STATE OF OHIO, Appellee, - vs - HALLAN IVERZON JERONIMO SALES, Appellant.
CASE NO. CA2022-05-056
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/5/2022
2022-Ohio-4326
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2021-03-0312
George A. Katchmer, for appellant.
S. POWELL, P.J.
{1} Appellant, Hallan Iverzon Jeronimo Sales, appeals from the decision of the Butler County Court of Common Pleas denying his presentence motion to withdraw his guilty plea to single counts of fourth-degree felony vehicular assault and first-degree misdemeanor operating a vehicle while under the influence of alcohol. For the reasons outlined below, we affirm the trial court‘s decision.
{3} The charges arose after the then unlicensed and intoxicated Sales caused an automobile accident between himself and a parked police cruiser during the early morning hours of February 25, 2021, while traveling westbound on E. Cresentville Road in West Chester Township, Butler County, Ohio. The crash between Sales’ vehicle and the parked police cruiser caused the victim seated in the police cruiser‘s backseat to be hospitalized for several weeks with a subdermal hematoma that required the victim to undergo emergency neurosurgery. Sales, a non-citizen who immigrated to the United States from his home country of Guatemala, and whose native language is Mam, was 18 years old at the time of the accident.1
{4} On April 14, 2021, Sales appeared at his arraignment hearing and a not guilty plea was entered on Sales’ behalf. The matter then proceeded to discovery and Sales’ trial was scheduled for November 15, 2021. Approximately seven months later, on November 3, 2021, Sales moved the trial court for a continuance of his trial date so that his then attorney, Attorney Lоuis E. Valencia, II, would have time to review certain medical records that the state had yet to receive from the victim.2 The trial court granted Sales’ motion to continue and rescheduled Sales’ trial to take place on January 10, 2022.
{6} On January 5, 2022, Sales entered into a negotiated plea agreement with the state. After entering into this plea agreement, Sales appeared before the trial court with a Spanish interpreter and his attorney, Attorney Valencia. Once the interpreter was sworn in, Sales’ attorney advised the trial court that Sales had agreed to plead guilty to a reduced charge of fourth-degree felony vehicular assault in violation of
{7} Following the necessary
{8} During the plea colloquy, Sales further noted for the trial court that nobody had forced, threatened, or coerced him in any way to plead guilty. This is in addition to Sales notifying the trial court that he was satisfied with the legal advice and representation that he had received from his then attorney, Attorney Valencia, and that there was nothing that his attorney could have done, or should have done, that he had not done prior to him entering his guilty plea. The record indicates that this included Sales reviewing the change of plea form with Attorney Valencia and having his attorney explain the change of plea for to him in Spanish prior to Sales signing his name to that form.
{9} On January 12, 2022, Sales filed notice of substitution of counsel informing the trial court that he had retained new counsel and would no longer be represented by Attorney Valencia. Five days later, on January 17, 2022, Sales’ new counsel filed a motion to withdraw Sales’ guilty plea. To support this motion, Sales attached two affidavits: one that Sales himself had signed and one that was signed by Sales’ mother.5 In his affidavit, Sales averred, among other things, the following:
It was not until the judge told me that I would not have the rights to a jury and to call witnesses that I heard of these things and that I must pay $450,000.00 for the [victim]. I was confused and afraid and I looked to Mr. Valencia who told me to say “guilty” which I did because he said so[.]
I was afraid and confused at the time Mr. Valencia told me to plead because I had no choice, I did not understand that I would be giving up all my rights, I did so because Mr. Valencia said I had no choice five minutes before he wanted me to plead, I said guilty because Mr. Valencia told me to when we were in court[.]
{11} Somewhat similar to Sales’ averments, Sales’ mother averred in her affidavit that, “Mr. Valencia had told us that [the victim] was very seriously injured and couldn‘t walk and was eating through a straw,” which was not true because she “saw this mаn walking around working and not injured and recorded this on my phone[.]” Sales’ mother also claimed that she “attempted to show this [video] to Mr. Valencia more than one time but he was not interested[.]” Sales’ mother further claimed that it was only after Sales entered his guilty plea that she “again spoke to Mr. Valencia about this video and he said, ‘Oh, Ok, give it to my secretary[.]‘” Sales’ mother additionally averred within her affidavit, the following:
Mr. Valencia called me on December 23, 2021 at 9:30 PM and told me that I had two options: if my son would plead guilty, he would want $1,000.00[.] He said he could sue the police officer because the officer did not do his job but he would want another $10,000.00 to sue the оfficer[.]
{12} On April 26, 2022, the trial court held a hearing on Sales’ motion to withdraw his guilty plea. During this hearing, the trial court heard testimony from just one witness, Sales. Sales, who testified in English with the assistance of a Mam interpreter, claimed that he only met with his prior attorney, Attorney Valencia, one time. Sales testified that during this meeting his attorney never spoke with him about his plea or any defense strategy. Sales testified that his attorney also did not show him any discovery documents. Sales instead testified that his attorney merely told him, “If you want to pay me $10,000, then we‘ll go to trial. If you want to pay me $1,000, then you go into a plea.” Sales testified that his attorney also told him to plead guilty and that, even though he was pleading guilty,
{13} On May 24, 2022, the trial court issued a lengthy, detailed decision setting forth its reasoning for denying Sales’ motion. In so doing, the trial court noted that it had found certain portions of Sales’ testimony “puzzling” given that Sales’ testimony “contradicts” with other evidence in the record. This included, for instance, the claims Sales’ mother made within her affidavit. The trial court also noted that it had found it “clear” that Sales had discussed his immigration status with his attorney, Attorney Valencia, prior to him entering into a negotiated plea agreement with the state. The trial court made this finding based, at least in part, on the fact that Sales’ “immigration status and deportation consumed much of the discussion the court had in chambers with [Sales’ attorney] and [the state]” during their meeting held on December 9, 2021.
{14} After setting forth these findings, the trial court then noted its conclusion regarding the allegations set forth within Sales’ and Sales’ mother‘s affidavits. In so doing, the trial court stated:
The main thrust of what the court takes from [Sales‘] affidavit and his mother‘s affidavit relate to the injuries suffered by the victim in this case and that they do not believe that he was injured as badly as they had beеn told. While [Sales‘] mother may have a video of the victim walking around working and not injured, that doesn‘t mean that he was not seriously injured on the night [Sales] ran his vehicle into the back of the police cruiser the victim was in. Based on [the photographs of the victim in the hospital], the victim did indeed suffer serious physical harm, regardless of whether he has now made a recovery to the extent that he is able to walk and go back to work.
{15} The trial court then noted its findings in regard to Sales’ claim that he needed a specific Mam interpreter in order to enter a guilty plea that was knowing and intelligent;
During the hearing [Sales] was asked about his conversations with his mother that were recorded while he was incarcerated at the Butler County Jail. While only one of these telephone calls was played, [Sales] admitted that during those conversations he was speaking Spanish. Upon further questioning by his counsel, [Sales] admitted that he and his mother were speaking Spanish, but he said that it was “everyday” Spanish. The court has no idea what constitutes “everyday” Spanish and nothing has been offered to the court as to what “everyday” Spanish is and how that differs from that used by the interpreter at the time [Sales] entered his guilty plea on January 5, 2022. In short, [Sales] has offered nothing to show that he needed the assistance of a specific Mam interpreter for him to have entered his plea knowingly, intelligently, and voluntarily.
{16} In reaching this decision, the trial court also noted:
Prior to issuing this decision, the court took the opportunity to go back and listen to the recording of the hearing on the date [Sales] entered his guilty plea. The court asked [Sales] if he understood English and he said no. He was then asked if with the assistance of the [Spanish] interpreter and his counsel, he was able to understand fully what was going on and he said yes, without any hesitation. The entirety of the plea colloquy was translated from English into Spanish by the interpreter and there was no pause in [Sales‘] responses to the court‘s questions -- he said yes immediately every time he was asked if he understood something.
{17} After setting forth these findings, the trial court then noted its disagreement with Sales’ assertion that a conviction of fourth-degree felony vehicular assault in violation of
[Sales] argues that the offense to which [he] pled guilty, for immigration purposes, is an aggravated felony under
8 USC § 1101(a)(43)(F) [and] a crime of violence (as defined in section 16 of title 18...) for which the term of imprisonment [is] at least one year.18 USC § 16 defines a crime of violence as (a) an offense that has the element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony that, by its
nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Court does not agree with [Sales‘] assessment that the charge to which [he] pled guilty is a crime of violence. [Sales] pled guilty to Vehicular Assault under
R.C. 2903.08(A)(2)(b) -- No person while operating or participating in the operation of a motor vehicle, ... shall recklessly cause sеrious physical harm to another person (emphasis added). By doing so, [Sales] admitted to causing serious physical harm, not physical force. In the court‘s opinion, physical harm and physical force are two completely different things. In addition, [Sales‘] action[s] were done recklessly.
(Emphasis sic.)
{18} The trial court then concluded its decision by stating, in pertinent part, the following:
In reviewing the factors the court is required to review, it is the court‘s opinion that the defendant was represented by highly competent counsel, that he was afforded a complete
Crim.R. 11 hearing before entering his plea, that this court conducted a full and impartial hearing on the motion to withdraw the plea, that this court has given full and fair consideration to the motion, that the motion to withdraw plea was made within a reasonable time, that the motion set out specific reasons for the withdrawal (which were supplemented at the hearing held), that the defendant understood the nature of the charges and the possible penalties, that the defendant does not have a defense to the charges for which he was indicted and that he would be found guilty of much more serious charges if this matter had gone to trial. The court does not find that the state would be prejudiced by the withdrawal.
The trial court also concluded by noting its finding Sales was “only moving to withdraw his plea due to а change of heart” and not because the assistance he received from his original attorney, Attorney Valencia, “was deficient to the point that any plea was not entered knowingly, intelligently, and voluntarily.”
{19} On May 25, 2022, the trial court held a sentencing hearing and sentenced Sales to a five-year community control term for the charge of vehicular assault and to 180-
{20} On May 26, 2022, Sales filed a notice of appeal. Oral argument was held before this court on November 7, 2022. This case now properly before this court for decision, Sales has raised two assignments of error for review.
{21} Assignment of Error No. 1:
{22} A PRE-SENTENCE MOTION TO WITHDRAW A GUILTY PLEA SHOULD BE FREELY AND LIBERALLY GRANTED.
{23} In his first assignment of error, Sales argues the trial court erred by denying his presentence motion to withdraw his guilty plea because such motions are to be freely and liberally granted. We find no merit to Sales’ claim.
{24} Pursuant to
{25} There are several factors that should be considered when evaluating the circumstances surrounding a defendant‘s plea. State v. Owens, 12th Dist. Preble No. CA2021-07-007, 2022-Ohio-160, ¶ 30. Those factors include, but are not limited to (1) whether the defendant was represented by highly competent counsel; (2) whether the defendant was afforded a complete
{26} “No one factor is conclusive in the determination of whether a plea should be allowed to be withdrawn.” State v. Rivera, 12th Dist. Butler No. CA2013-05-072, 2014-Ohio-3378, ¶ 17, citing State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995). Rather,
{27} Sales initially argues the trial court erred by denying his presentence motion to withdraw his guilty plea because he presented evidence that the discussion he had with his then attorney, Attorney Valencia, prior tо entering his guilty plea left him “confused” and expecting “that he would still be able to go before a jury and call witnesses.” Sales also argues the trial court erred by denying his motion to withdraw his guilty plea because, after the trial court engaged him in the necessary
{28} While Sales presents his argument in several different iterations based on his interpretation of the record, the underlying theme remains the same: that is, a challenge to the trial court‘s decision finding Sales’ testimony and averments alleging a language barrier prevented him from fully understanding the proceedings taking place at the change of plea hearing. Given this challenge, Sales is, in essence, requesting this cоurt override the trial court‘s credibility determination and instead issue our own decision finding Sales’ claims that he was confused, afraid, and did not fully understand the proceedings were credible. It is well-established, however, that “[o]ur role as a reviewing court on appeal does not permit us to substitute our judgment for that of the trial court in assessing the weight and credibility of matters in the record.” State v. Milhoan, 10th Dist. Franklin No. 13AP-74, 2014-Ohio-310, ¶ 33. That is to say, “[a] reviewing court does not determine weight and credibility.” State v. Pittman, 2d Dist. Montgomery No. 4509, 1974 Ohio App. LEXIS 3520, *5 (Nov. 19, 1974).
{29} It is equally well-established that it is the trial court, and not this court on appeal, that “assesses a defendant‘s credibility in considering the defendant‘s asserted reasons for wanting to withdraw his plea.” State v. Purnell, 10th Dist. Franklin No. 17AP-298, 2018-Ohio-1036, ¶ 28; State v. Vassalle, 3d Dist. Seneca No. 13-14-03, 2014-Ohio-4426, ¶ 13 (“Bеcause the trial court is in the best position to resolve the issues of credibility and the weight of the defendant‘s assertions, we will not substitute our judgment for that of the trial court.“). We will not second guess the trial court in this regard. This makes sense when considering it is the trial court that has the opportunity to observe, engage, and interact with the defendant. See, e.g., State v. Cook, 10th Dist. Franklin No. 20AP-519, 2021-Ohio-2416, ¶ 22 (“As the trial court had the opportunity to observe and interact with Cook before assessing whether he truly was confused about the nature of his plea, we will
{30} Sales next argues the trial court erred by denying his motion to withdraw because his attorney provided him with “patently false,” “erroneous advice” that there would be “no problem” and “everything would be fine” with his immigration status if he accepted the state‘s plea offer and pled guilty to vehicular assault in violation of
{31} In reaching this decision, we note that the trial court properly advised Sales,
And you understand by entering the plea of guilty to this charge that if you are not a citizen of the United States, conviction of this offenses or offenses to which you are pleading guilty may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States?
To this, Sales responded in English and stated, “Yes.” The record therefore plainly establishes that the trial court complied with the statutory requirements set forth in
{32} For these reasons, and finding no merit to any of the arguments raised by Sales herein in support of his first assignment of error, Sales’ first assignment of error lacks merit and is overruled. In so holding, we note the trial court found only three of the nine factors a trial court should consider when determining whether to grant a presentence motion to withdraw a guilty plea weigh in Sales’ favor, whereas the other six factors did not. This includes the trial court‘s finding both that Sales did not have a defense to the charges set forth within the original and supplemental indictments, and Sales would have been found guilty of much more serious charges if this matter had ultimately gone to trial. Given the thorough explanation of its findings within its decision, and when considering the trial court‘s findings are supported by the record, we find no error with the trial court‘s decision. See Owens, 2022-Ohio-160 at ¶ 34 (finding the weight the trial court gave to those nine factors was not error where the trial court gave a thorough explanation of its findings, all of which were supported by the record).
{34} Assignment of Error No. 2:
{35} A PLEA THAT IS INVOLUNTARY [AND] UNKNOWING DUE TO THE INEFFECTIVENESS OF COUNSEL MUST BE VACATED.
{36} In his second assignment of error, Sales argues his guilty plea was neither voluntarily nor knowingly entered because his original attorney, Attorney Valencia, provided him with ineffective assistance of counsel. We disagree.
{37} A criminal defendant has the right, under both the United States and Ohio Constitutions, to the effective assistance of counsel. State v. Villani, 12th Dist. Butler No. CA2018-04-080, 2019-Ohio-1831, ¶ 9. “A plea of guilty waives the right to claim that one was prejudicеd by ineffective assistance of counsel, except to the extent that such ineffective assistance made the plea less than knowing, intelligent, and voluntary.” State v.
{38} Sales argues he received ineffective assistance of counsel because his attorney, Attorney Valencia, “never” discussed trial strategy with him or “showed him his discovery.” Sales argues he also received ineffective assistance because his attorney stated that the victim “was very seriously injured and couldn‘t walk and was eating through a straw” even though his mother had taken a video recording of the victim “walking and working and not injured.” Sales argues his attorney‘s ineffective аssistance was then further exacerbated by his attorney appearing “uninterested” in the video recording his mother had purportedly taken of the victim and by his attorney telling his mother to leave the video recording “with his secretary” after he entered his guilty plea. Sales additionally argues he received ineffective assistance because he was “simply told by counsel that he must plead guilty,” which he would not have done if he had known that pleading guilty even to a reduced charge of fourth-degree felony vehicular assault in violation of
{39} Sales’ ineffective assistance of counsel claims are based on the allegations he made at the hearing on his motion to withdraw and/or as part of the averments that were made within his and his mother‘s affidavits. The trial court, however, clearly found both Sales’ and Sales’ mothеr‘s allegations levied against Sales’ attorney lacked credibility, were unsupported by the record, and/or were incorrect as a matter of law. This includes Sales’ claim that he received ineffective assistance when his attorney advised him that a conviction for fourth-degree felony vehicular assault in violation of
{40} Given our review of the record, and as discussed more fully above, we find no error in the trial court‘s decision finding Sales’ and Sales’ mother‘s claims lacked credibility, were unsupported by the record, and/or were incorrect as a matter of law. Sales, therefore, has failed to demonstrate his original attorney‘s performance was deficient. Alternatively, even if we were to find Attorney Valencia‘s performance was deficient, which
{41} Accordingly, finding no merit to any of the arguments raised by Sales’ herein in support of his second assignment of error, Sales’ second assignment of error also lacks merit and is overruled.
{42} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.