State v. BrooksState v. Brooks
Rendered on the 16th day of April, 2010.
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Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Atty. Reg. No. 0061560, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
D. Andrew Venters, Atty. Reg. No. 0083246; Roger E. Luring, Atty. Reg. No. 0010834, 314 West Main Street, Troy, OH 45373 Attorneys for Defendant-Appellant
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GRADY, J.:
{¶ 1} Defendant, Keith Brooks, appeals from a judgment denying his
{¶ 2} Defendant was indicted on one count of felonious assault,
{¶ 3} Pursuant to a negotiated plea agreement, Defendant entered pleas of guilty to both felonious assault charges with the firearm and repeat violent offender specifications, and the having weapons while under a disability charge. In exchange, the State dismissed the intimidation of a crime victim and assault charges. The parties jointly agreed to and recommended an aggregate fifteen year prison sentence, which the trial court imposed immediately following entry and acceptance of Defendant‘s pleas.
{¶ 4} One week after being sentenced, and now represented by different counsel, Defendant filed a motion to withdraw his guilty pleas. The trial court denied Defendant‘s motion to withdraw his guilty pleas, following a hearing. Defendant timely appealed to this court from the trial court‘s decision denying his motion to withdraw his guilty pleas.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶ 6}
{¶ 7} “A motion to withdraw a plea of guilty or no contest may
{¶ 8} The distinction between presentence and post-sentence motions to withdraw pleas of guilty or no contest indulges a presumption that post-sentence motions may be motivated by a desire to obtain relief from a sentence the movant believes is unduly harsh and was unexpected. The presumption is nevertheless rebuttable by showing of a manifest injustice affecting the plea. “A ‘manifest injustice’ comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.” State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499. The movant has the burden to demonstrate that a manifest injustice occurred. State v. Smith (1977), 49 Ohio St.2d 261.
{¶ 9} Motions filed pursuant to
{¶ 10} The court may not impose community control sanctions or probation for a felony offense without first ordering a presentence investigation and report.
{¶ 11} Brooks can‘t complain that he was denied an opportunity to file a presentence motion to withdraw because no presentence investigation report was ordered. Brooks had no right to the investigation and report, though a defendant can request the court to order one. Brooks made no such request. Indeed, when
{¶ 12} Brooks entered his guilty pleas he acknowledged the fact that the court would proceed to impose his sentences immediately upon accepting his pleas. (T. 16). Brooks therefore forfeited the right to now complain that he lacked an opportunity to file
{¶ 13} Even though Brooks agreed to the sentences the court imposed, we are not convinced that the more lenient standard applicable to presentence motions ought to apply. Brooks’ agreement was part of a plea bargain in which he obtained the State‘s promise to dismiss certain charges. The full gravity of the sentences to which he agreed may have become more apparent to Brooks after those sentences were imposed. The implication that he was motivated by the burden the sentences imposed on him is not wholly avoided, therefore. The trial court properly applied the manifest injustice standard to determine the merits of Brooks’
{¶ 14} Defendant argues that, for a combination of reasons, he satisfied the manifest injustice standard for post-sentence plea withdrawal, and that the trial court therefore abused its discretion in denying his motion to withdraw his guilty pleas.
{¶ 15} First, Defendant claims that his guilty pleas were not entered knowingly, intelligently and voluntarily because he mistakenly believed he would face federal weapons charges that might result in a life sentence if he did not plead guilty in this case. During the plea hearing, both defense counsel and the prosecutor indicated to the trial court that they had been in touch
{¶ 16}
{¶ 17} Additionally, Defendant claims that he should have been permitted to withdraw his guilty pleas because of confusion during the plea hearing and because he was medicated. The record refutes
{¶ 18} Next, Defendant argues that the trial court abused its discretion in denying his motion to withdraw his guilty pleas because he had a viable defense to the charges; that is, alibi witnesses and a recantation from Charlotte Booker, one of the two victims in the case. Defendant relies upon this court‘s decision in State v. Noland (Nov. 8, 1996), Montgomery App. No. 15579.
{¶ 19} In Noland, the defendant was charged with sex offenses
{¶ 20} Unlike Noland, Defendant was aware prior to entering his pleas that Booker would recant her accusations against him. Defendant‘s counsel argued that the recantation was the very reason Defendant refused to plead guilty to the assault charge involving Booker. Under those circumstances, Booker‘s recantation could not alter or affect Defendant‘s calculus regarding his chances of acquittal in this case. Furthermore, given Defendant‘s knowing and voluntary plea, the court could reasonably conclude that the recantation was unreliable. State v. Youngblood, Montgomery App. No. 21078, 2006-Ohio-4390. In any event, the charges concerning Booker were dismissed as part of the plea agreement in this case. As for the alibi witnesses, Defendant was likewise aware of them before he entered his guilty pleas. Therefore, he cannot claim that his motion to withdraw his guilty pleas was predicated upon his discovery of the alibi witnesses.
{¶ 22} Defendant concedes in his appellate brief that an argument that he was not effectively represented by counsel was not put before the trial court, and that the exact nature of their disputes was not put on the record. Although Defendant‘s trial counsel had filed a motion to withdraw from the case, counsel later retracted that motion, and Defendant affirmed for the trial court that he wanted counsel to continue to represent him. As a result of defense counsel‘s efforts in plea negotiations, two charges were dismissed by the State and Defendant received a sentence of fifteen
{¶ 23} Manifest injustice has not been demonstrated in this case, and the trial court did not abuse its discretion in overruling Defendant‘s post-sentence motion to withdraw his guilty pleas.
{¶ 24} Defendant‘s assignment of error is overruled. The judgment of the trial court will be affirmed.
FROELICH, J., concurs.
FAIN, J., concurring:
I concur in both the holdings set forth in the opinion of Judge Grady for the court and in the judgment. I write separately merely to note that this appeal persuades me that the better way to apply
Brooks moved to withdraw his plea after he was sentenced. Therefore, the less liberal standard for the exercise of the trial court‘s discretion applies. Notwithstanding a suggestion to the contrary in State v. Long (May 13, 1993), Montgomery App. No. 13285, I would hold that a pre-sentence motion to withdraw a plea is entitled to application of the more liberal standard for the exercise of the trial court‘s discretion, regardless of the
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R. Lynn Nothstine, Esq.
D. Andrew Venters, Esq.
Roger E. Luring, Esq.
Hon. Gregory F. Singer