State v. JonesState v. Jones
Rendered on March 10, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Argued: Laura R. Swisher
On brief: David K. Greer, for appellant. Argued: David K. Greer
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Marnell D. Jones, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to guilty plea, of two counts of felonious assault and one count of kidnapping. Because the trial court abused its discretion in denying appellant‘s presentence motion to withdraw his guilty plea, we reverse.
I. Facts and Procedural History
{¶ 2} By indictment filed December 23, 2013, plaintiff-appellee, State of Ohio, charged appellant with 8 counts of kidnapping, in violation of
{¶ 3} On October 6, 2014, appellant and his codefendant Obryan Jones appeared at a hearing with counsel on the scheduled trial start date. The state informed the trial court of its offer of a plea agreement of guilty pleas to two counts of felonious assault, second-degree felonies, one count of kidnapping, a first-degree felony, and one three-year firearm specification, with no agreement as to sentence. Counsel for both appellant and Obryan Jones requested a continuance because, up until the morning of the scheduled trial start date, all four codefendants were to be tried together and counsel for all four codefendants had worked together to formulate a trial strategy. However, on the morning of October 6, 2014, the state informed defense counsel that codefendants Coffman and Hudson had accepted plea agreements from the state, and Coffman intended to testify for the prosecution against both appellant and Obryan Jones. Appellant‘s counsel informed the trial court he did not feel prepared to try the case because he had no time to prepare for Coffman as a state‘s witness, and the trial strategy had included Hudson‘s counsel conducting the voir dire. Based on these changed circumstances, appellant‘s counsel stated, “I do not feel that I am competent as an attorney who‘s tried hundreds of cases over 40 years to do the kind of job that my client deserves.” (Oct. 6, 2014 Tr. 9.) Appellant‘s counsel further stated, “I believe that justice is being denied my client and will be denied [Obryan Jones] if we had to go to trial today. * * * And I want the Court of Appeals to understand that‘s my professional opinion.” (Oct. 6, 2014 Tr. 11.) The state opposed the continuance, arguing its theory of the case had not changed. Appellant‘s counsel then reiterated, “I just want the record to reflect that I am confident that I am not prepared to try this case today.” (Oct. 6, 2014 Tr. 14.) The trial court denied the request for a continuance but recessed the case until that afternoon.
{¶ 4} When appellant and his counsel appeared before the trial court that afternoon, appellant informed the court of his intention to accept a plea agreement from the state. The trial court asked appellant whether he was voluntarily pleading guilty to two counts of felonious assault, one count of kidnapping, and one three-year firearm
[A]s an aider and abettor my client is guilty of the two F-2s and the F-1 with a gun spec. As far as exactly what his participation was, I would like to -- so that I -- there is definitely evidence to show that he‘s -- his plea is being properly taken.
But as to exactly what he did or when he did it -- I want to wait until the PSI is done to see what they say.
(Oct. 6, 2014 Tr. 23.) At the close of the plea hearing, the trial court scheduled the matter for sentencing on November 21, 2014. Following the hearing, the trial court continued the sentencing hearing until December 19, 2014.
{¶ 5} On November 25 and 26, 2014, the trial court docketed a series of letters that appellant sent to his trial counsel and directly to the trial court indicating: (1) he wanted to file a motion to withdraw his guilty plea; (2) he wanted his trial counsel to withdraw from the case; and (3) he wanted new counsel appointed to help him subpoena various evidentiary materials and to more fully investigate his case. Subsequently, on November 28, 2014, three weeks prior to his scheduled sentencing hearing, appellant filed a pro se motion to withdraw his guilty plea. Appellant‘s trial counsel withdrew as attorney of record and the trial court appointed a new attorney to represent appellant going forward. Appellant pro se renewed his motion to withdraw his plea on December 4, 2014 and March 9, 2015.
{¶ 6} The trial court conducted a hearing on March 17, 2015 on appellant‘s pro se motion to withdraw his guilty plea. Though appellant was represented by counsel at the plea hearing, the hearing began with appellant‘s newly appointed attorney stating he did not believe it was in appellant‘s best interest to pursue the motion to withdraw the plea
{¶ 7} The only witness at the hearing was appellant. He testified that the morning of his scheduled trial start date, his trial counsel “told [him] that he was not competent enough to represent [him] and, if [appellant] didn‘t enter this guilty plea, that [he] would do life in prison.” (Mar. 17, 2015 Tr. 31.) Appellant said his trial counsel did not review the plea form with him; instead, he said he did not read the form himself but only “got a little glance” at the form,” and that his trial counsel told him to sign it. (Mar. 17, 2015 Tr. 32.) Appellant said he only signed the form because he “was in fear for [his] life * * * believing any word that [his trial counsel] told [him], that if [he] did not sign that paper, that [he] would do life in prison just due to the fact that [his trial counsel] was not competent enough to represent [him].” (Mar. 17, 2015 Tr. 33.) Further, appellant said he could not recall the plea colloquy in the courtroom because he “was in pure shock and not really coherent to what was going on around me.” (Mar. 17, 2015 Tr. 34.) As soon as he got back to his cell, appellant said he realized what had just happened, so he called his family and asked them to contact his trial counsel to tell him that appellant wanted to withdraw his plea. Because his trial counsel never filed a motion to withdraw the plea, appellant filed his own pro se motion and asked to have his trial counsel removed from the case.
{¶ 8} On cross-examination, appellant agreed that prior to the start of trial, he had indicated a willingness to talk to prosecutors about a possible proffer. Appellant also agreed that he had sent letters to the prosecuting attorneys stating he did not think it was fair that Coffman received “a lower charge” than he did in his plea agreement. (Mar. 17, 2015 Tr. 50.)
{¶ 9} At the close of the hearing, the trial court denied appellant‘s motion to withdraw his guilty plea. The trial court determined appellant did not appear to be claiming actual innocence, and the court noted appellant had plenty of opportunities at the plea hearing to state he was not entering his plea voluntarily. Further, the trial court stated that trial counsel‘s statements that he was not prepared for trial had been “taken
{¶ 10} At a May 20, 2015 sentencing hearing, the trial court imposed a term of imprisonment of 6 years for each count of felonious assault, 6 years for the kidnapping count, and a mandatory 3 years for the firearm specification. The trial court ordered the sentences to be served consecutively for an aggregate sentence of 21 years. The trial court journalized appellant‘s convictions and sentence in a May 20, 2015 judgment entry. Appellant timely appeals.
II. Assignments of Error
{¶ 11} Appellant assigns the following errors for our review:
- The trial court abused its discretion in overruling appellant‘s presentence motion to withdraw his guilty plea, when his counsel was unprepared for trial, the court failed to inquire if appellant was satisfied with counsel‘s representation, and the state did not assert any prejudice. Appellant was thus denied his right to a jury trial and due process of law, in violation of the Sixth and Fourteenth Amendments of the United States Constitution.
- The trial court committed plain error when it considered appellant‘s alleged letters to the court and presentence report, which were not admitted in evidence, in overruling his motion to withdraw his guilty plea. Appellant was thus denied due process of law and right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
- The trial court committed plain error when it considered at sentencing its recollection of the co-defendant‘s trial of which appellant was not a party, denying him due process of law under the Fourteenth Amendment of the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
- Trial counsel‘s failure to object to extrajudicial information, both at the plea withdrawal hearing and at
sentencing, denied appellant the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution. - The trial court committed plain error in sentencing appellant to consecutive prison terms without factual support for its findings pursuant to
R.C. 2929.14(C)(4) .
A. First Assignment of Error – Motion to Withdraw Guilty Plea
{¶ 12} In his first assignment of error, appellant argues the trial court abused its discretion when it denied his presentence motion to withdraw his guilty plea.
{¶ 13} A criminal defendant may file a presentence motion to withdraw his guilty plea pursuant to
{¶ 14} A trial court is not required to grant a presentence motion to withdraw a guilty plea. To determine whether a trial court abused its discretion in denying a presentence motion to withdraw a guilty plea, we look to a number of non-exhaustive factors, including: (1) any potential prejudice to the prosecution if the trial court vacated the plea; (2) whether highly competent counsel represented the defendant; (3) the extent of the
{¶ 15} Appellant presented the trial court with three main reasons for wanting to withdraw his guilty plea: (1) his trial counsel was not prepared for trial; (2) his trial counsel pressured him into accepting the plea agreement; and (3) his trial counsel did not explain to appellant the charges to which appellant would agree to enter guilty pleas. The trial court conducted a full hearing on appellant‘s pro se motions to withdraw his guilty plea, though appointed counsel represented appellant at the hearing. At the conclusion of the hearing, the trial court denied appellant‘s motion, concluding appellant did not present a reasonable and legitimate basis to withdraw his plea. The trial court noted appellant was not asserting he was innocent of the charges, and the trial court stated the argument that appellant‘s trial counsel was not prepared to go to trial was “taken totally out of context.” (Mar. 17, 2015 Tr. 56.) Ultimately, the trial court found that, given the number and seriousness of the charges appellant faced, he not only did not have a legitimate basis to withdraw his plea, but withdrawing his plea “would be strongly against [his] own interests.” (Mar. 17, 2015 Tr. 56.) We must use the balancing test outlined above to determine whether the trial court abused its discretion in denying appellant‘s motion to withdraw his plea in light of his stated reasons.
1. Potential Prejudice to the Prosecution
{¶ 16} First, we agree with appellant that the record does not indicate any evidence of prejudice to the state “beyond the ordinary impact of any defendant‘s subsequent withdrawal of a guilty plea.” Harris at ¶ 26. Thus, the first factor weighs in favor of appellant.
{¶ 17} The second factor, whether highly competent counsel represented appellant, requires closer examination. Appellant‘s main reasons for wanting to withdraw his plea were that his trial counsel was admittedly unprepared for trial and, as a result, appellant felt pressured to take the plea agreement right before the scheduled start of trial. The only witness at appellant‘s motion to withdraw hearing was appellant, as neither the state nor appellant called appellant‘s trial counsel to testify. However, the trial court had the transcript from the scheduled trial start date during which appellant‘s trial counsel repeatedly stated he did not feel prepared to go to trial based on the last minute notice that Coffman would now be available as a state‘s witness. This is not a case where the trial court explicitly found that appellant lacked credibility at the motion hearing. See, e.g., State v. Ganguly, 10th Dist. No. 14AP-383, 2015-Ohio-845, ¶ 17 (noting the trial court explicitly found the defendant lacked credibility in arguing his counsel coerced him into accepting the plea agreement). Instead, the transcript corroborates appellant‘s testimony regarding his counsel‘s lack of preparedness given the change in circumstances just before the scheduled start of trial. When experienced counsel states on the record that he does not feel prepared to proceed to trial, such statements factor heavily into an analysis of whether an accused received adequate representation from competent counsel. See State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, ¶ 15 (2d Dist.) (finding the trial court erred in refusing to grant a continuance where the defendant‘s trial counsel stated on the record he was “not prepared” and he “believe[d] that constitutes ineffective assistance of counsel” should he have to proceed to trial at that time).
{¶ 18} The trial court indicated trial counsel‘s statements that he did not feel prepared to go to trial had been taken out of context, suggesting trial counsel meant those statements only to convey that trial counsel wanted more time to investigate Coffman. However, the record does not support such a conclusion. Though the trial court noted Coffman had been involved in the case all along so her sudden availability as a state‘s witness should not have rendered appellant‘s counsel unprepared to try the case, trial counsel stated he had prepared for a trial in which none of the four original codefendants would testify and that the focus of the trial would be impeachment of the state‘s previously disclosed witnesses. Appellant‘s trial counsel stated “we came in and prepared
{¶ 19} Trial counsel‘s statements that he did not feel prepared extended beyond the sudden availability of Coffman as a state‘s witness. Appellant‘s trial counsel informed the trial court that he had planned on Hudson‘s attorney conducting the voir dire and he had not “taken any steps to fashion a voir dire.” (Oct. 6, 2014 Tr. 7.) Trial counsel stated he did “not feel that [he is] competent as an attorney who‘s tried hundreds of cases over 40 years to do the kind of job that [his] client deserves.” (Oct. 6, 2014 Tr. 9.) He then reiterated two more times on the record that he believed justice would be denied his client if he were forced to go to trial that day and that he did not feel competent to represent his client at that time. The court then recessed for lunch and, when court resumed, appellant had suddenly agreed to accept a plea agreement. At the plea hearing, trial counsel‘s statements indicated trial counsel was uncertain about appellant‘s role in the offenses. Given the transcript of proceedings showing appellant‘s trial counsel repeatedly stating he did not feel he could competently represent his client, we conclude the second factor of our balancing test weighs heavily in appellant‘s favor.
3. Crim.R. 11 Hearing
{¶ 20} The third factor examines the extent of the
{¶ 21} Pursuant to
{¶ 22} Appellant does not dispute that the trial court complied with the minimum requirements of
4. Receipt of a Full Hearing on the Motion to Withdraw
{¶ 23} The fourth factor in the balancing test asks whether appellant received a full hearing on his motion to withdraw his guilty plea. The record reflects the trial court conducted a hearing on March 17, 2015 during which appellant testified regarding his reasons for wanting to withdraw his guilty plea. Thus, because the trial court gave appellant a full opportunity to be heard on his motion, the fourth factor weighs against a finding that the trial court abused its discretion in denying appellant‘s motion.
5. Full and Fair Consideration of the Motion
{¶ 24} The fifth factor looks to whether the trial court fully and fairly considered appellant‘s motion to withdraw his guilty plea. Though we concluded in our analysis of the fourth factor that appellant received a full hearing on his motion, the issue of whether
6. Reasonable Time
{¶ 25} The sixth factor asks us to consider whether appellant made his motion within a reasonable time. Less than two months elapsed between the date appellant entered his guilty plea and the date appellant filed his pro se motion to withdraw his plea. He filed his motion three weeks before his scheduled sentencing hearing. Additionally, he argues he told his family immediately after the plea to contact his trial counsel and tell him appellant wished to withdraw his plea, but his attorney never filed a motion on his behalf. Given all these factors, we conclude appellant filed his motion to withdraw within a reasonable time, and the sixth factor thus weighs in appellant‘s favor.
7. Specific Reasons for Withdrawal
{¶ 26} The seventh factor asks whether appellant set forth in his motion specific reasons for the withdrawal. In his initial pro se motion to withdraw his guilty plea filed on
8. Whether Appellant Understood the Charges and Possible Penalties
{¶ 27} The eighth factor asks whether the defendant understood the nature of the charges against him and the possible penalties. At the
9. Possible Defenses to the Charges
{¶ 28} Under the ninth and final consideration, we look to whether appellant had possible defenses to the charges against him. Appellant argues he tried to escape the situation and withdraw from the offenses, and that he acted under the undue influence or duress of codefendant Obryan Jones. At the withdrawal hearing, the state asked appellant about letters he had written to the prosecuting attorneys in which appellant stated he was “the only one who really tried to plan an escape out of the situation,” and he “beg[ged]”
{¶ 29} Pursuant to
{¶ 30} In summation, we conclude six of the nine factors in the balancing test weigh in favor of appellant. Although no one factor is conclusive, we place great weight on trial counsel‘s statements to the court that he was not prepared for trial due to the last-minute plea agreement of a codefendant, her resulting agreement to appear as the state‘s witness, and the voir dire issues accompanying the last-minute plea, and we emphasize how those statements may have affected appellant‘s decision to accept the plea in the first place. Having considered the totality of the circumstances, we conclude the trial court abused its discretion when it denied appellant‘s motion to withdraw his guilty plea. Accordingly, we sustain appellant‘s first assignment of error.
B. Second, Third, Fourth, and Fifth Assignments of Error
{¶ 31} Because our resolution of appellant‘s first assignment of error is dispositive and renders moot appellant‘s second, third, fourth, and fifth assignments of error, we need not address them.
III. Disposition
{¶ 32} Based on the foregoing reasons, the trial court abused its discretion when it denied appellant‘s presentence motion to withdraw his guilty plea. Having sustained
Judgment reversed and cause remanded.
DORRIAN, P.J., and HORTON, J., concur.