[Cite as Ohio v. Montgomery, 2011-Ohio-6145.]


                                      COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
                                                :   W. Scott Gwin, P.J.
STATE OF OHIO,                                  :   Sheila G. Farmer, J.
                                                :   Julie A. Edwards, J.
                       Plaintiff-Appellee,      :
                                                :   Case No. 10CA42
v.                                              :
                                                :   OPINION

JEPHTHAH ISRAEL MONTGOMERY,

                   Defendant-Appellant.



CHARACTER OF PROCEEDING:                            Criminal Appeal from Guernsey
                                                    County Court of Common Pleas Case
                                                    No. 00-CR-155

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             November 28, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DANIEL G. PADDEN                                    MELISSA M. PRENDERGAST
Guernsey County Prosecuting Attorney                Assistant State Public Defender
139 West 8th Street,                                250 East Broad Street, Suite 1400
P.O. Box 640                                        Columbus, Ohio 43215
Cambridge Ohio, 43725
[Cite as Ohio v. Montgomery, 2011-Ohio-6145.]


Edwards, J.

        {¶ 1} Appellant, Jephthah Israel Montgomery, appeals a judgment of the

Guernsey County Common Pleas Court overruling his motion to withdraw his pleas of

no contest to two counts of aggravated murder (R.C. 2903.01(A)) with death penalty

specifications, one count of aggravated robbery (R.C. 2911.01(A)(1)) and one count of

aggravated burglary (R.C. 2911.11). Appellee is the State of Ohio.

                                  STATEMENT OF FACTS AND CASE

        {¶ 2} On May 8, 2001, appellant pleaded no contest to two counts of

aggravated murder with capital specifications, one count of aggravated robbery and one

count of aggravated burglary, pursuant to a negotiated plea. In exchange for the plea,

the State dismissed the remaining counts of the indictment and agreed to not seek the

death penalty.

        {¶ 3} The court held a sentencing hearing on November 6, 2001. The court

imposed concurrent terms of life imprisonment with parole eligibility after twenty-five

years for the aggravated murder convictions, and concurrent terms of nine years

imprisonment on the aggravated robbery and aggravated burglary convictions.

Appellant did not appeal this judgment.

        {¶ 4} On August 9, 2010, appellant filed a pro se motion to withdraw his guilty

plea pursuant to Crim. R. 32.1. Appellant claimed that his sentence was void because

the court improperly imposed postrelease control, and that his plea was not knowing,

intelligent, and voluntary because it was based on “race-based threats regarding false

information in indictment by defense counsel.” The trial court overruled the motion.

Appellant assigns two errors on appeal:
Guernsey County App. Case No. 10-CA42                                                                   3


        {¶ 5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR.

MONTGOMERY’S MOTION TO WITHDRAW HIS NO CONTEST PLEAS BY

INCORRECTLY APPLYING THE POST SENTENCE STANDARD PROVIDED BY

CRIMINAL        RULE      32.1    INSTEAD        OF     THE     STANDARD          APPLICABLE          TO

PRESENTENCE MOTIONS TO WITHDRAW.

        {¶ 6} “II. THE TRIAL COURT ERRED BY ACCEPTING MR. MONTGOMERY’S

NO CONTEST PLEA AND SENTENCING HIM FOR AGGRAVATED MURDER WITH

CAPITAL SPECIFICATIONS WITHOUT ANY RECORDED DELIBERATION OR

DETERMINATION BY A THREE-JUDGE PANEL AS TO THE APPROPRIATENESS

OF THE CHARGE, WITHOUT ANY FINDING ON THE RECORD THAT AGGRAVATED

MURDER HAD BEEN PROVEN BEYOND A REASONABLE DOUBT, AND WITHOUT

JOURNALIZING A FINDING OF GUILT.                        ACCORDINGLY, HE HAS NO VALID

CONVICTION AND HIS SENTENCE IS VOID.”

                                                        I

        {¶ 7} In his first assignment of error, appellant argues that the court erred in

applying the “manifest injustice” standard which is applied to a postsentence motion to

withdraw a plea pursuant to Crim. R. 32.1. Appellant argues that because the trial court

failed to impose postrelease control at the time he was sentenced for aggravated

robbery and aggravated burglary, his sentence is void and the court should have

applied the more liberal presentence standard to his motion to withdraw his plea, citing

State v. Boswell, 121 Ohio St. 3d 575, 906 N.E.2d 422, 2009-Ohio-1577.1



1
  Appellant was convicted of two counts of aggravated murder; however, aggravated murder is an
unclassified felony to which the postrelease control statute does not apply. R.C. 2967.28; State v. Clark,
119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-3748.
Guernsey County App. Case No. 10-CA42                                                   4

        {¶ 8} In Boswell, supra, the Ohio Supreme Court held that a motion to withdraw

a plea, filed in a case where the sentence was void due to the trial court’s failure to

impose postrelease control at sentencing, must be deemed to be a presentence motion

to withdraw a plea due to the necessity of treating a void sentence as a nullity. Id.

However, subsequent to Boswell, the Ohio Supreme Court held that only the portion of

the sentence concerning postrelease control is void:

        {¶ 9} “We similarly hold that when a judge fails to impose statutorily mandated

postrelease control as part of a defendant's sentence, that part of the sentence is void

and must be set aside. Neither the Constitution nor common sense commands anything

more.

        {¶ 10} “This principle is an important part of the analysis of void sentences that

we have not focused upon in prior cases involving postrelease control, including Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the portion of

the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or pleads guilty to

one or more offenses and postrelease control is not properly included in a sentence for

a particular offense, the sentence for that offense is void,’ but with the added proviso

that only the offending portion of the sentence is subject to review and correction.

        {¶ 11} “However, we now modify the second sentence in the Bezak syllabus as

ill-considered. That sentence states that the offender is entitled to a new sentencing

hearing for the offense for which postrelease control was not imposed properly. 114

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a principle that

we overlooked in Bezak: when an appellate court concludes that a sentence imposed
Guernsey County App. Case No. 10-CA42                                                    5


by a trial court is in part void, only the portion that is void may be vacated or otherwise

amended.

       {¶ 12} “Therefore, we hold that the new sentencing hearing to which an offender

is entitled under Bezak is limited to proper imposition of postrelease control.” State v.

Fischer, 128 Ohio St.3d 92, 99, 942 N.E.2d 332, 340–341, 2010-Ohio-6238, ¶26-29.

       {¶ 13} This Court has concluded that because the convictions and remaining

portion of the original sentence remain valid based on the Supreme Court’s holding in

Fischer, a motion to withdraw a plea made prior to resentencing to correct the

postrelease control portion of the sentence is properly addressed as a post-sentence

motion. Accordingly, the court in the instant case did not err in addressing appellant’s

motion based on the “manifest injustice” standard applicable to a post-sentence motion

to withdraw a plea.

       {¶ 14} The first assignment of error is overruled.

                                                II

       {¶ 15} In his second assignment of error, appellant argues that the trial court

erred in accepting his no contest plea and sentencing him to two counts of aggravated

murder with capital specifications without complying with R.C. 2945.06, which requires

findings by a three-judge panel. He argues his original sentencing entry is not final and

appealable because it does not set forth the plea, verdict or finding of the court on which

the conviction is based, citing State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163,

2008-Ohio-3330, and that this issue is therefore properly before this Court.

       {¶ 16} The Ohio Supreme Court has recently modified Baker:
Guernsey County App. Case No. 10-CA42                                                     6


       {¶ 17} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.”

State v. Lester, 2011-Ohio-5204, paragraph one of the syllabus. In the instant case, the

November 6, 2001, sentencing entry sets forth the fact of the conviction, the judge’s

signature, and the time stamp indicating entry upon the journal by the clerk of courts.

Accordingly, this entry was final and appealable on November 6, 2001.

       {¶ 18} An alleged violation of R.C. 2945.06 may only be remedied in a direct

appeal from the conviction and sentence. Kirklin v. Enlow, 89 Ohio St.3d 455, 732

N.E.2d 982, 2000-Ohio-217. See also Pratt v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d

992, 2004-Ohio-1980 (failure of court to convene a three-judge panel, as required by

R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders the

court's judgment void ab initio, and the issue must be raised on direct appeal).

Appellant failed to timely file a direct appeal from his November 6, 2001, sentencing

entry, which was a final, appealable order, and he cannot now raise the issue for the

first time on appeal from a judgment denying his motion to withdraw his plea.

       {¶ 19} The second assignment of error is overruled.



                  The judgment of the Guernsey County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. and Farmer, J. concur.
[Cite as Ohio v. Montgomery, 2011-Ohio-6145.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
JEPHTHAH ISRAEL MONTGOMERY                      :
                                                :
                       Defendant-Appellant      :       CASE NO. 10CA42




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Guernsey County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                    _________________________________


                                                    _________________________________


                                                    _________________________________

                                                                 JUDGES
