[Cite as State v. Roper, 2019-Ohio-775.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      28965

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DARRNELL ROPER                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.    CR 2010-12-3374 (A)
                                                      CR 2011-11-3219 (A)
                                                      CR-2012-07-2095

                                 DECISION AND JOURNAL ENTRY

Dated: March 6, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Darrnell Roper, appeals from an order denying his motion to vacate his

guilty pleas in the Summit County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In August of 2012, Mr. Roper had three pending criminal cases before Judge

Elinore Marsh Stormer. He resolved all three cases simultaneously in the trial court by pleading

guilty to: (1) a charge of intimidation in CR 2012-07-2095; (2) charges of aggravated burglary

with firearm and criminal gang activity specifications, aggravated robbery with firearm and

criminal gang activity specifications, and participating in a criminal gang in CR 2011-11-

3219(A); and (3) a community control violation in CR 2010-12-3374(A), in which the

underlying conviction was trafficking in marijuana. The trial court accepted his guilty pleas,

found him guilty, and sentenced him to a total aggregate prison term of 9 years and 11 months,
                                                2


which included a 4-year mandatory term. After his sentence was imposed, a discussion occurred

on the record as to when Mr. Roper would be eligible to file for judicial release, and he was

misinformed that he would be eligible to file after serving 4 years of his prison sentence. Mr.

Roper’s sentencing entries also incorrectly stated: “The Defendant will be eligible for judicial

release after serving Four (4) years.”

       {¶3}    On appeal by the State, this Court reversed and remanded the matter for

resentencing in case CR 2011-11-3219(A) because the trial court incorrectly sentenced Mr.

Roper on two specifications even though the underlying offense for those specifications had been

merged with another allied offense for purposes of sentencing. State v. Roper, 9th Dist. Summit

Nos. 26631 and 26632, 2013-Ohio-2176, ¶ 11-12. Upon remand, the trial court, now presided

over by Judge Jane Davis, resentenced Mr. Roper in accordance with our decision. The re-

sentencing entry again incorrectly stated: “The Defendant may apply for judicial release after

serving the mandatory Four (4) year sentence imposed in this case.” (Emphasis sic.)

       {¶4}    In March of 2016, Mr. Roper filed a motion for judicial release, which was denied

by the trial court, now presided over by Judge Todd McKenney, after a phase one hearing. In

November of 2016, Mr. Roper filed a motion to vacate his guilty pleas, claiming (1) the court

informed him he could file for judicial release after 4 years, (2) he would not have pled guilty if

he was not eligible for judicial release after 4 years, (3) it was his understanding that judicial

release would be granted after 4 years, and (4) a manifest injustice occurred when he relied on a

promise of judicial release after 4 years despite the fact that he would be ineligible to file for

judicial release at that time. After a hearing, the trial court, now presided over by Judge Alison

Breaux, denied the motion and this appeal followed.
                                                  3


       {¶5}    Mr. Roper now appeals from the order denying his motion to vacate his guilty

pleas and raises one assignment of error for this Court’s review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION                                BY    DENYING
       APPELLANT’S MOTION TO VACATE HIS PLEA

       {¶6}    In his sole assignment of error, Mr. Roper argues that the trial court erred in

denying his motion to vacate his guilty plea because he was induced to plead guilty based on the

court’s unfulfilled or unfulfillable promise that he could file for judicial release after serving only

4 years of his sentence. We disagree.

       {¶7}    Pursuant to Crim.R. 11(C)(2)(a), a trial court shall not accept a guilty plea to a

felony offense unless it “[d]etermin[es] that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and, if

applicable, that the defendant is not eligible for probation or for the imposition of community

control sanctions at the sentencing hearing.” Judicial release eligibility “is not one of the items

in Crim.R. 11(C)(2)(a) that the trial court is required to determine a defendant’s understanding of

when he or she enters a guilty plea.” State v. Foster, 1st Dist. Hamilton No. C-170245, 2018-

Ohio-4006, ¶ 24. Thus, a trial court need not inform a defendant about his eligibility for judicial

release unless it is incorporated into a plea bargain. State v. Aguilar, 9th Dist. Wayne No.

10CA0051, 2011-Ohio-6008, ¶ 12. If the court chooses to offer an expanded explanation of the

law in a Crim.R. 11 plea colloquy, however, the information conveyed must be accurate. State v.

Clarke, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 39.

       {¶8}    “‘One who enters a guilty plea has no right to withdraw it.’” State v. Brown, 9th

Dist. Summit No. 24831, 2010-Ohio-2328, ¶ 8, quoting State v. Xie, 62 Ohio St.3d 521, 526
                                                  4


(1992). Nevertheless, Crim.R. 32.1 provides: “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 defendant bears the burden of demonstrating the existence of a “manifest

injustice,” which has been defined as a “‘clear or openly unjust act.’” Brown at ¶ 9, quoting

State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998). “‘Manifest injustice relates to

some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is

inconsistent with the demands of due process.’” State v. Ruby, 9th Dist. Summit No. 23219,

2007-Ohio-244, ¶ 11, quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-

6123, ¶ 5.    “Under the manifest injustice standard, a post-sentence ‘withdrawal motion is

allowable only in extraordinary cases.’” Brown at ¶ 9, quoting State v. Smith, 49 Ohio St.2d 261,

264 (1977).

       {¶9}    “Accordingly, ‘the decision whether to grant a motion to withdraw a guilty plea

rests within the sound discretion of the trial court,’ and this Court ‘will not reverse a trial court’s

denial of a motion to withdraw a plea absent an abuse of discretion.’” State v. Milano, 9th Dist.

Summit No. 28674, 2018-Ohio-1367, ¶ 6, quoting State v. Pippert, 9th Dist. Lorain No.

14CA010698, 2016-Ohio-1352, ¶ 16. An abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying an abuse of discretion standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶10} A plea hearing was held on August 20, 2012, to resolve Mr. Roper’s three cases,

in which the prosecutor advised the court as to the Crim.R. 11 plea negotiations, specifically that
                                                  5


Mr. Roper would be pleading guilty with no agreement between the parties as to what sentence

he would receive. The prosecutor stated that he understood the court intended to impose a

sentence of 9 years and 11 months, but he was nonetheless requesting a longer sentence. The

prosecutor made no mention of any agreement as to the filing for or granting of judicial release.

Immediately following the prosecutor’s representation of the plea negotiations to the court,

defense counsel stated, “What the [p]rosecutor has told you is correct[,]” and made no mention

of any agreement as to the filing for or granting of judicial release. After a lengthy discussion

regarding the firearm specifications, the court asked defense counsel if there was “[a]nything

additional * * *?” Counsel replied, “No, Judge. I think you understand all the facts and

circumstances of the case. And I’d ask the Court to impose a sentence that you’ve indicated you

are thinking about.”

       {¶11} The court accepted Mr. Roper’s guilty pleas in CR 2012-07-2095 and CR 2011-

11-3219(A) as knowingly, intelligently, and voluntarily made, found him guilty, and asked him

if there was anything he wished to say before sentence was imposed. Mr. Roper replied, “No[,]”

and made no mention of any agreement regarding the filing for or granting of judicial release.

       {¶12} The court then addressed the community control violation in CR 2010-12-

3374(A), accepted Mr. Roper’s guilty plea as knowingly, intelligently, and voluntarily made, and

found him guilty of the community control violation. After a brief sidebar that was not made

part of the record, the court asked the attorneys if they had anything to add, but again neither one

mentioned the filing for or granting of judicial release.

       {¶13} Although Mr. Roper faced a potential maximum sentence of over 40 years in

prison for these three cases, the court sentenced him to an aggregate total of 9 years and 11
                                               6


months in prison. After the court imposed its sentence on all three cases, the following exchange

occurred between the court and Mr. Roper on the record:

       THE COURT: Do you know why I have chosen the nine years and eleven months?

       THE DEFENDANT: So I didn’t have to do ten? I was eligible for judicial?

       THE COURT: What does that mean to you?

       THE DEFENDANT: I need to go down and do what I’ve got to do. Change my life and
       come home.

       THE COURT: And show the world that you can be a different person. That is, frankly, a
       gift to you.

       But it also recognizes that no matter what your sentence is, you’re going to get out. And
       my preference would be that you get out in a way that is very controlled so that you can
       make a decision about changing your life that you need to make. Because one day, you
       will be back with us, regardless.

       {¶14} After further conversations, the following exchange occurred between the court

and the attorneys on the record:

       THE COURT: Okay. You would be eligible, potentially, for judicial release after you
       complete five years and six months, I believe is what we decided.

       MR. WHITNEY: I believe it may be four.

       THE COURT: But my understanding is that the minimum would be five.

       MR. WHITNEY: I think it may be four.

       THE COURT: No. He has to do five before he’s eligible. If he served - -

       MR. HOWELL: It’s four now.

       THE COURT: Is it four?

       MR. HOWELL: It’s four.

       THE COURT: Okay.

       MR. HOWELL: He’s eligible.
                                                   7


        And I also just want to put on the record the State is going to oppose any judicial release
        for Mr. Roper.

After further discussions as to the ramifications of his crimes, Mr. Roper remarked, “I probably

won’t even get the judicial.” The trial court’s sentencing entries also state that Mr. Roper would

be eligible to file for judicial release after serving 4 years of his prison sentence.

        {¶15} On appeal, the parties do not dispute that Mr. Roper is, in fact, not eligible to file

for judicial release after serving only 4 years of his prison sentence. The trial court recognized

this as well in its order denying Mr. Roper’s motion to withdraw his guilty plea by stating, “This

[c]ourt acknowledges its prior Journal Entries are incorrect and contrary to law with regard to the

Defendant’s eligibility to apply for judicial release.” At the time of his plea and sentencing

hearing, Former R.C. 2929.20(C)(4) permitted eligible offenders in Mr. Roper’s situation to file

a motion for judicial release under the following guidelines:

        If the aggregated nonmandatory prison term or terms is more than five years but
        not more than ten years, the eligible offender may file the motion not earlier than
        five years after the eligible offender is delivered to a state correctional institution
        or, if the prison term includes a mandatory prison term or terms, not earlier than
        five years after the expiration of all mandatory prison terms.

(Emphasis added.) Mr. Roper’s 9-year and 11-month sentence included a 4-year mandatory

term, thus enabling him under Ohio law to file for judicial release only after serving 9 years of

his total aggregate prison term.

        {¶16} Mr. Roper argues that the trial court’s misstatement of the law regarding judicial

release induced him to plead guilty, and because this promise of eligibility to file for judicial

release after 4 years was unfulfilled or unfulfillable, a manifest injustice has occurred.

        {¶17} “A plea is invalid where it has not been entered in a knowing, intelligent, and

voluntary manner.” State v. Farnsworth, 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919,

¶ 4. Moreover, “[a] guilty plea induced by ‘unfulfilled or unfulfillable promises,’ made by either
                                                 8


the prosecution, the court, or defendant’s counsel is not voluntary.” State v. Hawk, 81 Ohio

App.3d 296, 299 (9th Dist.1992), quoting Brady v. United States, 397 U.S. 742, 755 (1970).

       {¶18} Although the record includes discussions in open court as to when Mr. Roper

would be eligible to file for judicial release—and the attorneys and court incorrectly determined

that Mr. Roper would be eligible after only serving 4 years—those discussions occurred after the

court had already conducted its Crim.R. 11 plea colloquy with Mr. Roper, accepted his guilty

pleas, found him guilty, and imposed its sentence. The record does not include any discussions

regarding judicial release on the record prior to the trial court’s acceptance of Mr. Roper’s guilty

pleas and imposition of his sentence. Furthermore, Mr. Roper signed written pleas of guilty in

cases CR 2012-07-2095 and CR 2011-11-3219(A), both of which include the following

statement:

       I have been fully advised by my attorney of the Criminal Rule 11(F) plea
       negotiations which have also been stated in open court and I accept those
       negotiations as my own. I understand the nature of these charges and the possible
       defenses I might have. I am satisfied with my attorney’s advice and competence.
       I am not under the influence of drugs or alcohol. No threats have been made to
       me. No promises have been made except as part of this plea agreement stated
       entirely as follows:

(Emphasis added.) The above paragraph is immediately followed by three blank lines, an area

provided for the parties to indicate any essential terms of the plea agreement in writing. That

entire area in both of Mr. Roper’s written pleas of guilty remains blank, making no reference to

any agreement permitting Mr. Roper to file for judicial release after serving 4 years or any other

noteworthy terms of the negotiated plea agreement.

       {¶19} Mr. Roper attached his own signed affidavit to the motion to vacate his guilty

pleas, in which he avers: (1) the trial court promised he would be eligible for judicial release

after 4 years; (2) he pled guilty based on that representation by the court; (3) he would not have
                                                 9


pled guilty if he was not eligible for judicial release after 4 years; and (4) he understood that he

was going to receive judicial release after 4 years. We note that, “[g]enerally, a self-serving

affidavit or statement is insufficient to demonstrate manifest injustice.” State v. Croskey, 5th

Dist. Richland No. 2017 CA 0102, 2018-Ohio-2078, ¶ 17. At the evidentiary hearing on August

22, 2017, Mr. Roper’s trial counsel testified that he discussed judicial release with both the

prosecutor and trial court “in chambers” and then again privately with Mr. Roper prior to his

plea. Counsel believed that Mr. Roper’s eligibility for judicial release was a factor in his

decision to plead guilty. Counsel conceded that there was no promise judicial release would be

granted, but he testified that the court indicated there “could be substantial consideration” for

judicial release. Mr. Roper also testified at the hearing that he decided to enter a guilty plea once

his attorney told him he could receive judicial release. He further testified that the trial court’s

promise of judicial release induced him to plead guilty and that he would not have pled guilty

without that promise of judicial release.

       {¶20} Contrary to appellate counsel’s assertion during oral arguments, the trial court, in

its order denying Mr. Roper’s motion to vacate his pleas, did not find that a manifest injustice

had occurred. Instead, the trial court determined that Mr. Roper failed to show his plea was

actually induced by any misinformation relayed to him at his plea and sentencing hearing.

Although defense counsel testified that the topic of judicial release was discussed in chambers

between the court and attorneys, and later between defense counsel and Mr. Roper, the trial court

concluded that no actual agreement that Mr. Roper could file for judicial release after serving 4

years could be found anywhere in the record. During the extensive plea colloquy, neither Mr.

Roper nor his attorney indicated any promises were made regarding the filing for or granting of

judicial release.   The trial court further noted that, on the record, the court and attorneys
                                                10


expressed a difference of opinion as to when Mr. Roper would be eligible to file for judicial

release, which would have been “unnecessary and illogical” had there been an agreement. The

court ultimately concluded that Mr. Roper was not induced to enter his pleas of guilty by any

promises related to judicial release.

       {¶21} After a review of the entire record, we cannot conclude that the trial court’s

decision was unreasonable, arbitrary, or unconscionable.         Mr. Roper’s affidavit and the

testimony presented at the evidentiary hearing do not establish that a manifest injustice occurred,

but instead simply conflict with the evidence gleaned from the two written pleas of guilty and

transcript of the plea and sentencing hearing. No discussion occurred on the record regarding the

filing for or granting of judicial release prior to Mr. Roper entering his guilty pleas and being

sentenced. Mr. Roper signed two written pleas of guilty explicitly stating that no promises were

made to him as a part of his plea agreement, and the area reserved for the parties to note any

specific terms of the plea agreement is conspicuously blank in both documents. Although he

faced over 40 years in prison, Mr. Roper was aware that the court intended to only sentence him

to 9 years and 11 months in prison if he pled guilty in these three cases, despite the State’s

recommendation for a longer sentence. During the post-sentence discussion regarding judicial

release, Mr. Roper stated that he “probably won’t even get [judicial release,]” strongly indicating

that any ability to file for judicial release after a certain number of years did not induce him to

plead guilty. Therefore, we find no merit in Mr. Roper’s argument that the misinformation

provided by the trial court as to the filing or granting of judicial release somehow induced him to

plead guilty, as those statements were only made after he pled guilty and was sentenced. See

State v. Stewart, 4th Dist. Lawrence No. 09CA33, 2011-Ohio-181, ¶ 8, fn. 2 (determining that a
                                                 11


trial court’s misstatement regarding judicial release eligibility does not induce a guilty plea when

it occurs during sentencing, after a guilty plea was entered).

       {¶22} We conclude that Mr. Roper has failed to meet his burden of demonstrating that a

manifest injustice has occurred. The trial court’s conclusion that Mr. Roper was not induced to

plead guilty by any judicial release promises is supported by competent and credible evidence

within the record. We therefore conclude that the trial court did not err or abuse its discretion in

denying Mr. Roper’s motion to vacate his guilty pleas.

       {¶23} Accordingly, Mr. Roper’s sole assignment of error is overruled.

                                                III.

       {¶24} Mr. Roper’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                12


         Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT




CALLAHAN, J.
CONCURS.

CARR, J.
DISSENTING.

         {¶25} I respectfully dissent. There is no dispute that the trial court misinformed Roper

at the sentencing hearing that he would be eligible for judicial release after serving four years of

his sentence. It is further undisputed that his sentencing entries contained inaccuracies regarding

his eligibility for judicial release. Relying on those statements, Roper would not have contested

that issue on direct appeal.

         {¶26} A review of the transcript reveals that at the time Roper entered his guilty pleas,

he was proceeding with the understanding that he would be eligible for judicial release after four

years. While the majority stresses that the judicial release discussion occurred after Roper was

sentenced, that conversation provides a window into the parties’ mindset at the time of the plea

colloquy.    Roper’s statements on the record indicate that he believed that the trial court

intentionally fashioned his sentence with the judicial release date in mind. Both the prosecutor

and defense counsel were operating with that understanding as well. Under these circumstances,

I would conclude that a manifest injustice occurred and I would sustain Roper’s assignment of

error.
                                         13


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
