State v. SheeksState v. Sheeks
Mollie B. Hojnicki, for appellant.
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OSOWIK, P.J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas that found appellant guilty of seven counts of complicity to burglary, one count of tampering with evidence and one count of engaging in a pattern of corrupt activity, and
{¶ 2} Appellant sets forth the following assignments of error:
{¶ 3} “First Assignment of Error:
{¶ 4} “The appellant was denied due process of law as guaranteed by the United States and Ohio Constitutions because his guilty plea was not entered knowingly, intelligently and voluntarily.
{¶ 5} “Second Assignment of Error:
{¶ 6} “The trial court erred when it denied the appellant‘s motion to withdraw his guilty plea.
{¶ 7} “Third Assignment of Error:
{¶ 8} “The appellant was not afforded effective assistance of counsel as required by the United States and Ohio Constitutions.”
{¶ 9} The undisputed facts relevant to the issues raised on appeal are as follows. On August 7, 2008, the Wood County Grand Jury indicted appellant on nine counts of complicity to burglary in violation of
{¶ 10} The trial court accepted appellant‘s plea and set the matter for sentencing. On February 10, 2009, appellant filed a request to withdraw his guilty plea and for new appointed counsel. On February 13, 2009, the court heard arguments on appellant‘s motion. The trial court denied appellant‘s request to withdraw his guilty plea and granted his request for new counsel. At the sentencing hearing on March 27, 2009, appellant‘s new counsel renewed the motion to withdraw the guilty plea and the court again denied the motion. Appellant was sentenced to a total aggregate sentence of 15 years.
{¶ 11} In his first assignment of error, appellant asserts that his guilty plea was not knowing, voluntary and intelligent. In support, appellant argues that the state and the trial court represented to him that he would be eligible for judicial release after serving ten years of the stipulated 15-year sentence. Appellant also refers to the statement of the prosecutor at the December 2, 2008 plea hearing that “after 10 years when defendant becomes eligible for a motion for early release,” the state would determine whether or not
{¶ 12}
{¶ 13} Appellant entered his plea on December 2, 2008. At that time, as part of the plea agreement, appellant was granted furlough to spend two days with his family over the Christmas holiday. The record reflects that appellant took advantage of the furlough but failed to return to custody when required, which resulted in an escape charge. It was only after appellant had received the benefit of the furlough that he asked to withdraw his guilty plea by motion filed February 10, 2009. At the hearing held on February 13, 2009, in explaining why he wanted to withdraw his plea and have new counsel appointed, appellant told the court that he had learned “numerous things” from the law library that would “help him.” Appellant did not specify what those “numerous things” were or refer to any misrepresentation as to the issue of judicial release as a reason for wishing to withdraw his plea.
{¶ 15} One of the two authorities appellant cites in support of his claim is State v. Trainer, 2d Dist. No. 2006 CA 23, 2007-Ohio-6698, in which the Second Appellate District found that Trainer‘s guilty plea was not knowing or intelligent because he was told he would be eligible to file for judicial release before the trial court imposed a prison term in excess of ten years, which rendered him ineligible to file for early release. Appellant also cites State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, in which the appeals court held that a plea agreement must not be allowed to stand “when it was obtained on the basis of a misrepresentation to the accused that he would be released from prison earlier than what the law permits.” In Johnson, the trial court record reflected that the state had indicated it would not object to judicial release after the defendant had served a portion of his sentence. Further, in Johnson, the Fourth Appellate District noted that the trial court “represented to appellant that it ‘anticipated’ that he would be given judicial release within that time frame.” (Emphasis added.) Johnson at ¶ 13. At appellant‘s plea hearing in this case, the prosecutor reviewed the elements of the plea agreement and stated that the state would “leave open” whether or not it would object when appellant “becomes eligible for a motion for early release.” In contrast to Johnson, the trial court in the case before us made no representation to appellant regarding the possibility or probability of judicial release.
{¶ 16} Ohio courts have held that when a defendant is induced to enter a guilty plea by erroneous representations as to the applicable law, the plea has not been entered knowingly and intelligently. State v. Mitchell, 11th Dist. No. 2004-T-0139, 2006-Ohio-618, ¶ 15, citing State v. Engle (1996), 74 Ohio St.3d 525, 527. However, several Ohio courts have concluded that trial counsel‘s erroneous representations regarding judicial release eligibility does not invalidate a defendant‘s guilty plea if the trial court has complied with
{¶ 17} While Trainer and Johnson may appear to support appellant‘s argument, those cases are not binding on this court and are not in accordance with the decisions from other Ohio appellant districts that have considered this issue. See State v. Simpson, 10th Dist. No. 07AP-929, 2008-Ohio-2460 (trial counsel‘s erroneous representations regarding judicial release eligibility did not invalidate guilty plea where appellant gave no indication that he was pleading guilty based on the possibility of judicial release); State v. Mitchell, supra (the trial court‘s and trial counsel‘s erroneous misrepresentations regarding judicial release eligibility did not invalidate a guilty plea where the trial court complied with
{¶ 18} Appellant insists that his plea was entered based on a representation by the state and the trial court that he would be eligible for judicial release after ten years of his stipulated 15-year sentence. As we have noted, however, there is no evidence in the transcript of appellant‘s original plea hearing that he would have pled differently if he had been told he was ineligible for judicial release. In exchange for his plea, appellant received several benefits. By entering into the plea agreement, appellant would not be prosecuted for similar crimes in Henry and Putnam counties. Additionally, the state agreed to request dismissal at sentencing of two remaining complicity to burglary charges and one charge of possession of heroin, and agreed to recommend a total sentence of 15 years. Further, the state agreed not to oppose appellant‘s request for a 48-hour furlough over the Christmas holiday.
{¶ 19} Based on the foregoing, we cannot find that appellant entered his plea based on a belief that he would be given early release. Accordingly, we find that
{¶ 20} In his second assignment of error, appellant asserts that the trial court erred when it did not allow him to withdraw his guilty plea prior to sentencing.
{¶ 21} It is well-established that in reviewing a trial court‘s decision regarding a defendant‘s presentence motion to withdraw a guilty plea, we are required to weigh a number of non-exhaustive factors. State v. Eversole, 6th Dist. Nos. E-05-073, E-05-076, E-05-074, E-05-075, 2006-Ohio-3988, ¶ 13. (Citation omitted.) These factors include: (1) whether the prosecution would be prejudiced if the plea were vacated; (2) whether the offender was represented by highly competent counsel; (3) the extent of the
{¶ 22} Reviewing the pertinent factors as applied to this case, we find that only two of the factors arguably weigh in favor of granting appellant‘s motion to withdraw. The state may not have been prejudiced if appellant had been permitted to withdraw his guilty plea beyond the ordinary impact of any defendant‘s subsequent withdrawal of a guilty plea, and appellant‘s original motion arguably was made in a timely manner. However, the remaining seven factors weigh in favor of a finding that the trial court did not abuse its discretion when it denied appellant‘s motion to withdraw his guilty plea.
{¶ 23} There is no indication in the record that appellant was not represented by competent counsel at all phases of these proceedings. Additionally, as we found above, the trial court conducted a thorough
{¶ 24} After weighing all of the above factors, we cannot find that the trial court abused its discretion in denying appellant‘s motion to withdraw his guilty plea. Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 25} In his third assignment of error, appellant asserts that he did not receive effective assistance of counsel. Appellant argues that defense counsel failed to have a basic understanding of the law regarding judicial release. He further argues that, had counsel properly informed him that he would not be eligible for judicial release, the result would have been different.
{¶ 26} It is well-established that in order to prevail on a claim of ineffective assistance of counsel, appellant must demonstrate that trial counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied upon as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668, 686. The standard of proof requires appellant to satisfy a two-pronged test. First, appellant must show that counsel‘s representation fell below an objective standard of reasonableness. Second, appellant must show by a reasonable probability that, but for counsel‘s perceived errors, the results of the proceeding would have been different. Id. Further, in Ohio, a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153, 156.
{¶ 28} On consideration whereof, the judgment of the Wood County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to
JUDGMENT AFFIRMED.
WD-09-031
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Thomas J. Osowik, P.J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.