State v. MinkerState v. Minker
Rendered on the 23rd day of October, 2009.
NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
MICHAEL ANDRE MINKNER, #529-687, London Correctional Institution, P. O. Box 69, London, Ohio 43140 Defendant-Appellant
FROELICH, J.
{¶ 1} Michael Andre Minkner appeals from a judgment of the Champaign County Court of Common Pleas, which denied his post-sentence motion to withdraw his plea. For
I
{¶ 2} On May 10, 2006, Minkner pled guilty to two counts of trafficking in cocaine (Counts 1 and 2), both fifth degree felonies, in Case No. 2005-CR-224 and, in Case No. 2006-CR-81, to engaging in a pattern of corrupt activity (Count 1), two counts of trafficking in cocaine, a fifth degree felony (Counts 4 and 10), and two counts of trafficking in cocaine, a fourth degree felony (Counts 6 and 8). With respect to Case No. 2005-CR-224, the State asked that the vicinity of a school specification be deleted and for the monetary and motor vehicle specifications in Counts 1 and 2 be dismissed. It further agreed to recommend that Counts 1 and 2 be served concurrently to each other and that the $764.29 seized in the investigation would be applied to any fines and costs imposed. As to 2006-CR-81, the State asked that Counts 2, 3, 5, 7, 9, and 11 be dismissed, and it agreed to a pre-sentence investigation prior to sentencing.
{¶ 3} During the plea hearing, the trial court reviewed the potential sentence that Minkner could receive. The court informed him about community control, stating in part:
{¶ 4} “The Court determines at the time of sentencing whether it is prison [that] would be imposed or whether it is community control. Community control means probation. In that situation the Court supervises your life. The Court can tell you where you can live, with whom you can live, what hours you keep, whether you can drive a motor vehicle, how you dress, how you look, how you conduct yourself, whether you have to pay fines or court costs, whether you have to perform community service, whether you have to spend time in jail or a halfway house type of facility, whether you have to perform
{¶ 5} The court further indicated that, considering that Minkner had served an extended prison sentence in the past and was on post-release control when the new crimes were committed, “the odds would be against your receiving community control.”
{¶ 6} The trial court also informed Minkner that, “[i]f you go to prison at any time, you need to remember the ideas of judicial release and post release control.” The court defined judicial release for Minkner and told him that the court “can either grant or deny the request.”
{¶ 7} Minkner asserts, and the State agrees, that he, in fact, was not eligible for community control or judicial release, because he had been previously convicted of engaging in a pattern of corrupt activity, a second degree felony. See
{¶ 8} Prior to sentencing, Minkner filed a motion to withdraw his pleas, arguing that he had not been given sufficient time to review important discovery materials and he did not have adequate information to knowingly, intelligently, and voluntarily enter his guilty pleas. The trial court denied his motion to withdraw his plea, concluding that his motion reflected a mere “change of heart.” The court also concluded that allowing Minkner to withdraw his guilty pleas would prejudice the State by impairing the ability of the confidential informants involved to continue their investigations in other unrelated drug
{¶ 9} Minkner appealed from his conviction and sentences, claiming that the trial court erred in denying his pre-sentence motion to withdraw his plea. We overruled the assignment of error, and affirmed the trial court‘s judgment. State v. Minkner, Champaign App. No. 2006-CA-32, 2007-Ohio-5574.
{¶ 10} On March 24, 2008, Minkner filed a post-sentence motion to withdraw his guilty plea, claiming that a manifest injustice had occurred when the trial court misinformed him at the plea hearing that he was eligible for community control sanctions when, in fact, he was subject to mandatory imprisonment. Minker noted that his co-defendant, Quinton A. Howard, had filed a motion to withdraw his guilty plea based on the same misrepresentation and the trial court‘s denial of that motion was reversed on appeal in State v. Howard, Champaign App. No. 06-CA-29, 2008-Ohio-419.
{¶ 11} The State opposed Minker‘s motion. It argued that “it would seem that the doctrine of res judicata might apply,” because Minker had previously appealed the denial of a motion to withdraw his plea and Minkner‘s judgment of conviction had been affirmed. The State acknowledged, however, that this appellate district has held that res judicata does not apply to motions to withdraw a guilty plea under
{¶ 12} On April 10, 2009, the trial court denied, without a hearing, Minkner‘s motion to withdraw his plea, adopting the authority set forth in the State‘s memorandum and finding that Minkner had failed to demonstrate a manifest injustice. The court distinguished Howard, stating that Howard involved a direct appeal from the defendant‘s conviction and sentence whereas Minkner had previously appealed his conviction and sentence, including the denial of a pre-sentence motion to withdraw his plea. In a footnote, the court noted that res judicata might apply, citing State v. Wheeler, Montgomery App. No. 18717, 2002-Ohio-284.
{¶ 13} Five days after the trial court‘s decision was journalized, Minkner filed a reply memorandum. On April 17, 2009, he timely appealed the trial court‘s decision.
{¶ 14} Minkner raises two assignments of error. We will address them in reverse order.
II
{¶ 15} Minkner‘s second assignment of error states:
{¶ 16} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S CLAIMS RAISED IN A POST-MOTION TO WITHDRAW GUILTY PLEA PURSUANT TO CRIM.R. 32.1 RELIEF WITHOUT FIRST CONDUCTING A HEARING TO DETERMINE IF RELIEF WAS WARRANTED IN THE CRIMINAL CASE.”
{¶ 17} In his second assignment of error, Minkner claims that the trial court should have held a hearing prior to ruling on his motion to withdraw his plea.
{¶ 18} “A trial court is not necessarily required to hold a hearing before deciding a post-sentence withdrawal motion. A hearing is required only if the facts alleged by the defendant, if accepted as true, would require the plea be withdrawn.” State v. McComb, Montgomery App. Nos. 22570, 22571, 2009-Ohio-295, at ¶19.
{¶ 19} In this case, Minkner‘s basis for his post-sentence motion to withdraw his plea was misrepresentations made by the judge at the plea hearing regarding Minkner‘s eligibility for community control. Minkner attached a transcript of the plea hearing and a copy of our decision in Howard to his motion. Based on Minkner‘s submissions, of which the court could take judicial notice, the trial court could determine, without a hearing, whether the judge had made any misrepresentations that would necessitate the withdrawal of Minkner‘s pleas. The trial court did not abuse its discretion when it ruled on Minkner‘s motion without a hearing. See State v. Smith, Clark App. No. 07 CA 140, 2009-Ohio-164 (no hearing on post-sentence motion to withdraw plea was required where a lab report belied defendant‘s basis for his motion to withdraw his plea).
{¶ 20} The second assignment of error is overruled.
III
{¶ 21} Minkner‘s first assignment of error states:
{¶ 22} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT MICHAEL MINKNER POST-MOTION TO WITHDRAW GUILTY PLEA PURSUANT TO CRIM.R. 32.1 BASED ON CLAIMS THE TRIAL COURT HAD FAILED TO SUBSTANTIALLY COMPLY WITH THE REQUIREMENTS OF CRIM.R. 11(C)(2)(a), BY MISINFORMING HIM THAT HE WAS ELIGIBLE FOR
{¶ 23} In his first assignment of error, Minkner claims that the trial court erred in concluding that the misrepresentations made regarding Minkner‘s eligibility for community control did not constitute a manifest injustice.
{¶ 24}
{¶ 25} A defendant who files a post-sentence motion to withdraw his guilty plea thus bears the burden of establishing a “manifest injustice.” State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus; State v. Milbrandt, Champaign App. No.2007-CA-3, 2008-Ohio-761, at ¶8. A manifest injustice has been defined as “a clear or openly unjust act” that involves “extraordinary circumstances.” State v. Stewart, Greene App. No. 2003-CA-28, 2004-Ohio-3574, at ¶6. “[A] ‘manifest injustice’ comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.” State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499. ”
{¶ 26} We review a trial court‘s decision on a motion to withdraw a guilty plea for an abuse of discretion. State v. Whitmore, Clark App. No. 06-CA-50, 2008-Ohio-2226, at ¶38. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 27} The State claims that the trial court did not err in denying Minkner‘s post-sentence motion to withdraw his plea, because Minkner‘s conviction was affirmed on direct appeal and, alternatively, that his claim does not amount to a manifest injustice because he could have raised the trial court‘s alleged misstatement regarding his eligibility for community control in his earlier appeal. We agree that, because Minkner brought a pre-sentence motion to withdraw his plea and could have raised the alleged
{¶ 28} In State v. Wolford (Sept. 17, 1999), Miami App. No. 99 CA 10, we acknowledged that claims presented in
{¶ 29} Although Wolford found res judicata did not apply to
{¶ 30} ”
{¶ 31} “Failure to comply with the requirements of
{¶ 32} Since Wolford and Hartzell, we have consistently held that a motion to withdraw a plea based on a failure to comply with
{¶ 33} Here, Minkner argues that his guilty pleas were not knowingly, intelligently, and voluntarily given under
{¶ 34} Whether or not Minkner‘s first appellate counsel should have raised this issue is not appropriately before the court at this time.
{¶ 35} The first assignment of error is overruled.
IV
{¶ 36} The judgment of the trial court will be affirmed.
DONOVAN, P.J. and WOLFF, J., concur.
(Hon. William H. Wolff, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Nick A. Selvaggio
Michael Andre Minkner
Hon. Roger B. Wilson