2018 Ohio 2752
Ohio Ct. App.2018Background
- Kennard was indicted for felonious assault (second-degree felony) and misdemeanor domestic violence after severely beating his girlfriend; domestic-violence count later dismissed in plea deal.
- On June 8, 2017, Kennard withdrew a suppression motion and pleaded guilty to felonious assault in exchange for dismissal of the misdemeanor and a negotiated cap of three years’ imprisonment.
- The written plea form did not state the three-year cap, but the cap and the possibility (not guarantee) of probation were discussed on the record at the plea hearing.
- New defense counsel was appointed before sentencing; Kennard told new counsel he believed he had been guaranteed community control and then moved to withdraw his plea at sentencing.
- The trial court denied the motion to withdraw without a hearing, sentenced Kennard to two years in prison, and Kennard appealed through Anders counsel asserting (among other things) Crim.R. 11 defects and improper denial of plea withdrawal.
- The appellate court independently reviewed the plea transcript, found Crim.R. 11 compliance and no meritorious claim that the plea was involuntary or that the court abused its discretion in denying withdrawal, and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Kennard’s guilty plea knowing, intelligent, and voluntary under Crim.R. 11? | State: The plea colloquy satisfied Crim.R. 11; defendant understood charges, rights waived, penalties, and three-year cap. | Kennard: Plea was not voluntary because he believed he was guaranteed community control. | Court: Plea was knowing/voluntary; Crim.R. 11 complied with; no non-frivolous claim. |
| Did the trial court strictly/substantially comply with different Crim.R. 11 requirements? | State: Non-constitutional matters require substantial compliance; constitutional waivers require strict compliance; the court complied accordingly. | Kennard: Alleged inadequate advisement and alleged promise of community control by prior counsel. | Court: Record shows substantial/strict compliance as required; no merit to Crim.R. 11 challenge. |
| Should Kennard have been permitted to withdraw his plea? | State: No; plea colloquy and counsel statements show only a cap and possibility of probation, not a promise of community control; trial court properly denied withdrawal. | Kennard: Believed prior counsel promised community control and thus sought to withdraw plea. | Court: Denial of motion to withdraw without a hearing was not an abuse of discretion; no reasonable basis shown to withdraw. |
| Was the Anders appeal frivolous and should appellate counsel be relieved? | State: After independent review, there are no non-frivolous issues; appeal is frivolous. | Kennard: (No pro se brief filed raising other issues.) | Court: Independent review found no non-frivolous issues; affirmed judgment. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (Anders procedure for counsel seeking to withdraw when appeal lacks merit)
- Penson v. Ohio, 488 U.S. 75 (court must perform independent review when counsel files Anders brief)
- State v. Clark, 119 Ohio St.3d 239 (Ohio 2008) (trial courts urged to literally comply with Crim.R. 11; strict compliance required for constitutional rights)
- State v. Nero, 56 Ohio St.3d 106 (Ohio 1990) (substantial compliance standard for nonconstitutional aspects of Crim.R. 11)
- State v. Veney, 120 Ohio St.3d 176 (Ohio 2008) (prejudice requirement when challenging nonconstitutional Crim.R. 11 errors)
- State v. Xie, 62 Ohio St.3d 521 (Ohio 1992) (presentence motions to withdraw pleas should be freely and liberally granted; factors to consider)