State v. BlaylockState v. Blaylock
Rendered on the 17th day of July, 2009.
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Mathias H. Heck, Jr., Pros. Attorney; Kelly D. Madzey, Atty. Reg. No.0079994, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Scott M. Calaway, Atty. Reg. No.0070446, 137 N. Main Street, Suite 516, Dayton, OH 45402
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} Defendant, Scott Blaylock, appeals from a final judgment of the Montgomery County Court of Common Pleas denying his
{¶ 2} In January 2005, Defendant wаs arrested on a complaint filed in Kettering Municipal Court charging him with
On February 11, 2005, the trial court accepted Defendant’s guilty plea to one count of unlawful sexual conduct with a minor. On April 15, 2005, the trial court sentenced Defendant to the minimum prison term, one year, and classified him as a sexually oriented offender.
{¶ 3} Defendant completed his one year sentence and was released from prison on or about January 15, 2006. On November 26, 2007, Defendant filed a motion to withdraw his guilty plea. As grounds for his motion, Defendant alleged that he received ineffective assistance of counsel in entering his guilty plea, and that a conflict of intеrest existed on the part of the judge who accepted his plea and imposed a sentence, the Honorable Dennis Langer, who had personal
{¶ 4} Defendant appealed to this court. He challenges only the trial court’s decision overruling his motion to withdraw his guilty plea.
ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION TO WITHDRAW PLEA AS DEFENDANT HAD A CONFLICT OF INTEREST WITH THE TRIAL COURT JUDGE AND WAS NOT ADEQUATELY REPRESENTED DURING PLEA AND SENTENCING.”
{¶ 6} In State v. McComb, Montgomery App. Nos. 22570 and 22571, 2008-Ohio-295, this court stated:
{¶ 7} “{¶ 6} The Rules of Criminal Procedure permit a defendant to withdraw a guilty plea. ‘A motion tо withdraw a
{¶ 8} Kadwell v. U.S. (C.A.9, 1963), 315 F.2d 667, 670; see, also, State v. Long (May 13, 1993), Montgomery App. No. 13285, 1993 WL 155662, at *17.
{¶ 9} “* * *
{¶ 10} “{¶ 8} Withdrawal of a guilty plea after sentencing is permitted only in ‘extraordinary cases.’ State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The standard
{¶ 11} Defendant has the burden of establishing a manifest injustice. State v. Smith, supra. The decision whether to grant a post-sentence motion to withdraw a guilty plea is a matter within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of that discretion. McComb, supra. An abuse of discretion means more than a merе error of law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude on the part of the court. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 12} Two years and nine months after entering his guilty plea, and one year and ten months after completing his sentence and his release from prison, Defendant filed his motion to withdraw his guilty plea. Defendant claims that he should be allowed to withdraw his guilty plea for various reasons, the first of which is that he received ineffective assistance of counsel.
{¶ 13} Counsel’s performance will not be deemed ineffective
{¶ 14} Defendant claims that his trial counsel performed deficiently becаuse he failed to fully investigate Defendant’s case, was too quick to cut a plea deal, told Defendant that he would probably receive probation, and failed to bring to the attention of the trial court judge the judge’s potential conflict of interest that Defendant had brought to counsel’s attention. The record in this case affirmatively refutes all of Defendant’s claims.
{¶ 15} We agree with the trial court that Defendant’s counsel, Steve Pierson, is a very experienced criminal defense attorney. At the hearing on Defendant’s motion to withdraw his plea, Mr. Pierson testified that he discussed the strengths and weaknesses of this case and possible defenses to the charges with Defendant. The original charges were rape, a
{¶ 16} Neither defense counsel nor the trial court ever promised Defendant probation. Rather, counsel told Defendant that based upon his prior misdemeanor record and his plea in this case to a lesser offense, he probably would receive either probation or a lower end sentence. Mr. Pierson could not remember exactly when during the course of these proceedings Defendant revealed that he had previously worked as a runner for the Montgomery County Prosecutor’s Office when Judge Langer was first assistant prosecutor in that office, and that while so employed Defendant was convicted in 1988 of telephone harassment and, as a disciplinary matter, Defendant had to discuss that case with First Assistant Langer. Nevertheless, Pierson testified that during the plea hearing Defendant never indicated that he was uncomfortable with
{¶ 17} During his own testimony at the hearing on his motion to withdraw his plea, Defendant acknowledged that he discussed the plea agreement with his counsеl, that Judge Langer went over the plea form with him, which Defendant said he read and understood, that Judge Langer told Defendant that he faced one to five years, and that probation was possible, that Judge Langer advised Defendant of his rights, and neither the court nor defense counsel ever promised Defendant any specific sentence. Rather, counsel gave Defendant his best estimate of what might happen. In that regard this court stated in McComb, supra, at ¶9:
{¶ 18} “. . . A manifest injustice generally does not result whеn a defendant holds (as he discovers) a mistaken belief that his sentence would be significantly lighter than the one actually imposed. See State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632. The reason for the belief is key. If defense counsel caused the belief, what counsel exactly sаid must be examined. A manifest injustice does not necessarily arise merely because counsel is wrong about the sentence that is actually imposed. Only if counsel promised
{¶ 19} Defendant has failed to demonstrate any deficient performancе by his counsel, much less any resulting prejudice. Manifest injustice has not been demonstrated by Defendant.
{¶ 20} Defendant also claims that he should be allowed to withdraw his guilty plea because Judge Langer had a conflict of interest in presiding over Defendant’s case. This claim is based upon Judge Langer’s personal knowledge of Defendant’s 1988 conviction for telephone harassment, and his alleged improper use of that personal information as an aggravating factor in deciding to sentence Defendant to a minimum one year prison term rather than community control in this case.
{¶ 21} The record in this case affirmatively demonstrates that Judge Langer did not improperly consider or take into
{¶ 22} Judge Langer further testified that he did not rely upon his personal knowledge about Defendаnt’s prior conviction as a factor in sentencing, but rather relied upon the presentence investigation report, which indicated that Defendant had previous misdemeanor convictions in 1988 for telephone harassment and in 1990 for menacing. While Judge Langer acknowledged that he considered Defendant’s prior misdemeanor convictions and the fact that he was not a first time offender in terms of whether to impose a minimum prison term or probation, Judge Langer testified that, even absent the two prior misdemeanor convictions, he would have probably
{¶ 23} Accordingly, Defendant has failed to demonstrate any conflict of interest or impropriety on Judge Langer’s part, or that Defendant’s previous employment in the prosecutor’s office hаd any impact on his sentence in this case. Manifest injustice has not been demonstrated and the trial court did not abuse its discretion in overruling Defendant’s post-sentence motion to withdraw his guilty plea.
{¶ 24} Defendant’s assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, P.J. And FAIN, J., concur.
Copies mailed to:
Kelly D. Madzey, Esq.
Scott M. Calaway, Esq.
Hon. John Schmitt