State v. PenaState v. Pena
Jeffrey V. Goodman, Fowler, Goodman & O’Brien, LPA, Inc., 119 West Market Street, Warren, OH 44481 (For Defendant-Appellant).
O P I N I O N
EUGENE A. LUCCI, J.
{¶1} Appellant, Rolfi M. Pena, Jr., appeals the judgment of the Trumbull County Court of Common Pleas convicting him of Domestic Violence, a third-degree felony, in violation of
{¶3} At arraignment, appellant pleaded not guilty to both counts. Later, appellant changed his plea and entered a plea agreement with the state. Pursuant to the agreement, the state agreed to dismiss the felonious assault charge and to jointly recommend a sentence of 12 months imprisonment if appellant pleaded guilty to domestic violence. The court held a change of plea hearing and accepted appellant’s guilty plea.
{¶4} On September 29, 2022, the court held a sentencing hearing. The state noted that although appellant had stated during his pre-sentence investigation that he had recently contacted the victim, their relationship was “on again and off again” and that the state still recommended 12 months imprisonment.
{¶5} The court had the following exchange with appellant:
THE COURT: Do you remember -- do you remember when you entered the plea what I told you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: What did I tell you if you had any contact with the victim? What did I tell you was going to happen? I told you -- I lectured you pretty sternly, and I said, you don’t have any contact with the victim directly or indirectly. And if you do, you are not going to like what happens at sentencing. Do you remember that?
THE DEFENDANT: I don’t remember you saying that to me, Your Honor.
* * *
THE COURT: Well, I made you a promise at sentencing -- when you pled that if you had any contact you could kiss goodbye your agreed sentence. That sentence is gone.
DEFENSE COUNSEL: Judge, at this time, insofar as the Court has not sentenced Mr. Pena yet, I would make a motion to withdraw his plea. THE COURT: Denied. Anything else you’d like to say?
{¶6} The change of plea hearing transcript reveals that the court never admonished appellant that it would not consider his joint recommendation of sentence if he had any contact with the victim. The court proceeded with sentencing and sentenced appellant to the maximum sentence, a 36-month term of imprisonment.
{¶7} Appellant appeals and raises one assignment of error:
{¶8} “The trial court committed reversible error when it failed to conduct a hearing to determine whether there is a reasonable and legitimate basis for the defendant to withdraw his plea.”
{¶9} Pursuant to Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶10} As a general rule, “a presentence motion to withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Id. at paragraph one of the syllabus. “The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” Id. at paragraph two of the syllabus.
{¶12} On a pre-sentence motion to withdraw a guilty plea, “the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie at 527.
{¶13} “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.” State v. Gibson, 11th Dist. Portage No. 2007-P-0021, 2007-Ohio-6926, ¶ 32, quoting State v. Wilkey, 5th Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶ 25, citing 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.” Gibson at ¶ 32, quoting Wilkey at ¶ 25, citing Xie, at paragraph one of the syllabus. “‘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, quoting Wilkey at ¶ 26, quoting State v. Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 18.
{¶14} In this case, the motion to withdraw was orally made only after the trial court expressly stated it was rejecting the parties’ jointly recommended, 12-month sentence.
{¶15} The Second Appellate District has held:
When a defendant discovers before sentencing the particular sentence a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea ordinarily should be treated as a post-sentence motion. This is so because a defendant cannot test the sentencing waters and then move to vacate his plea just before sentencing if he receives an unpleasant surprise. State v. Wallen, Montgomery App. No. 21688, 2007-Ohio-2129, ¶ 22.
State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 8.
{¶16} Although this court has not specifically applied the Second District’s analytic approach, we now formally adopt its rule.
{¶17} In this case, the trial court, prior to imposing the 36-month prison term, noted it had reviewed the presentence investigation report (“PSI“). The court stated:
Starting at the age of 19, you got convicted of Domestic Violence: 19, Domestic Violence; 20 years old, Obstruction of Official Business; Aggravated Assault; Interference with Custody; Falsification; Resisting Arrest; Domestic Violence; Domestic Violence; Resisting Arrest, which you were on active probation for. Another Domestic Violence; Assault; Menacing, that you were on probation for. And you were on community control for both of these offenses when you got charged with this Domestic Violence. And you had -- while this case was pending you got charged with another Domestic Violence * * *.
{¶18} After the recitation of appellant’s lengthy criminal record, which appellant did not dispute, the trial court underscored that appellant had contact with the victim while in jail. At the time, there was a protection order preventing appellant from contacting the victim. The court erroneously stated that it had made appellant a promise when he
{¶19} We acknowledge that the trial court did not advise appellant at the plea hearing that the jointly recommended sentence would not be accepted if appellant had contact with the victim. We do not, however, find this inherently problematic. Appellant did not claim he was unaware of the protection order. And, appellant was clearly aware sentencing in the underlying matter was pending; still, he contacted the victim without regard to the outstanding order and without regard to the potential impact this violation might have on his pending sentence. While the trial court may not have admonished appellant during his plea that no contact with the victim was sine qua non for its acceptance of the jointly recommended sentence, the protection order itself was enough to place appellant on notice that any violation could jeopardize a favorable sentence.
{¶20} That said, once the trial court stated the jointly recommended sentence “is gone,” defense counsel moved to withdraw the guilty plea. The trial court’s statements that appellant could “kiss goodbye” the jointly recommended sentence and “[t]hat sentence is gone” were sufficient to place appellant on notice that he would not receive the 12-month agreed-upon sentence. That is, appellant had, at that point, “discovered” he would not receive the previously agreed-upon sentence. This is tantamount to the scenario described by the Second District – appellant discovered his sentence would exceed the agreed-upon sentence and only then decided to move the court to withdraw. In effect, appellant was using the plea-bargaining process to “test the sentencing waters.” Without any objection or additional proffer by counsel as to an alternative, reasonable basis for seeking withdrawal, this court has no choice but to draw this inference. The so-
{¶21} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The Supreme Court of Ohio has defined “manifest injustice” as “‘a clear or openly unjust act.‘” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), quoting Webster’s Third New International Dictionary 1164, 1375 (1986).
{¶22} The Supreme Court of Ohio has also stressed that post-sentence withdrawal “is allowable only in extraordinary cases.” (Citation omitted.) Smith at 264. Furthermore, “[a] motion made pursuant to Crim.R. 32.1 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 paragraph two of the syllabus.
{¶23} “‘[A] trial court need not hold an evidentiary hearing on a post-sentence motion to withdraw a guilty plea if the record indicates the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice.‘” State v. Caskey, 11th Dist. Lake No. 2010-L-014, 2010-Ohio-4697, ¶ 11, quoting State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d 607, ¶ 6 (8th Dist.).
{¶24} The Eighth Appellate District has aptly observed that “‘“if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence
{¶25} As noted, appellant did not set forth any specific justification to withdraw his plea. It would therefore appear his only basis was the unfavorable sentence the trial court imposed, which appellant knew would exceed the agreed-upon sentence. In this respect, appellant has demonstrated nothing more than he experienced a “change of heart” after he was informed the sentence would transcend the 12-month, jointly recommended sentence. It is well-settled that a defendant’s change of heart is insufficient to demonstrate a manifest injustice, especially where the “second thoughts” are entirely based upon the dissatisfaction with the sentence imposed. See State v. Kimble, 11th Dist. Trumbull No. 2005-T-0085, 2006-Ohio-6096, ¶ 16; see also State v. Mathis, 8th Dist. Cuyahoga No. 100342, 2014-Ohio-1841, ¶ 23 (“The court will not permit a defendant to withdraw his guilty plea merely because he receives a harsher penalty than he subjectively expected. * * * As our review of the case law indicates, the courts frown upon allowing a defendant to plead guilty to test the potential punishment and withdraw when
{¶26} With the foregoing points in mind, we conclude appellant’s motion to withdraw his guilty plea was merely a function of his recognition that he was, without question, going to be sentenced to a harsher term of imprisonment than that which was recommended. This does not establish a manifest injustice. Under the circumstances of this case, we therefore hold the trial court did not abuse its discretion in denying appellant’s post-sentence motion without a hearing.
{¶27} Appellant’s assignment of error lacks merit.
{¶28} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J., concurs,
JOHN J. EKLUND, P.J., dissents with a Dissenting Opinion.
{¶29} For the following reasons, I respectfully dissent from the majority opinion. I would conclude that Appellant’s motion to withdraw his guilty plea should be construed as a pre-sentence motion.
{¶30} Moreover, in support of finding that Appellant’s motion was a post-sentence motion, the majority relies on legal analysis from the Second District Court of Appeals, stating that:
When a defendant discovers before sentencing the particular sentence a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea ordinarily should be treated as a post-sentence motion. This is so because a defendant cannot test the sentencing waters and then move to vacate his plea just before sentencing if he receives an unpleasant surprise. State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 8.
{¶31} I first note that this court has not adopted that analysis before this opinion. Second, I find that analysis distinguishable from this instance. The distinguishing factor
{¶32} Similarly in State v. Ross, 9th Dist. Summit Nos. 26523, 26524, 2013-Ohio-3220, at the defendant’s plea hearing, he moved to withdraw his guilty plea after the court had stated that it was “a little uncomfortable giving [him] * * * this relatively light sentence.” Id. at ¶ 13. The trial court denied his motion. The defendant appealed, asserting that the trial court denied his motion without holding a hearing. The Ninth District Court of Appeals concluded that the defendant’s motion was a pre-sentence motion to withdraw his guilty plea and that the trial court erred in not holding a hearing on his motion. Id. at ¶ 16.
{¶33} I acknowledge that in Ross, the defendant moved to withdraw his guilty plea prior to sentencing. However, I find this case comparable because the defendant moved to withdraw his guilty plea after the trial court indicated that it would not likely sentence him to the agreed upon sentence. Notwithstanding the vague language the court used in Ross, neither it nor the court in the instant case provided knowledge to the defendant that a particular sentence would be imposed.