STATE OF OHIO v. DAREZ LEON HARRIS
Appellate Case No. 2020-CA-29
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
April 23, 2021
[Cite as State v. Harris, 2021-Ohio-1431.]
Trial Court Case Nos. 2019-CR-817 (Criminal Appeal from Common Pleas Court)
MICHAEL PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
OPINION
Rendered on the 23rd day of April, 2021.
WELBAUM, J.
Facts and Course of Proceedings
{2} On December 16, 2019, a Clark County grand jury returned an indictment charging Harris with one count of failure to comply with the order or signal of a police officer in violation of
{3} On June 22, 2020, Harris entered a guilty plea to the charged offense. In exchange for his guilty plea, the State agreed to dismiss a failure to comply charge against Harris in an unrelated case—Clark C.P. No. 2019-CR-754. The parties made no agreement as to Harris‘s sentence but did agree to have a presentence investigation conducted. After conducting a plea colloquy, the trial court accepted Harris‘s guilty plea as being knowingly, intelligently, and voluntarily entered. The record of the plea hearing, however, indicates that the trial court failed to advise Harris of the maximum possible penalty he faced by entering a guilty plea. Nevertheless, upon accepting Harris‘s plea, the trial court scheduled the matter for sentencing.
{4} On July 17, 2020, the trial court held a sentencing hearing and sentenced Harris to 36 months in prison with 13 days of jail-time credit. The trial court also suspended Harris‘s driving privileges for five years and ordered Harris to pay court costs. Immediately after the trial court imposed its sentence, Harris orally moved the trial court to withdraw his guilty plea. After the following discussion with Harris, the trial court denied Harris‘s motion.
DEFENDANT: I‘m not understanding.
THE COURT: What‘s not to understand?
DEFENDANT: I feel like I didn‘t really know what I was pleading to. There was no substantial evidence.
THE COURT: Okay. Well, you did know what you were pleading to because I went over [it] with you in quite detail.
DEFENDANT: And I want — THE COURT: Part of the agreement was the State was dismissing the other charge pending against you for failure to comply.
DEFENDANT: I would like to withdraw my plea because I feel like there was no substantial evidence besides a cop saying he saw me. There were no cameras. There were no [sic] apprehension. There was no — I wasn‘t arrested. I felt like I just agreed with the system to just get the case over, get on probation, get back to my children.
THE COURT: I see. You were not told that you were gonna get community control, were you?
DEFENDANT: No, I was told it was an option.
THE COURT: You were told what the possible maximum penalty would be. All the information you just stated to me you knew at the time of your plea. So it appears to the Court that all you‘re doing is having a change of heart.
DEFENDANT: I‘m not —
THE COURT: Request for change of plea is denied. You want to proceed more formally, you‘re certainly welcome to do so.
Sentencing Trans. (July 17, 2020), p. 17-18.
Assignment of Error
{6} Under his sole assignment of error, Harris contends that the trial court erred by denying his post-sentence motion to withdraw his guilty plea without first holding an evidentiary hearing.
{7} As a preliminary matter, we note that the trial court‘s decision denying Harris‘s post-sentence motion to withdraw his guilty plea can be challenged in this direct appeal because the trial court‘s decision was an interlocutory order that merged into the final judgment of conviction filed by the trial court. See State v. Cochran, 2d Dist. Clark No. 09-CA-49, 2010-Ohio-2917, ¶ 13 (trial court‘s oral decision overruling motion to withdraw guilty plea at a re-sentencing hearing was an interlocutory order that became final and appealable as a result of the final judgment of conviction being rendered). See also USA Freight, L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 15.
{8} “Under
{9} ” ‘A hearing [on a post-sentence motion to withdraw a guilty plea] is required only if the facts alleged by the defendant, if accepted as true, would require the plea to be withdrawn.’ ” State v. Hall, 2d Dist. Greene No. 2011-CA-32, 2012-Ohio-2539, ¶ 12, quoting State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2008-Ohio-295, ¶ 19. That is, ” ‘[t]he movant must establish a reasonable likelihood that withdrawal of his plea is necessary to correct a manifest injustice before a trial court must hold a hearing on his motion.’ ” Ray at ¶ 14, quoting State v. Stewart, 2d Dist. Greene No. 2003-CA-28, 2004-Ohio-3574, ¶ 6. ” ‘[N]o hearing is required on a post-sentence motion to withdraw a plea where the motion is supported only by the movant‘s own self-serving affidavit, at least when the claim is not supported by the record.’ ” Id.
{10} “We review a trial court‘s decision on a post-sentence motion to withdraw guilty plea and on a decision granting or denying a hearing on the motion for an abuse of discretion.” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, ¶ 11, citing Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. Most instances of abuse of discretion occur when a trial court makes a decision that is unreasonable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if
{11} As noted above, in support of his oral motion to withdraw his guilty plea, Harris generally claimed that he had not understood his plea. Harris also claimed that there had been no substantial evidence of his guilt, given that he was never arrested or video-recorded fleeing from the police. In denying the motion, the trial court found that Harris knew this information at the time of his plea, that the court went over the plea with Harris “in quite detail,” and that Harris was “told what the possible maximum penalty would be.” Sentencing Trans. (July 17, 2020), p. 17-18. However, the record of the plea hearing establishes that the trial court did not advise Harris of the maximum possible penalty for his offense before Harris entered his guilty plea. That information was wholly omitted from the trial court‘s plea colloquy.
{12} But for the trial court‘s erroneous finding as to the maximum penalty advisement, we would have found it reasonable for the trial court to deny Harris‘s post-sentence motion to withdraw his guilty plea without first holding an evidentiary hearing. This is because Harris‘s motion was based on a bare, general assertion that he did not understand his plea. Furthermore, Harris‘s claim that there was no substantial evidence
{13} Nevertheless, the record indicates that when ruling on Harris‘s motion to withdraw his guilty plea, the trial court incorrectly found that it had advised Harris of the maximum possible penalty he could receive for his offense. Therefore, because the trial court relied on that incorrect factual finding when ruling on the motion, we find, for that reason alone, the trial court abused its discretion when it denied Harris‘s post-sentence motion to withdraw his guilty plea without a hearing.
{14} At this juncture, we note that the only relief Harris seeks in his appeal is to have the judgment denying his motion to withdraw his guilty plea reversed and the matter remanded for an evidentiary hearing. Although not explicitly argued on appeal, the validity of Harris‘s guilty plea is an underlying issue that needs to be addressed under the circumstances of this case.
{15} “In order to satisfy the requirements of due process, a plea of guilty * * * must be knowing, intelligent, and voluntary, and the record must affirmatively demonstrate” as much. State v. Chessman, 2d Dist. Greene No. 2003-CA-100, 2006-Ohio-835, ¶ 15, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{16} Generally speaking, “a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{17} The first exception is that the trial court must comply strictly with
{18} The second exception is that “a trial court‘s complete failure to comply with a portion of
{19} Pursuant to
{20} As previously discussed, the trial court did not advise Harris of the maximum possible penalty he faced during its plea colloquy. The trial court did, however, ensure that Harris reviewed and understood the written plea agreement, a form which set forth the maximum possible penalty that Harris faced. Some courts have held that discussing a written plea form (which contains the maximum possible penalty) at the plea hearing and ensuring that the defendant understands its contents amounts to substantial compliance with
{21} In Rogers, the Twelfth District Court of Appeals reviewed whether there was a complete failure to comply with
Pursuant to
Crim.R. 11(C)(2) , a trial court‘s determination that a defendant entering a guilty plea understands the maximum penalty involvedmust precede the court‘s acceptance of the plea. This is accomplished by the trial court “addressing the defendant personally.” Neither post-colloquy events nor a plea form signed by a defendant are relevant in reviewing whether a trial court has complied with Crim.R. 11(C)(2) . The trial court‘s failure to advise Rogers of the mandatory fine during the plea colloquy does not comply with the requirement ofCrim.R. 11(C)(2)(a) that a trial court “first” determine a defendant‘s understanding of the maximum penalty before accepting the plea. Neither does Rogers’ mere execution of the plea form satisfy the requirement ofCrim.R. 11(C)(2)(a) that the trial court “personally address” a defendant to determine that the plea is entered with an understanding of the maximum penalty involved.We note that Rogers and the state both discuss whether the trial court substantially complied with
Crim.R. 11(C)(2) during the plea colloquy. In particular, the state cites a case for the proposition that a trial court‘s acceptance of a guilty plea without advising the defendant that a fine could be imposed constitutes substantial compliance withCrim.R. 11(C)(2)(a) where the defendant signs a plea agreement before entering his guilty plea that informs him of the fine. See State v. Mohr, 3d Dist. Van Wert No. 15-98-05, 1999 WL 797048 (Sept. 16, 1999). This reflects the law that was applicable at the time the parties filed their briefs. However, a recent decision of the Ohio Supreme Court reveals that whether a trial court substantially complies withCrim.R. 11(C)(2) is no longer part of the analysis in reviewing a trial court‘s plea colloquy. See [State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286].
Rogers at ¶ 14-15.
“[A] trial court‘s total failure to inform a defendant of a distinct component of the maximum penalty during a plea colloquy constitutes a complete failure to comply with
Crim.R. 11(C)(2)(a) , thereby requiring the vacation of the defendant‘s guilty or no contest plea.” [State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20]. “Or stated differently, a complete failure to comply withCrim.R. 11(C)(2)(a) involves a trial court‘s complete omission in advising about a distinct component of the maximum penalty. By contrast, a trial court‘s mention of a component of the maximum penalty during a plea colloquy, albeit incomplete or perhaps inaccurate, does not constitute a complete failure to comply withCrim.R. 11(C)(2)(a) .” Id.
Id. at ¶ 19.
{23} In applying these principles, Rogers held that:
The trial court did not simply misinform Rogers about the fine, such as the amount or whether it was mandatory or discretionary. Rather, the court made no mention of the fine during the plea colloquy. Consequently, the trial court‘s total failure to inform Rogers of the mandatory $7,500 fine, which was a part of the maximum penalty, before it accepted the guilty plea constituted “a trial court‘s complete failure to comply with a portion of
Crim.R. 11(C) ” pursuant to the second exception to the prejudice requirement. (Emphasis sic.) Sarkozy, 2008-Ohio-509 at ¶ 22, 117 Ohio St.3d 86, 881 N.E.2d 1224.
Rogers, 2020-Ohio-4102, 157 N.E.3d 142, at ¶ 23.
{24} In reference to the written plea form, Rogers further explained that:
The record further suggests that Rogers was aware he faced a mandatory $7,500 fine based upon the plea form he signed which plainly indicated a mandatory fine of $7,500 on Count 2. However, while “[a] written acknowledgment of a guilty plea and a waiver of trial rights executed by an accused can, in some circumstances, reconcile ambiguities in the oral colloquy that
Crim.R. 11(C) prescribes, * * * the writing does not substitute for an oral exchange when it is wholly omitted.” State v. Dixon, 2d Dist. Clark No. 2001-CA-17, 2001 WL 1657836, *3 (Dec. 28, 2001). ”Crim.R. 11(C) requires that form of exchange to insure that the defendant makes a voluntary and intelligent decision whether to plead guilty.” Id. “This court examines compliance withCrim.R. 11 by examining the trial court‘s communication to the defendant, not the defendant‘s subjective understanding of his rights.” State v. Gipson, 1st Dist. Hamilton No. C-970891, 1998 WL 682153, *3 (Sept. 30, 1998).In light of all of the foregoing, we find that the trial court completely failed to comply with
Crim.R. 11(C)(2)(a) and Rogers’ guilty plea was not knowingly, intelligently, and voluntarily made.
Rogers at ¶ 25-26.
A written acknowledgment of a guilty plea and a waiver of trial rights executed by an accused can, in some circumstances, reconcile ambiguities in the oral colloquy that
Crim.R. 11(C) prescribes. However, the writing does not substitute for an oral exchange when it is wholly omitted.Crim.R. 11(C) requires that form of exchange to insure that the defendant makes a voluntary and intelligent decision whether to plead guilty. On appellate review, “the focus ... is whether the record shows that the trial court referred to the right in a manner reasonably intelligible to that defendant.” [State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph two of the syllabus.]
Id. at *3.
{26} Like the defendant in Rogers, Harris might have been aware of the maximum penalty he faced by virtue of reviewing the written plea agreement. However, Rogers and Dixon both indicate that simply ensuring that a defendant understands a written plea form is not a cure for the trial court‘s complete failure to orally advise a defendant about the maximum possible penalty during the plea colloquy. In so holding, we note that this case is distinguishable from this court‘s recent decision in State v. Ebbing, 2d Dist. Montgomery No. 28823, 2021-Ohio-865, ¶ 20, wherein we found partial compliance with
{27} Harris‘s sole assignment of error is sustained.
Conclusion
{28} Having sustained Harris‘s sole assignment of error, the trial court‘s judgment denying Harris‘s post-sentence motion to withdraw his guilty plea is reversed, Harris‘s guilty plea is vacated, and the matter is remanded to the trial court for further proceedings.
TUCKER, P.J. and DONOVAN, J. concur.
Copies to:
Ian Richardson
Michael Pentecost
Hon. Richard J. O‘Neill