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IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
MICHAEL S. FRANCIS,
Defendant-Appellant.
Case No. 1M® 7^
On Appeal from the Meigs CountyCourt of AppealsFourth Appellate District
C.A. Case No. I OCA2
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT MICHAEL S. FRANCIS
OFFICE OF THE OHIO PUBLIC DEFENDER
COLLEEN S. WILLIAMS #0065079 PETER GALYARDT #0085439Meigs County Prosecuting Attorney Assistant State Public Defender(COUNSEL OF RECORD) (COUNSEL OF RECORD)
117 West 2nd Street 250 East Broad Street - Suite 1400Pomeroy, Ohio 45769 Columbus, Ohio 43215(740) 992-6371 (614) 466-5394(740) 992-6567 - Fax (614) 752-5167 - Fax
E-mail: [email protected]
_COIUNSET EOR_STATEOF (2HTO COUNSLLEORMICFIAEL_S-FRAZLCIS_
OCT I i zd9iOf COURT
LRK
SU^^E v0uR7_OFJHiO
TABLE OF CONTENTS
Page No.
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION ...............................................................................................1
INTRODUCTION ......... ...............................................................•---.............................................1
STATEMENT OF THE CASE AND FACTS . ...........................................................................1
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW ...............................................3
FIRST PROPOSITION OF LAW : ................................................................................3
A trial court's denial of a motion for judicial release is never a finalappealable order. State v. Coffman (2001), 91 Ohio St.3d 125, 742 N.E.2d644, at syllabus; Fifth, Sixth, and Fourteenth Amendments, United StatesConstitution; Sections 10 and 16, Article I, Ohio Constitution . ....................................3
SECOND PROPOSITION OF LAW : .........................................................................13
When a plea agreement contains a promise or promises regarding judicialrelease in such a manner that a defendant's substantial rights are affected,that defendant must be provided with counsel in his or her presentation ofthe judicial-release motion. Santobello v. New York (1971), 404 U.S. 257, 262,92 S.Ct. 495, 30 L.Ed.2d 427; Fifth, Sixth, and Fourteenth Amendments;United States Constitution; Sections 10 and 16, Article I, Ohio Constitution............13
CONCLUSION ............................................................................................................................13
CERTIFICATE OF SERVICE ..................................................................................................14
APPENDIX:
State v. Francis, Decision and Judgment Entry, Meigs County Court of AppealsCase No. I OCA2 (September 1, 2011) ............................................................................ A-1
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
This case involves the substantial constitutional question of whether a trial court's denial
of a judicial-release motion can constitute a final appealable order if the motion itself implicates
a substantial right. It is of great general interest for five reasons: 1) courts of appeals in Ohio
have decided the issue both ways; 2) that divergence is the result of inconsistent interpretations
of this Court's precedent; 3) the answer affects the practical and efficient administration of
justice; 4) recently passed legislation [H.B. 86] makes judicial release applicable to a far greater
number of inmates; and 5) the issue implicates the fundamental protection of the Sixth
Amendment's right to counsel and the Fifth and Fourteenth Amendments' right to due process.
This Court should grant jurisdiction.
INTRODUCTION
This Court's prior precedent dictates that the trial court's denial of judicial release in this
case was not final and appealable. And under the facts of this case, the court of appeals' holding
violates Mr. Francis's fundamental constitutional rights to counsel and due process.
Consequently, the court of appeals' holding creates an impractical, unworkable standard moving
forward for both trial courts and defendants.
STATEMENT OF THE CASE AND FACTS
Michael Francis failed to appear when and where his parole officer had requested him to
do so. He was then charged with second-degree-felony escape. In exchange for Mr. Francis's
guilty plea, the State promised to recommend a two-year prison sentence and join Mr. Francis in
a request for judicial release after one year. Before Mr. Francis pleaded guilty-in open
court-the trial court confirmed that it had promised Mr. Francis's defense counsel that it would
let Mr. Francis out of prison after he had served one year: "Basically, I told you in chambers that
1
I was going to let him [Mr. Francis] out after one year." That was to be accomplished through
judicial release.
Based upon those promises, the trial court accepted Mr. Francis's plea of guilty, and
imposed a contrary-to-law sentence for the single escape count-eight years in prison with four
of those years suspended for a four-year aggregate prison sentence, plus five years of community
control to be served consecutively. Mr. Francis went to prison. He did not appeal the contrary-
to-law sentence because he knew he would be getting out of prison in one year.
One year passed. Mr. Francis filed a pro se motion for judicial release. But he didn't get
out of prison. The State and the court broke their promises. The State did not join Mr. Francis's
motion. Instead, it filed a motion using a disapproving tone in which it explained that it could
not oppose the motion because of the plea agreement by the preceding prosecuting attorney,
urged the court to use its discretion, and highlighted that the court did not follow the State-
recommended, two-year sentence. The court denied the motion without a hearing. Mr. Francis
did not appeal that denial because all indications in the law were that the denial of a judicial-
release motion was not a final appealable order.
Mr. Francis then filed a pro se motion to withdraw his guilty plea under Crim.R. 32.1.
The State filed a motion in opposition in which it argued that Mr. Francis's motion had to be
considered a post-sentence motion, and that Mr. Francis had not demonstrated a manifest
miscarriage of justice. The court denied Mr. Francis's motion to withdraw his guilty plea,
finding that there was no miscarriage of justice. Mr. Francis appealed that denial to the Fourth
n:Stric^Co':-rt-of-A.Ypealc,
The court of appeals determined that Mr. Francis was required to appeal the trial court's
denial of his motion for judicial release in order to challenge that decision, and that his appeal of
2
that decision was untimely in this case. State v. Francis, 4th Dist. No. 10CA2, 2011-Ohio-4497,
¶13-15. That determination was based on the holding that the trial court's denial of Mr.
Francis's motion for judicial release was a final appealable order because it affected a substantial
right. Id. at ¶14, citing State ex rel. Rowe v. McCown, 108 Ohio St.3d 183, 2006-Ohio-548, 842
N.E.2d 51, ¶5, and State v. Jimenez, 9th Dist. No. 24609, 2009-Ohio-4337, ¶6.'
But the court of appeals did hold that Mr. Francis's contrary-to-law sentence was void,
and remanded to the trial court to "consider [Mr.] Francis's motion to withdraw his guilty plea
under the appropriate, presentence standard." Id. at ¶23. That remand remains pending at this
time. Also pending in the court of appeals are Mr. Francis's application for reconsideration,
motion to certify a conflict, and motion for stay. Mr. Francis asks this Court to grant
jurisdiction.
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW
FIRST PROPOSITION OF LAW
A trial court's denial of a motion for judicial release is never afinal appealable order. State v. Coffman (2001), 91 Ohio St.3d125, 742 N.E.2d 644, at syllabus; Fifth, Sixth, and FourteenthAmendments, United States Constitution; Sections 10 and 16,Article I, Ohio Constitution.
This issue divides Ohio's appellate courts, involves differing interpretations of this
Court's precedent, is of greater significance given the recent legislative changes that will make
more inmates eligible for judicial release, and implicates fundamental constitutional rights.
t The court of appeals noted in its decision that the Jimenez decision, which it followed, was in
conflict with State v. Williams, 10th Dist. No. 07AP-1035, 2008-Ohio-1906, ¶10. Francis at
¶13. For that reason, Mr. Francis has filed a timely motion to certify a conflict in the FourthDistrict Court of Appeals. That motion remains pending.
3
Thus, this Court should clarify the law on whether a denial of a judicial-release motion can ever
be a final appealable order.
The law in this area should be exact. As this Court commented regarding denials of
shock probation-the statutory mechanism that preceded judicial release which permitted a
judge to grant an inrnate early release from prison-"A trial court's order denying shock
probation is either reviewable or it is not reviewable. We cannot hold that this order is
sometimes reviewable and sometimes not." State v. Coffman (2001), 91 Ohio St.3d 125, 129,
742 N.E.2d 644, citing State v. Brandon (1993), 86 Ohio App.3d 671, 676, 621 N.E.2d 776.
1. The conflict in Ohio's courts of appeals.
In general, a trial court's denial of a judicial-release motion is not a final appealable
order. State v. Woods (2001), 141 Ohio.App.3d 549, 550, 752 N.E.2d 309. But the Fourth and
Ninth District Courts of Appeals have held that a trial court's denial of a motion for judicial
release is a final appealable order if that motion involves a substantial right-e.g., a contract
right under a plea agreement. See Francis at ¶14; Jimenez at ¶6. See, also, McCown at ¶5.
In this case, the court of appeals followed Jimenez. Francis at ¶14. In Jimenez, the Ninth
District interpreted this Court's holding in McCown as follows:
The Ohio Supreme Court, however, has implied that there is anexception if the defendant's argument is that the State breached a
plea agreement. In McCown, Mr. Rowe petitioned for a writ ofmandamus, arguing that the State had breached their pleaagreement. The Supreme Court affirmed the court of appeals'dismissal of the petition, in part, because it concluded that Mr.Rowe had an adequate legal remedy. It noted that he could havemoved to withdraw his plea or to enforce the agreement, or couldiave-appealed the-niaicm,rt-s cleniaLofhis rnotion_for Ldicialrelease. Because Mr. Jimenez has argued that his plea agreementwas breached, this Court has jurisdiction, under McCown, to
consider Mr. Jimenez's appeal from the trial court's denial of hismotion for judicial release.
4
(Citations omitted.) Jimenez at ¶6.
Although not explicitly stated by this Court in McCown or the courts of appeals in either
Jimenez or Francis, the rationale for this holding is grounded in R.C. 2505.02(B)(2), which
reads:
An order is a final order that may be reviewed, affirmed, modified,or reversed, with or without retrial, when it is one of the following:
An order that affects a substantial right made in a specialproceeding or upon a summary application in an action afterjudgment.
The factual scenario presented by the denial of a judicial-release motion does not satisfy
any other subsection of R.C. 2505.02. Subsections (B)(3), (B)(5), (B)(6), and (B)(7) are in no
way applicable. Subsection (B)(1) does not apply because the judicial release denial does not "in
effect determine the action," as a motion to withdraw the guilty plea is always available to the
defendant. Finally, subsection (B)(4)(b) is not satisfied under the circumstances because a
motion to withdraw the guilty plea, and an appeal if that motion was denied, would afford the
defendant a meaningful and effective remedy-albeit an imperfect one-making (B)(4) entirely
unsatisfied.
The ultimate conclusion in Jimenez has two parts-that a contract right under a plea
agreement constitutes a substantial right as defined in R.C. 2505.02(A)(1), and that a trial
court's decision on a judicial-release motion constitutes an order from a special proceeding as
defined in R.C. 2505.02(A)(2). Those realities make R.C. 2505.02(B)(2) applicable. But neither
this Court in McCown, nor the court in Jimenez, articulated this or any other statutory basis for
the conclusion that a denial of a judicial-release motion which affects a substantial right is a final
appealable order.
5
McCown is a per curiam opinion in an extraordinary writ case. The sentence about
appealing a judicial-release motion denial does not cite any authority for its assertion, and that
was not the exact issue before this Court. McCown at ¶5. Whereas the holding in Jimenez was
constitutionally harmless because the court granted Mr. Jimenez relief, and remanded to the trial
court for the plea agreement to be specifically enforced, that holding in this case means that the
trial court violated Mr. Francis's federal and state constitutional rights to counsel and due
process? Even if correct in general, that conclusion can only be constitutional if the defendant
was represented by counsel in his or her motion for judicial release. See Parts II and III, and
Second Proposition of Law, infra.
Potentially because of this problem, the Tenth District Court of Appeals has followed this
Court's comment in Coffman, and has held that a denial of a motion for judicial release is not a
final appealable order, even if the motion involves a contract right under a plea agreement. State
v. Williams, 10th Dist. No. 07AP-1035, 2008-Ohio-1906, ¶10. That approach properly avoids
the complication regarding the representation of counsel. Mr. Francis has filed a timely motion
to certify a conflict in the Fourth District Court of Appeals. That motion remains pending.
II. The Federal and State Constitutional Rights to Counsel.
The court of appeals' holding in this case ignores a fundamental protection of the United
States and Ohio Constitutions. There is an absolute right to appointment of counsel in felony
cases. Gideon v. Wainwright (1963), 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799.
Appointment of counsel for an indigent is required at every stage of a criminal proceeding when
2 Another problematic element of the court of appeals' decision in this case is the ease withwhich it ignored that this Court in McCown, in its preceding sentence, specifically detailed-and
cited authority for-the precise remedy that Mr. Francis sought in this case. McCown at ¶5.
6
substantial rights of the accused may be affected. Mempa v. Rhay (1967), 389 U.S. 128, 134, 88
S.Ct. 254, 19 L.Ed.2d 336.
Under the court of appeals' holding in this case, Mr. Francis's motion for judicial release
was a part of the criminal proceedings because it affected his substantial right to have his plea
agreement enforced, and his criminal sentence altered under that agreement. The criminal
character of a particular proceeding is evidenced in large part by the structure of the proceeding
itself. See Gagnon v. Scarpelli (1973), 411 U.S. 778, 787-790, 93 S.Ct. 1756, 36 L.Ed.2d 656.
Under R.C. 2929.20, the trial court, with absolute discretion, decides whether the defendant
remains in prison or is released early. The State has its interests protected by a prosecuting
attorney.
Also implicated in this situation is the Supreme Court of the United States' mandate that
"the adjucative element inherent in accepting a plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the circumstances." Santobello v. New York
(1971), 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427. Thus, whenever a promise can be
"said to be part of the inducement or consideration [to plead guilty], such promise must be
fulfilled." Id. at 262.
The need for these safeguards is highlighted by Mr. Francis's case. The trial
court-through its judicial release determination-and the State-through its action surrounding
Mr. Francis's judicial-release motion-controlled whether the plea agreement was executed or
breached. The consequence of a breach for Mr. Francis was continued incarceration.
_T"us-ander theoo.rrt of appeals' holdi,}g ;r,thiccase-Mr. k'rancis's_presentation of his
judicial-release motion was a critical stage of the criminal proceedings, and counsel was required
to be provided for the presentation of that motion for judicial release unless he competently and
7
intelligently waived that right. Gideon at 340. Neither occurred in this case. Consequently, the
court's holding means that the trial court violated the United States and Ohio Constitutions when
it failed to provide Mr. Francis with counsel for his judicial-release motion in this case. Sixth
and Fourteenth Amendments, United States Constitution; Section 10, Article I, Ohio
Constitution.
III. The Federal and State Constitutional Rights to Due Process.
Even if this Court determines that a judicial-release motion which affects a defendant's
substantial rights is not a part of the criminal proceedings requiring counsel under the Sixth
Amendment, due process requires that Mr. Francis and similarly situated defendants be afforded
counsel for the presentation of his or her judicial-release motion in such situations. Fifth and
Fourteenth Amendments, United States Constitution; Section 16, Article I, Ohio Constitution.
"The fundamental requirement of due process is the opportunity to be heard `at a
meaningful time and in a meaningful manner."' Matthews v. Eldridge (1976), 424 U.S. 319,
333, 96 S.Ct. 893, 47 L.Ed.2d 18, quoting Armstrong v. Manzo (1965), 380 U.S. 545, 552, 85
S.Ct. 1187, 14 L.Ed.2d 62. And the right to be heard would be meaningless in many situations if
it did not "comprehend the right to be heard by counsel," because "[e]ven the intelligent and
educated layman" has little to no skill in the law. Powell v. Alabama (1932), 287 U.S. 45, 68-
69, 53 S.Ct. 55, 77 L.Ed. 158.
Both the Supreme Court of the United States and this Court have recognized that reality,
holding in various civil contexts that due process can require the appointment of counsel for
ndigen^peaer-s. SeeI,H-rs raah 19671 _387 U.S. 1, 35-37, 87 S.Ct. 142$, 18 L.Ed.2-d 527(due
process requires the appointment of counsel at juvenile delinquency proceedings); Gagnon at
790 (due process may require-op. a case-by-case basis-the appointment of cou_nsel at a
8
probation or parole hearing); Lassiter v. Dep't ofSocial Services (1981) 452 U.S. 18, 31, 101
S.Ct. 2153, 68 L.Ed.2d 640 (due process may require-on a case-by-case basis-the
appointment of counsel for parents in a proceeding involving the termination of parental rights);
State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66, at paragraph two of the
syllabus (state and federal due process requires the appointment of counsel in parental
termination proceedings); In re Fisher (1974), 39 Ohio St.2d 71, 77-82, 313 N.E.2d 851 (due
process requires the appointment of counsel in civil commitment proceedings). The common
thread in these cases is that counsel is required due to the nature and character of the interests
involved, and because the effectiveness of the proceeding may "depend on the use of skills
which the [litigant] is unlikely to possess °" Gagnon at 786-787.
The precise due process protections vary depending on the particular circumstances of the
proceeding. Morrissey v. Brewer (1972), 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484.
The particular safeguards are guided by three distinct factors: 1) the private interest that will be
affected by the official action; 2) the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and 3) the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.
Matthews at 335.
Moreover, with regard to what the "fundamental fairness" requirement of the Due
Process Clause means concerning the right to appointed counsel, there is a presumption that
:ndige..t litigantshavea r-igb++oaypoin+edcounsel onLy when, if they 1ose,thevmay_bedeprived
o€their physical liberty. Lassiter at 27. The other elements of the due process decision-the
private interest at stake, the government's interest, and the risk that procedures used will lead to
9
erroneous decisions-must be balanced against each other and then weighed against the
presumption. Id.
In this case, Mr. Francis's physical liberty was at stake. He was either to be released
from prison as mandated by the plea agreement and the trial court's promise, or he would remain
in prison. Consequently, he was entitled to the presumption of appointed counsel for the
presentation of his judicial-release motion.
Beyond that presumption, due process requires that indigent presenters of a judicial-
release motion-when that motion affects substantial rights-be appointed counsel for the
presentation of that judicial-release motion.
A. The Private Interest.
In general, Mr. Francis's-and similarly situated defendants'-interest involves the
proper enforcement of a valid plea agreement. That is a contract right. Plea agreements are an
essential and desirable practice in the administration of criminal justice and the considerations
justifying the practice presuppose fairness in securing the agreement. Santobello at 261. "This
phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea
of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the
circumstances :" Id. at 262. Thus, a plea agreement constitutes a contract in order to provide all
parties with the necessary protection to guarantee that the agreement is executed as intended. Id.
at 261-262. When interpreting and enforcing plea agreements, courts must use traditional
principles of contract law. United States v. Robison (C.A.6, 1991), 924 F.2d 612, 613, citing
t^-tited,tQsv F-e,^lrQ.-s (C,A4, 1986,1, 792F.2c1461, 464. See, also, State v. Butts ( 1996), 112
Ohio App.3d 683, 685-686, 679 N.E.2d 1170, quoting Baker v. United States (C.A.6, 1986), 781
F.2d 85, 90, certiorari denied ( 1986), 479 U.S. 1017 (A plea agreement a<is contractual in nature
10
and subject to contract-law standards."'); State v. Story, 11th Dist. No. 2006-A-0085, 2007-Ohio-
4959, ¶43; State v. Olivarez, 11th Dist. No. 97-L-288, 1999 Ohio App. LEXIS 1438, *8; State v.
Ford, 4th Dist. No. 97 CA 32, 1998 Ohio App. LEXIS 761, *7.
Specifically, Mr. Francis's liberty was at stake. He had been promised by the State that it
would join him in requesting to be released from prison via judicial release after he served one
year, and he had been promised by the court that it would release him from prison via judicial
release after he had served one year.
B. The Risk of Erroneous Deprivation and Probable Value of Substitute Procedural
Safeguards.
The risk of erroneous deprivation in this case is obvious and has manifested. The trial
court promised that Mr. Francis would be released after one year. And the State promised to join
Mr. Francis in his request to be released after one year. Neither occurred. Mr. Francis has
served three years in prison. He remains there today.
The probable value of substitute procedural safeguards-the appointment of counsel for
the presentation of his judicial-release motion-is monumental. At the hearing in which Mr.
Francis pleaded guilty, the court indicated to Mr. Francis's defense counsel that he should secure
a transcript from the hearing in order to protect Mr. Francis under the terms of the agreement.
An attorney would have been able to secure such a transcript and present it to the court in
support of the judicial-release motion, and as a reminder to the court of what it had promised.
Mr. Francis, as an indigent and incarcerated defendant, had no means or opportunity to do so.
Moreover, an attorney would be able to articulate specific legal and contractual arguments in
support of the judicial-release motion that Mr. Francis was not able to do. And counsel would
have requested a hearing on the matter given the circumstances.
11
C. The Government's Interest.
The government's interest in this case is split and-giving it maximum
deference-neutral as to whether or not counsel should have been appointed. The efficient and
fair administration of justice cuts in favor of the appointment of counsel. It is in the
government's interest to have a system that accurately enforces, and thus encourages future
legitimate plea agreements. Santobello at 260. The Supreme Court of the United States has
explained that, "[d]isposition of charges after plea discussions is not only an essential part of the
process but a highly desirable part for many reasons." Id. at 261.
Fiscal considerations cut both ways in this case. Appointed counsel is an expense, but
continued incarceration for additional years when all parties expected Mr. Francis to be released
in one year is an astronomical expense.
D. Weighing the Factors Against Each Other and the Presumption.
Weighing the factors against each other, Mr. Francis's contract and liberty stakes and the
value of appointed counsel to protect against the erroneous deprivation outweigh any legitimate
governmental interests to the contrary. That balance mirrors the presumption of appointed
counsel for indigent persons facing a loss-or continued loss in this case-of physical liberty.
Consequently, due process required Mr. Francis to be provided with appointed counsel for the
presentation of his judicial-release motion. Fifth and Fourteenth Amendments, United States
Constitution; Section 16, Article I, Ohio Constitution.
IV. This Court's holding in State v. Coffman and the impracticability of the Fourth DistrictCourt of Appeals' holding in this case.
In Coffman, this Court held that the denial by a trial court of shock probation is never a
final appealable order. Coffman at 129. Judicial release is the direct descendant of shock
probation. Woods at 550. This Court further explained that, "A trial court's order denying shock
12
probation is either reviewable or it is not reviewable. We cannot hold that this order is
sometimes reviewable and sometimes not." Id., citing State v. Brandon (1993), 86 Ohio App.3d
671, 676, 621 N.E.2d 776. The same must be true for judicial-release motions. If not, trial
courts would have to track isolated, closed cases to ensure that the defendant receives counsel for
the future judicial-release motion as is constitutionally required.
SECOND PROPOSITION OF LAW
When a plea agreement contains a promise or promisesregarding judicial release in such a manner that a defendant'ssubstantial rights are affected, that defendant must beprovided with counsel in his or her presentation of the judicial-release motion. Santobello v. New York (1971), 404 U.S. 257,262, 92 S.Ct. 495, 30 L.Ed.2d 427; Fifth, Sixth, and FourteenthAmendments, United States Constitution; Sections 10 and 16,Article I, Ohio Constitution.
If this Court decides that a denial of a judicial-release motion which affects a defendant's
substantial rights is a final appealable order, then the United States and Ohio Constitutions
required that Mr. Francis be appointed counsel for the presentation of his judicial-release motion.
Fifth, Sixth, and Fourteenth Amendments, United States Constitution; Sections 10 and 16,
Article I, Ohio Constitution. See Proposition of Law I, Parts II and III. That did not happen.
Consequently, Mr. Francis must be provided with counsel and permitted to file another motion
for judicial release.
CONCLUSION
For the reasons explained above, this case involves substantial constitutional questions,
and questions of public or great general interest. This Court should grant jurisdiction.
13
Respectfully submitted,
OFFICE OF THE OHIO PUBLIC DEFENDER
PETER GALYARDT #0085439Assistant State Public Defender(COUNSEL OF RECORD)
250 East Broad Street - Suite 1400Columbus, Ohio 43215(614) 466-5394(614) 752-5167 (Fax)E-mail: [email protected]
COUNSEL FOR MICHAEL S. FRANCIS
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Memorandum in Support of
Jurisdiction of Appellant Michael S. Francis has been served by U.S. mail, postage pre-paid,
upon Colleen S. Williams, Prosecuting Attomey, Meigs County Prosecutor's Office, 117 West
2nd Street, Pomeroy, Ohio 45769, this 11th day of October, 2011.
PETER GALYARDT #0085439Assistant State Public Defender(COUNSEL OF RECORD)
COUNSEL FOR MICHAEL S. FRANCIS
#352725
14
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
MICHAEL S. FRANCIS,
Defendant-Appellant.
Case No.
On Appeal from the Meigs CountyCourt of AppealsFourth Appellate District
C.A. Case No. I OCA2
APPENDIX TO
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT MICHAEL S. FRANCIS
IN THE COURT OF APPEALS OF`OHIOFOURTH APPELLATE DISTRICT
MEIGS COUNTY nlmP - l Pl{ 12I4 9
STATE OF OHIO,
Plaintiff-Appellee,
V.
MICHAEL FRANCIS,
Defendant-Appef lant.
47,,cb:
c_LiEni : t;elilcc.,
Case No: 10^ AZ
DECISION ANDJUDGMENT ENTRY
APPEARANCES:
Timothy Young, Ohio Public Defender, Columbus, Ohio, and Peter Galyardt, OhioAssistant Public Defender, Columbus, Ohio, for Appellant.
Colleen S. Williams, Meigs County Prosecutor, and Matthew J. Donahue, Meigs CountyAssistant Prosecutor, Pomeroy, Ohio, for Appellee.
Kline, J.:
{11} Michael Francis (hereinafter "Francis") appeals the judgment of the Meigs
County Court of Common Pleas, which denied Francis's motion to withdraw his guilty
plea. On appeal, Francis initially contends that the trial court should have granted his
motion for judicial release. Essentially, Francis argues (1) that the trial court did not
keep its promise to let him out of prison after one year and (2) that the state failed to
honor its plea agreement. Francis did not, however, appeal from the denial of his
m.otion_foLjusiiciaLrelease.As a result,we find that this portion of Francis's appeal is
untimely, and we dismiss this portion of his appeal for lack of jurisdiction. Next, Francis
contends that the trial court should have granted his motion to withdraw his guilty plea.
M?igs App. No. 10CA22
Here, because Francis's underlying sentence is void, we remand this matter for the trial
court to consider Francis's motion to withdraw his guilty plea under the presentence,
freely-and-liberally standard. Accordingly, as it relates to Francis's motion to withdraw
his guilty plea, we reverse the judgment of the trial court.
1.
{12} A Meigs County Grand Jury indicted Francis for escape. Eventually, Francis
entered into a plea agreement with the state. Under the plea agreement, Francis would
plead guilty, and the state would recommend a two-year prison sentence. The state
also agreed to join Francis in a motion for judicial release after he had served one year
in prison.
{13} On September 17, 2008, Francis pled guilty to one count of escape, a
second-degree felony, in violation of R.C. 2921.34(A)(1) &(C)(2)(a). During the change
of plea hearing, the trial court judge said that he "told [Francis's attorney] in chambers
that [the court] was going to let [Francis] out after one year." September 17, 2008
Transcript at 3. But the trial court also said that "the Court doesn't guarantee any
sentence[.]" Id. at 4.
{14} The trial court did not follow the recommendation of the plea agreement.
Instead, the trial court imposed the following sentence: that Francis "be' imprisoned and
confined at the appropriate state penal institution, for a determinate sentence of eight
(8) years, which sentence is not mandatory.
°It_is fi^r#herORDERED that four years of said sentence is suspended and
the Defendant placed on community control, intensive supervision, for a period of
Meigs App. No. 10CA23
five years, upon the Standard Terms, as previously journalized and the following
Special Conditions * * *." September 22, 2008 Sentencing Entry (emphasis sic).
{16} On September 4, 2009, Francis filed his motion for judicial release. Despite
the plea agreement, the state did not join Francis's motion. Instead, the state
responded that it would "not object" to judicial release for Francis. Eventually, in an
October 7, 2009 entry, the trial court denied Francis's motion for judicial release.
Francis, however, did not appeal from that order.
{17} On December 30, 2009, Francis filed a motion to withdraw his guilty plea.
Francis based his motion on (1) the state not abiding by the plea agreement and (2) the
trial court not granting his motion for judicial release. The state opposed Francis's
motion to withdraw his guilty plea by arguing that Francis had failed to assert a manifest
injustice.
{18} On January 27, 2010, the trial court denied Francis's motion to withdraw his
guilty plea without opinion. Francis filed his notice of appeal on February 19, 2010.
{19} On appeal, Francis asserts the following two assignments of error: I. "Mr.
Francis was deprived of his right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and Sections 10 and 16, Article I of the
Ohio Constitution when the trial court denied his September 4, 2009 motion for judicial
release." And, II. "The trial court abused its discretion when it denied Mr. Francis's
December 30, 2009 motion to withdraw his guilty plea."
II.
{110} In his first assignment of error, Francis contends that the trial court erred
when it denied his motion for judicial release. However, before we may consider the
Meigs App. No. 10CA24
merits of Francis's first assignment of error, we must address whether this portion of his
appeal is timely.
{¶11} Francis failed to appeal from the denial of his motion for judicial release.
Because of this, the state argues that the judicial-release portion of Francis's appeal -
i.e., the first assignment of error - is untimely. Francis responds that the denial of a
motion for judicial release is not a final appealable order. And for that reason, Francis
argues that this portion of his appeal is timely. Here, we agree with the state.
{112} "The time for filing a notice of appeal is governed by App.R. 4 and, pursuant
to App.R. 14(B), a court may not enlarge the time for filing a notice of appeal." State v.
Thacker, Lawrence App. No. 02CA35, 2002-Ohio-7443, at ¶3, citing Ross v. Harden
(1982), 8 Ohio App.3d 34. "If a party fails to file a notice of appeal within thirty days as
required by App.R. 4(A), we do not have jurisdiction to entertain the appeal. The timely
filing of a notice of appeal under this rule is a jurisdictional prerequisite to our review."
State v. Kaiser, Lawrence App. No. 10CA1, 2010-Ohio-4616, at ¶12 (internal quotation
omitted). See, also, State v. Cremeens, Vinton App. No. 06CA646, 2006-Ohio-7092, at
¶6; Thacker at ¶2; State v. Sides, Lake App. No. 2008-L-145, 2008-Ohio-6058, at ¶6;
State v. Sturkey, Muskingum App. No. CT2006-0087, 2007-Ohio-5701, at ¶21.
{113} "Ordinarily, the denial of a motion for judicial release is not a final, appealable
order. State v. Woods [(2001)], 141 Ohio App.3d 549, 550[.] The Ohio Supreme Court,
however, has implied that there is an exception if the defendant's argument is that the
State_brea.cheda-plea ag_reement. [See] State ex rel. Rowe v. McCown, 108 Ohio St.3d
183[,] 2006-Ohio-548, at ¶5. In McCown, Mr. Rowe petitioned for a writ of mandamus,
arguing that the State had breached their plea agreement. Id. at ¶1[.] The Supreme
Meigs App. No. 1oCA25
Court affirmed the court of appeals' dismissal of the petition, in part, because it
concluded that Mr. Rowe had an adequate legal remedy. Id. at ¶5[.] It noted that he
could have moved to withdraw his plea or to enforce the agreement, or could have
appealed the trial court's denial of his motion for judicial release. Id." State v. Jimenez,
Summit App. No. 24609, 2009-Ohio-4337, at ¶6. But, see, State v. Williams, Franklin
App. No. 07AP-1035, 2008-Ohio-1906, at ¶10 (concluding "that appellant may not avoid
th[e] jurisdictional barrier by arguing that the trial court'broke its agreement' to grant a
motion for judicial release after three months").
(114) We agree with the Ninth Appellate District's interpretation of McCown and find
that the denial of Francis's motion for judicial release was a final appealable order.
Furthermore, not only do we follow the language of McCown, but we also find that the
denial of Francis's motion for judicial release affected a substantial right. A "substantial
right" is "'a right that the United States Constitution, the Ohio Constitution, a statute, the
common law, or a rule of procedure entitles a person to enforce or protect.' A
substantial right is, in effect, a legal right that is enforced and protected by law." State v.
Coffman, 91 Ohio St.3d 125, 127, 2001-Ohio-296, quoting R.C. 2505.02(A)(1).
Generally, the denial of a motion for judicial release does not affect a substantiei right:
See, e.g., State v. lMlliams, Cuyahoga App. No. 95359, 2011-Ohio-120, at ¶10; State v.
Foti, Geauga App. No. 2010-G-2983, 2010-Ohio-4561, at ¶3. But here, Francis argues,
in part, that the state broke a plea agreement by not joining his motion for judicial
_release: °[A]_piea agreementlsa_contract and subject to interpretation under contract
law standards." State v. Pasturzak, Scioto App. No. 08CA3252, 2009-Ohio-4222, at
¶12 (citations omitted). Therefore, Francis essentially argues that the state breached a
Meigs App. No. 10CA26
contract. And clearly, contract rights are protected under the common law. As a result,
we find that the denial of Francis's motion for judicial release affected a substantial right.
{115} For the foregoing reasons, we find that the denial of Francis's motion for
judicial release was a final appealable order. And because he did not appeal from that
order, the portion of Francis's appeal that relates to his motion for judicial release is
untimely. Accordingly, we dismiss this portion of the appeal for lack of jurisdiction, and
we decline to address Francis's first assignment of error.
Ill.
(1116) In his second assignment of error, Francis contends that the trial court erred
in denying Francis's motion to withdraw his guilty plea.
A.
{117} Before considering Francis's second assignment of error, we must examine
the propriety of his sentence. Here, we find that Francis's underlying sentence is void.
For the single offense of escape, the trial court imposed both an eight-year prison
sentence (with four years suspended) and a five-year period of community control.
"[T]he sentencing statute[, however,] does not allow a trial court to impose both a prison
sentence and community control for the same offense." State v. Jacobs, 189 Ohio
App.3d 283, 2010-Ohio-4010, at ¶5 (citations omitted). See, also, State v. Vlad, 153
Ohio App.3d 74, 2003-Ohio-2930, at ¶16 ("[T]rial courts need to decide which sentence
is most appropriate - prison or community control sanctions - and impose whichever
opti,on is-deemedto_be_necessary."). The state concedes that Francis's sentence is
contrary to law. Furthermore, the state argues that Francis's sentence is void. We
agree. "Any attempt by a court to disregard statutory requirements when imposing a
Meigs App. No. 10CA2 7
sentence renders the attempted sentence a nullity or void." State v. Beasley (1984), 14
Ohio St.3d 74, 75, superseded by statute on other grounds. And because the trial court
disregarded statutory requirements when it sentenced Francis to both a prison term and
community control sanctions, we find that Francis's sentence is void.
{118} Accordingly, because it is void, we vacate Francis's sentence. See, e.g.,
State v. Adams, Scioto App. Nos. 04CA2959 & 05CA2986, 2009-Ohio-6491, at ¶97
(vacating a void sentence).
B.
{¶19} Next, we will address whether the trial court erred when it denied Francis's
motion to withdraw his guilty plea.
{120} "[T]he decision whether to grant a Crim.R. 32.1 motion to withdraw a plea lies
in a trial court's sound discretion and should not be reversed absent an abuse of that
discretion." State v. Nickelson, Lawrence App. No. 10CA21, 2011 -Ohio-1 352, at ¶7,
citing State v. Xie (1992), 62 Ohio St.3d 521, at paragraph two of the syllabus. An
abuse of discretion connotes more than a mere error of judgment; it implies that the
court's attitude is arbitrary, unreasonable, or unconscionable. State v. Adams (1980),
62 Ohio St.2d 151, 157.
{1121} Under Crim.R. 32.1, "[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." Trial courts apply different standards to Crim.R. 32.1 motions
made before and after sentencing. A presentence motion to withdraw a guilty plea
should "'be freely allowed and treated with liberality[.]"' State v. Peterseim (1980), 68
Meigs App. No. 10CA2 8
Ohio App.2d 211, 213, quoting Barker v. United States (C.A.10, 1978), 579 F.2d 1219,
1223. In contrast, "Crim.R. 32.1 requires a defendant making a postsentence motion to
withdraw a plea to demonstrate manifest injustice because it is designed 'to discourage
a defendant from pleading guilty to test the weight of potential reprisal, and later
withdraw the plea if the sentence was unexpectedly severe."' Boswell at ¶9, quoting
State v. Caraballo (1985), 17 Ohio St.3d 66, 67.
{122} Here, Francis's void sentence affects our analysis of his second assignment
of error. This is so because "[a] motion to withdraw a plea of guilty or no contest made
by a defendant who has been given a void sentence must be considered as a
presentence motion under Crim.R. 32.1." State v. Boswelt, 121 Ohio St.3d 575, 2009-
Ohio-1577, syllabus, superseded by statute on other grounds.
{123} Therefore, because Francis's sentence is void, we find that the trial court
applied the wrong standard when it decided Francis's motion to withdraw his guilty plea.
The trial court should have applied the standard for presentence motions instead of the
postsentence standard. We acknowledge that the trial court denied Francis's motion
without opinion. Nevertheless, both Francis and the state argued that Francis's motion
should have been treated as a postsentence motion to withdraw. Furthermore, the trial
court did not correct Francis's void sentence. Therefore, we must presume that the trial
court applied the standard for postsentence motions. And by applying the wrong
standard, the trial court abused its discretion. Accordingly, we remand this case for the
trial court to consider Francis's motion to withdraw his guilty plea under the appropriate,
presentence standard.
Meigs App. No. 10CA2 9
{124} Our remand follows the decision in Boswell. After the trial court in Boswell
ruled on a motion to withdraw a guilty plea without opinion, the Supreme Court of Ohio
remanded the case so that the trial court could consider the defendant's motion "under
the liberal standard of Xie[.]" Boswell at ¶7. We choose the same result in the present
case. "This does not mean, however, that [Francis] has an absolute right to withdraw
his plea. ***'[T]he trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea."' Id. at ¶10, quoting Xie
(internal citation omitted).
C.
{125} Accordingly, we sustain Francis's second assignment of error. First, we
vacate Francis's void sentence. Second, on remand, the trial court must consider
Francis's motion to withdraw his guilty plea under the presentence, freely-and-liberally
standard. And finally, we order resentencing if Francis's motion to withdraw his guilty
plea is ultimately denied. See Boswell at ¶13.
IV.
{126} In conclusion, the portion of Francis's appeal that relates to his motion for
judicial release is untimely. Therefore, we dismiss that portion of Francis's appeal and
decline to consider his first assignment of error. We also vacate Francis's sentence,
and we remand this case for the trial court to consider Francis's motion to withdraw his
guilty plea under the standard for presentence motions. Accordingly, this appeal is
dismissed in part, and we reverse the trial court's denial of Francis's motion to withdraw
his guilty plea. Finally, we remand this cause to the trial court for further proceedings
consistent with this opinion.
Meigs App. No. 10CA2 10
APPEAL DISMISSED IN PART, JUDGMENT REVERSED IN PART,AND CAUSE REMANDED.
Meigs App. No. 1oCA211
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED IN PART, the JUDGMENT BEREVERSED IN PART, and this CAUSE BE REMANDED to the trial court for furtherproceedings consistent with our opinion. Appellant and Appellee shall pay equally thecosts herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing theMeigs County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgmententry and the time period for further appeal commences from the date of filingwith the clerk.
