State v. KimpelState v. Kimpel
{¶ 1} Appellant, Kevin Kimpel, appeals the denial of his motion to withdraw his guilty pleas in the Williams County Court of Common Pleas. Because we conclude that the trial court acted within its discretion, we affirm.
{¶ 2} On August 19, 2006, police officers responded to a report that a physical altercation between appellant and his girlfriend‘s ex-boyfriend had occurred at the
{¶ 3} In a separate incident, on November 29, 2006, police responded to a domestic violence call at appellant‘s home. There, officers noted a large scrape on the right elbow of appellant‘s live-in girlfriend. Additionally, both of her knees were swollen and red, she had red marks on her neck, a bruise on her chest, and a golf ball sized knot on the right side of her head. The girlfriend told police that appellant grabbed her by the throat several times, threw her onto the cement floor, across the washer and dryer and continued to choke her until she could no longer breathe. According to the girlfriend, appellant let her go before she passed out.
{¶ 4} On December 20, 2006, appellant was indicted by a William County grand jury on three counts: domestic violence, aggravated burglary, felonious assault. The charge of domestic violence resulted from assault on his live-in girlfriend. The charges
{¶ 5} Appellant pled not guilty but, following plea negotiations, agreed to plead guilty to domestic violence, attempted aggravated burglary and aggravated assault, with the state‘s recommendation that the sentences for these offenses run concurrently, for a total of seven years imprisonment.
{¶ 6} On February 6, 2006, in accordance with
{¶ 7} On March 1, 2006, appellant replaced his original counsel and filed a presentence motion to withdraw his guilty pleas to all three counts.
{¶ 8} On March 19, 2006, the trial court held a hearing and denied appellant‘s motion.
{¶ 9} On April 5, 2006, the trial court sentenced appellant to seven years incarceration in conformity with the state‘s recommendation. Appellant now appeals the trial court‘s denial of his motion to withdraw guilty plea, setting forth the following single assignment to error:
{¶ 10} “The Trial Court should have granted the defense Motion to Withdraw Plea, filed before sentencing.”
{¶ 11} A presentence motion to withdraw a plea of guilty should be freely and liberally granted. State v. Xie (1992), 62 Ohio St.3d 521, 526. A defendant, however,
{¶ 12} To determine whether a trial court abused its discretion, we look to, inter alia, “(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
{¶ 13} On appeal, appellant argues he did not knowingly and voluntarily enter his guilty plea due to incomplete
{¶ 14} To determine whether an appellant entered guilty pleas in reliance on ineffective assistance of counsel, the Supreme Court of Ohio uses the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668. Xie, 62 Ohio St.3d at 524; see, also, Hill v. Lockhart (1985), 474 U.S. 52 (United States Supreme Court applying the Strickland test to guilty pleas). First, the appellant “must show that counsel‘s performance was deficient.” Xie, at 524; Strickland, at 687; Hill, at 57. “Second, `the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty * * *.‘” Xie, at 524; quoting Hill, at 59; see Strickland, at 687.
{¶ 15} Regarding the domestic violence charge, appellant does not contest his guilt. Rather, he argues that his original counsel failed to inform him that his domestic violence charge could potentially be declared unconstitutional in an ongoing Ohio Supreme Court case. See In re Ohio Domestic-Violence Statute Cases, 114 Ohio St.3d 430, 2007-Ohio-4552.
{¶ 16} Appellant‘s argument is without merit. Appellate courts are bound by their own precedent until reversed by the Supreme Court of Ohio. See State v. Brown, 8th Dist. No. 87651, 2006-Ohio-6267, ¶ 47; Gray v. Estate of Barry (1995), 101 Ohio App.3d 764, 767. Counsel‘s advice was premised on the law as it existed. This does not constitute deficient performance.
{¶ 17} With respect to the aggravated burglary and felonious assault charges, appellant argues that his original counsel‘s failure to provide him with exact statutory
{¶ 18} “A court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” State v. Sanders (2002), 94 Ohio St.3d 150, 151; quoting Strickland, 466 U.S. at 689. Therefore, we are compelled by the Strickland standard to apply a “heavy measure of deference to counsel‘s judgments.” Sanders, at 151, quoting Strickland, at 691. In our view, absent any additional evidence, an alleged failure to disclose an exact statutory definition in this matter did not render counsel‘s assistance deficient.
{¶ 19} Appellant next argues that he received incomplete
{¶ 20} Lastly, appellant argues that he was “actually innocent” of each charge as indicted. The record belies this assertion. During the plea colloquy, the court asked, “[Do] you understand that by your guilty pleas to those three counts that you are admitting that you have committed those offenses?” Appellant responded. “[y]es, sir.” Thus, appellant stated that he was pleading guilty to those offenses because he committed those offenses. See State v. Green, 6th Dist. No. E-03-020, 2005-Ohio-5256, ¶ 17. “[A] change of heart or mistaken belief about pleading guilty is not a reasonable basis that requires a trial court to permit the defendant to withdraw his guilty plea.” Id., quoting State v. Lambros (1988), 44 Ohio App.3d. 102, 103.
{¶ 21} Upon consideration of the foregoing, a review of the record and the Dellinger factors, we conclude that appellant asserted no reasonable and legitimate basis for withdrawing his guilty pleas. Xie, supra. Accordingly, the trial court acted within its discretion in denying appellant‘s motion. Appellant‘s sole assignment to error is not well-taken.
{¶ 22} On consideration whereof, this court affirms the judgment of the Williams County Court of Common Pleas. 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
Peter M. Handwork, J., Mark L. Pietrykowski, P.J., Arlene Singer, J., CONCUR.