State v. PughState v. Pugh
STATE OF OHIO, PLAINTIFF-APPELLEE vs. WALLACE PUGH, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
RELEASED: August 27, 2009
JOURNALIZED:
Jeffrey M. Brandt
Robinson & Brandt, P.S.C.
629 Main Street, Suite B
Covington, KY 41011
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Wallace Pugh (Pugh), appeals the trial court‘s denial of his second motion to withdraw his guilty plea. Finding no merit to the appeal, we affirm.
{¶ 2} In December 1997, Pugh was charged with seven counts of rape and seven counts of gross sexual imposition.1 The charges involved his daughter, N.P., who was under 13 years of age at the time the incidents occurred. Pursuant to a plea agreement, he pled guilty to four counts of rape. All remaining charges, including the sexually violent predator specifications, were dismissed. In June 1998, the trial court sentenced him to an agreed sentence of 15 years in prison and classified him as a sexual predator.2
{¶ 3} Since then, Pugh has pursued multiple attacks on his guilty plea, including a motion to withdraw his guilty plea, a petition for postconviction relief, two motions for relief from judgment, and a second motion to withdraw his guilty plea.3 He filed his second motion to withdraw his guilty plea in
{¶ 4} N.P. stated in her affidavit that she was 13 years old at the time Pugh was arrested. She claimed that Pugh never abused her or had sex with her. The trial court denied Pugh‘s second motion in December 2008.
{¶ 5} Pugh now appeals, raising two assignments of error for our review. In the first assignment of error, he argues that the trial court abused its discretion by denying his second motion to withdraw his guilty plea without conducting an evidentiary hearing. In the second assignment of error, he argues that the trial court abused its discretion in failing to find a manifest injustice when newly discovered evidence demonstrates that he is innocent. We will discuss these assignments of error together, as they both involve the same facts and standard of review.
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.
{¶ 7} A defendant moving for a post-sentence withdrawal of a guilty plea has the burden of establishing the existence of manifest injustice. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the syllabus. This court has stated that: [a] manifest injustice is defined as a clear or openly unjust act[;] * * * an extraordinary and fundamental flaw in the plea proceeding. * * * [M]anifest injustice comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her. State v. Sneed, Cuyahoga App. No. 80902, 2002-Ohio-6502.
{¶ 8} A motion made pursuant to
{¶ 9} Pugh essentially argues that, in light of the newly discovered evidence he supplied, the trial court‘s decision to deny his second motion to withdraw his guilty plea without a hearing constituted an abuse of discretion. He claims that the new evidence demonstrates a manifest injustice because he is innocent and his plea was involuntary.4
{¶ 10} However, Pugh cannot now claim his innocence, because [a] plea of guilty is a complete admission of guilt. State v. Stumph (1987), 32 Ohio St.3d 95, 104, 512 N.E.2d 598;
{¶ 11}
(2) In felony cases the court may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 13} We note that with respect to nonconstitutional notifications, a guilty plea will be considered knowing, intelligent, and voluntary if, before accepting the plea, the trial court, at the very least, substantially complied with the procedures set forth in
{¶ 14} In the instant case, a review of the record reveals that the trial court informed Pugh of his constitutional rights, the charged offenses, the maximum penalties involved, and that he would be subject to postrelease control for a period of five years following his release from prison. Pugh stated that he understood the rights he was waiving and that he was satisfied with defense counsel‘s representation. When asked by the trial court how he pled to each charge, he stated guilty. The court also asked him if was in fact guilty of [the] offenses * * * and Pugh responded, Yes, ma‘am.
{¶ 16} Thus, we conclude that his plea was taken in compliance with
{¶ 17} We also conclude that the trial court did not err by denying Pugh‘s motion without a hearing. The trial court need not hold an evidentiary hearing in a motion to withdraw a plea if the only evidence provided consists of affidavits from interested parties which conflict with the facts elicited at the plea hearing. State v. Yearby (Jan. 24, 2002), Cuyahoga App. No. 79000. Deference is given to the trial court in cases in which the record demonstrates the court conducted the original plea and was familiar with the facts of the case. In such circumstances, the trial court is in the best position to assess the credibility of the movant‘s assertions. (Citations omitted.) State v. Atkinson, Cuyahoga App. No. 85773, 2005-Ohio 5348.
{¶ 18} Moreover, a post-sentence motion to withdraw a guilty plea is subject to denial without a hearing when the record indicates that the movant is not entitled to relief and the movant has failed to submit
{¶ 19} In the instant case, Pugh claims that the manifest injustice occurred when he pled guilty in the face of false testimony and his new evidence demonstrates that the allegations against him were false. His daughter‘s statement, however, is not new evidence. She claims he never abused her, and she had no knowledge why he went to prison. Moreover, the affidavits on which he relies, are sworn by interested parties–himself, his ex-wife, and his daughter. Thus, the trial court could properly find these affidavits lacked sufficient credibility to require a hearing because of the nature of the evidence provided in these affidavits and the relationship between the affiants and Pugh. In addition, [w]hen a petitioner submits a claim that his guilty plea was involuntary, a record reflecting compliance with
{¶ 21} Accordingly, the first and second assignments of error are overruled.
{¶ 22} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
CHRISTINE T. McMONAGLE, J., and MARY J. BOYLE, J., CONCUR