State v. McGradyState v. McGrady
Rendered on the 9th day of July , 2010.
ELIZABETH A. ELLIS, Atty. Rеg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
DAVID A. SAMS, Atty. Reg. No. 0055235, P. O. Box 40, W. Jefferson, Ohio 43162
Attorney for Defendant-Appellant
DONOVAN, P.J.
{¶ 1} Defendant-appellant Olivia K. McGrady appeals from her conviction and sentence on one count of violating a protection order, in contravеntion of
I
{¶ 2} The charges against Olivia stemmed from an incident which occurred on March 1, 2009. Prior to the date on which the offenses occurred, Olivia’s mother, Laundra McGrady, sought and was granted a domestic violence temporary protection order against Olivia which restrained her from contacting Laundra or entering the residence of her mother. On March 1, 2009, Olivia called Laundra by phone and then traveled to her mother’s residence, all in contravention of the protection order. Upon arriving at the residence, Olivia gained access to the house and stole property valued between $500.00 and $5,000.00.
{¶ 3} On March 23, 2009, Olivia was charged by secret indictment with one count of violating a protection order, in contravention of
{¶ 4} On May 26, 2009, Olivia plead guilty to one count of violating a protection order and one count of theft. The State had agreed to reduce the burglary charge down to one count of theft. The trial court ordered a pre-sentence investigation and scheduled Olivia’s sentencing hearing for July 17, 2009, at 2:30 p.m.
{¶ 5} Prior to the sentencing hearing, Olivia filed a motion to withdraw her plea and supporting affidavit on July 15, 2009. As a basis for the requеst, Olivia argued that her plea was not made knowingly nor voluntarily. During the subsequent hearing on July 17,
{¶ 6} It is from this judgment that Olivia now appeals.
II
{¶ 7} Olivia’s first assignment of error is as follows:
{¶ 8} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS HER PLEA WAS NOT KNOWINGLY, INTELLIGENTLY AD VOLUNTARILY ENTERED.”
{¶ 9} In her first assignment, Olivia contends that thе trial court erred when it failed to inform her during the Crim. R. 11(C) colloquy, of her constitutional right to a unanimous jury. Olivia also asserts that the court erred when it failed to advise her of her right to testify on her own behalf.
{¶ 10}
{¶ 11} In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 12} A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86, 93;
{¶ 13} A trial court must strictly comply with Crim. R. 11 as it pertains to the waiver of federal constitutional rights. These include the right to trial by jury, the right of confrontаtion, and the privilege against self-incrimination. Id. at 243-44. However, substantial compliance with
{¶ 15} We also find no merit to Olivia’s assertion that hеr plea was rendered void by the court’s failure to inform her of her right to testify on her own behalf. During the
{¶ 16} “The Court: *** In addition, you would have the right to call your own witnesses to testify for you at trial, and if those witnesses were for any reason unwilling or reluctant to come in and testify, [defense counsel] could force them to come testify by virtue of what is called compulsory process or subpoena power of the Court.
{¶ 17} “You have the right to demand the State of Ohio prove each and every element of the offenses they claim you committed beyond a reasonable doubt.
{¶ 18} “Also, you have a presumption of innocence. At your trial you have the right to remain silent. No one can force you to testify against yourself, and if you did
{¶ 19} While the court did not expressly advise Olivia that she could testify on her own behalf at trial, the court did state that she did not have to provide testimony against herself, or otherwise incriminate hersеlf. It is implicit in the court’s colloquy with Olivia that she could testify at her trial if she so desired, but that no one could force her to do so. Moreover, other than pointing out alleged deficiencies in the court’s
{¶ 20} Olivia’s first assignment of error is overruled.
III
{¶ 21} Olivia’s second assignment of error is as follows:
{¶ 22} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT OVERRULED HER PRE-SENTENCE MOTION TO WITHDRAW HER PLEA BASED ON A CLAIM OF INNOCENCE AND IN THE ABSENCE OF ANY SHOWING OF PREJUDICE BY THE STATE.”
{¶ 23} In her second assignment, Olivia argues that the court erred when it denied her pre-sentence motion to withdraw her guilty pleas.
{¶ 24} A motion to withdraw a plea of guilty or no contest is governed by
{¶ 25} “A motion to withdraw a plea of guilty or no contest may be made only
{¶ 26} The Ohio Supreme Court has ruled that a trial court should “freely and liberally grant” a pre-sentence motion to withdraw a guilty plea, provided that the defendant provides a reasonable and legitimate basis for the withdrawal. State v. Xie (1992), 62 Ohio St.3d 521, 526-27. However, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Id. at paragraph one of the syllabus. A decision to allow the withdrawal of a guilty plea before sentencing is within the sоund discretion of the trial court. Id. at paragraph two of the syllabus.
{¶ 27} In reviewing whether the trial court abused its discretion, we apply the following factors: “(1) whether the accused was represented by highly competent counsel; (2) whether the accused was given a full
{¶ 28} On appeal, Olivia contends that the trial court failed to give full and fair consideration to her motion, and that no evidence was adduced which demonstrated that the State would suffer any prejudice as a result of the withdrawal. Olivia also argues that a pre-sentence motion to withdraw a plea should be freely and liberally granted.
{¶ 30} Upon review of the record, we find no error in the trial court’s ruling. Olivia was given a complete and impartial hearing regarding the withdrawal of her pleas, and she was given ample opportunity to explain her reasons for seeking withdrawal. Olivia’s basis for seeking the withdrawal, however, revealed only a change of heart. The cоurt provided Olivia a hearing on her motion to withdraw her pleas and listened to Laundra’s testimony regarding her belief that Olivia had not done anything wrong and that she simply needed help for her substance abuse problems. It is apparent from the record thаt the court did not give any weight to Laundra’s contradictory testimony regarding Olivia’s criminal behavior. Laundra’s testimony was internally inconsistent and primarily a mother’s plea for treatment in lieu of imprisonment. The record also reflects that Olivia was reprеsented by highly
{¶ 31} Simply put, there is no indication from the record that Olivia’s decision to file a motion to withdraw her pleas was anything other than a mere “change of heart,” which is not a sufficient basis upon which a defendant can rely in order to successfully withdraw her guilty pleas. Under these circumstances, the trial court did not abuse its discretion in denying Olivia’s motion to withdraw her guilty pleas.
{¶ 32} Olivia’s second assignment of error is overruled.
IV
{¶ 33} Olivia’s third and final assignment of error is as follows:
{¶ 34} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY THE IMPOSITION OF A PRISON TERM GREATER THAN THE MINIMUM TERM IN THE ABSENCE OF REQUIRED FINDINGS WHEN SHE HAD NEVER SERVED A PRISON TERM BEFORE.”
{¶ 35} In her final assignment, Olivia argues that the greater than minimum sentences imposed by the trial court are contrary to law and a violation of her constitutional rights. Olivia’s argument in this regard is based on her assertion that the recently decided U.S. Supreme Court case of Oregon v. Ice (2009), – U.S. –, 129 S.Ct. 711, 172 L.Ed.2d 517, has effectively overruled the Ohio Supreme Court’s decision in State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio-856.
{¶ 36} The Ohio Supreme Court has stated that “[t]he general rule is that ‘an
{¶ 37} In this case, it is undisputed that neither Olivia nor her counsel raised the issue of the constitutionality of the Ohio Supreme Court’s holding in Foster in light of the U.S. Supreme Court’s holding in Ice before the trial court. We note that Olivia has not argued ineffective assistance of trial counsel as an assignment of error on appeal. Furthermore, Oregon v. Ice, upon which Olvia relies, only addressed consecutive sentencing. It is undisputed that Olivia has raised this issue for the first time on appeal. As the issue was not raised before the trial court, the issue has been waived and we decline to consider it. Olivia’s final assignment of error is without merit and is overruled.
V
{¶ 38} All of Olivia’s assignments of error having been overruled, the judgment of the trial court is affirmed.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Elizabeth A. Ellis
David A. Sams
Hon. J. Timothy Campbell