State v. GriffithState v. Griffith
Rendered on November 16, 2010
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City Prosecutor, and Melanie R. Tobias, for appellee.
Shaw & Miller, Mark J. Miller and J. Andrew Stevens, for appellant.
APPEAL from the Franklin County Municipal Court.
McGRATH, J.
{¶1} Defendant-appellant, Clifford Griffith, appeals from a judgment of the Franklin County Municipal Court finding him guilty of operating a vehicle while impaired (“OVI“), in violation of Columbus City Code 2133.01(A)(1)(a) after appellant entered a no contest plea to said charge.
{¶2} On April 1, 2009, appellant was charged with one count of OVI and one count of assured clear distance ahead (“ACDA“). Appellant entered a no contest plea to a first offense OVI on October 5, 2009. A sentencing hearing was held on January 4, 2010, whereat appellant was sentenced to 180 days in jail, with 150 days suspended and
{¶3} On appeal, appellant brings the following three assignments of error for our review:
- The trial court erred in accepting the Appellant‘s no contest plea without first personally addressing the Appellant to determine whether his plea was knowingly, intelligently and voluntarily made and without first informing the Appellant of the potential penalties involved.
- The Appellant‘s sentence is void because the sentencing entry indicates the incorrect jail term and license suspension.
- The trial court abused its discretion in denying the Appellant‘s Motion to Withdraw his no contest plea because the Appellant relied on the representations of the trial court to his detriment and he was denied both a hearing on his motion and specific performance of the terms of his plea agreement.
{¶4} In his first assignment of error, appellant contends the trial court erred in accepting his no contest plea. Specifically, appellant argues that, in addition to failing to personally address him to determine whether his plea was knowingly, intelligently, and voluntarily made, the trial court also failed to inform him of the potential penalties involved.
{¶5} It is undisputed that appellant was charged with a misdemeanor involving a petty offense as defined by law.
In misdemeanor cases involving petty offenses, except those processed in a traffic violations bureau, the court may refuse to accept a plea of guilty or no contest and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty. This information may be presented by general orientation or pronouncement.
{¶6} A trial court complies with
(2) The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the facts alleged in the complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
{¶7} Though conceding that neither
{¶8} Though
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining 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.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against himself or herself.
{¶9} As reiterated by the Supreme Court of Ohio in Jones, the Watkins court rejected any suggestion that the effect of the plea in the petty offense was defined by the requirements of
{¶10} The court went on to hold:
Although
Crim.R. 11(E) does not require the trial court to engage in a lengthy inquiry when a plea is accepted to a misdemeanor charge involving a petty offense, the rule does require that certain information be given on the “effect of the plea.” Whether orally or in writing, a trial court must inform the defendant of the appropriate language underCrim.R. 11(B) before accepting a plea.
(Emphasis added.) Id. at ¶51.
{¶11} In the case sub judice, the following exchange took place during the plea hearing:
[The Court]: [Appellant], I have a document in front of me entitled advice and waiver of trial by jury. Did you read – Did you read this over with your counsel?
[Appellant‘s Counsel]: He was just asking if it was the no contest form. I said yes.
[The Court]: Did you understand everything in it before you signed it?
[Appellant]: Yes.
[The Court]: Counsel, do you believe that your client is proceeding knowingly, voluntarily and intelligently in this matter? [Appellant‘s Counsel]: I do.
[The Court]: [Appellant], what is your plea to the charge of OVI as a misdemeanor of the first degree?
[Appellant]: No contest.
(Oct. 5, 2009 Tr. 2-3.)
{¶12} The “Advice and Waiver of Trial By Jury” document referenced by the trial court was signed by appellant on October 2, 2009. Said document states, “I understand and acknowledge that a plea of ‘NO CONTEST’ is not an admission of guilty but is an admission of the truth of the facts alleged in the complaint, and the no contest plea or admission cannot be used against me in any subsequent civil or criminal proceeding.” Additionally, appellant‘s initials appear on a line next to this statement.
{¶13} Thus, we find the trial court substantially complied with
{¶14} For ease of discussion, we will address appellant‘s remaining assignments of error in reverse. In his third assignment of error, appellant contends the trial court erred in denying his motion to withdraw his no contest plea.
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.
{¶15} Because appellant‘s request was made post-sentence, the standard by which the motion was to be considered was “to correct a manifest injustice.”
{¶16} Absent an abuse of discretion, a reviewing court will not disturb a trial court‘s decision on whether to grant a motion to withdraw a guilty plea. State v. Xie (1992), 62 Ohio St.3d 521, 526. The term “abuse of discretion” connotes more than a mere error in judgment; it signifies an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The good faith, credibility, and weight of the movant‘s assertions in support of
{¶17} ” ‘An evidentiary hearing on a post-sentence motion to withdraw a guilty plea “is not required if the facts as alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn.” ’ ” Honaker at ¶9, quoting State v. Patterson, 5th Dist. No. 2003CA00135, 2004-Ohio-1569, ¶18, quoting State v. Blatnik (1984), 17 Ohio App.3d 201, 204; State v. Wynn (1998), 131 Ohio App.3d 725, 728. However, generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. Id., citing Patterson, citing State v. Laster, 2d Dist. No. 19387, 2003-Ohio-1564.
{¶18} According to appellant‘s motion, he entered the no contest plea to a first offense OVI because he was told he would receive a recommendation for minimum first offense penalties. Appellant‘s supporting affidavit states:
2. On October 6, 2009 I entered pleas of No Contest to the charges in this case anticipating I would receive the minimum sentence.
3. Prior to sentencing, my counsel discussed sentencing with the Judge at the bench, at no time did the Court indicate it was going to give me a jail sentence.
4. On January 4, 2010 this Court sentenced me to 27 days in jail. Had I known the Court was going to sentence me to 27 days in jail, I would not have waived my Constitutional right to a jury trial and I would have proceeded to trial.
{¶19} In denying appellant‘s motion to withdraw his no contest plea, the trial court stated, “although [appellant] may have anticipated a lesser sentence the burden of determining sentence is left with the court.” (Feb. 12, 2010 entry.)
Counsel, that‘s a lot more information that I had when we talked about a probable resolution to the sentence. I will acknowledge that when we first talked, I had assumed that he had struck the telephone pole or something along those lines. We are not looking at a minimum sentence here.
(Jan. 4, 2010 Tr. 9.)
{¶21} The trial court went on to state, “[b]ecause he was not anticipating the jail days that I‘m going to impose, I will give you within the next 30 days to pick for enforcement of the additional 27 days that you‘ll be doing in jail.” Id. at 10.
{¶22} The transcript of the sentencing hearing does not indicate appellant was promised any type of sentence. In fact, appellant‘s own affidavit does not even allege that he was promised anything but, rather, states that he received a sentence he did not anticipate. Indeed, the trial court recognized that appellant may not have anticipated a jail term, but that does not equate to a finding that the sentence was unanticipated because the trial court promised the same. Further, not only is there no evidence that appellant was promised he would receive a sentence that did not include a term of incarceration, the record contains no evidence of a jointly recommended sentence. While appellant‘s
{¶23} Moreover, a “defendant‘s change of heart or mistaken belief about the guilty plea or expected sentence does not constitute a legitimate basis that requires the trial court to permit the defendant to withdraw the guilty plea.” State v. Brooks, 10th Dist. No. 02AP-44, 2002-Ohio-5794, ¶51, citing State v. Sabatino (1995), 102 Ohio App.3d 483, 486. See also State v. Drake (1991), 73 Ohio App.3d 640, 645, citing State v. Meade (May 22, 1986), 8th Dist. No. 50678; State v. Sabath, 6th Dist. No. L-08-1148, 2009-Ohio-5726 (where the defendant was sentenced to incarceration rather than community control, the evidence in the record established only that the state would not oppose community control, not that it would affirmatively recommend community control as a sanction; therefore, the trial court did not abuse its discretion in denying the defendant‘s motion to withdraw guilty plea). Additionally, the Advice and Waiver of Trial by Jury signed by appellant states, “I realize that my penalty may or may not consist of jail time and/or a monetary fine.”
{¶24} Given the evidence in the record, we find the trial court‘s decision to deny appellant‘s motion to withdraw guilty plea without a hearing was not unreasonable, arbitrary, or unconscionable and, therefore, does not rise to the level of an abuse of discretion. Accordingly, appellant‘s third assignment of error is overruled.
{¶26} The sentencing entry states that the jail term is 180 days, 177 days suspended and three days credited, however it lists a length of confinement of 27 days. At the sentencing hearing, the trial court stated appellant was sentenced to 180 days in jail, 150 days suspended and three days credited, which results in a length of confinement of 27 days.
{¶27}
{¶28} Accordingly, because we conclude the trial court made a clerical error in the sentencing entry, this cause should be remanded to that court with instructions to correct the entry to make it conform to the sentence pronounced at the sentencing hearing.
{¶29} There remains, however, a second problem with the sentencing entry. The state agrees with appellant‘s contention that the ALS should have been terminated upon his being sentenced for OVI. See
{¶31} In conclusion, appellant‘s first and third assignments of error are overruled, and appellant‘s second assignment of error is sustained to the extent indicated above. The judgment of the Franklin County Municipal Court is reversed, and we remand this matter to that court with instructions to correct the clerical error in its sentencing entry so that it conforms to the sentence pronounced at the sentencing hearing and to terminate the ALS retroactive to the date of sentencing.
Judgment reversed and cause
remanded with instructions.
BRYANT and KLATT, JJ., concur.
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