STATE OF OHIO, PLAINTIFF-APPELLEE, v. RODNEY D. SMITH, JR., DEFENDANT-APPELLANT.
CASE NOS. 5-21-05, 5-21-06, 5-21-07, 5-21-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
March 14, 2022
[Cite as State v. Smith, 2022-Ohio-742.]
ZIMMERMAN, P.J.
Aрpeals from Hancock County Common Pleas Court Trial Court Nos. 2018 CR 55, 2020 CR 16, 2017 CR 349 and 2015 CR 349. Appeals Dismissed in Part and Judgments Affirmed in Part.
STATE OF OHIO, PLAINTIFF-APPELLEE, v. RODNEY D. SMITH, JR., DEFENDANT-APPELLANT. CASE NO. 5-21-06 OPINION
STATE OF OHIO, PLAINTIFF-APPELLEE, v. RODNEY D. SMITH, JR., DEFENDANT-APPELLANT. CASE NO. 5-21-07 OPINION
APPEARANCES:
Michael H. Stahl for Appellant
Phillip A. Riegle for Appellee
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Rodney D. Smith, Jr. (“Smith“), appeals the December 30, 2020 judgment entry of the Hancock County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reasons set forth below, we dismiss in part and affirm in part.
{¶3} Nevertheless, Smith had a series of probation violations from June 2, 2017 through October 3, 2017 in the 2015 case. (Case No. 2015-CR-349, Doc. Nos. 33, 34, 36, 40, 41, 42, 47). Smith admitted to the violations and requested a presentence investigation report to be prepared in anticipation of his sentencing hearing.1 (Doc. No. 47).
{¶4} However, prior to being sentenced in his 2015 case, Smith was indicted on November 14, 2017, in case number 2017-CR-349 (“2017 case“, hereaftеr), for failing to appear (“FTA“) for a court hearing (in his 2015 case) in violation of
{¶5} Thereafter, and prior to being sentenced on the 2015 and 2017 cases, Smith was indicted by the Hancock Grand Jury in case number 2018-CR-55 (“2018 case“, hereafter) on February 27, 2018 on one count of aggravated possession of a controlled substance in violation of
{¶7} On October 5, 2020, pursuant to a negotiated plea agreement, Smith withdrew his pleas of not guilty and entered guilty pleas to an amended Count One and Count Two (as indictеd) for aggravated trafficking in drugs in violation of
{¶8} On November 5, 2020, the State filed a notice requesting a hearing on the basis that Smith had violated the terms and conditions of his community control sanctions in his 2015, 2017, and 2018 cases. (Case No. 2015-CR-349, Doc. Nos. 84, 85, 86); (Case No. 2017-CR-349, Doc. Nos. 44, 46, 47); (Case No. 2018-CR-55, Doc. Nos. 44, 46, 47). At the hearing scheduled on November 9, 2020, Smith entered admissions to community control violations in his 2015, 2017, and 2018 cases. (Case No. 2015-CR-349, Doc. No. 88); (Case No. 2017-CR-349, Doc. No. 49); (Case No. 2018-CR-55, Doc. No. 49); (Nov. 9, 2020 Tr. at 3-12). (See Case No. 2020-CR-16, Doc. No. 61).
{¶10} On February 8, 2021, the trial court proceeded to sentencing on all four cases. (Feb. 8, 2021 Tr. at 3); (Case No. 2015-CR-349, Doc. No. 100); (Case No. 2017-CR-349, Doc. No. 59); (Case No. 2018-CR-55, Doc. No. 59); (Case No. 2020-CR-16, Doc. No. 67). First, the trial court revoked Smith‘s community control
{¶11} Smith filed timely notices of appeal in his 2015, 2017, 2018, and 2020 cases, whiсh we have consolidated. Smith raises one assignment of error for our review.
{¶12} Before we address the merits of Smith‘s appeals, we note that Smith (in his brief) does not present any arguments challenging the voluntariness of his pleas or admissions in his 2015, 2017, and 2018 cases. Rather, his assignment of error only challenges the scope of his negotiated plea agreement and the voluntariness of his guilty pleas in his 2020 case. Since there are no issues raised or error assigned below in the 2015, 2017, and 2018 cases, those appeals are dismissed. See State v. Taylor, 3d Dist. Seneca Nos. 13-19-21 and 13-19-22, 2019-Ohio-4719, ¶ 8. Therefore, we will only consider Smith‘s appeal as it pertains to his 2020 case in appellate case number 05-21-06.
Appeal 5-21-06
Assignment of Error
The trial court erred in not granting Mr. Smith‘s unopposed pre-sentence motion to withdraw his plea because he misunderstood the terms of the agreement with the prosecution.
{¶13} In his first assignment of error, Smith argues that the trial court erred by denying his presentence motion to withdraw his guilty plea in his 2020 case. In particular, Smith argues that the trial court should have granted his request to withdraw his guilty pleas since he misunderstood the scope of the negotiated plea agreement, and because his motion was unopposed.
{¶14} Appellate review of the trial court‘s denial of a
Analysis
{¶15} Recently, the Supreme Court of Ohio emphasized the “necessity of placing” an underlying plea agreement on the record. See State v. Azeen, 163 Ohio St.3d 447, 2021-Ohio-1735, ¶ 36, citing
{¶16} The record reveals the terms of the agreement that was placed on the record (in open court) at Smith‘s change-of-plea hearing are as follows:
| [Trial Court] | It‘s my understanding then, from talking with counsel, that the parties have today reached agreements. They wish to proceed with a change of plea. Mr. Kelley, is that still your client‘s intention? |
| [Smith‘s Trial Counsel] | May it please the Court, it is Your Honor. I went back over with him the plea documents. The, essentially, slightly new deal, understanding that before the Court |
| was -- that thе Prosecutor was going to defer, but now they‘re going to be free to recommend, based on the PSI, which we understand that slight difference, and my client is prepared to proceed with the plea, based upon that recommendation. | |
| [Trial Court] | All right. Ms. Limerick, you have the 11(F) negotiations as you understand them? |
| [State] | Yes, Your Honor. Please the Court: At this time, I would ask for leave of Court to amend count one in the indictment from a chargе of aggravated trafficking in drugs, a felony of the third degree, to that of aggravated trafficking in drugs, a felony of the fourth degree, in violation of the same code section, 2925.03(A), but by striking reference to this happening in the vicinity of a juvenile. It is my understanding the Defendant would consent to that amendment, waive any defects in the amendment process and all allied rights, and will be tendering a guilty plea to the amended count onе, as well as a guilty plea to count two, a charge of aggravated trafficking in drugs, a felony of the fourth degree. As already stated, the parties will be requesting a PSI, and the parties are free to argue in the appropriate sentence. The Defendant also agrees to admit to any related probation violations and make $100 in reimbursement to the METRICH Drug Task Force. |
| [Trial Court] | $100, Ms. Limerick? |
| [State] | Yes, sir. |
| [Trial Court] | Okay, Mr. Kelley? |
| [Smith‘s Trial Counsel] | Yes, Your Honor. That is our understanding of the agreement, and we are ready to proceed. |
| [Trial Court] | All right. Mr. Smith was that your understanding about how you were going to proceed today? |
| [Smith] | Yes. |
(Emphasis added.) (Oct. 5, 2020 Tr. at 3-6).
{¶17} At Smith‘s sentencing hearing on November 9, 2020 (following his admissions to his community-control-sanction violations and the State‘s and defense counsel‘s arguments as to sentencing in all four cases), Smith made an oral motion to withdraw his guilty pleas. (Nov. 9, 2020 Tr. at 44-45). He told the trial court that he misunderstood that the State was going to “argue” for prison terms rather than probation. (Id.). In response, thе trial court stopped the sentencing hearing and entertained arguments giving the parties an opportunity to present evidence in support of their respective positions. Thereafter, Smith‘s counsel submitted a supplemental written motion to withdraw his guilty pleas specifically asserting that the first factor (i.e., as to prejudice) and the seventh factor (i.e., his basis for the motions) favored his request. (Case No. 2020-CR-16, Doc. No. 53).
{¶19} Moreover, on appeal, Smith acknowledges and raises no error with respect to the trial court‘s construction of his motions as post-sentence motions to withdraw. Rather, he directs our attention to the trial court‘s analysis of those reasonable-and-legitimate-basis factors. (See Appellant‘s Brief at 4). Thus, in our view, Smith has waived any potential error under
Presentence and Post-sentence Motions to Withdraw Guilty Pleas
{¶20}
{¶21} A post-sentence motion to withdraw a guilty plea, in contrast, occurs after sentence is imposed, and the defendant bears burden of demonstrating a “manifest injustice“. State v. James, 3d Dist. Hancock No. 5-19-30, 2020-Ohio-720, ¶ 11, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. “[A] post[-]sentence withdrawal motion is allowable only in extraordinary cases.” Smith at 264. “‘A “manifest injusticе” comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.‘” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010-Ohio-1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999). “A hearing on a post-sentence motion to withdraw guilty plea is not mandatory. It is required only ‘if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn.‘” State v. Moore, 3d Dist. Allen No. 1-11-29, 2012-Ohio-657, ¶ 13, quoting State v. Hamed, 63 Ohio App.3d 5, 7 (8th Dist.1989).
{¶22} Based on our review of the record, we conclude that Smith‘s motions are presentence motions to withdraw his guilty pleas. Hence, wе consider the following factors when reviewing a trial court‘s decision to grant or deny a presentence motion to withdraw a plea. Those factors are: (1) whether the withdrawal will prejudice the prosecution; (2) the representation afforded the defendant by counsel; (3) the extent of the hearing held pursuant to
{¶23} With these factors in mind, we are cognizant that Ohio Courts have consistently held that a “change of heart” is not sufficient justification to withdraw a plea. State v. Davis, 2d Dist. Montgomery No. 18172, 2001 WL 10037, ¶ 2 (Jan. 5, 2001), citing State v. Drake, 73 Ohio app.3d 640, 645, 598 N.E.2d 115 (8th Dist.1991). See also State v. Mooty, 2d Dist. Greene No. 2000 CA 72, 2001-Ohio-1464, *4 (defendant‘s motion to withdraw his guilty plea “was based solely on an unexpected incarceration sentence, a mere change of heart,” and as such was an insufficient rationale to withdraw a guilty plea). State v. Griffin, 8th Dist. Cuyahoga No. 82832, 2004-Ohio-1246, ¶ 18, citing State v. Holloman, 2d Dist. Greene No. 2000CA82, *3 (June 22, 2001) and Mooty at *4.
{¶24} In our review of thе factors, we note Smith raised reasonable-and-legitimate-basis factors one and seven in his written motion. However, the trial court considered all of the factors in reaching its determination. Indeed, our examination of the reasonable-and-legitimate-basis factors supports the trial court‘s denial of Smith‘s presentence motions to withdraw his guilty pleas. Therefore, for the reasons that follow, we conclude that the dеcision of the trial court was not unreasonable, arbitrary, or unconscionable.
{¶25} Prejudice to the State is not presumed, and this factor, “is often classified as the most important factor in the balancing test.” State v. Cuthbertson, 139 Ohio App. 3d 895, 899 (7th Dist.2000), citing Fish, 104 Ohio App.3d at 240. Here, Smith argues that there was no prejudice to the State because no material witnesses were unavailable, and there were no speedy-trial issues. Undeniably, the State did not argue that it has suffered any prejudice as a result of Smith‘s request. Hence, we conclude the first factor weighs in favor of Smith.
Factor Two: Representation afforded to Defendant
{¶26} Smith argues that factor two weighs in his favor. We disagree. Smith alludes that his trial counsel‘s performance was deficient by characterizing the change in Smith‘s plea agreement as a “slight difference“. Smith attempts to bolster his argument by highlighting that there had been tension in the attorney-client relationship. Indeed, the trial сourt addressed Smith‘s concerns and his desire to privately retain counsel at his change-of-plea hearing and prior to his
| [Trial Court] | Okay. So it was your intention then to proceed with Mr. Kelley today? |
| [Smith] | Yes. |
| [Trial Court] | Okay. Understanding that, again, has that left you with enough time to discuss the issues related to this case which [sic] Mr. Kelley? |
| [Smith] | Yes. We discussed everything. |
| [Trial Court] | Okay. So, and I know you had some additional time this morning to discuss the proposed plea, the changes in the -- in the offer from the State of Ohio, you had time to go over all of that with him? |
| [Smith] | Yes, sir. |
| [Trial Court] | Okay. And again, has he answered all of your questions to your satisfaction? |
| [Smith] | Yes, sir. |
| [Trial Court] | Anything else you need time to discuss with him, before I go any further? |
| [Smith] | No, sir. I don‘t think so. |
(Id. at 7-8). Then, the trial court addressed Smith regarding the nature of Smith‘s charges and the maximum penalties involved for each offense, which Smith acknowledged he understood. (Id. at 25-27, 31-32). We conclude that this factor weighs against withdrawal of Smith‘s guilty pleas.
Factors Three & Eight: Extent of the hearing held pursuant to
{¶27} Smith argues that the third and eighth factors weigh in his favor. He asserts that these factors go to the core of his understanding of the plea agreement
{¶28} The trial court conducted an appropriate change-of-plea hearing. (Id. at 1-53). At that hеaring, the trial court engaged in a thorough
{¶29} Smith presents no argument regarding the fourth factor. Certainly, both Smith and the State were given the opportunity to address the trial court and present evidence. What‘s more, the trial court permitted Smith‘s counsel to submit a supplemental written motion at a later date--deferring imposition of sentence. Consequently, we conclude this factor also weighs against withdrawal.
Factors Five & Seven: Trial court‘s full and fair consideration of the motion & stated reasons for the motion
{¶30} Smith raises no arguments relating to the fifth and seventh factors in his brief. However, he did assert arguments related to factor seven to the trial court by arguing that he (Smith) is a lay person untrained in legalese. Indeed, in our view of the record and based upon our conclusion as to the fourth factor, the trial court gave full and fair consideration to Smith‘s oral and written motions. Notwithstanding Smith‘s argument that he is a lay person, Smith was (at all times) represented by counsel with whom he discussed “everything” and with whom he was satisfied. (Id. at 7-8). Thus, we conclude that both factors five and seven weigh against withdrawal.
Factor Six: Reasonableness of timing of the motion
{¶31} Smith did not specifically address the sixth factor in his brief. He did, however, address aspects of the sixth factor in his arguments made relative to factors
Factor Nine: Whether the accused was perhaps not guilty or had a complete defense to the charges
{¶32} It is important to note that Smith never promoted his actual innocence or that he had a complete defense to his case. Instead, he raises a mistake-of-fact argument. This factor weighs against withdrawal of Smith‘s guilty pleas.
Conclusion
{¶33} Upon our review of the reasonable-and-legitimate-basis factors as to whether the trial court erred by denying Smith‘s motions to withdraw his pleas, we conclude that the trial court did not abuse its discretion in denying such requests.
{¶34} Accordingly, Smith‘s sole assignment of error is overruled.
{¶35} For the reasons stated above, we dismiss appеllant‘s appeals related to appellate case numbers 05-21-05, 05-21-07, and 05-21-08 and having found no error prejudicial to the appellant herein in the particulars assigned and argued in appellate case number 05-21-06, affirm the judgment of the trial court in appellate case number 5-21-06.
SHAW and WILLAMOWSKI, J.J., concur.
Appeals Dismissed in Part, and Judgments Affirmed in Part