State v. GrierState v. Grier
Autumn D. Adams, for appellant/cross-appellee.
* * * * *
DECISION AND JUDGMENT
ZMUDA, J.
I. Introduction
{¶ 1} Appellant/cross-appellee, Devonte Grier, appeals the December 6, 2021 judgment of the Lucas County Court of Common pleas convicting him of felonious assault and corrupting another with drugs. Appellee/Cross-appellant, the State of Ohio, filed a cross-appeal of the trial court‘s judgment alleging the trial court erred in imposing sentence in its final judgment that was contrary to law. For the following reasons, we affirm, in part, and reverse, in part, the trial court‘s judgment.
{¶ 2} On July 12, 2021, Grier was indicted on one count of felonious assault in violation of
{¶ 3} Following negotiations with the state, Grier agreed to enter a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), to one count of felonious assault and one count of corrupting another with drugs. Pursuant to the terms of the plea agreement, the state moved to amend Grier‘s indictment for corrupting another with drugs to a violation of
{¶ 4} To permit entry of the plea under the terms of the agreement, the trial court granted the state‘s motion and amended the indictment as request. The trial court then proceeded with Grier‘s plea colloquy, including all required advisements made under
{¶ 5} On October 12, 2020, Grier forced C.J. to take another Xanax pill. He then proceeded to punch C.J., bang her head against the floor, and attempted to strangle her. Following this assault, Grier forced C.J. to have sex with him again. At approximately 2:30 that afternoon, the friends that had gathered the night before returned to Grier‘s residence. They found C.J. with bruises from Grier‘s assault. C.J. insisted that her friends take her to work.
{¶ 6} Upon her arrival, her manager noticed that C.J. was bruised and appeared to be “out of it.” C.J.‘s brother, who worked with C.J., drove her to their mother‘s house. C.J.‘s mother then took her to the hospital. C.J.‘s physical exam revealed that she suffered from bruising, petechiae—ruptured blood vessels resulting in red spots on her skin—around her eyes resulting from the attempted strangulation, and pneumomediastinum—an air bubble in her thoracic cavity outside of her lungs. The state indicated it would show that these injuries arose from Grier‘s assault. The state also stated that it would have shown that Grier forced C.J. to ingest Xanax, supporting the
{¶ 7} Following the state‘s presentation, the trial court accepted Grier‘s plea and found him guilty. The court ordered Grier to participate in a presentencing investigation and set his sentencing for September 27, 2021.
{¶ 8} On September 14, 2021, Grier sent a letter to the trial court stating that he wished to withdraw his plea. Grier stated that his trial counsel had withheld discovery from him—specifically the radiology records from C.J.‘s hospitalization—that showed that C.J. was admitted to the hospital for observation of her pneumomediastinum. Upon reviewing the records along with researching the causes of pneumomediastinum on his own, Grier concluded that the state could not show a causal link between his assault and her condition, providing him a complete defense to the charge of felonious assault that he was unaware of at the time he entered his plea. Grier‘s letter also alleged that trial counsel would not file a motion to withdraw his plea on these grounds and that he wished to have new counsel appointed for further proceedings.
{¶ 9} At his rescheduled September 27, 2021 sentencing, the trial court informed Grier that it had not, and would not, read his letter because it would constitute an
{¶ 10} At the resumed sentencing on September 19, 2021, the trial court referenced receipt of a second letter from Grier, again requesting to withdraw his plea. Grier‘s counsel then informed the trial court that conversations with Grier resulted in further disagreement regarding the filing of a motion to withdraw. Grier‘s counsel disputed that he had not provided Grier with all of the evidence he had received and that any attempt to withdraw his plea would likely result in Grier‘s conviction on all four indicted counts at trial. Grier then informed the court that his counsel had not provided him with copies of C.J.‘s medical records until after he had entered his plea. At this time, Grier did not explain why the receipt of the medical records informed his desire to withdraw his plea beyond a blanket statement that not receiving those records prevented him from entering his plea knowingly.
{¶ 11} Due to the lack of a properly filed motion and the need for a hearing should a motion be filed, the trial court again continued Grier‘s sentencing until October 13,
{¶ 12} On October 13, 2021, the trial court held a hearing on the motion to withdraw. Grier‘s counsel argued, essentially, that the motion lacked merit because he had indeed provided Grier with C.J.‘s medical records in advance of his plea. Counsel also argued that withdrawing the plea would expose Grier to a likely guilty finding at trial and a significantly longer prison term than could be imposed under the guilty plea. The trial court then permitted Grier to present his arguments in support of his motion. Grier focused a significant portion of his argument on the fact that the evidence he received from counsel after entering his plea lacked any evidence regarding the rape offenses—charges to which he did not enter a guilty plea. As to the felonious assault charge, Grier stated that had he known that C.J. was admitted to the hospital for pneumomediastinum, that he would not have entered his guilty plea because the condition had multiple causes and that the state could not show that it was caused by his assault. Therefore, he argued, the state could not satisfy the “serious physical harm” element of felonious assault under
{¶ 13} At the sentencing hearing, the trial court orally informed Grier that it was denying the motion to withdraw with a written opinion to follow. The trial court then ordered Grier to serve an indefinite, non-life prison term of a minimum of 5 years and a maximum of 7 and a half years, pursuant to
{¶ 14} The trial court memorialized its opinion denying Grier‘s motion to withdraw his plea on November 29, 2021. Grier‘s sentence was memorialized in a judgment entry filed December 6, 2021.
B. Assignments of Error
{¶ 15} Grier timely appealed and asserts the following error for our review:
- It was an abuse of discretion for the trial court to deny Grier‘s motion to withdraw his guilty plea because ensuring Grier entered a plea knowingly and intelligently was of greater interest.
- When the trial court properly informs a defendant of the correct indefinite term required by
R.C. 2929.144 , but the judgment entry fails to incorporate the indefinite term in the sentencing entry, the judgment entry may be corrected nunc pro tunc.
II. Law and Analysis
A. Preliminary issues prior to addressing appellant‘s assigned error.
{¶ 17} Prior to addressing the merits of Grier‘s assigned error, we find it necessary to address two preliminary issues: the scope of Grier‘s assigned error and a recent Ohio Supreme Court decision regarding appellate review of a presentence motion to withdraw. We begin with the scope of the assigned error.
1. Scope of Grier‘s assigned error
{¶ 18} In this appeal, Grier alleges that his counsel‘s failure to provide him with all of the evidence produced by the state, prior to entering his guilty plea, rendered his plea unknowingly entered in violation of
2. Appellate review of the denial of a presentence motion to withdraw a plea.
{¶ 19} Having established the scope of Grier‘s assigned error, we turn to the Ohio Supreme Court‘s recent decision in State v. Barnes, Slip Opinion No. 2022-Ohio-4486
{¶ 20} Grier filed his motion to withdraw pursuant to
{¶ 21} The court in Xie also recognized, however, that
(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Dellinger, 6th Dist. Huron No. H-02-007, 2002-Ohio-4652, ¶ 18-19, citing State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995).4 Importantly, we note that the Ohio Supreme Court has not explicitly condoned or rejected appellate courts’ use of these factors, leaving only the general guidelines established in Xie as binding on this court. See State v. Harmon, 165 Ohio St.3d 1465, 2021-Ohio-4109, 177 N.E.3d 279, appeal not accepted (J. Donnelly, dissenting) (“Our careful examination of the law
{¶ 22} In Barnes, the defendant entered a guilty plea to one count of involuntary manslaughter in exchange for the dismissal of several other charges related to a shooting incident in Cuyahoga County, Ohio. State v. Barnes, Slip Opinion No. 2022-Ohio-4486, at ¶ 6. After his plea, but prior to sentencing, Barnes‘s counsel provided him with a surveillance video of the incident that he believed showed he acted in self-defense, an argument he advanced throughout the pretrial proceedings. Id. at ¶ 7. Barnes‘s counsel had not previously shared the video with his client as it was marked for “counsel only” pursuant to
{¶ 23} The Ohio Supreme Court accepted Barnes‘s discretionary appeal to determine the following limited proposition of law:
A defendant has a reasonable and legitimate basis to withdraw a guilty plea before sentencing, upon learning of evidence that: (1) was previously
withheld form the defendant; and (2) would have changed the defendant‘s decision to plead guilty.
Id. at ¶ 12.
{¶ 24} On December 15, 2022, the Ohio Supreme Court ruled that the trial court erred when it denied Barnes‘s motion to withdraw. Id. at ¶ 1. In a plurality opinion, the Ohio Supreme Court determined that the Fish factors “do not apply” in Barnes‘s situation and that “when a defendant discovers evidence that would have affected his decision to plead guilty, he has a reasonable and legitimate basis to withdraw his guilty plea before sentencing.” Id. at ¶ 24.
{¶ 25} In her concurring opinion, Justice Brunner stated she concurred in the reversal but would have done so by clarifying that the Fish factors should not be used to determine a presentence motion to withdraw. Id. at ¶ 41. In his dissent, Justice Fischer found that Barnes‘s appeal “presents neither a constitutional question nor a matter of great public interest” and should have been dismissed as being improvidently accepted. Id. at ¶ 43 (Fischer, J., dissenting). We note that because the court did not reach a majority as to when, or if, the Fish factors apply to appellate review of presentence motions to withdraw, the plurality decision is not binding on this court. Stykes v. Colerain Twnship., 2019-Ohio-3937, 145 N.E.3d 1123, ¶ 10, fn. 1 (1st Dist.), citing State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254 (8th Dist.).
{¶ 26} In our continuing effort to ensure that the appropriate legal standards are being applied by this court, however, we find that any Ohio Supreme Court decision that
B. The trial court did not abuse its discretion in denying Grier‘s motion to withdraw.
{¶ 27} Application of the Fish factors does not require this court to simply tabulate whether more factors weigh in favor of granting or denying the motion to withdraw. Hartman at ¶ 14. Instead, “[c]onsideration of the factors is a balancing test, and no one factor is conclusive.” Hartman at ¶ 14, citing State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 13. “In reviewing these factors, it must be remembered that the ultimate question to be answered by the trial court is ‘whether there is a reasonable and legitimate basis for the withdrawal of the plea,’ * * * and the ultimate question to be answered by the court of appeals is whether the trial court abused its discretion in making this determination.” Id., citing State v. Burns, 12th Dist. Butler Nos. CA2004-07-084, 2005-Ohio-5290, ¶ 25, quoting Xie. To determine whether Grier had a reasonable and legitimate basis on which to withdraw his plea, we review the facts of this case as viewed under those factors.
a. Grier‘s lack of complete defense or showing he was perhaps not guilty weighs against withdrawal of his plea.
{¶ 28} The 9th Fish factor requires this court to consider whether Grier was perhaps not guilty or had a complete defense to the charge. Dellinger, 6th Dist. Huron No. H-02-007, 2002-Ohio-4652, at ¶ 18-19. In reviewing this factor, we are mindful that in ruling on a motion to withdraw a plea, the trial court should not determine the likelihood of success of a claimed defense. Oregon v. Gaughan, 6th Dist. Lucas No. L-19-1084, 2020-Ohio-4092. Instead, the question for the trial court is whether “the evidence suggests that the defendant may not be guilty of the offense, even if other factors do not weigh in favor of the withdrawal.” Id. at ¶ 23. When there is “significant potential” for a defense to a charge which the defendant was unaware of at the time they entered their plea, that fact constitutes “a substantial basis upon which to base a presentence motion to withdraw a guilty plea[.]” Id. (emphasis added). “[A] defendant is not
{¶ 29} In order to prove Grier committed a felonious assault in violation of
(a) Any mental illness or condition of such gravity as would normally require hospitalization * * *; [or]
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement[.]
Grier argues that the evidence supplied to him after he had entered his plea—C.J.‘s medical records—show that he has a complete defense to the felonious assault charge because there is more than one potential cause for pneumomediastinum. Grier argues that the records reveal that pneumomediastinum was the only reason for C.J.‘s hospitalization and that because there were multiple potential causes for that condition,
{¶ 30} Grier‘s argument lacks merit for several reasons. We note that Grier does not dispute that he assaulted C.J. Instead, he argues only that the state could not have shown that the assault resulted in serious physical harm had he gone to trial. This conclusion ignores both the temporal relationship between his assault and C.J.‘s hospitalization as well as the evidence that C.J. also suffered temporary, serious disfigurement as a result of his assault.
{¶ 31} As to the cause of C.J.‘s hospitalization, the trial court found that “[t]he record before the Court does not show a blatant, intervening cause which may have led to the alleged victim‘s hospital admission, and it does not obviously exclude Defendant as having caused the alleged-victim‘s injuries/medical condition.” In light of the timing between his admitted assault and C.J.‘s hospitalization, we find that the record supports the trial court‘s conclusion that simply because pneumomediastinum can arise from multiple causes, Grier did not introduce evidence to show that he was not the cause of C.J.‘s condition.
{¶ 32} Moreover, Grier makes no effort to explain how C.J.‘s medical records would have reasonably allowed him to present a complete defense at trial in regard to
{¶ 33} In sum, Grier‘s argument on appeal is that the trial court abused its discretion by not weighing his potential defense of alternate causes for C.J.‘s hospitalization more heavily in favor of granting the withdraw. However, Grier fails to identify a reasonable and legitimate basis for this defense. Additionally, Grier‘s singular focus on other potential causes of C.J.‘s pneumomediastinum as the support for the
b. Any alleged prejudice the state would suffer had appellant been permitted to withdraw his plea does not weigh in favor of or against the granting of the motion.
{¶ 34} In his second argument, Grier alleges that the trial court abused its discretion in finding that the state would be prejudiced should he be allowed to withdraw his plea. The state argues that it would suffer prejudice to its prosecution of this case if the plea was withdrawn because the timing of the trial would likely coincide with the maternity leave of one of its witnesses,6 that witness memories would fade if the trial were delayed to accommodate that witness’ return, and that C.J. might be reluctant to “re-enter the trial process with all its emotional freight” after having been previously informed that the matter was resolved. Grier argues that the delay of his trial to accommodate witnesses does not prejudice the state as his trial could not have taken place in the short term due to COVID-related restrictions pushing all trials into 2022. Grier also categorizes C.J.‘s reluctance to testify at trial as her being uncooperative. He
{¶ 35} Having reviewed the record, we find that this factor should not have weighed in favor of granting or denying Grier‘s motion to withdraw. The parties’ arguments on this factor are based on assumptions regarding the availability of witnesses. Whether a trial would have been rescheduled during an unnamed witness‘s maternity leave, without more information, does not allow this court to determine what prejudice the state would suffer as a result of the requested withdraw, if any. More importantly, there is simply no evidence in the record indicating whether C.J.‘s speculative refusal to participate in further proceedings would be the result of her being uncooperative, as Grier alleges, or as a result of her wishing to avoid the trauma of relitigating a matter she believed was closed, as argued by the state. The pure speculation by each party as to whether C.J. would voluntarily appear to testify, let alone the basis on which she might try to avoid that testimony, is simply insufficient to allow this court to determine whether or not the state would be prejudiced by the withdrawal of Grier‘s plea. As a result, we find that this factor is neutral in determining whether the trial court erred in denying Grier‘s motion to withdraw.
c. The trial court‘s weighing of the remaining factors did not result in an abuse of its discretion.
{¶ 36} Grier‘s brief does not allege any error in the trial court‘s consideration of the remaining factors in denying his motion to withdraw. Our review of the record shows
{¶ 37} It is only the fourth factor—the extent of the hearing on the motion to withdraw—that we find warrants additional discussion. We previously noted that Grier sought the appointment of new counsel when his trial counsel initially declined to file the motion to withdraw the plea. The trial court denied that motion. Then, at the October 13, 2021 hearing on Grier‘s motion to withdraw, Grier‘s counsel actually argued against the motion that he filed on behalf of his client. Grier, effectively proceeding pro se despite having been appointed counsel, was left to make his own arguments in support of the motion to withdraw while facing the opposition of both his own counsel and the state. This scenario undoubtedly negatively impacted the extent of the hearing on the motion to withdraw and the trial court should have weighed this factor in Grier‘s favor.
d. Balancing of the factors.
{¶ 39} To show that the trial court abused its discretion in denying his motion, Grier must present evidence that shows there is a “significant potential for a defense to a charge which [he] was unaware at the time [he] entered his plea[.]” Gaughan, 6th Dist. Lucas No. L-19-1084, 2020-Ohio-4092, at ¶ 23. “[S]imply claiming to have a defense, without more, has been held to be insufficient to reverse a trial court‘s discretion in denying a motion to withdraw.” Id. at ¶ 31, citing State v. Jenkins, 9th Dist. Summit No. 22008, 2005-Ohio-11, ¶ 9. Having considered the record before us and applying the Fish factors to that record, we find that Grier failed to meet this burden. For these reasons, we find Grier‘s single assignment of error not well-taken.
{¶ 40} In its cross-appeal, the state alleges that the trial court erred when it failed to accurately include state Grier‘s sentence in its December 6, 2021 judgment entry. Specifically, the state argues that the trial court failed to include the maximum portion of Grier‘s indefinite prison term in its final judgment entry. The state requests that we remand this matter to the trial court so that it may issue a nunc pro tunc order amending its judgment entry to reflect the sentence imposed. Grier did not respond to the state‘s cross-appeal.
{¶ 41} We review felony sentences under
{¶ 43} When a judgment entry fails to record a valid judgment imposed on the record by the court, the proper remedy is the issuance of a nunc pro tunc order correcting the error. See In re. Doe, 149 Ohio App.3d 717, 2002-Ohio-4470, 778 N.E.2d 1053, ¶ 61 (6th Dist.) (“Nunc pro tunc orders are employed to make the record speak the truth, and the function of such entries is the correction of judgments rendered to the extent that they fail to record or improperly record, the judgment rendered by the court.“). For these reasons, we find the state‘s assignment of error well-taken and we remand this matter to the trial court for the issuance of a nunc pro tunc order correcting this error.
{¶ 44} We find Grier‘s assignment of error not well-taken. We find the state‘s assignment of error well-taken. Therefore, we affirm, in part, and reverse, in part, the December 6, 2021 judgment of the Lucas County Court of Common Pleas. We remand this matter for the limited purpose of issuing a nunc pro tunc order in accordance with this decision.
{¶ 45} Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed in part, reversed in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. ____________________________ JUDGE
Christine E. Mayle, J. ____________________________ JUDGE
Gene A. Zmuda, J. CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.