478 N.E.2d 1016 | Ohio Ct. App. | 1984
Lead Opinion
This matter is before the court on appeal from judgment of the Port Clinton Municipal Court. Appellant, Spencer D. Blatnik, pled guilty to charges that he had violated R.C.
Subsequent to sentencing, appellant filed a motion to withdraw his guilty pleas based on the contention that appellant had received erroneous advice from counsel regarding his sentence. The trial court denied appellant's motion to withdraw his guilty plea.
Appellant now appeals from his judgment and sentence and from the trial court's denial of his motion to withdraw his guilty plea. For our review, appellant asserts the following two assignments of error:
"1. The Trial Court erred in sentencing the Defendant to the Ohio State Penitentiary for the offenses of OMVI (O.R.C. Section
"2. The Trial Court abused its discretion and erred in not allowing the Defendant to withdraw his guilty pleas after sentencing where Defendant had not been advised prior to sentencing that the Court would or could impose imprisonment in the Ohio State Penitentiary, and where no hearing on the motion to withdraw the pleas was had."
Initially, we address appellant's second assignment of error, wherein appellant claims that the trial court erred in refusing to permit him to withdraw his guilty pleas. A court may set aside a judgment of conviction and permit a defendant to withdraw a guilty plea after imposition of sentence only to correct a manifest injustice. Crim. R. 32.1; State v. Smith (1977),
"What constitutes an abuse of discretion with respect to denying a motion *203
to withdraw a guilty plea necessarily is variable with the facts and circumstances involved." State v. Walton (1981),
Appellant filed an attendant affidavit together with his motion requesting post-sentence withdrawal of his guilty plea in the trial court. In his affidavit, appellant attests that he was informed by his former counsel at the time of entering his guilty pleas that he would be required to undergo an alcoholic rehabilitation program and to serve a short term of imprisonment. Appellant further states that at no time was he informed, either by his former or his latter counsel, that his imprisonment would or could be served in the state penitentiary. Additionally, appellant states that his latter counsel informed him at his sentencing hearing that the maximum sentence which he would receive was eighteen months servable in the county detention facility. Appellant attests that if he had known that his imprisonment would be served in the penitentiary, he would not have entered a guilty plea, or would have withdrawn his guilty plea prior to sentencing. Appellee-state has not refuted or put in issue any of appellant's attestations contained in his affidavit.
A post-sentence withdrawal motion is permitted only in extraordinary cases, Smith, supra, at 264, and only when necessary to correct a "manifest injustice." See Annotation, Withdrawal of Plea of Guilty or Nolo Contendere, After Sentence, Under Rule 32(d) of Federal Rules of Criminal Procedure (1971), 9 A.L.R. Fed. 309, 323, Section 5, for an elaboration upon the meaning and application of this standard. Although difficult to precisely define, suffice it to say that an overwhelming authority of case law states that manifest injustice, as contemplated by the rule, does not, ipso facto result from counsel's erroneous advice concerning the sentence that will be imposed. United States v. Scharf (C.A.8, 1978),
There is also authority which suggests that under certain circumstances, erroneous advice of counsel regarding the sentence which is to be imposed may result in manifest injustice. InBecklean, supra, the Eighth Circuit stated that if a guilty plea is entered solely because of erroneous advice, of if the erroneous advice plays a substantial part of inducement for the guilty plea, manifest injustice may result. Becklean, supra, at 1125. Also, it has been held that if a guilty plea is entered pursuant to counsel's representation, as opposed to counsel's likely prediction, that such a plea would result in a lesser sentence than the sentence actually received, it is necessary to permit post-sentence withdrawal of the guilty plea in order to prevent manifest injustice. United States v. Hawthorne (C.A. 3, 1974),
"`a guilty plea was entered as a result of a "grave misunderstanding" solely on the part of defense counsel and *204
not participated in by either the prosecution or the judge, the interests of justice required that the defendants be relieved of their pleas and the judgments of conviction vacated.'" Quoting from United States, ex rel. Elksnis, v. Gilligan (S.D.N.Y. 1966),
The record herein, other than appellant's affidavit, discloses only that appellant pled guilty and was then sentenced. Appellant does not assert that a plea arrangement had been made with the prosecutor concerning the length of his sentence as in Hawthorne,supra, nor does appellant assert that his counsel mistakenly represented to him the sentence which the state promised as inBecklean, supra. See Walton, supra, at 119. What appellant does assert is that his counsel speculated, although incorrectly, as to what appellant's sentence would be. According to the overwhelming weight of authority, this bare assertion does not, in and of itself, constitute manifest injustice. It has long been held that this type of speculation by counsel does not result in manifest injustice so as to permit a defendant who has pled guilty to withdraw his guilty plea after sentence has been imposed.
Appellant also asserts under this assignment of error that the trial court erred in denying his Crim. R. 32.1 motion to withdraw his guilty pleas without first conducting a hearing. However, we note the case of United States v. Fournier (C.A. 1, 1979),
Since a showing of manifest injustice is absolutely necessary in order for a court to grant a post-sentence Crim. R. 32.1 motion, absent such a showing, the motion must be denied. In view of our determination that the facts which appellant stated in his affidavit and accepted as true do not result in manifest injustice, the relief which appellant seeks is not appropriate. Accordingly, pursuant to the holding of Fournier, supra, the trial court was not required to hold a hearing on appellant's Crim. R. 32.1 motion. Appellant's second assignment of error is found not well-taken.
Regarding appellant's first assignment of error, we find the same well-taken for the reasons set forth below.
Appellant was found guilty of violating R.C.
Appellant was also found guilty of violating R.C.
Specifically, R.C.
"(E) Consecutive terms of imprisonment imposed shall not exceed:
"* * *
"(4) An aggregate term of eighteen months, when the consecutive terms imposed are for misdemeanors. When consecutive terms aggregating more than one year are imposed for misdemeanors under the Revised Code, and at least one such consecutive term is for a misdemeanor of the first degree that is an offense of violence, the trial court may order the aggregate term imposed to be served in a state penal or reformatory institution."
Thus, in order for the aggregate term of imprisonment to be served in the state penitentiary under R.C.
The record reveals that in the instant appeal there exists consecutive terms of imprisonment imposed for misdemeanor offenses where the aggregate term of imprisonment is more than one year and where one such consecutive term is for a misdemeanor of the first degree. The threshold question, however, is whether a violation of R.C.
The term "offense of violence" is defined in R.C.
"(I) `Offense of violence' means any of the following:
"(1) A violation of sections
"(2) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section listed in division (I)(1) of this section;
"(3) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
"(4) A conspiracy or attempt to commit, or complicity in committing any offense under division (I)(1), (2), or (3) of this section."
Beginning with R.C.
Concerning division (I)(1) of R.C.
Considering next R.C.
Upon our review of the elements of each of the offenses listed above and which the legislature has determined to be offenses of violence, with the elements of R.C.
Moving next to R.C.
Immediately noticeable is the inescapable fact that the prohibition against driving while under the influence of alcohol is contained in R.C. Chapter 4511: traffic laws-operation of *207
motor vehicles. Also, R.C.
"`Traffic case' means all proceedings involving violations of laws, ordinances and regulations governing the operation and use of vehicles, conduct of pedestrians in relation thereto, and governing weight, dimension, loads or equipment or vehicles drawn or moved on highways and bridges."
A violation of R.C.
The legislature saw fit to place the prohibition against driving while under the influence of alcohol as set forth in R.C.
If the legislature so desired, however, it could deem R.C.
In light of our determination that appellant's violation of R.C.
The judgment of the Port Clinton Municipal Court is affirmed in part and reversed in part. Pursuant to App. R. 12(B), this cause is remanded to said court with instructions to render final judgment not inconsistent with this opinion.
Judgment affirmed in part and reversed in part, and causeremanded.
CONNORS, P.J., and HANDWORK, J., concur.
"`The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *'" Blakemore v.Blakemore (1983),
This definition of the term "abuse of discretion" is applicable to a court's determination of a motion to withdraw a plea. State
v. Amison (1965),
Concurrence Opinion
I reluctantly concur. I have no hesitancy in concurring in the well-reasoned and written opinion of its author. I would hope that the legislature, in its wisdom, would include R.C.