State v. JohnsonState v. Johnson
For Plaintiff-Appellant: ROBERT L. SMITH, Assistant Prosecuting Attorney, 27 North Fifth Street, Zanesville, Ohio 43701
For Defendant-Appellee: GREGORY E. CARTER, 21 East Church Street, Newark, Ohio 43055
OPINION
{¶1} Plaintiff-appellant, State of Ohio, appeals from the February 13, 2009, Journal Entry of the Muskingum County Court of Common Pleas granting the Motion to Withdraw Guilty Plea filed by defendant-appellee Jeremy Johnson.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 28, 2007, the Muskingum County Grand Jury indicted appellee on one count of trafficking in drugs (crack) in violation of
{¶3} On May 21, 2007, appellant filed a Motion to Suppress Evidence, seeking the suppression of physical evidence seized as a result of the warrantless search of his
{¶4} Thereafter, on July 24, 2007, appellee withdrew his former not guilty plea and entered a plea of guilty to all of the charges in the indictment with the exception of the charge of possession of drugs (ecstasy) in violation of
{¶5} On November 9, 2007, appellee filed a Motion to Withdraw Guilty Plea and “correct the manifest injustice that has occurred.” Appellee, in his motion, alleged that, after his sentencing, he discovered that a key witness against him “was under an ongoing [federal] investigation related to dishonesty and abuse of his office as a police officer.” Appellant, in his motion, alleged that “[t]he credibility of government witness was key to the prosecution of this matter and their veracity was at the very core of the resolution of the suppression issues raised below.” Appellant further alleged that had he known that an officer involved in his prosecution “was lying and abusing his office for his own gain,” he would not have entered a plea.
{¶6} A hearing on appellee‘s motion was held on January 28, 2008. During the hearing, facts were developed that suggested that possibly, as early as June, 2007, a federal undercover investigation commenced into the activities of two (2) Zanesville Police Officers, (Beck and Fusner), and that civilian informants as well as Muskingum County Sheriffs Deputies were being employed in an undercover investigation. Appellee alleged that this investigation would have been ongoing at the time of the
{¶7} The trial court directed the parties to brief the following question:
{¶8} “Whether the fact of an investigation into criminal activity of one or more of the State‘s witnesses, although unknown to the prosecutor at the time of the suppression hearing, by federal authorities with the cooperation and assistance of the Muskingum County Sheriffs Department, is imputable to the State of Ohio, for purposes of
Thereafter, the parties submitted written memoranda and supplements thereto.
{¶9} Pursuant to a Journal Entry filed on February 13, 2009, the trial court granted appellee‘s Motion to Withdraw Guilty Plea.
{¶10} On February 19, 2009, appellant filed a request for written findings of fact and conclusions of law. The trial court denied such motion.
{¶11} Appellant now raises the following assignment of error on appeal:
{¶12} “THE TRIAL COURT ERRED WHEN IT PERMITTED THE DEFENDANT TO WITHDRAW HIS GUILTY PLEAS.”1
{¶13} Appellant, in its sole assignment of error, argues that the trial court erred in granting appellee‘s Motion to Withdraw his guilty plea.
{¶14}
{¶15} Furthermore, a trial court maintains discretion in determining whether a defendant established a “manifest injustice.” Id., at paragraph two of the syllabus. As such, this Court will not reverse a trial court‘s decision absent an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d 722, 725, 651 N.E.2d 1044. An abuse of discretion suggests a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. After a review of the record, we find that the trial court did not abuse its discretion when it granted appellee‘s motion to withdraw his guilty pleas.
{¶17} The trial court, in granting appellee‘s motion to withdraw his guilty pleas, did not set forth its reasons for the same. However, it is well settled that
{¶18} In the absence of findings of fact and conclusions of law, a reviewing court will presume regularity in the trial below and assume the trial court followed the proper application of the rules of evidence and procedure in arriving at the decision. See Cox v. Cox (1929), 34 Ohio App. 192, 170 N.E. 592; Pettet v. Pettet (1988), 55 Ohio App.3d 128, 562 N.E.2d 929
{¶19} Ultimately, it is within the sound discretion of the trial court to evaluate the credibility and weight of the movant‘s assertions. State v. Smith (1977), 49 Ohio St.2d at 264, 361 N.E .2d 1324. The trial court had before it all of the information presented both at the oral hearing and through the written brief submitted post-hearing and apparently gave great weight to the arguments of appellee. We will not second-guess the trial court‘s credibility and weight determinations.
{¶20} Furthermore, a review of the record indicates that appellant filed a transcript of the January 28, 2008, hearing on his Motion to Withdraw Guilty Plea but did so untimely and without leave of court. The record indicates transmission of the transcript in the case sub judice was due on April 2, 2009. However, the transcript was
{¶21} We find no evidence of an abuse of discretion in the trial court‘s granting of appellee‘s motion to withdraw his guilty pleas.
{¶22} Appellant‘s sole assignment of error is, therefore, overruled.
{¶23} Accordingly, the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Edwards, J.
Farmer, P.J. and
Gwin, J. concur
JUDGES
JAE/d0604
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES