STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOSHUA A. LANE, DEFENDANT-APPELLANT.
CASE NO. 15-12-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY
April 15, 2013
[Cite as State v. Lane, 2013-Ohio-1497.]
WILLAMOWSKI, J.
Appeal from Van Wert County Common Pleas Court, Trial Court No. CR-12-02-041; Judgment Affirmed
Kelly J. Rauch for Appellant
Martin D. Burchfield for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Joshua A. Lane (“Lane“), appeals the judgment of the Van Wert County Court of Common Pleas, finding Lane guilty of one count of trafficking in drugs after he entered a guilty plea. On appeal, Lane contends that the trial court erred when it denied his motion to withdraw his guilty plea prior to sentencing; that his plea was void because of the State‘s failure to abide by the terms оf the plea agreement; and, that he was denied the right to effective assistance of counsel. For the reasons set forth below, the judgment is affirmed.
{¶2} On February 3, 2012, the Van Wert County Grand Jury indicted Lane on one count of trafficking in drugs (heroin) in violation of
{¶3} On April 20, 2012, a change of plea hearing was held and, pursuant tо plea negotiations, Lane entered a guilty plea. The trial court conducted a full and detailed Crim.R. 11 plea colloquy before accepting Lane‘s plea and finding him guilty. Prior to accepting the guilty plea, the trial court questioned Lane in detail to determine whether he understood everything that he was agreeing to, whether he could read and write, if he was satisfied that he knew what the charges were about, whether he was under the influence of drugs, alcohol, medication, or
{¶4} Lane and his attorney signed the written plea agreement; the trial court ordered a pre-sentence investigation (“PSI“); and, it ordered that Lane be released on electronically monitored house arrest (“EMHA“) pending sentencing, pursuant to the agreement by the State to not oppose EMHA. (Apr. 20, 2012 Change of Plea Tr. 19-20.) Sentencing was set for May 9, 2012.
{¶5} On May 9th, at Lane‘s first scheduled sentencing hearing, the trial court indicated that it intended to sentence Lane to the WORTH Center. However, Lane informed the court that he was on Methadone and that he would need time to complete the weaning process from Methadone before he could begin his sentence at the WORTH Center. Stоpping Methadone suddenly could be dangerous to his health. The trial court expressed concern as to whether the WORTH Center would even accept him, because there was a chance that he would be returned to prison anyway because he was already on post release control (“PRC“) from a previous offense, CR 09-02-014 (hereinafter, “the 2009 Case“), and his conviction in the Current Case would be a violation of the terms of the PRC for the 2009 Case. (May 9, 2012 Sent. Hrg. 27) The trial court also questioned, “What would happen
{¶6} On June 5, 2012, the Van Wert Cоunty Adult Probation Authority filed an affidavit that Lane had violated the terms and conditions of his bond/EMHA. Specifically, “the offender violated bond condition number five (5), the offender was witnessed selling Heroin by a Van Wert Police Officer.” On June 6, 2012, the magistrate set bond at $10,000 and scheduled a hearing on the matter before the trial court for June 12, 2012. Arrangements had been made for the doctor affiliated with the jail to administer Methadone to Lane if necessary.
{¶7} At the bond violаtion show cause hearing, the State was prepared to put on evidence that the police department observed the bond violation themselves and then interviewed the person who had purchased the controlled substances from Lane. (Jun. 12, 2012 Hrg. 37) The trial court stated that it was up to the defendant to show cause why bond should not be revoked, and that his general denial was not sufficient. Lane offered no evidence or explanatiоn, so the trial court found that he had violated a condition of his bond and ordered him to be held
{¶8} The State noted that there might also be pending charges on the new offense, in аddition to the PRC violation.2 (Id. 38) And, the State indicated that Lane had not started any weaning process to reduce his Methadone dosage. (Id.) The sentencing hearing, originally scheduled for June 19th, was continued because of the pending matters.
{¶9} On July 3, 2012, Lane and his attorney appeared for the sentencing hearing and stated that Lane wished to withdraw his guilty plea. The trial court set a hearing on this motion.
{¶10} The hearing on the motion to withdraw his guilty plea was held on July 16, 2012, at whiсh time Lane was placed under oath and questioned by his attorney as to his reasons for wanting to change his plea again. Lane first testified that he had “thought I was getting out on EMHA,” but that someone at the Adult Probation Department had threatened him when he went there with his girlfriend to pay for the EMHA. (Jul. 16, 2012 Plea Hrg. 45-46) He also testified that “I withdrew my plea because I wanted to see my Grandpa before he died and he‘s
{¶11} The trial court issued a written opinion denying Lane‘s motion to withdraw his plea, finding that at the time of his plea Lane had indicated that he had read and understood everything in the plea agreement; that he was represented by “highly competent counsel” and had discussed the plea and the charges fully and completely with his counsel; and that he was given a full Criminal Rule 11 hearing before he entered his plea. (Jul. 19, 2012 J.E.) The trial court further found:
During the Criminal Rule 11 hearing, [Lane] told the court that he understood the nature of the charges and the possible penalties, and that his plea of guilty was a complete admission of guilt. The court further finds that * * * [Lane] did not state specific reasons in his motion why he wanted to withdraw his plea. Further, the events
testified to by [Lane] at the hearing took place several weeks after he had entered his plea. The court further finds that [Lane] did not present any evidence that he was perhaps not guilty, nor that he had any other defense to the charge.
(Id.)
{¶12} The sentencing hearing was held on August 20, 2012. Lane and his counsel were given an opportunity to speak. Lane‘s counsel indicated that Lane was trying to overcome his addiction and address problems, so he asked that the court сonsider an IPP program or the WORTH Center. Lane acknowledged that he had a drug program and that he was trying to start over. Lane claimed that his parole officer had indicated that the Adult Parole Authority did not want his PRC revoked. However, the State indicated that the input it had received was different. (Sent. Tr. 57).
{¶13} The trial court then sentenced Lane to nine months in prison in the Current Case, with credit for the 125 days already served. The trial court further found that this offense was сommitted while Lane was on PRC and sentenced him to serve the 546 days remaining for the 2009 Case PRC, consecutive to the sentence in the Current Case.
{¶14} It is from this judgment that Lane now appeals, raising the following three assignments of error for our review.
The trial court erred when it denied [Lane‘s] motion to withdraw his guilty plea prior to sentencing.
Second Assignment of Error
[Lane‘s] guilty plea was not voluntarily made due to the State‘s failure to abide by the terms of the plea agreement and, therеfore, his plea is void.
Third Assignment of Error
[Lane] was denied the right to effective assistance of counsel.
{¶15} In the first assignment of error, Lane asserts that the trial court was unreasonable when it denied his motion because there was a reasonable and legitimate basis for the withdrawal of his guilty plea. He claims that the trial court should have permitted the plea withdrawal because there was no evidence that the State would have been prejudiced; bеcause Lane claimed he believed he was going to receive house arrest; and because he stated at the hearing that he was innocent.
{¶16} Crim.R. 32.1 states that: “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.” Although the rule does nоt articulate a standard to be used when considering a presentence motion, as the motion in this case was, it has long been held that a presentence motion to withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521 (1992). However, this does not mean that a motion to withdraw a guilty plea will be granted automatically. State v. Drake, 73 Ohio App.3d 640, 645 (8th Dist.1991).
{¶17} “A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to detеrmine whether there is a reasonable and legitimate basis for withdrawal of the plea.” State v. Xie, at paragraph one of the syllabus.
{¶18} It is within the sound discretion of the trial court to determine whether there is a legitimate and reasonable basis for withdrawal of a guilty plea and, absent an abuse of discretion, the trial court‘s decision on the matter must be affirmed. Id. at 527; State v. Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995). The term abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). It involves views or actions “that no conscientious judge, acting intelligently, could honestly have taken.” (Internal citations omitted.) State v. Hancock, 108 Ohio St.3d 57, 2006–Ohio–160, ¶ 129–130.
{¶19} Appellate courts often consider the following factors when reviewing a trial court‘s decision concerning a presentence motion to withdraw a guilty plea: 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;
{¶20} A trial court does not abuse its discretion in overruling a motion to withdraw a guilty plea wherе the accused is represented by highly competent counsel; where the accused was afforded a full hearing pursuant to Crim.R. 11 before he entered the plea; when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion; and where the record reveals the court gave full and fair consideration to the plea withdrawal request. State v. Staton, 3d Dist. No. 4–11–06, 2011–Ohio–4889, ¶ 4, quoting State v. Sylvester, 2d Dist. No. 22289, 2008–Ohio–2901, ¶ 19; State v. Peterseim, 68 Ohio App.2d 211 (8th Dist.1980). A change of heart is not sufficient grounds to allow the withdrаwal of the guilty plea, even in a presentence motion to withdraw the plea. Sylvester at ¶ 4; State v. Lambros, 44 Ohio App.3d 102 (8th Dist.1988). “A change of heart or mistaken belief about the plea is not a reasonable basis requiring a trial court to permit the defendant to withdraw the plea.” State v. Hoke, 4th Dist. No. 10CA32, 2011–Ohio–1221, ¶ 13; State v. Prince, 3d Dist. No. 2-12-07, 2012-Ohio-4111, ¶ 22; See also State v. Brooks, 10th Dist. No. 02AP–44, 2002–Ohio–5794, ¶ 51 (stating “[a] defendant‘s change of heart or mistaken belief about the guilty plea or expected sentence does not constitute a legitimate basis that requires the trial court to permit the defendаnt to withdraw the guilty plea“).
{¶21} A review of the record indicates that regardless as to whether the trial court‘s actions are considered in light of the four factors set forth in State v. Peterseim, or whether they are reviewed by looking at the nine factors enumerated in State v. Fish, there was no compelling basis for the trial court to grant Lane‘s motion to withdraw his guilty plea. The trial court found that Lane was represented by highly competent counsel (which was supported by the record); he was afforded a full Crim.R. 11 hearing, that supported the finding that his plea was knowingly and voluntarily entered; he was also given a complete hearing on the motion to withdraw his plea, and he and his attorney were given every opportunity to present any evidence or good reasons to support his motion; and the trial court fully considered the plea and gave a detailed and thoughtful response. See State v. Peterseim.
{¶22} Furthermore, Lane‘s assertions that some of the additional factors set forth in State v. Fish are applicable are not accurate. The record contradicts his claim that the State would not be prejudiced because his motion was made “only
{¶23} Furthermore, the only options discussed by the trial court during these hearings was either sentencing Lane to the WORTH Center or to prison. Although Lane was originally on EHMA pending sentencing (per the plea agreement – see discussion in second assignment of error), based on the discussions that occurred during the hearings, he cannot claim that he believed his final sentence would involve EHMA. And, in any сase, a mistaken belief about the expected sentence does not constitute a legitimate basis for the withdrawal of a guilty plea. See Hoke and Brooks, supra.
{¶25} The trial court‘s decision to deny Lane‘s motion to withdraw his guilty plea was not an abuse of discretion. The first assignment of error is overruled.
{¶26} In his second assignment of error, Lane maintains that his guilty plea was not voluntarily made as a result of the State‘s failure to abide by the terms of the plea agreement. As a result, he contends that his plea is void and his conviction must be reversed.
{¶27} At the change of plea hearing, the trial court inquired as to whether there were any arrangements that may have influenced Lane‘s guilty plea. In response, the State told the court that Lane was seeking electronically monitored house arrest and the State did not oppose that request. (Apr. 20, 2012 Tr. 19). Lane now alleges that the State violated the terms of the plea agreement when it
{¶28} Lane‘s arguments fail for several reasons. The written “Petition to Enter a Plea of Guilty,” which was signed by Lane and his attorney, clearly stated the State‘s two underlying agreements upon which the plea was based:
State will not oppose EMHA pending sentencing. State will not pursue charges for counterfeit substance committed Sept. 20, 2011.3
(Emphasis added; Apr. 20, 2012 plea agreement, #14). The plea agreement аlso indicated that he knew that the maximum penalty could be a basic prison term of up to twelve months, and that the sentence he would receive was solely a matter within the control of the judge. (Id. at #13 and #15) And, the plea agreement informed Lane that if he was presently on PRC, he “may be required to serve additional imprisonment in that case in addition to any sentence imposed upon [him] in this case, and that those sentences would be served cоnsecutively.” (Id. at #12)
{¶29} The State‘s agreement was to permit Lane to be on EMHA pending sentencing; nothing was stated as to the State‘s position for the final sentencing. As discussed above in the first assignment of error, several hearings were held when the trial court was considering its options for sentencing Lane. Lane was
{¶30} The State only requested prison time for the PRC involved in the sentence for the 2009 Case. And, the matter of imposing a penalty for the PRC in the 2009 Case never came up until after Lane had violated the terms of his bond agreement in the Current Case and was caught selling heroin again, while he was awaiting sentencing for selling heroin. Lane was the one who violated the terms of the agreement between the partiеs.
{¶31} There was no evidence that the State did not comply with the terms of the plea agreement as designated in this Current Case. The second assignment of error is overruled.
{¶32} In the third assignment of error, Lane submits that he was denied his right to effective assistance of counsel and was prejudiced as a result. Lane claims that his counsel was ineffective because he failed to raise the issue that the State violated the terms of the plea agreement when he moved to withdraw his guilty plea. Lane also claims his counsel was ineffective because he failed to dispute the State‘s motion and the Ohio Department of Rehabilitation and Correction‘s (“ODRC“) report that he had PRC remaining and that the amount of time was 627 days (as of the date of the report). Lane claims that his counsel erred in relying
{¶33} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation; and (2) prejudice—a reasonable probability that but for counsel‘s errors, the proceeding‘s result would have been different. Strickland v. Washington, 466 U.S. 668, 687–688 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. There is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance and that strategy and tactical decisions exercised by defense counsel are well within the range of professionally reasonable judgment and need not be analyzed by a reviewing court. State v. Robinson, 108 Ohio App.3d 428 (3d Dist.1996).
{¶34} There is no evidence in the record that the actiоns of Lane‘s attorneys were deficient in any way, or that he suffered any prejudice as a result of their representation.4 First, based upon our finding in response to the second assignment of error, his attorney cannot be faulted for failing to raise the issue that
{¶35} Next, the matter as to the accuracy of the PRC report by the ODRC was never raised as an issue below or discussed in any way. Lane has not claimed that he ever informed his attorney that there might be a problem with the accuracy of the PRC report, and there is no evidence that the attorney would have had any reason to doubt the records of the ODRC. Furthermore, we do not see how calling his parole officer to testify would have changed matters, because shе was the person who signed the report as stated.
{¶36} However, we note that a motion was filed after sentencing to correct the additional term of PRC pursuant to
{¶37} Therefore, we find that Lane received the assistance of qualified counsel and was not prejudiced by the actions or inactions of his counsel. The third assignment of error is overruled.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
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