STATE OF OHIO, Plaintiff-Appellee, v. DAVID A. BARNER, Defendant-Appellant.
Case No. 10CA9
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
RELEASED 07/05/12
2012-Ohio-4584
Harsha, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, State Public Defender and Peter Galyardt, Assistant State Public Defender, Columbus, Ohio, for appellant.
Colleen Williams, Meigs County Prosecutor, and Amanda Bizub-Franzmann, Meigs County Assistant Prosecutor, Pomeroy, Ohio, for appellee.
Harsha, J.
{1} David Barner appeals his convictions for multiple sexual offenses. Barner contends that he did not knowingly, voluntarily, and intelligently plead guilty to the offenses because the trial court failed to inform him of the maximum penalty for each charge. He acknowledges that at the judge‘s direction, the prosecutor explained these penalties to him in open court during the change of plea hearing. However, Barner argues that
{2} Next, Barner argues that the trial court abused its discretion when it denied his pre-sentence motion to withdraw his pleas. Barner argues that he did not understand that by pleading guilty, he could not appeal “aspects of his case that occurred before his pleas of guilty.” However, before the court accepted his pleas, Barner signed a statement that he understood his “limited appellate rights.” Nor does the record support Barner‘s contention that the court applied the wrong legal standard in denying the motion. Moreover, the record shows that: 1.) Barner received a full
I. Facts
{4} The trial court entered a nollee prosequi on the sexual battery charges, and Barner pleaded guilty to the remaining charges. The court immediately sentenced Barner in 09-CR-114 but scheduled sentencing in 09-CR-003 for a later date. Before the second sentencing hearing, Barner filed a pro se motion to withdraw his guilty plea in 09-CR-114 based on ineffective assistance of counsel. At a hearing, the parties and court treated Barner‘s motion as one to withdraw his pleas in both cases and acted as if the cases had been consolidated. They considered Barner‘s motion as a pre-sentence motion to withdraw all of his guilty pleas (because the trial court had not yet sentenced him on the 09-CR-003 charges, making his sentence in 09-CR-114 interlocutory) instead of treating it as a post-sentence motion to withdraw his plea in 09-CR-114. The court denied Barner‘s motion, stating:
The defendant does not have an absolute right to withdraw his guilty plea‘s [sic] prior to sentencing. To determining [sic] if the defendant should be allowed to withdraw a plea of guilty prior to sentencing the trial court conducted the hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. The defendant did not meet his burden and the Court found no reasonable or legitimate basis for the withdrawal of the plea. (Footnotes omitted.)
{5} This appeal followed.
II. Assignments of Error
ASSIGNMENT OF ERROR I
David Barner was deprived of his right to due process when the trial court accepted unknowing, unintelligent, and involuntary guilty pleas.
ASSIGNMENT OF ERROR II
The trial court abused its discretion when it denied Mr. Barner‘s November 23, 2009 motion to withdraw his guilty pleas. (March 1, 2010 Transcript, at 4-27); (April 15, 2010 Entry).
III. Explanation of Maximum Penalties
{7} In his first assignment of error, Barner contends that his guilty pleas were not knowing, voluntary, and intelligent because the trial judge did not explain to him the maximum penalty for each offense before accepting his pleas. In deciding whether to accept a guilty plea, the trial court must determine whether the plea was made knowingly, intelligently, and voluntarily. State v. McDaniel, 4th Dist. No. 09CA677, 2010-Ohio-5215, ¶ 8. “In considering whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.” (Emphasis sic.) Id., quoting State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, ¶ 48.
{8} “Before accepting a guilty plea, the trial court should engage in a dialogue with the defendant as described in
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
* * *
Because it does not involve constitutional rights, substantial compliance with
{9} As the Supreme Court of Ohio explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32:
When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudice is “whether the plea would have otherwise been made.” If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. “A complete failure to comply with the rule does not implicate an analysis of prejudice.” (Emphasis sic.) (Citations omitted.)
{10} Barner acknowledges that the trial court explained to him the maximum aggregate penalty for his crimes at the change of plea hearing. However, he complains that the trial judge did not personally explain the maximum penalty for each individual charge. Instead, the prosecutor did this in open court at the trial court‘s direction. Barner contends that his plea was invalid because
{11} As we already concluded,
{12} Barner cites State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990) for the proposition that “the trial court must personally inform the defendant of the constitutional and nonconstitutional rights that he waives as a result of pleading guilty.” (Appellant‘s Br. 6). Although the Supreme Court of Ohio did indicate that the trial court must personally advise the defendant of the matters listed in
{13} Here, the trial court had the prosecutor inform Barner of the maximum penalties for each charge in open court. As the prosecutor did so, the trial judge repeatedly addressed Barner and asked whether he understood the penalties. And Barner repeatedly stated that he did. Barner‘s Petition to Enter a Plea of Guilty and the prosecutor misstated the maximum penalty for one of his fourth-degree felony charges for pandering sexually oriented matter involving a minor as eight years when it was only eighteen months.
{14} Finally, it is clear that Barner understood the possible penalties he faced. Again, the prosecutor explained them in open court, and Barner repeatedly acknowledged that he understood them. In his petition to enter his guilty pleas, Barner also represented to the trial court that he understood the maximum penalties he faced. Moreover, Barner does not argue that he did not understand the penalties. Because the trial court personally addressed him and ensured that he understood the maximum penalties he faced prior to accepting Barner‘s guilty pleas, we hold that the trial court
IV. Motion to Withdraw Guilty Pleas
{15} In his second assignment of error, Barner contends that the trial court abused its discretion when it denied his motion to withdraw his guilty pleas. As we explained above, the trial court never consolidated Barner‘s cases. Nonetheless, because the parties and trial court treated Barner‘s motion as a pre-sentence motion to withdraw all of his guilty pleas, we will do the same.
{16}
{17} A trial court possesses discretion to grant or deny a presentence motion to withdraw a plea, and we will not reverse the court‘s decision absent an abuse of that discretion. See Xie at paragraph two of the syllabus. The phrase “abuse of discretion” implies that the court‘s attitude is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Furthermore, “[w]hen applying
{18} We have set forth a list of factors that we consider when determining whether a trial court abused its discretion by denying a presentence motion to withdraw a plea: “(1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full
{19} Barner contends that he did not receive a full
{20} Barner also argues that he did not receive a full hearing on the motion to withdraw and that the trial court did not give full and fair consideration to his motion. Barner appears to premise this argument on two complaints. First, Barner complains that the trial court applied the wrong legal standard when it ruled on his motion. He contends that the trial court denied his motion because the court concluded he did not meet the standard for ineffective assistance of counsel claims instead of determining whether he had a reasonable and legitimate basis for withdrawing his pleas.
{21} The record does not support Barner‘s argument that the court applied the wrong legal standard. Although Barner attempts to base his argument on statements by the court at the hearing on his motion, “[a] court speaks through its journal entries.” In re J.F., 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19, ¶ 25. And in its journal entry denying Barner‘s motion, the trial court makes no mention of the standard for ineffective assistance of counsel. Instead, the court accurately stated that it had to determine whether Barner had a reasonable and legitimate basis for withdrawing his pleas, and held that he did not.
{22} Moreover, contrary to Barner‘s contention, the trial court made no statements at the hearing on his motion to withdraw his pleas that suggest the court applied the wrong standard. At the hearing, the State correctly argued that the court had to determine whether Barner had a “reasonable and legitimate basis” for withdrawing his pleas. Then the State argued, without objection, that because Barner claimed he received ineffective assistance of counsel, the court should apply the standard of review for such claims to his motion. However, the trial court gave no
[PROSECUTOR]: * * * Mr. Barner is not even close to have met his burden in this particular case and in his motion, he just asserted ineffective assistance of counsel. Your Honor, here at the hearing, he‘s come up with some additional grounds. Nonetheless, Your Honor, he doesn‘t meet the burden. Mr. Barner got to prison, you know, was convicted pedophile; decided he didn‘t like prison; decided to file a motion on ineffective assistance of counsel, as the Court will recall and as the record indicates and is filed in this record, an extensive (inaudible) was had. That (inaudible) was followed extensively. The defendant had all of his rights protected; signed a seven-page, or no, Your Honor, multi-page document and he was advised as is contained in all the Court‘s records. August 27, 2009, it was an eight-page document, Your Honor, petition to enter a plea of guilty. He also entered a plea of guilty to the indicted charges and a bill of information, Your Honor. The idea... And he received the recommendation (inaudible) and had two counts dismissed. And that‘s all contained in the Court‘s record, Your Honor. The idea that counsel was somehow ineffective is, you know, speculative at best, ludicrous at worst, Your Honor.
THE COURT: Alright. Prepare a journal entry, Mr. Prosecutor. I tend to side with you * * *
{23} Although the prosecutor mentioned the phrase “ineffective assistance of counsel” during this exchange, he did not mention the standard of review for such claims. Therefore, we do interpret the court‘s statement that it tended to “side with” the prosecutor as an endorsement of the prosecutor‘s earlier argument that the ineffective assistance standard applied. Barner also claims that the court applied the wrong standard on page 26 of the hearing transcript, but no discussion of the standard for deciding Barner‘s motion occurred at that time.
{24} Second, Barner appears to argue that he did not receive a full hearing on the motion to withdraw and that the trial court did not give full and fair consideration to
{25} Barner also argues that he filed his motion within a reasonable time. However, he waited until November 23, 2009, the day he was to be sentenced in 09-CR-003, to file it. This date was nearly three months after he entered his pleas and the court sentenced him in 09-CR-114.
{26} In addition, Barner claims that he gave the trial court a specific reason for the withdrawal, i.e., “he did not understand before pleading guilty that he would not be able to challenge on appeal aspects of his case that occurred before his pleas of guilty.” (Appellant‘s Br. 12). In the “Argument” portion of his brief, Barner does not elaborate on what aspects of the case he wanted to appeal. In his “Statement of the Case and Facts,” Barner indicates he wanted to challenge the search warrant for his home but does not explain why he thought the warrant was improper. (Appellant‘s Br. 3). At the hearing on his motion, Barner claimed he “was never told that * * * [his] chances for appeal went down with taking this plea.” And more specifically, Barner told the court he anticipated appealing the fact that police did not allow him or his family to witness the execution of the search warrant. He also complained that the inventory of items seized was too general.
{27} However, in his Petition to Enter a Plea of Guilty, Barner stated: “I
{28} Next, Barner contends that the court abused its discretion because allowing him to withdraw his pleas would not prejudice the State. While this is an “important factor[ ] in determining whether to allow a presentence motion to withdraw a guilty plea,” it is not dispositive. State v. Fairrow, 4th Dist. No. 05CA2856, 2006-Ohio-503, ¶ 18, citing State v. Littlefield, 4th Dist. No. 03CA2747, 2004-Ohio-5996, ¶ 12. Because none of the other considerations outlined above support a conclusion that the trial court‘s decision to deny Barner‘s motion was unreasonable, unconscionable or arbitrary, we hold that the court did not abuse its discretion. Accordingly, we overrule Barner‘s second assignment of error.
V. Summary
{29} Having overruled each of the assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Kline, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.