When Original Sentence Is Void, Court Must Consider Motion to Withdraw Guilty Plea as Presentence Motion
2007-2373. State v. Boswell, Slip Opinion No. 2009-Ohio-1577.
Cuyahoga App. Nos. 88292 and 88293, 2007-Ohio-5718. Cause remanded to the trial court for further proceedings.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lundberg Stratton and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1577.pdf 
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(April 9, 2009) The Supreme Court of Ohio ruled today that when the original sentence imposed on a criminal defendant is void, a subsequent motion by that defendant to withdraw his guilty plea must be considered a presentence motion under Ohio Criminal Rule 32.1.
The Court’s 5-2 majority decision was authored by Chief Justice Thomas J. Moyer.
The defendant in the case, Parris Boswell of Cleveland, pleaded guilty in 2000 to aggravated burglary, aggravated robbery, felonious assault, assault, and having a weapon while under a disability. At the plea hearing, the trial court told Boswell that he “may be subject to post-release control.” Because aggravated burglary and aggravated robbery are first-degree felonies, R.C. 2967.28 requires five years of postrelease control. The court also failed to explain postrelease control. In the court’s sentencing entry, Boswell was sentenced to 16 years in prison, but not to postrelease control.
In 2004 and 2005, Boswell filed two motions for a delayed appeal, but both were denied. On June 8, 2005, more than five years after being sentenced, Boswell filed a motion to vacate his guilty plea, arguing that the trial court had failed to properly inform him during the plea hearing of the mandatory term of postrelease control and the penalties associated with violating postrelease control. The trial court granted his motion without opinion, vacating the plea.
The state appealed the trial court’s decision, but it was upheld by the court of appeals. The court of appeals held that the trial court had not substantially complied with Crim.R. 11(C)(2)(a) and R.C. 2943.032 at the sentencing hearing, because it did not advise Boswell of the maximum penalty for his crimes before he entered his guilty plea. The Supreme Court agreed to hear the state’s discretionary appeal, which asserted that the court of appeals improperly applied the substantial-compliance analysis by failing to require Boswell to demonstrate that he was prejudiced by the inaccurate plea colloquy.
Writing for the majority in today’s decision, Chief Justice Moyer said the circumstances of Boswell’s case do not invoke the “substantial compliance” standard applied by the 8th District due to the error in Boswell’s sentence and the fact that his motion was brought under Crim.R. 32.1, which addresses the standard for allowing a defendant to withdraw a guilty plea.
The Chief Justice noted that there are two different standards courts must apply in considering motions to withdraw a guilty plea. Under the Supreme Court of Ohio’s decision in State v. Xie (1992), he wrote, “‘[A] presentence motion to withdraw a guilty plea should be freely and liberally granted,’” while 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.’ … The question here is whether Boswell’s motion to withdraw his plea should be considered a presentence motion, judged under the liberal standard of Xie, or a postsentence motion, requiring a showing of manifest injustice.”
Citing several recent decisions in which the Supreme Court has addressed similar sentencing errors, including State v. Simpkins (2008), State v. Bezak (2007) and State ex rel. Cruzado v. Zaleski (2006), Chief Justice Moyer wrote: “Our recent line of cases dealing with postrelease control has consistently held that sentences that fail to impose a mandatory term of postrelease control are void. … This stems from ‘the fundamental understanding that no court has the authority to substitute a different sentence for that which is required by law.’ … A sentence that does not comport with statutory requirements is contrary to law, and the trial judge is acting without authority in imposing it. … ‘Because a sentence that does not conform to statutory mandates requiring the imposition of postrelease control is a nullity and void, it must be vacated. The effect of vacating the sentence places the parties in the same position they would have been in had there been no sentence.’ … A motion to withdraw a plea of guilty or no contest made by a defendant who has been given a void sentence must therefore be considered as a presentence motion under Crim.R. 32.1.”
While holding that Boswell’s motion to withdraw his plea must be considered under the Xie standard that presentence motions should be “freely and liberally granted,” Chief Justice Moyer noted, however, that Boswell does not have an “absolute right” to withdraw his plea. He cited Xie’s requirement that a trial court considering such a motion “‘must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.’”
Although neither party in the case specifically moved to vacate Boswell’s original sentence, the Chief Justice held that “(W)e still must vacate the sentence and remand for a resentencing hearing in the trial court. Because the original sentence is actually considered a nullity, a court cannot ignore the sentence and instead must vacate it and order resentencing.”
He concluded: “As discussed above, Boswell’s sentence is void because it failed to include postrelease control as mandated by statute. His motion to withdraw his guilty plea must accordingly be treated as a presentence motion. Because the trial court granted Boswell’s motion without opinion and the court of appeals applied the improper standard, we remand to the trial court to consider the motion under the standard described above. We also vacate Boswell’s void sentence and order resentencing if his motion to withdraw his guilty plea is ultimately denied.”
The majority opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a dissenting opinion, joined by Justice Evelyn Lundberg Stratton, in which she reiterated her disagreement with earlier decisions in which the Court has held that the issue of a trial court’s failure to advise a defendant of a mandatory term of post-release control may be raised after the expiration of the 30-day deadline for filing a direct appeal of the conviction and sentence.
She wrote: “I continue to believe that all errors during the plea hearing and at sentencing should be corrected on direct appeal. I have departed consistently from recent decisions of this court that have held sentences to be void when they have contained errors of the type that ordinarily would
have been correctable on direct appeal. ... In my view, correction of any sentencing error should be sought within 30 days, so that all parties may rely upon a sentence that was imposed and is being served. Both the defendant and the state would stand on level ground in terms of how and when a challenge to the plea and sentence may be made.”
“I would hold that in cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is contrary to law and the parties have their appeals as of right pursuant to R.C. 2953.08. To allow collateral attack in addition to appeal undermines the principles of res judicata. ... There is no need for this court to distinguish postrelease-control errors from other sentencing errors.”
Contacts
Thorin Freeman, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.
Kelly K. Curtis, 614.466.5394, for Parris Boswell.