State v. WangulState v. Wangul
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant, Victor Wangul (“Wangul“), appeals from the judgment of the Cuyahoga County Court of Common Pleas that denied his postsentence motion to withdraw a guilty plea. For the reasons stated below, we affirm.
{¶ 2} In 1995, Wangul was indicted on a charge of theft in violation of
{¶ 3} On November 21, 2000, the trial court sentenced Wangul to four to fifteen years of incarceration and ordered him to pay full restitution. Over nine months later, on September 4, 2001, Wangul filed a motion to withdraw his guilty plea. The state filed a motion to dismiss the motion to withdraw guilty plea that was granted by the trial court.
{¶ 4} On appeal in State v. Wangul, Cuyahoga App. No. 80539, 2002-Ohio-4277, this court affirmed the decision, finding that because the time for filing a direct appeal had expired, the motion was to be treated as one for postconviction relief and that the motion was untimely pursuant to
{¶ 5} Upon remand, the trial court conducted a hearing on Wangul‘s motion. By this time, Wangul had served the prison term and was on parole. Following the hearing, the trial court denied Wangul‘s motion to withdraw his guilty plea. Wangul has appealed the trial court‘s decision, raising two assignments of error for our review. Wangul‘s first assignment of error provides:
{¶ 6} “I: The trial court denied Mr. Wangul the right to trial and the right to due process of law as guaranteed by the
{¶ 7}
{¶ 8} “Manifest injustice” is an extremely high standard, which permits the withdrawal of a guilty plea only in extraordinary cases. Smith, 49 Ohio St.2d at 264. The decision to grant or deny a postsentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Id. at paragraph two of the syllabus. We review the court‘s action on a postsentence motion to withdraw a guilty plea for an abuse of discretion. State v. Xie (1992), 62 Ohio St.3d 521, 526.
{¶ 9} Under his first assignment of error, Wangul claims a manifest injustice exists because (1) the trial court failed to ensure that he was aware of the nature of the charge, (2) the trial court failed to advise him that he could testify on his own behalf and that his failure to testify could not be considered against him by the jury, and (3) he made clear at the time of the plea that he was not satisfied with his trial attorney and believed that trial was no longer a viable option.
{¶ 10} In determining whether a defendant is making a plea with an understanding of the nature of the charge, a trial court is not necessarily required to advise the defendant of the elements of the crime, or to specifically ask the defendant if he understands the charge, provided the totality of the circumstances supports the trial court‘s determination that the defendant understands the charge. State v. Kavlich (June 15, 2000), Cuyahoga App. No. 77217; State v. Rainey (1982), 3 Ohio App.3d 441. Where a defendant indicates that he understands the nature of the charge, in the absence of evidence to the contrary or anything in the record that indicates confusion, it is typically presumed that the defendant actually understood the nature of the charge against him. See State v. Dickey, Carroll App. No. 03 CA 794, 2004-Ohio-3198; State v. Carpenter, Cuyahoga App. No. 81571, 2003-Ohio-3019.
{¶ 11} A review of the plea-hearing transcript in this case supports a determination that Wangul understood the nature of the charges against him. The transcript reflects that the trial court informed Wangul that the charge against him was for theft in violation of
{¶ 12} We next consider Wangul‘s argument that the trial court failed to advise him of certain fundamental rights. Specifically, Wangul argues that the trial court did not advise him that he could testify on his own behalf and that his failure to testify could not be used against him. We find no authority requiring these advisements to be made for a plea to be voluntary.
{¶ 13} In State v. Nero (1990), 56 Ohio St.3d 106, 107, the Supreme Court of Ohio discussed the requirements for a voluntary plea:
“Ohio
{¶ 14} In State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, the Supreme Court of Ohio distinguished between advising a defendant of constitutional rights and nonconstitutional rights under
”The information that a guilty plea is a complete admission of guilt, along with the other information required by
{¶ 15} In this case, the trial court personally addressed Wangul and advised him of all of the rights set forth under
{¶ 16} In this case, the court complied with the requirements of
{¶ 17} Finally, under this assignment of error, Wangul claims he expressed dissatisfaction with his trial attorney at the time of his plea and his belief that trial was no longer a viable option. There is no evidence of this in the plea-hearing transcript. Further, at the hearing on the motion to withdraw the guilty plea, Wangul‘s trial attorney testified that he had explained the charge and possible penalties to Wangul, that Wangul had provided no viable defense to the theft charge, and that Wangul had expressed no dissatisfaction at the time of the plea.
{¶ 18} We also note that Wangul waited over nine months after entering his guilty plea to file his motion to withdraw. Although there is no prescribed time limit after the imposition of sentence during which a motion to withdraw a plea of guilty must be made, it has been held that an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion. Smith, 49 Ohio St.2d at paragraph three of the syllabus.
{¶ 19} Upon the record before us, we cannot say Wangul established that a manifest injustice had occurred or that the trial court abused its discretion in denying Wangul‘s motion to withdraw his plea. Wangul‘s first assignment of error is overruled.
{¶ 20} Wangul‘s second assignment of error provides:
{¶ 21} “II. Mr. Wangul was denied his right to effective assistance of counsel guaranteed by
{¶ 22} Wangul‘s ineffective assistance of counsel claim was not raised on a direct appeal and is now barred by res judicata. See State v. Brown, Cuyahoga App. No. 84322, 2004-Ohio-6421; State v. Rodriguez, Cuyahoga App. No. 84161, 2004-Ohio-6010. As we stated in Rodriguez, “[a]ny issue which was raised or which could have been raised at trial or on direct appeal may not be relitigated at a later date.” Id., citing State v. Perry (1967), 10 Ohio St.2d 175; State v. Cole (1982), 2 Ohio St.3d 112.
Judgment affirmed.
It is ordered that appellee recover from 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 Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Blackmon, A.J., and McMonagle, J., co