STATE OF OHIO v. JARED A. SCHWARTZ
CASE NOS. CA2019-04-029, CA2019-04-030, CA2019-04-031
IN THE COURT OF APPEALS, TWELFTH APPELLATE DISTRICT OF OHIO, CLERMONT COUNTY
12/2/2019
[Cite as State v. Schwartz, 2019-Ohio-4912.]
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
The Law Office of Wendy R. Calaway, Co., LPA, Wendy R. Calaway, 810 Sycamore Street, Suite 117, Cincinnati, Ohio 45202, for appellant
HENDRICKSON, P.J.
{1} Appellant, Jared A. Schwartz, appeals from a decision in the Clermont County Court of Common Pleas denying his presentence motion to withdraw his guilty plea and his convictions for felonious assault, trafficking in marijuana, and violating community control. For the reasons discussed below, we affirm the judgment of the trial court.
{2} In February 2018, a Clermont County Grand Jury indicted appellant on three
{3} In June 2018, a Clermont County Grand Jury indicted appellant on two additional offenses: trafficking in marijuana, a fourth-degree felony in violation of
{4} The assault charges were set for trial in late October 2018 and the drug charges were set for trial later in January 2019. At the time appellant was charged with these offenses, he was serving a community control sentence imposed for two prior convictions of trafficking in heroin, fifth-degree felonies in violation of
{5} On October 19, days before the assault trial was set to begin, appellant entered guilty pleas to felonious assault causing serious physical harm with an amended
{6} Prior to his sentencing hearing, appellant terminated the trial attorney that negotiated the plea bargain (hereinafter referred to as “counsel“) and hired a new attorney to represent him. Through his new attorney, appellant moved to withdraw his guilty plea on the basis that his counsel provided ineffective assistance, the trial court misinformed him of the penalties during the plea colloquy, and he had a complete or meritorious defense to the charges. Following a two-day hearing, the trial court subsequently denied the motion.
{7} In March 2019, the trial court held the sentencing hearing. At the hearing, appellant pled no contest to the community control violations and the trial court proceeded to sentence appellant. The trial court imposed a six-year prison term for the felonious assault, plus a one-year mandatory prison term for the firearm specification; a 12-month prison term for the trafficking in marijuana; and two 11-month prison terms on each of the heroin trafficking convictions from which appellant violated community control. The trial court ordered consecutive sentences for all the prison terms resulting in an aggregate stated prison sentence of nine years and ten months. The trial court properly notified appellant of the postrelease control conditions, including the mandatory three-year period for the felonious assault conviction.
{8} Appellant now appeals, raising five assignments of error for review.
{9} Assignment of Error No. 1:
{10} THE TRIAL COURT ERRED IN DENYING JARED‘S PRESENTENCE MOTION TO WITHDRAW HIS PLEA.
{11} In his first assignment of error, appellant argues the trial court improperly denied his motion to withdraw the guilty plea because he established a legitimate basis for
{12} Pursuant to
{13} An appellate court reviews the trial court‘s decision to deny a motion to withdraw a guilty plea for an abuse of discretion. State v. Harris, 12th Dist. Butler No. CA2018-04-076, 2019-Ohio-1700, ¶ 10. An abuse of discretion is more than an error of law or judgment, it is an attitude of the court that is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{14} An appellate court is guided by nine factors when reviewing whether the trial court abused its discretion in denying the motion:
- whether the motion was made within a reasonable time,
- whether the motion set out specific reasons for the withdrawal,
- whether the trial court conducted a full and impartial hearing on the motion to withdraw the plea,
- whether the trial court gave full and fair consideration to the motion,
- whether the defendant was represented by highly competent counsel,
whether the defendant was afforded a complete Crim.R. 11 hearing before entering the plea,- whether the defendant understood the nature of the charges and the possible penalties,
- whether the defendant was possibly not guilty of the charges or had a complete defense to the charges, and
- whether the state would have been prejudiced by the withdrawal.
See e.g. State v. Chisenhall, 12th Dist. Clermont Nos. CA2015-07-055 and CA2015-07-063, 2016-Ohio-999, ¶ 12; accord Harris at ¶ 11. “No one factor is conclusive in the determination of whether a plea should be allowed to be withdrawn.” State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-1169, ¶ 7. A defendant‘s mere “change of heart” is insufficient cause to withdraw a guilty plea. State v. Quinn, 12th Dist. Butler No. CA2006-03-049, 2007-Ohio-1363, ¶ 12.
{15} After our review of the record, we find that the trial court did not abuse its discretion denying appellant‘s motion to withdraw his guilty plea. While a few of the factors do not weigh for or against appellant, none of the factors weigh in favor of allowing appellant to withdraw his guilty plea.
{16} The first four factors address the timeframe and substance of the motion and the trial court‘s response to it. Here, the trial court found the motion to be timely made and that appellant presented specific reasons for withdrawing his plea. Furthermore, the trial court conducted a two-day hearing in which the defense and the prosecutor presented multiple witnesses and documentary evidence. The trial court then issued a 27-page written decision on the motion. Consequently, we find that the trial court conducted a full and impartial hearing on the matter and gave fair consideration to the motion. Therefore, these factors militate against finding that the trial court abused its discretion. Moreover, the trial court‘s decision shows that the trial court did not apply an incorrect standard of review to the
{17} Next, we address counsel‘s competency. Appellant points to several examples to demonstrate his counsel was incompetent, these examples include: the failure to timely file reciprocal discovery (which, appellant argues, caused the trial court to sanction him by excluding an expert witness); the failure to subpoena a witness for trial; requiring payment for a private investigator and then failing to hire said investigator; suggesting appellant hire his law firm partner as co-counsel; and the failure to investigate the facts and inform appellant about trial strategy. At the motion to withdraw plea hearing, counsel and co-counsel testified to explain their performances. Contrary to appellant‘s claims, counsel provided a reasonable justification for his performance. Specifically, counsel explained that while he interviewed a separate potential witness, the only evidence he intended to use at trial was testimony from witnesses the state had previously identified, therefore, the late discovery response did not harm appellant‘s defense strategy. The decision as to what evidence to present and which witnesses to call are within trial counsel‘s professional judgment. State v. Chamberlain, 12th Dist. Brown No. CA2013-04-004, 2014-Ohio-4619, ¶ 52. Furthermore, counsel explained that he informally withdrew one witness during a chamber‘s discussion with the trial court because there were admissibility issues with the prospective testimony and the testimony was not conducive to support the chosen defense strategy. Second, the “exclusion” of the expert witness did not significantly undermine appellant‘s defense because there were also admissibility issues with the expert witness. The purpose of the expert was to explain how the victim‘s conduct before the assault may have been influenced by her use of drugs and alcohol prior to the incident. However, hospital records for the victim did not contain a toxicology report for the victim and there was no indication that the hospital even performed a
{18} Regarding the failure to hire a private investigator and issue a witness subpoena, counsel explained that an investigator was unnecessary because he was able to locate and contact the witness himself. Furthermore, he did not need a subpoena because the witness agreed to come to trial and appellant‘s decision to plead guilty obviated any need to further secure the witness‘s presence. Counsel also effectively returned the unused private investigator fee to appellant and his family.4
{19} Counsel further explained that he requested appellant hire his partner, instead of an outside attorney, for two reasons. First, appellant‘s proposed attorney focused primarily on civil matters. Second, the case was close to the trial setting and he wanted to make sure a second attorney could be ready in time without causing unnecessary delay. Finally, counsel testified that he kept appellant informed about the status of the case and the defense strategy. In the course of the representation, counsel was in ongoing negotiation with the state to acquire a favorable plea bargain for appellant. As such, the plea arrangement ultimately accepted by appellant was not a spur of the moment offer and appellant had at least a week to decide whether to take the offer. Accordingly, the evidence presented at the hearing established that appellant‘s counsel was competent and performed adequately. The trial court did not err when it decided this was a not a reasonable and legitimate basis on which to grant appellant‘s motion.
{21} “A guilty plea that is not knowing, intelligent, and voluntary violates the Ohio and United States Constitutions.” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 40. Ohio adopted
{22} The trial court advised appellant of each of the required constitutional rights, informed him of the nature of the charges, and notified him about the maximum penalty. The trial court then stated that imprisonment was presumed for the felonious assault offense and mandatory for the accompanying firearm specification, but appellant could rebut the
I could consider you for community control as to the felonious assault only, but there‘s no guarantee that I will do that. If you cannot prove those [mitigation factors] at sentencing, those two specific factors, then I will be required to impose a sentence within that range of two to eight years.
After the trial court‘s
{23} As to the possibility of innocence or complete defense, appellant alternatively argues that the evidence at trial would have shown that he was guilty of the inferior degree
{24} In addressing the prejudice to the state, appellant argues that the trial court made this a “super factor” when it described this factor as one that “tips the scale in favor of the state.” We find that the trial court did not place undue weight on this factor. A plain reading of the trial court‘s decision shows that the trial court addressed this factor last and that the prejudice to the state was another factor, but not a predominate one, weighing
{25} Finally, we note that at the hearing to withdraw the plea the state admitted into evidence a recording of a jailhouse telephone call between appellant and his mother that occurred after his presentence-investigative report interview but before he filed the motion to withdraw. During the call, appellant repeatedly states that he did not care while speaking to his mother about the case. At one point he stated that “I don‘t want to talk to another lawyer,” at another point he exclaimed “personally me...I‘m ready to go to prison.” While appellant offered an affidavit and his mother testified that this behavior was merely a result of his incarceration, the affidavit did not address or rebut these prior statements. This unrebutted evidence further militates against finding that the trial court abused its discretion in denying the motion and suggests that the motion was premised on a mere change of heart.
{26} Accordingly, the trial court did not abuse its discretion when it denied appellant‘s motion to withdraw his guilty plea. Appellant‘s first assignment of error is overruled.
{27} Assignment of Error No. 2:
{28} THE TRIAL COURT ERRED IN CONDUCTING A HEARING ON DEFENDANT‘S MOTION TO WITHDRAW HIS PLEA THAT VIOLATED APPELLANT‘S RIGHT TO DUE PROCESS OF LAW.
{29} In his second assignment of error, appellant argues that the trial court violated his due process rights for two reasons. First, the trial court made itself itself a witness
{30} The Ohio Supreme Court in State v. Xie, 62 Ohio St.3d 521, did not set forth the type of hearing required for a motion to withdraw a guilty plea. State v. Taylor, 12th Dist. Butler No. CA2013-10-186, 2014-Ohio-3080, ¶ 9. Other Ohio appellate districts have decided that the hearing must meet the minimum standards of due process, that is, there must be an opportunity for the defendant to be heard and meaningful notice. State v. Wolfson, 4th Dist. Lawrence No. 02CA28, 2003-Ohio-4440, ¶ 16; State v. Robinson, 8th Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 24. Here, the trial court conducted a full evidentiary hearing. Appellant had meaningful notice of the hearing and at the hearing had the opportunity to present evidence, cross-examine adverse witnesses, and offer rebuttal evidence.
{31} During the hearing, the trial court engaged in its own interrogatory with appellant‘s legal expert witness. While appellant characterizes the trial court‘s conduct as argumentative, interruptive, and an attempt to alter the trial court‘s pretrial evidentiary order, after our review of the record, we disagree. A trial court can interrogate witnesses if done in an impartial manner.
{32} Second, the trial court did not err when it decided it would not consider some of the evidence offered by appellant outside of the hearing. A trial court has broad discretion in the admission or exclusion of evidence. State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. A reviewing court will not disturb the trial court‘s evidentiary decision without a showing of an abuse of discretion that creates material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62. Here, appellant argues that it was improper for the trial court to exclude his affidavit attached to the motion, the affidavits of other witnesses variously offered, and a 2006 school evaluation report. Appellant concedes that even if the trial court were to formally admit all this evidence, the trial court had the discretion to weigh the credibility of the affidavits and evidence.
{33} The trial court explained that it would not consider appellant‘s affidavit because he was not subject to cross-examination. Thus, the trial court essentially discounted the evidence as lacking credibility. The other evidence at the hearing, i.e. appellant‘s jailhouse telephone call to his mother and testimony about his presentence interview, and appellant‘s statements at the plea hearing acknowledging that he understood the plea and approved of his attorney‘s performance, further establish that it was not an abuse of discretion for the trial
{34} Moreover, the trial court did not err by excluding the affidavits of other witnesses, and a school evaluation report because appellant failed to introduce this evidence during the hearing. Throughout the hearing, appellant argued one witness was to be an important witness in the underlying assault trial, yet, he did not call her to testify at the hearing and only belatedly submitted her affidavit after the conclusion of the hearing. Therefore, as the trial court noted, this witness‘s testimony was also not subject to cross-examination. Additionally, appellant did not show cause for the delay in filing this affidavit, in fact, when he rested his case at the hearing, appellant stated that he had no further evidence to present and did not suggest that he had problems calling any witnesses. Regarding the other witness, while there was no delay, appellant did not call this witness to testify so there is also a cross-examination issue. Finally, appellant did not offer the school evaluation report at trial to lay a foundation for its authenticity or its relevance to the matter. The trial court discounted each of these because they lacked credibility. Therefore, it was not an abuse of discretion when the trial court decided it would not consider this evidence.
{35} Accordingly, appellant‘s second assignment of error is overruled.
{36} Assignment of Error No. 3:
{37} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
{38} In his third assignment of error, appellant argues that the failures previously discussed in the first assignment show that counsel‘s performance was deficient and that the deficiency prejudiced his defense, thereby establishing ineffective assistance.
{39} A criminal defendant has the right under the
{40} After review of the record, we find that appellant‘s counsel did not perform below an objective standard of reasonableness. As discussed in the first assignment of error, counsel kept appellant informed about the defense strategy for trial, discussed the relative benefit of pleading guilty to the negotiated offer versus going to trial, and adequately investigated the facts. Furthermore, the record shows that trial counsel did not coerce appellant into pleading guilty. Appellant has not established that his counsel‘s performance was deficient. Ultimately, we find that appellant‘s decision to plead guilty was not the result
{41} Furthermore, we find that appellant has not established prejudice, because he has not shown that he would have decided to go to trial but for the alleged errors. Besides, none of the errors claimed by appellant significantly undermined the chosen defense strategy to be pursued at trial. The discovery issue and “exclusion” of the two witnesses did not adversely impact the defense. One of the potential witnesses faced significant admissibility hurdles and was only relevant to a theory of the case that conflicted with the chosen inferior degree strategy. The other potential witness, the expert, did not have any data on which to base an opinion and was not permanently excluded. The expert could have been introduced should later circumstances at trial have warranted it. Finally, while appellant argues that counsel mistakenly informed him that he would remain on bond between the plea hearing and sentencing, appellant has not placed any “particular emphasis” on this information such that this is a determinative factor for the ineffective assistance claim. See Lockhart, 474 U.S. at 60, 106 S.Ct. 366 (petitioner did not establish prejudice from mistaken advice about parole eligibility as it related to the decision to plead guilty).
{42} Accordingly, appellant has not established that his counsel rendered ineffective assistance. The third assignment of error is overruled.
{43} Assignment of Error No. 4:
{44} THE TRIAL COURT ERRED IN ACCEPTING A PLEA THAT WAS NOT MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
{45} For the reasons discussed in the first assignment of error, appellant‘s fourth assignment of error is without merit. The trial court complied with
{47} THE TRIAL COURT ERRED AT SENTENCING BY IMPOSING CONSECUTIVE SENTENCES AND BY IMPOSING A PRISON TERM THAT WAS NOT SUPPORTED BY THE RECORD.
{48} In his fifth assignment of error, appellant argues that it was improper for the trial court to impose consecutive sentences because he had not previously served a prison sentence and the “record did not support these sentences.”
{49} An appellate court reviews felony sentences according to the standard set forth in
{50} A sentence is not clearly and convincingly contrary to law where the trial court: considers the principles and purposes of
{ 51} The authority to impose consecutive sentences is found in
{52} Additionally, a trial court may sentence a defendant to consecutive prison terms for multiple convictions by complying with the requirements of
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{54} Second, the record demonstrates that the trial court made the necessary
I believe that the consecutive structure is necessary to protect the public because this was your – you demonstrated in the [trafficking in marijuana] case that you would commit future crime. And so my prediction there was, unfortunately, accurate, but it was necessary to protect the public from future crime to punish the defendant that the consecutive sentences were not disproportionate to the seriousness of your conduct and the danger that you pose to the public [sic].
These offenses were committed as part of two separate sales of heroin. And the harm caused by these offenses is so very unusual that a single person – that a single prison term, excuse me, for any one of these offenses committed does not adequately reflect the seriousness of your conduct, and a single sentence would demean the seriousness of your conduct.
Further, your criminal history and the statutory scoring RS score supported that structure.
Then, the trial court addressed the felony assault conviction and stated:
[T]his sentence will be served consecutively with the sentence imposed in the [community control violation] case. Again, I believe it‘s necessary to punish you for this conduct. This is very serious conduct, and is certainly necessary to protect the public
from future crimes. I do not believe that it‘s disproportionate to the seriousness of the harm caused. There were blow-out fractures of both eyes, nasal fracture and multiple other injuries, all causing serious physical harm. Any one of these three injuries would have been sufficient for a finding of felonious assault.
I believe in all these cases, a single sentence would demean the seriousness of these offenses. This offense was committed while you were on community control, and the very first sanction that I advise every person is you‘re not to commit any new criminal offenses federal, state, or local of any nature whatsoever.
And your criminal history, again, your RS score, reflects such a structure is warranted.
Finally, turning to the trafficking in marijuana conviction, the trial court stated:
This too will be served consecutively to the [community control violation] case and the [felony assault] case.
Once again, considering 2929.14(C)(4)(a) through (c), this again was committed while he was on community control for trafficking in heroin. It was committed candidly. At least he was honest about something in his presentence report; that when he got out of Ridge, he fell back to what he knew best, and that was trafficking and drugs.
He had a prior trafficking in 2005 when he was out of high school. He had permitting drug abuse in 2011, and then he had the heroin convictions in 2016. So he has a long history of this conduct. I believe the harm caused in this circumstance as well is great enough as a single sentence would demean the seriousness of the offenses and would not adequately punish the defendant.
While the trial court did not employ the exact language of
{55} Appellant‘s contention that his sentences are not supported by the record is
{56} Appellant has failed to clearly and convincingly establish that his sentences were unsupported by the record or contrary to law. Accordingly, appellant‘s fifth assignment of error is overruled.
{57} Judgment affirmed
S. POWELL and M. POWELL, JJ., concur.