State v. MeadeState v. Meade
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
{¶ 1} This is an appeal from Scioto County Common Pleas Court judgments that imposed a restitution order and denied a motion to withdraw a guilty plea. Elder Meade, defendant below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT IMPROPERLY FAILED TO ORDER A RESTITUTION HEARING AFTER THE APPELLANT QUESTIONED THE AMOUNT OF RESTITUTION ORDERED.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
PROPERLY CONSIDERING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶ 2} On July 6, 2017, a Scioto County Grand Jury returned an indictment that charged appellant with one count of burglary in violation of
{¶ 3} On October 12, 2017, appellant (1) waived a reading of the indictment, (2) indicated that he understood his constitutional rights (3) signed a document and acknowledged that the maximum penalty for a second-degree felony is eight years in prison and a $15,000 fine, and (4) entered a guilty plea. The document also stated “Court costs, restitution and other financial sanctions including probation fees may be imposed.” Appellant also signed and acknowledged that the trial court judge fully explained the information to him in open court and on the record, that he understood the potential penalty, and that he explicitly acknowledged that his plea was knowing, voluntary, and intelligent. At the hearing, the trial court again informed appellant of the eight year maximum sentence, but the court opted to sentence appellant to serve four years in prison with three years of post-release control. Although the court did not fine appellant, the court ordered him (1) to pay $2,845 in restitution to the victims, jointly and severally with his co-defendant, and (2) to pay the costs of prosecution. After the court quoted the restitution amount, and once again asked appellant if he had any questions, appellant said “Yes, why is their restitution to them when they got their stuff back? That doesn’t make no sense,” to which the prosecutor stated “We had listed there were some items not recovered.” Appellant stated “I mean it’s on- they got it on paper uh - took pictures of it, they got their stuff
{¶ 4} On November 20, 2017 appellant filed a post-sentence motion to withdraw his guilty plea. The trial court denied the motion, but filed the entry with an incorrect case number. The court subsequently issued a nunc pro tunc entry to correct the error. Although appellant filed his notice of appeal outside the time limit for an appeal, this court accepted the appeal as a delayed appeal and the matter is properly before us.
I.
{¶ 5} In his first assignment of error, appellant asserts that he “clearly disputed the restitution amount” at the end of the change of plea and sentencing hearing and the trial court improperly failed to conduct a hearing after appellant questioned the amount of restitution. The state, however, argues that (1) appellant’s sentence is an agreed sentence and, thus, is not reviewable under
{¶ 6} “‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether a guilty or no
{¶ 7}
{¶ 8} In the case sub judice, at the beginning of appellant’s change of plea hearing the trial court recited and explained the offense. The court also (1) explained that appellant could have time added to his sentence for post-release control for up to three years, (2) explained the
{¶ 9} Appellant contends that because he questioned, during the sentencing hearing, the appropriate amount of restitution his guilty plea should now be deemed to be invalid. We disagree.
{¶ 10} In the case sub judice, the trial court followed up appellant’s question about the
{¶ 11} Appellant cites case authority to support his argument concerning the appropriate amount of restitution. In Lalain, a corporation sought to recover the cost of an expert report on the value of its loss in addition to the time that employees expended in attempting to identify and value the items taken - all of which were returned. The company sought over $63,000 as restitution for expenses that, the Supreme Court of Ohio concluded, were not incurred as a direct and proximate result of the commission of the offense. The court further noted that at sentencing, although the defendant’s counsel disputed the amount of restitution, the court failed to hold a hearing. Id. at ¶ 4. While we have no quarrel with the proposition of law in Lalain, we believe that appellant’s statement and actions at the hearing must result in the conclusion that appellant voluntarily agreed to the terms of his plea agreement, including the amount of restitution.
{¶ 12} The state also argues that appellant’s negotiated plea and agreed sentence is not reviewable. “A felony sentence is not reviewable under
{¶ 13} In the instant case, the sentencing entry under “aggregate sentence” indicates: “This sentence, pursuant to
{¶ 14} Accordingly, based upon the foregoing reasons we overrule appellant’s first assignment of error.
II.
{¶ 15} In his second assignment of error, appellant asserts the trial court abused its
{¶ 16}
{¶ 17} Generally, the standard of review for a post-sentence
{¶ 18} In the case sub judice, appellant pled guilty and was sentenced on October 12, 2017. On November 20, 2017, appellant filed his notice of appeal and his motion to withdraw guilty plea.1 Appellant contends that two cases stand for the proposition that the trial court must conduct a hearing on the motion to withdraw his guilty plea. See State v. Kidd, 168 Ohio App.3d 382, 2006-Ohio-4008, 860 N.E.2d 138, and State v. Norris, 2d Dist. Champaign C.A. No. 2003-CA-25, 2004-Ohio-1483. We believe, however, that both cases are distinguishable from the case sub judice.
{¶ 19} In Kidd, the defendant pled guilty to two counts of trafficking in cocaine in exchange for the dismissal of the remaining counts. After a hearing, the trial court sentenced
{¶ 20} In Norris, the defendant argued that because she did not understand what the letters OMVI meant when she pled guilty, her plea was not voluntary. The Norris court concluded that the denial of Norris’s motion without a hearing constituted an abuse of discretion. The court pointed out that although Norris entered a plea (1) the court did not explain the charge to her before she entered her plea, (2) the uniform traffic ticket did not provide sufficient information, and (3) the officer did not check the box “under the influence of alcohol, drug of abuse” nor the box “prohibited blood alcohol concentration.” In the case sub judice, however, the trial court fully apprised appellant of the charge, the consequences of his plea, and the various rights he would be waiving by entering a guilty plea. Thus, we believe that the facts and circumstances present in this case, including the trial court’s decision to overrule appellant’s motion without conducting a hearing, was proper and did not prejudice appellant.
{¶ 21} In the case at bar it appears that appellant may have later decided, after more reflection, to withdraw his plea based on his displeasure with the restitution order. However, “a
{¶ 22} Accordingly, we overrule appellant’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J.: Concurs in Judgment & Opinion
Harsha, J.: Concurs in Judgment Only
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.