State v. KutnyakState v. Kutnyak
DECISION AND JUDGMENT
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Paul A. Dobson, Wood County Prosecuting Attorney, Heather M. Baker and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.
Bruce W. Boerst, Jr. and Andrew P. Abood, for appellant.
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HANDWORK, J.
{¶ 1} This appeal is from the December 7, 2010 judgment of the Wood County Court of Common Pleas, which denied the motion of appellant, Ryan Kutnyak, to withdraw his guilty plea after he had been convicted of gross sexual imposition, but prior
WHETHER THE LOWER COURT ERRED IN DENYING DEFENDANT‘S MOTION TO WITHDRAW PLEA WHEN THE INTERESTS OF JUSTICE SO REQUIRED?
{¶ 2} Appellant was personally served with a warrant bаsed upon a complaint on August 6, 2009, alleging that he had raped a woman on August 2, 2009. Appellant‘s attorney advised the court by letter that he represented appellant and waived a formal arraignment and enterеd a not guilty plea. A bill of information was filed on September 17, 2009, against appellant charging him with gross sexual imposition, in violation of
{¶ 3} Appellant retained new counsel on January 12, 2010, and moved on January 20, 2010, to postpone the sentencing hearing. On March 8, 2010, appellant moved to withdraw his guilty plea. The motion was initially denied on March 25, 2010,
{¶ 4} On appeal, appellant argues that the trial court erred by denying appellant‘s motion to withdraw his guilty plea when the interests of justice required it be granted.
{¶ 5} There is no absolute right to withdraw a guilty plea after conviction, but prior to sentencing, State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph one of the syllabus, and the mаtter is left to the sound discretion of the trial court who is in the better position to evaluate both the motivation of the defendant in pleading guilty and the credibility and weight to be given to the reasons for seeking to withdraw the plea. Id. at paragraph two of the syllabus. Therefore, we will not reverse the trial court‘s denial of the motion unless the defendant can establish that the trial court abused its discretion. Id. at 525. An abuse of discretion standard requires a finding that the trial court committed “more than an error of law or of judgment; it implies that the court‘s
{¶ 6}
(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether thе trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge. State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39, citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (2001).
A change of heart is an insufficient reason to permit withdrawal of the plea. State v. Locher, 4th Dist. No. 11CA3414, 2012-Ohio-787, ¶ 17; State v. Lawhorn, 6th Dist. No. L-08-1153, 2009-Ohio-3216, ¶ 23, citing State v. Gonzales, 6th Dist. Nos. WD-06-084; WD-06-085, 2007-Ohio-3565, ¶ 23; State v. Eversole, 6th Dist. Nos. E-05-073, E-05-074, E-05-075, E-05-076, 2006-Ohio-3988, ¶ 16; and State v. Moore, 7th Dist. No. 06-CO-74, 2008-Ohio-1039, ¶ 13.
{¶ 7} We find that appellant‘s motion to withdraw his guilty plea was timely made. He filed his motion prior to sentencing and very shortly after obtaining new counsel.
{¶ 8} We agree that appellee will face some prejudicе if appellant is allowed to withdraw his plea because the prosecution will face obstacles in finding witnesses who can testify as to the relationship or behavior between appellant and the victim on the night of the crime. However, the ultimate issue in this case turns upon the credibility of the testimony of the victim and appellant. Therefore, any prejudice to appellee by allowing the withdrawal of the plea is minimal.
{¶ 9} We also find that appellant was well represented by a competent and experienced criminal attorney who met with appellant at least a dozen times, plus telephone conversations, ovеr a five-month period to discuss the case. Appellant admitted that his counsel discussed with him the charges, potential penalties, and the prosecution‘s evidence, which consisted of text messages and DNA. They further disсussed the significance of differences in the penalties for rape and gross sexual imposition. The trial court also conducted a thorough
{¶ 10} Furthermore, the trial court gave full consideration to appellant‘s motion to withdraw his plea. The court took the matter under advisement after the hearing before rendered a written decision.
{¶ 11} However, we find that appellant did present evidence that his motivation for withdrawing his plea was not based on a mere change of heart after he realized the full implication of his plea. Appellant asserted he discovered he had evidence to support his defense of consent: the prior physical intimacy between appellant and thе victim on prior dates and on the night at issue, the victim‘s invitation to sleep in her room with her, the victim‘s action of undressing in front of him, the victim‘s action of walking appellant to the car after the incident. Furthermore, appellant asserted he had investigated the matter further and discovered several witnesses (including the victim‘s father, ex-fiance, and ex-fiance‘s brother, and two friends of appellant who were present at the bar that night) who wоuld testify as to the victim‘s prior conduct and events prior to the date of this offense which could impeach the victim‘s testimony and establish appellant did not commit a crime. Appellant sets forth in his memorandum in support the specific facts about which each of these witnesses would be able to testify.
{¶ 12} The trial court concluded appellant had merely changed his mind about the plea prior to sentencing when he realized that he would have to register as a sexual
{¶ 13} Generally, an appellate court defers to the trial court because it is in a better position to evaluate the acceptance of the plea and appellant‘s motivation to withdrаw the plea. However, in this case, we find that appellant has shown the trial court abused its discretion by denying his motion to withdraw his plea. Appellant has demonstrated that his motivation for withdrawing his plea is based upon more than a change of heart; he has identified evidence which, if believed, would enable him to obtain an acquittal. The trial court erred in considering appellant‘s prior admission of the facts in open court when dеtermining whether he should be allowed to withdraw his guilty plea. Anyone who enters a guilty plea must admit to the facts presented by the prosecution and this fact has no bearing on determining the motivation for withdrawing the plea.
{¶ 14} Appellee argues that appellant has failed to support his claims with any evidence. This court has held that it will not accept a defendant‘s claims of innocence without an offer of evidence to support the claim. State v. Richey, 6th Dist. No. S-09-028, 2011-Ohio-280, ¶ 63, and State v. Scott, 6th Dist. No. S-05-035, 2006-Ohio 3875, ¶ 13. In the case before us, appellant has specifically identified potential witnesses and their generalized testimony to support his claim of innocence. We find it unnecessary for appеllant to present affidavits or sworn testimony to support his claim of innocence. It is unlikely that appellant would misrepresent any of these witnesses or their
{¶ 15} Finally, appellee argues that some of the testimonial evidence appellant intends to present would be inadmissible at trial becаuse it is barred under
{¶ 16} Appellant‘s sole assignment of error is found well-taken.
{¶ 17} Having found that the trial court did commit error prеjudicial to appellant, the judgment of the Wood County Court of Common Pleas is reversed. This case is remanded to the trial court for further proceedings consistent with this decision. Appellee is ordered to pay the court costs of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
JUDGE
Stephen A. Yarbrough, J. CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.