State v. KerbyState v. Kerby
Rendered on the 19th day of February, 2010.
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AMY M. SMITH, Atty. Reg. #0081712, Clark County Prosecutor‘s Office, 50 East Columbia Street, 4th Floor, P.O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
CARLOS KERBY, #449-990, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio 45036
Defendant-Appellant, pro se
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FAIN, J.
{¶ 1} Defendant-appellant Carlos Kerby appeals from an order denying his motion to withdraw a guilty plea to charges of Involuntary Manslaughter, in violation of
{¶ 2} Kerby contends that the trial court abused its discretion in determining whether trial counsel was competent, and in determining whether the Crim. R. 11 hearing was full and fair. Kerby further contends that the trial court erred in refusing to allow him to withdraw his plea, because the indictment failed to include a mens rea element - that he knowingly and recklessly possessed or brandished a deadly weapon.
{¶ 3} We conclude the trial court did not err in denying the motion to withdraw Kerby‘s guilty plea. The basis for Kerby‘s motion is that he could not have knowingly entered a plea, because trial counsel and the trial court did not understand that the counts in the indictment are missing a mens rea element. However, the predicate offense for the Manslaughter conviction is Aggravated Robbery, in violation of
I
{¶ 4} In November 2001, three men attempted to rob a Family Video Store in Springfield, Ohio. The men entered the vestibule of the store and demanded money. When they saw one of the clerks, Chad Kautz, on the telephone, one of the
{¶ 5} Carlos Kerby initially pled no contest to, and was convicted of, Aggravated Murder with a firearm specification, Murder, Aggravated Robbery and Felonious Assault. Kerby, 2007-Ohio-187, at ¶ 1, and 16-17. Carlos Kerby was then sentenced to life imprisonment, with parole eligibility after 27 years. Id. at ¶ 17. We reversed the conviction and remanded the matter for further proceedings, because we concluded that Kerby‘s confession was involuntary. Id. at ¶ 42-88.
{¶ 6} After the matter was remanded, the State agreed to amend Count Two (the Murder charge) to Involuntary Manslaughter, to dismiss the firearm specifications in Count Two and Count Three (the Aggravated Robbery charge), and to dismiss the remaining counts. The parties also agreed to a ten-year sentence on both counts, and that the sentences would be served consecutively, for a total of
{¶ 7} In December 2008, Kerby filed, pro se, a “Motion to Withdraw No Contest Plea Because of Manifest Injustice.”1 The basis for the motion is that the indictment for Aggravated Robbery fails to allege mens rea with respect to possession of a deadly weapon, and is therefore invalid for purposes of establishing an underlying felony for the Involuntary Manslaughter charge. Kerby further alleged that “mens rea” was not mentioned when the trial court accepted his guilty plea.
{¶ 8} The trial court denied Kerby‘s motion. The court held that the part of the Aggravated Robbery statute setting forth the deadly weapon element put Kerby on notice of the mens rea required. The court also concluded that Kerby had been afforded a thorough and detailed Crim. R. 11 colloquy. Kerby appeals from the order denying his motion to withdraw his plea.
II
{¶ 9} Kerby‘s First Assignment of Error is as follows:
{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN VIOLATION OF APPELLANT‘S RIGHTS TO DUE PROCESS OF LAW UNDER THE OHIO AND U.S. CONSTITUTION IN NOT EXERCISING ITS DISCRETION IN DETERMINING WHETHER COUNSEL WAS COMPETENT; WHETHER THE CRIM. R. 11 HEARING WAS FULL AND FAIR DENYING APPELLANT A FULL AND FAIR
{¶ 11} Under this assignment of error, Kerby contends that the trial court abused its discretion by failing to comply with requirements for determining whether to allow withdrawal of no-contest or guilty pleas. In this regard, Crim. R. 32.1 provides that:
{¶ 12} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 13} The motion to withdraw in the case before us was filed after sentence. Accordingly,
{¶ 14} the standards cited by Kerby from State v. Peterseim (1979), 68 Ohio App.2d 211, do not apply. Peterseim involves a pre-sentence request for withdrawal, which poses different considerations from post-sentence requests. Id. at 212-13.
{¶ 15} Because the case at hand involves a post-sentence attempt to withdraw a guilty plea, Kerby has the burden of establishing manifest injustice. State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus. “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant‘s assertions in support of the motion are matters to be resolved by that court.” Id. at paragraph two of the syllabus.
{¶ 17} In the case before us, Kerby failed to attach affidavits to his motion. He has also failed to cite to facts in the record that would justify a finding of extraordinary circumstances. Instead, Kerby simply claims that the indictment fails to contain the necessary mens rea requirement for Aggravated Robbery. Kerby has also failed to provide this court with a transcript of the Crim. R. 11 hearing, where he would have been instructed about his rights before entering a guilty plea. In the absence of a record suggesting the contrary, we presume the regularity of the proceedings in the trial court. State v. Thornhill (Oct. 5, 2001), Champaign App. No. 2001 CA 15. See also, e.g., Jordan, 2004-Ohio-6836 at ¶ 6, City of Parma v. Taylor, Cuyahoga App. No. 87162, 2006-Ohio-3973, at ¶ 5, and Smith, 2008-Ohio-1501, at ¶ 20 (noting that an appellate court cannot determine whether manifest injustice occurred at a plea hearing, where the defendant fails to provide a transcript of
{¶ 18} Furthermore, Kerby failed to allege in the trial court that he was not advised of his rights. His argument, instead, was that he could not have knowingly entered a plea, because neither counsel nor the trial court “understood” that the counts of the indictment are missing the mens rea element.
{¶ 19} Kerby was originally indicted in Count One for purposely causing the death of another (Chad Kautz) while committing or attempting, or while fleeing immediately after committing, an Aggravated Robbery, in violation of
{¶ 20} As part of the plea agreement, Count Two was amended to Involuntary Manslaughter, in violation of
{¶ 21}
{¶ 22} “(A) No person in attempting or committing a theft offense, as defined in
R.C. 2913.01 of the Ohio Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following;{¶ 23} “(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.”
{¶ 24} In State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), the Ohio Supreme Court held that an indictment that tracks the statutory language in
{¶ 25} Subsequently, the Ohio Supreme Court limited Colon I to cases pending at the time it was decided. See State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 (Colon II). Colon I was decided on April 9, 2008, which is prior to the date of Kerby‘s guilty plea on May 30, 2008. Therefore, Colon I would potentially apply.
{¶ 26} However, in State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, the
{¶ 27} “Moreover, Colon I is not dispositive of the issue here. This case addresses the defendant‘s use, display, brandishing, or indicating possession of a deadly weapon under
{¶ 28} “We are persuaded that the General Assembly, by not specifying a mens rea in
{¶ 29} We had reached the same conclusion prior to Lester, and had rejected Colon‘s application in cases involving indictment for Aggravated Robbery, under
{¶ 30} “Finally, the third assignment of error alleges that the indictment was defective because it failed to specify the requisite degree of mental culpability for the crime of aggravated robbery. Combs cites State v. Colon, 118 Ohio St.3d 26, 885
{¶ 31} ”Colon, however, does not apply here. Combs was charged with aggravated robbery under
{¶ 32} Pursuant to our own decisions and the Ohio Supreme Court‘s decision in Lester, Colon I does not apply to the case before us, and the indictment is not defective. The trial court, therefore, did not abuse its discretion in denying Kerby‘s motion to withdraw his guilty plea.
{¶ 33} We have also held that a plea of guilty to “aggravated robbery charges waives any defect in the indictment occasioned by the failure to allege any culpable mental state.” State v. Smith, Clark App. No. 08CA0060, 2009-Ohio-5048, at ¶ 25. Other courts have reached the same conclusion. See, e.g., State v. Gaston,
{¶ 34} Kerby‘s First Assignment of Error is overruled.
II
{¶ 35} Kerby‘s Second Assignment of Error is as follows:
{¶ 36} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT VACATING THE NO CONTEST PLEA WHERE MANIFEST INJUSTICE OCCURRED IN THE STATUTE AND INDICTMENT FAILED TO CHARGE AN OFFENSE DEPRIVING THE TRIAL COURT OF SUBJECT MATTER JURISDICTION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE OHIO AND UNITED STATES CONSTITUTION.”
{¶ 37} Under this assignment of error, Kerby focuses again on the indictment‘s failure to include a mens rea element of knowingly and recklessly possessing, brandishing, possessing, or using a deadly weapon. For the reasons previously stated, this assignment of error is without merit and is overruled.
{¶ 38} All of Kerby‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
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DONOVAN, P.J., and GRADY, J., concur.
Copies mailed to:
Amy M. Smith
Carlos Kerby
Hon. Richard J. O‘Neill