State v. SmithState v. Smith
JUDGMENT: AFFIRMED
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Rashawn Smith (“Smith“), appeals the denial of his motion to withdraw his guilty pleas, his convictions, and sentence. We find no merit to the appeal and affirm.
{¶ 2} In February 2009, Smith was indicted on two counts of aggravated murder, two counts of burglary, five counts of aggravated robbery, three counts of kidnapping, and one count of felonious assault. In October 2009, pursuant to a plea bargain, the State moved to amend Count 1 of the indictment from aggravated murder to involuntary manslaughter in violation of
{¶ 3} At the plea hearing, the State advised the court that the plea agreement included an agreed sentence of 22 years with no judicial release and five years mandatory postrelease control. As part of the agreement, Smith promised to testify truthfully against codefendants in three other cases arising out of the same incident. Smith pled guilty to the three amended charges, and the case was continued for sentencing to a later date.
{¶ 4} Smith filed a motion to withdraw his guilty pleas prior to sentencing claiming that, due to his young age, he was overwhelmed by the criminal justice system and “susceptible to the intimidation of a plea.” Smith further asserted that he is not guilty and that innocence is a factor that weighs heavily in favor of vacating his plea. In response, the State informed the court that Smith had made a written confession in which he admitted his role in the crimes. The trial court denied Smith‘s motion and sentenced him to ten years for involuntary manslaughter, eight years for aggravated burglary, and four years for aggravated robbery, to be served consecutively for a total of 22 years in prison as agreed at
Guilty Plea
{¶ 5} In the first assignment of error, Smith argues the trial court erred in denying his motion to withdraw his guilty plea prior to sentencing. Smith asserts that at the sentencing hearing it became evident that his trial counsel was not aware that Smith had signed a written confession, and the trial court erroneously failed to investigate why his trial counsel had not been made aware of it before the plea hearing. As such, Smith claims the trial court breached its duty to ensure that Smith‘s plea was knowingly, intelligently, and voluntarily made. We disagree.
{¶ 6} In State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715, the Ohio Supreme Court held that a presentence motion to withdraw a guilty plea should be freely and liberally granted. Id. However, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Id. at paragraph one of the syllabus. Therefore, “a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id.
{¶ 7} In order for a plea to be made knowingly and voluntarily, the trial court must follow the mandates of
{¶ 8} The decision whether to grant a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Xie at paragraph two of the syllabus. In reviewing whether a trial court abused its discretion in deciding the defendant‘s motion to withdraw a guilty plea, we must consider the following factors: “(1) whether the accused was represented by highly competent counsel; (2) whether the accused was given a full
{¶ 9} In addition, the following factors are helpful in determining whether a trial court abused its discretion: “(1) whether the motion was made within a reasonable time; (2) whether the motion set out specific reasons for the withdrawal; (3) whether the accused understood the nature of the charges and
{¶ 10} In the instant case, we find that the trial court reasonably refused to allow Smith to withdraw his guilty plea. The record reflects that: (1) Smith was represented by competent counsel; (2) the trial court afforded Smith a full
{¶ 11} Additionally, the trial court complied with
{¶ 13} Smith also claims the trial court should have inquired as to why Smith‘s trial counsel was unaware of his written confession. However, Smith‘s counsel merely asserted that the alleged confession was not in his client‘s writing but was a typed statement Smith signed. Thus, trial counsel was aware of the “confession” and attempted to discredit it.
{¶ 14} Finally, Smith asserts he felt threatened and intimidated into pleading guilty because he was told that some people, whom he could not identify, were going to falsely testify against him at trial. However, during the
{¶ 15} Accordingly, the first assignment of error is overruled.
Allied Offenses
{¶ 16} In the second assignment of error, Smith argues that the trial court erred by imposing consecutive sentences on his aggravated robbery and involuntary manslaughter convictions. Smith claims that the consecutive terms should have merged for purposes of sentencing because they are allied offenses of similar import, involving the same conduct and the same animus.2 We disagree.
{¶ 17} It is well established that involuntary manslaughter and aggravated robbery are not allied offenses of similar import as defined by
“In this case, the particular charge was causing the death of another during the commission of a felonious assault — the assault, in turn, occurred during a robbery. Involuntary manslaughter requires causing the death of another as a proximate result of committing or attempting to commit a felony.
R.C. 2903.04(A) . Aggravated robbery does not require that thevictim be killed or even injured. Violation of the particular code section with which Rance was charged requires only that the defendant inflict, or attempt to inflict, serious physical harm. * * * Aggravated robbery requires a theft offense or an attempt to commit one. Involuntary manslaughter does not, since aggravated robbery is only one of the many felonies that may support a charge of involuntary manslaughter. Because each offense requires proof of an element that the other does not, they are not allied offenses of similar import.” See, also, State v. Garrett, Cuyahoga App. No. 90428, 2008-Ohio-3549.
{¶ 18} Therefore, the trial court properly sentenced Smith for both involuntary manslaughter and aggravated robbery.
{¶ 19} Accordingly, the second assignment of error is overruled.
Consecutive Sentences
{¶ 20} In the third assignment of error, Smith argues the trial court erred in imposing consecutive sentences without first making findings required by
{¶ 21} Furthermore, Smith received an agreed sentence that was authorized by law. He cannot now complain of its consecutive nature. As the Ohio Supreme Court has held, “[o]nce a defendant stipulates that a particular sentence is justified, the sentencing judge need not independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at paragraph three of the syllabus.
{¶ 22} Accordingly, this assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 23} In the fourth assignment of error, Smith argues he was denied his constitutional right to effective assistance of counsel. Smith claims that because his trial counsel was unaware of Smith‘s confession to police, he must have been ineffective.
{¶ 24} To prove ineffective assistance of counsel, the accused has the burden of demonstrating that his attorney seriously erred and that the deficient performance actually prejudiced him. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to satisfy the prejudice requirement, “the defendant must show that there is a reasonable probability that,
{¶ 25} Smith contends his counsel was ineffective because he did not know that Smith had signed a typed confession admitting his role in the crimes. However, Smith‘s counsel challenged the confession because it was not written by Smith. Thus, he was aware of the “confession.” Moreover, because Smith entered a guilty plea, he is precluded from claiming ineffective counsel, except “to the extent that the defects complained of caused the plea to be less than knowing and voluntary.” State v. Cooper, Cuyahoga App. No. 93308, 2010-Ohio-1983, ¶40, citing State v. Barnett (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101. As previously discussed, Smith has not demonstrated that his plea was less than knowingly, voluntarily, and intelligently entered. Therefore, Smith has not shown ineffective assistance of counsel, requiring reversal of his conviction.
{¶ 26} Accordingly, the fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR