Summary
holding that alleged non-constitutional violations may not be raised in a postconviction relief petition
Summary of this case from State v. MitchellOpinion
No. 80-809
Decided July 1, 1981.
Criminal law — Denial of post-conviction relief — Failure of trial court to review plea hearing transcript — Res judicata, when.
APPEAL from the Court of Appeals for Hamilton County.
On January 28, 1975, defendant-appellee, Mohammed Ishmail, Jr., entered a plea of guilty to the crimes of burglary and grand theft and was sentenced on both counts. No direct appeal was taken, either as a matter of right or as a delayed appeal. Subsequent to his confinement, however, defendant sought post-conviction relief pursuant to R.C. 2953.21.
Defendant-appellee received concurrent sentences of five to fifteen years and one to five years for the burglary and theft convictions, respectively.
In the post-conviction proceeding Ishmail's petition for relief was denied without a hearing. The trial court reviewed the dockets, records, and journal entries before making its decision but did not read the transcript of the hearing at which the guilty pleas were entered. The court filed the requisite findings of fact and conclusions of law pursuant to R.C. 2953.21(C).
Defendant appealed the denial of post-conviction relief on the ground that the trial court erred in not considering the plea hearing transcript, which allegedly would have revealed that the sentencing court did not comply with Crim. R. 11(C). The Court of Appeals supplemented the record to include the plea transcript and, upon its review of the augmented record, reversed the trial court. The state then appealed the judgment of the Court of Appeals to this court. We reversed the Court of Appeals in State v. Ishmail (1978), 54 Ohio St.2d 402, and remanded the cause, holding, in paragraph two of the syllabus, that "[w]here a trial court, in denying a petition for post-conviction relief pursuant to R.C. 2953.21, does not consider a transcript of proceedings of the hearing at which the guilty pleas were entered, a Court of Appeals cannot add that transcript to the record before it and then decide the appeal on the basis of matter disclosed by the transcript."
On remand from this court, the Court of Appeals held that the trial court had erred: first in not reviewing the plea hearing transcript to determine if the sentencing court had substantially complied with Crim. R. 11(C); secondly in not holding an evidentiary hearing to determine whether defendant had been fraudulently induced, by his counsel, to plead guilty; and, finally, in not appointing counsel at the post-conviction stage.
Substantial compliance with the non-constitutional provisions of Crim. R. 11(C) is the standard that trial courts must meet. State v. Billups (1979), 57 Ohio St.2d 31; State v. Strawther (1978), 56 Ohio St.2d 298; State v. Stewart (1977), 51 Ohio St.2d 86. See, also, State v. Ballard (1981), 66 Ohio St.2d 473.
Crim. R. 11(C) states in relevant part:
"(2) In felony cases the court***shall not accept such plea without first addressing the defendant personally and:
"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation."
After the Court of Appeals handed down its ruling, the state filed a motion to reconsider, which was overruled, and then a motion to certify on the basis of conflict, which was also overruled. Thereupon, the state filed a memorandum in support of jurisdiction with this court.
The cause is now before this court upon a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellant.
Mr. Robert R. Hastings, Jr., for appellee.
The principal issue raised in the state's appeal is whether the Court of Appeals erred in remanding the cause for a review of the plea hearing transcript to determine whether the sentencing court complied with Crim. R. 11(C). The state contends that the defendant-appellee is barred from litigating the alleged Crim. R. 11(C) violation in a post-conviction proceeding because "[m]atters involving technical violations of Crim. 11(C) may be raised on direct appeals from the judgment of conviction and sentence." Therefore, according to the appellant, "[a] court of appeals commits error when it permits a defendant to raise in a post-conviction proceeding matters not affecting the constitutional validity of a plea but which violate the technical provisions of Criminal Rule 11(C) which alleged error could have been raised by way of a direct appeal."
Appellant's brief contains ten propositions of law but several are axiomatic while others are verbatim restatements of State v. Perry (1967), 10 Ohio St.2d 175, syllabus paragraphs. Notwithstanding the multiple propositions of law, there is only one major issue presented for decision.
Appellant relies on State v. Perry (1967), 10 Ohio St.2d 175, to support the position that the Crim. R. 11(C) question in this case was res judicata when the Court of Appeals ordered a remand to review the plea hearing transcript. In Perry, we stated in paragraphs eight and nine of the syllabus, respectively, that:
"The Supreme Court of Ohio will apply the doctrine of res judicata in determining whether post-conviction relief should be given under Section 2953.21 et seq., Revised Code.
"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from the judgment."
The alleged Crim. R. 11(C) violation in the case at bar could have been raised directly on appeal. If the sentencing court erroneously failed to inform defendant, pursuant to Crim. R. 11(C), that he was ineligible for probation because of his prior theft conviction, then the defendant should have taken a direct appeal. A Crim. R. 11(C) violation that appears on the face of the record but is never directly appealed is not per se susceptible to collateral attack by way of a post-conviction proceeding pursuant to R.C. 2953.21. Under the doctrine of res judicata the Crim. R. 11(C) question merged with the judgment of conviction and defendant cannot now relitigate the issue.
We find Perry, supra, to be dispositive on the Crim. R. 11(C) question presented herein. Therefore, the Court of Appeals erred in remanding the cause for a review of the plea transcript hearing.
The Court of Appeals also ordered the trial court to hold an evidentiary hearing to determine whether defendant's guilty plea was fraudulently induced by his former counsel. See State v. Milanovich (1975), 42 Ohio St.2d 46; State v. Mishelek (1975), 42 Ohio St. 140. Inasmuch as appellant has not challenged the Court of Appeals' order with respect to the other grounds for reversal, those issues are not properly before this court and we express no opinion thereon.
The judgment of the Court of Appeals is reversed insofar as it called for a review of the plea transcript hearing.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.