[Cite as State v. James, 2016-Ohio-7889.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 104006 and 104169

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MICKEY JAMES

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-592669-I 

BEFORE: S. Gallagher, J., Jones, A.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: November 23, 2016 
ATTORNEY FOR APPELLANT 

Paul A. Mancino, Jr. 

Mancino, Mancino & Mancino 

75 Public Square Building 

Suite 1016 

Cleveland, Ohio 44113-2098 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Carl Mazzone 

 Gregory J. Ochocki 

Assistant Prosecuting Attorneys 

Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

Also listed:

Mickey James 

Inmate No. 673-998 

Trumbull Correctional Institution 

P.O. Box 901 

Cleveland, Ohio 44430 
SEAN C. GALLAGHER, J.: 

{¶1} In this consolidated appeal, appellant Mickey James appeals from his 

conviction and the decision of the trial court to deny his pro se motions to withdraw his 

guilty plea. Upon review, we affirm the conviction and the decision of the trial court to 

deny his motions. 

{¶2} On January 20, 2015, appellant was indicted, along with 12 codefendants, 

with numerous offenses related to the activities of a criminal gang. Appellant eventually 

entered a plea of guilty to the following charges as amended: Count 1, participating in a 

criminal gang, a felony of the second degree in violation of R.C. 2923.42(A), with 

forfeiture specifications; Count 16, felonious assault, a felony of the second degree in 

violation of R.C. 2903.11(A)2), with a three-year firearm specification; and Count 43, 

having weapons while under disability, a felony of the third degree in violation of R.C. 

2923.13(A). The remaining counts against appellant were nolled. Appellant agreed to 

forfeit certain items and to a sentencing range of five to 20 years. He was referred for a 

presentence investigation report. 

{¶3} A sentencing hearing was held on October 14, 2015. The trial court initially 

imposed a total sentence of 11 years, but mistakenly included the criminal gang activity 

specification as part of the sentence on the felonious assault charge. That count had been 

amended, and the one- and five-year firearm specifications and the criminal gang activity 
specification were nolled. A sentencing entry reflecting the 11-year sentence was never 

journalized. 

{¶4} Because the sentence imposed on the criminal gang activity specification was 

invalid, the trial court called the case for resentencing on October 15, 2015. The trial 

court recognized that a clerical error on the journal entry for the plea was responsible for 

the mistake.1

 The trial court imposed the same sentence on each charge, less the three 

years on the criminal gang activity specification on Count 16. Appellant was sentenced 

to a prison term of five years for participating in a criminal gang; five years for felonious 

assault, to be served prior to and consecutive with three years on the firearm 

specification; and three years for having weapons while under disability. The trial court 

ran the sentences for each offense concurrent, except for the three-year sentence on the 

firearm specification, which was run consecutive to the underlying charge. Appellant’s 

total sentence was eight years. 

{¶5} The trial court also terminated community control sanctions in two other 

cases. The trial court imposed postrelease control. Appellant received jail-time credit 

for 260 days. A final judgment entry was entered on October 16, 2015, which correctly 

reflected appellant’s plea and the eight-year sentence imposed by the trial court. 

{¶6} Two months later, on December 17, 2015, appellant filed a pro se motion to 

withdraw his guilty plea because of manifest injustice. On December 22, 2015, the trial 

court denied the motion without a hearing, finding that “the defendant has failed to 

 1 The trial court issued a nunc pro tunc entry to correct the plea entry.
establish that the record reflects that his plea was not knowingly, voluntarily and 

intelligently made.” Appellant filed a second pro se motion to withdraw his guilty plea 

on January 11, 2016. On February 1, 2016, the trial court denied the motion without a 

hearing, indicating that it had previously denied the same motion. 

{¶7} On January 11, 2016, appellant, pro se, filed a motion for leave to file a 

delayed appeal that was granted. Another notice of appeal was filed from the entry of 

February 1, 2016, that denied his second motion to withdraw his guilty plea. The appeals 

have been consolidated for review. 

{¶8} Appellant raises four assignments of error for our review. Under his first 

assignment of error, appellant claims he was “denied due process of law when he was 

induced to enter a plea of guilty to various counts which were misrepresented at 

sentencing.” 

{¶9} As an initial matter, we recognize that because the sentence imposed was 

within a jointly recommended sentencing range, which was the product of a negotiated 

plea deal, and was authorized by law, appellate review of the sentence is precluded under 

R.C. 2953.08(D). See State v. Akins-Daniels, 8th Dist. Cuyahoga No. 103817, 

2016-Ohio-7048, ¶ 14. Appellant’s challenge is focused upon his plea. 

{¶10} Appellant argues that he entered a plea of guilty upon the representation that 

he faced a sentencing range of five to 20 years, which at sentencing the trial court 

indicated was not possible, under the mistaken impression that the minimum was six 

years. This statement was made when the trial court mistakenly considered and imposed 
a sentence on the criminal gang activity specification that had been nolled. The matter 

was called for resentencing, and the prosecutor indicated that a mistake in the journal 

entry for the plea was the cause of the error. The trial court proceeded to resentence 

appellant on the proper charges, without the criminal gang activity specification. Thus, 

any error in this regard was corrected by the trial court. 

{¶11} We recognize that the resentencing that was conducted in this case was 

conducted to correct the imposition of the three-year sentence on the criminal gang 

activity specification that had been nolled. The resentencing occurred before the initial 

sentence was ever journalized. The court imposed the same sentence, less the three 

years. Under these circumstances, the trial court had jurisdiction to correct the 

sentencing error. 

{¶12} We shall proceed to address appellant’s challenge to his plea. “When a 

defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, 

and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 

450. The standard of review for determining whether a plea was knowing, intelligent, 

and voluntary within the meaning of Crim.R. 11 is substantial compliance for 

nonconstitutional issues and strict compliance for constitutional issues. State v. Nero, 56 

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 

92-93, 364 N.E.2d 1163 (1977). Furthermore, a defendant must show a prejudicial 

effect. Stewart at 93. 
{¶13} At the plea hearing, the prosecutor placed the plea agreement on the record. 

As part of the plea agreement, the agreed sentencing range was between five and 20 

years. It was agreed that appellant would be pleading guilty to three counts, including an 

amended Count 16 for felonious assault, a felony of the second degree, with a three-year 

firearm specification. The state moved to nolle the criminal gang activity specification 

on that count and the one- and five-year firearm specifications. 

{¶14} The trial court acknowledged the agreed sentencing range and specifically 

advised appellant of the potential prison sentence for each of the offenses to which he 

would be pleading guilty. On Count 16, the amended felonious assault charge, the trial 

court properly informed appellant that the potential prison terms on the felonious assault 

was “2, 3, 4, 5, 6, 7, or 8 years, and/or up to a $15,000 fine” and that the three-year 

firearm specification carried “a mandatory term of 3 years, served prior to and 

consecutive to the underlying charge[.]” The court stated, “in other words, it’s 3 years 

for the gun, plus that 2 to 8 years, whatever that sentence is.” Appellant indicated that he 

understood. No reference was made to the criminal gang activity specification. 

Appellant entered a plea of guilty to Count 16, as amended. 

{¶15} The record reflects that the trial court informed appellant of all aspects of 

the sentence, including the maximum sentence that could be imposed for each offense.2

 

 2 We note that nothing in Crim.R. 11 requires the trial court to advise the defendant of the 

minimum sentence. State v. Mackey, 8th Dist. Cuyahoga No. 99390, 2013-Ohio-4698, ¶ 8. 

Rather, Crim.R. 11(C)(2)(a) only requires the trial court to inform a defendant of “the maximum 

penalty involved.” 
Appellant has not shown any prejudice because the trial court imposed a total sentence of 

eight years, which was within the agreed sentencing range. Further, the record reflects 

that the trial court complied with Crim.R. 11 and there is no evidence that appellant’s plea 

was not entered knowingly, intelligently, and voluntarily. Appellant’s first assignment of 

error is overruled. 

{¶16} Under his second assignment of error, appellant claims he was “denied due 

process of law when the court overruled [his] motion to withdraw his plea[.]” Res 

judicata has been applied to bar the assertion of claims in a motion to withdraw a guilty 

plea that were or could have been raised at trial or on appeal. State v. Ketterer, 126 Ohio 

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. Notwithstanding the application of res 

judicata, we find no abuse of discretion by the trial court in denying the motions because 

appellant failed to demonstrate a manifest injustice. 

{¶17} Appellant’s first pro se motion to withdraw his plea was filed two months 

after his conviction. In that motion, he argued that prior to accepting his plea, the trial 

court failed to advise him his sentence would include a mandatory term of postrelease 

control, failed to explain he would be subject to postrelease control sanctions, and failed 

to inform him that he would be required to serve a mandatory three years for the firearm 

specification and that this would be consecutive to any other prison term. Appellant’s 

second pro se motion to withdraw his plea was filed after he was granted leave to appeal 

by this court. In that motion, he argued that prior to accepting his plea, the trial court 

failed to properly advise him concerning postrelease control and failed to inform him of 
the maximum penalty he faced. Both motions were denied by the trial court, and the 

record does not support the arguments raised. 

{¶18} On appeal, appellant claims a manifest injustice occurred because the 

potential sentence in this case was misrepresented, again referring to the sentencing 

range. As a result, he claims that his plea was not entered knowingly and voluntarily, 

that this plea was not an informed plea, and that he received ineffective assistance of 

counsel. We note that these arguments were not raised in the motions and we have 

already rejected appellant’s argument that his plea was not entered knowingly, 

intelligently, and voluntarily because it is unsupported by the record. Appellant’s second 

assignment of error is overruled. 

{¶19} Under his third assignment of error, appellant claims he was “denied due 

process of law when the court sentenced [him] on a count to which he did not enter any 

plea.” Appellant argues that he never entered a plea to Count 1, participating in a 

criminal gang. 

{¶20} At the plea hearing, the state outlined the entire plea agreement. The state 

specifically stated that appellant would enter a plea of guilty to Count 1, “participating in 

a criminal gang, a felony of the second degree in violation of Revised Code 

2923.42(A)[.]” The court also outlined the offenses to which appellant “will be pleading 

guilty,” including “[C]ount 1, participating in a criminal gang, * * * a felony of the 

second degree.” After further discussion, the court proceeded with a clear recitation of 

Count 1 for the appellant to enter a plea. Before appellant actually entered an oral plea 
of guilty, the state interrupted and requested to speak to defense counsel. When the court 

resumed taking the plea, it proceeded with the other two counts. The trial court found 

appellant guilty of each charge in the plea agreement, including Count 1, and sentenced 

appellant on each charge. Because no objection was raised, plain error must be 

demonstrated by the record. 

{¶21} Our review reflects appellant understood he was entering a plea of guilty to 

each of the charges in accordance with the terms of a plea agreement, which were placed 

on the record. The trial court performed a proper Crim.R. 11(C) colloquy and explained 

the nature of the charges and the sentences that could be imposed. The record indicates 

that appellant understood the consequences of his plea and the rights that he was waiving. 

 The trial court properly found him guilty on each count. Finding no plain error, the 

third assignment of error is overruled. 

{¶22} Under his fourth assignment of error, appellant claims he was “denied due 

process of law when the trial court failed to inform [him] of the effect of a guilty plea.” 

Appellant claims his plea should be vacated because the trial court did not inform him 

that a plea of guilty is a complete admission of a defendant’s guilt and did not determine 

that the defendant understands the effect of the plea of guilty. 

{¶23} Whenever accepting a plea of guilty or no contest in a felony case, a trial 

court is required to inform the defendant of and determine that the defendant understands 

the effect of the plea. Crim.R. 11(C)(2). The right to be informed that a guilty plea is a 

complete admission of guilt is nonconstitutional and reviewed under a standard of 
substantial compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 

N.E.2d 51, ¶ 12. Under the substantial-compliance standard, the totality of 

circumstances surrounding the plea is reviewed to determine whether the defendant 

subjectively understood that a guilty plea is a complete admission of guilt. Id.

{¶24} In this case, appellant entered a plea of guilty pursuant to a plea agreement. 

The trial court conducted a thorough colloquy with appellant to ensure that he understood 

the constitutional rights he would be waiving by entering a plea of guilty. At no point 

did appellant assert actual innocence. “[A] defendant who has entered a guilty plea 

without asserting actual innocence is presumed to understand that he has completely 

admitted his guilt.” Id. at ¶ 19. “In such circumstances, a court’s failure to inform the 

defendant of the effect of his guilty plea as required by Crim.R. 11 is presumed not to be 

prejudicial.” Id. 

{¶25} Further, defense counsel expressed on the record that he had spoken with 

the defendant and that the defendant “fully understands what’s going on[.]” Both 

defense counsel and the prosecution expressed that they were satisfied that Crim.R. 11 

had been complied with by the trial court. The record also reflects that appellant had a 

criminal history, was familiar with the justice system, and apologized for his “bad 

decisions” at sentencing. The totality of circumstances reflects that appellant understood 

that a plea of guilty is a complete admission of guilt and the effects of the plea. Under 

these circumstances, appellant entered a valid guilty plea. The fourth assignment of error 

is overruled. 
{¶26} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. The 

court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

LARRY A. JONES, SR., A.J., and 

EILEEN T. GALLAGHER, J., CONCUR