STATE OF OHIO v. REGINALD HEISE
Nos. 108286 and 108776
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 27, 2020
2020-Ohio-662
EILEEN T. GALLAGHER, A.J.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 27, 2020
Criminаl Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603450-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, and Mary M. Frey, Assistant Prosecuting Attorneys, for appellee.
Norman & Tayeh, L.L.C., and William Norman, for appellant.
EILEEN T. GALLAGHER, A.J.:
{¶ 1} Defendant-appellant, Reginald Heise, appeals from his convictions following a guilty plea. He raises the following assignments of error for review:
- The trial court erred in finding that Heise‘s indictment charged an offense proscribed by
R.C. 2911.11(A) . The trial court committed plain error, and exceeded its authority, by convicting and sentencing Heise under R.C. 2911.11(A) and2941.145(A) , where the charging terms of the indictment andR.C. 1.51 required judgment and sentence underR.C. 2911.211(A) .- The trial court erred in finding Heise‘s guilty plea was knowing, intelligent, and voluntary.
- The trial court erred in denying Heise‘s motion to withdraw guilty plea without conducting an evidentiary hearing.
- Due to ineffective assistance of counsel, Heise did not enter a guilty plea which was knowing, intelligent, and voluntary.
- Counsel was ineffective for failing to object to the indictment, plea, and judgment on due process grounds and
R.C. 1.51 . - Counsel was ineffective for failing to object to the indictment on grounds of multiplicity.
{¶ 2} After careful review of the record and relevant case law, we affirm Heise‘s convictions and sentence. Heise‘s arguments concerning the sufficiency of his indictment rely on a misinterpretation of the criminal statute governing his conduct. Moreover, Heise has failed to meet his burden of demonstrating the existence of a manifest injustice that wаrrants the withdrawal of his guilty plea.
I. Procedural and Factual History
{¶ 3} In March 2016, Heise was named in a three-count indictment, charging him with two counts of aggravated burglary in violation of
{¶ 5} Following a
{¶ 6} In July 2016, the trial court sentenced Heise to three years in prison on the aggravated burglary offense, to be served сonsecutively with the three-year firearm specification, for a total prison term of six years.
{¶ 7} Heise did not file a timely appeal. Instead, Heise waited well over two years before filing a pro se postsentence motion to withdraw his guilty plea in February 2019. In the motion, Heise argued that, due to ineffective assistance of counsel, his guilty plea was not knowingly, intelligently, and voluntarily made.
{¶ 8} Before the trial court issued a ruling on Heise‘s motion tо withdraw, Heise filed a notice of appeal and motion for delayed appeal with this court in 8th Dist Cuyahoga No. 108286. In March 2019, this court granted Heise‘s motion for delayed appeal and appointed appellate counsel.
Motion by Heise for stay and order of remand for the sole purpose of the trial court ruling on the pending motion to withdraw the guilty plea is granted. Matter is remanded to the trial court until July 25, 2019. Should the trial court deny the motion to withdraw, Heise shall file a separate notice of appeal and request consolidation with the instant appeal. Should the trial court grant the motion, and the granting renders the instant appeal moot, Heise shall file a motion to dismiss the appеal pursuant to
App.R. 28 . Notice issued.
{¶ 10} On remand, the trial court denied Heise‘s motion to withdraw his guilty plea in July 2019, without a hearing. Heise appealed from the trial court‘s judgment in 8th Dist. Cuyahoga No. 108776. Because the cases stemmed from the same indictment, this court consolidated Case Nos. 108286 and 108776 for the purpose of this appeal.
{¶ 11} Heise now appeals from his conviction and the trial court‘s denial of his motion to withdraw his plea.
II. Law and Analysis
A. Validity of Indictment
{¶ 12} In his first assignment of error, Heise argues the trial court erred in finding that his indictment charged him with an offense proscribed by
{¶ 13} Preliminarily, we note that this court has previously held that
under
Crim.R. 12(C)(2) “[d]efenses and objections based on defects in the indictment” must be raised before trial. According to the Ohio Supreme Court, the “failure to timely object to the allegedly defective indictment constitutes a waiver of the issues involved.” State v. Biros, 78 Ohio St.3d 426, 436, 678 N.E.2d 891 (1997), citing State v. Joseph, 73 Ohio St.3d 450, 653 N.E.2d 285 (1995). Furthermore, this court has held that ““by voluntarily entering a guilty plea, a defendant waives the right to contest non-jurisdictional defects that occurred before the plea was entered. More specifically, by voluntarily entering a guilty plea [the defendant] waived his right to a direct appeal of any alleged defects in the indictment.“” State v. Moree, 8th Dist. Cuyahoga No. 90894, 2009-Ohio-472, ¶ 21, quoting State v. Salter, 8th Dist. Cuyahoga No. 82488, 2003-Ohio-5652. (Internal citations omitted.).
State v. Szidik, 8th Dist. Cuyahoga No. 95644, 2011-Ohio-4093, ¶ 7. Thus, by failing to timely object to the indictment and by pleading guilty to aggravated burglary pursuant to a negotiated plea agreement, we find Heise has waived his right to challenge any alleged defect in the indictmеnt.
{¶ 14} Nevertheless, assuming Heise had not waived his right to object to the perceived defects in the indictment, his arguments are without merit. As stated, Count 1 of Heise‘s indictment charged him with aggravated burglary in violation of
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person оther than an
accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: * * *
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
{¶ 15} On appeal, Heise asserts that he was improperly indicted on charges of aggravated burglary under
{¶ 16} In support of his position that
In broadening the scope of the crime, the legislature has expanded the mens rea element from an intent to commit a felony to an intent to commit “any criminal offense,” which is the mental state required in the current version of
R.C. 2911.11 . Given the General Assembly‘s use of the term “any” in the phrase “any criminal offense,” we presume that it intended to encompass “every” and “all” criminal offenses recognized by Ohio. See, e.g., Cales v. Armstrong World Industries, Inc., 4th Dist. Scioto No. 02CA2851, 2003-Ohio-1776, ¶ 17, fn. 8 (citing cases defining “any” as meaning “every” and “all“); Motor Cargo, Inc. v. Richfield Twp. Bd. of Twp. Trustees (C.P.1953), 67 Ohio Law Abs. 315, 320, 52 Ohio Op. 257, 117 N.E.2d 224.
Id. at ¶ 33. The Gardner court further advised that the intent to commit the separate criminal offense may be formed during the trespass. Id., citing State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus (to be guilty of aggravated burglary, “a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass“).
{¶ 17} Based on the foregoing, it is evident that Heise‘s argument relies on an outdated version of
{¶ 18} Heise‘s first and second assignments of error are overruled.
B. Knowing, Intelligent, and Voluntary Plea
{¶ 19} In his third assignment of error, Heise argues the trial court erred in finding that his guilty рlea was knowingly, intelligently, and voluntarily made. Heise
{¶ 20} As discussed, a plea of guilty generally waives a defendant‘s right to challenge any error arising from a defect in the indictment. However, this restriction does not apply to arguments that the alleged defect caused the plea to be less than knowing, intelligent, and voluntary, or deprived the trial court of jurisdiction. State v. White, 8th Dist. Cuyahoga No. 104224, 2017-Ohio-8056, ¶ 10; Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986); State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818; Szidik, 8th Dist. Cuyahoga No. 95644, 2011-Ohio-4093; Salter, 8th Dist. Cuyahoga No. 82488, 2003-Ohio-5652.
{¶ 21} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. As the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462:
A criminal defendant‘s choice to enter a plea of guilty or no contest is a serious decision. The benefit to a defendant of agreeing to plead guilty is the elimination of the risk of receiving a longer sentence after trial. But, by agreeing to plead guilty, the defendant loses several constitutional rights. * * * The exchange of certainty for some of the most fundamental protections in the criminal justice system will not be permitted unless the defendant is fully informed of the consequences of his or her plea. Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.
{¶ 22} Within this assignment of error, Heise does not challenge the trial court‘s cоmpliance with
{¶ 23} After careful consideration, we find no merit to Heise‘s attempt to dispute the validity of his plea. As previously stated, Heise‘s challenge to his indictment relies on an outdated version of
{¶ 24} Because the indictment was not defective, its terms did not impair Heise‘s ability to enter a sufficient plea. In this case, the transcript of the plea
{¶ 25} Under the totality of these circumstances, we find no basis to conclude that Heise‘s plea of guilty was less than knowing, voluntary, and intelligent. The third assignment of error is overruled.
C. Motion to Withdraw and Ineffective Assistance of Counsel
{¶ 26} In his fourth assignment of errоr, Heise argues the trial court abused its discretion by denying his postsentence motion to withdraw his guilty plea without holding an evidentiary hearing. In his fifth assignment of error, Heise argues defense counsel rendered ineffective assistance of counsel by providing him an incorrect understanding of the law in relation to his facts. In his sixth assignment of error, Heise argues defense counsel rendered ineffective assistance of counsel by failing to object to his defeсtive indictment, which erroneously charged him with aggravated burglary under
{¶ 27}
Under
Crim.R. 32.1 , a defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice. A manifest injustice is a fundamental flaw in the proceedings that results in a miscarriage of justice or is inconsistent with the requirements of due process. State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13. This heightened standard is in place because “a defendant should not be encouraged to plead to test the potential punishment and withdraw the plea if the sentence is unexpectedly severe.” Cleveland v. Jaber, 8th Dist. Cuyаhoga Nos. 103194 and 103195, 2016-Ohio-1542, ¶ 18.
State v. Thomas, 2018-Ohio-1081, 109 N.E.3d 616, ¶ 39 (8th Dist.), citing State v. Colon, 2017-Ohio-8478, 99 N.E.3d 1197, ¶ 7 (8th Dist.).
{¶ 28} The requisite showing of manifest injustice must be based on specific facts in the record or supplied through affidavits submitted with the motion. State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 10, citing Cleveland v. Dobrowski, 8th Dist. Cuyahoga No. 96113, 2011-Ohio-6071, ¶ 14, and State v. Barrett, 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, ¶ 15. A self-serving affidavit by the moving party, in and of itself, is generally insufficient to demonstrate manifest injustice. See, e.g., State v. Passafiume, 2018-Ohio-1083, 109 N.E.3d 642, ¶ 13 (8th Dist.); Geraci at ¶ 10.
{¶ 29} The determination of whether a defendant has demonstrated a manifest injustice is left to the sound discretion of the trial court. Colon at ¶ 9, citing
{¶ 30} A trial court is not required to hold a hearing on every postsentence motion to withdraw a guilty plea. State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶ 11, citing State v. Chandler, 10th Dist. Franklin No. 13AP-452, 2013-Ohio-4671, ¶ 7. “A hearing is required only if the facts alleged by the defendant, accepted as true, would require that the defendant be аllowed to withdraw the plea.” Id.; State v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, ¶ 23. The trial court‘s decision whether to hold a hearing on a postsentence motion to withdraw a guilty plea is also reviewed for an abuse of discretion. Id.
{¶ 31} Relying on his own self-serving affidavit, Heise argued in his motion to withdraw that his plea was not knowingly, intelligently, and voluntarily made because trial counsel rendered ineffective assistance of counsel. Heise first claimed that defense counsel was ineffective for urging him tо enter the plea based on misinformation about his charges and the applicable penalties. Specifically, Heise alleged that he pleaded guilty based upon defense counsel‘s erroneous advice that
{¶ 32} Heise further argued that defense counsel rendered ineffective assistance of counsel by failing to object to the defective indictment. Heise contends that because his conduct fell “within the exclusive province of
{¶ 33} Under certain circumstances, ineffective assistance of counsel can constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g., State v. Montgomery, 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. A defendant who has entered a guilty plea can prevail on a claim of ineffеctive assistance of counsel only by demonstrating (1) deficient performance by counsel, i.e., that counsel‘s performance fell below an objective standard of reasonable representation, that caused the defendant‘s guilty plea to be less than knowing, intelligent, and voluntary; and (2) that there is a reasonable probability that, but for counsel‘s deficient performance, the defendant would not have pled guilty to the offenses at issue and would have, instead, insisted on going to trial.
{¶ 34} In this case, Heise‘s ineffective assistance of counsel claims rely extensively on his inaccurate interpretation of
{¶ 36} Nevertheless, it is unnecessary to address the competing views in this case. In this instance, Heise‘s argument concerning lesser included offenses relied on private conversations with defense counsel that are not part of the record. Thus, Heise was required to show a manifest injustice through affidavits submitted in support of his motion to withdraw. Having reviewed Heise‘s self-serving affidavit in its entirety, we find no averment relating to lesser included offenses. In fact, the affidаvit is completely devoid of any reference to alleged conversations with counsel regarding the application of
{¶ 38} Based on the foregoing, we find Heise has not alleged any facts that could reasonably support the conclusion that withdrawal of his guilty plea was necessary to correct a manifest injustice. As stated, the record reflects that Heise expressed his understanding of the charges and the potential penalties prior to entering his plea and that his plea was made knowingly, intelligently, and voluntarily. Accordingly, the trial court did not abuse its discretion in denying Heise‘s postsentence motion to withdraw his guilty plea without a hearing.
{¶ 39} Heise‘s fourth, fifth, sixth, and seventh assignments of error are overruled.
{¶ 40} Judgment affirmed.
The court finds therе were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Proсedure.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and EILEEN A. GALLAGHER, J., CONCUR
Notes
(A) No person shall enter or remain on the land or premises of another with purpose to commit on that land or those premises a misdemeanor, the elements of which involve causing physical harm to another person or causing another person to believe that the offender will cause physical harm to him.
(B) Whoever violates this section is guilty of aggravated trespass, a misdemeanor of the first degree.