2006 Ohio 1482 | Ohio Ct. App. | 2006
{¶ 2} Next, Smith contends that the trial court erred by failing to dismiss the charges against him on speedy trial grounds. Because we find that the trial court's amendment of the indictment and acceptance of Smith's no contest plea were proper, and because Smith, himself, acknowledges that fewer than 180 days passed from the filing of his motion for a speedy trial to the date of his no contest plea, we disagree.
{¶ 3} Finally, Smith contends that the trial court violated his constitutional right to due process and Crim.R. 11 by accepting his plea and sentencing him in chambers instead of open court, and by participating in his plea negotiations. Because we find that Smith failed to object when he entered his plea and received his sentence, we find that he waived his right to have the proceedings conducted in open court. Additionally, we find that, while the court did ask questions to ensure that it understood the terms of the agreement and to ensure that Smith was knowingly and voluntarily entering his plea of no contest, as it was required to do under Crim.R. 11, the transcript demonstrates that the court did nothing to intimidate Smith into accepting the plea agreement. Therefore, we find Smith's assertion that the trial court participated in the plea negotiation is without merit. Accordingly, we overrule each of Smith's assignments of error and affirm the trial court's judgment.
{¶ 5} On January 15, 2003, the Pickaway County Sheriff's Office filed two criminal complaints, an amended complaint and an affidavit, against Smith in the Circleville Municipal Court, charging him with aggravated robbery, in violation of R.C.
{¶ 6} In February 2003, the Pickaway County Grand Jury indicted Smith on one count of aggravated robbery in violation of R.C.
{¶ 7} On May 23, 2003, Smith filed a motion for a speedy trial. Apparently, at that time, Smith was in the Franklin County Jail on unrelated charges. On June 25, 2003, Smith appeared before the trial court for his arraignment and pled not guilty to all charges. At that time, Smith requested discovery from the state, and the court scheduled a pretrial conference. The case was set for jury trial on September 22, 2003, and later rescheduled for trial on November 13, 2003.
{¶ 8} On October 14, 2003, Smith filed a motion to dismiss the charges against him, wherein he alleged that, pursuant to R.C.
{¶ 9} The court convened on the record in chambers with the defendant, his counsel, and the prosecutor. Thereupon, Smith's counsel informed the court that Smith wished to enter a plea of no contest while reserving the right to appeal the court's ruling on his speedy trial motion. At that time, the prosecutor indicated that the state would amend the charge from aggravated robbery, a first degree felony to robbery, a second degree felony. Smith executed a petition to enter a plea of no contest to an amended count of robbery in violation of R.C.
{¶ 10} The court engaged in a Crim.R. 11 colloquy with Smith, found that he was entering his plea knowingly, voluntarily and intelligently, accepted his plea of no contest with a stipulation of guilt, and found him guilty of robbery, a felony of the second degree, as amended by the state. The court immediately proceeded to conduct Smith's sentencing hearing, and sentenced him to three years in prison, to be served consecutive to Smith's prior sentence on unrelated charges.
{¶ 11} On November 17, 2003, the trial court issued: (1) a judgment entry overruling and dismissing Smith's speedy trial motion and (2) a separate sentencing entry. On November 18, 2003, Smith filed a notice of appeal with this court in Pickaway App. No. 03CA24. Smith's counsel later filed a motion to voluntarily dismiss the appeal. Because Smith had not signed the motion, we ordered his attorney to complete and have Smith sign a form authorizing the dismissal. Neither Smith nor his counsel complied with our order. Thereafter, we issued another entry ordering Smith's counsel to complete and have Smith sign a second form authorizing the dismissal, and advised Smith that if the form was not completed and filed within thirty days from the journalization of our entry, we would dismiss his appeal for failure to prosecute. We then ordered the clerk to serve that entry upon Smith by certified mail, return receipt requested. Although the record confirms that proper service was made on October 26, 2004, Smith took no action. Therefore, we dismissed that appeal for failure to prosecute on December 13, 2004.
{¶ 12} On January 4, 2005, Smith moved this court to reopen his direct appeal pursuant to App.R. 26(B). Smith alleged that his original appellate counsel was ineffective because he failed to diligently pursue Smith's appeal by raising two potentially meritorious assignments of error. Specifically, Smith contended that his original appellate counsel: (1) sought to dismiss the appeal over his objection; (2) failed to challenge the trial court's amendment of the indictment; (3) failed to challenge the trial court's acceptance of his no contest plea. Smith argued that the amendment of the indictment violated Crim.R. 7(D), Crim.R. 11(C)(2), and his constitutional right to due process because robbery was not a lesser included offense of aggravated robbery, and because the trial court never explained the elements of the amended charge or caused him to be served with an amended indictment. In essence, Smith argued that his appellate counsel should have pursued the direct appeal on the ground that Smith did not knowingly and voluntarily enter his plea of no contest because his trial counsel and the court did not adequately inform him of the nature of the amended charge.
{¶ 13} On April 6, 2005, we denied Smith's request to reopen his direct appeal, finding that there was no evidence that Smith's original appellate counsel violated any essential duties in his representation of Smith. We also found that even assuming that Smith had established that his counsel's actions were deficient, he failed to demonstrate that he was prejudiced by counsel's failure to raise the errors set forth in his application, or that the outcome would have been different had those errors been included in his original appeal to this court.
{¶ 14} On July 1, 2004, Smith filed a petition to vacate or set aside his sentence pursuant to R.C.
{¶ 15} On December 10, 2004, Smith moved the court for leave to withdraw his plea of no contest, again arguing that the trial court erred by allowing the state to amend the indictment to robbery, which was not a lesser included offense of the indicted offense of aggravated robbery. Thus, Smith argued that the amendment of the charge improperly changed the name, character or identity of the offense in contravention of Section
{¶ 16} The trial court denied Smith's petition to vacate or set aside his sentence, his motion for summary judgment, and his motion to withdraw his plea for manifest injustice. With regard to Smith's speedy trial claim, the trial court found that the 180-day trial time prescribed by R.C.
{¶ 17} Similarly, the trial court found that the doctrine of res judicata barred Smith's claim of ineffective assistance of counsel because a defendant may not raise an issue in a motion for post conviction relief if he could have raised, or did raise, the issue on direct appeal. The court found that any issue of ineffective assistance of counsel must be heard at the appellate level. Additionally, the court found that Smith's trial counsel was not ineffective because he achieved the remarkable result of substantially reducing the indicted charges of aggravated robbery and kidnapping with gun specifications, plus an additional theft charge, to a single count of robbery.
{¶ 18} Finally, the trial court found that because it permitted the state to amend the indictment as part of a negotiated plea agreement, to which Smith knowingly entered a no contest plea, the amendment of the indictment did not cause a manifest injustice that would warrant the post-sentence withdrawal of Smith's plea.
{¶ 19} Smith appeals raising the following assignments of error: "[I.] The Trial Court abused it's (sic) discretion by refusing to allow Appellant to withdraw his plea for a manifest injustice. [II.] Trial Court (sic) erred in allowing time to be tolled Appellant (sic) concerning the issue of a fast and speedy trial pursuant to 2941.401 of the Ohio R.C."
{¶ 20} After filing his brief before this court, Smith filed a motion to supplement his brief, wherein he asserted an additional argument in support of his contention that his plea agreement was invalid. Namely, Smith argued that his plea agreement was not enforceable or valid where the court failed to comply with Crim.R. 11(F), which requires the agreement to be stated on the record in open court. Smith contends that the record reflects that his plea negotiation, as well as his plea and sentencing hearings occurred in chambers instead of open court.
{¶ 21} We granted Smith's motion to supplement his brief, and he filed a supplemental brief, wherein he raised an additional assignment of error: [III.] Trial Court violate (sic) the Appellants (sic) rights under the U.S. Constitution and the Constitution of the State of Ohio, when sentencing the Appellant behind closed doors, in Judges chambers, out of the view of the general public and by helping negotiate the plea in chambers."
{¶ 23} Crim.R. 32.1 provides: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." "Manifest injustice" is an extremely high standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases. State v. Smith (1977),
{¶ 24} Here, we note that Smith previously raised the same argument in support of his application to reopen his appeal in Pickaway App. No. 03CA24. In our decision and entry denying his application, we stated: "Both of [Smith's] proposed assignments of error concern the amendment of the indictment from aggravated robbery to robbery. He believes that because robbery is not a lesser included offense of aggravated robbery, the trial court was precluded from accepting his plea to the reduced charge.
{¶ 25} "[Smith] is mistaken. The record shows that [Smith] agreed to plead no contest with a stipulation of guilt to an amended count of robbery in exchange for the dismissal of the other charges, kidnapping and theft. By pleading no contest, [Smith] waived any deficiencies created by amending the indictment. See, e.g., State v. Childress (1993),
{¶ 26} "Moreover, there also is nothing to indicate that appellant's plea was involuntary or otherwise invalid. The trial court fully explained the nature of the charges against him in addition to the rights he was waiving by pleading no contest. Therefore, we conclude that the amendment of the indictment was proper as appellant knowingly and voluntarily assented to the same pursuant to his plea agreement with the prosecution.Childress at 262."
{¶ 27} The doctrine of res judicata may be applied to bar further litigation of issues that were raised previously or could have been raised previously in an appeal. State v. Houston
(1995),
{¶ 28} Even if we were to assume, arguendo, that the doctrine of res judicata did not bar the litigation of that issue, we could not find that the trial court abused its discretion in denying Smith's motion to withdraw his plea and his petition to vacate or set aside his sentence on that ground. In State v.Rainey (1982),
{¶ 29} Here, Smith signed a petition to enter a plea of no contest. In that petition, he specifically acknowledged his lawyer had counseled and advised with him on the nature of each charge and on all possible defenses he might have. Smith acknowledged that he offered his no contest plea freely and voluntarily and of his own accord and with full understanding of all the matters set forth in the information/indictment and in the petition. Additionally, the transcript reflects that the court informed Smith that the original count of aggravated robbery, a first degree felony, was amended to robbery, a second degree felony. And his petition to enter his plea reflects that he understood that in exchange for his plea to robbery, the state would merge the kidnapping, gun specifications, and theft charges into the robbery charge. Therefore, even if the doctrine of res judicata did not bar Smith's claim, we can not find that that the trial court abused its discretion in concluding that Smith understood the nature of the amended charge under the circumstances.
{¶ 31} We have already determined in our April 6, 2005 decision and judgment entry, and herein, that the trial court's amendment of the indictment and acceptance of Smith's no contest plea were proper. Furthermore, Smith, himself, acknowledges that fewer than 180 days passed from May 23, 2003 to November 13, 2003. Accordingly, we overrule Smith's second assignment of error.
{¶ 33} A review of the record reveals that this is the first time that Smith has challenged the trial court's alleged participation in the plea negotiation and the court's failure to conduct his plea and sentencing hearings in open court. The transcript plainly reveals that Smith failed to object to the trial court's conduct of his plea and sentencing hearings on the record in the court's chambers. While the
{¶ 34} Additionally, the Ohio Supreme Court has previously found that when a plea agreement was stated on the record in chambers, rather than being stated on the record in open court, there is a technical violation of Crim.R.11(F). State v. Spivey
(1998),
{¶ 35} Here, as in Spivey, the parties placed the agreement on the record in chambers in the presence of the parties and the judge, therefore, the parties and the court were aware of the agreement. Additionally, we note that Smith signed a written petition to enter his plea of no contest that specifically set forth the terms of the plea agreement. The parties abided by the terms of the agreement, and the trial court adopted the state's sentence recommendation. There is no evidence that Smith suffered any prejudice as a result of the technical violation of Crim.R. 11(F). Accordingly, Smith's Crim.R. 11 argument is without merit.
{¶ 36} Finally, in the interest of justice, we address Smith's contention that the trial court's participation in the plea negotiation negated the voluntariness of his no contest plea. In State v. Byrd (1980),
{¶ 37} In Byrd, the trial judge actively participated in the plea negotiation, enlisting the defendant's family members to convey the futility of going to trial and coerce him into agreeing to enter a plea. Additionally, in meetings, the trial judge applied "intense pressure" in its efforts to make the defendant realize that a plea agreement was in his best interest. Id. Here, however, the transcript reveals that the parties appeared in chambers to inform the court that they had reached a plea agreement and that Smith was ready to enter his plea of no contest while reserving his right to appeal the court's ruling on the speedy trial issue. While the court did ask questions to ensure that it understood the terms of the agreement and to ensure that Smith was knowingly and voluntarily entering his plea of no contest, as it was required to do under Crim.R. 11, the transcript demonstrates that the court did nothing to intimidate Smith into accepting the plea agreement. Accordingly, we find Smith's argument that the trial court participated in the plea negotiation, thereby negating the voluntariness of his plea, is without merit.
{¶ 38} In conclusion, we overrule each of Smith's three assignments of error and affirm the trial court's judgment.
Judgment Affirmed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
If the trial court or this court has previously granted a stay of execution of sentence and release upon bail, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty-day period.
The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec.2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal before expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
