2022 Ohio 2249
Ohio Ct. App.2022Background:
- Devin Depetro was indicted on two counts of endangering children and one count of tampering with evidence; he pleaded guilty to one count of second-degree endangering and the State dismissed the other two counts.
- Before sentencing Depetro filed a pre‑sentence motion to withdraw his guilty plea asserting he was innocent and wanted a trial; he did not testify or present evidence at the withdrawal hearing.
- At the hearing defense counsel stated Depetro felt pressured and was scared but asserted his innocence; the State opposed the motion, noting a full Crim.R. 11 colloquy had occurred.
- The trial court denied the motion to withdraw, ordered a presentence investigation, and sentenced Depetro to an indefinite term of 6 to 9 years’ imprisonment after detailing the child’s severe neglect and injuries.
- Depetro appealed raising four assignments of error: (1) denial of motion to withdraw plea, (2) ineffective assistance of counsel, (3) excessive sentence, and (4) plea not knowingly made.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Depetro) | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying pre‑sentence motion to withdraw plea | Plea was knowingly, voluntarily, intelligently made after full Crim.R.11 colloquy; withdrawal would prejudice State | Plea was involuntary; he is innocent, felt pressured/scared and wants to pursue defenses at trial | No abuse of discretion; trial court properly considered factors and denied motion — mere change of heart insufficient |
| Whether plea was not knowingly made because court failed to explain rebuttable presumption of prison | Crim.R.11 did not require explaining R.C.2929.13(D)(2); court substantially complied with Crim.R.11 | Court should have advised that the presumption of prison can be rebutted under R.C.2929.13(D)(2) | No error; trial court not required under Crim.R.11 to give that explanation and appellant offered no authority showing prejudice |
| Whether counsel was ineffective at withdrawal hearing for not calling witnesses or presenting evidence | Counsel’s choices were strategic; appellant’s speculation about different outcome is insufficient to show prejudice | Counsel’s failure to present evidence/witnesses was deficient and prejudiced the motion outcome | No ineffective assistance; tactical decisions are entitled to deference and appellant failed to show reasonable probability of different result |
| Whether 6‑year minimum sentence was excessive | Sentence is within statutory range and trial court considered R.C.2929.11/2929.12 and the record supports sentence | Sentence excessive given no prior record, employment, not biological father, and not present during abuse | Affirmed; sentence within statutory range, court addressed seriousness of offense and considerations, no clear and convincing basis to modify |
Key Cases Cited
- State v. Xie, 62 Ohio St.3d 521 (1992) (standards for pre‑sentence plea withdrawal)
- State v. Clark, 119 Ohio St.3d 239 (2008) (Crim.R.11 requirements and plea colloquy)
- State v. Veney, 120 Ohio St.3d 176 (2008) (Crim.R.11 procedures for felony pleas)
- State v. Bishop, 156 Ohio St.3d 156 (2018) (plea‑colloquy/due‑process discussion)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (objective standard for counsel performance)
- State v. Foster, 109 Ohio St.3d 1 (2006) (trial court discretion within statutory sentencing ranges)
- State v. Marcum, 146 Ohio St.3d 516 (2016) (standard for appellate review of felony sentences)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (definition of clear and convincing evidence)