State v. AcostaState v. Acosta
SINGER, J.
{¶ 1} Appellant, Michael Acosta, appeals from the October 8, 2015 judgment of the Wood County Court of Common Pleas accepting appellant‘s guilty plea to and convicting him of attempted felonious assault and sentencing him to 18 months of imprisonment.
{¶ 3} Appellant‘s counsel states in his motion that he thoroughly reviewed the record in this case and concluded that the trial court did not commit any error prejudicial to appellant. However, in compliance with the requirements of Anders, appellant‘s counsel has submitted a brief setting forth two potential assignments of error, but he concludes that they are unsupported by the record and/or by the law.
{¶ 4} First, appellant‘s counsel considered a potential assignment of error related to whether appellant entered a knowing, intelligent, and voluntary guilty plea at the
{¶ 5} Appellant was indicted on charges of felonious assault and abduction. The day before trial, a
{¶ 6} A guilty or no contest plea must be made knowingly, intelligently, and voluntarily to be valid under both the United States and Ohio Constitutions. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, before accepting a plea of guilty or no contest to a felony offense,
{¶ 7} Whether the rights involved are constitutional or non-constitutional, literal compliance with
{¶ 8} Because the defendant gives up significant constitutional rights by entering a guilty or no contest plea, the trial court must strictly comply with
{¶ 9} If the reviewing court determines the trial court did not substantially comply with
{¶ 10} Civ.R. 11(C)(2) requires that the court determine “the defendant is making the plea voluntarily, with understanding of the * * * the maximum penalty involved * * *.”
{¶ 11} Appellate counsel first considered whether the trial court erred when it did not inform appellant of the maximum possible sentence appellant faced. We agree this argument lacks merit. The written plea agreement clearly stated the maximum sentence which could have been imposed. At the
{¶ 12} Furthermore, a trial court is required by
{¶ 13} In the case before us, appellant‘s attorney argues the trial court informed appellant he was waiving his right to a jury trial, but it did not inform appellant that he was also waiving his right to a bench trial. The plea agreement did include a statement that appellant was waiving both his right to a “jury trial or court trial.”
{¶ 14} First, we find
{¶ 15} Therefore, we agree that the first proposed assignment of error lacks merit.
{¶ 16} In his second potential assignment of error, appellant‘s attorney identified a possible error regarding whether the trial court erred by not allowing appellant to withdraw his guilty plea. Appointed counsel concluded the argument is not supported by the record.
{¶ 17} There is no absolute right to withdraw a guilty plea after conviction, but prior to sentencing, State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph one of the syllabus, and the matter is left to the sound discretion of the trial court, which is in the better position to evaluate both the motivation of the defendant in pleading guilty and the credibility and weight to be given to the reasons for seeking to withdraw the plea. Id. at paragraphs one and two of the syllabus. An appellate court will not reverse the trial court‘s denial of the motion unless the defendant can establish that the trial court abused its discretion. Id. at 525. An abuse of discretion standard requires a finding that the trial court committed “more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable * * *.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge. State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001).
A change of heart is an insufficient reason to permit withdrawal of the plea. State v. Williams, 6th Dist. Lucas Nos. L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 13 (citations omitted).
{¶ 19} Appellant‘s plea was accepted on June 2, 2015, and sentencing was scheduled for June 30, 2015. On the day of sentencing, appellant orally moved to
{¶ 20} At the time of the plea, appellant acknowledged he was satisfied with his appointed counsel‘s representation. Appellant testified he had understood his rights during the plea hearing and he had not been under the influence of alcohol or elicit substances at the time nor a mental distress disorder at the time of the plea.
{¶ 21} After the guilty plea had been entered, appellant sought to withdraw his plea asserting his appointed counsel had not investigated a witness who could have provided testimony contrary to the victim. His attorney also had not investigated an incident appellant was aware of which could have damaged the victim‘s credibility. Appellant believed he had a meritorious defense to the crime.
{¶ 22} The state argued that there was no basis for withdrawal of the plea. The court also noted the state had dismissed a count in exchange for the plea, which could have added an additional three years of incarceration. Furthermore, the negotiated plea reduced appellant‘s sentence from a potential eight years to 18 months. The court noted appellant‘s prior appointed counsel was very experienced and competent.
{¶ 23} We agree with appellate counsel there is no basis for arguing the trial court abused its discretion by denying the motion to withdraw the plea. Considering the factors above, we find that although the state did not allege it would be prejudiced by withdrawal of the plea, appellant failed to demonstrate a sufficient basis for withdrawing his plea.
{¶ 24} While appellant stated he was dissatisfied with his trial counsel‘s failure to investigate a defense witness, appellant produced no evidence to support a finding that this witness would have provided exculpatory evidence or that his trial counsel did not investigate the case thoroughly. While appellant asserts that he was not guilty and had a complete defense to the charge, he did not support that allegation with any evidence. Appellant identified a witness whom he said could exonerate appellant, but there was no evidence that the witness was willing to testify or could be located.
{¶ 25} Furthermore, the trial court was satisfied that appellant‘s counsel was very competent. Appellant had not complained of his counsel‘s representation at the time of the plea hearing and all of the facts appellant alleged were not investigated were known at that time. The trial court concluded that appellant‘s counsel had been able to negotiate a plea to reduce appellant‘s sentence from a potential eight years of imprisonment to 18 months.
{¶ 26} The
{¶ 27} Therefore, we agree with appellate counsel the second proposed assignment of error lacks merit as well.
{¶ 28} Finally, this court has the obligation to fully examine the record in this case to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial court which would justify a reversal of the judgment. Therefore, we find this appeal to be wholly frivolous. Counsel‘s request to withdraw as appellate counsel is found well-taken and is hereby granted.
{¶ 29} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________
JUDGE