State v. HaglerState v. Hagler
Rendered on December 14, 2010
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Marcus C. Hagler, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Appellant, Marcus C. Hagler (“appellant“), filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas overruling appellant‘s motion to withdraw his guilty plea. For the reasons that follow, we affirm.
{¶2} On August 22, 2005, appellant was indicted by the Franklin County Grand Jury on three counts of felonious assault as a second-degree felony, one count of child
{¶3} On May 3, 2007, appellant again agreed to enter guilty pleas to two counts of child endangerment as third-degree felonies. The agreement did not include a joint recommendation on sentencing. The court held a sentencing hearing, during which the court was informed that while the case was pending, appellant had been convicted on a charge of burglary in Lorain County. The court explained all of the rights appellant was waiving by entering the guilty pleas, and noted that each of the counts carried a maximum sentence of five years, and that the sentences could be imposed cоnsecutively to each other and consecutively to the sentence appellant was serving on the Lorain County case. Appellant stated that he understood the rights he was waiving, as well as the possible sentence that could be imposed. When asked whether any prоmises had been made in order to persuade appellant to enter the guilty pleas, appellant responded in the negative. The court accepted appellant‘s guilty pleas, and imposed sentences of five years on each of the child endangerment counts, and ordered those sentences to be served consecutively.
{¶4} On January 13, 2010, appellant filed a motion seeking to withdraw his guilty pleas pursuant to
{¶5} Appellant claimed that these facts demonstrated that he had not entered his guilty pleas knowingly, voluntarily, and intelligently; and that the facts demonstrated that his right to effective assistance of counsel had been violated. Thus, appellant argued that he had demonstrated a manifest injustice that required that he be allowed to withdraw his guilty pleas.
{¶6} The trial court denied the motion without holding a hearing. Appellant filed this appeal, and asserts three assignments of error:
Assignment of Error No. I The trial court err by failing to grant defendant‘s Motion to with draw his guilty plea pursuant to 32.1 without first holding a Evidentiary hearing.
Assignment of Error No. II Defendant was denied right to effective assistance of counsel at trial in violation of his Sixth Amendment to the United States Constitution Article I Section 10, 16, by the choices his counsel made at trial with prejudiced defendant into taking his plea.
Assignment of Error No. III The Trial court erred by failing to hold a merger hearing as required pursuant to R.C. 2941.25 when allied offenses are in question rising out of a single incident.
(Sic passim.)
{¶7} Appellant‘s assignments of error are interrelated, and will therefore be addressed together. Motions to withdraw pleas оf guilty are governed by
{¶8} A trial court is not automatically required to hold a hearing on a post-sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. Williams, citing State v. Kent, 10th Dist. No. 03AP-722, 2004-Ohio-2129.
{¶9} A trial сourt‘s decision to deny a post-sentence motion to withdraw a plea of guilty, and the decision whether to hold a hearing on the motion, are subject to review for abuse of discretion. State v. Smith (1977), 49 Ohio St.2d 261; Kent. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies thаt the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶10} In deciding a
{¶11} We notе that appellant did not file his motion to withdraw his guilty pleas until approximately two and one-half years after his sentencing. “An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶12} We also note that the issues appellant raises to support his argument that the trial court should have granted his
{¶13} Appellant first аrgues that he should be allowed to withdraw his guilty pleas because the trial court imposed a sentence greater than that which appellant‘s counsel told him he would receive. Appellant argues that he would not have agreed to enter the pleas if he had not beliеved a lesser sentence would have been imposed. Appellant points to affidavits executed by him and by his mother, in which each stated that appellant‘s trial counsel informed him that a plea agreement had been reached whereby appellant would be sentenced to a term of one year of incarceration on each of the two child endangering counts, with the sentences to be served concurrently.
{¶14} At the sentencing hearing, the assistant prosecuting attorney specifically stated that there was no joint recommendаtion regarding the sentence to be imposed. In addition, the plea agreement that was signed by appellant contained no reference to any agreed sentence. At the hearing, the trial court informed appellant that the maximum sentence that could be imposed as a result of the agreement was five years on each count, and that the sentences could be ordered served consecutively, for a maximum total sentence of ten years, and appellant stated on the record that he understood the maximum sentence. Nothing in the hearing transcript or elsewhere in the record provides any support for appellant‘s claim that there was a plea agreement under which appellant would serve the sentence he now claims should have been imposed.
{¶15} Given the record, as well as the time that elapsed before appellant sought to assert his claim that a lesser sentence should have been imposed, the trial court did not abuse its discretion in concluding that the facts asserted by appellant did not warrant holding a hearing on appellant‘s
{¶16} Appellant also argues that he should have been allowed to withdraw his guilty pleas because his right to the effective assistance of counsel was violated. Appellant argues that his trial counsel‘s performance was ineffective because: (1) counsel misinformed him regarding the sentence that would be imposed, (2) failed to object when the trial court imposed the maximum sentence, and (3) failed to pursue an appeal of the triаl court‘s sentence after assuring appellant that an appeal would be filed.
{¶17} Ineffective assistance of counsel can form the basis for a claim of manifest injustice to support withdrawal of a guilty plea pursuant to
{¶18} Here, the evidence in the record contrаdicts the claims regarding trial counsel‘s actions set forth in the affidavits appellant used to support his motion. The record shows that appellant was advised of the possible sentence that could be imposed, and the discussions reflected that there was no recommendation regarding sentencing, nor were there any promises made to appellant to persuade him to plead guilty. Thus, we cannot say the trial court abused its discretion in finding that appellant‘s assertions regarding trial counsel‘s actions were not credible, and therefore
{¶19} Finally, appellant argues that he should have been allowed to withdraw his guilty pleas because the trial court improperly imposed sentences on еach count of child endangerment when the two counts should have merged as allied offenses of similar import.
{¶20} Merger of offenses is governed by
{¶21} In this case, the relevant counts of the indictment аre Counts 4 and 5, which charged appellant with child endangerment as a second-degree felony and child endangerment as a third-degree felony, respectively. The plea agreement resulted in appellant pleading guilty to the lesser included offense of child endangеrment as a third-degree felony on Count 4, and guilty to the charge in Count 5. Thus, the two charges to which appellant pleaded guilty were the same offense.
{¶22} Because the two charges were the same offense, it is not necessary to consider whether the two offenses were allied offenses of similar import. Rather, the issue is whether the two charges alleged the exact same conduct.
{¶23} At the sentencing hearing, the assistant prosecuting attorney set forth the factual basis for the charges to which appellant was pleading guilty. The prosecutor stаted that:
It was discovered that the child had blood on the base of his brain, old and new injuries, rib fractures on the left and right side of his body. The child was again examined by a doctor at Children‘s Hospital.
At the time, [the victim] was three-and-a-half months old. He was having seizures, had retinal hemorrhages, subdural hemаtomas, acute and possibly chronic, as well as healing and newer rib fractures. The subdural hematomas and the healing rib fractures were seven to ten days old.
* * * X-rays showed that the child had been injured on more than one occasion.
The mechanism for production of the subdural hеmatoma was significant acceleration/deceleration forces of the type seen in shaking, and that could be with and without impact. The mechanism for production of the rib fractures is the forceful squeezing of the chest.
(Tr. 10-11.)
{¶24} The facts as set forth in the sentencing hearing establish that the charges were based on more than one act. The description of the victim‘s injuries show differences in time between the infliction of the injuries, as well as multiple actions that inflicted the injuries, e.g., shaking and squeezing the victim. Because the charges were not based on the same conduct, the trial court was not required to merge the two charges for sentencing.
{¶25} The trial court did not abuse its discretion in declining to hold a hearing on appellant‘s
{¶26} Having overruled appellant‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and KLATT, J., concur.
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