^^^^ I N A L

IN THE SUPREME COURT OF OHIO

STATE EX REL.DESMOND L. TAYLOR

Relator

vs.

JUDGE DENNIS J ADKINS

Respondent

CASE NO. 2014-0823

ORIGINAL ACTION IN MANDAMUS

MOTION TO DISMISS OF RESPONDENT, JUDGE DENNIS J. ADKINS

Pursuant to Rule 12(B)(6) of the Ohio Rules of Civil Procedure, Respondent, respectfully

moves the Court to dismiss the "Complaint for Writ of Mandamus" filed by the Relator on May

19, 2014. The action is moot and so Relator has failed to state a claim for which relief in

mandamus may be granted.

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SUPREME COUR7 tlF .OHIO

Respectfidly submitted,

MATHIAS : VECK, JR.PROSEC IN ATTORNEY

By

Carley J. Ingram e. No 020084Assistant P.rosecuting AttorneyMontgomery County Prosecutor's OfficeAppellate DivisionP.O. Box 972301 W. Third Street-Suite 500Dayton, Ohio 45422(937) 225-4117

Attorney for Respondent, Judge Adkins

2

MEMORANDUM

This is an original action for a writ of mandamus brougllt pro se by an iiunate at the

Warren Correctional Institution alleging that Respondent had failed to rule on his motion to

withdraw his plea, which was filed on Dec. 18, 201.3, On June 2, 2014, Respondent issued a

decision on that motion, a certified copy of which is attached, which renders this action moot.

State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 2011-Ohio-4197, 954 N.E.2d 114, ¶ 1.

CONCLLTSION

Respondent has rendered this action moot and subject to dismissal.

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was mailed by ordinary U.S. mail, onthis 12'' day of June, 2014 to: Desmond L. Taylor, en Correctional Institution, A499-249,P.O. Box 120, Lebanon, OH 45036.

Carley J. Ingr `mReg. No. 002008Assistant Prosecuting AttorneyAppellate Division

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIOCRIMINAL DIVISION

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STATE OF OHIO,

Plaintiff,

-vs-

DESMOND L. TAYLOR,

ELECTRONICALLY FILEDCOURT OF COMMON PLEASMonday, June 02, 2014 2:44:55 PMCASE NUMBER: 2004 CR 01799 Docket ID: 19,GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY

CASE NO.: 2004 CR 01799; 2004 CR 02771

JUDGE DENNIS J. ADKINS

DECISION, ORDER, AND ENTRYDefendant. OVERRULING IN PART, AND

SUSTAINING IN PART, DEFENDANT'SMOTION TO WITHDRAW GUILTYPLEA PURSUANT TO CR R. 32.1

This matter is before the Court on a Motion to Withdraw Guilty Plea Pursuant to CR. R. 32.1

("Motion to Withdraw"), filed by Desmond L. Taylor ("Defendant") on December 18, 2013. No response

was filed. This matter is now properly before the Court and, for the reasons contained herein, the Court

OVERRULES, in part, and SUSTAINS in part, Defendant's Motion to Withdraw.

I. Facts and Procedural History

On June 21, 2004, Defendant was indicted on one Count of Felonious Assault. See Docket Case No.

2004 CR 01799. Subsequently, on August 11, 2004, Defendant was indicted on one Count of Murder, and

two Counts of Felonious Assault. See Docket Case No. 2004 CR 02771. On July 11, 2005, during the same

proceeding, Defendant pleaded guilty to all Counts in both cases. See Docket Case Nos. 2004 CR 01799;

2004 CR 02771. On July 27, 2005, he was sentenced to incarceration for a term of fifteen years to life on the

murder charge, five years for both charges of Felonious Assault in case number 2004 CR 02771, and four

years on the Felonious Assault charge in case number 2004 CR 01799. Id. The Court ordered that the

sentences be served concurrently. Id.

On October 3, 2006, Defendant filed Defendant Taylor's Motion to Withdraw Guilty Plea Pursuant

to Ohio Crim. R. 32.1 in Case Number 2004 CR 02771, wherein he argued that his plea was not made

ktiowingly or voluntarily, due to ineffective assistance of counsel. Defendant Taylor's Motion to Withdraw

Guilty Plea Pursuant to Ohio Crim. R. 32.1 at 2. Additionally, Defendant argued that his guilty plea to the

charge of Murder violated the Equal Protection Clause of the Constitution because the Murder and

Involuntary Manslaughter statutes prohibit identical activity, require identical proof to convict a defendant,

and, yet, impose different penalties. Id at 2-3.

On November 14, 2006, the Court issued its Decision, Entry, and Order Overruling Defendant's

Motion to Withdraw Guilty Plea Filed October 3, 2006 ("Decision Overruling"). There, the Court found

that, after reviewing the video transcript of Defendant's plea and sentencing hearing, it had thoroughly

infoimed Defendant of the charges, penalties, and consequences of entering guilty pleas. Decision

Overruling at 2. Additionally, Defendant stated on the record that he had discussed the case with his

attorney, and that he was satisfied with his attorney's representation. Id. Finally, the Court noted that it gave

Defendant several opportunities to ask questions, and Defendant declined to do so. Id. Consequently, the

Court overruled Defendant Taylor's Motion to Withdraw Guilty Plea Pursuant to Ohio Crim. R. 32.1.

Subsequently, on December 14, 2006, Defendant filed an appeal of the Court's Decision Overruling

in the Second District Court of Appeals. See Docket Case No. CA 21947. I Ie argued that the Court erred in

overruling his motion because the Court misinformed him that he could be sentenced to eight years on each

of the Felonious Assault charges, for a possible sentence of thirty-nine years to life. Id. Moreover,

according to Defendant, the charges of Felonious Assault should have merged with the Murder charge,

pursuant to R.C. 2941.25. Id. The Second District found that the Court had properly advised Defendant of

the sentence he faced if convicted on all charges, and furtlier held that one can commit a felony murder

without committing felonious assault, and vice versa, so the offenses do not merge. Id. Therefore, the

Second District affirmed the Court's judgment. Id.

In his present Motion to Withdraw, Defendant argues that the Court erred by failing to determine that

he understood the nature of the charges against him before he entered his guilty pleas. Motion to Withdraw

at 2. Additionally, Defendant asserts that the Court failed to inform him that he was subject to a mandatory

term of post-release control on the felonious assault charges, and imposed an improper tertn of post-release

control, which renders the sentence void. Id. at 4. Consequently, Defendant requests to withdraw his guilty

pleas, receive a new trial, and be re-sentenced on the felonious assault charges. Id. at 4, 7.

On May 19, 2014, Defendant filed a Complaintafor Writ ofMandamus with the Supreme Court of

Ohio, asserting that the Court is obligated to issue a timely ruling on his Motion to Withdraw. The Supreme

Court of Ohio notified the Court of the Complaintfor Writ ofMandamus on May 20, 2014, and the Court has

twenty-one days from the date of notification to respond.

II. Law and Analysis

A. Standard of Review

Pursuant to Ohio Crim. R. 32.1, a court may set aside the judgment of conviction, and pei-mit a

defendant to withdraw his guilty plea after a sentence has been imposed, if such an order is necessary to

correct manifest injustice. However, "the manifest injustice standard requires a showing of extraordinary

circumstances." State v. Sylvester, Second Dist. Montgomery County C.A. Case No. 22289, 2008-Ohio-

2901, 2008 Ohio App. Lexis 2424, ¶I 1. Specifically, a manifest injustice comprehends a fundamental flaw

in the path of justice so extraordinary that the defendant had no other means of seeking redress. Id. As a

result, there is a heavy burden on the defendant to show manifest injustice, and a change of heart after a

defendant learns the terms of his sentence is not sufficient to justify granting a post-sentencing motion to

withdraw a guilty plea. Id.

In addition, claims that could have been addressed on direct appeal or in a post-conviction relief

motion are insufficient to demonstrate the "manifest injustice" required to vacate a plea after sentencing.

State v. Kendrick, Second Dist. Montgomery County C.A. Case No. 25100, 2012-Ohio5795, 2012 Ohio App.

Lexis 4983, ¶17. An undue delay between the occurrence of the alleged cause for withdrawal of a guilty

plea, and the filing of a motion to withdraw the plea pursuant to Crim. R. 32.1 is considered a factor that will

adversely affect the credibility of the movant, and militate against the granting of the motion. State v.

Rembert, 8th Dist. Cuyahoga County No. 99707, 2014-Ohio-300, 2014 Ohio App. Lexis 287, ¶38.

B. Criminal Rule 11(C)(2)(a)

It is we11-settled that, pursuant to Crim. R. 11(C)(2)(a), the court shall not accept a guilty plea

without first addressing the defendant personally, and determining that the plea is voluntary. Additionally,

the rule requires that the court determine, at the sentencing hearing, that the defendant understands the nature

of the charges, the maximum penalty involved and, if applicable, that he is not eligible for probation or

community control sanctions. Crim. R. 11(C)(2)(a).

Before accepting a guilty plea, a court must give the warnings required by Crim. R. 11(C)(2)(a) and

(b), and notify the defendant of the constitutional rights enumerated in Crim. R. 13 (C)(2)(c). State v. Veney,

120 Ohio St.3d 176, 179 (2008). With respect to the non-constitutional notifications required by Crim. R.

11(C)(2)(a), "substantial compliance" with Crim. R. 11(C) is sufficient, meaning that, under the totality of

the circumstances, the defendant "subjectively understands the implications of his plea, as well as the rights

he is waiving." Id.

In the present case, Defendant alleges that, before accepting his guilty plea, the Court failed to

"engage the Defendant beyond the mere affirmative responses to the questions as to whether the defendant

understands the nature of the charges against him." Motion to Withdraw at 2. Upon review of Defendant's

plea hearing, the Court finds that Defendant's assertions lack merit.

The following colloquy took place on July 11, 2005:

THE COURT: If there is anything you do not understand this morning, will youask Mr. Bennett or Mr. Mesaros about it?

DEFENDANT: Yes.

THE COURT: I want to make sure that you understand everything, and I'mgoing to ask you towards the end if you understand everything, alright?

DEFENDANT: Alright.

(Plea Hearing, 09:59:3 3).

THE COURT: Do you intend to enter your pleas voluntarily of your own freewill?

DEFENDANT: No.

THE COURT: Well, let me-let me make sure I explain that. In order to acceptthe plea, I have to find that you're doing it voluntarily, that you-that you wantto do this. Is this what you want to do today?

DEFENDANT: Yes.

THE COURT: Airight. The nature of the charges?

TI-IE STATE: Your honor, in case number 2004 2771, it's count one is murder,it's commonly called murder b, based on felonious assault being the proximatecause of the death of Sharice Allen, the victim. In counts two and three arefelonious assault. Count number two is felonious assault, serious physical harm,a felony of the second degree. Count number three is felonious assault, deadlyweapon, that being a knife.

THE COURT: Do you understand the nature of each of those charges?

DEFENDANT: Yes.

THE COURT: The first one is murder. That's taking somebody's life whilecommitting felonious assault. Do you understand that?

DEFENDANT: Yes.

THE COLJRT: The second and third in that charge are felonious assault charges.One is felonious assault by causing serious physical harm to another, and theother is felonious assault by using a deadly weapon to cause serious physical-tocause physical harm to another. Do you understand those charges?

DEFENDANT: Yes.

THE STATE: And in count number-case number 2004 CR 1799, it's a singlecount of felonious assault, a felony of the second degree, with a deadly weaponor dangerous ordinance. In this case, it's a knife.

THE COURT: Do you understand the nature of that charge?

DEFENDANT: Yes.

(Id. at 10:01:09).

THE COURT: Alriglit, let me tell you what the potential penalties are so thatyou know what, what you're pleading to and what the agreement is or what theplea representation is. Murder carries a penalty of fifteen to life. That meansfifteen years to life. After fifteen years, you could be eligible to be considered byparole, but that's up to the parole authorities. Whether or not you get out andwhen you get out is up to the parole authorities. Do you understand that?

DEFENDANT: Yes.

THE COURT: Each of the felonious assaults carries a potential penalty ofanywhere from two to eight years, or any number of years in between. So youcould get two, three, four, all the way up to eight, but those charges would runconcurrently. That means they're running at the same time as your fifteen yearsto life. Do you understand that?

DEFENDANT: Yes.

THE COURT: When you get released from prison, you would be released eitheron parole or post-release control, or both. If you are under supervision of theparole authorities and you violate their terms, they could have more restrictionson your supervision or they could send you back to prison on post-release controlfor the time remaining on post-release control. That's the remaining time on thefelonious assaults or on the murder charge if you're still on parole they couldsend you back to prison to serve out the rest of your sentence. Do youunderstand that?

DEFENDANT: Yes.

THE COURT: You're not eligible for community control or probation becausemurder is mandatory imprisonment. It requires the court to send you to prison.Do you understand that?

DEFENDANT: Yes.

(Id. at 10:04:10).

THE COURT: Any questions that you have?

DEFENDANT: No.

THE COURT: Have you discussed this matter with Mr. Bennett about the casethat is set for trial and the jury is actually waiting in my courtroom this morning?Have you discussed it with hitn?

DEFENDANT: Yes.

THE COURT: And are you satisfied with his advice and his representation?

DEFENDANT: Yes.

THE COURT: And I understand that he has also advised you probably on thecase that Mr. Mesaros is on, but Mr. Mesaros you've had a chance to speak tothis morning also, have you not?

DEFENDANT: Um, yea.

THE COURT: Just briefly? Okay. Any-anything else that you watit to ask meor ask your attorneys before I ask you for your pleas?

DEFENDANT: No, sir.

(Id. at 10:06:18).

THE COURT: Mr. DeschIer, you wanted to enter into the record what the Statewould be willing to prove?

THE STATE: That's correct, your Honor. As to case number 2004 CR 2771,the count of murder, if this matter had gone to trial the state would have provenbeyond a reasonable doubt that Desmond L. Taylor, on or about the first day ofAugust, the year 2004, in the county of Montgomery, in the state of Ohio, didcause the death of another. In this case, it was Sharice Allen, as a proximateresult of the offender's committing or attempting to commit an offense ofviolence. In this case, it's felonious assault, in violation of Section 2903.11, afelony of the second degree, and the said offense is not a violation of eitherSection 2903.03 or 2903.04 of the Ohio Revised Code. And, your Honor, thisform of murder is a violation of Section 2903.02(B) of the Ohio Revised Code.

THE COURT: That's the murder charge in the indictment. Do you understandthat?

DEFENDANT: Yes.

THE STATE: And then as to count one, felonious assault, serious physical harm,if that matter had gone to trial, the state would have proven beyond areasonable doubt that Desmond L. Taylor, on or about August 1, 2004, in thecounty of Montgomery, in the state of Ohio, did knowingly cause seriousphysical harm to another. In this case, it was Sharice Allen, and this is inviolation of Section 2903.11(A)(1) of the Ohio Revised Code.

THE COURT: That's felonious assault. Do you understand the nature of thatcharge?

DEFENDANT: Yes.

THE STATE: And as to count three in this case number, your Honor, if thismatter had gone to trial, the state would have proven beyond a reasonable doubtthat Desmond L. Taylor, on or about August 1, 2004, in the county ofMontgomery, in the state of Ohio, did knowingly cause or attempt to causephysical harm to another, in this case, Sharice Allen, by means of a deadlyweapon or dangerous ordinance. In this case, it was a knife. This is a violationof Section 2903.11(A)(2) of the Ohio Revised Code.

THE COURT: That's the second felonious assault with a deadly weapon. Doyou understand that?

DEFENDANT: Yes.

THE STATE: And then, your Honor, in case number 2004 CR 1799, which isalso a count of felonious assault, the state would have proven beyond areasonable doubt that Desmond L. Taylor, on or about the ninth day of May, inthe year 2004, in the county of Montgomery in the state of Ohio, did knowinglycause or attempt to cause physical harm to another. In this case it was AprilTurner, by means of a deadly weapon or dangerous ordinance. In this case,once again, it was a knife in violation of Section 2903.11(A)(2) of the OhioRevised Code, felony of the second degree.

THE COURT: That's felonious assault involving a victim, April Turner. Doyou understand the nature of that charge?

DEFENDANT: Yes.

(Id. at 10:10:11).

Based on the foregoing, it is apparent that the Court addressed Defendant personally, several times,

in order to determine that his plea was voluntary. Moreover, the Court asked Defendant repeatedly whether

he had any questions, or needed to speak to his attorneys. The Court further notes that the State clearly set

forth what it would have had to prove during a trial on each charge, and Defendant answered affirmatively

when asked whether he understood the nature of each count included in the indictments.

In addition, Defendant asserts that his affirmative responses to the Court's questions were not

sufficient to demonstrate his understanding of the nature of the charges. In support of this assertion, he relies

on the Second District's holding in State v. Blair. There, the appellate court reversed the trial court's

judgment because the defendant had not been properly advised of the nature of the charge against him, and

held that his one word, affirmative answers were insufficient to show that the defendant understood the

nature of the proceedings. State v. Blair, 128 Ohio App. 3d 435, 438 (2d Dist. 1998). However, the Court

finds that Blair is readily distinguishable from the present case. Specifically, the Court notes that, in Blair,

the Second District's holding was based on the complete lack of evidence in the record that the defendant

was adequately advised as to the nature of the charge. Id. However, here, the record shows that the State and

the Court detailed the nature of the charges several times during the plea hearing. Additionally, the Court

asked Defendant whether he had been given enough time to discuss both cases with Mr. Bennett and Mr.

Mesaros, to which Defendant answered in the affirmative. The record further indicates that Defendant was

given the opportunity to ask questions of his attorneys, and the Court, before entering his guilty pleas, but he

declined to do so. Consequently, it is clear on the record that Defendant was properly informed as to the

nature of the charges against him before entering his guilty pleas.

Finally, the Court finds that Defendant has failed to demonstrate that the Court's acceptance of his

guilty pleas amounted to "manifest injustice." Not only did Defendant have the opportunity to consult with

his attorneys on each case, prior to entering his pleas, but the Court also clearly informed him as to the nature

of the charges against him, the maximum sentence for each one, and his ineligibility for probation or

community control on the murder charge. Further, the Court notes that Defendant filed the present motion

almost nine years after entering his guilty pleas. Since that time, Defendant filed a motion to withdraw his

guilty pleas, which this Court overruled. He then appealed that decision, and the Second District affirmed

the Court's initial judgment. In his present Motion to Withdraw, Defendant does not raise any issues that

could not have been addressed at the time of his first motion to withdraw his guilty pleas, or at the time of his

appeal. Therefore, he should have included his present arguments in his first post-sentencing motion and/or

direct appeal and, because he failed to do so, Defendant's claims are insufficient to show manifest injustice.

C. Post-Release Control

Next, Defendant argues that the Court failed to properly inform him of the mandatory term of post-

release control attached to the felonious assault charges, and wrongfully sentenced him to a period of five

years of post-release control, rather than three years as mandated by R.C. 2967.28(B)(2). Motion to

Withdraw at 5. Pursuant to Crim. R. 11, the court niust inform a defendant as to any mandatory post-release

control during the plea colloquy. In addition, R.C. 2967.28(B)(2) clearly states that a conviction for a felony

of the second degree requires mandatory post-release control for a period of three years.

In the present case, the Court finds that the Court failed to mention the mandatory term of post-

release control for the felonious assault convictions during Defendant's plea hearing on July 11, 2005.

Moreover, felonious assault is a second degree felony and requires three years of post-release control, but

Defendant was erroneously sentenced to a mandatory term of five years of post-release control for his

felonious assault convictions.

However, although Defendant's arguments with respect to post-release control have merit, he has

currently been incarcerated for almost nine years and has, therefore, already served the time sentenced for his

felonious assault convictions. Consequently, the Court can no longer alter his sentence, but will order nunc

pro tunc that Defendant not serve any post-release control for the felonious assault convictions.

III. Conclusion

Based on the foregoing, the Court finds that Defendant was properly advised as to the nature of the

charges against him before entering his guilty pleas, and he has failed to demonstrate manifest injustice.

Therefore, Defendant is not entitled to withdraw his guilty pleas.

With respect to Defendant's sentence of post-release control for his felonious assault convictions, the

Court finds that Defendant was sentenced to an incorrect term of post-release control, and orders that he not

be required to serve any post-release control for the convictions of felonious assault.

Consequently, the Court orders that Defendant's lVotion to Withdraw is OVERRULED, in part, and

SUSTAINED, in part.

SO ORDERED:

JUDGE DENNIS J. ADKINS

This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of thefiling to the e-Filing account "Notifications" tab of the following case participar^ts ;e;so3t' n^;y];S tf "^e ^^s"

TRACEY TANGEMAN BALLARD and ' or'e,"'. ci1p;1.P.O. Box 972 ^Dayton, OH45422 ^rl^' ^' ^ ^° ` ii> ^

Copies of the above were sent to all parties listed below by ordinary mail this date bfifi]ing. s,Eri{t

DESMOND L. TAYLOR499249P.O. Box 120Lebanon, OH 45036

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Bob Schmidt, Bailiff (937) 496-7951 schmidtr@montcourt.org

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Type:

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Decision

Case Number: Case Title

2004 CR 01799: STATE OF OHIO vs DESMOND L. TAYLOR

2004 CR 02771: STATE OF OHIO vs DESMOND L. TAYLOR

So Ordered

Electronically signed by dadkins on 2014-06-02 14:45:17 page 12 of 12

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