[Cite as State v. Moore, 2014-Ohio-3024.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ADAMS COUNTY

STATE OF OHIO,                                 :            Case No. 13CA965

        Plaintiff-Appellee,                    :

        v.                                     :            DECISION AND
                                                            JUDGMENT ENTRY
JOHN D. MOORE,                                 :

        Defendant-Appellant.                   :            RELEASED: 6/30/2014

                                            APPEARANCES:

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.

C. David Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Adams
County Assistant Prosecuting Attorney, for appellee.

Harsha, J.
        {¶1}     John D. Moore pleaded guilty to a charge of murder in exchange for the

state of Ohio dismissing a charge of endangering children. The trial court accepted

Moore’s guilty plea, found him guilty of murder, sentenced him to a mandatory prison

term of 15 years to life and five years of postrelease control, and fined him $1,500.

        {¶2}     Moore asserts in his first assignment of error that the trial court erred in

accepting his plea. Moore claims that his plea was involuntary because it was based on

the material mutual mistake that the state’s dismissal of the endangering children

charge would benefit him. Moore argues that because the murder and endangering

children charges were allied offenses of similar import subject to merger, he could not

have been convicted and sentenced on both. Thus he contends he received no benefit
Adams App. No. 13CA965                                                                      2


for his part of the bargain, e.g. had he known he couldn't be sentenced on both charges,

he would not have pled guilty.

       {¶3}   Moore’s claim is meritless because he relies on a statement in a

competency evaluation to contend that he understood the purpose of the plea bargain

was to obtain a shorter prison sentence. However, that evaluation is not part of the

record on appeal. Moreover, a determination of allied offenses of similar import

requiring merger is not automatic based on the offenses involved—the defendant has

the burden to establish the appropriateness of merger based on the actual conduct

involved. Relieving him of that burden constituted consideration for the agreement.

Finally, even if Moore's plea did not result in a lesser sentence, he may have obtained

other benefits from the plea, i.e. the avoidance of a jury trial and further publicity. Under

the totality of the circumstances, the trial court properly determined that his guilty plea

was knowingly, intelligently, and voluntarily made. We overrule Moore’s first

assignment of error.

       {¶4}   In his second assignment of error, Moore claims that his trial counsel was

ineffective because he failed to explain that his plea offer had no value. For the

previously discussed reasons, the record does not establish that his plea of guilty had

no value. Because the premise of this assigned error is erroneous, Moore cannot

establish either that his trial counsel’s performance was deficient or that any deficient

performance prejudiced him. We overrule Moore’s second assignment of error.

       {¶5}   In his third assignment of error, Moore asserts that the trial court erred by

imposing five years of postrelease control. Because postrelease control does not apply
Adams App. No. 13CA965                                                                   3


to unclassified felonies like murder, the state candidly concedes that the trial court

erred, and we agree. Moore’s third assignment of error has merit.

       {¶6}     Therefore, we affirm the judgment of conviction and sentence in part,

reverse that portion of the sentence imposing postrelease control, and remand the

cause to the trial court to correct that portion of the sentence.

                                         I. FACTS

       {¶7}     According to Moore he was watching his five-month-old son, Carson, at

his apartment because his girlfriend was gone. When Carson would not stop crying,

Moore became angry and frustrated. Moore shook Carson hard to stop him from crying.

By shaking his son, Moore caused Carson to suffer serious injuries that resulted in the

baby's death.

       {¶8}     An Adams County grand jury returned an indictment charging Moore with

one count of endangering children in violation of R.C. 2919.22(B)(1), a felony of the

second degree and one count of murder in violation of R.C. 2919.22(B)(1), a special

felony. Moore entered a plea of not guilty to the charges, and the trial court appointed

attorney C. Nicholas Ring to represent him. Moore subsequently entered a plea of not

guilty by reason of insanity, and the trial court ordered that Moore be evaluated for his

competence to stand trial, his mental condition at the time of the commission of the

offense, and his competence to understand and waive his Miranda rights. Following the

submission of a written report from clinical psychologist Kristen Haskins, the trial court

determined that Moore was competent to stand trial. The court also concluded Moore

did not have a severe mental disease or defect that prevented him from knowing the
Adams App. No. 13CA965                                                                    4


wrongfulness of his conduct when he committed it and that he understood his Miranda

rights.

          {¶9}   Moore then changed his plea to guilty to the charge of murder in exchange

for the state’s dismissal of the endangering children charge. Before accepting his plea

the trial court engaged in a detailed colloquy with Moore in accordance with Crim.R.

11(C)(2) to determine whether he was entering his guilty plea knowingly, intelligently,

and voluntarily. During this exchange Moore specifically informed the trial court that he

understood he was going to plead guilty to the murder charge, that the state would

dismiss the endangering children charge, that his mandatory sentence on the murder

charge would be 15 years to life, and that he was waiving his constitutional rights to a

jury trial, to confront his accusers, to compulsory process, to require the state to prove

guilt beyond a reasonable doubt, and the privilege against compulsory self-

incrimination. Moore also stated that he was satisfied with his trial counsel’s legal

representation and with the result of the plea agreement. He further specified that he

had not been threatened in any way to cause his plea to be involuntary. The trial court

also advised Moore that he would be subject to a mandatory five-year term of

postrelease control after being released from prison for his murder conviction.

          {¶10} The trial court accepted Moore’s guilty plea, and after Moore testified

about the circumstances of his crime, the trial court found him guilty of murder. The trial

court sentenced Moore to a mandatory term of incarceration of 15 years to life, imposed

a five-year term of postrelease control, and fined him $1,500.

          {¶11} This appeal ensued.

                               II. ASSIGNMENTS OF ERROR
Adams App. No. 13CA965                                                                      5


       {¶12} Moore assigns the following errors for our review:

       1. Did the trial court err by accepting an involuntary plea? Fifth, Sixth,
          and Fourteenth Amendments to the United States Constitution; T.p. 4-
          5 (Apr. 2, 2013); Plea of Guilty (Apr. 3, 2013)

       2. The trial court erred by accepting a plea despite ineffective assistance
          of counsel. Fifth, Sixth, and Fourteenth Amendments to the United
          States Constitution. T.p. 4-5 (Apr. 2, 2013); Plea of Guilty (Apr. 3,
          2013)

       3. The trial court erred by imposing postrelease control. T.p. 12-13 (Apr.
          17, 2013); Judgment Entry on Sentence (Apr. 17, 2013).

                                III. LAW AND ANALYSIS

                                   A. Involuntary Plea

       {¶13} In his first assignment of error Moore asserts that the trial court erred in

accepting his guilty plea because it was involuntary. “‘When a defendant enters a plea

in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.

Failure on any of those points renders enforcement of the plea unconstitutional under

both the United States Constitution and the Ohio Constitution.’ ” State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996). An appellate court determining whether a guilty

plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of

the record to ensure that the trial court complied with the constitutional and procedural

safeguards. State v. Smith, 4th Dist. Washington No. 12CA11, 2013-Ohio-232, ¶ 10.

       {¶14} “Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” Veney at ¶ 8. However Moore does not

claim that the trial court failed to comply with Crim.R. 11(C). Instead, Moore claims that

the trial court erred in determining that his guilty plea was involuntary because it was
Adams App. No. 13CA965                                                                    6


based on the material mutual mistake that the state’s dismissal of the endangering

children charge would benefit him. He also argues the plea agreement lacked

consideration. Moore contends that because the murder and endangering children

charges were allied offenses of similar import, he could not have been convicted and

sentenced on both; and had he known he would not receive any benefit from the

dismissal of endangering charges, he would not have pled guilty.

       {¶15} “ ‘Principles of contract law are generally applicable to the enforcement

and interpretation of plea agreements.’ ” State v. Billingsley, 133 Ohio St.3d 277, 2012-

Ohio-4307, 978 N.E.2d 135, ¶ 26, quoting State v. Bethel, 110 Ohio St.3d 416, 2006-

Ohio-4853, 854 N.E.2d 150, ¶ 50; State v. Furnier, 4th Dist. Scioto No. 13CA3546,

2013-Ohio-5376, ¶ 9. The essential elements of a contract are an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or detriment),

manifestation of mutual assent, and legality of the object and consideration. See

generally Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶

14; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16.

       {¶16} In general, “if the parties and the trial court have made a mutual mistake

regarding the terms of a plea agreement,” the agreement should be rescinded. State v.

Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.).

“When a defendant’s guilty plea is induced by erroneous representations as to the

applicable law, including eligibility for judicial release, the plea is not knowingly,

intelligently, and voluntarily made.” State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-

Ohio-3189, ¶ 8.
Adams App. No. 13CA965                                                                    7

       {¶17} Moore cites Bryant in support of his argument that his plea was

involuntary. But in Bryant the defendant was misinformed that he would be eligible for

judicial release. Here, there was no misinformation apparent from our record - in

accordance with the terms of the plea agreement, the state dismissed Moore’s child

endangering charge in exchange for his guilty plea to the murder charge.

       {¶18} Moore relies on a purported statement in the competency report of clinical

psychologist Haskins that Moore “thought a positive of a plea bargain would be less

time.” He points to this "statement" as evidence that the parties had a material

mistaken belief that Moore would receive a lesser prison sentence by pleading guilty to

murder. However, that report is not part of the record certified on appeal. Under these

circumstances, we must presume the validity of the trial court’s determination. See,

e.g., State v. Philon, 6th Dist. Erie No. E-93-15, 1994 WL 319058 (June 30, 1994), *3

(absent the inclusion of a competency evaluation in the record on appeal, appellate

court will presume the validity of the trial court’s proceedings); State v. Glenn, 4th Dist.

Adams Nos. 11CA931 and 11CA932, 2012-Ohio-3190, ¶ 6, fn. 4 (“under App.R. 9(B) it

is the duty of the appellant to order, in writing, from the court reporter, a complete

transcript of the parts of the proceedings not already on file as the appellant considers

necessary for inclusion in the record”). Moreover, even assuming that this statement

appears in the competency evaluation, it only states that a lesser sentence "was a

positive," not that this would be the only benefit to be garnered by Moore by pleading

guilty to murder.

       {¶19} Moore claims that because the offenses were allied offenses of similar

import, the parties’ agreement to plead guilty to murder in exchange for the state’s
Adams App. No. 13CA965                                                                   8


dismissal of the child endangering charge lacked consideration as he received no

benefit from it. Normally, the dismissal of another criminal charge constitutes sufficient

consideration for a plea agreement. See State v. Smith, 2d Dist. Greene No. 90CA87,

1992 WL 206739 (Aug. 26, 1992), *7. Moore contends that this general rule is

inapplicable because the dismissal of the endangering children charge could not reduce

his sentence.

       {¶20} Moore’s contention lacks merit for several reasons. First, although he

may have successfully argued that any convictions for murder and endangering children

should be merged as allied offenses of similar import, it would not have been automatic

based simply on the types of offenses charged. Rather, the court would have to

consider Moore’s specific conduct. See State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061, syllabus (“When determining whether two offenses are

allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of

the accused must be considered”). Merger is a sentencing question, and the defendant

bears the burden of establishing his entitlement to the protection of R.C. 2941.25. State

v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. That

burden was removed by the plea agreement. Relieving Moore of the burden constitutes

consideration for the agreement.

       {¶21} Moore’s reliance on Johnson, which held that the offenses of murder and

child endangering were allied offenses of similar import based on the circumstances of

that case, is misplaced because the pertinent facts in Johnson were elicited in a jury

trial. By contrast any discussion of what evidence the state would have relied on to
Adams App. No. 13CA965                                                                   9


support each conviction at trial requires some speculation because of the plea

agreement.

       {¶22} Furthermore, a lesser sentence is not the only benefit to be received by a

defendant deciding to plead guilty to a charged offense. The defendant could also

avoid the additional publicity that a trial might generate. Because some consideration

exists for the plea agreement, we cannot inquire into the adequacy of the consideration.

Williams, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 17 (“long-established

precedent that courts may not inquire into the adequacy of consideration”).

       {¶23} Based on a totality of the circumstances, Moore fails to establish that the

plea agreement should be rescinded based on either a material mutual mistake or lack

of consideration. The trial court did not err in determining that Moore’s plea of guilty to

the murder charge was knowingly, intelligently, and voluntarily made. We overrule

Moore’s first assignment of error.

                           B. Ineffective Assistance of Counsel

       {¶24} In his second assignment of error, Moore argues that the trial court erred

in accepting his guilty plea despite ineffective assistance of counsel. Moore claims that

his trial counsel was ineffective because he failed to explain to him that the state’s plea

offer had no value.

       {¶25} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d
Adams App. No. 13CA965                                                                     10

1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The

petitioner has the burden of proof because in Ohio, a properly licensed attorney is

presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland

at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

         {¶26} For the reasons previously discussed in our disposition of his first

assignment of error, Moore’s claim is based on the erroneous premise that his plea had

no value. Moore has not established that his plea did not benefit him, and he thus has

also not established that his trial counsel’s performance was deficient or that any

deficient performance prejudiced him. We overrule Moore’s second assignment of

error.

                                   C. Postrelease Control

         {¶27} In his third assignment of error, Moore contends that the trial court erred in

imposing postrelease control as part of his sentence on his murder conviction.

Postrelease control is not required for persons convicted of special felonies like

aggravated murder or murder. State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,

2010-Ohio-2671, 931 N.E.2d 110, ¶ 21, citing State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462, ¶ 36; State v. Lofton, 4th Dist. Pickaway No. 11CA16,

2012-Ohio-2274, ¶ 8, quoting State v. Silguero, 10th Dist. Franklin No. 11AP-274, 2011-

Ohio-6293, ¶ 8 (“[appellant] was convicted of murder, ‘which is an unclassified felony to

which the post-release control statute does not apply’ ”). Therefore, as the parties both

note, we must reverse this portion of Moore’s sentence and remand the matter to the
Adams App. No. 13CA965                                                                  11


trial court to correct the sentence by removing all references to postrelease control. A

de novo sentencing hearing is not required. Lofton at ¶ 11. We sustain Moore’s third

assignment of error.

                                    IV. CONCLUSION

       {¶28} Therefore, having overruled Moore’s first and second assignments of

error, we affirm the judgment of the trial court convicting him of murder on his guilty plea

and his sentence except for the imposition of postrelease control. Having sustained

Moore’s third assignment of error, we reverse that portion of the trial court’s sentence

imposing postrelease control and remand the cause to the trial court to correct the

sentencing entry by removing it.

                                                             JUDGMENT AFFIRMED IN
                                                        PART AND REVERSED IN PART
                                                             AND CAUSE REMANDED.
Adams App. No. 13CA965                                                                      12


                                    JUDGMENT ENTRY


       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
