State of Ohio v. Jody B. Mitten
Court of Appeals No. S-19-056
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
January 15, 2021
[Cite as State v. Mitten, 2021-Ohio-89.]
Trial Court No. 19 CR 542
DECISION AND JUDMENT
Decided: January 15, 2021
Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
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SINGER, J.
{¶ 1} Appellant, Jody Mitten, appeals from the December 17, 2019 judgment of the Sandusky County Court of Common Pleas convicting her, following acceptance of her guilty plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), of failure to comply with the order of a police officer, a violation
- The Trial Court‘s sentence of Jody B. Mitten (“Appellant“) is excessive and contrary to Ohio law.
- Appellant‘s plеa of guilty was not knowingly, intelligently, and voluntarily made.
{¶ 2} Appellant argues in her first assignment of error that her sentence is excessive and contrary to Ohio law.1
{¶ 3} Our standard of review is limited by statute to whether clear and convincing evidence in the record supports the sentencing court‘s findings under certain еnumerated statutes and whether the sentence is contrary to law.
{¶ 4} Otherwise, the trial court has the discretion to impose any sentence within the statutory range and is not required to give findings or reasons before imposing the sentence, whether it is the maximum or more than the minimum sentence allowable under law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, abrogated by statute on other grounds by State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10 (the appellate standard of review is clear and convincing evidence, not abuse of discretion). The “clear and convincing evidence” standard is defined as “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such cеrtainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 6} Appellant argues the trial court‘s sentence was not the minimum sentence which would effectively rehabilitate appellant. She contends that she has a G.E.D., is employed, receives Social Security Disability benefits due to Fibromyalgia, she has mental health issues, and she has not been involved in аny criminal proceedings in the prior nine years.
{¶ 7} At the sentencing hearing, we find the trial court considered the factors of
{¶ 8} The court determined that a prison term was necessary because of the seriousness of appellant‘s criminal history, the seriousness of her behavior related to this
{¶ 9} Upon a review of the record, we find the trial court considered the relevant factors and those factors support the exercise of the trial cоurt‘s discretion. Therefore, we find appellant‘s first assignment of error not well-taken.
{¶ 10} Appellant argues in her second assignment of error that her Alford guilty plea was not intelligently, knowingly, and voluntarily made because she was not made aware of the fact that her sentence could include a lifetime driver‘s license suspension. She further argues the trial court should have granted her motion to withdraw her guilty plea.
{¶ 11} At the
{¶ 12} In this case, appellant avoided a trial on two additional fifth-degree felonies in exchange for entering an Alford guilty plea to a single charge of failure to comply with the ordеr of a policeman. The written plea agreement indicated that the trial court “shall impose a class two driver‘s license suspension from the range specified [in
{¶ 13} With regard to notification of a mandatory driver‘s license suspension, we have previously held that inclusion of the maximum penalty in the plea agreement was sufficient to establish substantial compliance. State v. Martin, 6th Dist. Sandusky No. S-18-024, 2019-Ohio-2659, ¶ 14-15 (citations omitted). Therefore, we find the trial сourt substantially complied with
{¶ 14} Appellant also argues the trial court erred in denying her motion to withdraw her Alford guilty plea.
{¶ 16}
- whether the state will be prejudiced by withdrawal;
- the representation afforded to the defendant by counsel;
- the extent of the
Crim.R. 11 plea hearing; - the extent of the hearing on the motion to withdraw;
- whether the trial court gave full and fair consideration to the motion;
- whether the timing of the motion was reasonable;
- the
reasons for the motion; - whether the defendant understood the nature of the charges and potential sentences; and
- whether the accused was рerhaps not guilty or had a complete defense to the charge.
State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39, citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (2001). Furthermore, we have held that a change of heart is an insufficient reason to permit withdrawal of the plea. Oregon v. Gaughan, 6th Dist. Lucas No. L-19-1084, 2020-Ohio-4092, ¶ 11, citing State v. Acosta, 6th Dist. Wood No. WD-15-066, 2016-Ohio-5698, ¶ 18 (citations omitted).
{¶ 17} Before the sentencing hearing, appellant filed a motion to withdraw her Alford guilty plea asserting that she has mental health issues, did not understand the proceedings, and that the plea agreement did not represent what she had intended. At the sentencing hearing, appellant argued she was not informed at the plea hearing that her conviction could result in a lifetime driver‘s license suspension. She also wished to withdraw her plea and proceed to trial with a competency evaluation because of her mental health issues (paranoid disorder, borderline personality disorder).
{¶ 18} The trial court recalled that at the plea hearing, appellant had been insistent that her guilty plea be an Alford plea and the court believed appellant had clearly understood that she would be found guilty and the consequences of entering a plea. The court further found that appellant has an extensive criminal history and has had numerous opportunities to seek mental health treatment and had either failed to appear or she was
{¶ 19} We find appellant has failed to demonstrate that the trial court abused its discretion. Furthermore, appellant was notified that she “could” receive a driver‘s license suspension. Since the court did not impose a lifetime suspension, appellant cannot claim that she was prejudiced by the failure of the trial court to сorrectly inform her of the maximum driver‘s license suspension.
{¶ 20} Accordingly, appellant‘s second assignment of error is found not well-taken.
{¶ 21} Having found that the trial court did not commit error prejudicial to appellant and that substantial justice has been done, the judgment of the Sandusky County Court of Common Pleаs is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Christine E. Mayle, J. CONCUR.
Christine E. Mayle, J. CONCUR.
Gene A. Zmuda, P.J. DISSENTS AND WRITES SEPARATELY.
JUDGE
JUDGE
State v. Mitten C.A. No. S-19-056
ZMUDA, P.J., dissenting,
{¶ 22} Because I find that the trial court erred in denying appellant‘s presentence motion tо withdraw her plea without first holding a hearing, I would reverse the trial court‘s judgment and remand this matter to the trial court to conduct a hearing on appellant‘s motion. Since the majority holds otherwise, I must respectfully dissent.
{¶ 23} In State v. Nicholson, 8th Dist. Cuyahoga No. 82825, 2004-Ohio-2394, ¶ 11, the Eighth District noted that courts “have repeatedly held that the trial court must hold a hearing on a presentence motion to withdraw a guilty plea.”
A presentence motion to withdraw a plea is to be liberally granted, and requires a heаring on the matter to determine “‘whether there is a reasonable and legitimate basis for the withdrawal of the plea.‘” State v. Matthews, 6th Dist. Wood No. WD-10-025, 2011-Ohio-1265, ¶ 19, quoting State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph one of the syllabus. However, a post-sentence motion to withdraw a guilty plea is subject to a much higher burden; the plea will only be set aside to prevent a manifest injustice.
Crim.R. 32.1 . Further, a post-sentence motion only requires a hearing if the defendant alleges facts that, if taken as true, would require the court to permit withdrawal of the plea. Matthews at ¶ 30.
{¶ 24} In the present case, the trial court summarily rejected appellant‘s arguments in support of her motion tо withdraw her Alford plea. The court did not conduct a hearing and did not inquire of the appellant as to the reasons why she filed the motion. Thus, appellant was deprived of her opportunity to fully articulate her arguments and support them with evidence.2 As is clear from the above-cited authority, the trial court
{¶ 25} The issue of the trial court‘s failure to hold a hearing was not specifically addressed in the parties’ briefs to this court. However, appellant does argue that her plea was not knowingly, voluntarily, and intelligently entered. In order to resolve this argument, we must look to the trial court record, which reveals that the same argument was raised by appellant in support of her motion to withdraw her plea. As noted above, the trial court summarily rejected appellant‘s argument without holding a hearing, thereby precluding us from conducting a meaningful, substаntive appellate review. Given this backdrop, I find it necessary to reverse the trial court‘s judgment and remand the matter for a hearing on appellant‘s motion. See State v. Brown, 6th Dist. Lucas No. L-18-1140, 2020-Ohio-1650 ¶ 16 (reversing conviction on sufficiency grounds after considering an element of the offense that was not specifically rаised by the defendant on appeal, where the general category of sufficiency was before us).
{¶ 26} Therefore, I dissent from the majority‘s decision to affirm the trial court‘s judgment.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reрorted version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.