State v. GibbsState v. Gibbs
Pamela C. Childers, Chillicothe, Ohio, for appellant.
Michael M. Ater, ROSS COUNTY PROSECUTOR, and Jeffrey C. Marks, ROSS COUNTY ASSISTANT PROSECUTOR, Chillicothe, Ohio, for appellee.
Harsha, J.
{¶1} In this consolidated appeal, Lance L. Gibbs challenges his convictions on three charges stemming from an incident in which Gibbs and his dog allegedly attacked Amanda Parks. In the first case, the court found him guilty of two counts of felonious assault after Gibbs entered a no contest plea. In a related case, Gibbs entered a no contest plea to one count of failure to restrain or confine a vicious dog, and the court found him guilty of that offense.
{¶2} Gibbs contends that the trial court abused its discretion by denying his pre-sentence motion to withdraw his no contest pleas. However the record shows that: 1.) Gibbs received a full
{¶3} Gibbs also argues that the trial court erred by finding him guilty after he pleaded no contest to failure to restrain or confine a vicious dog because the indictment omitted an essential element of the offense. We agree. To indict Gibbs for a violation of
I. Facts
{¶4} In November 2008, the Ross County Grand Jury indicted Gibbs in case
{¶5} In February 2009, Gibbs signed “Plea of No Contest” forms stating that he wished to withdraw his not guilty pleas and enter a no contest plea to all of the charges. At a change of plea hearing the same day, Gibbs pleaded no contest to all three counts, and the trial court found Gibbs guilty of the charges. Prior to the sentencing hearing, Gibbs informed the court that he wanted to withdraw his no contest pleas. Trial counsel then filed a written motion to withdraw the pleas, arguing that Gibbs “believe[d] that a defense to the charge[s] may be presented.” The court denied the motion after a hearing. Subsequently, the court sentenced Gibbs and he filed an appeal. We dismissed his first appeal for lack of a final, appealable order because the court’s sentencing entries did not contain the plea, the jury verdict, or the finding of the court upon which the convictions were based. State v. Gibbs, Ross App. Nos. 09CA3110 & 09CA3111, 2009-Ohio-6489. Subsequently, the court issued “nunc pro tunc” entries to correct the error.1 This appeal followed.
II. Assignments of Error
{¶6} Gibbs assigns the following errors for our review:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION TO WITHDRAW HIS NO CONTEST PLEA. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING APPELLANT GUILTY OF A VIOLATION OF
R.C. 955.22 , CONFINEMENT OR RESTRAINT OF A VICIOUS DOG, WHEN THE INDICTMENT OMITTED AN ESSENTIAL ELEMENT OF THE OFFENSE.
III. Crim.R. 32.1
{¶7} In his first assignment of error, Gibbs contends that the trial court abused its discretion in denying his pre-sentence motion to withdraw his no contest plea.
{¶8} Generally, a pre-sentence motion to withdraw a plea should be freely and liberally granted. See State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. However, a defendant does not have an absolute right to withdraw a guilty or no contest plea prior to sentencing. Xie at paragraph one of the syllabus; State v. Spivey, 81 Ohio St.3d 405, 415, 1998-Ohio-437, 692 N.E.2d 151. Thus, the decision to grant or deny a presentence motion to withdraw a plea is committed to the sound discretion of the trial court, and we will not reverse the court’s decision absent an abuse of that discretion. Xie at paragraph two of the syllabus; Spivey at 415. The term “abuse of discretion” implies that the court’s attitude is unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. “When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court.” In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181.
{¶9} In determining whether a trial court abused its discretion in denying a pre-sentence motion to withdraw a plea, we consider the following factors: “(1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full
{¶10} Although the trial court found that Gibbs made his motion to withdraw within a reasonable time, the court denied it. Gibbs admits that the trial court gave him “a full
{¶11} Gibbs also admits that the trial court conducted a “full hearing” on his withdrawal motion, but he contends that the court did not give full and fair consideration to the motion. He claims that the kites he sent the court demonstrated his dissatisfaction with counsel and that he did not understand the consequences of his pleas or the right to a fair trial. Gibbs contends that the court should have asked him about these claims during the hearing. But the kites only generally claim that Gibbs’ attorney did not explain his “options and rights to a fair trial.” Moreover, Gibbs had ample opportunity during the 45-50 minute hearing on his withdrawal motion to elaborate on these concerns but failed to do so. Instead, Gibbs gave a lengthy, virtually uninterrupted narrative in which he attempted to explain his version of the attack on Parks. Thus we reject Gibbs’ contention that the trial court failed to give full and fair consideration to his motion.
{¶12} Although Gibbs’ withdrawal motion did not set out specific reasons to justify withdrawing his pleas beyond his belief that a “defense to the charge[s] may be presented,” Gibbs attempted to elaborate on this claim at the hearing. He argued that
{¶13} Based on this version of events, Gibbs argues that he is innocent of the second felonious assault charge because he did not knowingly cause or attempt to cause Parks physical harm by means of a deadly weapon, i.e. a dog, because he did not own the dog. Gibbs also argues that he had a defense to both felonious assault charges because he acted in self-defense. Moreover, Gibbs contends that he is innocent of failing to restrain or confine a vicious dog because he did not own the dog that allegedly attacked Parks.
{¶14} However, Gibbs never professed innocence or any defense at the change of plea hearing. By signing the “Plea of No Contest” forms, Gibbs acknowledged that he understood “the possible defense [he] might have.” On cross-examination during the hearing on the withdrawal motion, Gibbs admitted that his testimony mirrored the story he gave police on the night in question with the exception of a mistake he made about his location during part of the incident, i.e. he was on top of his car instead of inside it during part of the evening. Thus this is not a case where after pleading no contest, a defendant obtained new evidence bolstering his defense or claim of innocence.
{¶15} Moreover, Gibbs candidly admitted that he was intoxicated during the initial encounter with Parks. Sometime after that, but before he felt the hand in his pocket, Gibbs testified that he grew “unconscious from drinking” and “kinda lightweight passed out. I wasn’t totally blacked out, but you know I was semi-conscious and that’s when the incident occurred * * *.” Gibbs also contradicted his testimony that he told Parks the two dogs nearby weren’t his. He testified that he “probably said you know, yeah those are mine, you know * * * I do remember doing that cause the dog, one of them was scratching on my car * * * .” Thus the only evidence supporting Gibbs’ claims of innocence or possible defenses is his own self-serving and sometime contradictory testimony based on his recollection of events that occurred when he was so intoxicated he became unconscious, semi-conscious, or “kinda lightweight passed out.” Under these circumstances, the trial court did not abuse its discretion by failing to find that Gibbs’ claim of innocence or defenses justified permitting Gibbs to withdraw his pleas.
{¶16} Gibbs also contends that he should have been able to withdraw his pleas to the assault charges because a jury could have been instructed on lesser offenses
{¶17} Finally Gibbs contends that trial counsel’s ineffectiveness justified withdrawal of the pleas. However, at the trial level Gibbs only generally claimed in a kite that his attorney failed to explain his “options and rights to a fair trial.” But signing the “Plea of No Contest” forms, Gibbs admitted that he was “satisfied with [his] attorney’s advice, counsel, and competence” at that time. And during the change of plea hearing, Gibbs told the court that he was satisfied with trial counsel’s legal representation. Moreover, at the hearing on the withdrawal motion, Gibbs did not complain about his representation. Presumably he was satisfied with counsel’s representation since the same attorney who represented him at the change of plea hearing represented him at the hearing on the withdrawal motion.
{¶18} In addition, at the hearing on the withdrawal motion, the trial court noted that Gibbs’ counsel had practiced law for a lengthy period of time solely in the area of criminal defense and managed the county’s public defender office. The court further noted that from its own personal experience, Gibbs’ counsel “has handled hundreds if not thousands of criminal cases where pleas have been entered of guilty. Pleas have been entered of no contest, pleas of not guilty have been entered. He’s tried countless cases and this court knows of no reason why Mr. Gibbs wasn’t provided excellent representation * * *.” Thus, the record indicates that Gibbs had highly effective counsel during the change of plea hearing. There is no evidence that counsel ineffectively advised him concerning the no contest pleas so as to allow him to withdraw them.
{¶19} Moreover, in his brief, Gibbs primarily complains that he should be
{¶20} In sum, the trial court’s decision to deny the withdrawal motion was not unreasonable, unconscionable, or arbitrary. Gibbs received a full
III. Defective Indictment
{¶21} In his second assignment of error, Gibbs contends that the trial court committed plain error when it accepted his no contest plea and found him guilty of failure to restrain or confine a vicious dog because the indictment omitted an essential element of the offense. See, generally, State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, at ¶7 (noting that “[i]n most defective-indictment cases in which the indictment fails to include an essential element of the charge” plain error analysis, as opposed to structural error analysis, “will be the proper analysis to apply”);
{¶22} For a reviewing court to find plain error: (1) there must be an error, i.e., a deviation from a legal rule; (2) the error must be plain, i.e., an “obvious” defect in the proceeding; and (3) the error must have affected “substantial rights,” i.e., it must have affected the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has stated that “[n]otice of plain error under
{¶23}
{¶24} Although the indictment did not state the specific subsection Gibbs allegedly violated, it purportedly charged Gibbs with violating
(D) Except when a dangerous or vicious dog is lawfully engaged in hunting or training for the purpose of hunting and is accompanied by the
owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of a dangerous or vicious dog shall fail to do either of the following:
(1) While that dog is on the premises of the owner, keeper, or harborer, securely confine it at all times in a locked pen that has a top, locked fenced yard, or other locked enclosure that has a top, except that a dangerous dog may, in the alternative, be tied with a leash or tether so that the dog is adequately restrained;
(2) While that dog is off the premises of the owner, keeper, or harborer, keep that dog on a chain-link leash or tether that is not more than six feet in length and additionally do at least one of the following:
(a) Keep that dog in a locked pen that has a top, locked fenced yard, or other locked enclosure that has a top;
(b) Have the leash or tether controlled by a person who is of suitable age and discretion or securely attach, tie, or affix the leash or tether to the ground or a stationary object or fixture so that the dog is adequately restrained and station such a person in close enough proximity to that dog so as to prevent it from causing injury to any person;
(c) Muzzle that dog.
{¶25} The statutory provision places different responsibilities on the owner, keeper, or harborer of a dangerous or vicious dog depending on whether the dog is on or off the premises of that individual. If the dog is on the premises of that individual, fewer restraints are required. So to obtain a conviction under
{¶26} But in this case the indictment stated in relevant part:
Lance L. Gibbs, * * * aforesaid being the owner, keeper, harborer or handler of a dangerous or vicious dog that was not lawfully engaged in hunting or training for the purpose of hunting and accompanied by the owner, harborer, or keeper, or handler of the dog failed to muzzle and keep the dog on a chain-link leash or tether that is not over than six feet in
length. Said offense having resulted in serious injury to another, in violation of Section 955.22 of the Ohio Revised Code, and against the peace and dignity of the State of Ohio.
{¶27} As the State argues and Gibbs seems to acknowledge, the only statutory subsection the indictment could implicate is
{¶28} We conclude that the trial court committed an obvious error affecting Gibbs’ substantial rights when it found him guilty of failing to restrain or confine a vicious dog. The court made Gibbs answer for a crime charged other than on “presentment or indictment of a grand jury,” in violation of
IV. Conclusion
{¶29} We overrule Gibbs’ first assignment of error. We sustain his second assignment of error, reverse Gibbs’ conviction for failure to restrain or confine a vicious
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.