STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES S. OBER, Defendant-Appellant.
CASE NOS. 2018-P-0034 2018-P-0035
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
March 11, 2019
2019-Ohio-843
MARY JANE TRAPP, J.
Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case Nos. 09 TRC 3321 and 09 TRC 5316. Judgment: Affirmed.
James S. Ober, pro se, 6150 Allyn Road, Hiram, OH 44234 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, James S. Ober, appeals from the April 6, 2018 judgment entry of the Portage County Municipal Court, Ravenna Division, denying Mr. Ober‘s Motion to Vacate Plea after he failed to appear for the hearing. After a careful review of the record and pertinent law, we affirm the trial court‘s judgment.
Substantive and Procedural History
{¶3} The trial court held a change of plea hearing on September 15, 2009, for both cases in which Attorney Thomas J. Sicuro represented Mr. Ober. At the start of the hearing, the court confirmed with Mr. Ober and Attorney Sicuro that Attorney Sicuro was indeed representing him again. Previously, Mr. Sicuro filed a motion to suppress in Mr. Ober‘s first OVI case (2009 TRC 3321), and shortly after withdrew as counsel. Once representation was confirmed, Attorney Sicuro advised the court that Mr. Ober was withdrawing the motion to suppress the evidence in the first OVI and that Mr. Ober would be pleading guilty to the OVI charges in both cases.
{¶4} The court then engaged Mr. Ober directly in a colloquy to ensure he was knowingly, intelligently, and voluntarily pleading guilty. The court accepted Mr. Ober‘s plea of guilty to both cases and dismissed, on motion of the prosecutor, the remaining charges.
{¶5} In case 2009 TRC 3321, the court sentenced Mr. Ober to a fine of $1,075 and court costs, with $700 of the fine suspended. He was also given a 180-day jail sentence with 174 days suspended on conditions. In case 2009 TRC 5316, Mr. Ober was sentenced to a $1,075 fine with $700 suspended and 180 days in jail with 174 days suspended on conditions.
{¶6} Mr. Ober subsequently filed an appeal, pro se, on August 17, 2009, in case 2009 TRC 3321, where he made several assertions regarding his trial counsel‘s
{¶7} On March 26, 2010, the trial court issued a judgment entry following a hearing to revoke/modify probation to extend Mr. Ober‘s probation until June 16, 2010, and ordered him to report immediately to probation to be placed on SCRAM. Several months later, on December 17, 2010, the court suspended Mr. Ober‘s license after he failed to pay his fines and court costs.
{¶8} Almost eight years later, Mr. Ober filed a motion to withdraw his guilty plea in both cases. The court set a hearing date of April 6, 2018, and notice was sent to Mr. Ober at the address listed on his motion. Mr. Ober failed to appear on the date of the hearing, and the court subsequently denied his motion to vacate plea.
{¶9} The instant appeals followed, which are identical and consolidated for our review since Mr. Ober raises only one assignment of error on appeal:
{¶10} “The trial court erred when it denied Appellant‘s motion for withdrawal of guilty plea after sentencing. Said denial constituted an abuse of discretion.”
{¶11} We note initially that Mr. Ober urges us to review his appeal as a “layman,” stating that: “[t]he Supreme Court has acknowledged defendants petitioning the courts as such and has asked to construe a Defendant‘s argument as a layman.”
{¶12} Although we understand the heavy burden pro se litigants face, there is not a double standard for pro se and represented litigants. As we have explained in the past:
Post-Sentence Motion to Withdraw Guilty Plea Standard of Review
{¶13}
{¶14} “A post-sentence motion to withdraw a guilty plea will be granted only to correct manifest injustice.” State v. Gibson. 11th Dist. Portage No. 2007-P-0021, 2007-Ohio-6926, ¶20, quoting State v. Casas, 2d Dist. Montgomery No. 19049, 2003-Ohio-3237, ¶6, citing
{¶15} “The burden is on the defendant to establish the existence of such injustice. * * * ‘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.‘” Id. at ¶21, quoting Thomson at ¶49, citing State v. Caraballo, 17 Ohio St.3d 66, 67 (1985).
{¶16} “The motion [to withdraw a guilty plea] is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant‘s assertions in support of the motion are matters to be resolved by that court.” Id. at ¶22, quoting State v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶20, citing State v. Smith, 49 Ohio St.2d 261, 264 (1977). “The phrase ‘abuse of discretion’ is one of art, connoting judgment exercised by a court, which does not comport with reason or the record.” State v. Petway, 11th Dist. Lake No. 2016-L-084, 2017-Ohio-7954, ¶7, citing State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).
Denial of Motion to Vacate Plea
{¶18} Mr. Ober first contends the trial court erred in denying his motion to vacate plea on April 6, 2018, due to his failure to appear at the hearing because he did not receive notice of the hearing. The record demonstrates the notice of hearing was sent to the same address he used in his motion, and he does not claim that he also did not receive the judgment entry denying his motion for failure to appear, which was sent to the same home address. Further, there is nothing in the record that indicates a failure of service of the notice of the hearing.
Ineffective Assistance of Counsel
{¶19} Mr. Ober also argues he was denied effective assistance of counsel, claiming that he was unaware he was pleading guilty to both OVI counts and that the cases were combined without his knowledge.
{¶20} “Ineffective assistance of counsel is a proper basis for seeking post-sentence withdrawal of a guilty plea.” Gibson, supra, ¶26, citing State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, ¶27 (2d Dist.), citing State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813 (10th Dist.); State v. Hamed, 63 Ohio App.3d 5 (8th Dist.1983). “In order to prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 694.” Id. (Citation omitted.) “Thus, appellant must show that counsel‘s performance was deficient and
{¶21} Further, “[w]e need not address the two prongs of appellant‘s ineffective assistance of claim in the order set forth in Strickland.” Id. at ¶27, quoting Jackson, supra, at ¶10. “[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. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id., citing Jackson at ¶11, citing Strickland at 697.
{¶22} Mr. Ober claims his attorney, the court, and the assistant prosecutor forced him into pleading guilty to the OVI charges in both cases, and that he was “never ask [sic] to plea to a specific case.”
{¶23} At the outset, we note that Mr. Ober filed his motion to vacate plea on February 20, 2018, nine years after he pleaded guilty. While
{¶24} A review of the change of plea hearing transcript reveals Mr. Ober voiced no issue with Attorney Sicuro‘s representation. The court inquired as to whether Mr. Sicuro was representing Mr. Ober on both cases since he had filed a motion to withdraw
{¶25} The court then ensured Mr. Ober understood his rights he was waiving and the penalties he was facing, and that he was knowingly, intelligently, and voluntarily entering his plea to both cases. The plea hearing was straightforward with no hint of confusion on the part of Mr. Ober as to the charges to which he was pleading guilty, the charges that were being dropped in consideration of his plea, and the sentencing that followed. There is simply nothing to suggest that Mr. Ober‘s counsel‘s representation was deficient or that prejudice resulted therefrom. Further, Mr. Ober failed to allege any facts that would require a withdrawal of his guilty plea either in his motion to vacate plea or his brief on appeal.
{¶26} Mr. Ober has not demonstrated the kind of “manifest injustice” necessary to establish a post sentence motion to withdraw a guilty plea, or that a hearing was required even if the trial court had not set his motion for a hearing.
{¶27} “An evidentiary hearing on a post-sentence motion to withdraw a guilty plea ‘is not required if the facts as alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn.‘” Gibson at ¶33, citing State v. Wilkey, 5th Dist. Muskingham No. CT2005-0050, 2006-Ohio-3276, ¶26, citing State v. Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶18, citing State v. Blatnik, 17 Ohio App.3d 201, 204 (6th Dist.1984). “Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice.” Id., citing Wilkey at ¶26, citing Patterson at ¶20; State v. Laster, 2d Dist. Montgomery No. 19381, 2003-Ohio-1564, ¶8.
{¶29} Accordingly, we overrule Mr. Ober‘s assignment of error.
{¶30} The judgment of the Portage County Municipal Court, Ravenna Division, is affirmed.
TIMOTHY P. CANNON, J.,
MATT LYNCH, J.,
concur.