[Cite as State v. Coats, 2009-Ohio-3534.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY


STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                    CASE NO. 10-09-04

    v.

DOUGLAS N. COATS,                                            OPINION

    DEFENDANT-APPELLANT.


STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                    CASE NO. 10-09-05

    v.

DOUGLAS N. COATS,                                            OPINION

    DEFENDANT-APPELLANT.


                  Appeal from Mercer County Common Pleas Court
                            Trial Court No. 05-CRM-077
                            Trial Court No. 05-CRM-078

      Judgments Affirmed in Part, Reversed in Part and Cause Remanded

                               Date of Decision: July 20, 2009




APPEARANCES:

         Douglas Coats, Appellant

         Matthew K. Fox for Appellee
Case No. 10-09-04, 05



ROGERS, J.

        {¶1} Defendant-Appellant, Douglas Coats, appeals the judgments of the

Mercer County Court of Common Pleas denying his Crim.R. 32.1 motions to

withdraw his guilty pleas. On appeal, Coats argues that the trial court erred in

denying his motions because it failed to advise him prior to accepting his guilty

pleas of the mandatory term of postrelease control and that it was not bound by the

State’s sentencing recommendation; and, because the trial court failed to conduct a

proper inquiry into whether his pleas were voluntarily given after he informed the

trial court that he was on anti-depressant medication. Finding that Coats’ claims

are barred by res judicata, but that his sentence is void, we affirm in part, and

reverse in part, the judgments of the trial court.

        {¶2} This case comes before us as a consolidated appeal of trial court

cases numbered 05-CRM-077 and 05-CRM-078.1 In June 2005, in trial court case

number 05-CRM-077, the Mercer County Grand Jury indicted Coats on thirteen

counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of

the third degree, and, in trial court case number 05-CRM-078, the Mercer County

Grand Jury indicted Coats on one additional count of gross sexual imposition in

violation of R.C. 2907.05(A)(4), also a felony of the third degree.




1
 We note that appellate case number 10-09-04 corresponds to trial court case number 05-CRM-077, and
appellate case number 10-09-05 corresponds to trial court case number 05-CRM-078.


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        {¶3} In August 2005, Coats entered pleas of not guilty to all counts in

both indictments.

        {¶4} In September 2005, pursuant to a plea agreement, Coats withdrew

his not guilty pleas and entered a plea of guilty to counts one, seven, and thirteen

of the indictment in trial court case number 05-CRM-077, and entered a plea of

guilty to the one count indictment in trial court case number 05-CRM-078. The

State then entered a nolle prosequi on the remaining counts. Additionally, as part

of the plea agreement, the State agreed to recommend a three-year prison term on

each count in case number 05-CRM-077, to be served consecutively to each other,

and a three-year prison term in case number 05-CRM-078, to be served

concurrently to the sentence in 05-CRM-077, for an aggregate nine-year prison

term.   Prior to accepting Coats’ guilty pleas, the trial court conducted a full

Crim.R. 11 plea colloquy, specifically stating:

        [Trial Court]: Despite the jointly recommended plea agreement,
        I need to advise you of the maximum penalty that the court
        could impose. For each charge of gross sexual imposition, a
        felony of the third degree, you could be sentenced to five years in
        prison and be fined $10,000. Do you understand that?

        [Coats]: Yes, your Honor.

        [Trial Court]: So the maximum penalty for these four charges,
        three in Case No. 77 and one in Case No. 78, would be four times
        that or twenty years in prison plus a fine of $40,000. Do you
        understand that?

        [Coats]: Yes, your Honor.



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Case No. 10-09-04, 05


       ***

       [Trial Court]: Are you now under the influence of any kind of
       medication, drugs, alcohol, or anything that would cause you not
       to understand what we’re doing here today?

       [Coats]: No, your Honor.

       ***

       [Coats]: They’ve got me on some anti-depressant medicine, but
       that’s not what you’re talking about now. Right?

       [Trial Court]: If that doesn’t have any affect on you
       understanding what we’re doing here today.

       [Coats]: Okay.

(Sept. 2005 Change of Plea Hearing, pp. 7-11). At no time did the trial court

advise Coats on the record that he would be subject to a mandatory term of

postrelease control at the conclusion of his prison sentence. However, prior to the

change of plea hearing, Coats signed a waiver of constitutional rights which

provided, in part:

       That if the Defendant is being sentenced for a felony of the first
       degree, or a felony of the second degree, for a felony sex offense,
       as defined in Section 2967.28 of the Revised Code, or for a felony
       of the third degree that is not a felony sex offense and in the
       commission of which the Defendant caused or threatened to
       cause physical harm to a person, that a period of post-release
       control pursuant to Section 2967.28 of the Revised Code will be
       imposed following the Defendant’s release from prison.

(Sept. 2005 Waiver of Constitutional Rights, p. 2).




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       {¶5} Additionally, prior to the change of plea hearing, Coats signed a

negotiated plea agreement which provided:

       POST RELEASE CONTROL. In addition, a period of
       supervision by the Adult Parole Authority after release from
       prison may be mandatory in this case. If I am sentenced to
       prison for a felony 1 or felony sex offense, after my release from
       prison I will have a mandatory 5 years of post release control
       under conditions determined by the Parole Board.

(Sept. 2005 Negotiated Plea Agreement, p. 3).

       {¶6} In November 2005, the trial court sentenced Coats to a three-year

prison term on each of the counts in cases numbered 05-CRM-077 and 05-CRM-

078, all to be served consecutively to each other, for a total twelve-year prison

term. At the sentencing hearing, the trial court also advised Coats that he would

be subject to five years of postrelease control upon the conclusion of his prison

sentence. However, the trial court’s sentencing entry failed to include the term of

postrelease control.

       {¶7} In July 2006, Coats filed a motion for resentencing, arguing that his

sentence was void because the trial court failed to advise him of the mandatory

term of postrelease control at sentencing.      However, in August 2006, Coats

withdrew the motion.

       {¶8} In April 2007, Coats appealed to this Court; however, we

subsequently denied his appeal as being untimely and for failing to set forth

sufficient reasons for a delayed appeal pursuant to App.R. 5(A).



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Case No. 10-09-04, 05


       {¶9} In July 2008, Coats filed a motion to withdraw his guilty pleas

pursuant to Crim.R. 32.1, arguing that his pleas were not knowingly, voluntarily,

and intelligently entered because the trial court failed to advise him that it was not

bound by the State’s sentencing recommendation in the plea agreement, and

because it failed to advise him that he would be subject to a mandatory term of

postrelease control upon the conclusion of his prison term.

       {¶10} In January 2009, the trial court denied Coats’ Crim.R. 32.1 motion,

finding the motion to be an untimely petition for postconviction relief pursuant to

R.C. 2953.21; that his claims were barred by res judicata because he failed to raise

them prior or subsequent to sentencing or on direct appeal; and, that he was aware

that the trial court was not bound by the State’s sentencing recommendation in the

plea agreement.

       {¶11} It is from the trial court’s denial of his motion to withdraw his guilty

pleas that Coats appeals, presenting the following pro se assignment of error for

our review.

       THE TRIAL COURT ERRED IN FAILING TO GRANT A
       PROPER MOTION FOR WITHDRAWAL OF PLEA,
       CONTRARY    TO    LAW  AND   CONSTITUTIONAL
       GAURANTEES. [SIC]

       {¶12} In his only assignment of error, Coats argues that the trial court erred

in failing to grant his motion to withdraw his guilty pleas pursuant to Crim.R.

32.1. Specifically, Coats argues that he should have been permitted to withdraw



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Case No. 10-09-04, 05


his guilty pleas because the trial court failed to advise him that he was subject to a

mandatory term of postrelease control, as required by State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, and that it was not required to follow the State’s

sentencing recommendation in the plea agreement, and because the trial court

failed to properly inquire into whether his pleas were knowing, voluntary, and

intelligent after he advised the trial court that he was taking prescription

medications at the time of the pleas.

       {¶13} Appellate review of a trial court’s denial of a motion to withdraw a

guilty plea pursuant to Crim.R. 32.1 is for an abuse of discretion. State v. Nathan

(1995), 99 Ohio App.3d 722, 725, citing State v. Smith (1977), 49 Ohio St.2d 261.

An abuse of discretion connotes more than an error of law or judgment and

implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL 777835, citing

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying an abuse

of discretion standard, a reviewing court may not simply substitute its judgment

for that of the trial court. Id.

       {¶14} Crim.R. 32.1 provides that:

       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.




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       {¶15} A Crim.R. 32.1 motion to withdraw a guilty plea will be considered

a presentence motion where the defendant filed the motion after the imposition of

a void sentence. Boswell, 121 Ohio St.3d 575, at ¶9. A presentence motion to

withdraw a guilty plea is to be freely and liberally granted. State v. Ramsey, 3d

Dist. No. 1-06-01, 2006-Ohio-2795, ¶5; State v. Xie (1992), 62 Ohio St.3d 521,

526. However, the right to withdraw a plea is not absolute. State v. Fell, 3d Dist.

No. 13-03-74, 2004-Ohio-1853, ¶4, citing Xie, 62 Ohio St.3d 521, at paragraph

one of the syllabus.

       {¶16} Furthermore, “under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding, except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been

raised by the defendant at the trial, which resulted in that judgment of conviction,

or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 1996-

Ohio-337, syllabus. Accordingly, res judicata will serve to bar all claims raised in

a Crim. R. 32.1 motion that were raised or could have been raised in a prior

proceeding. State v. Sanchez, 3d Dist. No. 4-06-31, 2007-Ohio-218, ¶18; State v.

McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22, citing State v.

Young, 4th Dist. No. 03CA782, 2004-Ohio-2711.

       {¶17} Here, the trial court found Coats’ motion to withdraw his guilty

pleas to be an untimely petition for postconviction relief pursuant to R.C. 2953.21.


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Case No. 10-09-04, 05


However, as the Supreme Court of Ohio has previously held, a Crim.R. 32.1

motion to withdraw a guilty plea should not be construed as a petition for

postconviction relief, as the two exist independently. State v. Bush, 96 Ohio St.3d

235, 238, 2002-Ohio-3993. See, also, State v. Driskill, 3d Dist. Nos. 10-08-10,

10-08-11, 2009-Ohio-2100, ¶33. As such, the trial court erred when it categorized

Coats’ motion as an untimely petition for postconviction relief. However, this

error alone does not warrant reversal, as untimeliness under R.C. 2953.21 was not

the only basis for the trial court’s denial of Coats’ motion. See Bonner v. Bonner,

3d Dist. No. 14-05-26, 2005-Ohio-6173, ¶18 (“A judgment by the trial court

which is correct, but for a different reason, will be affirmed on appeal as there is

no prejudice to the appellant”).

       {¶18} The trial court also found Coats’ claims in his Crim.R. 32.1 motion

barred by res judicata, as he failed to raise them prior or subsequent to sentencing,

or on direct appeal. Coats was fully aware at the time of sentencing that the trial

court, prior to accepting his plea, did not advise him on the record of the

mandatory term of postrelease control. Furthermore, Coats was also aware at the

time of sentencing of his two claimed errors: (1) that the trial court did not advise

him that it was not bound to accept the State’s sentencing recommendation within

the plea agreement, and (2) that it did not properly inquire into whether his pleas

were knowing, voluntary, and intelligent after he informed the trial court that he

was taking prescription medications at the time of the pleas.


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       {¶19} Accordingly, we find that res judicata operates to bar Coats’ claims

raised in his Crim.R. 32.1 motion, and, consequently, we find that the trial court

was correct in denying Coats’ motion on the basis of res judicata.

       {¶20} Although we have found Coats’ claims to be barred by res judicata,

in the interest of justice, we will summarily address his assignment of error. First,

we find to be without merit Coats’ argument that the trial court did not thoroughly

inquire into whether his pleas were knowing, voluntary, and intelligent after he

informed the court that he was on anti-depressant medication. The trial court

conducted a thorough Crim.R. 11 colloquy and specifically asked Coats whether

the anti-depressant medication was affecting his understanding of the plea

proceedings, to which Coats responded that it was not. Furthermore, the record

contains no evidence suggesting that Coats did not understand the nature or

significance of the proceeding or his pleas.   Consequently, because ‘“the record

shows [the trial court] substantially complied with the requirements of Crim.R.

11(C) and the totality of the circumstances shows the defendant subjectively

understood the implications of his plea[s],”’ State v. McGuire, 8th Dist. No.

86608, 2006-Ohio-1330, ¶14, quoting State v. Hyde, 8th Dist. No. 77592, 2001

WL 30205, we find no error in the trial court’s accepting of the pleas despite

Coats’ assertion that he was on anti-depressant medication.

       {¶21} Second, we also find to be without merit Coats’ assertion that he

should have been permitted to withdraw his pleas because the trial court did not


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inform him that it was not bound by the State’s sentencing recommendation in the

plea agreement. Although the trial court did not specifically state that it was not

bound by the sentencing recommendation, which would have been the preferred

practice, the trial court clearly implied such when it informed Coats of the

maximum possible penalty, stating that he could be sentenced to five years in

prison for each count “despite the jointly recommended plea agreement.” (Sept.

2005 Change of Plea Hearing, p. 7). Moreover, we have previously held that the

trial court is under no obligation to inform a defendant that it is not bound by a

sentencing recommendation, State v. Graham, 3d Dist. No. 14-04-28, 2005-Ohio-

1431, ¶11, and there is no evidence in the record evidencing that Coats’ pleas were

anything other than voluntary and intelligent. Consequently, we find that the trial

court did not err in failing to permit Coats to withdraw his guilty pleas because the

trial court did not specifically inform him that it was not obligated to follow the

State’s sentencing recommendation.

       {¶22} Finally, we reject Coats’ argument that his pleas were not knowing,

voluntary, and intelligent because the trial court failed to notify him that he would

be subject to postrelease control at the conclusion of his prison term.          The

Supreme Court of Ohio held in Sarkozy, 117 Ohio St.3d 86, that a reviewing court

must vacate a plea and remand to the trial court when the trial court fails to advise

a defendant during the plea colloquy that he will be subject to a mandatory term of

postrelease control, as such failure to advise results in a violation of Crim.R.


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11(C)(2)(a)’s requirement that the defendant be notified of the maximum penalty

involved. However, we have distinguished from Sarkozy the situation in which a

defendant did not seek to withdraw his plea prior to sentencing or on direct appeal,

and where the defendant was provided with actual notice of postrelease control

through a signed, written plea agreement and a signed, written waiver of

constitutional rights. See Driskill, 2009-Ohio-2100, at ¶37. In this situation, we

found that the defendant was properly advised of the maximum penalty involved

pursuant to Crim.R. 11(C)(2)(a), even though the trial court did not notify him

during the plea colloquy that he would be subject to postrelease control upon the

conclusion of his prison term. Id.

       {¶23} Here, Coats waited over two years after he was sentenced to seek a

withdrawal of his plea. Furthermore, although the trial court failed to advise Coats

prior to accepting his pleas that he would be subject to a term of postrelease

control, Coats signed both a written plea agreement and a waiver of constitutional

rights which provided that he would be subject to a term of postrelease control

following the expiration of his prison term. Consequently, we find that Coats was

properly informed of the maximum penalty involved as required by Crim.R.

11(C)(2)(a), and that the trial court did not err in denying his motion to withdraw

his guilty pleas.

       {¶24} Accordingly, we overrule Coats’ assignment of error.




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      {¶25} Although we have overruled Coats’ assignment of error, we also sua

sponte address the trial court’s failure to impose a term of postrelease control in

the sentencing entry, even though neither party has addressed the issue on appeal.

      {¶26} It is fundamental that “no court has the authority to substitute a

different sentence for that which is required by law.” State v. Simpkins, 117 Ohio

St.3d 420, 425, 2008-Ohio-1197, citing Colegrove v. Burns (1964), 175 Ohio St.

437, 438. Therefore, any sentence imposed that is unauthorized under the law is

unlawful and, consequently, void. Id.

      {¶27} R.C. 2929.14(F)(1) provides, in part:

      If a court imposes a prison term for a felony of the first degree,
      for a felony of the second degree, for a felony sex offense, or for
      a felony of the third degree that is not a felony sex offense and in
      the commission of which the offender caused or threatened to
      cause physical harm to a person, it shall include in the sentence a
      requirement that the offender be subject to a period of post-
      release control after the offender's release from imprisonment,
      in accordance with that division. * * * Section 2929.191 of the
      Revised Code applies if, prior to July 11, 2006, a court imposed a
      sentence including a prison term of a type described in this
      division and failed to include in the sentence pursuant to this
      division a statement regarding post-release control.

      {¶28} Additionally, R.C. 2967.28(B) provides:

      Each sentence to a prison term for a felony of the first degree,
      for a felony of the second degree, for a felony sex offense, or for
      a felony of the third degree that is not a felony sex offense and in
      the commission of which the offender caused or threatened to
      cause physical harm to a person shall include a requirement that
      the offender be subject to a period of post-release control
      imposed by the parole board after the offender's release from
      imprisonment. * * * Section 2929.191 of the Revised Code


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Case No. 10-09-04, 05


       applies if, prior to July 11, 2006, a court imposed a sentence
       including a prison term of a type described in this division and
       failed to notify the offender pursuant to division (B)(3)(c) of
       section 2929.19 of the Revised Code regarding post-release
       control or to include in the judgment of conviction entered on
       the journal or in the sentence pursuant to division (F)(1) of
       section 2929.14 of the Revised Code a statement regarding post-
       release control. Unless reduced by the parole board pursuant to
       division (D) of this section when authorized under that division,
       a period of post-release control required by this division for an
       offender shall be of one of the following periods:

       (1)    For a felony of the first degree or for a felony sex offense,
       five years;

       {¶29} Furthermore, R.C. 2929.19(B)(3)(c) requires the trial court to notify

the offender at sentencing if he will be supervised under R.C. 2967.28 after the

offender serves his prison sentence. Moreover, R.C. 2929.191 authorizes the trial

court to conduct a resentencing hearing and to correct the judgment of conviction

to notify the defendant of any term of postrelease control or to include any term of

postrelease control that should have been imposed pursuant to R.C. 2929.14(F)(1)

and R.C. 2967.28(B).

       {¶30} In interpreting both R.C. 2929.14(F) and R.C. 2929.19(B)(3)(c), the

Supreme Court of Ohio stated in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-

6085, paragraph one of the syllabus, that the trial court must provide notice to the

defendant of postrelease control both at the sentencing hearing and by

incorporating it into the sentencing entry. See, also, State v. Watt, 175 Ohio

App.3d 613, 619, 2008-Ohio-1009.




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        {¶31} Additionally in State v. Boswell, 121 Ohio St.3d 575, 577-578,

2009-Ohio-1577, the Supreme Court held that a trial court’s failure to impose a

mandatory term of postrelease control in the sentencing entry renders the sentence

void, requiring a vacation of the sentence and a remand to the trial court for

resentencing.

        {¶32} Here, Coats pled guilty to four felony sex offenses. As such, R.C.

2929.14(F)(1) and R.C. 2967.28(B) required the imposition of a term of

postrelease control. However, even though the trial court advised Coats at the

sentencing hearing of the term of postrelease control, the trial court failed to

include the term of postrelease control in the sentencing entry. Consequently,

pursuant to Boswell, 121 Ohio St.3d 575, and R.C. 2929.191, Coats’ sentence is

void.

        {¶33} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued in his assignment of error, but having found error

prejudicial to the appellant herein, in the trial court’s failure to include postrelease

control in the sentencing entry, we affirm in part, reverse in part, and remand the

cause to the trial court for further proceedings consistent with this opinion.

            Judgments Affirmed in Part, Reversed in Part, and Cause Remanded


WILLAMOWSKI and SHAW, J.J., concur.
/jnc




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