STATE OF OHIO, PLAINTIFF-APPELLEE, v. GURWINDER SINGH, DEFENDANT-APPELLANT.
CASE NO. 8-13-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
August 4, 2014
[Cite as State v. Singh, 2014-Ohio-3377.]
Appeal from Logan County Common Pleas Court Trial Court No. CR 13 03 0062 Judgment Reversed and Cause Remanded
Marc S. Triplett for Appellant
Eric C. Stewart for Appellee
SHAW, J.
{¶1} Defendant-appellant Gurwinder Singh (“Singh”) appeals the December 3, 2013 judgment of the Logan County Common Pleas Court denying Singh’s pre-sentence motion to withdraw his guilty plea and sentencing Singh to serve five years in prison for Rape in violation of
{¶2} The facts relevant to this appeal are as follows. On March 12, 2013, Singh was indicted for Rape in violation of
{¶3} On March 19, 2013, аn interpreter was appointed for Singh. (Doc. 9). On April 1, 2013, Singh was arraigned and pled not guilty to the charges. (Doc. 12).
{¶4} On October 7, 2013, Singh filed multiple motions in limine, one of which sought to exclude evidence regarding Singh’s citizenship. Singh was,
{¶5} On October 9, 2013, Singh entered a written negotiated guilty plea wherein he agreed to plead guilty to the Rape charge in exchange for the State dismissing the remaining counts against him.
{¶6} A plea hearing was then held that same day. At the hearing, the court аnd defense counsel had a discussion about whether Singh would be subject to a “mandatory” prison term or whether there was simply a presumption of prison. (Oct. 9, 2013, Tr. at 3). Singh’s counsel asserted his understanding that the prison sentence was not mandatory. Singh’s counsel also infоrmed the court that he had gone over the written plea agreement line-by-line with Singh. (Id. at 5).
{¶7} After the court and the attorneys finished their discussion regarding the nature of Singh’s potential sentence, the court conducted a
{¶8} When the court had gone through the remainder of the
{¶9} On October 11, 2013, a second hearing was held where the court, defense counsel, and the State reconvened and all agreed that a mistake had been made at the October 9, 2013 plea hearing. This time, the trial court, the State and defеnse counsel all agreed that rather than a presumption of prison, a prison sentence was mandatory for Singh in this case for the Rape charge. The court stated that the “plea petition” would need to be amended to reflect that changed language, and that the court and counsel needed “to correct [their] advice to the defendant.” (Oct. 11, 2013, Tr. at 2). Singh’s counsel then stated on the record that “it’s my intention to have further discussion with [Singh] regarding the impact of this modification of the Court’s advice to him.” The court then recessed, and no further discussion was had on the record. It is not clear from the transcript whether Singh was present at this hearing, as the court did not state who was in attendance.1 At the very least, if Singh was present, he was never directly addressеd by the court regarding the earlier mistake.
{¶10} On October 23, 2013, a judgment entry was filed indicating that the court had “informed” Singh on October 11, 2013, that the charge of Rape under
{¶12} On November 27, 2013, the trial court held a hearing on the motion to withdraw Singh’s guilty plea. At the hearing, each side presented arguments and the State presented the testimony of the officer who had investigated the case. The State also introduced the audio recording of the 9-1-1 call where Singh could be overheard purportedly restraining and raping the victim in this case.3 At the conclusion of the hearing, the trial court overruled Singh’s motion and proceeded to sentence Singh. Singh was subsequently sentenced to serve five years in prison.
{¶13} A judgment entry denying Singh’s motion and memorializing his sentence was filed December 3, 2013. It is from this judgment that Singh appeals, asserting the following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT OVERRULED MR. SINGH’S MOTION TO WITHDRAW HIS GUILTY PLEA
{¶15}
{¶16} There are several factors that have been delineated by this and other courts to assist in our review of the trial court’s determination to grant or deny a motion to withdraw a guilty plea, including: (1) whether the State will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
{¶17} In this case the State concedes, and thus the parties are in agreement, that Singh was improperly advised at his plea hearing regarding the mandatory nature of his prison sentence. The State argues, however, that the improper notification was subsequently corrected by the trial court such that any defect in the earlier plea hearing was cured.
{¶19} Two days later, the court convened with the State and Singh’s counsel on thе record. The State and Singh’s counsel agreed at this brief “hearing” that the prison term for Singh was actually mandatory for the Rape offense rather than “presumed.” The court and Singh’s attorney talked about the need to discuss this change with Singh, and the need to cоrrect Singh’s written plea agreement.
{¶20} Singh’s plea agreement appears to have originally contained a typewritten “Yes” as to whether the prison term was mandatory for Rape. This “Yes” was crossed out prior to the original plea hearing аnd replaced with a handwritten “no.” The record does appear to indicate that the plea agreement was subsequently altered again to accurately reflect the mandatory nature of the prison term. On page four of the written plea agreement, there is a handwritten amendment dated October 11, 2013 indicating that the prison sentence was mandatory rather than Singh merely having a “presumption of prison” for the Rape offense. (Doc. 71). There is also some further writing or initialing next to this amendmеnt, perhaps indicating Singh’s initials, but it is indecipherable. (Id.)
{¶22} We have held previously that a trial court’s improper advisement of a defendant at a plea hearing regarding whether his sentence was mandatory—and thus whether the defendant was subject to judicial release—rendered his plea void. State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-Ohio-2846, ¶ 12 (“when reviewing the record, it appears that there was a specific misunderstanding and mistake of law by court and counsel as to whether Cook was eligible for judicial
{¶23} Similarly, in State v. Bush, 3d Dist. Union No. 14-2000-44, 2002-Ohio-6146, ¶11, we found that a trial cоurt’s improper notification to the defendant about his eligibility for judicial release warranted granting defendant’s motion to withdraw his plea. See also State v. Cox, 3d Dist. Union No. 14-06-47, 2007-Ohio-6023, ¶ 18 (“[I]t is evident that the trial court initially read the erroneous information to Cox, but then found the error and attemрted to correct the misinformation. However, from our reading of the transcript, we are unable to say the trial court clearly informed Cox regarding the correct terms of judicial release or that Cox understood when he would be eligible for his judicial release.”). In State v. Taylor, 3d Dist. Seneca No. 13-12-25, 2012-Ohio-5130, ¶¶ 13-19, we reversed a trial court’s denial of a motion to withdraw a guilty plea where a defendant was “given the wrong information concerning her [potential] sentence.” Taylor at ¶ 15. In State v. Maney, 3d Dist. Defiance Nos. 4-12-16, 4-12-17, 2013-Ohio-2261, we reversed the denial of a pre-sentence motion to withdraw a guilty plea where the defendant was incorrectly notified of the
{¶24} On the basis of our prior case law we find that the trial court erred in failing to grant Singh’s motion as Singh was never properly informed on the record regarding the nature of his sentence, and he was never given an opportunity to evaluate his plea in light of the new information.
{¶25} Notwithstanding the court’s error, the State makes several arguments to support the trial court’s denial of Singh’s pre-sentence motion to withdraw his guilty plea, including that the State would be prejudiced by the withdrawal. However, the State has not shown the unavailability of any of its witnesses, relying only on the difficulty of the victim of having to go through with trial. The State alsо argues that Singh was represented by highly competent counsel, and that there was overwhelming evidence of Singh’s guilt, particularly with regard to the audio recording of the 9-1-1 call where the purported rape could be overheard. While both of these аrguments may be true, they do not negate the fact that Singh was improperly advised as to the nature of his plea at the plea hearing, and the subsequent hearing does not establish on the record that Singh was able to re-evaluate his plea once hе was made aware of the mandatory nature of his prison sentence.
Judgment Reversed and Cause Remanded
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr