State v. Ober
2019 Ohio 843
Ohio Ct. App.2019Background
- James S. Ober pled guilty at a consolidated change-of-plea hearing on Sept. 15, 2009 to OVI charges from March and April 2009 (two Portage County cases). Counsel Thomas Sicuro represented him and the court conducted a plea colloquy.
- The court accepted the pleas, dismissed other counts, and imposed fines and partially suspended 180-day jail sentences in each case.
- Ober filed a delayed pro se appeal in 2009 that was dismissed as untimely. Probation was later modified and his license suspended for nonpayment.
- On Feb. 20, 2018, nine years after the plea, Ober filed motions to withdraw his guilty pleas. The court scheduled a hearing for Apr. 6, 2018 and sent notice to the address on Ober’s motion.
- Ober did not appear at the Apr. 6, 2018 hearing; the trial court denied the motions to vacate for failure to appear and on the merits. Ober appealed, arguing (1) lack of notice of the hearing and (2) ineffective assistance of counsel that rendered the pleas unknowing.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ober) | Held |
|---|---|---|---|
| Whether the trial court erred by denying the post-sentence motion to withdraw guilty plea after Ober failed to appear | Notice was properly sent to the address Ober used; failure to appear warranted denial and no record shows defective service | Ober claimed he did not receive notice of the hearing | Affirmed: Notice was sent to the address used; no evidence of defective service; denial proper after failure to appear |
| Whether Ober received ineffective assistance of counsel that requires withdrawal of his plea | Counsel’s performance was not shown to be deficient and Ober did not show prejudice or facts supporting manifest injustice | Ober contended he was unaware he pled guilty to both cases and was pressured into the plea; counsel and court combined cases without his knowledge | Affirmed: Plea colloquy shows Ober knowingly, intelligently, voluntarily pled; no factual showing of deficient performance or prejudice; nine-year delay undermined credibility |
| Whether an evidentiary hearing was required on the post-sentence motion | No hearing required where the movant’s allegations, accepted as true, would not entitle him to relief | Ober sought an evidentiary hearing to develop ineffective-assistance facts | Affirmed: No hearing required because accepted allegations would not mandate withdrawal; self-serving assertions insufficient |
| Whether delay in filing the motion affected credibility and entitlement to relief | Long delay (nine years) militates against granting relief and undermines credibility | Ober argued nonetheless that ineffective assistance and lack of notice justified relief | Affirmed: Undue delay adversely affected credibility; buyer’s remorse insufficient to show manifest injustice |
Key Cases Cited
- Stumpf v. State, 32 Ohio St.3d 95 (Ohio 1987) (describes post-sentence withdrawal standard and limits)
- Caraballo v. State, 17 Ohio St.3d 66 (Ohio 1985) (explains policy discouraging plea withdrawals after harsher-than-expected sentences)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard: deficiency and prejudice)
- Bush v. State, 96 Ohio St.3d 235 (Ohio 2002) (undue delay in filing post-conviction/withdrawal motions undermines credibility)
- State v. Smith, 49 Ohio St.2d 261 (Ohio 1977) (motions to withdraw pleas addressed to trial court’s discretion)