State v. JonesState v. Jones
Rendered on March 11, 2010
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Yavitch & Palmer Co., L.P.A., and Mickey Prisley, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Lavelle C. Jones, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a plea of guilty, of kidnapping with repeat violent offender (“RVO“) specification, in violation of
{¶2} On December 13, 2008, appellant entered a tanning salon with what appeared to be a handgun, which was actually a BB gun, and demanded money from the
{¶3} On December 23, 2008, appellant was indicted on one count of kidnapping, with RVO specification (based upon a 1984 conviction for rape), a felony of the first degree; one count of robbery, with RVO specification, a felony of the second degree; and one count of robbery, with RVO specification, a felony of the third degree. On December 26, 2008, appellant entered a plea of not guilty.
{¶4} On June 2, 2009, appellant appeared before the court to change his plea. The state indicated that appellant would be pleading guilty to the indictment, except as to the RVO specifiсation with regard to the third-degree robbery. The state indicated that the RVO specification could only apply to a second-degree felony or higher and, therefore, the state was moving to dismiss the RVO specification as to the third-degree robbery. The court questioned whether the RVO specifications were valid, and appellant claimed they were unconstitutional because it took the sentencing discretion from the court. The court allowed appellant tо plead guilty to the indictment, but the parties could brief the specification issue at the sentencing hearing.
{¶5} After the state recited the facts of the case, the trial court stated it had a “problem” with the kidnapping charge because the facts indicated that the victim was
{¶6} At the sentencing hearing on June 23, 2009, the prosecutor stated that sentencing for the RVO specification for the second-degree felony robbery was not possible because the indictment had not alleged actual or threatened serious physical harm, but that the RVO specification was still appropriate on the first-degree felony kidnapping count. The trial court indicated that appellant had filed a motion to dismiss the RVO specification based upon constitutionality, but it did not consider the motion a motion to withdraw his plea, and appellant agreed it was not seeking to withdraw the plea.
{¶8} The trial court then indicated that it would proceed with sentencing. At that point, appellant‘s counsel moved to withdraw appellant‘s guilty plea, asserting that he had been ineffective in his representation of appellant, although counsel admitted he would nоt be seeking withdrawal of the plea if the legal rulings would have been in appellant‘s favor. The trial court denied the motion, finding that appellant should have sought to withdraw his plea before the legal rulings, and there was no basis to withdraw a plea based upon a legal determination. The trial court proceeded to sentencing. The court found the two robbery counts merged and imposed the following terms of imprisonment: ten years for the kidnapping with an additional five years for the accompanying RVO specification, and four years for the second-degree robbery count, with all sentences to be served consecutively, for a total of 19 years. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
[I.] The trial court erred to the prejudice of appellant by denying appellant‘s motion to withdraw his guilty plea prior to sentencing.
[II.] Appellant‘s guilty plea was not given knowingly, voluntarily, and intelligently, in that trial counsel rendered ineffective assistance of counsel in violation of appellant‘s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16 Article I of the Ohio Constitution.
{¶9} We will address appellant‘s assignments of error together, as there is some overlap in the arguments in support thereof. Appellant argues in his first assignment of error that the trial court erred when it denied his motion to withdraw his guilty plea. Appellant argues in his second assignment of error that his trial сounsel rendered ineffective assistance. Crim.R. 32.1 allows a defendant to file a motion to withdraw a guilty plea prior to sentencing. Generally, such a motion is to be treated with liberality. State v. Xie (1992), 62 Ohio St.3d 521, 526, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223. However, the right to withdraw a guilty plea is not absolute, and this court will not reverse a trial court‘s denial of such a motion absent an abuse of discretion. Xie at 527. An abuse of discretion implies that the trial court‘s decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶10} In reviewing a trial court‘s decision regarding a defendant‘s pre-sentence motion to withdraw a guilty plea, we are required to weigh a number of non-exhaustive factors. These factors include: (1) whether the prosecution would be prejudiced if the plea were vacated; (2) whether the offender was represented by highly competent counsel; (3) the extent of the Crim.R. 11 hearing; (4) whether there was a full hearing on the motion to withdraw the offender‘s guilty plea; (5) whether the trial court gave full and fair consideration to thе motion; (6) whether the motion was made within a reasonable
{¶11} With regard to the first consideration, whether the prosecution would be prejudiced if the plea were vacated, there is no evidence that the state would have been prejudiced if appellant had been permitted to withdraw his guilty plea, beyond the ordinary impact of any defendant‘s subsequent withdrawal of a guilty plea. A withdrawal would not have affected the state‘s prosecution of appellant or affected any of the evidence in the case.
{¶12} With regard to the second consideration, whether the offender was represented by highly competent counsel, we find appellant‘s counsel was competent. This issue also relates to appellant‘s second assignment of error, in which he argues his counsel rendered ineffective assistance. It is well-established that, in order to prevail on a claim of ineffective assistance of counsel, appellant must demonstrate that trial counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied upon as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064. The standard оf proof requires appellant to satisfy a two-pronged test. First, appellant must show that counsel‘s representation fell below an objective standard of reasonableness. Second, appellant must show by a reasonable probability that, but for counsel‘s perceived errors, the results of the proceeding would have been different. Id. Further, in Ohio, a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153, 156.
{¶14} We disagree with appellant‘s arguments. First, with regard to whether he was fully informed of the nature of the charges against him, the maximum potential penalty, and the effect of his guilty plea, the trial court fully explained these issues to appellant. After a lengthy discussion with counsel surrounding the legal questions regarding the RVO specifications, and the “safe place unharmed” issue with respect to the kidnapping offense, the trial court explained to appellant the maximum possible penalties for the offenses and specifically cautioned him several times that they were subject to the outcome of the legal issues to be discussed at the sentencing hearing. The trial court gave appellant the “worst case scenario” for sentencing, indicating that they did not yet know the outcome of the RVO and kidnapping issues. Appellant told the judge that he understood the legal issues that had just been discussed and he was satisfied with his lawyer‘s representation. Thus, we do not find any ineffective assistance of counsel in this respect.
{¶16} Notwithstanding, even if appellant‘s counsel was defective for the cited reasons, as explained above, appellant must also show by a reasonable probability that, but for counsel‘s perceived errors, the results of the proceeding would have been
{¶17} The third consideration in reviewing a trial court‘s decision regarding a defendant‘s pre-sentence motion to withdraw a guilty plea is the extent of the Crim.R. 11 hearing. Here, the trial court held a full and thorough plea hearing. The trial court addressed appellant personally, and appellant made it perfectly clear that he was making the plea voluntarily, understood the nature of the сharges and of the maximum penalty involved, understood the effect of the plea of guilty, that the court could proceed with judgment and sentence, and that he was waiving rights to a jury trial and the accompanying jury trial protections. As explained above, appellant indicated to the court that he thought about having a trial, but decided it was not a “fight” he wanted to take on. Appellant also expressed that he thought his only choice was to plead guilty because of his оther pending charges, but the court explained that it would not accept the plea if appellant believed he had no choice. Appellant then stated that he meant he did not want to have a trial, so the plea was his voluntary action. The trial court informed appellant of the maximum prison terms for the counts. The trial court also acknowledged that certain legal issues remained to be resolved at the time of sentencing.
{¶18} With regard to the fourth and fifth considerations, whether there was a full hearing on the motion to withdraw the offender‘s guilty plea and whether the trial court gave full and fair consideration to the motion, the trial court conducted a complete inquiry into the grounds for appellant‘s motion to withdraw and gave fair consideration of such. Although appellant contends there was no hearing on the motion to withdraw his guilty plea, the trial court did entertain appellant‘s oral motion prior to sentencing. Appellant‘s
{¶19} With regard to the sixth сonsideration, whether the motion was made within a reasonable time, it is true that Crim.R. 32.1 allows a defendant to file a motion to withdraw a guilty plea prior to sentencing. However, the trial court‘s concern was the timing of appellant‘s motion in light of the legal rulings it made. At the sentencing hearing, the trial court noted that the legal issues relating to the RVO and kidnapping offense were raised at the change of plea hearing, and if appellant had wanted to withdraw the plea he should have done so prior to the trial court‘s ruling on the legal issues at the sentencing hearing. Indeed, the trial court questioned appellant‘s counsel at the beginning of the sentencing hearing regarding his motion to dismiss the RVO specification and asked if appellant was withdrawing his plea, to which appellant‘s counsel responded “no.” Appellant‘s counsel also admitted that, but for the adverse legal rulings, he would not be moving to withdraw the plea. Therefore, it is clear that appellant strategically waited until obtaining a ruling on the legal issues before moving to withdraw his plea, which the trial court found was belated.
{¶20} With regard to the seventh consideration, whether the motion set forth specific reasons for the withdrawal, appellant‘s counsel did set forth such reasons. Appellant‘s counsel indicated he wished to withdraw the guilty plea because he had been
{¶21} With regard to the eighth consideration, whether the accused understood the nature of the charges and possible penаlties, we already discussed this issue above and found that the trial court fully informed appellant of the possible penalties and the nature of the charges before him, and appellant indicated he understood both.
{¶22} The ninth consideration is whether the accused was perhaps not guilty or had a complete defense to the crime. Appellant admitted at both the plea hearing and the sentencing hearing to all of the facts underlying the offenses. Appellant statеd to the trial court that he saw the victim was working alone in the tanning salon, and he needed money. He walked into the salon holding a BB gun to his side that looked like a handgun. He told her to give him the money out of two cash registers and, after she did so, he asked her to show him the backdoor. She walked him to the backdoor, and he asked, ” ‘Are you ready?’ ” She asked ” ‘Ready for what?’ ” Appellant responded, ” ‘For you to go and call the police and for me to leave.’ ” Appellant then left the building. Furthermore, police had a GPS unit attached to appellant‘s vehicle at the time and were able to determine appellant‘s vehicle was parked behind the shopping center for about 30 minutes at the time of the crime. The prosecutor added that, when the police pulled over appellant‘s vehicle immediately after the crime, appellant was still wearing all black, which was what he was wearing in the surveillance video from the salon, still had the BB gun,
{¶23} After considering the above factors, we find the trial court did not abuse its discretion when it denied appellant‘s motion to withdraw his guilty plea. All of the pertinent factors discussed fall in favor of finding that the trial court did not abuse its discretion when it denied appellant‘s motion to withdraw his guilty plea. Key factors were that the trial court informed appellant of the maximum possible penalties and explained these were subject to resolution of the legal issues at the sentencing hearing; appellant indicated he understood the charges and possible penalties; appellant‘s trial counsel was not ineffective; the trial court considered the parties’ arguments regarding appellant‘s motion to withdraw his plea; and it was clear appellant was guilty of the crimes. Given these circumstances, we cannot find the trial court abused its discretion when it denied appellant‘s motion to withdraw its guilty plea. Therefore, appellant‘s first and second assignments of error are overruled.
{¶24} Accordingly, appellant‘s first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and McGRATH, JJ., concur.
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