2019 Ohio 4817
Ohio Ct. App.2019Background
- Neil Perin was charged with one count of domestic violence after a hotel voicemail allegedly recorded his wife being harmed; he initially pled not guilty.
- At pre-arraignment a jail video played in which the municipal judge explained that a guilty plea is a "complete admission of guilt."
- At a later pretrial hearing Perin, through counsel, changed his plea to guilty; the court accepted the plea, found him guilty, imposed 180 days in jail and a $1,000 fine, and suspended the jail term and $900 of the fine subject to conditions.
- The State moved to impose the suspended sentence for alleged violations; Perin stipulated and the court imposed the 180-day sentence with credit for time served.
- Perin filed post-sentence motions to withdraw his plea and appeals; the appellate court allowed a delayed appeal from the March 6 and May 9, 2018 journal entries but dismissed review of the June 25 denial of his first motion to withdraw as untimely.
Issues
| Issue | Plaintiff's Argument (Perin) | Defendant's Argument (State / Court) | Held |
|---|---|---|---|
| Whether the plea was knowing, intelligent, voluntary under Crim.R. 11 | Court failed to conduct a Crim.R. 11 colloquy informing Perin of consequences and constitutional rights waived | Crim.R. 11(E) for petty misdemeanors requires only informing defendant of effect of plea; the video explanation satisfied that requirement | Plea valid: court complied with Crim.R. 11(E); prior video sufficed to inform Perin that a guilty plea is a complete admission of guilt |
| Prosecutorial misconduct | Prosecutor made unsubstantiated statements to Perin’s wife and told court Perin violated no-contact order to coerce plea | No record evidence that prosecutor made those statements to the wife; prosecutor’s comment about contact occurred after plea and could not have coerced it | Claim rejected: no evidence of misconduct that affected the plea |
| Ineffective assistance of counsel | Counsel failed to object to deficient colloquy, failed to advise re: constitutional rights, and failed to present evidence of prosecutorial misconduct | Crim.R.11(E) compliance made such an objection futile; record silence does not prove counsel’s failure; speculative prejudice insufficient | Claim rejected: Perin failed to show deficient performance or prejudice under Strickland |
| Trial court’s denial of post-sentence motion to withdraw plea | Denial was erroneous because plea was unknowing and involuntary | Perin failed to file a timely appeal from the June 25 order denying his first motion to withdraw; appellate court lacks jurisdiction to review that denial | Review of that denial dismissed for lack of jurisdiction; other judgments affirmed |
Key Cases Cited
- State v. Veney, 897 N.E.2d 621 (Ohio 2008) (explains totality-of-the-circumstances and substantial-compliance standard for plea colloquies)
- State v. Jones, 877 N.E.2d 677 (Ohio 2007) (distinguishes Crim.R.11 requirements by offense level and construes Crim.R.11(E) for petty misdemeanors)
- State v. Engle, 660 N.E.2d 450 (Ohio 1996) (plea must be knowing, intelligent, and voluntary)
- State v. Nero, 564 N.E.2d 474 (Ohio 1990) (defines substantial compliance with Crim.R.11)
- State v. Griggs, 814 N.E.2d 51 (Ohio 2004) (nonconstitutional plea rights require substantial rather than strict compliance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficient performance and prejudice)
- State v. Gondor, 860 N.E.2d 77 (Ohio 2006) (presumption of attorney competence and appellant’s burden to prove ineffective assistance)