State v. BumpState v. Bump
Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut Street, Suite 100, Jefferson, OH 44047-1092 (Fоr Defendant-Appellant).
O P I N I O N
THOMAS R. WRIGHT, J.
{¶1} Appellant, Danny R. Bump, appeals from the May 26, 2010 judgment entry of the Ashtabula County Court of Common Pleas, in which he was sentenced for complicity to murder and complicity to aggravated robbery.
{¶2} On October 31, 2008, the Ashtabula County Grand Jury indicted appellant and his brother/co-defendant, Bryan R. Ingramm, on 21 counts. The first 11 counts apply to Mr. Ingramm and the last 10 counts are apрlicable to appellant.
{¶4} Thereafter, appellant withdrew his not guilty plea and entered an oral and written plea of guilty to count 17, complicity to murder, an unclassified felony, and count 21, complicity to aggravated robbery, a first degree felony. The remaining eight counts were dismissed. Appellant‘s written guilty plea included language that appellant is subject to five years mandatory postrelease control for the first degree felony. The trial court accepted appellant‘s guilty plea, ordered a presentence investigation report, and deferred sentencing.
{¶5} Before sentencing, appellant personally wrote and filed a letter with the trial court asking to withdraw his guilty plea. As grounds, appellant‘s letter states he was misled and pushed into taking this deal. The triаl court continued sentencing and rescheduled it to a later date. On the day of sentencing, appellant‘s counsel filed a written motion to vacate appellant‘s plea. The only grounds for vacation provided in the written motion was that a manifest injustice would occur if the motion were not granted. The written motion did not allege any facts in support. Following a full hearing, the triаl court denied appellant‘s motions and proceeded to sentencing.
{¶6} The trial court sentenced appellant to 15 years to life in prison on count 17, complicity to murder, and three years in prison on count 21, complicity to aggravated robbery, concurrent. The trial court did not orally advise appellant that he was subject to five years mandatory postrelease control at the sentencing hearing and
{¶7} “[1.] The trial court erred to the prejudice of [appellant] by denying his presentence motion to withdraw his plea in violation of his due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
{¶8} “[2.] The trial court erred when it denied [appellant‘s] motion to suppress in violation of his due process rights guaranteed under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Section 10, Article I of the Ohio Constitution.
{¶9} “[3.] The trial court errеd when it failed to notify [appellant] that he would be subject to a mandatory [period] of postrelease control in violation of his due process rights guaranteed under the United States Constitution and the Constitution of the Ohio Constitution (sic).”
{¶10} In his first assignment of error, appellant argues that the trial court erred by denying his presentence motions to withdraw his guilty plea.
{¶11}
{¶12} Motions to withdraw a plea are governed by
{¶13} “A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused wаs afforded a full hearing, pursuant to
{¶14} Appellant moved to withdraw his plea before sentencing. Therefore, the frеely allowed standard applies.
{¶15} With respect to the first Peterseim factor, appellant was represented by highly competent counsel. Generally, a properly licensed attorney practicing in this state is presumed to be competent. State v. Lytle (1976), 48 Ohio St.2d 391, 397. Appellant was provided three different attorneys to represent him during the course of the proceedings. At the plea hearing, appellant indicаted that he did not have any problems with his defense counsel and that he was given enough time to discuss the
{¶16} Regarding the second Peterseim factor, appellant was afforded a full hearing pursuant to
{¶17} The trial court first inquired about appellant‘s educational background, mental state, and whether he was under the influence of any drugs or alcohol to ensure that he understood the proceedings. Appellant replied that he had his GED, had no problem reading or writing the English language, had a clear mind, and was not under the influence of drugs or alcohol. Appellant infоrmed the trial court that he understood the effect of his guilty plea and its consequences.
{¶18} Although not required under
{¶19} “THE COURT: Okay. All right. Next I want to explain the effect of the plea of guilty. If I accept your pleas of guilty, that constitutes a complete admission of guilt. What that really means is that you cannot later on file an appeаl and attempt to raise the question of whether or not you were guilty or whether or not the State could have proven your guilt beyond a reasonable doubt at trial.
{¶20} “If you went to trial and were convicted by the Court and jury, you‘d have a right to file an automatic appeal under those circumstances. And then on appeal you could raise the question of whether or not the evidеnce that was offered during the trial was strong enough to support the convictions.
{¶21} “THE COURT: Do you understand that?
{¶22} “MR. BUMP: Yes, Your Honor, I do.
{¶23} “THE COURT: Okay. Any questions you want to ask me about anything I‘ve gone over here so far?
{¶24} “MR. BUMP: No, sir, Your Honor.
{¶25} “THE COURT: Okay. Anything you‘re not sure of or - -
{¶26} “MR. BUMP: No, sir.
{¶27} “THE COURT: You understand what I‘ve said to you so far?
{¶28} “MR. BUMP: Yes, sir, I do.”
{¶29} The foregoing colloquy establishes appellant understood and had no questions with regard to waiving some of his appellate rights by entering a guilty plea. Also, the written guilty plea, signed by appellant and his counsel, shows that hе agreed to waive some of his appellate rights by pleading guilty.
{¶30} Next, the trial court, in a comprehensive manner, advised appellant of the constitutional rights he was waiving.
{¶31} “I understand by pleading guilty I give up my right to a jury trial or court trial, where I could see and have my attorney question witnesses against me, and where I could use the power оf the court to call witnesses to testify for me. I know at trial I would not have to take the witness stand and could not be forced to testify against myself and that no one could comment if I chose not to testify. I understand I waive my right to have the prosecutor prove my guilt beyond a reasonable doubt.”
{¶32} The record reveals the trial court covered all the constitutional rights. Thus, the trial court strictly complied with the requirements of
{¶33} The record establishes that without any promises, coercion or threats, appellant freely entered a guilty plea. The trial court accepted appellant‘s guilty plea after determining that it was made knowingly, intelligently, and voluntarily. Thus, the plea hearing was fully compliant with the constitutional requirements of
{¶34} With respect to the third and fourth Peterseim factors, we note that appellant was given a complete and impartial hearing on his motions to withdraw his plea. As discussed, the written motions to withdraw his plea alleged no facts in support. At the hearing, however, appellant‘s counsel asserted that appellant was misled into taking the negotiated plea and did not realize he was waiving certain rights, primarily his appellate rights. Appellant himself argued that hе was entitled to withdraw his plea
{¶35} The transcript establishes that the trial court gave the motions full and fair consideration. Specifically, the trial court indicated appellant had three different attorneys represent him in this matter; voluntarily made statements that he was involved with his brother in the robbery and murder of Mr. Estes; never previously complained about the representations of his attorneys; was afforded an еxtensive plea hearing in which he never indicated that there were any issues or problems that he wanted to bring to the court‘s attention; assured the court on more than one occasion that his plea was voluntary; all of his rights were listed in his written plea of guilty; and he was found to be fully competent to stand trial after a competency hearing was conducted.
{¶36} The trial judge stated on the record: “So there‘s nobody pushed you into anything. You understood the deal. You‘ve been negotiating for a year and a half, and you‘ve drove a hard bargain here, but you‘ve gotten the benefit of it, too, Mr. Bump.”
{¶37} Again, the record establishes that appellant‘s guilty plea was knowingly, intelligently, and voluntarily entered, and he was given a complete and impartial hearing on the motions to withdrаw.
{¶38} Pursuant to the Peterseim factors, the trial court did not abuse its discretion in denying appellant‘s presentence motions to withdraw his guilty plea. The record shows appellant knew when he entered his plea that he was waiving some of his appellate rights.
{¶40} In his second assignment of error, appellant contends that the trial court erred by denying his motion to suppress bеcause his statements were coerced.
{¶41} A plea of guilty operates as a waiver of any alleged error regarding appellant‘s motion to suppress. State v. Elliott (1993), 86 Ohio App.3d 792, 795. “Unlike a plea of no contest, a plea of guilty operates as a waiver of claimed errors of the trial court in failing to suppress evidence.” Huber Heights v. Duty (1985), 27 Ohio App.3d 244, syllabus. See, also, State v. Kelley (1991), 57 Ohio St.3d 127, paragraph two of the syllabus (plea of guilty waives all appealable errors unless such errors are shown to have precluded defendant from entering plea voluntarily).
{¶42} Appellant knowingly, intelligently, and voluntarily entered a guilty plea. By doing so, appellant waived any error on the part of the trial court with regard to the denial of his motion to suppress. Elliott, supra, at 795.
{¶43} Appellant‘s second assignment of error is without merit.
{¶44} In his third assignment of error, appellant alleges that the trial court erred by failing to orally notify him at his sentencing hearing that he would be subject to five years mandatory postrelease control and by not sentencing him to five years mandatory postrelease control in its sentencing entry. The state concedes these points but contends that his sentence is subject to correction pursuant to the proсedures set forth in
{¶45}
{¶46} “(2) *** [I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
{¶47} In addition,
{¶48} “(B) Each sentence to a prison term for a felony of the first degree *** shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender‘s release from imprisonment. *** [A] period of post-release control required by this division for an offender shall be one of the following periods:
{¶49} “(1) For a felony of the first degree ***, five years ***.”
{¶50} Appellant pleaded guilty to and was sentenced for complicity to murder, an unclassified felony, to which the postrelease control statute does not apply, and complicity to aggravated robbery, a felony of the first degree, which is subject to mandatory postrelease control. “Where a defendant has been convicted of both an offense that carries mandatory postrelease control and an unclassified felony to which postrelease control is inapplicable, the trial court‘s duty to notify of postrelease control is not negated.” State v. Brown, 8th Dist. No. 95086, 2011-Ohio-345, at ¶8.
{¶51} The trial court was required to but did not notify appellant that he is subject to five years mandatory postrelease control and include that in the sentencing entry. The General Assembly enacted
{¶52} ”
{¶53} “For such offenders,
{¶54} In the instant matter, apрellant‘s sentence of conviction must be corrected to include mandatory postrelease control. Pursuant to
{¶55} Appellant‘s third assignment of error is with merit.
{¶56} For the foregoing reasons, appellant‘s first and second assignments of error are without merit, and his third assignment of error is well-taken. The judgment of the Ashtabula County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.