STATE OF OHIO, Plaintiff-Appellee v. DAVID A. HAWKE, Defendant-Appellant
Appellate Case Nos. 2019-CA-24 and 2019-CA-25; Trial Court Case Nos. 2018-CR-1031 and 2019-CR-46
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, GREENE COUNTY
February 14, 2020
2020-Ohio-511
TUCKER, P.J.
(Criminal Appeal from Common Pleas Court)
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
OPINION
Rendered on the 14th day of February, 2020.
TUCKER, P.J.
I. Facts and Procedural Background
{¶ 2} On December 21, 2018, Hawke was indicted on four counts of identity fraud in violation of
{¶ 3} Following negotiations, a plea agreement was reached whereby Hawke agreed to plead guilty to two counts of identity fraud in Case No. 2018-CR-1031 and one count of identity fraud in Case No. 2019-CR-46. In exchange, the State agreed to dismiss the remaining five counts and to recommend a two-year prison term.
{¶ 4} A plea hearing was conducted on March 1, 2019. At that time, the trial court informed Hawke of the charges against him, the maximum sentence that he faced, and the constitutional rights that he waived by foregoing a trial. Prior to accepting the plea, the trial court asked Hawke whether he understood what he was doing and whether he was acting of his own free will and not as the result of any promises aside from those incorporated in the plea agreement. Hawke responded to these questions in the affirmative. Hawke acknowledged that he had discussed his case with his attorney, including the facts relevant to the offenses with which he was charged and his potential
{¶ 5} On the day of the sentencing hearing, the prosecutor and defense counsel were in the trial court‘s chambers when the judge indicated his intent to impose a three-year sentence rather than the recommended two-year sentence. Afterward, defense counsel informed Hawke of the in-chambers discussion. When the hearing started, defense counsel informed the trial court that Hawke wished to withdraw his plea and to obtain new counsel. The trial court stated it would treat the matter as an oral motion to withdraw the plea and would immediately hear arguments and testimony related to the motion.
{¶ 6} The trial court and Hawke engaged in a colloquy during which Hawke explained that he believed a three-year sentence was not “appropriate” because he did not “destroy anybody‘s life.” Sent. Tr. p. 7. Hawke noted he had cooperated with law enforcement, and he stated he believed that he was being “crucified because they did not catch” another person involved with the offense. Sent Tr. p. 8. He also claimed he had not been provided with a copy of his discovery packet and had only met with counsel a few times. He noted that he was a drug addict and stated he had been admitted into a “six-month program” in Columbus. Sent. Tr. p. 7-8. Finally, he claimed his attorney told him he would receive a two-year sentence.
{¶ 8} The trial judge denied the motion to withdraw the plea, stating that Hawke was never promised a two-year prison sentence, and further that when he entered his plea he was told that his sentence would be at the sentencing judge‘s discretion.
{¶ 9} Hawke appeals.
II. Analysis
{¶ 10} Hawke‘s sole assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED HAWK‘S [SIC] MOTION TO WITHDRAW HIS PLEA BECAUSE IT WAS NOT VOLUNTARILY, INTELLIGENTLY, OR KNOWINGLY ENTERED.
{¶ 11} Hawke asserts the trial court abused its discretion when it overruled his motion to withdraw his guilty plea. In support, he argues the trial court erred by failing to conduct a hearing. Additionally, while not expressly argued, Hawke‘s assignment of error implicitly claims the trial court did not comply with
{¶ 12} The Rules of Criminal Procedure permit a defendant to withdraw a guilty plea. Such a withdrawal is governed by
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.
{¶ 13} A presentence motion to withdraw a guilty plea should be freely and liberally granted, but a postsentence motion to withdraw a guilty plea requires a showing of manifest injustice. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “A manifest injustice is a clear or openly unjust act; an extraordinary and fundamental flaw in the plea proceeding.” (Citation omitted.) State v. Yapp, 2015-Ohio-1654, 32 N.E.3d 996 (8th Dist.), ¶ 8. Thus, “[w]ithdrawal of a guilty plea after sentencing is permitted only in ‘extraordinary cases.’ ” State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 8, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).
{¶ 14} “A motion made pursuant to
{¶ 15} This court has consistently held that a motion made after a defendant has learned of the imminent sentence is considered to be made postsentence. McComb at ¶ 7. This is consistent with the objective of the stricter manifest-injustice standard for postsentence motions, which is aimed at discouraging defendants “from pleading guilty to test the weight of potential reprisal, and later withdraw[ing] the plea if the sentence was unexpectedly severe.” State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
{¶ 16} In this case, the record demonstrates Hawke learned of the trial court‘s sentencing decision prior to the sentencing hearing. Thus, his motion was appropriately treated as a postsentence motion, thereby triggering the stricter manifest injustice standard.
{¶ 17} Hawke argues that he should have been permitted to withdraw his guilty plea because he was not provided with his discovery packet and had only met with counsel a few times. The trial court was in the best position to assess this claim, and we cannot say that it constituted an abuse of discretion to give it no credence since Hawke, during the plea hearing, confirmed he had had enough time with counsel, had thoroughly discussed his case with counsel, and was satisfied with counsel‘s representation. Additionally, the fact that he cooperated with authorities and had a drug addiction were matters he was aware of at the time of the plea. Also, his claim that he had gained admittance to a “six-month program” was of no relevance since he was aware, at the time of the plea, he would be sentenced to at least a two-year sentence. Finally, Hawke‘s claim that counsel led him to believe that he would receive only a two-year sentence
{¶ 18} A review of the record leads us to agree with the trial court that Hawke merely had a change of heart upon learning that the trial court intended to sentence him to three years in prison. The record makes it very clear that, on the day of the sentencing hearing, the trial court informed counsel of its decision to issue a three-year sentence rather than the two-year recommended sentence. It is also clear that counsel then conferred with Hawke just prior to the hearing and informed him of the trial court‘s decision. Only then did Hawke desire to withdraw his plea. Thus, we conclude that Hawke has failed to demonstrate a manifest injustice necessitating the withdrawal of his plea and that the trial court did not abuse its discretion in denying the motion.
{¶ 19} We also conclude that the trial court did not err by failing to hold a separate evidentiary hearing on the motion. A hearing on a postsentence motion to withdraw a guilty plea is not required if the facts alleged by the defendant and accepted as true by the trial court would not require the court to allow the withdrawal of the plea. Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. Accord State v. Brown, 1st Dist. Hamilton No. C-010755, 2002-Ohio-5813, ¶ 20; State v. Chandler, 2018-Ohio-1081, 109 N.E.3d 616 (8th Dist.). The trial court did consider the motion and heard arguments from Hawke. However, as stated, the facts relied upon by Hawke in support of his motion did not demonstrate manifest injustice.
{¶ 20} Finally, we address the implicit claim that the trial court failed to conduct a proper hearing on the plea. In order to satisfy the requirements of due process, a guilty
{¶ 21} Other than the claims raised in his motion to withdraw his plea, Hawke does not actually make an argument to support his claim that his plea was not made knowingly, voluntarily and intelligently. Further, he does not point to any portion of the plea hearing to support a claim that the trial court failed to comply with the mandates of
{¶ 22} Hawke has not alleged any facts to reasonably support his claim that withdrawal of his guilty plea was necessary to correct a manifest injustice. Accordingly, the trial court did not abuse its discretion in denying the postsentence motion to withdraw the guilty plea without a hearing.
III. Conclusion
{¶ 24} Hawke‘s sole assignment of error being overruled, the judgment of the trial court is affirmed.
DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
MARCY VONDERWELL
BEN M. SWIFT
HON. STEPHEN WOLAVER