STATE OF OHIO, Plaintiff-Appellee, vs. MELANIE A. OGLE, Defendant-Appellant.
Case Nos. 13CA18
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 05/21/14
[Cite as State v. Ogle, 2014-Ohio-2251.]
DECISION AND JUDGMENT ENTRY
Melanie A. Ogle, Rockbridge, Ohio, Pro Se Appellant.
Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr., Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee.
McFarland, J.
{¶1} Defendant-Appellant Melanie Ogle appeals the August 14, 2013 judgment entry of the Hocking County Common Pleas Court denying her Motion to Withdraw Alford Plea and Set Aside Judgment Entry of Sentence and Dismiss Indictment. Appellant sets forth two related assignments of error. However, having reviewed the record and the pertinent law, we find the trial court did not abuse its discretion by denying Appellant‘s motion. We therеfore overrule Appellant‘s assignments of error and affirm the judgment of the trial court.
{¶2} In August 2011, Melanie Ogle (hereinafter “Appellant“) was convicted by a jury in the Hocking County Court of Common Pleas of assault on a peace officer. Various appeals have followed Appellant‘s felony conviction. The events serving as a backdrop to Appellant‘s felony conviction and the instant appeal are set forth in detail in State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12 CA11, 12CA12, 12CA19, 2013-Ohio-3420. Pursuant to the assault conviction, Appellant was sentenced to six months in a county jail, a fine, and restitution.
{¶3} Appellant was also required to wear an ankle monitor as part of her sentence on the assault conviction. Appellant executed a contract with Greco‘s Electronic Monitoring Service for ankle monitoring equipment аnd service. On or about November 25, 2011, Appellant submerged the ankle monitor in water causing irreparable damage to the equipment. Appellant was subsequently indicted on February 24, 2012, of one count of vandalism of the ankle monitor in violation of
{¶4} Appellant was arraigned and pleaded not guilty to the indictment. Discovery ensued. Appellant and her counsel filed various pretrial motions. The case was set for change of plea on May 11, 2012. On
{¶5} On June 13, 2012, Appellant filed a Notice of Appeal in the vandalism case, 12CR00038. The appellate case was 12CA12 and it was later consolidated with several other pending appeals filed by Appellant.1 On July 3, 2012, Appellant filed a “Motion to Set Aside Judgment Entry of Sentence and Indictment.”2 On July 26, 2013, this court entered its decision, affirming the trial court on the consolidated appeals in State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19, 2013-Ohio-3420.
{¶6} On August 5, 2013, Appellant filed a “Motion to Withdraw Alford Plea and Renewed Motion to Set Aside Judgment Entry of Sentence
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT AND AS A MATTER OF LAW IN OVERRULING HER MOTION TO WITHDRAW ALFORD PLEA AND SET ASIDE JUDGMENT ENTRY OF SENTENCE AND DISMISS INDICTMENT.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT AND AS A MATTER OF LAW IN FINDING THAT ALL ISSUES RAISED IN DEFENDANT-APPELLANT‘S MOTION TO WITHDRAW ALFORD PLEA AND SET ASIDE JUDGMENT ENTRY OF SENTENCE AND DISMISS INDICTMENT HAVE BEEN OR COULD HAVE BEEN RAISED AND DECIDED IN THE DIRECT APPEAL.
A. STANDARD OF REVIEW
{¶7} “[T]he decision to accept or refuse a guilty plea is within the sound discretion of the trial court.” State v. McCann, 4th Dist. Lawrence No. 10CA12, 2011-Ohio-3339, ¶ 8, quoting State v. Byrd, 4th Dist. Athens No. 07CA229, 2008-Ohio-3909, at ¶ 4, citing State v. Bronaka, 11th Dist. Lake No. 2007-L-095, 2008-Ohio-1334, at ¶ 20, Cleveland v. Curtis, 8th Dist. Cuyahoga No. 89843, 2007-Ohio-5961, at ¶ 6. “As such, we will nоt overrule a trial court‘s judgment absent an abuse of discretion.” McCann,
{¶8}
{¶9} Our review of a trial court‘s decision under
B. LEGAL ANALYSIS
1. The Trial Court Erred to the Prejudice of Defendant-Appellant and as a Matter of Law in Overruling Her Motion to Withdraw Alford
II. The Trial Court Erred to the Prejudice of Defendant-Appellant and as a Matter of Law in Finding that All Issues Raised in Defendant-Appellant‘s Motion to Withdraw Alford Plea and Set Aside Judgment Entry of Sentence and Dismiss Indictment Have Been or Could Have Been Raised and Decided in the Direct Aрpeal.
{¶10} We consider Appellant‘s assignments of error jointly. Appellant essentially argues at the May 11, 2012 plea hearing, her attorney was incompetent, the prosecutor deceived her, and as a result, she was caused to have an erroneous understаnding of her appeal rights. Appellant contends she entered the Alford Plea with the understanding she did not waive her appellate rights and therefore, her plea was not knowing, intelligent, and voluntary. She asserts she told her attorney that waiving her right to appeal was a “dеal-breaker.” Appellee responds that Appellant is attempting to “rehash” issues already decided by this court and the trial court. Appellee further points out, what we previously found in State v. Ogle, supra, at ¶ 93, that there was a factual basis for Appellant‘s Alford Plea and, therefore, the trial court did not abuse its discretion in accepting her plea.
{¶11} We construe Appellant‘s motion pursuant to
{¶12} Here, Appellant does not raise the exact same issues as she did in the consolidated appeal. In the prior consolidated appeal, Appellant contended: (1) the trial court erred in accepting her plea when there was no evidence the alleged victim did not consent to her actions; and (2) the trial court abused its discretion when it fаiled to conduct an evidentiary hearing pursuant to
“By entering a plea agreement, Appellant effectively waived her right to appeal, except as to issues of knowledge and voluntariness of the plea. Notably, herein the record herein reveals Appellant‘s age, experience, background, and education, and along with the transcript, supports an interpretation that Appellant‘s pleа was intelligent and voluntary.” Ogle, supra, at ¶¶ 88-93.
“Appellant entered her plea pursuant to a negotiated agreement. As such, Appellant essentially waived any arguments regarding her Alford plea, but for knowledge and voluntariness. We note, however, the State read the factual basis into the record and Appellant did not object to the recitation of facts. Appellant was questioned at length as to her understanding of the plea, her constitutional rights, and the process. Specifically she was asked if she had discussed any defenses with her counsel. She was also asked about her reasons for entering the pleа. The trial court also asked numerous questions which indicated her knowledge and voluntariness. We find the trial court did not abuse its discretion in accepting her plea and overrule this assignment of error.” Ogle, supra, at ¶ 93.
{¶14} As to Appellant‘s second assignment of error in her previous consolidаted appeal, we noted a trial court need only conduct an evidentiary hearing where the facts, as alleged by the defendant, would indicate a manifest injustice would occur by allowing a plea to stand.3 We further noted a hearing is not required if a defendant‘s аllegations are “conclusively
and irrefutably contradicted by the record.” Ogle, supra, at ¶ 97, quoting State v. Moore, 4th Dist. Pike No. 01CA674, 2002-Ohio-5748, at ¶ 17. We concluded no manifest injustice occurred by allowing her plea to stand and, therefore, the trial court did not abuse its discretion by failing to conduct an evidentiary hearing.
{¶16} We recently discussed the doctrines of res judiсata and law of the case in Quality Car & Truck Leasing, Inc., v. Pertuset, 4th Dist. Scioto No. 13CA3565, 2014-Ohio-1291. There, we held because this Court had already affirmed the trial court‘s grant of judgment on the pleadings in favor of Appellees, and because Appellant‘s current argument could and should have been raised as part of the direсt appeal, Appellants’ arguments were barred. We discussed the “law of the case” doctrine which provides: “*** that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” (internal citations omitted.) Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
{¶18} The Special Prosecutors case actually involved a trial court‘s subsequent grant of a motion to withdraw a guilty plea when the defendant “lost the appeal of a conviction based upon the guilty pleа.” Id. at 28. The Supreme Court of Ohio reasoned: “[A]llowing the trial court to consider a
{¶19} Based on the case law set forth above, we find the trial court did not err or abuse its discretion by overruling Appellant‘s Motion to Withdraw Alford Plea and Set Aside Judgment Entry of Sentence and Dismiss Indictment. This court had already affirmed the trial court‘s judgment acceрting Appellant‘s Alford Plea. Appellant‘s additional
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed tо Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking 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 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 the mandate pursuant to Rule 27 of the Rules of Appellate Proсedure.
Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL
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.