STATE OF OHIO, PLAINTIFF-APPELLEE, v. JERRY R. LILES, DEFENDANT-APPELLANT.
CASE NO. 1-18-69
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
July 29, 2019
[Cite as State v. Liles, 2019-Ohio-3029.]
PRESTON, J.
Aрpeal from Allen County Common Pleas Court Trial Court No. CR2018 0304
Judgment Affirmed
APPEARANCES:
Andrea M. Brown for Appellant
Jana E. Emerick for Appellee
{1} Defendant-appellant, Jerry R. Liles (“Liles“), appeals the December 11, 2018 judgment of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{2} On July 11, 2018, Liles‘s vehicle was stopped by an officer of the Lima Police Department after the officer observed Liles commit a marked-lanes violation as he traveled along East Kibby Street in Lima, Ohio. (Doc. No. 2). Following field-sobriety testing, Liles was arrested for operating a motor vehicle while under the influence of alcohol or drugs (“OVI“). (Id.). After Liles was arrested, an inventory search of his vehicle uncovered prescription pills located in the center console. (Id.).
{3} On August 16, 2018, the Allen County Grand Jury indicted Liles on two counts: Count One of operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them in violation of
{5} On September 18, 2018, Liles filed a motion to withdraw his guilty pleas. (Doc. No. 20). In support of his motion, Liles maintained that “he does not drink or use drugs and thus has a defense to the charge.” (Id.). On November 9, 2018, the State filed a memorandum in opposition to Liles‘s motion to withdraw his guilty pleаs. (Doc. No. 25).
{6} A hearing on Liles‘s motion to withdraw his guilty pleas was held on November 16, 2018. (Doc. No. 27); (Nov. 16, 2018 Tr. at 1). On November 21, 2018, the trial court denied Liles‘s motion. (Doc. No. 27).
{7} On December 11, 2018, the trial court sentenced Liles to two years of community control on Count One and two years of community control on Count
{8} Liles filed a notice of appeal on December 18, 2018. (Doc. No. 32). He raises one assignment of error.
Assignment of Error
The trial court erred in not allowing defendant-appellant to withdraw his guilty plea pursuant to
Crim.R. 32.1 when the trial court failed to substantially comply with the requirements ofCrim.R. 11(C)(2) .
{9} In his assignment of error, Liles argues that the trial court abused its discretion by denying his presentence motion to withdraw his guilty pleas. Specifically, Liles argues that “the trial court‘s
{11} When reviewing a trial court‘s denial of a presentence motion to withdraw a guilty plea, this court considers several factors, including: (1) whether the withdrawal will prejudice the prosecution; (2) the representation afforded to the defendant by counsel; (3) the extent of the hearing held pursuant to
{12} Ultimately, “[t]he decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” Xie at paragraph two of the syllabus. “Therefore, appellate review of a trial court‘s decision to deny а presentence motion to withdraw a guilty plea is limited to whether the trial court abused its discretion.” State v. Keehn, 3d Dist. Henry No. 7-14-05, 2014-Ohio-3872, ¶ 14, citing State v. Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995), citing State v. Smith, 49 Ohio St.2d 261 (1977). An abuse of discretion is more than a mere error in judgment; it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). “When applying this standard, a reviewing court may not simply substitute its judgment for that of the trial court.” Keehn at ¶ 14, citing State v. Adams, 3d Dist. Defiance No. 4-09-16, 2009-Ohio-6863, ¶ 33.
{13} Although each of the nine factors referenced above are considered when reviewing a trial court‘s denial of a presentence motion to withdraw a guilty plea, Liles‘s argument on appeal is bаsed entirely on the third and eighth factors—
{14} “All guilty pleas must be made knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “’
(2) In felony cases the court may refuse to accept a plea of guilty or a pleа of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea оf guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify agаinst himself or herself.
{15} Under the substantial-compliance standard, “a slight deviation from the text of the rule is permissible.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31. “[S]o long as the totality of the circumstances indicates that ‘the defendant subjectively understands the implications of his plea and the rights he is waiving, the plea may be upheld.” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990). “Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made.” Montgomery at ¶ 12, quoting Nero at 108.
{16} Liles argues that the trial court‘s
(d) [A]n offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of [
R.C. 4511.19(A) or (B) or other equivalent offenses] isguilty of a felony of the fourth degree. The court shall sentence the offender to all of the following: (i) If the sentence is being imposed for a violation of [
R.C. 4511.19(A)(1)(a) ], * * * in the discretion of the court, either a mandatory term of local incarceration of sixty consecutive days in accordance with [R.C. 2929.13(G)(1) ] or a mandatory prison term of sixty consecutive days in accordance with [R.C. 2929.13(G)(2) ] if the offender is not convicted of and does not plead guilty to [anR.C. 2941.1413 specification]. If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the sixty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year *** If the court imposes a mandatory prison term * * * it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months * * *. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.
***
(v) In all cases, if the vehicle is registered in the offender‘s name, criminal forfeiture of the vehicle involved in the offense in accordance with [
R.C. 4503.234 ].***
(vi) In all cases, the court shall order the offender to participate with a community addiction services provider authorized by [
R.C. 5119.21 ], subject to [R.C. 4511.19(I) ], and shall order the offender to follow the treatment recommendations of the services provider.
{17} Liles argues that the trial court‘s discussion of the maximum penalties for fourth-degree felony OVI was deficient in three respects. First, Liles claims that the trial court failed to adequately explain the maximum penalties possible under
{19} Liles‘s argument is without merit.
{20} Furthermore, we find that Liles has not demonstrated that he was prejudiced by the trial court‘s alleged misstatement of the maximum penalty possible under
{21} Even so, Liles has failed to demonstrate any prejudice arising from the trial court‘s error. See Bailey at ¶ 15-16. Far from being sentenced to a term of
{22} Moreover, Liles incorrectly argues that the trial court erred by informing him that he could be sentenced to a term of community control, which could also eventually include up to 180 days’ incarceration. Under
{23} Next, we consider Liles‘s argument that the trial court‘s plеa colloquy was deficient because there was no discussion of the criminal vehicle forfeiture required under
{24} Finally, we consider Liles‘s argument that the
{26} However, as indicated above, our review of the trial court‘s decision to deny Liles‘s motion to withdraw requires this court to review each of the factors. We begin by identifying those factors that weigh in Liles‘s favor. At the trial court level, the State conceded that allowing Liles to withdraw his guilty pleas would not prejudice the prosecution and that Liles‘s motion “was made within a reasonable
{27} Yet, we find that the remaining factors do not weigh in Liles‘s favor. As to the second factor, we find that Liles was afforded competent legal representation throughout the proceedings in the trial court. With respect to the adequacy of the legal representation provided to Liles, we indulge in a strong presumption that his trial counsel performed competently. See State v. Calhoun, 86 Ohio St.3d 279, 289 (1999), citing Vaughn v. Maxwell, 2 Ohio St.2d 299 (1965) and State v. Jackson, 64 Ohio St.2d 107, 110-111 (1980). The record contains no evidence rebutting this presumption. Instead, the record reflects that Liles received high-quality legal representation. Liles was represented by counsel both at the change of plea hearing and at the hearing on his motion to withdraw, and Liles‘s trial counsel actively participated in both hearings. (See Sept. 12, 2018 Tr. at 2, 21-22); (See Nov. 16, 2018 Tr. at 2-14). Perhaps most importantly, Liles‘s trial counsel‘s efforts during plea negotiations secured Liles a favorable plea agreement. In exchange for Liles‘s guilty pleas, the State agreed to request dismissal of the
{28} In addition, wе find that neither the fourth factor nor the fifth factor weighs in Liles‘s favor. In response to Liles‘s motion, the trial court conducted a full, separate hearing. (See Nov. 16, 2018 Tr. at 1). At the hearing, Liles was able to completely explain his stated reasons for seeking to withdraw his guilty pleas, and he was able to speak and to present witnesses and other evidence on his behalf. (See id. at 4-12). At the close of the hearing, the trial court remarked that it had “already begun to review the transcript of the plea hearing” and that it planned to “review all the evidence [that had] been presented * * * in light of the law.” (Id. at 14). Five days after the hearing, the trial court issued a thorough six-page decision outlining the standards governing presentence motions to withdraw guilty pleas, applying those standards to Liles‘s motion to withdraw, and ultimately denying Liles‘s motion after specifically finding that Liles‘s “stated reasons for wanting to withdraw his plea [were] not believable.” (Doc. No. 27). Thus, the trial court conducted a comprehensive hearing on Liles‘s motion, and it gave full and fair
{29} Lastly, we consider whether the seventh and ninth factors weigh in Liles‘s favor. In this case, because Liles‘s stated reason for seeking to withdraw his guilty pleas is that he has a defense to the charges against him, we will consider the seventh and ninth factors together. In his motion to withdraw his guilty pleas, Liles “maintain[ed] that he does not drink or use drugs and thus has a defense to the charge[s].” (Doc. No. 20). In rejecting Liles‘s stated grounds for his motion to withdraw, the trial court noted that the “credibility of the assertions in the motion to withdraw the plea and [Liles‘s] protestation of innocence [are] * * * in serious question.” (Doc. No. 27). The trial court found that Liles‘s “stated reasons for wanting to withdraw his plea are not believable and there is no credible basis to determine that [Liles] was perhaps not guilty or had a complete defense to the charges.” (Id.).
{30} The record supports the trial court‘s determinations. At the hearing on his motion to withdraw his guilty pleas, Liles insisted that he does not drink alcohol. (Nov. 16, 2018 Tr. at 6). He testified thаt he was a “changed man,” but that he decided to plead guilty simply because he “wanted to get out” of jail. (Id. at 5). Liles stated that he wanted to withdraw his guilty pleas so that he could “tell the
{31} However, on cross-examination, Liles admitted that he visited two bars in Lima on the day of the alleged offense. (Id. at 8-9). He further acknowledged that he consumed one shot of liquor at one of the bars he visited. (Id. at 9-10). Nevertheless, Liles continued to maintain that he does not drink alсohol. (Id. at 9-10). Furthermore, although Liles testified that he does not use drugs other than those prescribed to him, he acknowledged that he was in possession of Vicodin when his vehicle was stopped. (Id. at 10). Finally, despite conceding that he had purchased the Vicodin pill from his neighbor, he claimed that he “didn‘t use it.” (Id. at 10-11).
{32} Thus, Liles‘s defense and claims of innocence were completely undermined by his testimony. Although an admission to consuming one shot of liquor is far from conclusive proof that a person operated a vehicle in violation of
{34} In conclusion, although we find that the first and sixth factors weigh in Liles‘s favor, we find that the remaining factors weigh against Liles. Thеrefore, we conclude that, based on the totality of the circumstances, Liles did not have a reasonable and legitimate basis to withdraw his guilty pleas. See Williams, 2018-Ohio-3615, at ¶ 20, quoting Jones at ¶ 20 (“When none of the * * * factors weigh heavily in the defendant‘s favor regarding the presentence withdrawal of a guilty plea, a strong inference arises that the plea is being withdrawn merely because of a
{35} Liles‘s assignment of error is overruled.
{36} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr