State v. BatkeState v. Batke
JUDGMENT: AFFIRMED
Timothy Young
State Public Defender
BY: Kristopher A. Haines
Assistant State Public Defender
Ohio Public Defender‘s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Dale Batke, appeals the trial court‘s denial of his post-sentence motion to withdraw his guilty pleas. For the reasons that follow, we affirm the trial court‘s decision.
{¶ 2} On June 15, 2009, Batke pleaded guilty in Case No. CR-521243 to one count each of the following: felonious assault with a firearm specification, domestic violence with
{¶ 3} On July 10, 2009, the trial court sentenced Batkе to 18 years in prison. Three days later, and before Batke was transferred to prison, the trial court held another hearing and amended Batke‘s sentence to 14 years in prison. Batke‘s counsel then orally moved the trial cоurt to withdraw Batke‘s guilty pleas. His counsel indicated that he would file a written motion to withdraw the guilty pleas and asked to be excused from the case.
{¶ 4} On July 20, Batke moved to withdraw his guilty pleas. The state opposed the motion. A year later, on July 21, 2010, Batke, represented by new counsel, filed a supplement to his motion to withdraw his guilty pleas. Two days later, the trial court held a hearing on the motion. Batke and his sister testified that his original attorney promised them that Batke would receive no more than ten years in prison.
{¶ 5} The trial court continued the matter and ultimately denied Batke‘s motion.
{¶ 6} Batke filed two delayed notices of appeal. We have consolidated his cases for briefing and disposition. Batke raises two assignments of error for our review, in which he challenges the trial court‘s denial of his motion.
I
{¶ 8}
“A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 10} The general rule is that motions to withdraw guilty pleas before sentencing are to be freely and liberally allowed. State v. Peterseim (1979), 68 Ohio App.2d 211, 214, 428 N.E.2d 863, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223. However, a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. In ruling on a presentence motion to withdraw a plea, the court must conduct a hearing and decide whethеr there is a reasonable and legitimate basis for withdrawal of the plea. Id. at 527. The decision to grant or deny such a motion is within the sound discretion of the trial court. Id.
{¶ 11} In contrast, the trial court can set aside a judgment of convictiоn after it imposes sentence, and may allow the defendant to withdraw his plea, only “to correct a manifest injustice.” State v. Bell, Cuyahoga App. No. 87727, 2007-Ohio-3276, citing State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The defendant bears the burden of
{¶ 12} Batke claims that his motion should have been treated as a presentence motion because the court was aware prior to sentencing that he wanted to withdraw his guilty plea. Although Batke makes this claim, our review of the recоrd shows that the motion to withdraw his guilty plea was made after he was sentenced.
{¶ 13} Thus, Batke‘s motion was a post-sentence motion to withdraw his guilty pleas and we will consider his arguments under that standard.
{¶ 14} The second assignment of error is overruled.
II
{¶ 15} In his first assignment of error, Batke argues that thе trial court erred when it denied his motion to withdraw his guilty pleas.
{¶ 16}
{¶ 17} At the hearing on the motion, Batke testified that he did not understand his constitutional rights as the court stated them during the plea colloquy. He claimеd that he had not understood the right to compulsory process and further submitted that he had taken prescription drugs before he entered his pleas.
{¶ 18} We have reviewed the plea colloquy and find that it adhered to the mandates as stated in
{¶ 19}
“(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. “(b) Informing the defendant of and determining that the defendant understаnds the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.”
{¶ 20}
{¶ 21} A trial court must strictly comply with the
{¶ 22} With respect to the nonconstitutional requirements of
{¶ 23} Further, a defendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{¶ 24} In the case at bar, our review of the record shows that the trial court adhered to the requirements of
{¶ 25} The trial court explained each count to Batke and informed him of the maximum time he сould receive on each count, the effect of pleading guilty to gun specifications, and explained mandatory, discretionary, consecutive, and concurrent time to him. The trial court inquired about any medicatiоn Batke took and had a lengthy discussion with Batke about his medications and his mental illness diagnoses. The trial court inquired if Batke felt “well enough” and if he thought he could make “strong, good decisions for yourself,” to which Batke replied, “Yes, yоur Honor.” In its decision denying Batke‘s
{¶ 26} Based on thе record, we find no fault with the plea colloquy or that Batke did not understand the rights that he waived. We also do not find that Batke has shown that the medications he was taking at the time of the plea affected his judgment so that his pleа was not knowingly and intelligently made.
{¶ 27} Batke additionally argues that the trial court should have allowed him to withdraw his plea because his original attorney told him he would receive “seven to nine, but no more than ten years” in prison if he рled guilty. At the hearing on his motion, Batke testified he took his attorney‘s “word for it because he‘s a personal friend of one of my friends.” He explained to the trial court that if he had known that his sentence could exceed ten yеars, he would have taken his cases to trial.
{¶ 28} The trial court found that Batke presented no credible evidence tending to show he was promised or assured he would receive a certain sentence if he pleadеd guilty and concluded that the record established no manifest injustice; it only evidenced Batke‘s “change of heart once he heard what his sentence was.”
{¶ 30} Our review of the record evidences no manifest injustice. Not only did the trial court hold a full hearing on the motion, it continued the matter twice so that defense counsel could gather and present additional information.
{¶ 31} Based on the foregoing, the trial court did not abuse its discretion when it denied Batke‘s post-sentence motion to withdraw his guilty pleas.
{¶ 32} The first assignment of error is overruled.
Accordingly, judgment is affirmed.
It is ordered that appellee recover of appellant сosts herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR