No. 92CA005497. | Ohio Ct. App. | Jun 23, 1993
This cause comes before the court upon the appeal of Anthony Ramos upon the denial of his petition for postconviction relief filed pursuant to R.C.
Ramos was indicted in September 1989 on one count of rape (R.C.
On February 8, 1990, Ramos withdrew the plea of not guilty and entered a plea of guilty. After examination by the court, his plea was accepted and he was sentenced to seven to twenty-five years on the rape charge and two years incarceration on the gross sexual imposition charge. *396
Ramos filed a petition for postconviction relief in August 1991, along with a motion for the trial court to recuse itself from determining the merits of the petition. These motions were supported by several affidavits, including those of his trial counsel and several family members who were present during conversations between Ramos and his attorney.
In his petition, Ramos alleged that his trial counsel entered into plea negotiations with the prosecutor and the judge and that his counsel advised him that he would be given an opportunity to plead guilty. In exchange, he would be released on "supershock" probation after serving one year of his sentence. According to Ramos, his counsel also told him that the "deal" would not be discussed on the record.
After pleading guilty and serving one year of his sentence, a motion for supershock probation was filed. However, this motion was denied by the trial court because persons convicted of rape are not eligible for probation under any circumstances. R.C.
Ramos alleged that, because of the faulty assurances of trial counsel, he was induced to plead guilty and, therefore, his plea was not knowingly, voluntarily, and intelligently made. Ramos also argued that, due to the trial judge's alleged involvement in the plea negotiations and the likelihood that she would be called to testify at an evidentiary hearing on the issue, the court should recuse itself.
Both the petition for postconviction relief and the motion for recusal were denied without hearing. Ramos now appeals, asserting three assignments of error.
"II. A defendant is denied the effective assistance of trial counsel, guaranteed by the Ohio and United States Constitutions, when counsel erroneously promises a defendant that he will receive supershock probation after serving one year of a rape sentence."
Appellant alleges that the trial court should have allowed him to withdraw a guilty plea which was entered based upon a promise of probation which was made by his attorney. We find that the trial court should have conducted an evidentiary hearing on these matters and remand the cause for that purpose. *397
In his motion to vacate, appellant alleged that his guilty plea was induced by his attorney's statement that a deal had been made with the prosecution and judge and his promise that supershock probation would be granted within one year of his conviction. If that is true, appellant's guilty plea was arguably not knowingly, voluntarily and intelligently made, and his conviction could be overturned. Machibroda v. United States
(1962),
"Where a claim raised by a petition for postconviction relief under R.C.
Although the legal landscape has changed sinceMilanovich, with the adoption of Crim.R. 11, it remains the law that a petitioner is entitled to a hearing when he has submitted evidentiary documents containing "sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises." State v. Kapper (1983),
Appellee argues, and the trial court held, that it is evident from the record that the trial judge questioned the appellant and elicited all the information required by Crim.R. 11(C) before accepting the plea and that the plea was voluntary. This argument, however, ignores the affidavits1 submitted by the appellant that an agreement was made off the record between his attorney and the prosecutor and judge. Appellant's claim, by its very nature, is one which cannot be determined without an examination of evidence de hors the record. Therefore, a hearing should have been held before the trial court to determine if, in fact, there was sufficient evidence to support appellant's claims of ineffective assistance of counsel and the invalidity of his plea.
These assignments of error are well taken. *398
"The trial court erred in failing to recuse itself from deciding appellant's postconviction petition when the trial court had personal knowledge of disputed evidentiary facts and would have been a witness had an evidentiary hearing been granted."
A court of appeals is without authority to pass upon disqualification or to void the judgment of the trial court upon that basis. Beer v. Griffith (1978),
The judgment of the trial court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
Judgment reversedand cause remanded.
COOK, P.J., and DICKINSON, J., concur.