STATE OF OHIO, PLAINTIFF-APPELLEE, v. ABHISHEK JAIN, DEFENDANT-APPELLANT.
CASE NO. 2-09-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
April 19, 2010
2010-Ohio-1712
OPINION
Appeal from Auglaize County Common Pleas Court Trial Court No. 2003-CR-110
Judgment Affirmed
APPEARANCES:
Dean Boland for Appellant
Edwin A. Pierce for Appellee
{1} Defendant-appellant, Abhishek Jain, appeals the August 20, 2009 judgment of the Common Pleas Court of Auglaize County, Ohio, denying his motion to withdraw his guilty plea.
{2} The record in this case reveals the facts relevant to this appeal are as follows. On September 5, 2003, Jain was indicted by the Auglaize County Grand Jury on one count of importuning in violation of
{4} According to the affidavits filed by Jain, a citizen of India who was here on a student visa, he was being detained out-of-state by the federal Immigration and Customs Enforcement (“ICE“) for possible deportation at the time he filed his motion to withdraw his guilty plea. Therefore, he filed a motion asking the trial court to order the federal government to transport him to his hearing on his motion to withdraw his plea. The trial court denied this request, stating that it was unaware of any authority it had under the Supremacy Clause of the United States Constitution to order the federal government to transport a person who was being detained by the federal government. Jain then requested that the court permit him to appear at this hearing via video conference. The court also denied this motion, citing concerns regarding jurisdiction over potential perjury and noting that Jain provided no citations to authority for such attendance.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT DID NOT GRANT MR. JAIN‘S MOTION TO WITHDRAW HIS GUILTY PLEA AS HE PLEAD GUILTY TO AN ACT WHICH IS NOT A COGNIZABLE OFFENSE.
THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT DID NOT GRANT MR. JAIN‘S MOTION TO WITHDRAW HIS GUILTY PLEA DESPITE NOT HAVING VIOLATED R.C. 2907.07.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT DID NOT GRANT MR. JAIN‘S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING HIS ADVICE TO PLEAD GUILTY IN THIS MATTER.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT FAILED TO GRANT MR. JAIN‘S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING HIS ADVICE TO PLEAD GUILTY IN THIS MATTER AS MR. JAIN WAS ENTRAPPED.
Requirements of Criminal Rule 32.1
{6} Each of Jain‘s four assignments of error challenges the trial court‘s decision to overrule his motion to withdraw his guilty plea. An appellate court will not disturb a trial court‘s denial of a motion to withdraw a guilty plea absent an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d 722, 725, 651 N.E.2d 1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. Abuse of discretion “connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore
{7}
First Assignment of Error
{9} The attempt statute makes it unlawful for a person to purposely or knowingly “engage in conduct that, if successful, would constitute or result in [an] offense.”
This section is a general attempt statute which consolidates several specific attempt provisions in former law, and, with three exceptions, establishes an attempt to commit any offense as an offense in itself. The exceptions are an attempt to commit conspiracy, an attempt to commit a minоr misdemeanor, and an attempt to commit any offense which in itself is defined as an attempt-in these cases, attempt is not an offense.
Harper, 2007-Ohio-109, at ¶ 12, citing State v. Phillips (1998), 6th Dist. No. L-97-1217, 1998 WL 290233 (vacating guilty plea and conviction because felonious
{10} In Harper, the defendant was charged with intimidation of a witness in violation of
{11} In the case sub judice, Jain was charged with importuning, a felony of the fifth degree. The relevant portion of the statute with which Jain was charged provides:
No person shall solicit another by means of a telecommunications device * * * to engage in sexual activity with the offender when the offender is eighteen years of age or older and * * * (2) The other person is a law enforcement officer
posing as a person who is thirteen years of age or older but less than sixteen years of age * * * and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of age or older but less than sixteen years of age.
{12} However, solicit does not simply mean to ask. It “means to seek, to ask, to influence, to invite, to tempt, to lead on, to bring pressure to bear.” State v. Skatzes, 104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio-6391, at ¶ 68, citing 4 Ohio Jury Instructions (2001) 573, Section 523.03(6) (this same language was incorporated into the 2009 revision of the Ohio Jury Instructions, see CR 523.03(6)). A person can attempt to influence another to engage in sexual activity, attempt to tempt another to engage in sexual activity, attempt to lead on another, and attempt to bring pressure to bear on another. Whether the person is successful in his attempts is another question, but one can most certainly try rather than merely think about it. Given the much broader definition of solicit than the one
Second Assignment of Error
{13} Jain next asserts that the trial court erred in not allowing him to withdraw his guilty plea because he did not commit the offense of importuning. More specifically, Jain alleges that the law enforcement officer with whom he was “chatting” via the internet never purported to be a minor under the age of sixteen but over the age of thirtеen during their discussions. In support of this allegation, Jain cites this Court to what he purports is a printout of the online chat he had with the officer, marked “Exhibit C” and attached to his motion to withdraw his plea, which contains no reference to the parties’ respective ages.
{14} As previously noted, the burden to establish the existence of manifest injustice is on the defendant. Smith, 49 Ohio St.2d аt paragraph one of the syllabus. Further, a motion made pursuant to
{16} The duty to provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384; see, also, App.R. 16(A)(7). Where portions of the transcript necessary for resolution of assigned errors are omitted from the record, the rеviewing court has nothing to pass upon and thus has no choice but to presume the validity of the lower court‘s proceedings and affirm. Knapp, supra. Without the ability to examine what was before the trial court in reaching its decision to deny Jain‘s motion, we cannot find that the trial court abused in discretion in finding that Jain “acknowledged in open court that he indeed did attempt to solicit whаt he thought was a 14-year-old girl, who was really an adult officer, through his efforts electronically via the computer and then telephone” and that Jain failed
Third Assignment of Error
{17} In his third assignment of error, Jain contends that the trial court erred in denying his motion because he received ineffective assistance of cоunsel. In support of this assertion, Jain maintains that counsel did not provide him with a real understanding of the conduct that constitutes the crime under the statute.
{18} “In order to prevail on a post-sentence motion to vacate that alleges ineffective assistance of counsel, a defendant is required to show that (1) his counsel‘s performance was, in fact, defiсient, and (2) there is a reasonable probability that, but for counsel‘s errors, the defendant would not have pleaded guilty and instead, would have insisted on going to trial.” State v. Wynn (1998), 131 Ohio App.3d 725, 729, 723 N.E.2d 627.
{19} Once again, this Court does not have a transcript from any of the hearings in this case. Therefore, we have no evidence to review in order to determine whether Jain‘s original counsel‘s performance was deficient and/or whether there was a reasonable probability that, but for these perceived errors, Jain would not have pleaded guilty. Thus, we presume regularity in the trial court‘s proceedings and find that the trial court did not abuse its discretion in denying
Fourth Assignment of Error
{20} Jain asserts in his fourth assignment of error that the trial cоurt erred in overruling his motion to withdraw his guilty plea because he received ineffective assistance of counsel in advising him to plead to this offense when he was entrapped by law enforcement into committing the offense. However, the State maintains in its brief to this Court that Jain did not raise this issue in the trial court and is precluded from doing so for the first time on appeal.
{21} In his brief to this Court, Jain does not state that he raised and argued this issue before the trial court.4 Further, he has failed to reference where in the record he raised this issue as required by App. R. 16(A)(3), (7). In addition, our review of Jain‘s motions to withdraw his guilty plea and supplements thereto reveals that the defense of entrapment was never raised as a basis for claiming ineffective assistance of counsel to support Jain‘s motion to withdraw. Rather, the grounds provided by Jain to support his motion to withdraw were that attempted importuning was not a cognizable offense and that defense counsel was ineffective for recommending that he plead guilty when there was no evidence regarding the
{22} We have previously held “that a defendant may not bring up an issue for the first time on appeal.” State v. Harmon, 3rd Dist. No. 8-04-01, 2004-Ohio-4012, ¶ 16. Thus, a defendant‘s failure to raise an issue before the trial court “operates as a waiver of his right to assert it for the first time on appeal.” Hypabyssal, Ltd. v. Akron Hous. Appeals Bd. (2000), 9th Dist. No. 20000, 2000 WL 1729471, citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E. 830, 1993-Ohio-49. See also App.R. 12(A)(2); App.R. 16(A)(7).
{23} Again, this Court does not have a transcript from any of the hearings in this case. As such, we have no way of knowing whether this issue was raised in the trial court at the hearing on the motion to withdraw. Accordingly, we may disregard this assignment of error pursuant to App.R. 12(A)(2). Nevertheless, even if the issue were raised in the trial court, we have no evidence to review in order to determine whether Jain‘s original counsel‘s performаnce was deficient and/or whether there was a reasonable probability that, but for these perceived errors, Jain would not have pleaded guilty. Thus, we presume regularity in the trial court‘s proceedings and overrule the fourth assignment of error.
Judgment Affirmed
PRESTON, J., concurs.
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ROGERS, J., concurring separately.
{26} I concur with the majority on assignments of error numbers two, three, and four. As to assignment of error number one, I concur with the result, but not the logic. I think the majority has failed to strictly interpret the statute against the state as required by
{27} However, under the facts of this case I would find that the perceived manifest injustice is outweighed by the doctrine of finality of judgments. The Ohio Supreme Court has addressed this doctrine in civil cases.
A claim under Civ.R. 60(B) requires the court to carefully consider the two conflicting principles of finality and perfection. In Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144-145, 24 OBR 362, 364, 493 N.E.2d 1353, 1356, this court declared, “[f]inality requires that there be some end to every lawsuit, thus producing certainty in the law and public confidence in the system‘s ability to resolve disputes. Perfection requires that every case be
litigated until a perfect result is achieved. For obvious reasons, courts have typically placed finality above perfection in the hierarchy of values.” Finality is particularly compelling in a case involving determinations of parentage, visitation and support of a minor child.
Strack v. Pelton (1994), 70 Ohio St.3d 172, 175.
{28} It is reasonable that the same principle apply in criminal cases, especially when a great deal of time has passed since the alleged injustice and where the defendant knowingly accepts a negotiated plea deal to avoid a felony conviction. See State v. Reynolds, 79 Ohio St.3d 158, 162, 1997-Ohio-304; State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, ¶ 12; State v. Hall, 8th Dist. No. 90972, 2008-Ohio-5351, ¶ 13 (discussing the need for finality in criminal cases). Here, the Appellant has been satisfied with the result reached in his criminal case for five and one-half years. Now he apparently finds himself confronted with an unintended result, at least from his perspective; his immigration status is at risk. However, I note that he withdrew the argument that the trial court had failed to advise him at the time of his plea of the potential effect on his immigration status. Therefore, the Appellant wаs aware of the possibility of this happening and accepted that risk at the time of the plea. Had this motion come before the trial court within a more reasonable time, I might reach a different result, but, under the circumstances of this case, I find the motion to be untimely in view of the doctrine
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