with her at the time that M.H. alleged he raped her; and (3) S.P. opined that M.H. likely made up the allegations because she did not want Lynch to marry her.

{¶ 23} Second, regarding the lost CCDCFS records, Lynch argues that there are no records of the investigation or notes from the interviews conducted by CCDCFS investigators. The only CCDCFS record available is an incident report indicating that M.H.'s allegation was unsubstantiated. Lynch asserts that these notes and records "would contain further information tending to throw doubt on M.H.'s claims." Appellant's brief at 5.

{¶ 24} Third, regarding the lost chain of custody information, Lynch argues that there is no information about how the rape kit was stored by the Cleveland Police Department in the Fourth District's property room or how it was transported to the main property room downtown. He contends that this information is important because there was not a complete DNA profile extracted from the semen from M.H.'s vagina in the rape kit.

{¶ 25} After reviewing the record, we find that Lynch fails to demonstrate actual prejudice. Although Lynch offered an explanation of what purportedly exculpatory testimony S.P. would have offered, the unavailable testimony must be balanced against the evidence at the time of the indictment to determine whether Lynch would suffer actual prejudice. Jones II , 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 6, citing Jones I , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 24.

{¶ 26} As noted above, the DNA evidence available at the time of the indictment revealed that Lynch could not be excluded as the source of semen on the vaginal swab from M.H.'s rape kit. We cannot say that S.P.'s testimony that the allegations against Lynch could not be true would minimize or eliminate the impact of the DNA evidence and bolster the defense. Furthermore, Lynch fails to demonstrate actual prejudice by speculating that he could have asserted an alibi based on S.P.'s testimony that he was in bed with her at the time M.H. alleged that he raped her.

{¶ 27} Although S.P. was not available to testify at trial, Lynch acknowledges that "[w]e know much of what [S.P.] would have testified to from her statements as they appear in [M.H.'s] medical record from the hospital at the time they took the rape kit." Appellant's brief at 4. Regarding S.P.'s unavailable testimony about M.H.'s motive for fabricating the allegations, the record reflects that Lynch was available to testify, and did, in fact, testify about any motives M.H. may have had for fabricating the allegations. Lynch testified that S.P.'s children did not care for him, did not want him in the home, and wanted S.P. to be with their father rather than Lynch. Accordingly, S.P.'s testimony on this point would have been cumulative to Lynch's testimony.

{¶ 28} Lynch's claim of prejudice regarding the loss of CCDCFS records or notes is speculative at best. He presumes that the CCDCFS investigators took notes during the interviews of M.H. and Lynch, and retained these notes in the case file. As noted above, M.H. recanted her allegations against Lynch approximately two weeks after the May 26, 1994 incident. Lynch asserts that the missing CCDCFS records "would provide a concrete explanation of why there was no basis for the prosecution." Appellant's reply brief at 5. Lynch presumes that the CCDCFS records or notes contained a "concrete explanation"-other than the fact that M.H. recanted-as to why the allegations were found to be unsubstantiated.

{¶ 29} Lynch's claim of prejudice regarding the loss of chain of custody information is also speculative. There is no evidence that the information regarding the storage conditions at the Fourth District or how the rape kit was transported to the main property room was initially preserved but subsequently lost as a result of the delay. The missing information may be evidence of an incomplete chain of custody; however, this defense would have existed regardless of the passage of time. See Jones II , 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 9. Furthermore, several witnesses-BCI forensic scientist Andrea Dennis, Cleveland Police Officer Alex Parente, BCI forensic scientist Marissa Keeley, Cleveland Police Detective Michael Moctezuma, and Cuyahoga County Prosecutor's Office Investigator Timothy Clark-were available to testify regarding the rape kit's collection, sealing, storage, and transportation.

{¶ 30} Assuming, arguendo, that Lynch sufficiently demonstrated actual prejudice, we find that the trial court properly determined that the delay in prosecution was justified.

{¶ 31} Lynch argues that the state's delay in bringing the charges against him was not justifiable because M.H. identified Lynch as her rapist both to S.P. and the police, and the police and prosecution allowed the rape kit to sit untested for 18 years. We disagree.

{¶ 32} The record reflects that the delay was a result of M.H. recanting her rape allegation approximately two weeks after reporting the allegation to her mother and the police in May 1994. Although a rape kit was conducted at the time of the incident, DNA evidence was not discovered until 2014 when the rape kit was tested by BCI. The DNA evidence establishing that Lynch could not be excluded as a contributor to the DNA profile from M.H.'s rape kit was "new evidence" that justified the delayed indictment.

{¶ 33} Based on the foregoing analysis, Lynch's first assignment of error is overruled.

B. Prosecutorial Misconduct

{¶ 34} In his second assignment of error, Lynch argues that he was deprived of his constitutional rights to a fair trial and due process when the prosecutor engaged in misconduct during closing arguments.

{¶ 35} Closing arguments must be viewed in their entirety to determine whether the disputed remarks were prejudicial. State v. Mann , 93 Ohio App.3d 301, 312, 638 N.E.2d 585 (8th Dist.1993). An appellant is only entitled to a new trial when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Pate , 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, 2011 WL 1326357, ¶ 19, citing State v. Smith , 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).

{¶ 36} A prosecutor has a duty in closing argument to avoid efforts to obtain a conviction by going beyond the evidence before the jury. Smith at 14, 470 N.E.2d 883. "Prosecutors must avoid insinuations and assertions calculated to mislead. They may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence." State v. Lott , 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). However, " '[i]n the tension and turmoil of a trial, both the prosecution and the defense have wide latitude in summation as to what the evidence has shown and what reasonable inferences may be drawn therefrom.' " Id. at 165, 555 N.E.2d 293, quoting State v. Stephens , 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). See also State v. Ballew , 76 Ohio St.3d 244, 667 N.E.2d 369 (1996) (the prosecutor is entitled to some latitude in closing argument as to what the evidence presented has shown).

{¶ 37} The test for prosecutorial misconduct is whether the prosecutor's remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith , 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000), citing Smith , 14 Ohio St.3d at 14, 470 N.E.2d 883. The touchstone of analysis "is the fairness of the trial, not the culpability of the prosecutor." Id. , citing Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 38} In the instant matter, Lynch takes issue with the prosecutor's comments about the rape kit examination procedure that M.H. went through at the hospital after disclosing the allegations against Lynch to her mother. During closing arguments, the prosecutor stated, in relevant part,

Now, let's talk about what happened to [M.H.] as a result of her disclosing what [Lynch] did to her.
When she said what he did, when she said what he did, this is what happened to her. She had to go to the hospital. As a 12-year-old girl, she had to have her legs up in stirrups with her knees apart, a speculum inserted into her vagina, swabs stuck five to six centimeters into her vagina, swabbing her vagina, and swabbing her cervix. That's what happened as a result of [M.H.] telling her mom what [Lynch] did to her.

(Tr. 1284.) The prosecutor continued, "[a]t the hospital [M.H.] says who did this to her. Cornelius Lynch. And [Dr. Keith Lim] puts her in the stirrups, and he has her spread her legs. He has to insert a speculum into a child, all things [M.H.] had to endure for telling people what [Lynch] did to her[.]" (Tr. 1287.)

{¶ 39} Lynch argues that "[t]here was no proper reason, no justification for [the prosecutor's] gratuitous statements to the jury. [The statements'] purpose, their only purpose, was to inflame, to prejudice, to create sympathy for M.H. And that is an improper purpose." Appellant's brief at 8. We disagree.

{¶ 40} Initially, we note that defense counsel did not object to the prosecutor's statements about the rape kit examination procedure. Accordingly, Lynch has waived the issue on appeal except for plain error. Pate , 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, at ¶ 21, citing State v. Owens , 51 Ohio App.2d 132, 146, 366 N.E.2d 1367 (9th Dist.1975). Accord State v. Harris , 8th Dist. Cuyahoga No. 104329, 2017-Ohio-2751, 90 N.E.3d 342, ¶ 83. Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Moreover, "[p]lain error does not exist unless, but for the error, the outcome at trial would have been different." State v. Joseph , 73 Ohio St.3d 450, 455, 653 N.E.2d 285 (1995), citing State v. Moreland , 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).

{¶ 41} One of the defense's theories of the case was that M.H. made up the allegations against Lynch because she did not want her mother to marry him. On direct examination, Lynch testified that there was stress and tension in the home, both before and after M.H. alleged that he raped her. He explained that S.P.'s children did not care for him, did not want him in the home, and wanted S.P. to be with their father. During closing arguments, defense counsel stated that when S.P. took M.H. to the hospital, S.P. told the doctors that she was sure that M.H. made up the allegations against Lynch "because [her children] want [S.P.] to get back with their natural father[.]" (Tr.

1304-1305.) Defense counsel further explained that while S.P. was going to marry Lynch, her children did not want him around and wanted him out of the house.

{¶ 42} After reviewing the record and the purportedly improper remarks in context, we cannot say that prosecution's comments about the rape kit examination procedure were improper. The prosecutor's comments about the rape kit examination procedure were made to rebut the defense's theory that M.H. fabricated the allegations and to support the prosecution's theory that Lynch did, in fact, rape M.H. Furthermore, the prosecutor's comments were supported by evidence in the record.

{¶ 43} M.H. testified that her mother took her to the hospital where an examination was performed "[i]n [her] vagina area." (Tr. 1066.) Dr. Lim testified that he conducted M.H.'s rape kit examination and he described the procedure in detail. Based on this evidence, the prosecutor reasonably inferred that M.H. would not assent to or endure an invasive rape kit examination if she made up the allegations. The prosecutor's comments fairly represented the state's interpretation of the evidence that it presented during trial, and the prosecutor is entitled to latitude to argue the state's interpretation of the evidence. See State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 172.

{¶ 44} Finally, the trial court instructed the jury that it must decide the case based on the evidence presented and that "closing arguments do not constitute evidence." (Tr. 1322.) We presume that the jury heeded the trial court's instructions. State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 157.

{¶ 45} Based on the foregoing analysis, Lynch's second assignment of error is overruled.

C. Double Jeopardy

{¶ 46} In his fourth assignment of error, Lynch argues that the charges against him should have been dismissed because there was not a manifest necessity for declaring a mistrial in the first prosecution.

{¶ 47} While the jury was deliberating in the first trial, the trial court received a note from the foreperson that indicated an issue arose with one of the jurors. Specifically, the note indicated that Juror 7 was "exhibiting very serious signs of mental or emotional problems. He will not let anyone else speak, constantly interrupts, makes threats, slurring his words and admitted, 'I'm having problem with my head.' Also he demands the transcripts." (Tr. 513.) The trial court shared the note with the parties and made it a part of the record. The trial court had already excused the alternate juror at the time it received the note. The trial court questioned the foreperson to learn more about the issue and to determine whether the issue had been resolved.

{¶ 48} The foreperson stated that Juror 7 was interrupting other jurors and not letting anybody speak. (Tr. 516.) The foreperson further explained that Juror 7 also made threats to both the jury as a whole and to specific individual jurors, was slurring his words and incoherent, and engaging in other disruptive conduct. (Tr. 516.) The foreperson stated that two of the jurors indicated that they do not feel safe in the deliberation room with Juror 7. (Tr. 517.) Juror 7 was adamant about using the notes he took throughout the trial although the trial court instructed the jurors not to do so.

{¶ 49} The trial court questioned Juror 7 about these issues. Furthermore, the trial court questioned the individual jurors separately about the issue.

{¶ 50} After polling the individual jurors, the trial court concluded that Juror 7 "is unable to follow the instructions given by the Court, is unable to live up to his oath as a juror. And I don't think that leaving this juror on that jury, that they can come to a fair and just resolution in this case." (Tr. 571.) Before deciding whether to declare a mistrial, the trial court attempted to contact the alternate juror that had been previously discharged. The trial court was unable to reach the alternate juror, and as a result, declared a mistrial.

{¶ 51} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a criminal defendant from multiple prosecutions for the same offense. Oregon v. Kennedy , 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Double Jeopardy Clause does not, however, bar reprosecution in every case. Where a defendant requests a mistrial, double jeopardy does not bar a retrial unless the defendant's request for a mistrial is precipitated by prosecutorial misconduct intended to provoke a defendant into seeking a mistrial. N. Olmsted v. Himes , 8th Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, 2004 WL 1796343, ¶ 36-37.

{¶ 52} In the instant matter, we initially find no merit to Lynch's assertion that he explicitly objected to the trial court declaring a mistrial. In fact, the record reflects that defense counsel requested a mistrial after the foreperson informed the trial court about the issues that arose with Juror 7: "Your Honor, I would-I think we're in a position now-with the alternate being excused yesterday, I think we're in the same position we would be in with a hung jury, and I would request a mistrial[.]" (Tr. 518.) Defense counsel reiterated this request while the trial court was polling the individual jurors about these issues: "Your Honor, we're asking for a mistrial." (Tr. 552.)

{¶ 53} Lynch appeared to disagree with defense counsel's request for a mistrial. When counsel stated that the defense was asking for a mistrial, Lynch asserted, "[n]o, no, we're not." (Tr. 553.) In his appellate brief, Lynch appears to suggest that this statement demonstrates that he wanted to proceed with 11 jurors.

{¶ 54} It is well established that "although a defendant has the right to counsel or the right to act pro se, a defendant does not have any right to 'hybrid representation.' " State v. Mongo , 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, 2015 WL 1374943, ¶ 13, quoting State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 29. This court has explained,"when counsel represents a criminal defendant, a trial court may not entertain a defendant's pro se motion." Mongo at ¶ 14.

{¶ 55} Lynch was represented by counsel in the first prosecution, and thus, the trial court could not entertain Lynch's pro se objection to granting a mistrial. Furthermore, when the trial court declared a mistrial, neither defense counsel nor Lynch objected. Lynch does not argue nor does the record indicate that the state invited a mistrial. Accordingly, the Double Jeopardy Clause does not bar a second prosecution.

{¶ 56} Assuming, arguendo, that Lynch objected to a mistrial, the record reflects that a manifest necessity existed for the mistrial.

Where a defendant objects to a mistrial, the defendant may be retried if "manifest necessity" exists for the mistrial, State v. Gunnell , 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 25, or if " 'the ends of public justice would otherwise be defeated.' " State v. Glover , 35 Ohio St.3d 18, 19, 517 N.E.2d 900, quoting State v. Widner , 68 Ohio St.2d 188, 189, 429 N.E.2d 1065 (1981), citing [ Arizona v. Washington , 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ]. "Manifest necessity" means a "high degree" of necessity must exist before a mistrial may properly be declared. However, it does not require a showing that a mistrial was "absolutely necessary" or that there was no other alternative but to declare a mistrial. Washington at 511 [98 S.Ct. 824].
There is no "mechanical formula" for determining what constitutes a "manifest necessity" for a mistrial: "[T]he manifest-necessity standard 'abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.' " [ Gunnell at ¶ 27 ], quoting Illinois v. Somerville , 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). What constitutes a manifest necessity for a mistrial is, therefore, left to the discretion of the trial court to be decided on a case-by-case basis, taking into account all the relevant circumstances.

State v. Marshall , 2014-Ohio-4677, 22 N.E.3d 207, ¶ 21-22 (8th Dist.).

{¶ 57} Lynch argues that there was no manifest necessity for the trial court to declare a mistrial. In support of his argument, Lynch suggests that although the alternate juror had been discharged, the alternate could have been brought back. Lynch asserts that the trial court failed to investigate the possibility of bringing back the alternate. These arguments are unsupported by the record.

{¶ 58} The record reflects that the trial court made multiple attempts to reach the alternate juror. The jury commissioner attempted to contact the alternate juror, left the alternate a voicemail, and told the alternate to return the phone call. (Tr. 520.) Before declaring a mistrial, the trial court stated, "I would like to see if the alternate is available," and "I'm going to * * * see if we can get ahold of the alternate, if the alternate is available." (Tr. 530, 566.) When the trial court declared a mistrial, it explained, "we don't have the alternate here to replace [Juror 7] with an alternate. It's my understanding the alternate was discharged from jury service yesterday after the Court had let the alternate go from this trial, prior to this jury's deliberations." (Tr. 571.)

{¶ 59} After review, we find that the trial court acted reasonably in determining that a manifest necessity existed for the declaration of a mistrial. The record reflects that the trial court exercised sound discretion in determining that Juror 7 was unable to follow the court's instructions and perform his duty. After learning about the issues that arose with Juror 7, the trial court conducted a thorough inquiry, questioning the foreperson, Juror 7, and each juror separately. The trial court permitted defense counsel and the prosecution to question the jurors as well. Furthermore, before deciding to discharge Juror 7 or declare a mistrial, the trial court made multiple attempts to reach the alternate juror. The trial court only declared a mistrial after determining that (1) the jury would not be able to reach a fair and just resolution in the case with Juror 7 on the panel and (2) the alternate juror could not be reached. Accordingly, the trial court did not abuse its discretion by determining that there was a manifest necessity to declare a mistrial.

{¶ 60} Finally, Lynch cites State v. Davis , 8th Dist. Cuyahoga No. 91324, 2009-Ohio-5217, 2009 WL 3154509, for the proposition that the case could have and should have gone forward with 11 jurors rather than the trial court declaring a mistrial. In Davis , both the defendant and the state consented to proceeding with an 11-person jury. Id. at ¶ 17. In this case, neither Lynch nor the state requested or consented to proceeding with 11 jurors. Accordingly, Lynch's reliance on Davis is misplaced.

{¶ 61} Based on the foregoing analysis, Lynch's fourth assignment of error is overruled.

D. Ineffective Assistance of Counsel

{¶ 62} In his third assignment of error, Lynch argues that his trial counsel provided ineffective assistance.

{¶ 63} In order to establish a claim of ineffective assistance of counsel, appellant must prove (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, every properly licensed attorney is presumed to be competent and, thus, a defendant claiming ineffective assistance of counsel bears the burden of proof. State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). In determining whether the defendant has been denied the effective assistance of counsel, the test is "whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done." State v. Hester , 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.

{¶ 64} In the instant matter, Lynch first argues that counsel provided ineffective assistance by failing to object to the prosecutor's comments during closing arguments about the rape kit examination procedure. Based on our resolution of Lynch's second assignment of error, we cannot say that counsel provided ineffective assistance by failing to object to the prosecutor's comments about the rape kit examination. Having found that the prosecutor's comments were not improper, we cannot say that counsel's failure to object to the comments prejudiced Lynch. See State v. Peterson , 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, 2015 WL 1249680, ¶ 157 ; State v. Hill , 8th Dist. Cuyahoga No. 95379, 2011-Ohio-2523, 2011 WL 2112674, ¶ 42.

{¶ 65} Lynch further argues that counsel provided ineffective assistance by failing to move to dismiss the case on double jeopardy grounds after the first prosecution was declared a mistrial. Based on our resolution of Lynch's fourth assignment of error, we cannot say that counsel provided ineffective assistance by failing to move for a dismissal on double jeopardy grounds. As noted above, when the issues arose with Juror 7, defense counsel requested that the trial court declare a mistrial. There is nothing in the record indicating that the state invited the mistrial. Furthermore, the trial court did not abuse its discretion in determining that there was a manifest necessity to declare a mistrial. The trial court determined that Juror 7 was unable to follow the court's instructions and perform his duty, and the court was unable to replace Juror 7 with an alternate juror.

{¶ 66} Based on the foregoing analysis, Lynch's third assignment of error is overruled.

III. Conclusion

{¶ 67} After thoroughly reviewing the record, we find that the trial court did not err in denying Lynch's motions to dismiss for preindictment delay; the prosecutor did not commit misconduct during closing arguments; the trial court did not abuse its discretion by determining that there was a manifest necessity to declare a mistrial, and the second prosecution was not barred by the Double Jeopardy Clause; and Lynch was not denied his constitutional right to effective assistance of counsel.

{¶ 68} Judgment affirmed.

KATHLEEN ANN KEOUGH, P.J., and LARRY A. JONES, SR., J., CONCUR


source: Caselaw Access Project

author: TIM McCORMACK, P.J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant v. Salvatore PASSAFIUME, Defendant-Appellee
    Nos. 105438 105439
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar, Assistant County Prosecutor, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLANT
    Margaret W. Wong, Margaret Wong & Associates, 3150 Chester Avenue, Cleveland, OH 44114, ATTORNEY FOR APPELLEE
    BEFORE: McCormack, P.J., Stewart, J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} In this consolidated appeal, appellant, the state of Ohio, appeals from the order of the trial court granting appellee, Salvatore Passafiume's motions to withdraw his guilty pleas. Upon thorough review of the record and applicable law, we reverse the trial court.

Procedural and Factual Background

{¶ 2} In June 2009, Passafiume was charged with aggravated theft and theft in Cuyahoga C.P. No. CR-09-525815 and tampering with evidence, drug possession, and possessing criminal tools in Cuyahoga C.P. No. CR-09-529125. On November 17, 2009, he pleaded guilty to aggravated theft as charged in the indictment in Case No. CR-09-525815 and attempted tampering with evidence and drug possession in Case No. CR-09-529125.

{¶ 3} Prior to entering his guilty pleas, the court engaged in a full colloquy with Passafiume and advised him of the constitutional rights he was waiving. The court also advised Passafiume, as a noncitizen of the United States, "[Y]ou're hereby advised that conviction of the offenses to which you're pleading guilty may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." When asked if he understood, Passafiume replied, "Yes, your Honor." The court then found Passafiume's pleas to be knowingly, voluntarily, and intelligently entered, and it found him guilty accordingly. The court sentenced Passafiume to five years of community control sanctions. The court also suspended Passafiume's driving privileges for five years and ordered Passafiume to pay court costs in both cases and restitution of $595 in Case No. CR-09-525815. Thereafter, in August 2012, upon the probation officer's request, Passafiume's community control sanctions were terminated early. He did not appeal from his sentence or convictions.

{¶ 4} On December 20, 2016, approximately seven years after entering his guilty pleas, Passafiume filed a Crim.R. 32.1 motion to withdraw guilty plea (in both lower court cases), claiming that he was denied the effective assistance of counsel prior to entering his November 2009 guilty pleas. In support, he argued that his attorney failed to advise him that his pleas would result in deportation. While acknowledging in an affidavit attached to his motions that the trial court "mention[ed] something about [immigration consequences]," he contended he was "nervous * * * and did not think I would get deported as a result of the conviction since my attorney never mentioned anything about it." Passafiume stated that he was placed in removal proceedings in October 2016, he is subject to mandatory detention, and he had been in deportation proceedings previously but had received a waiver that allowed him to remain in the United States. He also contends that trial counsel failed to properly investigate his defenses and pressured him into pleading.

{¶ 5} The state opposed Passafiume's motions, stating that Passafiume has failed to demonstrate a manifest injustice. In support, the state provided that Passafiume cannot establish ineffective assistance of counsel because (1) counsel was not deficient-counsel was not required by the law at the time of Passafiume's conviction to advise him of deportation consequences, and there is no evidence, other than a self-serving affidavit, that defense counsel's performance otherwise fell below the standard of care; and (2) Passafiume cannot demonstrate prejudice.

{¶ 6} On February 3, 2017, the trial court held a hearing on Passafiume's motions. During the hearing, Passafiume provided that he is a citizen of Italy and he came to the United States with his family in 1959 as an infant, and he has been a permanent resident of the United States. When he was a child, he and his family moved from New York City to Cleveland, and he has lived in Cleveland ever since. He stated that he could have become a United States citizen, but he "never thought about it."

{¶ 7} Passafiume testified concerning the underlying offenses. He stated that he was an innocent bystander who was unaware that an acquaintance of his whom he had driven to Walmart, the codefendant in Case No. CR-09-525815, had stolen a computer from the store. Passafiume also stated that he was an innocent bystander in Case No. CR-09-529125, where the police discovered drugs in the car he was driving. He contends that the drugs were discovered on the passenger seat where his friend, the codefendant in that case, had been seated prior to the police removing the friend from the vehicle. Passafiume testified that he explained all the above to his trial counsel, yet counsel advised him to plead no contest.

{¶ 8} Passafiume testified that his prior attorney never advised him of any deportation consequences should he be convicted. He stated that he would not have pleaded guilty had he known he would be placed in mandatory detention and immigration proceedings, explaining that his entire family is in the United States and he has "no life" in Italy. Passafiume also explained that during the plea hearing, he did not fully understand when the court advised him about deportation consequences because he was "taking a lot of pain meds and stuff like that." He conceded that he "should have thought about the situation a little more, knowing that I was innocent."

{¶ 9} Passafiume also testified that in October 2016, he went to Cleveland Municipal Court to pay a fine on an OVI case for which he had served six months community control sanctions, and he was detained by immigration officials. He stated on cross-examination that he had been in deportation proceedings previously but received a waiver that allowed him to stay in the United States. He explained that, while he was ill, immigration officials had come to his home in 2004 for a petty theft charge. The supervisor "let him be," however, because he was ill.

{¶ 10} After the hearing, the trial court issued one written ruling on Passafiume's motions to withdraw his guilty pleas. The court determined that Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively, and applying its "equity powers," it granted the motions.

{¶ 11} The state now appeals the court's decision, assigning the following errors for our review:

I. The trial court erred in holding that the holding set forth in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) applies retroactively.
II. Assuming, arguendo, that Padilla is retroactive, the trial court abused its discretion when it applied the wrong legal standard in granting Appellee's motion to withdraw his guilty plea.

Law and Analysis

{¶ 12} The state of Ohio contends on appeal that the trial court erred when it granted the appellee's motions to withdraw his November 2009 guilty pleas. In support, it argues that Passafiume has not demonstrated his trial counsel was ineffective because (1) trial counsel was not required to advise Passafiume of deportation consequences, and therefore, counsel's performance was not deficient; and (2) Passafiume cannot establish prejudice. The state also argues that the trial court failed to apply the correct legal standard in granting Passafiume's motions to withdraw.

{¶ 13} Motions to withdraw guilty pleas are governed by Crim.R. 32.1. Under this rule, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Crim.R. 32.1. A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. And a self-serving affidavit by the moving party is generally insufficient to demonstrate manifest injustice. State v. Geraci , 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, 2015 WL 4043007, ¶ 10.

{¶ 14} "Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process." State v. Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, 2004 WL 2616430, ¶ 5. It has been defined as a "clear or openly unjust act." State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Under the manifest injustice standard, a postsentence motion to withdraw a plea is permitted "only in extraordinary cases." State v. Montgomery , 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61 (8th Dist.), citing Smith at 264, 361 N.E.2d 1324.

{¶ 15} The determination of whether the defendant has met his or her burden of establishing "a manifest injustice"

is within the sound discretion of the trial court. State v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 42 (8th Dist.), citing Smith at paragraph two of the syllabus. "[T]he good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith . And an "undue delay" between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor which adversely affects the credibility of the movant and mitigates against the granting of the motion. Id. at paragraph three of the syllabus.

{¶ 16} An abuse of discretion may exist where the trial court " 'applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.' " Cruz v. English Nanny & Governess School, Inc. , 2017-Ohio-4176, 92 N.E.3d 143, ¶ 112 (8th Dist.), quoting Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

{¶ 17} The crux of Passafiume's argument is that his plea was invalid because trial counsel was ineffective for failing to advise him regarding possible immigration consequences resulting from entering a guilty plea. Ineffective assistance of counsel can constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g., State v. Montgomery , 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, 2016 WL 2757703, ¶ 4. The defendant, however, bears the burden of showing that counsel's performance led to a manifest injustice. State v. Bankston , 8th Dist. Cuyahoga No. 92777, 2010-Ohio-1576, 2010 WL 1386380, ¶ 53.

{¶ 18} To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell below an objective standard of reasonable representation; and (2) that counsel's errors prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant must prove both prongs of the Strickland test to prevail. Strickland at 687, 104 S.Ct. 2052.

{¶ 19} In the context of a guilty plea, the defendant must show that counsel's failure to provide advice impaired the knowing and voluntary nature of the plea. State v. Milczewski , 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, 2012 WL 1379906, ¶ 5. In such a case, the defendant will prevail by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, 2014 WL 3866137, ¶ 11, citing State v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

{¶ 20} In 2010, the United States Supreme Court held that an attorney's performance is deficient when he or she has failed, at a minimum, to advise a noncitizen defendant-client that "pending criminal charges may carry a risk of adverse immigration consequences." Padilla , 559 U.S. at 369, 130 S.Ct. 1473, 176 L.Ed.2d 284. An attorney's performance is also deficient when his or her advice regarding deportation issues, which are "easily determined from reading the removal statute," is incorrect. Id. We find, however, that Padilla does not apply in this case.

{¶ 21} In Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the United States Supreme Court applied the principles outlined in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and held that Padilla could not be applied retroactively to convictions that had become final before March 31, 2010, when Padilla was decided. In so holding, the Supreme Court determined that Padilla had announced a "new rule":

So when we decided Padilla , we answered a question about the Sixth Amendment's reach that we had left open, in a way that altered the law of most jurisdictions * * *.
Before Padilla , we had declined to decide whether the Sixth Amendment had any relevance to a lawyer's advice about matters not part of a criminal proceeding. Perhaps some advice of that kind would have to meet Strickland's reasonableness standard-but then again, perhaps not: No precedent of our own "dictated" the answer. And as the lower courts filled the vacuum, they almost uniformly insisted on what Padilla called the "categorica[l] remov[al]" of advice about a conviction's non-criminal consequences-including deportation-from the Sixth Amendments scope. It was Padilla that first rejected that categorical approach-and so made the Strickland test operative-when a criminal lawyer gives (or fails to give) advice about immigration consequences. * * * Padilla's holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been-in fact, was not-"apparent to all reasonable jurists" prior to our decision. Padilla thus announced a "new rule."

(Citations omitted.) Chaidez at 352-354, 133 S.Ct. 1103.

{¶ 22} The First District Court of Appeals, in following Chaidez , explained:

In Teague , the United States Supreme Court held that a person whose conviction is final before a case is decided may avail himself of that decision in a collateral proceeding if the case applies a settled rule, but not if the case announces a "new rule," unless that new rule constitutes either a rule placing "conduct beyond the power of the [government] to proscribe" or a "watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Teague , 489 U.S. at 311, 109 S.Ct. 1060, 103 L.Ed.2d 334. The court in Teague stated that "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301 [109 S.Ct. 1060]. And the court later declared that a holding is not dictated by existing precedent unless it would have been "apparent to all reasonable jurists." Lambrix v. Singletary , 520 U.S. 518, 527-528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

State v. Bishop , 2014-Ohio-173, 7 N.E.3d 605, ¶ 9 (1st Dist.), citing Chaidez at 347-357, 133 S.Ct. 1103.

{¶ 23} As the First District stated, the duty imposed upon counsel to provide a noncitizen client an advisement concerning the immigration consequences of a plea "cannot be said to have been dictated by Ohio precedent * * *." Bishop at ¶ 14. Prior to Padilla , Ohio courts have held that the duty to notify a defendant of immigration consequences is on the trial court, not counsel. See State v. Hamilton , 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, 2008 WL 324791, ¶ 18, citing State v. Sok , 170 Ohio App.3d 777, 2007-Ohio-729, 869 N.E.2d 60 (1st Dist.) ; State v. Bulgakov , 6th Dist. Wood No. WD-03-096, 2005-Ohio-1675, 2005 WL 791403 ; State v. Garcia , 3d Dist. Defiance No. 4-98-24, 1999 WL 254288 (Apr. 9, 1999) ;

State v. Lei , 10th Dist. Franklin No. 05AP-288, 2006-Ohio-2608, 2006 WL 1431409, ¶ 32 ("Though the court must inform defendants of deportation consequences prior to accepting a plea of guilty or no contest, pursuant to R.C. 2943.031, no statutory or decisional authority requires trial counsel to advise a defendant of the civil, collateral consequence of deportation for purposes of the defendant's decision as to whether to accept a plea agreement or to exercise her constitutional right to trial"); see also State v. Arvanitis , 36 Ohio App.3d 213, 218, 522 N.E.2d 1089 (9th Dist.1986) (stating that before R.C. 2943.031 was enacted, it was "not disposed to announce a hard and fast rule" that counsel had violated a duty in failing to advise a noncitizen client concerning the immigration consequences of a guilty plea). Thus, Padilla announced a new rule in Ohio.

{¶ 24} Although this court has not previously addressed retroactive application of Padilla , we note that at least four Ohio appellate courts have refused to apply Padilla retroactively. See State v. Bravo , 2017-Ohio-272, 81 N.E.3d 919 (9th Dist.) (holding that the trial court did not err by denying defendant's motion to withdraw her guilty plea pursuant to Crim.R. 32.1 on the basis of ineffective assistance of trial counsel, because she could not rely on Padilla to establish counsel's deficient performance merely because he did not advise her that there could be adverse immigration consequences if she were to plead guilty); State v. Brooks , 7th Dist. Jefferson No. 14 JE 3, 2015-Ohio-836, 2015 WL 1019381 (finding that because Padilla did not apply retroactively to defendant's case, he had not met the exception to the timeliness requirement for postconviction petitions); Bishop (finding the trial court abused its discretion in retroactively applying Padilla to permit defendant to withdraw his no contest plea under Crim.R. 32.1 based on the failure of his counsel to advise him that deportation was mandatory); State v. Spivakov , 10th Dist. Franklin Nos. 13AP-32 and 13AP-33, 2013-Ohio-3343, 2013 WL 3958441 (holding the trial court did not err in denying without a hearing defendant's motion to withdraw his guilty pleas under Crim.R. 32.1, because convictions became final "long before Padilla was decided"). We decline to depart from our sister courts.

{¶ 25} Here, Passafiume's conviction became final in 2009, when the time for perfecting a direct appeal had expired. See Bishop , 2014-Ohio-173, 7 N.E.3d 605, at ¶ 10, citing Teague at 295, 109 S.Ct. 1060. Because Passafiume's conviction was final before Padilla was decided, he cannot rely on it to establish trial counsel's deficient performance where counsel did not advise him that he may be deported if he were to plead guilty. Bravo at ¶ 12.

{¶ 26} To the extent that Passafiume argues counsel was deficient in failing to investigate his defenses and pressuring him to plead, we find no merit. Passafiume offered only his own self-serving affidavit in support of his motion to withdraw. As previously stated, a defendant's self-serving affidavit is generally insufficient to demonstrate manifest injustice. Geraci , 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, 2015 WL 4043007, at ¶ 10. When a defendant asserts that his guilty plea was involuntary, "a record reflecting compliance with Crim.R. 11 has greater probative value than a petitioner's self-serving affidavit." State v. Yearby , 8th Dist. Cuyahoga No. 79000, 2002 WL 120530, 3 (Jan. 24, 2002) ; see also State v. Shaw , 8th Dist. Cuyahoga No. 102802, 2016-Ohio-923, 2016 WL 934647, ¶ 10 (a defendant's self-serving statements or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review that shows that his plea was voluntary). And " 'a court's adherence to Crim.R. 11 raises a presumption that the plea was voluntarily entered.' " State v. Elliott , 8th Dist. Cuyahoga No. 103472, 2016-Ohio-2637, 2016 WL 1600312, ¶ 25, citing State v. Wittine , 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, 2008 WL 4813830, ¶ 8.

{¶ 27} Here, Passafiume stated in his affidavit that, concerning the theft case (Case No. CR-09-525815), he did not know the computer was stolen and he was not paid to drive his codefendant to the store. Passafiume also averred that he told his attorney that he was innocent, but she told him he "had no real choice but to enter a plea" and that it was unlikely he would receive any jail time. He stated that he "reluctantly agreed" to enter a guilty plea in that case, and he would not have pleaded guilty had his counsel "performed competently and advised me to proceed to trial rather than taking a plea to a crime I did not commit." Passafiume did not, however, address the charges of tampering with evidence, drug possession, and possessing criminal tools in his second case (Case No. CR-09-529125).

{¶ 28} At the hearing on his motion to withdraw, he offered similar self-serving statements. He testified that he was innocent of the charges, he advised his attorney of the circumstances, the attorney never told him about deportation consequences, and he would not have pleaded guilty had he known about deportation. He acknowledged, however, that he "just wanted to get it over with. I was sick at the time."

{¶ 29} On the other hand, the record of the plea hearing in this case demonstrates that the trial judge engaged in a comprehensive Crim.R. 11 colloquy, and Passafiume entered his plea knowingly and voluntarily. When the court inquired whether any threats or promises had been made to induce him to plead, Passafiume replied, "No, your Honor." When the court asked Passafiume if he was satisfied with trial counsel's representation, he replied, "Yes." Passafiume also advised the court that he was not under the influence of any alcohol or narcotics or any "medication that affects [his] judgment." When the court asked Passafiume if he "underst[ood] what we're doing here today," he replied, "Yes, I do, your Honor." Upon learning that Passafiume was a noncitizen of the United States, the court advised him that conviction of his offenses may have "consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Passafiume advised the court that he understood.

{¶ 30} Furthermore, in addressing the court at sentencing, counsel stated that Passafiume was in a drug treatment program since October 2009 and she addressed the issues in the presentence investigation report:

Mr. Passafiume had a bout with drug use again having relapsed. He got himself back into the [drug treatment] program at the Keating Center. He was residing there, doing well.
* * * [B]ased on his medical conditions, [the Keating Center] no longer wanted him to reside in the program but that he is still participating in the program on an outpatient basis as well as going to all of his meetings, etc. * * *.
He is doing everything that he needs to do in order to maintain his sobriety. He has at all times been very upset about the fact that he found himself in a situation with drugs again.
As far as the theft case is concerned, your Honor, basically, Mr. Passafiume went to the store with a friend of his * * * who went to go buy a computer. It turned out that they were going to try and use their dead father's credit card, etc., but [he] ended up walking out without paying for it at all, and Mr. Passafiume was in the car waiting for them. That person has since moved to Florida and we were un[able] to locate [him], and therefore, he took responsibility for the computer.
Your Honor, basically, Mr. Passafiume has started himself on the road to recovery. He's done everything necessary, even prior to pleading in these cases, and I would just ask that the court give him an opportunity for community control sanctions.

{¶ 31} When asked if Passafiume had anything to say, he responded:

[A]s far as the theft case, your Honor, I know that I did wrong. And the officer that took my statement, they said the reason why they had charges is because I said I was taking money. After he got rid of the computer I meant he was paying me out of his own pocket. * * * I had no clue that he was stealing the computer. But I wanted to just get it over with, and I'll take responsibility and pay for it.

{¶ 32} A fair reading of the record belies Passafiume's assertions that trial counsel failed to investigate his defenses, that he was dissatisfied with counsel, or that trial counsel pressured him into pleading guilty. Passafiume has therefore not demonstrated that trial counsel's representation was deficient.

{¶ 33} In its order granting Passafiume's motions to withdraw, the trial court essentially decried the unfairness of Passafiume's present situation:

This defendant has, for all intents and purposes, been a citizen of the United States for all but 13 months of his life. He has been a working person, who presumably has paid taxes over his lifetime and is now receiving social security benefits. He has no connection with Italy other than the fact that he was born there. The crimes at issue were not crimes of violence and * * * he could easily have presented [a defense].

{¶ 34} We note, however, that Passafiume bears the burden of demonstrating manifest injustice in the plea proceeding. State v. Sneed , 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, 2002 WL 31667630, ¶ 13 (a manifest injustice is "an extraordinary and fundamental flaw in the plea proceeding"). The manifest injustice "relates to some fundamental flaw in the proceedings which result in a miscarriage of justice or is inconsistent with the demands of due process." Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5. And where, as in this case, the defendant claims his trial counsel was ineffective at the time he entered his plea, he bears the burden of showing that counsel's performance led to a manifest injustice. Bankston , 8th Dist. Cuyahoga No. 92777, 2010-Ohio-1576, at ¶ 53.

{¶ 35} As we discussed previously, Passafiume's trial counsel was not obligated to advise Passafiume of immigration consequences resulting from his guilty pleas. Rather, the law at the time he entered his plea imposed a duty upon the trial court, and the trial court did in fact provide the advisement. Additionally, Passafiume told the court that he understood the court's advisement. In all other respects, the record reflects the trial judge engaged in a comprehensive Crim.R. 11 colloquy and Passafiume entered his plea knowingly and voluntarily. Passafiume has therefore not demonstrated that counsel's performance surrounding the plea hearing led to a manifest injustice.

{¶ 36} Furthermore, we note that Passafiume had notice of potential immigration issues several years prior to pleading guilty in November 2009. The record shows that Passafiume had been in deportation proceedings in 2004, presumably due to his earlier convictions, but received a waiver that allowed him to stay in the United States. On cross-examination, Passafiume explained what happened:

Passafiume: What they did, they didn't detain me, they came to my house. I was sick * * * and the immigration officer just called his supervisor and said that he was sick, so just let him be.
Prosecutor: So this was in 2004, and I'm sure when you got that call there was a chance that you might be deported, I'm sure that you were worried about it?
Passafiume: Yes.
Prosecutor: So that was something that was on your mind?
Passafiume: Yes. And I didn't commit any crimes until those stupid things with those guys, I was fine. As long as you don't get into no trouble, everything is fine. And I did not do anything until that happened with those idiots.

{¶ 37} Thus, the record demonstrates that prior to entering his guilty plea in November 2009, Passafiume understood, to some degree, that his legal troubles were threatening his ability to remain in the United States. See State v. Huang , 8th Dist. Cuyahoga No. 99945, 2014-Ohio-1511, 2014 WL 1408122, ¶ 16.

{¶ 38} Under these circumstances, we cannot find that Passafiume has demonstrated a fundamental flaw in his plea proceedings that resulted in a manifest injustice. We therefore sustain the assignments of error, reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.

MELODY J. STEWART, J., CONCURS;

PATRICIA ANN BLACKMON, J., CONCURS IN JUDGMENT ONLY


author: KATHLEEN ANN KEOUGH, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Isaiah MARTIN, Defendant-Appellant
    No. 106125
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    Myron P. Watson, 614 W. Superior Ave., Suite 1144, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Gregory Paul, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Keough, J., McCormack, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Isaiah Martin ("Martin"), appeals his convictions following a bench trial. For the reasons that follow, we reverse and remand with instructions.

{¶ 2} In September 2016, Martin was named in a six-count indictment charging him with attempted murder, two counts of felonious assault, two counts of child endangering, and intimidation of a crime victim or witness. The attempted murder and felonious assault counts contained one- and three-year firearm specifications. Martin waived his right to a jury trial, and the case was tried to the bench.

{¶ 3} The charges in this case stemmed from a confrontation and resulting altercation between Martin and the victim, Mark D'Amore, that occurred in the parking lot of the Cleveland police First District station during a prescheduled child-visitation exchange. During the altercation, Martin shot D'Amore in the shoulder. At trial, Martin asserted that he acted in self-defense and maintained that the Castle Doctrine relieved him of his duty to retreat prior to using deadly force.

{¶ 4} Martin was found not guilty of attempted murder, intimidation of a crime victim or witness, and both counts of child endangering. However, the trial court found him guilty of aggravated assault, as a "lesser included" offense of felonious assault, as charged in both Counts 2 and 3. He was also found guilty of the attendant one- and three-year firearm specifications.

{¶ 5} Following merger, Martin was sentenced to three years on the firearm specifications to be served prior and consecutive to a one-year term of community control sanctions on the underlying aggravated assault charge.

{¶ 6} Martin now appeals, raising two assignments of error. Finding merit to the second assignment of error, it will be addressed first.

{¶ 7} In his second assignment of error, Martin contends that the trial court erred when it found him guilty of aggravated assault as a lesser included offense of felonious assault.

{¶ 8} It is well settled that aggravated assault is not a lesser-included offense of felonious assault. Instead, aggravated assault is an inferior degree of felonious assault because its elements are identical to or contained within the offense of felonious assault, coupled with the additional presence of one or both mitigating circumstances of sudden passion or a sudden fit of rage brought on by serious provocation occasioned by the victim. State v. Searles , 8th Dist. Cuyahoga No. 96549, 2011-Ohio-6275, 2011 WL 6145748, citing State v. Logan , 10th Dist. Franklin No. 08AP-881, 2009-Ohio-2899, 2009 WL 1710763, citing State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294 (1988) ; see also R.C. 2903.12.

{¶ 9} The state concedes that aggravated assault is not a lesser-included offense of felonious assault. However, the state maintains that the trial court merely used imprecise wording when it found Martin guilty of aggravated assault as a lesser-included offense rather than an inferior offense of felonious assault. In support, the state directs this court to a line of cases that stand for the proposition that in a bench trial, it is presumed that "the court considered inferior and lesser-included offenses." State v. Masci , 8th Dist. Cuyahoga No. 96851, 2012-Ohio-359, 2012 WL 344962, ¶ 25 ; State v. Perez , 8th Dist. Cuyahoga No. 91227, 2009-Ohio-959, 2009 WL 548143 ; State v. Waters , 8th Dist. Cuyahoga No. 87431, 2006-Ohio-4895, 2006 WL 2692843, ¶ 11. However, in those cases, this court was not reviewing a trial court's verdict finding the defendant guilty of aggravated assault as a lesser-included offense of felonious assault. These cases merely stand for the proposition that a presumption exists that the trial court as the trier of fact considered both lesser-included and inferior offenses in rendering its verdict, even when the parties do not request such consideration.

{¶ 10} Martin contends that the trial court's pronouncement of the verdict on the record demonstrates that the court mistakenly believed that aggravated assault was a lesser-included offense; thus defeating the presumption that the trial court properly considered both lesser-included and inferior offenses.

{¶ 11} In State v. Williams , 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, 2013 WL 658155, the trial court mistakenly considered the offense of aggravated assault as a lesser-included offense of felonious assault. This court concluded that the court's oral pronouncement of the verdict demonstrated that the court considered and rejected that the mitigating factor of serious provocation was proven, thus demonstrating that the court only misstated that the offense was a "lesser-included" offense of felonious assault. Id. at ¶ 22.

{¶ 12} The trial court in this case, unlike in Williams , did not discuss provocation sufficient to demonstrate to this court that it considered aggravated assault as an inferior offense and merely used imprecise wording. The trial court stated:

This Court, after careful and deliberate review of all of the evidence, finds that the State of Ohio has not presented evidence that rises to the acceptable legal standard of guilty beyond a reasonable doubt as to Counts Two and Three [felonious assault].
This Court does find, however, that the State has presented evidence that rises to the legal standard of guilty beyond a reasonable doubt as to the lesser-included offenses of aggravated assault, as defined in Revised Code 2903.12, with both the one[-] and three-year firearm specifications.
* * *
I therefore find the defendant guilty of aggravated assault with a one[-] and three-year firearm specification, the lesser offenses of Counts Two and Three.

(Tr. 444-445.) At no point did the trial court indicate that it considered the mitigating factor of provocation. More importantly, the trial court effectively found Martin not guilty of both felonious assault charges when it determined that the state did not satisfy its burden of proof.

{¶ 13} To be found guilty of aggravated assault as an inferior offense of felonious assault, the trier of fact must first find that the state proved the elements of felonious assault beyond a reasonable doubt. Only then does the trier of fact consider whether the defendant proved the mitigating factor of serious provocation by a preponderance of the evidence. If the trier of fact finds that the defendant proved the mitigating circumstance, then the trier of fact can find a defendant guilty of aggravated assault. See State v. Ruppart , 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 33-38 (8th Dist.), citing 2 Ohio Jury Instructions, Section 503.11(A)(14) (2009).

{¶ 14} Simply put, a finding of not guilty of felonious assault necessarily precludes a finding of guilty of aggravated assault as an inferior offense of felonious assault. Accordingly, when the trial court found Martin not guilty of felonious assault, it could not, as a matter of law, find him guilty of aggravated assault.

{¶ 15} Martin's second assignment of error is sustained. This court's resolution of this assignment of error renders moot Martin's first assignment of error, which asserts that his conviction is against the manifest weight of the evidence.

{¶ 16} Judgment reversed. The case is remanded to the trial court for the court to enter a judgment entry vacating Martin's conviction for aggravated assault and attendant firearm specifications.

TIM McCORMACK, P.J., and PATRICIA ANN BLACKMON, J., CONCUR


author: Delaney, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Gerry H. PERSINGER, Defendant-Appellant
    No. 2017CA0007
    Court of Appeals of Ohio, Fifth District, Morrow County.
    DATE OF JUDGMENT ENTRY: March 22, 2018
    DAVID HOMER, Morrow Co. Asst. Prosecutor, 60 East High St., Mt. Gilead, OH 43338, For Plaintiff-Appellee.
    GERRY A. PERSINGER, PRO SE, Marion Correctional Inst., P.O. Box 57, Marion, OH 43301, For Defendant-Appellant.
    JUDGES: Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Delaney, J.

{¶ 1} Appellant Gerry H. Persinger appeals from the October 5, 2017 Judgment Entry of the Morrow County Court of Common Pleas overruling his "motion for arrest of judgment" and "motion to vacate void judgment." Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2008, appellant was convicted of four counts of unlawful sexual conduct with a minor, all felonies of the second degree in violation of R.C. 2907.04. The trial court imposed an aggregate prison term of 20 years. Appellant directly appealed from his convictions and sentence, challenging the sufficiency of the indictment and the imposition of court costs, and alleging ineffective assistance of counsel. We overruled appellant's three assignment of error, affirming the convictions and sentence. State v. Persinger , 5th Dist. Morrow No. 08-CA-14, 2009-Ohio-5849, 2009 WL 3674679, appeal not allowed, 124 Ohio St.3d 1402, 2009-Ohio-6825, 918 N.E.2d 1010, and reconsideration denied, 124 Ohio St.3d 1437, 2010-Ohio-207, 920 N.E.2d 369. Appellant's petition for a writ of habeas corpus was dismissed. Persinger v. Marion Correctional Institution , S.D.Ohio No. 2:15-CV-02653, 2015 WL 5999321, *1.

{¶ 3} In 2012, appellant filed a petition for post-conviction relief which was overruled. We dismissed appellant's subsequent appeal because no brief was filed. State v. Persinger , 5th Dist. Morrow No. 12-CA-11.

{¶ 4} In 2014, appellant filed a motion to correct sentence which was overruled. We dismissed appellant's subsequent appeal as untimely. State v. Persinger , 5th Dist. Morrow No. 14 CA 0001.

{¶ 5} On May 3, 2017, appellant filed a "Motion to Arrest Judgment, Pursuant to R.C. 2947.02(a)(b)," asserting the trial court had no jurisdiction over the offenses and that no public record exists of "the body of the crimes." Appellee responded with a motion in opposition. On August 28, 2017, appellant filed a "Motion to Vacate Void Judgment" arguing the trial court failed to properly notify him of post-release control. Both motions were overruled.

{¶ 6} Appellant now appeals from the trial court's Journal Entry of Judgment dated October 5, 2017, overruling his motions for arrest of judgment and to vacate void judgment.

{¶ 7} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶ 8} "THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO VACATE VOID JUDGMENT FOR IMPROPERLY IMPOSING POST-RELEASE CONTROL IN VIOLATION OF DUE PROCESS UNDER THE OHIO CONSTITUTION ART. I SECT. 16 U.S. CONSTITUTION 14TH AMENDMENT."

ANALYSIS

{¶ 9} Appellant argues the trial court was required to vacate the void judgment for improperly imposing post-release control. We agree to the extent that we remand the matter to the trial court with instructions to issue a nunc pro tunc entry properly stating the duration of the post-release control period.

{¶ 10} "[A] trial court must provide statutorily compliant notification to a defendant regarding post release control at the time of sentencing, including notifying the defendant of the details of the post release control and the consequences of violating post release control." State v. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18 (citations omitted). Further, "a trial court must incorporate into the sentencing entry the post release-control notice to reflect the notification that was given at the sentencing hearing." Id. at ¶ 19.

{¶ 11} Because appellant was ultimately sentenced upon felony sex offenses, he was subject to a five-year mandatory term of post-release control. See R.C. 2967.28(B)(1) ; R.C. 2929.19(B)(2)(c).

{¶ 12} In the case of mandatory post-release control, the court at a sentencing hearing must notify the offender that he or she "will" be supervised if the offender has been convicted of a felony subject to mandatory post release control. R.C. 2929.19(B)(2)(c) and 2967.28(B). Additionally, at the sentencing hearing, the court must notify the offender that if he or she "violates that supervision * * *, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender." R.C. 2929.19(B)(2)(e).

{¶ 13} Appellant has not provided a transcripts of the sentencing hearing, so we presume the trial court's oral post-release control notifications were proper. State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 20, citing Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000) ; State v. Moore , 5th Dist. Muskingum No. CT2015-0027, 2015-Ohio-3435, 2015 WL 5021034, ¶ 11, affirmed, 151 Ohio St.3d 276, 2017-Ohio-7851, 87 N.E.3d 1261.

{¶ 14} In Grimes, supra, the Ohio Supreme Court identified what information the sentencing entry must contain to validly impose post release control in cases in which the trial court made the proper advisements at the sentencing hearing:

[T]he sentencing entry must contain the following information: (1) whether post release control is discretionary or mandatory, (2) the duration of the post release-control period, and (3) a statement to the effect that the Adult Parole Authority ('APA') will administer the post release control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of post release control will subject the offender to the consequences set forth in that statute.
State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1.

{¶ 15} As appellee and the trial court recognized, the issue posed by this case is the effect of the words "up to." The trial court's original sentencing entry of October 17, 2008 states the following regarding post-release control:

* * * *.
The Court has further notified [appellant] that post release control is mandatory in this case up to a maximum of (5) years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code Section 2967.28. [Appellant] is ordered to serve as part of this sentence any term of post release control imposed by the Parole Board, and any prison term for violation of that post release control. (Emphasis added).
* * * *.

{¶ 16} We appreciate appellee's concession that the duration of the post-release control period is misstated and "up to" 5 years does not properly describe the duration of the post-release control period. See, State v. Hall , 2017-Ohio-4376, 93 N.E.3d 35, ¶ 25 (11th Dist. 2017), appeal not allowed, 151 Ohio St.3d 1428, 2017-Ohio-8371, 84 N.E.3d 1065 ["up to" is discretionary language and does not state a definite term].

{¶ 17} This is not a case, however, in which the trial court failed to mention post-release control at all in the sentencing entry; appellant was notified he was subject to a mandatory term of post release control. Grimes , supra, 2017-Ohio-2927, 85 N.E.3d 700 at ¶ 14 ["In this case, as in Qualls, Grimes does not dispute that he was notified at the sentencing hearing that he would be subject to post release control * * * * so we conclude that the court accomplished the primary purpose of notice"]. We find this is a case in which the essential purpose of notice has been fulfilled, there is no need for a new sentencing hearing to remedy the flaw, and the original sentencing entry can be corrected to reflect what actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as the correction is accomplished prior to appellant's completion of his prison term. Qualls , supra, 2012-Ohio-1111, 967 N.E.2d 718 at ¶ 24. In the entry from which appellant appealed, the trial court in fact suggested this remedy but the appeal intervened.

{¶ 18} We therefore sustain appellant's sole assignment of error to the extent that we remand this matter to the trial court for preparation of a nunc pro tunc entry reflecting that the mandatory duration of post release control is five years.

CONCLUSION

{¶ 19} Appellant's sole assignment of error is sustained, the judgment of the Morrow County Court of Common Pleas is reversed, and this matter is remanded to the trial court for preparation of a nunc pro tunc entry as described herein.

Wise, John, P.J. and Baldwin, J., concur.