State v. EberleState v. Eberle
Thomas W. Kidd, Jr., P.O. Box 231, Harveysburg, Ohio 45032, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Jeffrey E. Eberle, appeals from the decision of the Clermont County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reasons outlined below, we affirm the trial court‘s sentencing entry as amended.
{¶2} On January 11, 2006, appellant was indicted for aggravated murder, kidnapping, and aggravated arson. On September 18, 2006, after entering into plea negotiations, appellant pled guilty to aggravated murder in violation of
{¶3} Appellant did not appeal from his conviction and sentence.
{¶4} Over three years later, on July 20, 2009, appellant moved to withdraw his guilty plea arguing that his trial counsel was ineffective and that he was the “victim” of prosecutorial misconduct. The trial court, without first conducting an evidentiary hearing, denied appellant‘s motion by finding no manifest injustice warranted the withdrawal of his plea.
{¶5} Appellant appealed from the trial court‘s decision, raising one assignment of error. However, at the conclusion of oral arguments, this court sua sponte raised the issue of whether appellant‘s guilty plea was rendered invalid pursuant to the Ohio Supreme Court‘s decision in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, when the trial court erroneously informed him that he would be subject to a mandatory five-year term of postrelease control if he was ever released from prison.1 Therefore, because the parties provided this court with supplemental briefs regarding that issue, we find an initial review of the validity of appellant‘s guilty plea is appropriate.
{¶6} A criminal defendant‘s choice to enter a guilty plea is a serious decision because, by agreeing to plead guilty, he is giving up several constitutional rights. Clark, 2008-Ohio-3748 at ¶25; State v. Nero (1990), 56 Ohio St.3d 106, 107; Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709. In turn, because the “exchange of certainty for some of the most fundamental protections in the criminal justice system will
{¶7} To ensure that guilty pleas conform to these high standards, the trial court must engage the defendant in a
{¶8} Although “[l]iteral compliance with
{¶9} When the trial court does not substantially comply with
{¶10} In this case, after a plea agreement was reached, appellant, his attorneys, and the prosecution signed a written “Plea of Guilty” form. This form, besides correctly listing the maximum penalty for aggravated murder as life in prison without parole, also read, in pertinent part, the following:
{¶11} “The defendant also acknowledges that he has been advised and understands that POST RELEASE CONTROL is mandatory in this case. If he is granted parole, he will be subject to five (5) years of post release control under terms and conditions determined by the Parole Board. A violation of any post release rule or
{¶12} Thereafter, at the plea hearing, the trial court engaged appellant in a colloquy stating, in pertinent part, the following:
{¶13} “THE COURT: All right. [Prosecutor], on behalf of the State I would like for you to place on the record at this point in time your understanding of the negotiated resolution of this case, please?
{¶14} “[THE STATE]: Your Honor, my understanding is that [appellant] will enter a plea of guilty to Count 1 of the indictment, Aggravated Murder with Prior Calculation and Design. In exchange for that plea the State of Ohio would dismiss counts 2, 3, 4, and 5, and all specifications contained within the indictment. It is my understanding that both parties are going to jointly recommend to the – to the court that [appellant] receive life in prison with parole eligibility after 20 years in prison. * * *.”
{¶15} “THE COURT: [Appellant‘s trial counsel], on behalf of [appellant, and co-counsel], is this your understanding about how the matter will be resolved?
{¶16} “[APPELLANT‘S TRIAL COUNSEL]: Yes, it is, Your Honor.
{¶17} “THE COURT: All right. [Appellant,] before I can allow you to enter a plea of guilty to a charge of aggravated murder, * * * I need to go through what the charge is that you‘re pleading guilty to, what the possible consequences – that is the maximum possibility penalties could be in this case for your plea of guilty here today, as well as the rights you‘re giving up.
{¶18} “* * *
{¶19} “THE COURT: All right. Now, you‘re charged in Count No. 1 of this indictment. It alleges an aggravated murder charge. It alleges that on or about the 15th day of December of 2005 and in Clermont County, Ohio, that you did purposely with prior calculation and design cause the death of another person * * *. Do you understand what that charge is?
{¶20} “[APPELLANT]: Yes, Sir.
{¶21} “* * *
{¶22} “THE COURT: All right. Now, aggravated murder in Ohio is an unspecified felony. It does carry a maximum possible penalty of life in prison without parole, or life in prison with parole eligibility after you would serve 30 years, or life imprisonment with parole eligibility after serving 25 years, or life imprisonment with parole after serving 20 years imprisonment. Do you understand that?
{¶23} “[APPELLANT]: Yes, Sir.
{¶24} “* * *
{¶25} “THE COURT: All right. Now, you understand that part of the negotiated plea that you‘re entering here is that the State, you, and your attorneys are recommending to this panel of judges that the Court impose a sentence of life imprisonment with eligibility for parole after you have served 20 years of imprisonment. Do you understand that?
{¶26} “[APPELLANT]: Yes.
{¶27} “* * *
{¶28} “THE COURT: Now, you also understand that after – that you are – this is a mandatory sentence, you understand that? And mandatory means that the Court is not permitted to grant you any type of early release. There would be no opportunity for community control or judicial release in the future; you understand that?
{¶29} “[APPELLANT]: Yes.
{¶30} “THE COURT: All right. Now, you also understand that parole is not promised? You are eligible for parole after you have served 20 years of imprisonment. You could, however, serve your entire natural life in prison should you not be granted parole. Do you understand that?
{¶31} “[APPELLANT]: Yes, Sir.”
{¶32} The court continued by stating the following:
{¶33} “THE COURT: Do you also understand that if you are granted parole at some point in the future, that post-release control – what we used to call parole in Ohio – is mandatory in this case? Do you understand that? [sic]
{¶34} “[APPELLANT]: Yes, Sir.
{¶35} “THE COURT: And that you would be supervised by the Adult Parole Authority upon release for a period of five years. Do you understand that?
{¶36} “[APPELLANT]: Yes, Sir.
{¶37} “THE COURT: And that they can place upon you certain restrictions as to your travel, certain other restrictions and rule of post-release control, and that could be for a period of five years – or would be for a period of five years. You understand that?
{¶38} “[APPELLANT]: Yes, Sir.
{¶39} “THE COURT: Now, if you were to violate a term or condition of your release on parole, you could be returned to prison. Do you understand that?
{¶40} “[APPELLANT]: Yes, Sir.
{¶41} “THE COURT: Each violation of parole rules could result in your being returned to prison for up to nine months. Do you understand that?
{¶42} “[APPELLANT]: Yes, Sir.
{¶43} “THE COURT: And if you violated your parole by committing a new felony
{¶44} “[APPELLANT]: Yes, Sir.”
{¶45} The trial court then advised appellant that by entering a guilty plea he would waive his right to a jury trial, the right to confront his accusers, the right to compulsory process to obtain witnesses, the right to require the state to prove his guilt beyond a reasonable doubt, and his privilege against compulsory self-incrimination.
{¶46} Following this colloquy, appellant entered a guilty plea to one count of aggravated murder. However, at the sentencing hearing, the trial court stated the following:
{¶47} “THE COURT: * * * I need to also advise [appellant] that there is post-release possible, and so as part of the sentence I need to also advise him that he is subject to mandatory post-release control if parole is granted in this case. That would be for a period of five years. And as I previously advised [appellant], a violation of post-release control terms or conditions can result in his being returned to prison for up to one-half of the sentence, or if he violates by the commission of a new felony offense, the sentencing Judge in the new case can also impose a sentence for violating post-release control of up to the number of months remaining on post-release control or one year whichever is greater. * * *.”
{¶48} The trial court then reiterated in its sentencing entry that appellant would be “subject to mandatory period of post release control for a period of five years under the supervision of the Adult Parole Authority.”
{¶49} After a thorough review of the record, we find the trial court strictly complied with the requirements of
{¶50} Yet, besides merely asserting in his supplemental brief that he “would not have followed through with his plea” after this court brought the issue to his attention, there is simply nothing in the record to suggest appellant would not have entered his guilty plea had the trial court not erroneously informed him that he was subject to a mandatory five-year term of postrelease control.2 As the record indicates, appellant was informed on numerous occasions that his decision to enter a guilty plea to aggravated murder, an unclassified felony, carried with it the potential maximum penalty of life in prison without the possibility of parole. In turn, because there is simply nothing in the record to indicate appellant misunderstood the ramifications of his decision, and because he failed to prove the conditions he faced if he was ever released from prison were critical to his decision to enter his guilty plea, we find appellant has not demonstrated any resulting prejudice. See Douglass at ¶36; see, also, State v. Clark, Cuyahoga App. No. 2006-A-0004, 2008-Ohio-6768, ¶18 (finding no prejudice to defendant upon remand from Ohio Supreme Court following guilty plea to aggravated murder when trial court incorrectly informed him that he would be subject to a mandatory term of postrelease control). Accordingly, appellant‘s guilty plea is affirmed.
{¶52} Having affirmed his guilty plea, we now turn our attention to appellant‘s single assignment of error.
{¶53} “THE COURT ERRED IN DENYING APPELLANT‘S MOTION TO WITHDRAW GUILTY PLEA WITHOUT A HEARING SINCE HE WOULD NOT HAVE ENTERED THIS PLEA BUT FOR THE INEFFECTIVENESS OF COUNSEL AND THE MISCONDUCT OF THE GOVERNMENT.”
{¶54} In his sole assignment of error, appellant argues that the trial court erred by denying his post-sentence motion to withdraw his guilty plea, or that, at the very least, the trial court erred by not first conducting an evidentiary hearing. We disagree.
{¶55} Pursuant to
{¶56} Ineffective assistance of counsel is a proper basis for seeking a post-sentence withdrawal of a guilty plea. State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, ¶8. When an alleged error underlying a motion to withdraw a guilty plea is the ineffective assistance of counsel, the defendant must show (1) that his counsel‘s performance was deficient and (2) that there is a reasonable probability that, but for counsel‘s errors, he would not have pled guilty. State v. Finkbine, Warren App. No. CA2005-06-068, 2006-Ohio-1788, ¶7; State v. Xie (1992), 62 Ohio St.3d 521, 524, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052.
{¶57} Initially, appellant argues that the trial court erred by denying his motion to withdraw his guilty plea because he was provided ineffective assistance of counsel. In support of this claim, appellant argues that his trial attorneys were deficient for “not revealing to him the nature” of a statement made by the state‘s “prized” witness, and that, had he been aware of the content of the statement, he would not have entered his
{¶58} Next, appellant argues that the trial court erred by denying his motion because he was the “victim” of prosecutorial misconduct resulting from the state “hiding evidence,” thereby making his plea involuntary. However, even after accepting the allegations made in the submitted affidavits as true, the trial court found the evidence did not create a reasonable likelihood that a withdrawal of his guilty plea was necessary to correct a manifest injustice. After a thorough review of the record, we find no error in the trial court‘s decision. See Williams, 2009-Ohio-6240 at ¶17; Powell, 2009-Ohio-6552 at ¶10. The affidavits submitted by appellant in support of the withdrawal of his guilty plea based on prosecutorial misconduct were, at best, rife with ambiguity and
{¶59} Appellant also argues the trial court erred by not conducting a hearing before ruling on his motion to withdraw his guilty plea. A trial court, however, need not hold an evidentiary hearing on a post-sentence motion to withdraw where the record indicates the defendant is not entitled to relief. State v. Taylor, Madison App. No. CA2007-12-037, 2009-Ohio-924, ¶34, citing Mays, 2008-Ohio-128 at ¶6; Degaro, 2009-Ohio-2966 at ¶13. Therefore, as discussed above, because appellant failed to demonstrate a reasonable likelihood that the withdrawal of his guilty plea was necessary to correct a manifest injustice, the trial court did not err by denying his motion without first conducting an evidentiary hearing. State v. Heath, Warren App. No. CA2006-03-036, 2006-Ohio-7045, ¶8, citing State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶32.
{¶60} In light of the foregoing, we find the trial court did not abuse its discretion by overruling appellant‘s motion to withdraw his guilty plea without first conducting an evidentiary hearing. Accordingly, as the record is simply devoid of the type of extraordinary circumstances that would necessitate allowing him to withdraw his guilty plea, appellant‘s sole assignment of error is overruled.
{¶61} Judgment affirmed as modified.
BRESSLER, P.J., and POWELL, J., concur.