[Cite as State v. Hoover, 2014-Ohio-1881.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 13-13-47

        v.

SETH D. HOOVER,                               OPINION

        DEFENDANT-APPELLANT.



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 13-13-48

        v.

SETH D. HOOVER,                               OPINION

        DEFENDANT-APPELLANT.



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 13-13-49

        v.

SETH D. HOOVER,                               OPINION

        DEFENDANT-APPELLANT.
Case No. 13-13-47, 13-13-48, 13-13-49




              Appeals from Seneca County Common Pleas Court
          Trial Court Nos. 09-CR-0180, 09-CR-0202 and 09-CR-0203

                              Judgments Affirmed

                         Date of Decision:    May 5, 2014




APPEARANCES:

       Seth D. Hoover, Appellant

       Angela M. Boes for Appellee




ROGERS, J.

       {¶1} Defendant-Appellant, Seth Hoover, appeals the judgment of the Court

of Common Pleas of Seneca County denying his motion to vacate a void and

unenforceable negotiated plea bargain agreement and sentence.           On appeal,

Hoover argues the trial court erred in denying his motion and by failing to correct

the language in his plea agreement regarding the imposition of five years of post-

release control. Hoover also contends that he was denied effective assistance of

counsel. For the reasons that follow, we affirm the trial court’s judgment.


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       {¶2} This matter implicates three separate prosecutions, 09CR0180,

09CR0202, and 09CR0203. We will discuss the procedural history of 09CR180

separately, and the procedural histories of 09CR0202 and 09CR0203 together.

                                    09CR0180

       {¶3} On August 26, 2009, the Seneca County Grand Jury indicted Hoover

on one count of trafficking in heroin in violation of R.C. 2925.03(A)(2),(C)(6)(d),

a felony of the second degree in Case 09CR0180.

       {¶4} On May 3, 2010, Hoover pled guilty to the trafficking in heroin charge

in 09CR180. At the change of plea hearing, the trial court advised Hoover that the

maximum penalty was eight years in prison. The trial court also advised Hoover

that he was subject to a mandatory five-year term of post-release control. Hoover

then signed the written plea agreement, which also stated that Hoover was subject

to a maximum term of five years of post-release control, in open court.

(09CR0180 Docket No. 104, p. 1-2). Before the trial court found that Hoover’s

plea was knowingly, voluntarily, and intelligently made, Hoover stated that he was

satisfied with his attorney.

                               09CR0202 & 09CR0203

       {¶5} In 09CR0202, the Seneca County Grand Jury indicted Hoover on

September 15, 2009, with four counts of trafficking in cocaine in violation of R.C.

2925.03(A)(1), (C)(4)(a), felonies of the fifth degree; two counts of trafficking in


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cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(c), felonies of the fourth

degree; and one count of trafficking in cocaine with the specification that Hoover

committed the offense in the vicinity of a school, in violation of R.C.

2925.03(A)(1), (C)(4)(c), a felony of the third degree. That same day, the Seneca

County Grand Jury also indicted Hoover on one count of trafficking in crack

cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(d), a felony of the second

degree, in Case 09CR0203.

         {¶6} Both parties assert that on April 14, 2010, Hoover pled guilty in case

09CR0202 to all seven counts in his indictment and also pled guilty to the lesser

included offense of trafficking in crack cocaine, in violation of R.C.

2925.03(A)(2), (C)(4)(c), a felony of the third degree, in case 09CR0203.1 Hoover

also executed a written plea agreement, which was filed on April 15, 2010. The

written plea agreement advised Hoover of the possible maximum sentences for

each count to which he pled guilty. The written plea agreement also stated, “a

period of post-release control or supervision by the Adult Parole Authority after

release from prison is mandatory in this case. The post-release control period is a

maximum term of 5 years.” (09CR0202 Docket No. 64, p. 2; 09CR0203 Docket

No. 67, p. 2).
1
  A transcript of the April 14, 2010 change of plea hearing was not filed with this court or made part of the
record. An appellant has a duty to ensure that the record necessary to evaluate the assignment of error is
filed with the appellate court. Where an appellant fails to include a necessary portion of the record, we
must presume regularity in the trial court’s proceedings. State v. West, 3d Dist. Auglaize No. 2-06-04,
2006-Ohio-5834, ¶ 53; see also State v. Williams, 73 Ohio St.3d 153, 160-161 (1995); App.R. 9(B).


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                                 Sentencing Hearing

       {¶7} Hoover was sentenced in all three cases on May 3, 2010. As a result

of his plea agreement, the State recommended to the trial court that Hoover

receive a four-year prison sentence in case 09CR0180 and a four-year prison

sentence in case 09CR0203. The State also recommend that in case 09CR0202

Hoover receive a 12-month prison sentence for counts one, two, four, and five; an

18-month prison sentence for counts three and six; and a two-year prison term for

count seven. The State recommended that all counts in 09CR0202 should run

concurrent with each other, but consecutive to the prison sentences in 09CR0180

and 09CR0203, for a total prison term of 10 years.

       {¶8} The trial court adopted the State’s recommendation and sentenced

Hoover to 10 years in prison. The trial court also stated that “[Hoover] has been

notified that post release control is mandatory in this case up to five years * * *.”

Sentencing Hearing Tr., p. 18.

       {¶9} On July 28, 2010, the trial court resentenced Hoover in order to

correctly notify Hoover of his post-release control sanction in all three cases. In

09CR0180, Hoover was notified that he was subject to a mandatory three-year

term of post-release control. Further, in cases 09CR0202 and 09CR0203, Hoover

was advised that post-release control was optional for up to three years. A journal




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entry reflecting the corrected sentence was filed on July 29, 2010. Hoover did not

appeal this judgment.

       {¶10} On August 14, 2013, Hoover filed a motion to “vacate void

unenforceable negotiated plea bargain agreement and sentence” in cases

09CR0180, 09CR0202, and 09CR0203. In his motion, Hoover argued that his

plea agreement was based upon a mutual mistake of the law and thus, his plea

agreement should be vacated. Hoover also argued that he was denied effective

assistance of counsel.

       {¶11} On September 20, 2013, the trial court issued a judgment entry that

denied Hoover’s motion. The court found that the Hoover could not show that the

mistake in the written plea agreement had a material effect on the agreed exchange

of performances. Further, the trial court found that Hoover benefited from the

mistake, as Hoover was subject to a lesser period of post-release control than he

originally agreed to in the written plea agreement. As such, Hoover failed to show

that he was adversely affected.

       {¶12} Hoover timely appealed this judgment, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ABUSED ITS DISCRETION AND
       ERRED WHEN IT DENIED APPELLANT’S MOTION TO
       VACATE VOID UNENFORCEABLE NEGOTIATED PLEA
       AGREEMENT AND SENTENCE PURSUANT TO THE

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      DOCTRINE OF MUTUAL MISTAKE OF LAW IN CONTRAT
      LAW.

                           Assignment of Error No. II

      APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE
      OF COUNSEL DURING THE PLEA BARGAINING
      PROCESS, THE SENTENCING PROCESS, AND THE
      RESENTENCING PROCESS.

                          Assignment of Error No. III

      THE TRIAL COURT ABUSED ITS DISCRETION AND
      ERRED AS A MATTER OF LAW WHERE IT FAILED TO
      CORRECT THE LANGUAGE IN THE PLEA AGREEMENT
      CONTRACT REGARDING THE 5-YEAR PRC IMPOSITION.

                            Assignment of Error No. I

      {¶13} In his first assignment of error, Hoover argues that the trial court

erred in denying his motion to vacate void unenforceable negotiated plea bargain

agreement and sentence. We disagree.

      {¶14} Initially, we must note that we are uncertain as to the type of relief

that Hoover is requesting. “Regardless of how an action is labeled, the substance

of the party’s arguments and the type of relief requested determine the nature of

the action.” Lingo v. State, --Ohio St.3d--, 2014-Ohio-1052, ¶ 38. In his brief,

Hoover asks the court to “rescind/void the [plea agreement].” Appellant’s Br., p.

4. Thus, it appears that Hoover is asking this court to restore him to his original

position as if the plea agreement had never been executed. In essence, he appears

to be asking to withdraw his guilty pleas because he did not knowingly and

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intelligently enter into the plea agreement due to the “mutual mistake” regarding

the length of his post-release control. See State v. Green, 5th Dist. Stark No. 2011

CA 00127, 2011-Ohio-5611, ¶ 23 (finding that appellant’s “motion to rescind the

plea agreement [was] nothing more than a motion to withdraw his guilty plea”).

        {¶15} 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. Coats,

3d Dist. Mercer Nos. 10-09-04, 10-09-05, 2009-Ohio-3534, ¶ 13. 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, 11th

Dist. Lake No. 99-L-089, 2000 WL 777835 (Jun. 16, 2000), citing Blakemore v.

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

standard, a reviewing court may not simply substitute its judgment for that of the

trial court. Id.

        {¶16} 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.” Thus, Hoover

has the burden of establishing the existence of manifest injustice. Further, an

“undue delay between the occurrence of the alleged cause for withdrawal of a

guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely


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affecting the credibility of the movant and militating against the granting of the

motion.”      State v. Smith, 49 Ohio St.2d 261 (1977), paragraph three of the

syllabus.

        {¶17} In the case sub judice, Hoover was properly notified of his prison

sentence and that post-release control was mandatory. However, Hoover was

misinformed at his original sentencing hearing and in his written plea agreements

as to the length of his post-release control. Instead of receiving a mandatory five-

year term of post-release control, Hoover was only subject to three years of post-

release control. When this mistake was discovered, Hoover was resentenced and a

new sentencing entry reflecting the imposition of a three-year term of post-release

control was filed.2 Hoover then waited over three years to file a motion to vacate

the allegedly void plea agreement.

        {¶18} We cannot find that there was manifest injustice for two reasons.

First, Hoover negotiated for a particular plea in order to plead guilty to a lesser

included charge in 09CR0203 and also for the State’s rather lenient sentence

recommendation. The State did not ask the trial court for the maximum prison

sentence in any of Hoover’s cases and also asked the court to impose concurrent,

not consecutive, sentences in 09CR0202. It is not evident from the record that


2
  From the caption of Hoover’s motion, he seems to argue that the trial court’s sentence is also void due to
the defects in the plea agreements. However, the trial court’s most recent sentencing entry imposed the
three-year term of post-release control, and thus, the sentencing entry is not void. See State v. Sage, 2d
Dist. Montgomery No. 25453, 2013-Ohio-3048, ¶ 25.

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Case No. 13-13-47, 13-13-48, 13-13-49


Hoover was induced into entering into the plea agreement because of the length of

post-release control. Further, Hoover received the benefit of the mutual mistake:

he was subject to a lesser period of post-release control. It is illogical to think, and

Hoover does not argue, that he would not have entered into the plea agreement had

he been aware of the actual, lesser term of post-release control. Second, Hoover

waited over three years to file his motion to withdraw his guilty plea. Therefore,

we cannot say that manifest injustice would occur if his pleas were allowed to

stand.

         {¶19} Even if Hoover was, in fact, not arguing to withdraw his guilty plea,

we would still find Hoover’s arguments meritless.          His motion would be an

untimely petition for post-conviction relief, as it was not filed within the 180-day

time limitation prescribed in R.C. 2953.21(A)(2). Further, Hoover’s argument

would also be barred by res judicata, as he could have raised this issue on direct

appeal.

         {¶20} Accordingly, we overrule Hoover’s first assignment of error.

                             Assignment of Error No. II

         {¶21} In his second assignment of error, Hoover contends that he was

denied effective assistance of counsel during his change of plea hearings,

sentencing hearing, and resentencing hearing. We disagree.




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       {¶22} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of syllabus. “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Id. at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶23} Even if we were to assume that Hoover’s trial counsel was deficient

in his failure to catch the error in the length of post-release control, Hoover cannot

prove prejudice. For the reasons noted above, the likelihood that the result of the

plea hearing would have been different had Hoover been advised that he was only

subject to a period of three, not five, years of post-release control is negligible.

Thus, we cannot find that there is a reasonable probability that the result of the

plea hearing would have been different.

       {¶24} Accordingly, Hoover’s second assignment of error is overruled.




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                             Assignment of Error No. III

       {¶25} In his third assignment of error, Hoover argues that the trial court

abused its discretion and erred as a matter of law when it failed to correct the

language found in the written plea agreement regarding the imposition of five-year

term of post-release control.

       {¶26} This assignment of error is not properly before this court since this

matter does not relate to the judgment from which Hoover appeals. The judgment

from which Hoover appeals only concerns the denial of his motion to vacate void

unenforceable negotiated plea bargain agreement and sentence, and his assertion

that he was denied effective assistance of counsel. As such, we overrule Hoover’s

third assignment of error.

       {¶27} Having found no error prejudicial to Hoover in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                              Judgment Affirmed

WILLAMOWSI, P.J. and SHAW, J., concur.

/jlr




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