State v. EvansState v. Evans
For Plaintiff-Appellee:
WILLIAM C. HAYES
LICKING COUNTY PROSECUTOR
PAULA M. SAWYERS
20 S. Second St., 4th Floor
Newark, OH 43055
For Defendant-Appellant:
JAMES A. ANZELMO
446 Howland Dr.
Gahanna, OH 43230
{1} Defendant-Appellant William D. Evans appeals the May 1, 2020 judgment entry of the Licking County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{2} On November 21, 2019, J.W. called 911 to report that his 1999 Ford F150 pickup truck had been stolen from his business, Sunburst Pools, located in Pataskala, Licking County, Ohio. J.W. tracked the vehicle to another location in Pataskala. He believed Defendant-Appellant William D. Evans stole the pickup truck. Evans was previously employed by J.W. but J.W. fired him for stealing.
{3} Deputies with the Licking County Sheriff‘s Deрartment reported to address where the pickup truck was allegedly located and they found the truck. Evans admitted to the Deputies that he took the truck without permission.
{4} Evans was arrested on November 22, 2019. He was indicted on December 5, 2019 on one count of Theft, a fourth-degree felony in violation оf
{5} The matter was scheduled for a jury trial, but Evans filed a motion to continue so the jury trial could be converted to a change of plea and sentencing hearing. The motion was granted and the matter was continued until May 2020 due to the COVID-19 state of emergency.
{6} On May 1, 2020, the State filed a Motion to Amend Count I of the indictment. Through plea negotiations, Evans and the State reached a plea agreement wherein the State would amend the charge of Theft to Attempted Theft, a fifth-degree felony in
{7} The change of plea and sentencing hearing was held on May 1, 2020. The hearing took place via video conference due to the COVID-19 state of emergency. The trial court asked Evans if it was his intention to withdraw his not guilty plea to the amended charge of attempted theft. (T. 3-4). Evans responded in the affirmative. (T. 4).
{8} The trial court conducted the plea colloquy. The State recited the facts of the case. It stated the victim in the case had previously employed Evans but had firеd him. (T. 10). When the Licking County Sheriff deputies arrived at the scene, Evans admitted he took the victim‘s pickup truck. (T. 10). Evans agreed to the facts as set forth by the State. (T. 10).
{9} The trial court next informed Evans of the possible sentence if it found him guilty of attempted theft. (T. 11). The maximum sentence for attempted theft was one year in thе state penitentiary, a fine of $2,500, and three years of post-release control. Evans stated he understood. (T. 12). Evans was on probation at the time of sentencing. (T. 13).
{10} At the end of the plea colloquy, the trial court found Evans’ guilty plea was freely, voluntarily, and “understandingly” made. (T. 16). It permitted Evans to withdraw his pleа and enter a plea of guilty. The trial court found Evans guilty based on the facts as read by the State. (T. 16).
{11} Counsel for Evans informed the trial court that Evans had been incarcerated since November 21, 2019, approximately six months. (T. 17). He was a trustee in the jail. He was receiving mental health treatment and was next going tо work on his addictions. (T. 17). Based on the length of Evans’ incarceration, the amendment of the charge to a
{12} Evans told the court that he was going to back to his employment at Sunburst Pools because J.W. wanted him back to work. (T. 18). He apologized to J.W. and the trial court for his actions. (T. 18).
{13} The trial court stated that it was Evans’ fourth theft-related conviction as an adult. He committed the current offense while on probation for charges of burglary and breaking and entering. (T. 19). He also had unrelated charges pending in another criminal proceeding. (T. 19). The trial court sentenced Evans to one year in prison on the attempted theft chаrge, with credit for 163 days. (T. 19). It revoked his post-release control and ordered him to serve an additional one year in prison. (T. 19). The trial court journalized the sentencing via judgment entry filed May 1, 2020.
{14} After the trial court sentenced Evans, Evans clarified with the court that he was going to prison for two years. (T. 20). He asked the triаl court if there was anything he could do to change the court‘s mind. (T. 21). The trial court responded to Evans, “don‘t steal people‘s stuff.” (T. 21). Evans expressed that he had obligations to his family and asked the court to give him one more chance because he was going to stop doing drugs. (T. 22). He denied stealing the truck bеcause it was his work truck and he drove it every day. (T. 25). Evans told the court, “I don‘t know what to do, sir. I‘m - it‘s not what I‘ve been told. I‘ve been talking with my lawyer with things. This is totally out of what was expected
{15} Evans filed an appeal of the triаl court‘s May 1, 2020 judgment entry.
ASSIGNMENTS OF ERROR
{16} Evans raises two Assignments of Error:
{17} “I. WILLIAM EVANS DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTIONS.
{18} “II. WILLIAM EVANS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
ANALYSIS
I. Guilty Plea
{19} Evans contends in his first Assignment of Error that his guilty plea was not knowingly, intelligently, and voluntarily made because while he pleaded guilty, he did not expect to go to prison. He argues that based on his reaction after he was sentenced to prison, the trial court should have rejected his guilty pleа. We disagree.
{20} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.‘” State v. Hurt, 5th Dist. Muskingum No. CT2019-0053, 2020-Ohio-2754, 2020 WL 2120071, ¶ 17 quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7 quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “An appellate court determining whеther a guilty plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of the record to ensure that the trial court complied with the constitutional and procedural safeguards.” State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, 2014 WL 3359226, ¶ 13.
{21} To ensure that pleas conform to these high standards, the trial judge must engage the defendant in a colloquy before accepting his or her plea. See State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus;
{22} Before accepting a guilty plea in a felony case, a trial court must address the defendant personally and determine 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.”
{23} “The underlying purpose, from the defendant‘s perspective, of
{24} Evans argues the trial court should not have accepted his guilty plea due to his protestations of innocence. He contends the trial court did not comply with the
{25} In entering an Alford plea, a defendant maintains innocence, but consents to punishment: “[a]n individual accused of crime may voluntarily, knowingly, and
Because an Alford plea involves a rational calculation that is significantly different from the calculation made by a defendant who admits he is guilty, the obligation of the trial judge with respect to the taking of an Alford plea is correspondingly different. The trial judge must ascertain that notwithstanding the defendant‘s protestations of innocence, he has made a rational calculation that it is in his best interest to accept the plea bargain offered by the prosecutor.
***
Where the defendant interjects protestations of innocence into the plea proceedings, and fails to recant those protestations оf innocence, the trial court must determine that the defendant has made a rational calculation to plead guilty notwithstanding his belief that he is innocent. This requires, at a minimum, inquiry of the defendant concerning his reasons for deciding to plead guilty notwithstanding his protestations of innocence; it may require, in additiоn, inquiry concerning the state‘s evidence in order to determine that the likelihood of the defendant‘s being convicted of offenses of equal or greater magnitude than the offenses to which he is pleading guilty is great enough to warrant an intelligent decision to plead guilty.
{27} We review the record to determine if there were protestations of innocence. First, we review the plea form filed on May 1, 2020. There is no written assertion of an Alford notation on the plea form. Next, during the change of plea hearing, there was no affirmation to the trial court of an Alford plea. It was not until the trial court sentenced Evans to one year in prison on the charge of attempted theft and one year for a post-release control violation that Evans raised questions:
DEFENDANT: So, I got two years in prison now.
THE COURT: Yes, you do.
DEFENDANT: Is there anything I can do, sir?
THE COURT: Don‘t steal people‘s stuff.
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DEFENDANT: There is nothing I can do to change your mind? My daughter - I got things going on with my daughter that she got taken because of my ex‘s drug -
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DEFENDANT: Yes, sir. I took care of my three boys. I‘m trying to get my daughter back. Can I do some probation or anything to prove to you that I will do right? You can give me extra time over probation if I mess up.
DEFENDANT: I will do it, sir. I have changed myself. I will do it, I promise. You can give me - you can give mе triple the time. I mean, I‘m -
THE COURT: Obviously I can‘t because you don‘t like just the amount of time you‘ve got now.
DEFENDANT: * * * I just need one more shot and I‘m done with it, sir. I‘m done with this. I‘m done with the drug use. * * *
***
DEFENDANT: So, there‘s nothing I can do, sir.
THE COURT: Yeah. You can put your money where your mouth is and not steal people‘s stuff and we‘ll judge you by your actions. Once you‘ve done it, then -
DEFENDANT: But, sir, I didn‘t steal.
***
DEFENDANT: That was my - but, sir, I didn‘t steal. Thаt was my work truck.
THE COURT: Okay.
DEFENDANT: I drove it every day.
THE COURT: I understand.
DEFENDANT: Well but you‘re - you‘re saying that I stole it, sir.
THE COURT: Yeah, I am saying you stole it. Do you have any other questions, Mr. Evans?
(T. 21-26).
{28} While Evans made protestations of his innocence, the record does not suрport Evans’ contention on appeal that this was an Alford plea requiring a more detailed
{29} Because there was no Alford plea, we find the trial court‘s
{30} Evans’ first Assignment of Error is overruled.
II. Ineffective Assistance of Counsel
{31} Evans contends in his second Assignment of Error that he was denied the effective assistance of counsel when his counsel failed to move to withdraw his guilty plea. We disagree.
{32} To succeed on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show the trial counsel acted incompetently. Second, the defendant must show “there is a reasonable probability that,
{33} After the trial court imposed the sentence, Evans questioned his sentence and then stated he did not steal the truck. He argues his trial counsel should have moved to withdraw his guilty plea at that time. A motion to withdraw a guilty plea is governed by the standards set forth in
{34} We cannot say that had trial counsel raised a motion to withdraw his guilty plea after he sentence was imposed, Evans could have established the existence of manifest injustice. First, the statement of faсts read by the State and initially agreed to by Evans said that Evans was employed by J.W. but fired for stealing. J.W. accused Evans of stealing a truck from his business. When deputies arrived at Evans’ location, they found the truck and he admitted to taking the vehicle. After he was sentenced, Evans first argued
{35} Next, this Court has held as a presentence motion to withdraw a guilty plea, “a change of heart or mistaken belief about pleading guilty is not a reasonable basis that requires a trial court to pеrmit the defendant to withdraw his guilty plea.” State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 2008-Ohio-7037, 2008 WL 5456352, ¶ 45 citing State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988). “[T]he trial judge must determine whether the claim of innocence is anything more than the defendant‘s change of heart about the plea agreement.” Id. citing State v. Kramer, Mahoning App. No. 01-C.A.-107, 2002-Ohio-4176, ¶ 58. The Fourth District Court of Appeals in State v. Meade, 4th Dist. Scioto No. 17CA3816, 2018-Ohio-3544, ¶ 21 cited this reasoning to affirm the denial of a post-sentence motion to withdraw a plea. Evans appearеd amenable to the proceedings until he was sentenced to two years in prison. It could be argued the record supports the conclusion that Evans had a change of heart about the plea agreement and could not establish a manifest miscarriage of justice.
{36} Based on the record in this case, we find Evans has failed to demonstrate the performance of his trial counsel was deficient and the deficient performance was prejudicial to Evans. Accordingly, we find reasonable trial counsel may have determined it was not prudent to raise a post-sentence motion to withdraw a guilty plea at the sentencing hearing.
{37} Evans’ second Assignment of Error is overruled.
{38} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.