State v. FugateState v. Fugate
{¶ 2} We agree with Fugate that the trial court erred by applying a post-sentencing standard of discretion, which requires a finding of manifest injustice, to this pre-sentence motion to withdraw a guilty plea. We furthеr conclude that the trial court erred when it disallowed any evidence on the issue of whether Fugate had any defense to the charge and specification, since that would be a relevant consideration to a pre-sentence motion to withdraw a guilty plea. We conclude, finally, that Fugate's claim of error with respect to the order of restitution is premature, because the trial court has not yet orderеd a specific amount of restitution. Accordingly, the order of the trial court denying Fugate's motion to withdraw his plea is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.
{¶ 4} Following the plea, but before sentencing, Fugate moved to withdraw his plea. A hearing was held on his motion. The trial court denied Fugate's motion to withdraw his plea, sentenced him to five years imрrisonment for Felonious Assault, to be served consecutively with the five-year sentence for the firearm specification, and ordered him "to pay complete restitution to [the victim] for economic loss in the amount of FULL RESTITUTION, upon which execution is hereby awarded to be paid through the Montgomery County Clerk of Courts."
{¶ 5} From his conviction and sentence, Fugate appeals.
{¶ 7} "THE TRIAL COURT ERRED IN DENYING THE MOTION TO WITHDRAW PLEA."
{¶ 8} In support of this assignment of error, Fugate first contends that the trial court applied an incorrect standard in exercising its discretion.
{¶ 9} "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea."
{¶ 10} Under
{¶ 11} At the cоnclusion of the evidentiary hearing on Fugate's motion to withdraw his plea, after the arguments of counsel, the trial court prefaced its decision with the following:
{¶ 12} "The Court would make this finding. First of all, after — pursuant to an agreеd Sentence, which is basically what this was, albeit a sentence arranged with a cap of ten, that operates to place the posture of the case in a Post-Sentence Motion to withdraw to which thе standard is substantially different than the one applicable to Pre-Sentence Motions to Withdraw."
{¶ 13} We agree with Fugate that the trial court erred when it applied the post-sentence standard in determining whether to grаnt his motion to withdraw. Not only was this motion literally made before sentencing, the reasons for applying a stricter standard to a post-sentencing motion do not apply in this case. The post-sentence "manifest injustice" standard is aimed at cases where a defendant pleads guilty without knowing what his sentence will be, finds out that his sentence is worse than he had hoped and expected, and then seeks to vacate his plea. In this сase, Fugate still did not know exactly what his sentence was going to be. He could have received a sentence of two, three, four or five years for Felonious Assault, which, together with the consecutive five-year sentence for the firearm specification, would have aggregated seven, eight, nine or ten years. Furthermore, he learned nothing new about his sentence after his plea was tendered. When he tendered his рlea, he already knew that it would be limited to no more than ten years, in the aggregate, since that was part of the plea bargain.
{¶ 14} At the oral argument of this appeal, the State cited two cases for the proposition that Fugate's motion to withdraw his plea should be considered under the standard applicable to post-sentence motions. The most recent of these is State v. Hall,
{¶ 15} The older case cited by the State is State v. Long (May 13, 1993), Montgomery App. No. 13285. In that case, we noted that the trial judge had made it known to defense counsel, after the plea, but before the imposition of sentence, what sentence she intended to impose, and that sentence was more severe than the defendant had thought had been agreed upon as part of the plea bargain. Our opinion is not a model of clarity with regard to what standard we were applying, the pre-sentence standard or the post-sentence standard. At p. 5 of the opinion, we statе: "But in any event this is a motion to vacate before sentence was imposed so the court must review the facts of this case under the guidance that such a motion should be freely allowed." But then, at p. 6, we state: "Wе agree that the trial court correctly observed that appellant's motion should be considered as made after sentence because it was only after counsel learned of the court's sentence that he sought to vacate his client's guilty plea. To correct a `manifest injustice' the court may set aside the judgment of conviction and permit the defendant to withdraw his plea.
{¶ 16} From our review of the record, it appears unlikely that the trial court will exercise the more liberal, pre-sentence discretion any more favorably to Fugate, because the trial court's remarks after announcing its erroneous determination of the standard to be employed suggest that it gave no credence to Fugate's testimony. Nevertheless, because the discretion reposed in the trial court is both liberal and broad, we cannot say with the necessary dеgree of confidence that the trial court's error in applying the post-sentencing standard was harmless.
{¶ 17} Fugate next contends that the trial court erred when it did not allow him to elicit testimony concerning possible defenses he had to the charge and specification to which he pled guilty. Fugate cites State v.Fish (1995),
{¶ 18} The trial court did not allow any evidence concerning possible defenses to the charges, sustaining an objection when this line of questioning was initiated. Because a pre-sentence motion to withdraw a guilty plea is confided to the sound discretion of the trial court, we conclude that it has substantial discretion in deciding the scope of the evidence it will allow at the hearing on the motion. We can understand a trial court's reluctance to permit a trial on the merits of the charge, in the guise of a motion to withdraw a plea. Nevertheless, some inquiry concerning whether the defendant had a substantial defense to the charge should be allowed. We agree with Fugate that the trial court erred when it disallowed any inquiry аlong these lines.
{¶ 19} Fugate's First Assignment of Error is sustained.
{¶ 21} "THE TRIAL COURT ERRED IN THE IMPOSITION AND AMOUNT OF RESTITUTION."
{¶ 22} Both the State and Fugate recognize that the judgment of the trial court is deficient with respect to the issue of restitution, because the amount of restitution is not specified. We agree. State v.Summers,
{¶ 23} Fugate's Seсond Assignment of Error is overruled as premature.
GRADY, P.J., and WOLFF, J., concur.