STATE OF OHIO v. DONALD D. HALL
C.A. CASE NO. 2011 CA 32
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
June 8, 2012
2012-Ohio-2539
T.C. NO. CRB1001238; (Criminal appeal from Municipal Court)
Attorney for Plaintiff-Appellee
SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton, Ohio 45420
Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{1} Donald Hall appeals from a judgment of the Fairborn Municipal Court,
I.
{2} In June 2010, Hall was charged with telephone harassment, a first degree misdemeanor, based on telephone calls that he made to an individual who had been hired to perform contracting work at his home. During the pendency of his case, Hall requested several continuances based, in part, on treatment he was receiving for his back. The trial court ultimately required Hall to submit documentation from his treating physician as to why he could not attend the trial, which was scheduled for February 9, 2011.
{3} On February 4, 2011, Hall again moved for a continuance, stating that he was involved in an automobile accident in December 2010, that he was recovering from back surgery prior to the accident, and that, as a result of the accident, he “has been receiving prescription pain killers, such as vicodin and percocet.” Hall stated that he did “not believe that accurate testimony can be elicited while under heavy painkillers,” which he reportedly took several times a day. Hall attached a doctor‘s note indicating that Hall was under the doctor‘s care for a motor vehicle accident injury and was participating in therapy; the note asked the court to “please excuse [Hall] from court until improved.” Four days later, Hall supplemented the motion with a letter from his chiropractor, which stated that Hall was under his care for cervical, thoracic and lumbar spinal injuries sustained in the car accident and that “it is recommended that Donald Hall not attend court hearing scheduled for February 9, 2011.” The trial court overruled the motion for a continuance, noting that the doctors’ information was “vague” and failed to provide any indication as to when Hall
{4} On February 9, 2011, Hall appeared with counsel, waived a jury trial (which he had requested), and entered a guilty plea to menacing, a fourth degree misdemeanor. The court immediately sentenced him to 30 days in jail, all of which were suspended on the condition that he complete two years of unsupervised community control, have no contact with the complainant, and stay at least 500 feet from the complainant for two years. Hall was also ordered to pay a $150 fine and court costs.
{5} Approximately three weeks later, Hall, with new counsel, filed a motion to withdraw his guilty plea. Hall stated that he believed that he was “unable to assist counsel or knowingly and voluntarily make a guilty plea due to the influence of the pain killers” at the time the plea was entered. The trial court held a hearing on the motion, at which Hall‘s counsel presented argument on his behalf. No witnesses testified, and no documentary evidence was submitted. At the end of the hearing, the trial court orally overruled the motion. The court subsequently entered a written entry, which stated, in part:
The Court remembers defendant‘s conduct on February 9, 2011; his questions; his demeanor; and his answers provided to this Court at the time of the plea and sentence. The Court did not observe or hear any indication that defendant was impaired. In fact, defendant answered all questions intelligently. Further, defendant did provide prior to the plea a request for continuance and a note from a doctor indicating that he was in therapy. The note from the doctor did not provide any information verifying that defendant was taking any medication which could impair his thinking ability.
Defendant also did not provide any medical documentation at the hearing on March 4, 2011, that the prescription medication he was taking on February 9, 2011, impaired his thinking.
The court therefore concluded that no manifest injustice existed.
{6} Hall appeals from the trial court‘s judgment.
II.
{7} Hall raises three assignments of error. His first and second assignments of error state:
THE TRIAL COURT ERRED WHEN IT ACCEPTED MR. HALL‘S CHANGE OF PLEA TO AN AMENDED CHARGE WHEN THE SUBSEQUENT GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY GIVEN.
THE COURT ABUSED ITS DISCRETION WHEN IT OVERRULED THE MOTION TO VACATE THE GUILTY PLEA IN LIGHT OF THE MANIFEST INJUSTICE THAT OCCURRED. HIS GUILTY PLEA WAS MADE WHILE HE WAS UNDER THE INFLUENCE OF PRESCRIPTION DRUGS AND THE TRIAL COURT DEPRIVED MR. HALL OF HIS RIGHT TO DUE PROCESS BY NOT HAVING A PROPER EVIDENTIARY HEARING ON THE MOTION.
{8} In his first and second assignments of error, Hall claims that the trial court failed to conduct a proper hearing on his post-sentence motion to withdraw his plea and that the court should have granted his motion.
{9}
{10} A defendant‘s motion to withdraw a plea, made before sentencing, should be freely and liberally granted, provided the movant demonstrates a reasonable and legitimate basis for the withdrawal. State v. Xie, 62 Ohio St.3d 521, 526-27, 584 N.E.2d 715 (1992). This does not mean that a defendant has an absolute right to withdraw his plea prior to sentencing. Id. at paragraph one of the syllabus. A trial court does not abuse its discretion in denying a pre-sentencing motion to withdraw a guilty plea (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
{11} In contrast, the withdrawal of a guilty plea after sentencing is permitted only in the most extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of establishing manifest injustice.
{12} The trial court is not required to hold an evidentiary hearing on every post-sentence motion to withdraw a plea. E.g., State v. Harden, 2d Dist. Montgomery No. 24063, 2012-Ohio-1657, ¶ 14. “A hearing is required only if the facts alleged by the defendant, if accepted as true, would require the plea to be withdrawn.” State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 19. The trial court should hold a hearing “unless it is clear that denial of the motion is warranted.” Id., quoting State v. Francis, 104 Ohio St.3d 490, 500, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 51. The trial court may satisfy the requirement for a full and fair hearing on a motion to withdraw a plea by allowing the defendant and his attorney to speak at a hearing and to explain the basis for the motion. State v. Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 20-21.
{13} In this case, the trial court conducted a hearing on Hall‘s motion to withdraw his plea on April 26, 2011, approximately seven weeks after his motion was filed. During the hearing, Hall‘s counsel expressed to the court that Hall‘s motion was filed promptly and that Hall believed that there was a manifest injustice “by [the court‘s] accepting his guilty
{14} The prosecutor responded to Hall‘s arguments by noting that Hall‘s prior counsel “understood the facts and circumstances surrounding the plea,” that the Court had been “involved with this case from the beginning,” and that Hall‘s motion reflected a change of heart. Hall‘s counsel denied that Hall had “buyer‘s remorse” and argued that Hall‘s motion reflected that it was based on his realization that he was under the influence of drugs when he entered his plea.
{15} At the conclusion of counsel‘s arguments, the trial court orally overruled the
{16} We find nothing inadequate with the trial court‘s hearing on the motion to withdraw Hall‘s plea. Counsel for Hall and the State were given opportunities to present their positions on the motion. Hall did not express to the court any intention to present witnesses and/or documentary evidence during the hearing, and there is no indication in the record that the trial court precluded Hall from presenting relevant testimony, documentary evidence, or additional argument. The trial court‘s hearing comported with the requirements of due process, and the court gave full consideration to the motion.
{17} We also find no abuse of discretion in the trial court‘s decision to overrule Hall‘s motion. Hall‘s motion was based on his assertion that he was impaired by his use of prescription pain medication during the plea hearing. The trial court apparently disbelieved Hall‘s assertion based on its recollection of Hall‘s behavior, statements, and demeanor during the plea hearing. Nothing in the transcript of the plea hearing suggests that Hall was, in fact, impaired by his use of prescription pain medication.
{18} Hall further notes that the trial court never made an express finding during the plea hearing that his plea was knowing, intelligent, and voluntary.
{19} As opposed to felonies or serious misdemeanors, the trial court was not required to make an express finding that Hall‘s plea was made knowingly, intelligently, and voluntarily, and Hall concedes in his brief that there was “technical compliance with the mandates of
{20} The first and second assignments of error are overruled.
III.
{21} Hall‘s third assignment of error states:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS ATTORNEY FAILED TO EFFECTIVELY PARTICIPATE IN THE HEARING ON APPELLANT‘S MOTION TO WITHDRAW HIS PLEA.
{22} In his third assignment of error, Hall claims that his counsel at the hearing on the motion to withdraw his plea was deficient, because she failed to present any witnesses and documentary evidence on his behalf.
{23} We review claims of ineffective assistance of counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To reverse a judgment based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that counsel‘s errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland, 466 U.S. at 688. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id.
{24} Hall states that he had “ample medical documentation” to present at the hearing and that he was willing to testify on his own behalf. He claims that, had his counsel presented this testimony and evidence at the hearing, he would have been able to show that Vicodin and Percocet are mind-altering drugs that his physician felt would impair his decision-making.
{25} Even if we were to assume, for sake of argument, that Hall‘s counsel should have called Hall to testify and offered the medical records during the hearing, we find no
{26} Hall‘s medical records are not in the record, and we can only speculate whether they would establish that Hall‘s use of the prescription pain medication affected his ability to enter a knowing, intelligent, and voluntary plea. Even if Hall‘s documentation substantiated his medical condition and his use of prescription medication, such documentation would likely not have affected the trial court‘s decision, absent some showing of actual impairment due to the use of the medicine; even if Hall had begun taking Percocet and Vicodin shortly after his December 13 automobile accident, he would have been taking those medications for more than a month by the time he entered his plea. In short, with the record before us, we cannot conclude that there was a reasonable probability that the outcome of the hearing would have been different had counsel presented Hall‘s medical records and called Hall to testify.
{27} Hall‘s third assignment of error is overruled.
IV.
{28} The trial court‘s judgment will be affirmed.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Betsy A. Deeds
Shawn P. Hooks
Hon. Beth W. Root