STATE OF OHIO v. BRIAN S. HANEY
C.A. CASE NO. 25344
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
May 10, 2013
[Cite as State v. Haney, 2013-Ohio-1924.]
FROELICH, J.
T.C. NO. 12CR684 (Criminal appeal from Common Pleas Court)
Rendered on the 10th day of May, 2013.
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio 45404 Attorney for Defendant-Appellant
BRIAN S. HANEY, #667876, P. O. Box 540, Saint Clairsville, Ohio 43950 Defendant-Appellant
FROELICH, J.
{2} Haney‘s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the record and the law, he found no potentially meritorious issues for appeal. Counsel set forth three potential assignments of error, namely (1) that the trial court should have granted Haney‘s motion to withdraw his plea based on a manifest injustice, (2) that Haney did not fully understand his constitutional rights prior to pleading guilty, and (3) that Haney received ineffective assistance of counsel.
{3} By entry, we informed Haney that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. To date, no pro se brief has been filed. The case is now before us for our independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{4} In his first potential assignment of error, Haney‘s counsel claims that the trial court should have granted Haney‘s motion to withdraw his plea. Haney pled guilty to domestic violence on April 19, 2012. A presentence investigation was ordered, and sentencing was scheduled for May 10, 2012. On May 10, prior to the sentencing hearing, the trial court indicated to defense counsel that it intended to impose a 12-month prison sentence. Counsel relayed that information to Haney, who expressed, on the record, a
{5} The court appointed new counsel for Haney, who filed a written motion to withdraw the guilty plea. Haney‘s motion asserted that he was promised that there would be no opposition to treatment and that he would not be incarcerated if he accepted the plea. In his affidavit in support of the motion, Haney also stated that his original counsel did not show him the discovery in his case and failed to appear for hearings.
{6} The trial court held a hearing on Haney‘s motion, during which Haney testified on his own behalf. Haney testified that he was told by his original counsel that “the prosecutor was not going to reduce the charges back to misdemeanors, but if I pled guilty that day on the day of the scheduling conference, April 19th, that if I was recommended for residential treatment that the Judge would not oppose it.” Haney understood that there would be a presentence investigation and that the trial court would sentence him based on the report. Haney testified that he told pretrial services that he wanted help with his anger and drinking issues and that he was already attending a domestic violence class during his pretrial confinement. Haney was told that the report would recommend residential treatment. When Haney came for sentencing on May 10, his attorney told him that the trial court no longer wanted him to go to treatment and, instead, wanted Haney to serve one year in prison. Haney indicated that his goal was to receive treatment, so he asked to withdraw his plea. Haney testified that he did not have any problem with his original counsel‘s representation of him.
{7} The State called Haney‘s original counsel, Thomas Manning, to testify at the hearing. Manning testified that he discussed the potential consequences of a guilty plea
{8} At the end of the hearing, the trial court orally overruled Haney‘s motion to withdraw his plea. The court treated the motion as a post-sentence motion, which requires a showing of a manifest injustice. The court concluded that a manifest injustice was not shown. The court stated that there was no defect in the plea hearing, and Haney was advised of the potential for a term of imprisonment. The court noted that the PSI recommended that Haney be sentenced to prison.
{9} We find no arguable error in the trial court‘s denial of Haney‘s motion to withdraw his 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.”
{10} This court has held that a motion to withdraw a plea that is made before sentencing, but after learning of the imminent sentence to be imposed, is considered to be
{11} Consideration of a motion to withdraw a plea after sentencing is addressed to the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), at paragraph two of the syllabus. Thus, an appellate court reviews the trial court‘s decision under an abuse of discretion standard. Id.; State v. Harris, 2d Dist. Montgomery No. 19013, 2002 WL 940186, *1 (May 10, 2002). An abuse of discretion means that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{12} In this case, Haney moved to withdraw his plea after learning that he would be sentenced to prison, rather than to community control with treatment. It was undisputed that Haney was not promised treatment, regardless of the outcome of the presentence investigation. Haney was aware that the judge would sentence him after reviewing the presentence investigation report; although Haney believed he would be recommended for treatment, the report actually recommended a prison term. We find no potentially arguable claim that Haney‘s plea resulted in a manifest injustice.
{14}
{15} The Supreme Court of Ohio has urged trial courts to literally comply with
{16} Furthermore, when non-constitutional rights are at issue, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would otherwise not have been entered. Id. at ¶ 15, 897 N.E.2d 621. Where the trial court completely fails to comply with
{17} The record of the plea hearing in this case shows that the trial court complied with both of the constitutional and non-constitutional provisions of
{18} Haney denied being under the influence of drugs or alcohol. Haney stated that he was entering his plea of his own free will and that he was neither threatened nor had any promises made to him to induce him to plead. Haney understood that his guilty plea was a complete admission of guilt. The trial court confirmed that Haney was a United States citizen and that he understood each of the rights he was waiving by pleading guilty. The State read the charge against Haney and Haney agreed that the facts were true. Haney signed the plea form in open court; he had no questions or concerns before doing so. The trial court accepted Haney‘s guilty plea.
{19} The record demonstrates that Haney‘s guilty plea was knowingly, intelligently, and voluntarily entered. Therefore, the assigned potential error with respect to the validity of his plea lacks arguable merit.
{20} The third potential assignment of error contends that Haney‘s original trial counsel was ineffective because he did not give Haney enough time to fully understand the consequences of his guilty plea. There is nothing in the record to support this assertion. Therefore, we find no arguable merit to this claim.
{21} Upon our independent review of the record, we note that the trial court did not inform Haney, as then required by
{22} We have thoroughly reviewed the record, and we find no other potentially meritorious issues. The trial court‘s judgment will be affirmed, as modified.
FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
Carley J. Ingram
Enrique G. Rivera-Cerezo
Brian S. Haney
Hon. Mary L. Wiseman