State v. Farkosh
2015 Ohio 3588
Ohio Ct. App.2015Background
- Gary Farkosh and his son were indicted on multiple counts (insurance fraud, theft, forgery, tampering with records, telecommunications fraud, falsification); both initially retained the same private attorney and pleaded not guilty.
- The prosecutor offered a packaged plea: each would plead guilty to specified counts (father additionally to telecommunications fraud) and remaining charges would be dismissed; each defendant’s deal depended on the other’s plea.
- Both father and son pleaded guilty on September 9, 2014 under that package; the plea later produced a Crim.R. 11 colloquy at entry.
- Before sentencing, Farkosh discharged original counsel, retained new counsel, and filed a presentence motion to withdraw his guilty plea, asserting the plea was not knowing/voluntary because original counsel had a conflict by jointly representing father and son and pressured him into the package deal.
- At sentencing the trial court heard abbreviated argument, briefly acknowledged there were representation “issues,” focused on the Crim.R. 11 colloquy, and denied the motion without holding a full evidentiary hearing or resolving whether an actual conflict existed.
- The court of appeals reversed and remanded for a full hearing, concluding the trial court abused its discretion by failing to adequately inquire into the conflict-of-interest claim and by not affording a full and fair hearing on the motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying presentence motion to withdraw plea | State argued plea was valid based on Crim.R. 11 colloquy and no basis shown to withdraw | Farkosh argued plea was involuntary due to counsel’s conflict from jointly representing father and son and pressure to accept packaged deal | Reversed: trial court abused discretion by denying without full hearing to resolve possible conflict and prejudice |
| Whether trial court had duty to inquire into potential conflict | State implicitly relied on adequacy of plea colloquy and record | Farkosh argued court knew or should have known of possible conflict and had affirmative duty to inquire | Court held trial court should have further inquired when presented with prima facie conflict claim |
| Whether abbreviated hearing satisfied Peterseim factors | State contended court’s limited discussion and Crim.R. 11 compliance sufficed | Farkosh argued hearing was incomplete, no evidence, no impartial full hearing on withdrawal motion | Court found prongs 1, 3, and 4 of Peterseim not satisfied; full hearing required |
| Whether alleged conflict rises to ineffective assistance of counsel | State argued no demonstrated prejudice or deficient performance | Farkosh argued joint representation in packaged plea created inherent conflict potentially affecting counsel’s advice and plea choice | Court treated ineffective-assistance/conflict claim as subsumed under Peterseim first factor and required further inquiry and evidentiary hearing |
Key Cases Cited
- State v. Xie, 62 Ohio St.3d 521 (Ohio) (presentence plea-withdrawal should be freely and liberally allowed; court must hold a hearing to determine reasonable and legitimate basis)
- State v. Gillard, 64 Ohio St.3d 304 (Ohio) (trial court has affirmative duty to inquire into potential conflicts when it knows or reasonably should know of them)
- State v. Peterseim, 68 Ohio App.2d 211 (Ohio App.) (four-part test for review of denial of motion to withdraw plea: competent counsel, full Crim.R. 11 hearing, complete and impartial hearing on motion, and full/fair consideration)