[Cite as State v. Miles, 2013-Ohio-1562.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 98980 and 99003




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                        MELVIN MILES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-261144

        BEFORE: S. Gallagher, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: April 18, 2013
FOR APPELLANT

Melvin Miles, pro se
Inmate #A232-511
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

          {¶1} In these consolidated appeals, defendant-appellant, Melvin Miles, appeals the

trial court’s denial of his motion for resentencing hearing and correction of void sentence

and his motion to withdraw his guilty plea. Appellant alleges that the trial court did not

properly advise him of the consequences of parole, specifically R.C. 2967.16, and that the

trial court should have granted his motions on that basis. For the reasons that follow, we

affirm.

          {¶2} In 1991, appellant pled guilty to aggravated murder with felony and firearm

specifications.     On April 15, 1991, the trial court sentenced appellant to a term of life

imprisonment with parole eligibility after serving 20 full years of imprisonment; in

addition, the court imposed a three-year consecutive prison term for the firearm

specification.

          {¶3} On July 19, 2012, appellant filed a motion for resentencing hearing and

correction of void sentence.     Appellant contended that his sentence was void because the

trial court did not advise him of the specified period of parole contained in R.C.

2967.16(A).       Appellant maintains he is “automatically subject to a mandatory term of

parole” pursuant to that statute.

          {¶4} On July 24, 2012, appellant filed a motion to withdraw guilty plea pursuant to

Crim.R. 32.1. Appellant contends his guilty plea was invalid because the trial court did

not advise him that his sentence allegedly included a five-year mandatory term of parole

pursuant to R.C. 2967.16.
       {¶5} The trial court denied both of appellant’s motions, and he has appealed those

rulings.

       {¶6} Appellant presents two assignments of error for our review.        Because both

assigned errors involve the relevance of R.C. 2967.16 to appellant’s plea and sentence,

they will be addressed together.

                                   Assignment of Error No. 1

       The trial court abused its discretion when it failed to hold a resentencing
       hearing to correct the void sentence issued in this case in violation of the
       Sixth and Fourteenth Amendments to the United States Constitution.

                                   Assignment of Error No. 2

       The trial court abused its discretion, in violation of the Sixth and Fourteenth

       Amendments to the United States Constitution, when it denied the motion

       to withdraw guilty plea and when the court failed to hold a hearing on the

       motion.

       {¶7} Prior to entering his plea, appellant addressed the three-judge panel and asked

if “some time could be knocked off” his sentence.         The judge advised him, “if you

accept a plea, as has been outlined to the Court, * * * we have no power to modify the

sentence.   The sentence is required to be imposed by law.       Do you understand that?”

Appellant responded, “Yes, sir.”      The judge expounded, “if you plead to the charges in

the first count of the indictment presented, we have no discretion.     We have no choice

but to impose a sentence of life imprisonment. * * * [T]here’s nothing that we can do
with regard to your sentence, with regard to modifying the potential sentence. Do you

understand that?”    Again, appellant responded, “Yes, sir.”

       {¶8} The prosecutor detailed the terms of the proposed plea, which included an

agreement that “the minimum sentence allowable by law in this case, life imprisonment

with no parole eligibility until having served the full 20 years, plus three years for the gun

specification, which has to be served prior to and consecutive with the sentence of life

imprisonment.”      After conferring with appellant, defense counsel indicated to the

three-judge panel that appellant

       has always had some concern about what the parole board might do,
       whether or not there’s a potential for good time or not. We advised him
       that he has to count on the 23 years; that there could be no promise in terms
       of what the parole board may do now or in the future with good time. But
       he needs to count on that mandatory sentence. And that was the only
       question, and we cleared it up.

       {¶9} Then, appellant informed the court that he understood the plea and the

consequences. However, he indicated that he was considering pursuing trial in light of

being advised that he should expect to serve 23 full years before his parole eligibility. A

recess was taken in order to allow appellant some time to reconsider the plea.     When the

proceeding resumed, appellant expressed his desire to go forward with the guilty plea.

       {¶10} The trial court accepted appellant’s guilty plea and imposed sentence as

follows:

       [P]ursuant to statute and the plea agreement which has been stated here in
       open court, you are hereby sentenced to a term of 20 years to life
       imprisonment without the possibility of parole before 20 years. In addition,
       you are also sentenced to a three-year actual incarceration for the gun
           specification to be served consecutively with the 20 years-to-life term of
           actual incarceration.

           {¶11} The remaining counts of appellant’s indictment were dismissed.

           {¶12} Appellant maintains that his plea was invalid and contends that his sentence

is void because the trial court did not advise him of the terms of parole set forth in R.C.

2967.16.1 Both of appellant’s assignments of error are predicated on his misconception

that the trial court was obligated to advise him of parole and explain it. In arguing that

parole is part of his sentence, appellant attempts to equate parole to postrelease control.

The Ohio Supreme Court, however, explicitly distinguished parole from postrelease

control in terms of compliance with Crim.R. 11 and plea validity. State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.

           {¶13} “When a sentence includes mandatory postrelease control, the trial judge

must inform the defendant of that fact in the plea colloquy or the plea will be vacated.”

Id. at ¶ 35, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,

paragraph two of the syllabus. However, an individual, such as appellant, who was

sentenced for an unclassified felony is not subject to postrelease control, and the trial

court is “not required to discuss postrelease control or parole under Crim.R. 11(C)(2).”

Id. at ¶ 38.        “Because parole is not certain to occur, trial courts are not required to

explain it as part of the maximum possible penalty in a Crim.R. 11 colloquy.” Id. at ¶

37. Therefore, the trial court’s failure to address the terms of R.C. 2967.16 prior to

           1
               This statute governs restoration of rights and privileges upon a paroled prisoner’s final
release.
accepting appellant’s guilty plea to an unclassified felony did not invalidate his plea or

create a void sentence.

       {¶14} Appellant argues that the trial court abused its discretion by denying his

motion to withdraw his guilty plea without holding a hearing. Where the basis for denial

of a motion to withdraw a guilty plea is clearly warranted, the trial court is not obligated

to hold a hearing. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d

355, ¶ 51, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992).        Appellant

based his motion to withdraw his guilty plea on his misinterpretation of the law addressed

previously herein, and therefore, the trial court’s denial of the motion was clearly

warranted.

       {¶15} Appellant’s assignments of error are overruled.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
