[Cite as State v. Sage, 2013-Ohio-3048.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.      25453

v.                                                  :            T.C. NO.    04CR1574

GORDON W. SAGE                                      :            (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                           ..........

                                           OPINION

                         Rendered on the     12th       day of        July       , 2013.

                                           ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GORDON W. SAGE, #A458-271, London Correctional Institute, P. O. Box 69, London,
Ohio 44130
      Defendant-Appellant

                                           ..........

FROELICH, J.

                 {¶ 1} Gordon W. Sage appeals from a judgment of the Montgomery County
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Court of Common Pleas, which denied his “motion for rescission of contractual agreement,”

which the trial court construed as a petition for post-conviction relief.   The trial court

found that Sage’s motion was untimely and was barred by res judicata. For the following

reasons, the trial court’s judgment will be affirmed.

                                               I.

       {¶ 2}    In September 2004, Sage was indicted on two counts of aggravated murder

and one count each of aggravated burglary, aggravated robbery, and having weapons while

under disability.     The aggravated murder, aggravated robbery, and aggravated burglary

charges each had an accompanying firearm specification.

       {¶ 3}        On April 11, 2005, Sage pled guilty to all of the charges; the firearm

specifications were dismissed as part of the plea agreement.      Each of the plea forms

indicated that Sage was subject to a particular prison term, to post-release control, and to

particular penalties if he violated post-release control. The form for the having weapons

while under disability charge indicated that Sage faced “up to” three years of post-release

control after his release from prison. The other four forms stated that Sage faced “up to”

five years of post-release control.

       {¶ 4}    Sage was sentenced on April 28, 2005. The court imposed a life sentence

for each aggravated murder count, and merged the two sentences. The court sentenced Sage

to five years in prison for aggravated robbery and aggravated burglary, to be served

concurrently with each other but consecutively to the life sentence for the aggravated

murder. The court sentenced Sage to one year in prison for having weapons while under

disability, to be served concurrently with the other counts. All sentences were to be served
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concurrently with a sentence previously imposed on Sage in another case (Montgomery C.P.

No. 2003 CR 3406). Sage’s aggregate sentence was life plus five years, for which Sage

would be eligible for parole after 25 years.

       {¶ 5}    The trial court’s sentencing entry reflects that Sage was informed that,

following his release from prison, he would serve five years of post-release control for the

aggravated burglary and aggravated robbery. The entry further states that, with respect to

the aggravated murder, however, Sage was told that, if he were ever released, his sentence

included parole supervision by the Adult Parole Authority.

       {¶ 6}    Sage appealed from his conviction. He claimed that the court should have

granted him a continuance to obtain new counsel and that his sentence was unlawful under

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We concluded that

Sage’s guilty plea waived his right to appeal the denial of a continuance, because he had

been represented by counsel and his plea appeared to have been knowing, intelligent, and

voluntary. However, we vacated his sentence under Foster and remanded for resentencing.

 State v. Sage, 2d Dist. Montgomery No. 21097, 2007-Ohio-442.

       {¶ 7}    Prior to resentencing upon remand, Sage orally moved to withdraw his guilty

plea, asserting that (1) he believed a jury would reach a verdict of not guilty, and (2) he was

coerced to enter his plea. The trial court considered Sage’s motion as a post-sentence

motion to withdraw his plea and found no manifest injustice. The court then reimposed its

previous sentence. Sage appealed, arguing that the trial court erred in denying his motion to

withdraw his plea.      We affirmed the trial court’s ruling.       State v. Sage, 2d Dist.

Montgomery No. 22078, 2007-Ohio-6353.
[Cite as State v. Sage, 2013-Ohio-3048.]
        {¶ 8}     In March 2009, Sage filed a motion to vacate or set aside his sentence,

asserting under State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, that his

indictment for aggravated robbery failed to include the mens rea. The trial court held that

Sage’s motion was more properly a petition for post-conviction relief, that the motion was

untimely, that Sage waived any challenge to the indictment by pleading guilty, and that

Colon did not apply. Sage did not appeal the trial court’s ruling.

        {¶ 9}     In June 2012, Sage filed the instant “motion for rescission of contractual

agreement.” He argued that his plea agreements were invalid, because they all included

post-release control, even though parole, not post-release control, applied to the aggravated

murder charges. Sage further emphasized that the plea agreements stated that he was

subject to “up to” five years of post-release control for the aggravated robbery and

aggravated burglary charges and “up to” three years of post-release control for having

weapons while under disability.            Sage claimed that these errors rendered the plea

agreements void, and he asked to be brought to trial within 90 days.

        {¶ 10} The trial court denied the motion. It concluded that Sage’s motion was “the

functional equivalent of a petition for post-conviction relief” and found that the motion was

untimely. The court further stated that Sage’s motion “relates to the language on his plea

agreement.      The Defendant could have raised this argument on direct appeal and res

judicata precludes him from doing so now.”

        {¶ 11} Sage appeals from the trial court’s denial of his motion for rescission of

contractual agreement, raising two assignments of error. We will address them together.

                                                 II.

        {¶ 12} Sage’s assignments of error state:
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                THE TRIAL COURT ERRED IN CONVERTING APPELLANT’S

       DIRECT ATTACK INTO A COLLATERAL ATTACK AND THEN

       DEEMING IT UNTIMELY AND RES JUDICATA.

                THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT

       GRANTING RELIEF FROM A VOID JUDGMENT.

       {¶ 13} In his assignments of error, Sage contends that the trial court erred in

converting his motion for rescission to a petition for post-conviction relief. He states that

his motion “was tantamount to a withdrawal of guilty plea request.” Sage further argues

that the trial court erred in denying his motion.

       {¶ 14} It is well-established that a post-sentence motion to withdraw a plea is a

separate remedy from petitions for post-conviction relief. State v. Bush, 96 Ohio St.3d 235,

2002-Ohio-3993, 773 N.E.2d 522, ¶ 11. A post-conviction petition is a collateral civil

attack on the judgment, whereas a motion to withdraw a plea is part of the underlying

criminal case. Bush at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d

905 (1999). A petition for post-conviction relief must meet the timeliness requirements of

R.C. 2953.21.     In contrast, Crim.R. 32.1 does not contain a time limitation, although

timeliness may be a consideration in ruling on a motion to withdraw a plea. Bush at ¶ 14.

       {¶ 15} Sage has not argued that his motion met the timeliness requirements of a

petition for post-conviction relief. Based on the record, Sage’s motion, if construed as a

petition for post-conviction relief, was untimely. However, we need not decide whether the

trial court erred in treating Sage’s motion as a petition for post-conviction relief because,

even if the motion had been treated as a motion to withdraw his plea under Crim.R. 32.1 (as
                                                                                            6

Sage suggests), we would find no abuse of discretion in the trial court’s denial of the motion

without a hearing.

       {¶ 16}    Withdrawal of a guilty plea after sentencing is permitted only in the most

extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A

defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of

establishing manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002-Ohio-2278, ¶ 7, citing Smith at paragraph one of the syllabus.       “A manifest

injustice has been defined by the Ohio Supreme Court as a ‘clear or openly unjust act.’”

State v. Moore, 2d Dist. Montgomery No. 24387, 2011-Ohio-4546, ¶ 9, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Consideration of a

Crim.R. 32.1 motion is addressed to the sound discretion of the trial court, which assesses

the good faith, credibility and weight of the movant’s assertion in support of the motion.

State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); Smith at paragraph two of the

syllabus. Thus, an appellate court reviews the trial court’s decision under an abuse of

discretion standard. State v. Barnett, 73 Ohio St.3d 244, 596 N.E.2d 1101 (1991). An

abuse of discretion means “that the court’s attitude is unreasonable, arbitrary or

unconscionable.” State v. Adams, 62 Ohio St .2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 17} Sage’s original sentencing entry states that, if Sage were released from

prison with respect to the aggravated murder charges, he would be subject to parole under

the authority of the Adult Parole Authority. Sage did not claim on direct appeal that his

plea was not knowing, intelligent and voluntary due to the plea agreement’s inclusion of

post-release control, rather than parole, for the aggravated murder charges. And, upon
                                                                                              7

remand, when Sage orally moved to withdraw his plea, he did not seek to withdraw his plea

based on the fact that the plea agreements for the aggravated murder charges included

post-release control.

       {¶ 18} When Sage was resentenced in March 2007 (upon remand from his direct

appeal based on Foster), he was informed that the aggravated murder charges had parole

supervision whereas his other charges included post-release control. The sentencing entry

stated that “if the defendant is ever to be released by the Adult Parole Authority, the sentence

includes parole supervision as determined by the Adult Parole Authority.” Thus, although

Sage was again notified that he would be subject to parole supervision, rather than

post-release control, for the aggravated murder, he did not raise this discrepancy between the

plea agreements and his sentence in his subsequent appeal.

       {¶ 19} “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. State v. Perry (1967),

10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. Ohio

courts of appeals have applied res judicata to bar the assertion of claims in a motion to

withdraw a guilty plea that were or could have been raised at trial or on appeal. * * *.”

State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.

       {¶ 20}    Sage could have raised the inclusion of post-release control in his plea

agreements for aggravated murder and the improper notification of post-release control in

the plea agreements for his other offenses either on direct appeal from his convictions or in

his oral motion to withdraw his plea. Sage failed to raise these issues at either time.

Accordingly, the trial court did not err in concluding that Sage’s argument was barred by res
                                                                                            8

judicata. And even if these issues had been raised, Sage has failed to establish that he has

suffered a manifest injustice by the alleged errors in the plea forms.

       {¶ 21} On appeal, Sage further argues that the trial court erred in failing to grant

relief from a “void judgment.”

       {¶ 22} Plea agreements are contractual in nature and are subject to contract law

principles. Smith v. Ohio Adult Parole Authority, 2d Dist. Champaign No. 2009 CA 22,

2010-Ohio-1131, ¶ 36; State v. Dillon, 2d Dist. Darke No. 05 CA 1674, 2006-Ohio-4931, ¶

21. If one party breaches the plea agreement, the remedies for the breach include the

traditional contractual remedies of rescission and specific performance. State v. Johnson,

2d Dist. Greene No. 06 CA 43, 2007-Ohio-1743, ¶ 20, citing Santobello v. New York, 404

U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

       {¶ 23}     Plea agreements are generally made between the State and a defendant.

Unless the court involves itself in the plea negotiations or agrees to the terms of the

agreement, the trial court is not bound by the plea agreement, and the court may determine

the appropriate sentence for the charges to which the defendant has pled guilty or no contest.

 See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28.

       {¶ 24}     In his motion, Sage did not claim that the State breached the plea

agreements.     And based on the record, we find no indication that the trial court was

involved in the plea negotiations between Sage and the State. Rather, as stated above, Sage

asserted that his plea agreements were void due to defects regarding post-release control in

the written plea forms. On appeal, Sage contends that the trial court’s judgment is void and

unenforceable because the plea agreements were void.
                                                                                            9

       {¶ 25} Although Sage claims that the trial court’s judgment is void due to defects in

the plea agreement, the trial court’s sentencing entries did not contain the defects that Sage

alleges. Both Sage’s original 2005 sentencing entry and his March 2007 sentencing entry

indicated that Sage would serve “five years” of post-release control upon his release from

prison for Counts 14 and 15 (aggravated burglary and aggravated robbery, respectively). In

addition, the sentencing entries stated that, with respect to the aggravated murder charges,

the sentence included parole supervision should he ever be released. Because the trial

court’s 2007 sentencing entry (the most recent entry) properly imposed post-release control

for aggravated burglary and aggravated robbery and properly included parole for the

aggravated murder, the trial court’s sentencing entry is not void. Sage’s argument that the

trial court’s judgment is unenforceable lacks merit.

       {¶ 26}    The assignments of error are overruled.

                                             III.

       {¶ 27} The trial court’s judgment will be affirmed.



                                         ..........

FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Carley J. Ingram
Gordon W. Sage
Hon. Dennis J. Adkins
