State v. JensenState v. Jensen
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
SINGER, J.
Introduction
{¶ 1} Appellant, David Jensen, appeals from the January 16, 2018 judgment of the Lucas County Court of Common Pleas, where he was sentenced to five years of incarceration after pleading guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to two counts of gross sexual imposition. For the reasons that follow, we affirm the trial court judgment.
{¶ 2} On February 14, 2017, appellant was indicted on four counts of rape in violation of
{¶ 3} On November 15, 2017, appellant pleaded guilty pursuant to Alford to the two lesser counts of gross sexual imposition.
{¶ 4} At the hearing, the plea terms were read into the record, and the trial court proceeded with its colloquy pursuant to
{¶ 5} A plea form was submitted in which appellant pleaded to Count Nos. 5 and 6, and confirmed that he understood the maximum penalty was 10 years of nonmandatory prison time. It further states appellant understood the nature of the charges, was satisfied with his attorney‘s advice, was not intoxicated, waived his constitutional rights, and that no threat or off-the-record promise had been made for the exchange of his plea. It reflects that the parties agreed to a five-year sentence, and that appellee agreed not to seek prosecution on additional victims and to nolle the remaining counts at sentencing.
{¶ 7} Soon after the plea hearing appellant began to file pro se motions, although he was still represented by appointed counsel. He filed nine motions, including two to change his plea.
{¶ 8} On January 10, 2018, the trial court held its hearing to both address the pro se motions and to sentence appellant.
{¶ 9} With respect to the pro se motions, the trial court struck all nine because appellant was represented by counsel and hybrid representation is prohibited. The court also reevaluated its plea colloquy and appellant‘s responses from the November 15, 2017 hearing in which appellant entered his Alford plea. The court stated as follows:
The court has reviewed, went into great detail to review all of that about the voluntary decision tо make and change his plea, and clearly the record shows that there was no threat. There was no disagreements between himself and Counsel, and in fact he had indicated that he has no objection to the way Counsel explained things, what was happening, throughout the case, development of the case up to that point, and that he understood everything going on and that he did in fact intend to enter the plea.
{¶ 11} The journal entry indicates the court referred to “the Court Diagnostic and Treatment Center for a HB 180 screen,” and that the diagnostic and treatment report was authored and dated December 20, 2017. The court confirmed that after considering the report appellant was to be classified and maintain registration as a sexually oriented offender. Appellant timely appeals from the January 16, 2018 judgment.
Assignments of Error
{¶ 12} Appellant sets forth the following assignments of error:
- THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ACCEPTING A GUILTY PLEA WHICH WAS NOT MADE KNOWINGLY OR VOLUNTARILY, IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
- THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS PRO SE MOTION TO WITHDRAW HIS PLEA.
{¶ 13} Appellant first asserts his plea was not made knowingly or voluntarily. Appellee contends the plea was made knowingly and voluntarily.
{¶ 14}
* * * (C) Pleas of guilty and no contest in felony cases. * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first аddressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to
prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
See
{¶ 15} The underlying purpose of
{¶ 16} For nonconstitutional rights, strict adherence to
{¶ 17} Here, appellant argues that his plea did not conform to
{¶ 19} “The A.W.A. is unconstitutional as applied to any sex offender who committed the underlying sex offense before the A.W.A‘s 2008 enactment.” See, e.g., State v. Cruea, 2d Dist. Miami No. 2012 CA 2, 2012-Ohio-5209, ¶ 22, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
{¶ 20} In Cruea, for instance, Cruea was convicted of rape which was found to have occurred between 1987 and 1994. Id. The trial court incorrectly classified Cruea as a sex offender under the Adam Walsh Act (A.W.A.). Id. The appellate court reversed, and held that plain error existed because “Cruea should have been classified under Megan‘s Law” due to the dates of the commission of the crime. Id.
{¶ 21} Appellant here must be classified under Megan‘s Law (House Bill 180) because he was alleged to have committed the relevant crimes in 1992. Under Megan‘s Law, the sеx-offender consequences were civil and remedial in nature. Strong, supra. They were not a mandatory part of the
{¶ 22} We note that the trial court mentioned “HB 180,” “House Bill 180 screening” and “House Bill 180 requirements,” and addressed “the three types of offenders [appellant] will be screened for,” that appellant or his counsel did not seek
{¶ 23} Accordingly, the first assignment of error is not well-taken.
Second Assignment of Error
{¶ 24} Appellant next asserts the trial cоurt abused its discretion by denying appellant‘s motion to withdraw his plea. Appellee contends the trial court did not abuse its discretion.
{¶ 25}
{¶ 26} “[A] presentence motion to withdraw a guilty plea should be freеly and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing.” Id. “Therefore, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal
{¶ 27} We review a
{¶ 28} We specifically analyze the circumstances surrounding the motion pursuant to these nine factors:
(1) whether the state would be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the crime.
See State v. Richey, 6th Dist. Sandusky No. S-09-028, 2011-Ohio-280, ¶ 43.
(1) Prejudice to prosecution‘s case.
{¶ 29} Appellant generally argues the factors weigh in favor of vacating the plea.
{¶ 30} Appellee specifically argues that its case would be prejudiced because “it would have to assemble witnesses and evidence for a case in which the crimes occurred
{¶ 31} Nevertheless, we find these cases are distinguishable. Most notably, we find in both cases our concern under this factor was the accuracy of testimonial evidence to be given.
{¶ 32} In both Strong and Baumgartner, the prosecution was dealing with criminal events which had occurred within months or a few years of when trial would have taken place, had the pleas been withdrawn. The obvious rationale was that the prosecution‘s race against time in these cases to produce competent witnesses and evidence would be prejudiced by having to reassemble witnesses and have them recall fading memories. Strong at ¶ 30-31; Baumgartner at ¶ 14.
{¶ 33} In this case, however, we find the prosecution involved criminal events which were alleged to have occurred in May 1992. Appellant was not indicted in this matter until February 14, 2017. That is almost 25 years between the events and indictment. Appellant‘s plea was entered in on November 15, 2017, and he sought to withdraw it on November 28, and December 26, 2017, and again at the January 10, 2018 sentencing hearing. After 25 years, memories must have been sufficient for appellee to proceed to an indictment, and an additional few months or even a year or two would not have prejudiced appellee‘s case.
(2) Competency of defense counsel.
{¶ 35} Appellant argues his counsel was ineffective for failing to inform him about his sex offender consequences before his plea. Appellee contends the record demonstrates appellant‘s counsel was highly competent.
{¶ 36} This factor is analyzed like an ineffective assistance claim. See Strong, 6th Dist. Wood No. WD-08-009, 2009-Ohio-1528, at ¶ 32. “[I]n order to prove that trial counsel is ineffective, a defendant must demonstrate counsel‘s performance was deficient and that deficient performance prejudiced the defense[]” and “affected whether the defendant made a knowing and voluntary plea.” State v. Doak, 7th Dist. Columbiana Nos. 03CO15, 03CO31, 2004-Ohio-1548, ¶ 3; State v. Romero, Slip Opinion No. 2019-Ohio-1839, ¶ 18.
{¶ 37} The November 15, 2017 transcript in this case reflects that at the plea hearing counsel informed appellant to the extent possible and in light of counsel‘s limited information about the possibility and extent of sex offender consequences. At the opening of the hearing сounsel acknowledged to the court that appellant was “aware that the Court needs to refer this matter to Court Diagnostic and Treatment Center for purposes of this evaluation and that may delay sentencing for four to six weeks.” The trial court subsequently suggested appellant resolve with counsel any “questions” he may
{¶ 38} We cannot say the record supports defense counsel breached an essential duty to appellant‘s prejudice.
(3) Extent of Crim.R. 11 colloquy and (8) understanding of charges and penalties.
{¶ 39} Appellant argues he was not afforded an opportunity to understand the charges and penalties because the trial court did not provide a full
{¶ 40} In Strong, we addressed the same argument appellant asserts here. See Strong, 6th Dist. Wood No. WD-08-009, 2009-Ohio-1528, at ¶ 39-41. We rejected it, recognizing that no legal authority supported that “a discussion of the of
{¶ 41} Additionally, based on the trial cоurt‘s extensive explanation of constitutional and nonconstitutional rights to appellant in open court, we find appellant was provided a full
{¶ 42} When evaluating these factors, we note “[t]he scope of a hearing on an appellant‘s motion to withdraw his guilty plea should reflect thе substantive merits of the motion.” State v. Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 21.
{¶ 43} As an example, in Hartman we held that these factors weighed in favor of Hartman. Id. at ¶ 23. We recognized that the Hartman trial court conducted an extensive hearing on the substantive merits of Hartman‘s motion to withdraw his plea. We noted that the trial court allowed arguments from both sides, and that Hartman and his counsel were personally questioned. Id. at ¶ 21. Despite the “extensive hearing,” we took issue with the Hartman trial court‘s “undue emphasis” on the age of the case, which we determined overshadowed the court‘s consideration of the merits of Hartman‘s motion. Id. at ¶ 22.
{¶ 44} Initially, we notе appellant‘s November 28 and December 26, 2017 pro se motions were properly stricken from the record by the trial court.
{¶ 45} With respect to the January 10, 2018 oral motion made at sentencing, we review the transcript to determine the extent of the hearing and whether the court gave full and fair consideration. The transcript reflects as follows:
THE DEFENDANT: Do I get to anything to say?
THE COURT: You do, and it is exactly that time. So that is perfect timing, sir. Mr. Jensen, you have a right to allocution before sentencing. Anything you would like to say today prior to sentencing?
THE DEFENDANT: Yes, Your Honor. Still according to Criminal Rule 32.1 I can change my plea at any time, and I am invoking that rule. I would like to change this plea because it is not in my best interest. Because had Prosecution the (sic) followed through on their responsibility to provide me with evidence that is in my favor they would have found through extensive address verification not even the mother, the father, nor these alleged victims ever lived at 741 Woodville Road, in May, June 1992.Therefore, no crime could havе occurred or has occurred in your jurisdiction. I have been fighting on that. Mr. Popil, I have told him several times since April of 2017 (sic) never put forth my alibi * * *.
{¶ 46} After additional exchanges in which, among others, appellant explained to the court that he always disputed the location of the alleged crimes, he also stated he had expressed his concern with counsel and that counsel had not properly raised his concern. Appellant said it would have been impоssible to speak through his lawyer, as he claimed his counsel refused to speak.
{¶ 47} The exchange between the court and appellant finished as follows:
THE DEFENDANT: Other than that I would like to stick to Criminal 32.1 and withdraw my plea. I would take this to jury trial and prove jurisdiction.
THE COURT: Motion denied. And I will stand by the denial of the motion once again.
{¶ 48} After the court made this ruling, the state mentioned how it would be able to prove where the events occurred. We find appellant had an opportunity to bе heard, and that the court below gave full and fair consideration to appellant‘s motion.
{¶ 49} Accordingly, the third and eighth factors weigh in favor of affirming the denial of appellant‘s motion to withdraw his plea.
(6) Timing of motion to withdraw plea.
{¶ 50} Appellee recognizes appellant‘s initial pro se motion to withdraw his plea occurred only 13 days after the plea was entered.
{¶ 51}
{¶ 52} Here, appellant‘s plea was entered on November 15, 2017. His written motions, which were properly stricken from the record, were filed on November 28 and December 26, 2017. We do not consider these motions for purposes of this analysis. Appellant also moved to withdraw his plea at sentencing on January 10, 2018. Because this oral motion was made before being sentenced, albeit at the absolute last possible moment, we cannot say this factor weighs against withdrawing the plea.
{¶ 53} Appellant argues his motion to withdraw his plea “should have been granted by the trial court to correct inconsistencies in the State‘s evidence as to where the alleged acts occurred.” Appellee argues appellant had an impermissible change of heart.
{¶ 54} “Withdrawal of a plea will not be permitted merely because a defendant has experienced a change of heart.” Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715, at ¶ 6, citing State v. Posey, 6th Dist. Ottawa No. OT-12-028, 2014-Ohio-1994, ¶ 9.
{¶ 55} Here, our review of the written and oral motions madе to the trial court reveal appellant argued to withdraw his plea to challenge jurisdiction and present other objections, which he argued were possible because of an alibi and impossibility that the alleged location was a crime scene. We however cannot say this was a reason to withdraw his plea, because the record demonstrates that he considered this before entering his plea.
{¶ 56} Specifically, at a May 3, 2017 hearing, apрellant, his counsel, the prosecutor, and the court all engaged in discussion about how venue was a potential issue, as follows:
THE COURT: All right. What‘s the status, Mr. Popil [defense counsel]?
[COUNSEL]: Your Honor, the Defense is requesting a trial date be set. I have had extensive discussions with the State regarding this. There may be further developments in terms of perhaps having the matter actually
proceed in a different jurisdiction, Wood County. The investigator is checking on that. So if we could set a trial date I will let the Court know whether the matter will proceed within probably a month or so.
[PROSECUTOR]: That is correct, Your Honor. It is the State‘s understanding the only element in question is venue regarding this case. So the State believes it was in Lucas County. However, the Defendant is alleging that it happened in Wood County.
So I will talk to Wood County, and if he wants to be convicted in Wood County we can make that happen.
THE COURT: I won‘t be so presumptuous that that is going to happen. Let‘s back up.
THE DEFENDANT: Railroad job.
[COUNSEL]: There are other elements we are contesting other than just venue, but venue is the main element at this point.
THE COURT: Can we simply say venue is an issue and leave it at that?
{¶ 57} Additionally, at the November 15, 2017 plea hearing, the trial court explained to appellant that the state would have to prove each and every element of the crime beyond a reasonable doubt, and the state subsequently noted that it would show
{¶ 58} Yet appellant pleaded pursuant to Alford, despite these open court dialogues. We cannot say the issue of where the crimes happened was not considered by him prior to entering his Alford plea. This supports that appellant experienced a change of heart.
{¶ 59} As an additional consideration we note how the trial court discussed and explained the nature of the Alford plea to appellant:
THE COURT: This plea as Mr. Popil [(defense counsel)] I am sure already told you is a sрecialized plea. It is called a guilty plea, but it is being done pursuant to a case called North Carolina versus Alford. It is where you maintain your innocence on your original charges as they are contained in the indictment. This was a six count indictment, but you enter pleas of guilty to lesser charges to limit the exposure that you have on sentencing.
As we discussed earlier the first four counts of the indictment are mandatory sentences with sentencing ranges of anywhere from 2 to 10 years. On this plea with Counts 5 and 6 the sentencing range, the maximum is 5 years on each sentence, so a total of 10 years of incarceration.
I will go over this more in detail in a minute, but that there greatly reduces your exposure as to Counts 1 through 4, and that is the purpose of a plea of guilty by way of North Carolina versus Alford, to accept responsibility even though you maintain your innocence yet not be exposed to the more serious sentencing options. Do you undеrstand that? THE DEFENDANT: Yes, sir.
THE COURT: Is that the discussion you have had with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that generally how he explained it as well?
THE DEFENDANT: Yes.
{¶ 60} Based on this exchange, we find appellant confirmed he understood that the trial court was accepting his Alford plea, regardless of whether he was ever guilty of the crimes as charged. Accordingly, and in consideration of these highlighted circumstances, this seventh factor weighs in favor of affirming the denial of appellant‘s motion to withdraw his plea.
(9) Obvious guilt or potential defense.
{¶ 61} As noted above, appellant argues that his motion to withdraw his plеa should have been granted because of inconsistencies in evidence, a potential alibi, and an issue related to an incorrect location of the alleged crimes. Appellee argues there is nothing in the record to demonstrate that appellant has a viable defense. We agree.
{¶ 62} Conclusion
{¶ 63} Appellant‘s two assignments of error are found not well-taken and are denied. The January 16, 2018 judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Gene A. Zmuda, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.