State v. DorseyState v. Dorsey
Decided: March 12, 2010
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lindsay D. Navarre, Assistant Prosecuting Attorney, for appellee.
Spiros P. Cocoves, for appellant.
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HANDWORK, J.
{¶ 1} This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas.
{¶ 2} In September 2008, the Lucas County Grand Jury indicted appellant, Joseph Dorsey, on: (1) six counts of receiving stolen property in violation of
{¶ 3} On November 5, 2008, the trial court held a hearing at which appellant withdrew his former pleas of not guilty and entered no contest pleas to: (1) two counts of receiving stolen property, both being offenses of the fourth degree; and (2) two counts of receiving stolen property, both being offenses of the fifth degree. In exchange, appellee, the state of Ohio, agreed to dismiss all of the remaining counts in the indictment. The trial court found appellant guilty, then scheduled a sentencing hearing for November 24, 2008. Prior to that date, however, appellant filed pro se motions for arrest of judgment and to withdraw his guilty plea.
{¶ 4} On December 18, 2008, the court below held a hearing on both motions. Appellant was represented by counsel at this hearing, but also chose to speak on his own behalf. He claimed that after performing his own research, he learned that by pleading no contest, he “depart[ed] from a lot of” his rights. He further asserted that there was a “lot of stuff” missing in his case. Appellant also insinuated that the detective who arrested him was biased toward appellant and, therefore, “had a lot to do with the filing of these
{¶ 5} At a hearing held on December 29, 2008, the trial judge denied appellant‘s motion to withdraw his pleas of no contest. He then held a sentencing hearing. On January 7, 2009, the common pleas court sentenced appellant to 17 months on each conviction for receiving stolen property and 11 months on each conviction for receiving stolen property. The court ordered that these sentences were to be served consecutively. In addition, the judge held:
{¶ 6} “Defendant found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs. This order of reimbursement is a judgment enforceable pursuant to law by the parties in whose favor it is entered. Defendant further ordered to pay the costs assessed pursuant to
{¶ 7} Appellant appeals his conviction and sets forth the following assignments of error:
{¶ 8} “The trial court erred to the prejudice of Mr. Dorsey by denying his motion to withdraw his no contest pleas in violation of
{¶ 9} “The trial court erred to the prejudice of Mr. Dorsey when it ordered him to pay unspecified costs, including court appointed [attorney] fees, without first determining the ability to pay those costs.”
{¶ 10} In his first assignment of error, appellant contends that the trial court erred in denying his motion to withdraw his no contest plea.
{¶ 11}
{¶ 12} It is well-established that in reviewing a trial court‘s decision regarding a motion to withdraw a plea, we are required to weigh a number of nonexhaustive factors. State v. Eversole, 6th Dist. Nos. E-05-073, E-05-076, E-05-074, E-05-075, 2006-Ohio-3988, ¶ 13. These factors include: (1) whether the prosecution would be prejudiced if the plea was vacated; (2) whether the offender was represented by highly competent counsel; (3) the extent of the
{¶ 13} In the instant cause, appellant timely filed his motion to withdraw his no contest pleas eight days after the trial court accepted the same. Dorsey was represented by the same counsel who represented him at the
{¶ 14} Appellant‘s counsel was a highly capable attorney who had conferred with his client on the issues that Dorsey wanted to raise and discussed the viability of those arguments during the hearing on appellant‘s motion to withdraw his no contest plea. These included “suppression issues,” appellant‘s right to a preliminary hearing, and the indictments. Counsel then indicated that appellant wished to speak on his own behalf, and the trial judge granted that wish.
{¶ 15} Appellant claimed that the charges filed against him in this case were not premised solely on the elements of the alleged offenses, but were filed because he had
{¶ 16} Because the trial judge had not seen an affidavit and a motion recently filed by appellant, he took the case under advisement until such time that he could review these documents. Thus, appellant‘s motion to withdraw received full and fair consideration by the lower court. Finally, there is nothing in the record of this cause demonstrating that the state would be prejudiced if appellant was permitted to withdraw his guilty plea. Based upon a complete review of all of the factors set forth in
{¶ 17} In his second assignment of error, appellant contends that the trial court erred in ordering him to pay “costs of supervision, confinement, assigned counsel, and prosecution” without determining appellant‘s present and future ability to pay these costs and fees. An order imposing payment of these costs by a criminal defendant are governed by different statutes.
{¶ 18}
{¶ 19} We turn now to the trial court‘s order requiring appellant to pay appointed counsel fees.
{¶ 20} In the case before us, the trial court explicitly found that appellant had or could reasonably have the means to pay all or part of the applicable costs ordered by that court. We conclude that this satisfies the requirement that an “ability to pay” finding must be entered on the record. Nonetheless, there must still be some evidence in the
{¶ 21}
{¶ 22} Finally, appellant was not placed on community control or probation. Therefore,
{¶ 23} The judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. Specifically, the trial court‘s judgment denying appellant‘s motion to withdraw his guilty plea is affirmed. Those sections of the court‘s judgment
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.