State v. AleshireState v. Aleshire
For Plaintiff-Appellee
KENNETH W. OSWALT Licking County Prosecutor 20 S. Second Street, 4th Floor Newark, OH 43055
For Defendant-Appellant
LONNY J. ALESHIRE, JR. Chillicothe Correctional Institution 15802 SR 104, North Chillicothe, OH 45601
{¶1} Defendant-appellant Lonny J. Aleshire, Jr., appeals a judgment of the Court of Common Pleas of Licking County, Ohio, which overruled his motion for a new trial and motion to withdraw his guilty plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE1
{¶2} Appellant was indicted by the Licking County Grand Jury on one count of rape, six counts of unlawful sexual conduct with a minor, and three counts of sexual imposition. At the change of plea hearing appellant pled guilty to all counts, and the court found him guilty of the same. Upon acceptance of the plea, the court allowed the State to dismiss Case No. 05 CR 69, a second indictment filed against appellant that alleged sexual battery.
{¶3} During appellant‘s plea hearing, the following exchange occurred:
{¶4} “Q. You understand that a guilty plea is a complete admission of the charges filed against you?
{¶5} “A. Yes, Your Honor.
{¶6} “Q. And did your attorney explain that to you?
{¶7} “A. Yes, Your Honor.
{¶8} “Q. At this time, I am going to ask the assistant prosecutor to present the facts of the State‘s case against you. I want -- in Case Number 05 CR 60. If there is a disagreement, I‘m going to ask you whether you agree with the facts. If there is a disagreement regarding the facts, I want to clear that up on the record. Before you answer, please consult with your attorney.
{¶10} “MS. SEEDS: Thank you, Your Honor.
{¶11} “The defendant in this matter has been charged with one count of rape, in violation of
{¶12} “He‘s also been charged with six counts of unlawful sexual conduct with a minor, in violation of
{¶13} “Finally, he‘s been charged with three counts of sexual imposition, in violation of
{¶14} “The basis for these charges are as follows: The defendant was born on September 15th, 1970. He was residing at 503 East Main Street Hebron, Licking County, Ohio with his family. His father, Lonny Aleshire, Senior, is a pastor at the Licking Baptist Church located at 1609 Beaver Run Road, Hebron, Ohio, Licking County. The defendant worked part-time at the church with the choir and with the youth group. When his father was ill in the past, the defendant would fill in for him by giving the sermon. It was through the church that he met both the victims.
{¶15} “[S.C.] was born August 3rd, 1989, and had just turned 13 years of age in August of 2002 when the defendant began to make inappropriate advances toward her. He first started by holding her hand, telling her he loved her, and then this
{¶16} “The defendant‘s second victim was [S.C.‘s] sister, [J. C.] Her date of birth is January 2nd, 1988, and in June of 2004, the first weekend after school was out for the summer, [J.C.] being 16 years of age at the time, agreed to babysit for the defendant‘s children. After arriving home, the defendant was to drive her home but, instead, he detoured to the church. Once inside the church, the defendant began kissing her and telling her he loved her. He then forced her to the ground and engaged in sexual intercourse with her. He then performed oral sex on her and requested she do the same.
{¶17} “Q. (By the Court) Mr. Aleshire, do you agree with the facts as presented?
{¶18} “A. Your Honor, I have no exception.
{¶19} “Q. And have you discussed these facts fully and completely with your attorney?
{¶20} “A. Yes, Your Honor.
{¶21} “Q. And has your attorney advised you of all possible defenses and all motions that could be filed in your behalf?
{¶22} “A. Yes, Your Honor.
{¶23} “Q. And are you satisfied with your attorney?
{¶25} “Q. You understand that no one can force you to change your pleas today?
{¶26} “A. Yes, Your Honor.
{¶27} “Q. Are you doing this freely and voluntarily?
{¶28} “A. Yes, Your Honor.
{¶29} “Q. Knowing what your rights are?
{¶30} “A. Yes, Your Honor.
{¶31} “Q. Knowing what the penalties are?
{¶32} “A. Yes, Your Honor
{¶33} “* * *
{¶34} “Q. Do you want me to accept your pleas of guilty?
{¶35} “A. Yes, Your Honor.
{¶36} “Q. And are you pleading guilty because you are guilty?
{¶37} “A. Yes, Your Honor.”
{¶38} The change of plea forms reflect that the parties jointly recommended that appellant receive six years on the rape count. Further, it was recommended that one year terms be imposed for each count of unlawful sexual conduct and six month terms for each count of sexual imposition. The one-year and six month terms would run concurrent to each other for a total of one year. This one-year sentence would be run “consecutive to Case No. 05 CR 69,” which was the case that the trial court allowed to be dismissed. The court departed from the recommendation as to the rape count and imposed a seven-year prison term for that count. The Court followed the one-year and
{¶39} The trial court proceeded to sentencing immediately after accepting appellant‘s negotiated guilty plea and entering its finding of guilt. During the sentencing portion of the proceedings, the trial court informed appellant as follows:
{¶40} “The Court would notify the defendant that upon your release from prison, you will be on post-release control, and that is mandatory and would be for a period of five years. And if you violate that post-release control, you could be returned to prison for up to nine months with the maximum for repeated violations equaling 50 percent of our stated prison term, and if the violation is a new felony, you may be returned to prison for the remaining post release control period or 12 months, whichever is greater, plus a prison term for the new crime.
{¶41} “The Court has exceeded the minimum term in this case by reason of the fact that it is a negotiated plea.” (T. at 23-24).
{¶42} On November 1, 2006, appellant filed a pro se Motion to Withdraw Plea of Guilty, to which he attached his own affidavit, the change of plea forms, and a letter from his trial counsel regarding his sentence. The State opposed the motion, and appellant filed a reply to the State‘s memorandum. Through an entry filed December 1, 2006, without holding a hearing on the matters raised in the Motion to Withdraw Plea of Guilty, the trial court denied the motion.
{¶43} In State v. Aleshire, Licking App. No.2007-CA-1, 2007-Ohio-4446 [”Aleshire I “], we affirmed the trial court‘s denial of appellant‘s motion to withdraw his
{¶44} The Supreme Court of Ohio then reviewed the matter. Initially the Supreme Court vacated the appellant‘s plea and remanded for a new hearing. State v. Aleshire, 117 Ohio St.3d 402, 884 N.E.2d 57, 2008-Ohio-1272. Upon motion of the State, the Supreme Court reconsidered and remanded to this Court for further review. State v. Aleshire, 118 Ohio St.3d 1213, 889 N.E.2d 136, 2008-Ohio-2700.
{¶45} Upon remand from the Supreme Court of Ohio, this Court was asked to consider whether this court‘s ruling on defendant-appellant‘s sole assignment of error, concerning the trial court‘s overruling of his post-sentence motion to withdraw his negotiated guilty plea, should be modified in light of State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. See, State v. Aleshire (June 11, 2008), 2008-Ohio-2700, 118 Ohio St.3d 1213, 889 N.E.2d 136. On remand, this Court upheld appellant‘s conviction and sentence. See, State v. Aleshire, Licking App. 2007-CA-1, 2008-Ohio-5688 [“Aleshire II“].
{¶46} On September 29, 2009 appellant filed a “Motion for a New Trial” claiming newly discovered evidence. The state responded. On October 15, 2009 appellant filed a “Memorandum Contra and Alternative Motion to Withdraw Guilty Plea.” On October 30, 2009, the trial court denied the motion for a new trial and appellant‘s second motion to withdraw his plea of guilty. The trial court found that it lacked jurisdiction citing this Court‘s decision in State v. Fletcher, Licking App. No. 2009-CA-0055, 2009-Ohio-5650.
{¶48} It is from the trial court‘s Judgment Entry filed October 30, 2009 that appellant has filed the instant appeal raising as his sole assignment of error:
{¶49} “I. THE TRIAL COURT ERRED IN FINDING IT LACKED JURISDICTION TO HEAR APPELLANT‘S MOTION FOR A NEW TRIAL AND MOTION TO WITHDRAW GUILTY PLEA.”
I.
{¶50} In his sole assignment of error, appellant argues that this Court has previously reviewed and affirmed that the trial court substantially complied with
{¶51} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473.
{¶52} A plea of guilty constitutes a complete admission of guilt.
{¶54} Pleas of guilty that are knowingly, voluntarily, and intelligently entered waive the defendant‘s right to trial on the criminal charge or charges involved. It necessarily follows, therefore, that “[a] plea of guilty in a criminal case precludes the defendant from thereafter making a motion for a new trial.” State v. Frohner (1948), 150 Ohio St. 53, paragraph thirteen of the syllabus; State, ex rel. Batten v. Reece, 70 Ohio St.2d 246, 436 N.E.2d 1027; State v. Franklin, Greene App. No. 2002-CA-7, 2003-Ohio-3831 at ¶10.
{¶55} Moreover, allowing a defendant to file a motion for new trial instead of a motion to withdraw the plea permits the defendant to circumvent the more stringent standard set forth in seeking a withdrawal of a plea. State v. Frohner, supra. See, also State v. Woodley, Cuyahoga App. No. 83104 at n. 2. (Citing State v. Burke (Mar. 9, 2001), 2nd Dist. No. 17955; State v. Vincent, 4th Dist. No. 02CA2654, 2003-Ohio-473, at ¶ 20; State v. Franklin, 2nd Dist. No.2002 CA 77, 2003-Ohio-3831).
{¶56} Accordingly, because appellant entered guilty pleas to all the charges and waived his right to have a jury determine his guilt or innocence, the trial court correctly determined that it did not have jurisdiction to rule upon appellant‘s motion for a new trial. Therefore, we affirm the trial court‘s decision dismissing his motion for a new trial
{¶57} However, because appellant subsequently filed a “response/motion” which motion is in essence a motion to withdraw his plea, we will proceed to review the trial court‘s denial of his motion pursuant to the standard for a post-sentence withdrawal of a plea2.
{¶58} In the case at bar, appellant is not arguing that he maintained his innocence during the change of plea hearing with the trial court3. State v. Woodley at ¶12. Thus, he made a conscious choice to enter into the plea. A guilty plea is a complete admission of the defendant‘s factual guilt. See, Aleshire I, supra at ¶ 8.
{¶59}
{¶60} The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the syllabus. A manifest injustice has been defined as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner (1998), 83 Ohio St.3d 203, 208. “‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s]
{¶61} The Ohio Supreme Court in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, rejected a post-sentence motion to withdraw a plea even though the defendant presented evidence of his innocence. In that case, the defendant sought to withdraw his plea based on testimony made at a subsequent trial of another participant, which indicated the defendant who had pleaded guilty did not commit the shooting. The Court held:
{¶62} “A plea of guilty is a complete admission of guilt. By entering his guilty plea to the principal charge and to the specification under
{¶64} In the instant case, by pleading guilty, appellant admitted the allegations as set forth by the prosecutor. This Court has previously found that his plea was knowingly, intelligently, and voluntarily entered. To the extent that appellant raises issues in his
{¶65} Accordingly, the trial court correctly determined that it did not have jurisdiction to rule upon appellant‘s motion to withdraw his guilty plea. Therefore, we
{¶66} However, the trial court based its decision upon this Court‘s decision in State v. Fletcher, Licking App. No. 2009-CA-0055, 2009-Ohio-5650. In Fletcher we noted, “We agree with the Eighth District‘s reasoning [in State v. Dawson, Cuyahoga App. No. 87102, 2006-Ohio-3505]. We find the trial court was correct in determining it lacked jurisdiction over the issues appellant attempted to raise in his motion to withdraw his plea. The issues are the same as those appellant raised in his prior appeal before this court. Id. at ¶ 14. (Emphasis added).
{¶67} Even without a remand, a trial court could regain jurisdiction to do an act that was “not inconsistent” with our prior exercise of jurisdiction, i.e., entertain a petition for post-conviction relief, or even entertain a
{¶68} Under the doctrine of res judicata, a final judgment bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that the defendant raised or could have raised at trial or on appeal. State v. Szefcyk (1996), 77 Ohio St.3d 93, 96, 671 N.E.2d 233, reaffirming State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. “More specifically, a criminal defendant cannot raise any issue in a post sentence motion to withdraw a guilty plea that was or could have been raised at trial or on direct appeal. State v. Reed, Mahoning App. No. 04 MA 236, 2005-Ohio-2925, 2005 WL 1385711; State v. Zinn, Jackson App. No. 04CA1, 2005-Ohio-525, 2005 WL 318690; State v. Robinson, Cuyahoga App. No. 85266, 2005-Ohio-4154, 2005 WL 1926043; State v. Rexroad, Summit App. No. 22214, 2004-Ohio-6271, 2004 WL 2674605; State v. Reynolds, Putnam App. No. 12-01-11, 2002-Ohio-2823, 2002 WL 1299990; State v. Wyrick (Aug. 31, 2001), Fairfield App. No. 01CA17, 2001 WL 1025811; State v. Jackson (Mar. 31, 2000), Trumbull App. No. 98-T-0182, 2000 WL 522440; State v. Jeffries (July 30, 1999), Wood App. No. L-98-1316, 1999 WL 550251.” State v. Brown, supra 167 Ohio App.3d 242, 2006-Ohio-3266, at ¶ 7.
{¶69} In the case at bar, as a basis for his motion to withdraw his guilty plea, appellant claimed to have “newly discovered” evidence. The state responds that appellant‘s motion to withdraw his guilty plea was barred by the doctrine of res judicata since appellant has not shown that the issues raised in the motion could not have been raised in his earlier motions and in his earlier appeal. The state further asserts that our previous decisions affirming the trial court‘s denial of appellant‘s motion to withdraw his plea is the law of the case for these subsequent proceedings. The state asserts that appellant cannot show a manifest injustice, and that his request for withdrawal of his guilty plea was properly denied.
{¶70} However, the trial court did not address the merits of appellant‘s claim of “newly discovered” evidence in denying his motion. The trial court denied his motion, explaining that the court lacked jurisdiction ostensibly because appellant had raised no issues that he had not previously raised6.
{¶71} The key to a trial court‘s procedural posture must be that a defendant received a “full and fair consideration” of the plea withdrawal request. State v. Wooley (Dec. 13, 1985), Lucas App. No. L-85-105. “A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
{¶72} Upon review, we find the trial court did not give full and fair consideration to appellant‘s motion to withdraw his guilty plea due to the trial court‘s belief that it lacked jurisdiction to consider the motion.
By Gwin, P.J., and
Wise, J., concur;
Hoffman, J., concurs separately
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
WSG:clw 0518
{¶74} I concur generally in the majority‘s analysis and disposition of Appellant‘s assignment of error as concerning that portion of Appellant‘s motion to withdraw his guilty plea that falls outside the compass of this Court‘s previous judgment. My singular analytical disagreement with the majority relates to its conclusion the trial court did not have jurisdiction to rule upon Appellant‘s motion for a new trial (Majority Opinion at ¶56). While I agree with the majority‘s analysis as to why the trial court should have denied the motion, I believe such rational inherently involves the exercise of jurisdiction; not the lack of it.
{¶75} I also write to retreat from the decision I authored for this Court in State v. Davis, 2009-Ohio-5175. Although not cited in the majority opinion nor necessary to the majority‘s analysis in the case sub judice, Appellee relied, in part, on the Davis case in support of its contention the trial court lacked jurisdiction to entertain Appellant‘s motion for a new trial.
{¶76} Davis is significantly procedurally different from the case now under review. Upon revisiting Davis, I now believe my interpretation of State ex rel. Special Prosecutors (1978), 55 Ohio St.2d 94, was overly broad. The Ohio Supreme Court in Special Prosecutors found the trial court‘s granting of a motion to withdraw the guilty plea and the order to proceed with a new trial were inconsistent with the judgment of the Court of Appeals, which had affirmed the trial court‘s conviction premised upon that guilty plea. The Supreme Court concluded the trial court had no jurisdiction.
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Licking County Court of Common Pleas is affirmed in part and reversed in part and the cause is remanded for proceedings in accordance with our opinion and the law.
Costs to be split equally between the parties.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE