2019 Ohio 4223
Ohio Ct. App.2019Background
- Archie R. Hess III was secretly indicted on multiple counts including unlawful sexual conduct with a minor and sexual battery; state later offered a plea to two counts of gross sexual imposition (4th-degree felonies) and Tier I sex‑offender classification.
- On the day of trial, after waiving a jury and discussing the offer on the record, Hess signed a written plea agreement and entered guilty pleas following a Crim.R. 11 colloquy; the state dismissed the remaining counts and the court ordered a PSI.
- Weeks later Hess filed a pro se motion to withdraw his guilty plea claiming counsel pressured him, failed to authenticate evidence, and did not pursue his alibi; he also requested new counsel.
- The court held a hearing; Hess testified he was innocent and had asked counsel not to accept the plea, but the plea transcript showed he was advised of rights, the counts, and consequences and that he understood.
- The trial court denied the motion to withdraw, then sentenced Hess to community control including 180 days in jail (credit 5 days) and Tier I registration, warning that a community‑control violation could result in up to 18 months per count to be imposed consecutively.
- Hess appealed raising three assignments: (1) plain error for failure to make R.C. 2929.14(C)(4) consecutive‑sentence findings; (2) abuse of discretion in denying plea‑withdrawal; (3) ineffective assistance of counsel for allowing a guilty plea despite Hess’s asserted innocence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hess) | Held |
|---|---|---|---|
| Whether the trial court committed plain error by failing to make R.C. 2929.14(C)(4) findings when imposing consecutive 18‑month terms | No consecutive sentences were imposed; the court imposed community control (not a suspended prison sentence), so consecutive‑sentence findings were not required at initial sentencing | The court erred by failing to make required consecutive‑sentence findings and effectively imposed consecutive 18‑month terms | Held for State: no error — sentence was community control; R.C. 2929.14(C)(4) findings would only be required if, after a community‑control violation, the court imposed consecutive prison terms on revocation. |
| Whether the trial court abused its discretion by denying Hess’s pre‑sentence motion to withdraw his guilty plea | Hess knowingly, voluntarily, and intelligently pleaded guilty after a proper Crim.R. 11 colloquy; he failed to show a reasonable and legitimate basis to withdraw | Hess was pressured by counsel, did not understand he pleaded to two counts, and wanted to assert his alibi/innocence | Held for State: denial affirmed — full Crim.R.11 colloquy occurred, Hess had opportunity to consult counsel and the court, and he offered no evidence creating a reasonable/legitimate basis to withdraw. |
| Whether Hess received ineffective assistance of counsel by pleading guilty despite asserting innocence | Counsel’s performance was not shown to be deficient; the record shows a voluntary, informed plea and Hess did not show prejudice (no reasonable probability he would have gone to trial) | Counsel pressured him into pleading guilty and failed to pursue/allegeively pursue defenses and authentication, rendering the plea involuntary | Held for State: claim fails — mere allegation insufficient; record shows plea was voluntary and unsupported by evidence of deficient performance or prejudice. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (R.C. 2929.11/2929.12 do not require judicial fact‑finding)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of felony sentences under R.C. 2953.08)
- State v. Heinz, 146 Ohio St.3d 374 (Ohio 2016) (distinguishing community control from probation/suspended sentence)
- State v. Brooks, 103 Ohio St.3d 134 (Ohio 2004) (initial stated prison term serves as notice of maximum if community control is violated)
- State v. Fraley, 105 Ohio St.3d 13 (Ohio 2004) (trial court must comply with R.C. 2929.14 when imposing prison after community‑control violation)
- State v. Xie, 62 Ohio St.3d 521 (Ohio 1992) (motion to withdraw plea before sentencing requires reasonable and legitimate basis)
- Peterseim v. State, 68 Ohio App.2d 211 (Ohio Ct. App. 1980) (factors showing no abuse of discretion in denying plea‑withdrawal request)