State v. Rockwell, 2008 Ohio 2162 (Ohio App. 4/28/2008)

Decision Date28 April 2008
Docket NumberNo. 2008-CA-00009.,2008-CA-00009.
Citation2008 Ohio 2162
PartiesState of Ohio Plaintiff-Appellee v. Gary Rockwell Defendant-Appellant
CourtOhio Court of Appeals

JOHN FERRERO, STARK COUNTY PROSECUTOR, By: FRED SCOTT, 110 Central Plaza South, Canton, OH 44702, For Plaintiff-Appellee.

GARY ROCKWELL #A460-432, Richland Correctional Institution, Box 8107, 1001 Olivesburg Road, Mansfield, OH 44901, For Defendant-Appellant.

Before W. SCOTT GWIN, P.J., JULIE A. EDWARDS, J., PATRICIA A. DELANEY, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Gary A. Rockwell appeals from the December 12, 2007, Judgment Entry of the Stark County Court of Common Pleas overruling his Motion to Withdraw Guilty Plea. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE ANDF FACTS

{¶2} On September 30, 2003, appellant spread accelerant over the first floor of a residence and set the same on fire. At the time, appellant's estranged wife, her boyfriend, and three children were sleeping in the house. Two of the children were appellant's. The fire was discovered and extinguished before any one was injured.

{¶3} Subsequently, on November 6, 2003, the Stark County Grand Jury indicted appellant on five counts of attempted aggravated murder in violation of R.C. 2923.02(A), felonies of the first degree, one count of aggravated burglary in violation of R.C. 2911.11(A) (1), a felony of the first degree, and one count of aggravated arson in violation of R.C. 2909.02(A) (1), also a felony of the first degree. At his arraignment on November 14, 2003, appellant entered a plea of not guilty to the charges contained in the indictment.

{¶4} Thereafter, on December 10, 2003, appellant withdrew his former not guilty plea and pled guilty to all of the charges contained in the indictment. At the December 10, 2003, hearing, the trial court stated on the record, in relevant part, as follows:

{¶5} "THE COURT: Having said all this, I want you to understand what has been brought to my attention and approved and what I would do is between the Prosecutor's office and your attorney and discussions with you, you understand that you're going to receive a prison sentence that's going to total here 20 years? You understand that?

{¶6} "DEFENDANT ROCKWELL: Yes I do.

{¶7} "THE COURT: And, again, from all the ranges of sentences that you could get here if you were going to go to trial, you could get a sentence that could be less, could get a sentence that could be much more depending on how the Court would determine and depending on what you were found guilty of. Do you understand?

{¶8} "DEFENDANT ROCKWELL: Yes, I do.

{¶9} "THE COURT: It says in essence, this is an agreed upon sentence. In return for your plea of guilty, the State has recommended the sentence, the Court has approved it. Do you understand it is a 20-year sentence?

{¶10} "DEFENDANT ROCKWELL: Yes I do."

{¶11} (T. December 10, 2003 at 12-13).

{¶12} As memorialized in a Judgment Entry filed on December 15, 2003, appellant was sentenced to an aggregate term of twenty years in prison. State v. Rockwell, No.2004CA00193, 2005-Ohio-5213.

{¶13} Appellant failed to file a timely appeal, but was granted leave to file a delayed appeal. This Court appointed counsel to represent him.

{¶14} Appellant filed a pro se brief raising the following assignments of error:

{¶15} "1. Appellant was deprived of his Sixth Amendment right to trial by jury where his sentence exceeded the maximum permitted by statute in the absence of additional fact finding beyond that inherent in the guilty plea, and where the fact findings were not made by a jury and Appellant was not advised that he had the right to have the additional fact-finding made by a jury.

{¶16} "2. The trial court erred and abused its discretion in imposing court costs against appellant who was adjudged indigent prior to sentencing, and then issuing a garnishment order, in violation of the Appellant's right to due process of law, as well as in violation of Ohio law."

{¶17} Appointed counsel filed a supplemental brief, raising the following assignments of error: "1. The trial court erred in sentencing the appellant to a term greater than the minimum; 2. The trial court erred in basing its sentence of a prison term for a first degree felony on facts that were not stipulated; 3. The trial court erred in sentencing the appellant to consecutive prison terms."

{¶18} On Sept. 26, 2005, this court affirmed the sentence, finding that "appellant was sentenced to the twenty year sentence that was recommended jointly by the defense and the prosecution." Rockwell, supra at ¶19. Because "the trial court imposed the agreed upon sentence and ... the sentence did not exceed the maximum sentence," the court found there was no need to make the findings" otherwise required under R.C. 2929.14. Id. at ¶ 20. This court upheld the sentence, finding that appellant was sentenced in accordance with a jointly recommended sentence that was authorized by state law.

{¶19} Again, appellant failed to file a timely appeal to the Ohio Supreme Court, but filed a motion for leave to file a delayed appeal on Nov. 21, 2005. On Jan. 25, 2006, the court denied his motion for leave. State v. Rockwell (2006), 108 Ohio St. 3d 1410, 841 N.E.2d 316.

{¶20} On February 21, 2006, appellant filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court conviction in the United States District Court, N.D. Ohio, Eastern Division. Rockwell v. Hudson (March 21, 2007), No. 5:06 CV 391, 2007WL892985. Appellant alleged in his petition that his rights "to Due Process and Equal Protection of law were violated by improper sentencing by the trial court" because "the trial court did not make the required findings before imposing consecutive sentences/non-minimum sentences on the [P]etitioner." In denying the petition the federal court noted "[t]he trial court found that Rockwell's plea was entered `knowingly, voluntarily and intelligently'... and he does not challenge the validity of the plea on that basis." The court further noted, "Rockwell's petition for a writ of habeas corpus should be dismissed because his only claim was procedurally defaulted. Even if his claim were to be considered on the merits, Rockwell has not established that the state court decision regarding his sentencing, as a result of the plea bargain, was contrary to, or involved an unreasonable application of, clearly established federal law." The federal court concluded, "[t]he court further certifies that pursuant to 28 U.S.C. § 1915(a) (3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability, 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)."

{¶21} On June 21, 2007 appellant filed a motion for judicial release per R.C. 2929.20. The trial court overruled that motion by Judgment Entry filed June 28, 2007.

{¶22} On October 5, 2007 appellant filed a motion to withdraw his plea of guilty in the trial court. The trial court, by judgment entry filed December 12, 2007, overruled appellant's motion stating: ". . . The defendant has not provided sufficient proof of being promised judicial release. The record in this matter indicates that the defendant knew that his sentence would be twenty (20) years. Further, the defendant in the appellate process in previous pleadings never suggested that he was promised judicial release or that his counsel had informed him that he would receive judicial release in three (3) years. The defendant provides nothing except for his own personal affidavit to substantiate this fact. The record during the plea of guilty is silent concerning the defendant in any manner being considered for judicial release. To the contrary, the defendant was advised on several occasions that he would be receiving a twenty (20) years sentence. . . ." State v. Rockwell, Stark County Court of Common Pleas Case No. 2003-CR-1418, Judgment Entry, (filed Dec. 12, 2007), at 1.

{¶23} It is from the trial court's December 12, 2007 Judgment Entry that appellant appeals raising the following five assignments of error:

{¶24} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM A. POLICE UNFILLABLE [sic.] PROMISE AND COERCED CONFESSION WHERE [SIC.] THE RESULT OF AN INVOLUNTARY PLEA.

{¶25} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM B: COUNSEL'S RELAYED THREAT AND COERCED GUILTY PLEA.

{¶26} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM C: FAILURE TO

INFORM OF PROBATION INELIGIBILITY RESULTED IN A LESS THAN INTELLIGENT PLEA.

{¶27} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM D: LACK OF MENTAL CULPABILITY RESULTED IN A LESS THAN INTELLIGENT PLEA.

{¶28} "V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM E: AFFIRMATIVE DEFENSES OF INSANITY AND INTOXICATION WHERE NOT RECOGNIZED RESULTED[sic.] INEFFECTIVE ASSISTANCE OF COUNSEL."

I, II, III, IV, & V

{¶29} Appellant's five assignments of error argue that the trial court abused its discretion in not supporting its ruling denying him an evidentiary hearing on his Crim. R. 32.1 motion, and provides separate assertions for each that all involve the ineffectiveness of his trial counsel. In essence, appellant argues in his assignments of error that his counsel...

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