State v. AleshireState v. Aleshire
{¶1} In State v. Aleshire, Licking App. No. 2007-CA-1, 2007-Ohio-4446 [“Aleshire I ], we affirmed the trial court‘s dеnial of appellant‘s motion to withdraw his negotiated guilty plea that appellant filed nearly one year after he began serving his prison sentence. 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.
{¶2} 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”].
{¶3} In 2009, appellant filed a motion for new trial and an additional motion to withdraw his plea. The trial court denied the motion for a new trial and appellant again appealed to this Court (Case No. 09-CA-132). [Aleshire III]. In Aleshire III, this court remanded to the trial court because it failed to give full and fair consideration to appellant‘s motion to withdraw his guilty plea based on newly discovered evidence.
{¶5} On April 26, 2011, appellant filed a “Motion to Vacate Void Judgment” which the trial court denied June 20, 2011.
{¶6} It is from the trial court’s June 20, 2011 Judgment Entry that appellant has appealed raising the following as his sole Assignment of Errоr,
{¶7} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT‘S MOTION TO VACATE VOID JUDGMENT.”
I.
{¶8} Appellant first argues that the trial court could not re-sentence him on the three counts of sexual imposition because he had already completed his sentence on those charges. [Appellant’s Brief at 6]. We disagree.
{¶9} Pursuant to State v. Fischer, 128 Ohio St. 3d 92, 2010– Ohio– 6238, the scope of the re-sentencing hearing was limited to the proper imposition of post-release control. In Fischer, the Supreme Court of Ohio held that when a defendant receives a sentence that does not properly include post-release control, “that part of the sentence is void and must be set aside. Neither the Constitution nor common sense commands anything more.” Fischer at ¶ 26. (Emphasis sic.) Thus, the Supreme Court modified its earlier decision in Bezak to clarify that “only the offending portion of the sentence is
{¶10} In the case at bar, appellant received an identical sentence to the one imposed on his original plea with the only exception being the notification of five years of mandatory post-release control. Under Fisher, all other parts of appellant’s sentence were valid and remained in full fоrce and effect. Thus, appellant cannot demonstrate prejudice from the trial court’s sentencing in the present case. He is in the same position he would have been in had the trial court held a Fisher hearing to simply advise him of post-release controls.
{¶11} Appellant concedes that he remains incarcerated for one count of rape. [Appellant’s Brief at 6]. Thus, the imposition of five years mandatory post-release control was proper.
{¶12} Appellant next argues that the trial court did not afford him his right to address the court pursuant to
{¶14} “(A) The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of or pleaded guilty to a felony and before resentencing an offender who was convicted of or pleaded guilty to a felony and whose case was remanded pursuant to section
{¶15} In the case at bar, appellant, appellant’s attorney and appellant’s wife each addressed the court prior to re-sentencing. (T. Dec. 7, 2010 at 16-17, 17-20; 25-26; 26-28). Thus, appellant’s assertions to the contrary in the present appeal are feckless.
{¶16} Appellant next argues that he was entitled to a hearing before the trial court overruled his November 1, 2006 and December 7, 2010 Motion to Withdraw Plea of Guilty. [Appellant’s Brief at 10]. We disagree.
{¶17} In Aleshire III, this court remanded to the trial court because it failed to give full and fair considеration to defendant‘s motion to withdraw his guilty plea based on newly discovered evidence. Upon remand, the trial court overruled this motion by Judgment Entry filed October 19, 2010.
{¶19} Three of the grounds asserted in appellant’s motions concerned the advisement of post-release controls and the jointly recommended sentence. In Aleshire I, we found appellаnt has failed to establish a manifest injustice warranting the withdrawal of his guilty plea with respect to his advisement by the trial court concerning post-release control. Id. at ¶25. In Aleshire II, this Court found “the trial court substantially complied with the requirements of
{¶20} In the case at bar, appellant received an identical sentence to the one imposed on his original plea with the only exception being the notification of five years of mandatory post release control. Under Fisher, all other parts of appellant’s sеntence were valid and remained in full force and effect. Thus, appellant cannot demonstrate prejudice from the trial court’s sentencing in the present case.
{¶21} Further appellant’s arguments concerning his sexual offender classification are moot. State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108, 2011-Ohio-3374. [Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior tо its enactment, violates
{¶23} A trial court may allow the post-sentence withdrawal of a plea of guilty only to correct a manifest injustice.
{¶24} An evidentiary hearing on a post-sentence motion to withdraw a guilty plea “is not required if the facts as alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn.” State v. Patterson, Stark App. No.2003CA00135, 2004-Ohio-1569 (citing State v. Blatnik (1984), 17 Ohio App.3d 201, 204, 478 N.E.2d 1016). Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. State v. Laster, Montgomery App. No. 19387, 2003-Ohio-1564.
{¶25} In the case at bar, appellant is not arguing that he maintained his innocence during the change of plea hearing with the trial court. State v. Woodley at ¶ 12. Thus, he made a conscious choice to enter into the plea. A guilty plea is a
{¶26} 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, 699 N.E.2d 83. “Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, at ¶ 5. Accordingly, under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
{¶27} 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 anоther participant, which indicated the defendant who had pleaded guilty did not commit the shooting. The Court held:
{¶28} “A plea of guilty is a complete admission of guilt. By entering his guilty plea to the principal charge and to the specification under
{¶29} In the case at bar, as previously noted, the State indicated to the trial court that this was a negotiated plea1. (T. at 14). Appellant agreed. (Id.). After the State recited the underlying facts that led to appellant‘s indictment, the court inquired, “Mr. Aleshire, do you agree with the facts as presented?” (T. at 11). Appellant replied, “Your Honor, I have nо exception.”2 (Id.). After being appraised of the ramifications of the guilty plea, appellant stated he understood the penalty. He also told the court that no promises were made to him to coerce him into entering the plea. Appellant further acknowledged that he was pleading guilty because he was guilty. (T. at 15).
{¶30} In the instant cаse, 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
{¶31} However, the scope of the hearing upon a defendant’s motion to withdraw his or her previously entered negotiated guilty plea is within the trial court‘s discretion. State v. Wright (June 19, 1995), Highland App. No. 94CA853; State v. Davis, Lawrence App. No. 05CA9, 2005-Ohio-5015. “Accordingly, the scope of the hearing should reflect the substantive merits of the motion.” Id., citing State v. Smith (Dec. 10, 1992), Cuyahoga App. No. 61464. “The motion to withdraw the plea must, at a minimum, make a prima facie showing of merit before the trial court need devote considerable time to it. This approach strikes a fair balance between fairness to the accused and the preservation of judicial resources.” Wright, supra. “Bold assertions without evidentiary support simply should not merit the type of scrutiny that substantiated allegations would merit.” Smith, supra.
{¶32} The record indicates that the trial court was aware of our mandate in Aleshire III.3 The record contained the arguments of both parties as well аs the Exhibits appellant submitted in support. We further note that when appellant was advised that he could receive a greater sentence in the event he was found guilty or chose to withdraw from his previously entered plea agreement, he abandoned his motions after consulting with his trial counsel. (T. at 24-25; 2627).
{¶33} Therefore, we find that the trial court did not err when it denied appellant‘s motion without conducting an oral hearing on the motion to withdraw appellant‘s guilty plea.
{¶34} Appellant next contends that the trial court improperly “bargained” with appellant. We disagree.
{¶35} The trial court informed appellant that he was sentenced in accordance with the negotiated plea agreement. (T. at 24). The court advised appellant that if he withdrew from the plea agreement the trial court was not bound to sentence appellant to the same term; the trial court could give appellant any sentence within the appropriate
{¶36} Finally, appellant argues that the trial court failed to advise him of his right to appeal at the conclusion of the December 7, 2010 re-sentencing hearing.
{¶37} In Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), the Supreme Court held that the district court‘s failurе to advise the defendant of his right to appeal his sentence did not entitle him to collateral relief where he knew of his right to appeal and, thus, he suffered no prejudice by the omission.
{¶38} In the case at bar, we have herein addressed the issues appellant would have raised in an appeal from the trial court’s December 10, 2010 re-sеntencing Judgment Entry. Accordingly, appellant suffered no prejudice by the trial court’s omission.
{¶39} For all the foregoing reasons, appellant’s First Assignment of Error is overruled in its entirety.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
WSG:clw 1209
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY