State v. MullState v. Mull
Rhys Brendan Cartwright-Jones, City Center One Building, 100 Federal Plaza East, #101, Youngstown, OH 44503 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, David A. Mull, appeals the Judgment Entry of the Lake County Court of Common Pleas, in which the trial court denied Mull’s Motion to Withdraw his guilty plea. For the following reasons, we affirm the decision of the trial court.
{¶3} An indictment was filed and Mull was charged with Operating a Vehicle While Under the Influence of Alcohol, in violation of
{¶4} Mull waived his right to be present at his arraignment and the trial court entered pleas of “not guilty” to all the charges on his behalf. Mull then filed a Motion to Suppress, claiming that there was no probable cause or specific and articulable facts warranting his arrest, which the court subsequently denied.
{¶5} On April 27, 2007, Mull withdrew his former not guilty plea and entered a plea of guilty to one count of Operating a Vehicle Under the Influence of Alcohol, a felony of the fourth degree, and a specification pursuant to
{¶7} Approximately 15 months after pleading guilty, Mull, acting pro se, moved to withdraw his guilty plea pursuant to
{¶8} The trial court denied Mull’s pro se motion without a hearing. The court held that Mull’s post-sentence Motion to Withdraw was “barred by the doctrine of res judicata” because “Mull could have raised his claims of ineffective assistance of counsel in a direct appeal.” Moreover, the court found that “[e]ven if not barred by the doctrine of res judicata, *** Mull has not met his burden of showing manifest injustice.”
{¶9} Mull, acting pro se, timely appealed and raised the following assignments of error:
{¶11} “[2.] Trial court [sic] was ineffective by allowing the trial court to sentence appellant as a probation violator when in fact he was not under any form of supervision at the time [of the] alleged offense.
{¶12} “[3.] Trial court erred when it denied appellant’s motion to withdraw guilty plea upon breach of plea agreement.
{¶13} “[4.] When viewing the totality of circumstances surrounding appellant’s plea hearing, counsel failed to advise appellant of all waivers involved in a guilty plea.
{¶14} “[5.] The trial court erred when it failed to abide by the recommended sentence appellant understood he would receive.
{¶15} “[6.] Appellant was denied effective assistance of counsel during the plea and sentencing phase.
{¶16} “[7.] Counsel was ineffective by not discussing the PSI report with appellant and the trial court erred by failing to inquire in open court if appellant and counsel reviewed the PSI report or if it contained false or misleading statements.”
{¶17} Mull subsequently filed a pro se Motion for Appointment of Counsel, which this court granted. We further ordered that Mull’s newly appointed appellate counsel would be granted leave to file a supplemental brief to Mull’s pro se brief.
{¶18} On February 13, 2009, Mull’s appointed appellate counsel filed a Motion for Leave to Withdraw, as counsel, on the grounds of counsel’s belief that “there are no
{¶19} “[1.] The trial court failed to comply with the
{¶20} “[2.] The trial court abused its discretion in disallowing Mull’s motion to withdraw his guilty plea.”
{¶21} Because of the similarities in Mull’s pro se arguments and the potential arguments of appellate counsel, we will consider them jointly. “However, when an Anders brief is filed, an appellate court is ‘required to conduct our own independent review for error.’” State v. Corpening, 11th Dist. No. 2005-A-0058, 2006-Ohio-5290, at ¶5 (citations omitted).
{¶22} Considering Mull’s first pro se assignment of error, Mull argues that his plea was not knowingly, intelligently, and voluntarily made. Correspondingly, Mull’s appellate counsel asserts non-compliance with
{¶23} “In accepting a written plea of no contest to a felony charge, the trial court must adhere scrupulously to the provisions of
{¶24}
{¶25} Mull claims that he “was not advised that by pleading guilty to a specification, the specification possesses the power to serve consecutive sentences.” He further asserts that the judge failed to mention the word “consecutive” at his hearing.
{¶26} “[T]he trial court must orally inform the defendant of the rights set forth in
{¶27} During the plea colloquy, the trial court informed Mull of the sentence he was facing, specifically the court stated: “Do you understand the charge you’re pleading
{¶28} Although the trial court did not mention the word “consecutive“, the trial judge did relay to Mull that the term for the specification would be “in addition to the [potential] 30 months in prison” for the OVI charge.
{¶29} A review of the change of plea hearing transcript and Written Plea of Guilty in the present case demonstrates that the trial court adhered scrupulously to the provisions of
{¶30} The first potential assignment of error and Mull’s first assignment of error are without merit.
{¶32} The Ohio Supreme Court has held that “[c]ounsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance.” State v. Bradley (1989), 42 Ohio St.3d 136, at paragraph two of the syllabus, following Strickland v. Washington (1984), 466 U.S. 668. Moreover, “‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, *** that course should be followed.’” Id. at 143, quoting Strickland, 466 U.S. at 697. To establish prejudice, a defendant must show that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different. Id. at paragraph three of the syllabus.
{¶33} Mull first claims that his trial counsel allowed the court to believe that Mull was on probation at the time of his violation. He claims that his trial counsel’s performance “fell below his professional responsibilities when he failed to obtain documentation proving [Mull] was not on probation at the time of the alleged crime in this matter.” However, it is apparent from the record that Mull’s trial counsel did bring the possible discrepancy to the trial court’s attention. His counsel stated the following to
{¶34} Mull further claims that his trial counsel “neglected to explain all legal elements and ramifications of [his] guilty plea” which “precluded [Mull] from entering the plea knowingly and voluntarily. However, Mull’s counsel relayed to the court that he “reviewed [the written plea of guilty] with him and [Mull] does wish to sign it.” Moreover, based on the discussion above, the trial court fully explained the ramifications of entering a plea of guilty to Mull before it accepted his plea. Therefore, even if Mull’s counsel failed to explain the consequences of a guilty plea, Mull can demonstrate no prejudice, as they were explained to him by the court and Mull chose to plead guilty.
{¶35} Mull also claims that he was suffering from a severe medication withdrawal at the change of plea hearing which affected his cognitive abilities.
{¶36} Additionally, Mull claims that his trial “counsel failed to stop the sentencing proceedings the morning [Mull] told [counsel] he remembered nothing of the Presentence Investigation report.” Further, his counsel was “ineffective by failing to investigate [Mull’s] claim that there was prejudiced information provided in the PSI.”
{¶37} During the sentencing hearing, Mull conveyed to the court that he didn’t recall the statements he made in the PSI report and that he “disagreed with those statements that [he] made.” Mull’s counsel acknowledged that Mull did not do a “good job on his presentence interview.” He attempted to mitigate Mull’s statements in his PSI report, stating that Mull “is having an extremely difficult time dealing with the weight of his situation” and “came off as flippant or disrespectful“, however, “he’s a different person” and is “very conscientious and concerned” about his actions.
{¶38} Mull is essentially complaining about his counsel’s trial strategy. “Strategy and tactical decisions exercised by defense ‘well within the range of professionally reasonable judgment’ need not be analyzed by a reviewing court.” State v. Walker (1993), 90 Ohio App.3d 352, 359 (citation omitted). Mull was neither prejudiced nor prevented from having a fair trial.
{¶40} In his third assignment of error, Mull claims that the trial court abused its discretion by overruling Mull’s post-sentence Motion to Withdraw his guilty plea. He claims that the trial court was “aware that [Mull] was mislead by [the] state and trial counsel into believing he would first receive a fourteen month prison term or the maximum of three and a half years prison term that was recommended by the state.” He maintains that “the manifest weight of injustice calls for allowing the withdrawal of [the] plea.”
{¶41} Mull’s appellate counsel also identifies the abuse of discretion of the trial court in disallowing Mull’s motion as a possible assignment of error; however, he ultimately concludes it is without merit. Mull’s appellate counsel stated that “Mull offered to the court neither competent nor credible evidence either of record or dehors the record that he suffered from a mental disease or defect that rendered him incapable of entering a knowing, voluntary, or intelligent plea. He offered his own conclusions on his mental state. *** [T]he trial court had discretion to deny the motion under
{¶42}
{¶43} For an appellate court to find an abuse of discretion in a case involving a denial of a post-sentence motion to withdraw a guilty plea, it must find more than an
{¶44} Therefore, after sentencing, a defendant has the burden of demonstrating the existence of manifest injustice to withdraw a guilty or no contest plea. State v. Smith (1977), 49 Ohio St.2d 261, at paragraph one of the syllabus. “The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.” State v. Wynn (1998), 131 Ohio App.3d 725, 728 (citation omitted). Since Mull filed his motion to withdraw his guilty plea after he was sentenced, he bore the substantial burden of demonstrating the existence of a manifest injustice.
{¶45} “While a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made before sentencing, the same is not true if the request is made after the trial court has already sentenced the defendant. Xie [62 Ohio St.3d 521,] at paragraph one of the syllabus. In those situations where the trial court must consider a post-sentence motion to withdraw a guilty plea, a hearing is only required if the facts alleged by the defendant, and accepted as true, would require withdrawal of the plea.” State v. Gibson, 11th Dist. No. 2007-P-0021, 2007-Ohio-6926, at ¶32 (citation omitted). “Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice.” Id. at ¶33.
{¶46} Mull waited over 15 months after being sentenced to withdraw his guilty plea. As mentioned above, he was informed of the maximum sentence at both the change of plea hearing and again at sentencing. He was specifically told that the trial
{¶47} Mull’s Motion to Withdraw his guilty plea failed to demonstrate the kind of “manifest injustice” necessary to establish a post-sentence motion to withdraw a guilty plea.
{¶48} Mull’s third assignment of error is without merit.
{¶49} Mull next asserts that the trial court erred by sentencing him to a non-minimum prison term, contrary to the holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Foster declared provisions of Ohio’s felony sentencing statutes requiring judicial factfinding before imposing a more than minimum sentence, maximum sentence, or consecutive sentences unconstitutional. Id. at paragraphs one and three of the syllabus (declaring
{¶50} Therefore, after Foster, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings
{¶51} Contrary to the cases asserted by Mull, in sentencing him, the trial court did not rely upon judicial factfinding, formerly mandated by statute, but now deemed unconstitutional and void by the Supreme Court of Ohio. Additionally, his sentence was within the statutory range.
{¶52} Mull’s fifth assignment of error is without merit.
{¶53} After a thorough and independent review of the record, including the transcripts, and other submissions, we hold the trial court did not err in accepting Mull’s plea, imposing sentence, or denying his Motion to Withdraw his guilty plea. Thus, there are no arguable legal points on the merits of this matter. Counsel’s Motion to Withdraw is granted. The judgment of the Lake County Court of Common Pleas, denying Mull’s Motion to Withdraw his guilty plea, is affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.