[Cite as State v. Morrison, 2014-Ohio-688.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :      Hon. Sheila G. Farmer, J.
                                              :      Hon. John W. Wise, J.
-vs-                                          :
                                              :
CHRIS L. MORRISON                             :      Case No. 13-CA-35
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case Nos. 11CR356 and
                                                     11CR443


JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 24, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JUSTIN T. RADIC                                      WILLIAM T. CRAMER
20 South Second Street                               470 Olde Worthington Road
4th Floor                                            Suite 200
Newark, OH 43055                                     Westerville, OH 43082
Licking County, Case No. 13-CA-35                                                       2

Farmer, J.

      {¶1}   On July 29, 2011, the Licking County Grand Jury indicted appellant, Chris

Morrison, on one count of engaging in a pattern of corrupt activity in violation of R.C.

2923.32, one count of failing to comply/fleeing and eluding in violation of R.C. 2921.331,

one count of felony vandalism in violation of R.C. 2909.05, and thirteen counts of

breaking and entering in violation of R.C. 2911.13 (Case No. 11CR356).

      {¶2}   On September 16, 2011, appellant was indicted on one count of

forgery/uttering in violation of R.C. 2913.31, one count of possessing cocaine in

violation of R.C. 2925.11, and two more counts of breaking and entering in violation of

R.C. 2911.13 (Case No. 11CR443).

      {¶3}   The two cases were joined for trial. After joinder, the parties reached a

plea agreement. The corrupt activity count was to be dismissed, the failure to comply

count was to be amended to an attempt, and appellant agreed to withdraw his motion to

suppress that he had filed. On January 23, 2012, appellant entered Alford guilty pleas

to all the counts. By judgment entry nunc pro tunc filed January 24, 2012, the trial court

sentenced appellant to an aggregate term of eight years in prison.

      {¶4}   Appellant filed a motion for delayed appeal on May 1, 2013. This court

granted the motion on June 10, 2013. On June 28, 2013, this court remanded the

matter to the trial court to dismiss and amend certain counts per the plea agreement

because of the prosecutor's failure to do so.

      {¶5}   On July 1, 2013, appellant filed a motion to withdraw his pleas pursuant to

Crim.R. 32.1, arguing his pleas were involuntary because he relied on erroneous advice

from counsel.
Licking County, Case No. 13-CA-35                                                      3


      {¶6}   On August 16, 2013, the trial court filed a judgment entry nunc pro tunc,

entering the corrections per this court's remand.      The trial court did not rule on

appellant's motion to withdraw his pleas.

      {¶7}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶8}   "THE TRIAL COURT VIOLATED DUE PROCESS AND CRIM.R. 32.1 BY

FAILING TO INQUIRE INTO APPELLANT'S REASONS FOR ENTERING AN ALFORD

PLEA."

                                            II

      {¶9}   "THE TRIAL COURT VIOLATED DUE PROCESS AND CRIM.R. 32.1 BY

FAILING TO HOLD A HEARING ON APPELLANT'S MOTION TO WITHDRAW HIS

ALFORD PLEA."

                                            III

      {¶10} "THE TRIAL COURT ERRED BY DISMISSING AND AMENDING

COUNTS OF INDICTMENT BY NUNC PRO TUNC ORDER WITHOUT A HEARING."

                                             I

      {¶11} Appellant claims the trial court failed to engage in a Crim.R. 11 colloquy as

to the reasons for entering Alford pleas, thereby rending the pleas involuntary. We

disagree.

      {¶12} In entering an Alford plea, a defendant maintains innocence, but consents

to punishment: "[a]n individual accused of crime may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence even if he is unwilling or
Licking County, Case No. 13-CA-35                                                     4

unable to admit his participation in the acts constituting the crime." North Carolina v.

Alford, 400 U.S. 25, 37 (1970). As explained by our brethren from the Second District in

State v. Padgett, 67 Ohio App.3d 332, 338-339 (2nd Dist.1990):



             Because an Alford plea involves a rational calculation that is

      significantly different from the calculation made by a defendant who

      admits he is guilty, the obligation of the trial judge with respect to the

      taking of an Alford plea is correspondingly different. The trial judge must

      ascertain that notwithstanding the defendant's protestations of innocence,

      he has made a rational calculation that it is in his best interest to accept

      the plea bargain offered by the prosecutor.

             ***

             Where the defendant interjects protestations of innocence into the

      plea proceedings, and fails to recant those protestations of innocence, the

      trial court must determine that the defendant has made a rational

      calculation to plead guilty notwithstanding his belief that he is innocent.

      This requires, at a minimum, inquiry of the defendant concerning his

      reasons for deciding to plead guilty notwithstanding his protestations of

      innocence; it may require, in addition, inquiry concerning the state's

      evidence in order to determine that the likelihood of the defendant's being

      convicted of offenses of equal or greater magnitude than the offenses to

      which he is pleading guilty is great enough to warrant an intelligent

      decision to plead guilty.
Licking County, Case No. 13-CA-35                                                        5




       {¶13} When there is a written affirmative assertion of an Alford notation on the

plea form and some affirmation to the trial court of an Alford plea, a more detailed

Crim.R. 11 colloquy is required to inquire into the reasoning for the Alford plea. State v.

Hayes, 101 Ohio App.3d 73 (3rd Dist.1998).

       {¶14} In the case sub judice, we must examine the record to see if there were

any protestations of innocence, and whether there was a dialogue with the trial court as

to the reasons for entering the "guilty" pleas.

       {¶15} Appellant's January 23, 2012 Admission of Guilt form stated "GUILTY"

with the notation "Alford Plea of Guilt" above it. During the plea hearing, the trial court

specifically acknowledged the pleas were Alford pleas (T. at 4):



              THE COURT: ***Your attorney has represented to the Court that it

       was your intention to enter a - - withdraw your not guilty pleas to a variety

       of those counts in each of those cases, and enter Alford pleas of guilty to

       some of the breaking and entering counts, cocaine count, forgery, and an

       attempt at fleeing and vandalism count.        Is that your intention, Mr.

       Morrison?

              THE DEFENDANT: Yes, sir.



       {¶16} In examining appellant, the trial court asked appellant, "did you also

receive these admission of guilt or Alford plea forms that have been presented to the

Court here today?" T. at 7. Appellant answered in the affirmative. Id.
Licking County, Case No. 13-CA-35                                                       6


       {¶17} After a lengthy recitation of the facts regarding the counts (T. at 10-14),

appellant stated that he agreed to the facts as set forth. T. at 14-15. Prior to imposing

a sentence, the trial court asked appellant if he had anything he wished to say (T. at 25-

26):



                THE COURT: Mr. Morrison, is there anything you wish to say in

       your own behalf before the Court imposes any kind of sentence here?

                THE DEFENDANT: Yes, Your Honor. Just, you know, I want to

       say, you know, I got a severe drug habit, and I couldn't - - I didn't have any

       money to get any help. And I did work the whole time I was out there. I

       helped do all the concrete work at the John Clem School last year. I

       worked all year last year till that job was done. Then I worked down here

       at the new Speedway to the east end. I poured all the concrete down

       there for that till the job was done, then I didn't have no more jobs. And

       when the money ran out and I couldn't get no help, I didn't have no

       insurance or nothing to get no help on my drug addiction, I started doing

       these.

                But I want you to know, you know, none of these was trying to get

       rich off of stealing something from somebody, it was to get dope. I didn't

       do it to hurt nobody. And I don't have any violence on my record at all,

       and I'm sure you looked at my whole record.

                And I also want you to know, Green's Radiator, Auto Pro and

       Licking Metro Housing, nothing was stolen at all.         Duke & Duchess,
Licking County, Case No. 13-CA-35                                                       7


       nothing was stolen at all. AAA Auto, everything was returned. I went - -

       When Detective Green come and got me out of jail, I went and got

       everything from auto AAA; Auto Pro, I got the TV so it was returned;

       Family Dollar, I returned the phones and the ladders that was - - that I had

       there; and Thirsty Jakes, I returned what cigarettes that girl didn't get rid

       of.

              So there was a lot of stuff that I went and got, and there was a lot of

       the stuff that wasn't - - that wasn't nothing stolen out of them B&Es. It was

       just B&Es. There was some places that some stuff I did get, yes, but

       there was a bunch of places where I went and got and recovered a bunch

       of stuff because he said it would help me.



       {¶18} From appellant's very words, it is clear he did not protest his innocence,

but freely admitted his guilt. He attempted to excuse his actions because of his drug

addiction and need for money for drugs.

       {¶19} Defense counsel commented on appellant's decision to change his plea

as follows (T. at 21):



              And in our discussions we've talked about that a lot, about the

       impact that his drug use and his commitment of these crimes have

       affected his marriage, his life, his whole well-being.

              And the reason it's particularly noticeable is because Mr. Morrison

       wrote a number of letters to me throughout this whole period of time that
Licking County, Case No. 13-CA-35                                                       8


        we represented him. His letters are very thought out, they're very well

        written. He - - he tried to research the law as best he could. And - - and

        we all - - in this line of work, we see our jailhouse lawyers and defendants

        who they know more law than the lawyers do. But Mr. Morrison did a very

        good job in researching this case, thinking it out, working through all the

        possibilities, which is how we arrived today at a determination to enter a

        plea at this time and not go forward with our motion which, for the record,

        we would withdraw at this time, Your Honor.

               But his drug addiction, of course, is the absolute epical or center of

        all this rampage of break-ins.



        {¶20} Although the paperwork notes an Alford plea, we find there was no Alford

plea.   Further, appellant never pursued his motion to suppress and withdrew it in

exchange for the plea bargain.

        {¶21} Upon review, we find there was no Alford plea and the trial court's Crim.R.

11 colloquy was sufficient.

        {¶22} Assignment of Error I is denied.

                                             II

        {¶23} Appellant claims the trial court erred in not affording him a hearing on his

Crim.R.32.1 motion to withdraw his plea. We disagree.

        {¶24} Appellant filed his Crim.R. 32.1 motion on July 1, 2013. Appellant had

filed an appeal on April 24, 2013 and a motion for delayed appeal on May 1, 2013 which
Licking County, Case No. 13-CA-35                                                     9


this court granted on June 10, 2013. The trial court never ruled on the Crim.R. 32.1

motion because it lacked jurisdiction given the pending appeal.

       {¶25} Assignment of Error II is premature and therefore denied.

                                           III

       {¶26} Appellant claims the trial court erred in dismissing and amending two

counts of the indictment without a hearing. We disagree.

       {¶27} Following this court's approval of appellant's motion for a delayed appeal,

this court on July 29, 2013 remanded the matter to the trial court to dismiss and amend

certain counts of the indictment to reflect the plea agreement due to the prosecutor's

failure to do so.

       {¶28} The plea agreement was as follows (T. at 15-16):



              [THE COURT] Q. Do you understand, Mr. Morrison, that should the

       Court permit you to change your pleas here today, should the Court enter

       guilty findings, generally all that's going to remain to be done is proceed

       with sentencing?

              And by my calculation, based on the counts the prosecutor would

       amend, that is the fleeing, and the count they would dismiss, which is the

       engaging in a pattern of corrupt activity, that would still leave a maximum

       sentence of 19-1/2 years, along with a maximum - - a maximum fine of

       $50,000, with a driver's license suspension and three years of post-

       release control, along with possibly some restitution. Do you understand

       that, Mr. Morrison?
Licking County, Case No. 13-CA-35                                                       10


              A. Yes.



       {¶29} Upon remand, by judgment entry nunc pro tunc filed August 16, 2013, the

trial court complied with this court's directive as follows:



              Upon remand to the Court by entry filed July 29, 2013, and upon

       the failure of the prosecuting attorney to file the motions to dismiss and

       amend, the Court sua sponte dismisses Count 1 of Case No. 11 CR 356

       and amends Count 7 of Case No. 11 CR 443 to a fourth degree felony as

       set out in the original sentencing entry of January 23, 2012.



       {¶30} As explained by our brethren from the Twelfth District in State v. Goode,

12 Dist. Warren Nos. CA98-07-079 and CA98-07-083, 1999 WL 791537, *2 (September

27, 1999):



              "Nunc pro tunc entries are limited in proper use to reflecting what

       the court actually decided, not what the court might have or should have

       decided or what the court intended to decide."          State ex rel. Litty v.

       Leskovyansky (1996), 77 Ohio St.3d 97, 100, 671 N.E.2d 236. Black's

       Law Dictionary (6 Abridged Ed.1991) 737, states that that nunc pro tunc is

       "[a] phrase applied to acts allowed to be done after the time when they

       should be done, with a retroactive effect, i.e., with the same effect as if

       regularly done."
Licking County, Case No. 13-CA-35                                                    11




      {¶31} Upon review, we find the trial court did not err in correcting the record to

correspond to the "on the record" discussions regarding the plea agreement.

      {¶32} Assignment of Error III is denied.

      {¶33} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 203
