STATE OF OHIO Plaintiff-Appellee -vs- COLLEEN L. PEPPER Defendant-Appellant
Case No. 13 COA 019
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 3, 2014
2014-Ohio-364
Hon. John W. Wise, P. J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 09 CRI 064; JUDGMENT: Affirmed
For Plaintiff-Appellee
RAMONA J. ROGERS PROSECUTING ATTORNEY PAUL T. LANGE ASSISTANT PROSECUTOR 110 Cottage Street, Third Floor Ashland, Ohio 44805
For Defendant-Appellant
JAMES H. BANKS Post Office Box 40 Dublin, Ohio 43017
{1}. Appellant Colleen L. Pepper appeals from the decision of the Court of Common Pleas, Ashland County, which denied her motion to withdraw her 2010 guilty plea and vacate her corresponding conviction and sentence for complicity in the illegal use of a minor in nudity oriented material and for possession of cocaine. The relevant facts leading to this appeal are as follows.
{2}. On February 19, 2009, law enforcement officers entered the residence of appellant and Joseph F. Holson, Jr. on Township Road 1335 in Ashland, Ohio, pursuant to a search warrant. Officers found cocaine, prescription drugs (not prescribed to either appellant or Holson), and various items of drug paraphernalia. Officers also found a number of homemade pornographic videos which had been filmed in the house.
{3}. One of the videos depicts appellant and Holson viewing a seventeen-year-old female, M.B., who is seen trying on lingerie and in various states of nudity. At points in the video, close-up filming was conducted showing the victim‘s anus, vagina, and breasts. M.B. later provided a statement to investigating police officers indicating that she was seventeen years old at the time of the video and was a junior in high school.
{4}. In August 2009, with the assistance of retained counsel, appellant pled guilty in the Ashland County Common Pleas Court to a bill of information containing one count of complicity to illegal use of a minor in nudity-oriented material, a felony of the fifth degree, and one count of possession of cocaine, also a felony of the fifth degree.
{6}. On January 31, 2013, over three years after she was sentenced, appellant filed a “motion to withdraw guilty plea and vacate conviction and sentence.” On February 8, 2013, the State filed a response to the motion.
{7}. On February 13, 2013, the trial court denied part of appellant‘s motion without a hearing and scheduled the remaining portions for a hearing.1
{8}. In May 2013, the trial court conducted a hearing in regard to appellant‘s decision to subpoena the Ashland County Prosecutor to testify regarding the motion to withdraw guilty plea. Following this hearing, the trial court ordered the parties to file additional legal memoranda. On May 28, 2013, the State filed a memorandum of law and therein requested that the court deny the remaining claims in appellant‘s motion to withdraw guilty plea without conducting a hearing.
{9}. On June 10, 2013, the trial court overruled, in its entirety, appellant‘s motion to withdraw guilty plea and vacate conviction and sentence.
{10}. Appellant presently raises the following three Assignments of Error:
{11}. “I. THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON APPELLANT‘S MOTION TO WITHDRAW HER GUILTY PLEAS AND VACATE HER CONVICTIONS DESPITE THE FACT THAT BOTH
{12}. “II. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT‘S MOTION TO WITHDRAW HER GUILTY PLEA AND VACATE HER CONVICTIONS PURSUANT TO R.C. SECTION 2953.21 AND FURTHER ERRED IN FINDING THAT THE APPELLANT ASSERTED HER SAID MOTION BASED SOLELY ON CRIMINAL RULE 32.1.
{13}. “III. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SET ASIDE HER GUILTY PLEAS TO CORRECT MANIFEST INJUSTICE PURSUANT TO CRIMINAL RULE 32.1 BASED UPON NEWLY DISCOVERED EVIDENCE AND/OR INEFFECTIVE ASSISTANCE OF COUNSEL.”
{14}. We will address appellant‘s second assigned error first.
II.
{15}. In her Second Assignment of Error, appellant argues the trial court erred in failing to treat her motion to withdraw guilty plea and vacate her conviction and sentence as a petition for post-conviction relief, and in failing to grant same. We disagree.
{16}. The Ohio Supreme Court has clearly held that post-conviction relief pursuant to
{17}. The aforesaid time requirements for PCR petitions are set forth in
{18}. “Except as otherwise provided in
{19}. In turn,
{20}. “Whether a hearing is or is not held on a petition filed pursuant to
{21}. “(1) Both of the following apply:
{22}. “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
{23}. “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{24}. “(2) The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing was performed under
{25}. “***”
{26}. In the case sub judice, the record clearly reveals that appellant‘s motion to withdraw plea and vacate conviction was filed more than three years after the court issued its entry of sentence. Thus, appellant would have had to rely on
{27}. We therefore hold the trial court did not err in declining to treat appellant‘s motion to withdraw guilty plea as a petition for post-conviction relief.
{28}. Appellant‘s Second Assignment of Error is overruled.
I., III.
{29}. In her First Assignment of Error, appellant contends the trial court erred in declining to conduct an evidentiary hearing on her motion to withdraw her 2010 guilty plea and vacate her conviction and sentence. In her Third Assignment of Error, appellant argues the trial court erred in failing to grant said motion. We disagree on both counts.
{30}.
{32}. A hearing on a post-sentence motion to vacate a prior plea is not required unless the facts as alleged by the defendant, if accepted as true, would require the plea to be withdrawn. See City of Uhrichsville v. Horne (Dec. 26, 1996), Tuscarawas App. No. 96AP090059, 1996 WL 753208. Generally, a self-serving affidavit of the movant is insufficient to demonstrate manifest injustice. See State v. Wilkey, Muskingum App. No. CT2005-0050, 2006-Ohio-3276, ¶ 26.
Age of Victim
{33}. Appellant‘s first basis for withdrawal of her guilty plea centers on the age of M.B., the victim of the pornographic video which formed the basis of the charge of complicity in the illegal use of a minor in nudity-oriented material. Attached to the motion to withdraw plea is an affidavit appearing to be executed by M.B. on October 24, 2012, in which she avers that the filming at issue happened after her eighteenth
{34}. As noted in our statement of facts, M.B. originally notified law enforcement that she was seventeen years old at the time of the filming. This is confirmed by the date stamp on the video showing it was filmed on September 2, 2007, when the victim was seventeen. Holson, appellant‘s co-defendant, at one point in the investigation referred to M.B. as the “seventeen-year-old victim.” Finally, we note M.B. did not allege in her affidavit that the State was mistaken as to her date of birth. The bill of information, to which appellant pled, contains a range of the dates of offense that remains consistent with M.B.‘s date of birth and thus her age of seventeen at the time.
Ineffective Assistance of Trial Counsel
{35}. Appellant, via her own affidavit attached to the motion to withdraw her plea, also presented numerous allegations of ineffective assistance of trial counsel related to the entry of her plea. These included, inter alia, claims that her trial counsel: (1) failed to review the search warrant affidavit, obtain discovery, and investigate the age of the victim; (2) gave her erroneous information upon which she relied in pleading; (3) assured her she would only receive community control; (4) failed to advise her regarding property forfeiture; (5) failed to apprise her or inaccurately apprised her of the ramifications of a sex offender classification; (6) failed to inform her of additional restrictions stemming from her plea and conviction; (7) did not properly clarify the issue of additional potential charges by the prosecutor; (8) failed to advise her of the
{36}. The record before us contradicts a number of appellant‘s claims or, in the alternative, shows the trial court at multiple points ensured that appellant was informed of her rights. For example, appellant signed a waiver of rights and guilty plea form, which sets forth that appellant would be placed on post release control for five years if she was sentenced to prison, and the trial court duly advised appellant of post-release control during the plea hearing. See Plea Hearing Tr. at 10-11. The trial court again advised appellant concerning post release control at sentencing. See Sentencing Transcript at 15-16. Likewise, appellant‘s claim that she was not advised of her rights regarding appeal is not supported by the record. See Sentencing Transcript at 17. Appellant was also advised of her appeal rights in her signed guilty plea form.
Additional Claims
{37}. Appellant also continues to urge that the trial court judge “demonstrated prejudice” against her. See Appellant‘s Brief at 14-15. However, as this issue has been redressed by the Ohio Supreme Court, we will not herein revive it.
{38}. Finally, appellant points out several claimed discrepancies or gaps in the pre-sentence investigation report, essentially using the PSI (which was not finalized until after the plea hearing) as a means of showing issues her trial counsel could have raised by going to trial. We find none of these arguments persuasive under a “manifest injustice” standard. We further find no merit in appellant‘s speculative assertion that the trial court did not properly review the PSI in addressing the motion to withdraw plea.
{39}. Under the “manifest injustice” standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire, Licking App.No. 09 CA-132, 2010-Ohio-2566, ¶ 60, citing Smith, supra, at 264. The length of passage of time between the entry of a plea and a defendant‘s filing of a
{40}. In its response brief, the State asserts that appellant entered a negotiated plea to the two fifth-degree felonies, even though the nudity-oriented material charge could have been brought as a second-degree felony. In the review of an attempt to withdraw any such negotiated plea after the fact, we must weigh any imperfections in the process against the possibility that the defendant is avoiding a much harsher result by resolving the case. We also bear in mind that the trial court is under a duty pursuant to
{41}. Upon review of the entirety of appellant‘s claims in support of her motion to withdraw plea, we are unpersuaded the trial court in the case sub judice abused its
{42}. Appellant‘s First and Third Assignments of Error are therefore overruled.
{43}. For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Ashland County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.