2018 Ohio 1924
Ohio Ct. App.2018Background
- Belmont County grand jury indicted Austin Gheen for burglary (felony 2) and theft (felony 3); he initially pleaded not guilty.
- State and Gheen reached a plea deal: burglary count amended to a third-degree felony (R.C. 2911.12(A)(3)) and theft dismissed; Gheen pleaded guilty to amended burglary.
- At the sentencing hearing, the court imposed 36 months for the burglary and 12 months for a separate postrelease-control violation, to run consecutively for a total of 48 months, and ordered restitution.
- Appellant timely appealed; appointed counsel filed a Toney no-merit brief and moved to withdraw.
- The appellate court reviewed the plea colloquy and found the trial court failed to orally advise Gheen of his right to a jury trial at the plea hearing (the plea form mentioned it, but the court did not).
- The court granted counsel’s motion to withdraw under Toney, ordered new counsel to be appointed to file a full brief, and allowed the State 30 days to respond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the guilty plea complied with Crim.R. 11(C)(2) (required oral advisement of constitutional rights) | The plea and written form together show Gheen understood rights and the plea was valid | The plea colloquy omitted advising Gheen of his right to a jury trial, so the plea did not strictly comply with Crim.R. 11(C)(2) | Trial court failed to strictly comply: it did not orally advise of the jury trial right; written form alone insufficient for Crim.R.11(C)(2)(c) compliance |
| Whether counsel properly sought withdrawal under State v. Toney and whether the appellate court should apply that procedure | Toney procedure was followed and appropriate because the Toney brief/motion was filed before Cruz-Ramos | (No separate argument from appellant on this procedural point) | Court applied Toney (because counsel filed before Cruz-Ramos), granted withdrawal, and ordered new counsel to file a complete brief |
Key Cases Cited
- State v. Toney, 23 Ohio App.2d 203 (Ohio Ct. App.) (procedure for court-appointed counsel to file a no-merit brief and seek to withdraw)
- Brady v. United States, 397 U.S. 742 (U.S. 1970) (pleas must be considered in light of all relevant circumstances)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (guilty pleas must be knowing, voluntary, and intelligent)