State v. CorradettiState v. Corradetti
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (Fоr Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Bernard J. Corradetti, appeals from the judgment of the Lake County Court of Common Pleas denying his post-sentence motion to withdraw his guilty plea. We affirm.
{¶2} On September 1, 2011, appellant pleaded guilty, by way of information, to attempted compelling prostitution, in violation of
{¶3} Prior to sentencing, appellant filed a pro se pleading caрtioned “Motion to Withdraw Guilty Plea, Motion to Dismiss, Motion for Acquittal and Release Defendant.” He also filed a pro se “Addendum to the Motion to Dismiss/Withdraw Guilty Plea/Acquittal” and a pleading, addressed “to whоm it may concern” seeking the appointment of a new attorney to his case. With respect to the first two documents, appellant alleged that various law enforcement officers and certain state‘s witnesses committed perjury when they lied, under oath, about the events which led to appellant‘s arrest. Regarding his motion for appointment of new counsel, appеllant alleged, inter alia, he had not seen nor heard from his counsel since he was “forced” to plead guilty. Appellant, however, withdrew each motion at the commencement of the sentencing hearing. Appellant was subsequently sentenced to concurrent, 17-month terms of imprisonment.
{¶4} Several days after imposition of sentence, appellant filed several additionаl motions; to wit: a “Motion to Vacate Sentence/Petition for Postconviction Relief;” a “Motion to Withdraw Guilty Plea and Dismiss;” and an “Addendum for Motion to Dismiss/Withdraw Guilty Plea/Acquittal.” In these motions, appellant essentially reiterated many of his previous substantive arguments relating to the alleged perjury of arresting officers as well as the state‘s witnesses. The trial court denied appellant‘s motions without a hearing.
{¶5} Appellant filed a delayed appeal challenging the trial court‘s ruling on his post-sentence motions. This court permitted appellant to proceed as it pertained to the
{¶6} Appellant assigns the following error:
{¶7} “The trial court erred to the prejudice of the defendant-appellant by denying his post-sentence 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}
{¶9} Thе decision whether to grant or deny a post-sentence motion to withdraw a guilty plea is within the sound discretion of the trial court. State v. Borecky, 11th Dist. No. 2007-L-197, 2008-Ohio-3890, ¶14. The good faith, credibility, and weight of the movant‘s assertions in support оf the motion are to be resolved by the trial court. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. Accordingly, appellate review of the trial court‘s denial of a post-sentence motion to withdrаw a guilty plea is limited to a consideration of whether the lower court abused its discretion. State v. Pearson, 11th Dist. Nos. 2002-P-2413 and 2002-P-2414, 2003-Ohio-6962, ¶7. The term “abuse of discretion” is one of art, connoting judgment exercised by a court, which does not comport with reason or the record. State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). Where the record discloses neither a “clear or openly unjust action” nor “an extraordinary and fundamental flaw in the plea prоceeding,” the denial of a post-sentence motion to withdraw a guilty plea will generally be affirmed. See e.g. State v. Banks, 8th Dist. Nos. 83782 and 83783, 2004-Ohio-4478, ¶10.
{¶10} In this case, appellant asserts the trial court should have permitted him to withdraw his plea of guilty, or at least held a hearing on the issue, because his motion demonstrates he had a defense to the state‘s case and desired to test the evidence. Appellant alleges that, even though he withdrew his pre-sentence motion to withdraw his plea prior to the sentencing hearing, he erroneously did so at his attorney‘s behest. Finally, because his pre-sentencе and post-sentence motion to withdraw his plea essentially set forth the same arguments, appellant maintains his post-sentence motion was not based upon his dissatisfaction with his sentence. Consequently, appellant maintains, at the very least, the trial court should have conducted a hearing to gain a
{¶11} The record demonstrates that, at his plea hearing, appellant was fully and thoroughly advised of all constitutional and non-constitutional rights he was waiving. First, after being advised of the difference between a bill of information and an indictment, appellant freely chose to waive his right to have his case submitted to the grand jury and proceed by information. Next, the trial court engaged appellant in a complete
{¶12} Appellant was afforded the opportunity to deny the charges as well as object to their factual basis at the hearing. At no time did he object or assert his belief that the charges were premised upon police or witness perjury. To the contrary, aftеr being fully apprised of the rights he was waiving and the specific elements of the charges to which he was being offered to plea, appellant unequivocally admitted his
{¶13} Additionally, although appellant claims he only withdrew his pre-sentence motiоn to withdraw at his attorney‘s advice, there is nothing in the record to indicate this advice was questionable or inconsistent with counsel‘s duty to zealously represent appellant. Anyway, appellant was entitled to refuse this advice and there is nothing on record to suggest the motion was withdrawn without appellant‘s knowledge or against his will. We therefore discern nothing problematic in the fact that appellant‘s motion was withdrawn.
{¶14} Appellant had the opportunity to take the matter to trial and test the state‘s evidence, but, instead, knowingly and voluntarily waived this opportunity without questioning thе nature of the evidence the state intended to produce. Although he filed a pre-sentence motion, he voluntarily withdrew it and, as a result, that motion is legally inconsequential. Appellant‘s vacillation reflects a struggle with his decision to plea. Such “changes of heart” are not uncommon. It is well established, however, that a change of heart is insufficient to serve as a basis for withdrаwing one‘s plea. See e.g. State v. Kimble, 11th Dist. No. 2005-T-0085, 2006-Ohio-6096, ¶16.
{¶15} Appellant‘s assertions of innocence and witness perjury demonstrate appellant now desires to challenge the state‘s evidence at trial. Such a desire, however, is not so remarkable to suggest a manifest injustice would occur by permitting the plea to stand. Thus, appellant was not entitled to a hearing on his post-sentence motion. Furthermore, because appellant entered his plea knowingly and voluntarily and there are no clear flaws in the plea proceedings, we perceive no injustice in the trial
{¶16} Appellant‘s sole assignment of error lacks merit.
{¶17} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is hereby affirmed.
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.