State v. CandyState v. Candy
OPINION
Rendered on the 10th day of April, 2020.
JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami County Prosecutor‘s Office, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103, Dayton, Ohio 45402 Attorney for Defendant-Appellant
TUCKER, P.J.
I. Facts and Procedural History
{¶ 2} On January 17, 2018, Candy was indicted on one count of nonsupport of dependents in violation of
{¶ 3} On July 26, 2018, attorney Patrick Mulligan entered as substitute counsel for Candy and filed a motion for a continuance of trial. The trial court granted the motion and trial was rescheduled for October 10, 2018. On September 18, 2018, Candy filed
{¶ 4} Candy appeared before the court on December 27, 2018, at which time the parties indicated that a plea agreement had been reached. Candy agreed to plead guilty to the charged offense and to pay restitution in the amount of $4,689.17. The agreement provided the restitution had to be paid by the time of the sentencing. In exchange, the State agreed to recommend community control sanctions. The trial court conducted a
{¶ 5} On the date set for sentencing, Candy appeared with counsel and indicated he wanted to withdraw his plea. Counsel stated that he had met with Candy “several weeks ago” and Candy had expressed the desire to withdraw the plea. Tr. p. 3. Counsel further stated that he did not agree with such action and that he was “not willing to do that.” Id. Counsel also stated: Candy believes he has “legal reasons not for the state not to be able to prosecute him. He also believes he has a defense in that he has paid child support pretty regularly since 2013 and that has been deducted from his pay for, I want to say, Darke and Montgomery County. For some reason, Miami County has managed not to be able to collect money but other counties have.” Id. The trial court continued the matter in order to permit Candy time to file motions regarding withdrawal of the plea and substitution of counsel.
{¶ 6} On February 21, 2019, Mulligan filed a motion to withdraw the plea. The matter was set for a hearing on March 15, 2019. At the hearing, Mulligan appeared and
{¶ 7} A sentencing hearing was conducted on July 26, 2019. Candy appeared with new counsel. The trial court imposed a prison sentence of 16 months. Candy appeals.
II. Withdrawal of Guilty Plea
{¶ 8} Candy‘s first assignment of error states:
THE TRIAL COURT‘S DENIAL OF APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF DISCRETION.
{¶ 9} Candy contends his motion to withdraw his plea should have been granted.
{¶ 10}
{¶ 11} We review trial court decisions on motions to withdraw pleas for abuse of
{¶ 12} This court has adopted nine factors to consider when evaluating whether a trial court has abused its discretion in overruling a presentence motion to withdraw a plea. State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29. Those factors, which are set forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995), overruled on other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.), are:
(1) whether the accused is represented by highly competent counsel, (2) whether the accused was given a full
Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial court gave full and fair consideration to the motion, (5) whether the motion was made within a reasonable time, (6) whether the motion sets out specific reasons for the withdrawal, (7) whether the accused understood the nature of the charges and possible penalties, (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the plea.
{¶ 14} In this case, the trial court discussed three of the above factors in reaching its decision to deny the motion to withdraw. First, the trial court found Candy was provided a full
{¶ 15} We agree with the assessment made by the trial court. We further note two more factors are implicated herein: (1) Candy was represented by competent counsel, and (2) the record supports a finding that the trial court gave full and fair consideration to the motion to withdraw despite the fact that Candy did not appear. Thus, we conclude that the majority of the factors in Fish, 104 Ohio App.3d at 240, did not support the withdrawal of Candy‘s guilty plea.
{¶ 16} We further conclude the record does not establish that Candy had a reasonable, legitimate basis to withdraw his plea. The State submitted a child support audit for calendar years 2001 through February 28, 2019. The audit shows no child support payments were made during 2010, 2011 and 2012. The audit also showed that, as of December 2012, Candy‘s total child support arrearage, for Miami County only, was $26,122.07. Candy submitted no documentation to support his claim that he had paid support during the dates in question. The only documentation he provided to counsel was for payments made to other counties for different children.2
{¶ 17} Based upon this record, we conclude the trial court did not abuse its discretion in overruling Candy‘s presentence motion to withdraw his guilty plea. The first assignment of error is overruled.
III. Ineffective Assistance of Counsel
APPELLANT‘S COUNSEL‘S AFFIRMATIVE REPRESENTATION THAT HE DID NOT INTEND TO ADVOCATE FOR HIS CLIENT AND HIS DELAY IN PRESENTING APPELLANT‘S MOTION TO WITHDRAW HIS PLEA RENDERED ASSISTANCE OF COUNSEL INEFFECTIVE.
{¶ 19} In this assignment of error, Candy asserts he was denied the effective assistance of counsel. Specifically, he claims Mulligan did not timely file the motion and did not otherwise effectively advocate for him with regard thereto.
{¶ 20} “Reversal of a conviction for ineffective assistance of counsel requires that the defendant show first that counsel‘s performance was deficient and second that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 74, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance[.]” Strickland at 689.
{¶ 21} Candy correctly notes that at the February 7, 2019 hearing, Mulligan informed the court that he did not agree with, nor wish to pursue, Candy‘s plan to attempt a plea withdrawal and that he might, therefore, be required to withdraw as counsel. However, Candy ignores the fact that two weeks later, Mulligan filed a motion to withdraw the plea which appears to accurately set forth Candy‘s claims in relation thereto. Further, Mulligan appeared at the March 15, 2019 hearing on the motion. Counsel‘s inability to present evidence was not due to any reluctance on his part, but rather was based upon the fact that Candy intentionally failed to appear and the fact that Candy had not provided
{¶ 22} We note the trial court did not make any finding that the motion was untimely, thus this argument is unfounded. We also note that Candy did not express any dissatisfaction with counsel, nor did he seek to terminate Mulligan‘s representation or obtain new counsel at any point during the month between the February 7 and March 15 hearing dates.
{¶ 23} Further, Mulligan was able to negotiate a plea agreement providing for the imposition of one year of community control sanctions despite the fact that Candy was subject to a prison term of up to 18 months. See
{¶ 24} Based upon this record, we find no support for the claim that counsel‘s representation fell below an objective standard of reasonableness. The second assignment of error is overruled.
IV. Knowing, Intelligent and Voluntary Nature of Guilty Plea
{¶ 25} Candy‘s third assignment of error provides:
APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER HIS PLEA OF GUILTY
{¶ 26} Candy contends the trial court failed to inform him of the possible
{¶ 27} Due process mandates that a guilty plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Compliance with
{¶ 28} In the instant case, the trial court advised Candy at the plea hearing that he could be required to serve a three-year period of post-release control. The trial court also informed him that violation of any of the conditions of such post-release control could
{¶ 29} Despite these advisements, Candy claims his guilty pleas were not knowingly, intelligently, and voluntarily entered because “he did not understand and was not informed by counsel that he was subject to up [sic] punishment of up to fifty percent of his original sentence if he violated post-release control.” In support, Candy notes that when asked by the trial court whether he understood a violation of post-release control could result in imprisonment for up to a maximum of fifty percent of his prison sentence, he answered, “I do now.” Plea Tr. p. 8.
{¶ 30} A review of the record shows that, on the date of the plea, Candy executed a guilty plea form which clearly set forth an explanation of post-release control and the penalties for violations of the conditions thereof. Both Candy and his attorney signed the form. When asked by the trial court, Candy affirmed that he had read the form and discussed it with his attorney. He further affirmed that he had no questions about the information set forth on the plea form or about any of the information provided by the trial court.
{¶ 31} The record affirmatively shows the trial court completely and properly explained that Candy could be subject to post-release control, the length of the possible post-release control as well as the punishments for violations of post-release control. Candy indicated he understood the trial court‘s explanation and that he had no questions
{¶ 32} We have reviewed the entirety of the transcript and conclude the court engaged in a detailed plea colloquy that was sufficient to meet the requirements of Ohio
V. Conclusion
{¶ 33} All of Candy‘s assignments of error being overruled, the judgment of the trial court is affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Janna L. Parker
Michael T. Columbus
Hon. Stacy M. Wall