State v. Johnson, 107617

• Decision Date: 13 June 2019
• Docket Number: No. 107617,107617
• Parties: STATE of Ohio, Plaintiff-Appellee, v. William JOHNSON, Defendant-Appellant.
• Court: Ohio Court of Appeals

138 N.E.3d 560

2019 Ohio 2332

STATE of Ohio, Plaintiff-Appellee,

v.William JOHNSON, Defendant-Appellant.

No. 107617

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: June 13, 2019

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee.

Robert A. Dixon, Cleveland, for appellant.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant, William Johnson, appeals the trial court's judgment denying his motion to withdraw his plea that he entered into in February 2008. He raises two assignments of error for our review:

1. The lower court erred and denied the appellant due process and protection of Ohio law which bars his state convictions based upon his conviction for the same conduct in federal court.

2. The appellant received ineffective assistance of counsel.

{¶ 2} Finding no merit to his arguments, we affirm.

I. Procedural History and Factual Background

{¶ 3} Johnson was indicted on state charges in two cases in November and December 2007, including charges of drug trafficking, resisting arrest, possessing criminal tools, and two counts of drug possession. The alleged date of the offenses in the first indictment was September 29, 2007, and October 6, 2007, in the second indictment.

{¶ 4} Johnson pleaded guilty on February 28, 2008, to four of the five charges. In the first case, he pleaded guilty to drug trafficking (crack cocaine) in violation of R.C. 2925.03(A)(2), a third-degree felony; resisting arrest in violation of R.C. 2921.33, a second-degree misdemeanor; and possessing criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony. In the second case, he pleaded guilty to possessing drugs (cocaine) in violation of R.C. 2925.11(A), a fifth-degree felony.

{¶ 5} Approximately one month later, Johnson and 15 other individuals were indicted in federal court on 23 charges. Count 1 of the federal indictment charged Johnson with conspiracy to possess with the intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. 841(a)(1) and 846 from July 2005 through March 2008. The indictment listed Johnson's "overt acts" in the conspiracy as occurring on April 20, June 28, July 11, and October 16, 2007.

{¶ 6} In August 2008, Johnson pleaded guilty to the federal indictment. The United States District Court for the Northern District of Ohio sentenced Johnson on October 16, 2008, to 57 months in prison.

{¶ 7} On November 6, 2008, the state court sentenced Johnson to a total of three years in prison and ordered that Johnson serve his sentence concurrent to the sentenced imposed in his federal case.

{¶ 8} Almost ten years later, in April 2018, Johnson filed an "emergency motion" to withdraw his guilty pleas for his drug trafficking and drug possession in both of his 2008 state-court cases pursuant to Crim.R. 32.1.¹ He alleged that his 2008 state-court convictions were barred by R.C. 2925.50 due to the fact that he was convicted of drug charges based upon the same conduct in federal court. According to Johnson, he pleaded guilty in February 2018, to a new charge of being "a felon in possession" in federal court. At the time he filed his Crim.R. 32.1 motion in state court, he was awaiting sentencing in the new federal case (which was scheduled for June 5, 2018). Johnson asserted that if his 2008 state convictions were vacated, "it would have a significant impact on his criminal history category and guideline calculation for his federal sentencing on June 5, 2018."²

{¶ 9} The state opposed Johnson's motion. The trial court held a hearing on Johnson's motion and subsequently denied it. The trial court found that R.C. 2925.50 did not bar Johnson's prosecution in state court. Regarding Johnson's state-court drug possession charge, the trial court found that it was not barred from prosecution because it did not have the same elements as Johnson's federal charge of conspiracy to possess with the intent to distribute cocaine. With respect to Johnson's state-court trafficking conviction, the trial court found that the date of the state trafficking offense was not included as one of the overt acts listed in the federal conspiracy indictment. It is from this judgment that Johnson now appeals.

II. Crim.R. 32.1

{¶ 10} Crim.R. 32.1 provides, "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." This rule imposes a strict standard for deciding a postsentence motion to withdraw a plea. State v. Griffin , 141 Ohio App.3d 551, 553, 752 N.E.2d 310 (7th Dist.2001). A defendant may only be allowed to withdraw a plea after sentencing in "extraordinary cases." State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The defendant bears the burden of showing a manifest injustice warranting the withdrawal of a plea. Id. at paragraph one of the syllabus. "The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdrawing the plea if the sentence was unexpectedly severe." State v. Wynn , 131 Ohio App.3d 725, 728, 723 N.E.2d 627 (8th Dist.1998), citing State v. Caraballo , 17 Ohio St.3d 66, 477 N.E.2d 627 (1985).

{¶ 11} At the outset, we note that Johnson is attempting to vacate guilty pleas that he entered into almost ten years prior to filing his motion. This court has stated that Crim.R. 32.1 does not contain a time limit for filing a post-sentence motion to withdraw a plea, but "an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion." Richmond Hts. v. McEllen , 8th Dist. Cuyahoga No. 99281, 2013-Ohio-3151, 2013 WL 3809174, ¶ 12, citing Smith .

{¶ 12} We review a trial court's decision to grant or deny a post-sentence motion to withdraw a guilty plea pursuant to Crim.R. 32.1 for abuse of discretion. State v. Wilkey , 5th Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, 2006 WL 1745065, ¶ 21. The term "abuse of discretion" is one of art, connoting judgment exercised by a court that neither comports with reason, nor the record. State v. Ferranto , 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). An abuse of discretion may be found when the trial court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

III. Statutes at Issue

{¶ 13} Johnson contends that the trial court abused its discretion in denying his postsentence motion to withdraw his 2008 drug-related guilty pleas due to the fact that he was also convicted in 2008 of federal charges under 21 U.S.C. 841(a)(1) and 846 based upon the "same act."

{¶ 14} Ordinarily, under the Double Jeopardy Clause, a person cannot be prosecuted twice for the same offense. See the Fifth Amendment to the U.S. Constitution ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"). But the United States Supreme Court has long held that two prosecutions brought by different sovereigns do not violate double jeopardy. Puerto Rico v. Sanchez Valle , 579 U.S. ––––, 136 S.Ct. 1863, 1871, 195 L.Ed.2d 179 (2016), citing United States v. Lanza , 260 U. S. 377, 382, 43 S. Ct. 141, 67 L.Ed. 314 (1922). According to United States Supreme Court precedence, states are separate sovereigns from the federal government, having their "authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment." United States v. Gamble , 694 Fed.Appx. 750, 751 (11th Cir.2017), citing Sanchez Valle .³

{¶ 15} This court has also stated:

The law in this area is well settled. The courts have consistently held that the Fifth Amendment prohibition against double jeopardy is not violated where the separate sovereigns (the state and the United States) prosecute and convict a single individual under their respective statutes for the same wrongful conduct. See Abbate v. United States (1959), 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 ; Bartkus v. People of the State of Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 ; 18 A.L.R. Fed. 393.

State v. Mosely , 8th Dist. Cuyahoga No. 51415, 1987 WL 5449, *1 (Jan. 15, 1987).

{¶ 16} In Ohio, however, the General Assembly enacted R.C. 2925.50 to prohibit dual-sovereign prosecutions under certain circumstances. This statute provides:

If a violation of this chapter is a violation of the federal drug abuse control laws, as defined in section 3719.01 of the Revised Code, a conviction or acquittal under the federal drug abuse control laws for the same act is a bar to prosecution in this state.

{¶ 17} In state court, Johnson was convicted of trafficking cocaine under R.C. 2925.03(A)(2), which provides:

No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

{¶ 18} Johnson was also convicted in state court of possession of cocaine under R.C. 2925.11(A), which states that "[n]o person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

{¶ 19} In federal court, Johnson was convicted of "conspiracy to possess with intent to distribute" cocaine and crack cocaine between July 2005, through March 2008, under 21 U.S.C. 841(a)(1) and 846. It is undisputed that these offenses were under the ambit of "federal drug abuse control...