State v. Rozell
111 N.E.3d 861
Ohio Ct. App.2018Background
- Defendant Brian Rozell was indicted on OVI (third-degree felony) with a prior-offense specification and endangering children; several other Clark County charges were also pending.
- Attorney Rebekah Sinnott negotiated a plea: Rozell would plead guilty to the OVI felony, the State would dismiss other charges and the specification, remain silent at sentencing, and Rozell would pay restitution; Rozell pled guilty on April 24, 2015.
- Over a year later Sinnott withdrew; new counsel John Juergens filed a presentence motion to withdraw the guilty plea alleging ineffective assistance by Sinnott and that Rozell pleaded while withdrawing from Suboxone.
- At the hearing Rozell testified that Sinnott failed to review discovery, advise on penalties or alternative defenses, and coerced his plea; the State called Sinnott to rebut, over Rozell’s attorney-client privilege objection.
- The trial court found Rozell waived privilege by testifying, credited Sinnott’s testimony, denied the motion to withdraw, sentenced Rozell to 36 months, fined him $5,000 and suspended his license for 25 years.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rozell) | Held |
|---|---|---|---|
| Whether the trial court erred by allowing former counsel to testify over privilege objection | Former counsel may be called because Rozell put privileged communications at issue by testifying about them | Sinnott’s testimony violated attorney-client privilege and Rozell did not waive it | Court: Rozell waived privilege by testifying about counsel’s advice; former counsel could testify; no error |
| Whether the court abused discretion by denying the presentence motion to withdraw plea | The plea was knowing and voluntary; plea negotiation was beneficial; key witness died so State would be prejudiced by withdrawal | Plea was involuntary due to withdrawal from Suboxone and ineffective counsel; sought timely withdrawal | Court: Balanced Fish factors and found no reasonable, legitimate basis to withdraw; denial not an abuse of discretion |
| Whether Rozell received ineffective assistance from Sinnott (and Juergens) | Counsel’s performance was competent; plea reduced exposure and led to dismissals; cross-examination choices were trial strategy | Counsel failed to review discovery, advise re: penalties/defenses, and Sinnott coerced plea | Court: No deficient performance nor prejudice shown; ineffective-assistance claim fails |
Key Cases Cited
- State v. Xie, 62 Ohio St.3d 521 (Ohio 1992) (presentence motions to withdraw plea should be freely and liberally granted but are subject to trial-court discretion)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prejudice showing for guilty-plea ineffective-assistance claims requires reasonable probability defendant would not have pleaded guilty but would have gone to trial)
- State v. Fish, 104 Ohio App.3d 236 (Ohio App. 1995) (enumerated factors for evaluating presentence plea-withdrawal motions)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (Strickland standard adopted for Ohio law)