State v. ChildsState v. Childs
Scott N. Blauvelt, 246 High Street, Hamilton, OH 45011, for defendant-appellant
O P I N I O N
YOUNG, P.J.
{¶1} Defendant-appellant, Nathan D. Childs, appeals from his conviction and sentence in the Butler County Court of Common Pleas for attempted aggravated burglary and robbery, following his guilty plea to those charges.
{¶2} In the early morning hours of July 12, 2008, 82-year-old Juanita Reffitt was awakened by the sound of a loud crash at her home on Roosevelt Avenue in
{¶3} Childs was indicted by the Butler County Grand Jury on two counts of aggravated burglary, both first-degree felonies, in violation of
{¶4} On December 17, 2008, Childs, though represented by counsel, filed a pro se “Motion to Dismiss with Request for Evidentiary Hearing,” asking that the charges against him be dismissed because his speedy trial rights had been violated.
{¶5} Immediately prior to the start of his sentencing hearing, Childs moved to withdraw his guilty pleas. The trial court overruled the motion and sentenced Childs to an aggregate, six-year prison term for his attempted aggravated burglary and robbery convictions.
{¶6} Childs now appeals, raising four assignments of error:
{¶7} Assignment of Error No. 1:
{¶8} “THE TRIAL COURT ERRED TO APPELLANT‘S PREJUDICE AND VIOLATED HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN IT ACCEPTED GUILTY PLEAS THAT WERE NOT KNOWING, NTELLIGENT [sic] AND VOLUNTARY.”
{¶9} Childs argues the trial court erred by accepting his guilty pleas because he did not make them knowingly, intelligently and voluntarily since the trial court failed to inform him that by entering his guilty pleas, he was waiving his right to appeal his conviction on speedy trial grounds. We disagree with this argument.
{¶10}
{¶11} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first
{¶12} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.”
{¶13} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.”
{¶14} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have сompulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{¶15} While a trial court must strictly comply with its duty to inform a defendant and determine that he understands that by pleading guilty or no contest, he is waiving the constitutional rights listed in
{¶16} Relying primarily on this court‘s decision in State v. Ryerson, Butler App. No. CA2003-06-153, 2004-Ohio-3353, Childs argues his guilty pleas were not made knowingly, intelligently or voluntarily because the trial court failed to inform him
{¶17} In Ryerson, a defendant charged with attempted unlawful sexual conduct with a minor and importuning filed numerous pretrial motions seeking to have the charges dismissed on various constitutional and statutory grounds. Before the trial court ruled on the motions, the defendant agreed to plead no contest to the charge of importuning in exchange for the state‘s agreement to dismiss the charge of attempted sexual conduct with a minor. The trial court accepted defendant‘s no contest plea and found him guilty of importuning after agreeing with defense counsel‘s contention that when a trial court fails to rule on a pretrial motion, the court is deemed to have overruled it, and therefore the defendant is permitted to challenge the implicit denial of the motion on appeal under
{¶18} When the defendant appealed his conviction to this court and raised the arguments he had raised in his pretrial motions, the state argued defendant had waived the arguments by pleаding no contest before the trial court ruled on the pretrial motions. The Ryerson court rejected the state‘s argument and found that the trial court committed plain error in accepting the defendant‘s no contest plea because the plea was “not made knowingly, intelligently, and voluntarily” since he “was not fully informed of the consequences of his no contеst plea under the facts and circumstances of this case.” (Emphasis added.) Id. at ¶57. In explaining the rationale for its decision, the Ryerson court noted:
{¶19} “Where a defendant tenders a no contest plea to a trial court before that court has had an opportunity to rule on any pretrial motions the defendant may have
{¶20} Ryerson is readily distinguishable from this case, as that case involved a no contest plea, which does not preclude a defendant from asserting on appeal that the trial court prejudicially erred in ruling on a pretrial motion, see
{¶21} Also, Ryerson expressly limited its finding that the defendant was not fully informed of the consequencеs of his no contest plea to “the facts and circumstances” present in that case. Id. at ¶57. Among other things, the defense counsel in Ryerson stated during the change of plea hearing, “We don‘t anticipate there being an appeal, but I cannot waive his rights to that under these circumstances in accepting a no contest plea.” Thus the defendant in Ryerson, through his counsel, made it clear he was conditioning his plea on the understanding
{¶22} Childs also argues his guilty pleas were not madе voluntarily, knowingly and intelligently because his counsel provided him with inaccurate legal advice by advising him that he would be able to withdraw his guilty pleas if he wished, but “not to say nothing [sic] to [the trial judge] about it.” Childs also points out that his “[t]rial counsel made no effort to deny or refute these rather serious allegations[.]”
{¶23} However, Childs did not make these statements at the change of plea hearing; instead, he made them when he moved to withdraw his guilty pleas immediately prior to his sentencing. He also omits mentioning that when his counsel advised him, “Don‘t talk[,]” at the hearing held on his oral motion to withdraw his guilty pleas, Childs responded by telling him, “Brother, don‘t say nothing to me, please.” It is apparent that the trial court did not believe Childs’ allegations that his counsel advised him that he would be allowed to withdraw his plea, but not to say anything to the trial judge about it, and the court‘s decision not to believe Childs’ allegations was amply supported by the record.
{¶24} Therefore, Childs’ first assignment of error is overruled.
{¶25} Assignment of Error No. 2:
{¶26} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN FAILING TO CONDUCT A FULL HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEAS AND IN DENYING SAID MOTION.”
{¶27} Childs argues the trial court erred by failing to conduct a “full” or
{¶28} “Generally, a motion to withdraw a guilty plea, filed before sentencing, ‘should be freely and liberally granted.‘” State v. Xie (1992), 62 Ohio St.3d 521, 526. Nevertheless, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Id. at paragraph one of the syllabus. “A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for thе withdrawal of the plea.” Id. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the trial court‘s sound discretion, id., and the court‘s decision will not be overturned absent an abuse thereof, i.e., the decision is arbitrary, unconscionable or unreasonable. Id. at 527.
{¶29} In determining whether to grant a motion to withdraw a guilty plea, a trial court should consider “whether withdrawal of the plea will prejudice the prosecution, the timing of the motion, the reasons given for the withdrawal, the defendant‘s understanding of the charges and penalties, and the existence of a meritorious defense.” State v. Metcalf, Butler App. No. 2002-12-299, 2003-Ohio-6782, ¶11.
{¶30} The trial court held a hearing on Childs’ oral motion to withdraw his guilty pleas and permitted both Childs and his defense counsel to make arguments in support of the motion. Childs was represented by competent counsel in this case and voluntarily waived his right to a trial after the trial court conducted a thorough
{¶31} Childs did not move to withdraw his guilty pleas until immediately before
{¶32} Childs did not protest his innocence when he requested that he be allowed to withdraw his guilty pleas. Nevertheless, he argues he had a meritorious defense to present, namely, that his speedy trial rights were violated. We disagree.
{¶33} “The right to a speedy trial is guaranteed by the
{¶34} Childs and his counsel executed and filed a written time waiver of unlimited duration that stated:
{¶35} “Now comes the undersigned, ___________, and after fully consulting with my attorney and after discussing this matter in detail with him, and upon receiving his advise, I voluntarily state that I have been informed and told of my right to a speed [sic] trial, and that my trial must take place within a specific number of days as required by law. I understand аmong other things, if my trial does not take place within the time required by law, my attorney could file a motion to dismiss the charges against me and I would be free of those charges.
{¶36} “I also understand my speedy trial rights, and intelligently and voluntarily waive, or give-up those rights, I voluntarily waive and give-up all Constitutional and statutory time requirements (specifically pursuant to
{¶37} At the hearing held on his motion to withdraw his guilty pleas, Childs pointed out that his counsel had stated at the arraignment hearing that Childs had signed a “limited waiver.” Childs asserted that his counsel told him the time waiver was needed to permit the case to be transferred from the original judge assigned to the case, who needed to recuse himself since he was friends with Childs’ father and uncle, tо another judge of the common pleas court. Childs’ counsel corroborated Childs’ assertion, stating he had told Childs the waiver “[w]as for the purpose to transfer it to this current court. I absolutely did tell my client that.”
{¶38} However, Childs’ counsel never informed the trial court that he intended for the time waiver signed by Childs and him to be only for a limited purpose, and the written waiver filed with the trial court was clearly for an unlimited duration. The Ohio Supreme Court had held that “[a] defendant‘s right to be brought to trial within the time limits expressed in
{¶39} Here, the time waiver of unlimited duration, executed by both Childs and his counsel and enterеd into the record, stated that Childs was waiving his speedy trial rights because it was in his “best interest” to do so. It can be reasonably inferred from this language and the circumstances in which the time waiver was signed that Childs’ counsel sought the time waiver to aid in the preparation of Childs’ defense. Thus, it was not unreasonable for the trial court to rely on the written time waiver of unlimited duration in rejecting Childs’ speedy trial claim. In light of these circumstances, the trial court did not abuse its discretion in denying Childs’ motion to withdraw his guilty pleas. The trial court also did not abuse its discretion in not holding a “full” or evidentiary hearing on Childs’ motion to withdraw his guilty pleas, since Childs did not request such a hearing and the facts do not show that such a hearing was warranted.
{¶40} Consequently, Childs’ second assignment of errоr is overruled.
{¶41} Assignment of Error No. 3:
{¶42} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO DISMISS HIS INDICTMENT FOR VIOLATION OF HIS RIGHT TO A SPEEDY
{¶43} Childs argues the trial court erred by accepting his guilty pleas before ruling on his pro se motion to dismiss the charges against him on speedy trial grounds and by finding that there was no basis for his speedy trial claim when it overruled his motion to withdraw his guilty pleas. We disagree with both contentions.
{¶44} The trial court had no obligation to rule on Childs’ pro se motion to dismiss on speedy trial grounds because Childs was represented by counsel in this case, and therefore, was not entitled to represent himself as well, since criminal defendants in this state are not entitled to hybrid representation. See State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶32. Even if Childs’ counsel had raised the motion, the trial court would have been obligated to overrule it for the reasons stated in our response to Childs’ second аssignment of error. Finally, Childs’ guilty pleas to the charges, which were made knowingly, intelligently and voluntarily for the reasons cited in our response to Childs’ first assignment of error, preclude him from challenging on appeal the trial court‘s denial of his motion to dismiss the charges against him on speedy trial grounds. See Kelly, 57 Ohio St.3d 127, paragraph one of the syllabus.
{¶45} Therefore, Childs’ third assignment of error is overruled.
{¶46} Assignment of Error No. 4:
{¶47} “APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL TO HIS PREJUDICE AND IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶48} Childs argues his defense counsel provided him with ineffective
{¶49} To prevail on an ineffective assistance claim, an appellant must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052. Prejudice exists where there is a reasonable probability that, but for counsel‘s errors, the result of the trial would have been different. Id. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id. A failure to make a sufficient showing on either the “performance” or “prejudice” prong of the Strickland standard will doom an appellant‘s ineffective assistance claim. See id. at 697.
{¶50} Childs has failed to make a sufficient showing on either the “performance” prong or “prejudice” prong of the Strickland standard. Childs stated at the change of plea hearing that he was satisfied with his counsel‘s performance. Moreover, for the rеasons cited in our response to his second and third assignments of error, Childs was not entitled to have the charges against him dismissed on speedy trial grounds. Therefore, Childs’ counsel was not ineffective for failing to advise Childs not to plead guilty to the attempted aggravated burglary and robbery charges before the trial court ruled on Childs’ pro se motion to dismiss on speedy trial grounds.
{¶51} Accordingly, Childs’ fourth assignment of error is overruled.
{¶52} Judgment affirmed.