STATE OF OHIO v. WILLIAM E. GRAHAM
Case No. 12 CAA 11 0082
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 15, 2013
2013-Ohio-600
Patricia A. Delaney, P.J.; William B. Hoffman, J.; Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware County Court of Common Pleas Case No. 11CR-I-05-0272. JUDGMENT: Reversed and Remandеd.
For Plaintiff-Appellee
CAROL HAMILTON O‘BRIEN Prosecuting Attorney Delaware County, Ohio BY: ERIC C. PENKAL Assistant Prosecuting Attorney 140 N. Sandusky Street - 3rd Floor Delaware, Ohio 43015
For Defendant-Appellant
WILLIAM E. GRAHAM Inmate #647-058 Pickaway Correctional Institution P.O. Box 209 Orient, Ohio 43146
{1} Defendant-appellant, William E. Graham, appeals the October 30, 2012, Judgment Entry entered by the Delaware County Court of Common Pleas, denying his motion to withdraw his plea of guilty. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE1
{2} On September 15, 2011, Appellant pled guilty to one count of breaking and entering in violation of
{3} Appеllant‘s sentencing hearing was held on December 15, 2011. At the sentencing hearing, the court asked the prosecutor to proceed. Rather than remaining silent on the issue of sentencing as required by the plea agreement, the prosecutor stated:
{4} “MR. DUMOLT: Your Honor, I think the PSI speaks for itself. There‘s a score of convictions going back to 1974. In this case I think we‘re - - the last time we were here everyone agreed he‘s not a goоd candidate for CBCF at this time, and that a prison sentence is appropriate in this case.
{5} “His record is one of the longest I have seen in the five years I‘ve been doing this; this is rather extensive. He‘s a career criminal. Counsel will recommend a CBCF, might be a condition, a condition of judiсial release as an option, but at this time I think that a prison sentence is appropriate. He‘s obviously had a number of shots at community сontrol, proven not amenable to the past.” Tr. (S.H.) 5.
{7} Appellant moved to withdraw his guilty plea on June 7, 2012. Appellant‘s motion was based on the State‘s breach of the plea agreement and his counsel‘s failure to object when the prosecutor spoke during the sentencing hearing. The trial court overruled the motion via Judgment Entry filed October 30, 2012. Appellant appeals this judgmеnt, assigning two errors:
{8} “I. THE LOWER COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE PRECEDENT SET BY THE U.S. SUPREME COURT IN SANTOBELLO V. NEW YORK (1971), 404 U.S. 257, 262-63, IN CONSIDERING MY CLAIM THAT THE PROSECUTOR HAD BREACHED THE TERMS OF A WRITTEN PLEA AGREEMENT.
{9} “II. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT WHEN THE COURT ASKED FOR THE STATE‘S COMMENT AND AGAIN WHEN THE PROSECUTOR RECOMMENDED A PRISON SENTENCE AFTER THE STATE AGREED TO REMAIN SILENT AT SENTENCING.”
{10} This case comes to us on the accelerated calendar governed by
{11} “(E) Determination and judgment on appeal
{12} “The appeal will be determined as provided by
{13} Appellant argues the court erred in failing to grant his motion to withdraw based on the United States Supreme Court‘s decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
{14} A motion to withdraw a guilty plea is governed by the standards set forth in
{15} “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 sentencе may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{16} “Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. “‘[I]t is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.‘” State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶ 7, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). A defendant seeking to withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attaсhed to the motion. State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499.
{17} Appellant argues pursuant to Santobello, supra, he should have been permitted to withdraw his plea based on the State‘s breach of the plea agreement. The dеfendant in Santobello was charged with a variety of gambling offenses. The defendant pled guilty to reduced charges in exchange for a promise by the prоsecutor
{18} In the instant case, the State does not dispute the fact the prosecutor who handled the sentencing hearing breached the plea agreement by speaking on the issue of sentencing. However, in the instant case we do not find withdrawal of the рlea is the appropriate remedy. Appellant entered the plea three months prior to the sentencing hearing, and the breаch of the agreement relates solely to the issue of sentence. The record does not demonstrate the plea was in any way involuntary, and Appellant has not demonstrated his plea was rendered involuntary by the prosecutor‘s statements at the sentencing hearing.
{19} Howеver, the prosecutor did breach the plea agreement by arguing strongly for a prison sentence at the sentencing hearing, when the terms оf the agreement stated the prosecutor would remain silent at sentencing. The prosecutor expressed his personal opinion as the nature of appellant‘s record being one of the longest he had ever seen. Counsel for Appellant argued community contrоl might be
{20} Based on Santobello, supra, we find Appellant is entitled to a new sentencing hearing in front of a different judge, at which the prosecutor will rеmain silent in accordance with the terms of the plea agreement in the instant case. The first assignment of error is sustained.
II
{21} In his second assignment оf error, Appellant argues counsel was ineffective for failing to object to the prosecutor‘s statements during his sentencing hearing. This assignment of error is rendered moot by our disposition of Appellant‘s first assignment of error.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman
s/ Patricia A. Delaney
s/ Sheila G. Farmer
WBH/r0201
STATE OF OHIO Plaintiff-Appellee -VS- WILLIAM E. GRAHAM Defendant-Appellant
JUDGMENT ENTRY CASE NO. 12 CAA 11 0082
For the reason stated in our accompanying Opinion, the judgment of the Delaware County Court of Common Pleas is reversed and this mattеr is remanded to the trial court for a new sentencing hearing before a different judge. Costs assessed to Appellee.
s/ William B. Hoffman
s/ Patricia A. Delaney
s/ Sheila G. Farmer