State v. WardState v. Ward
Rendered on January 21, 2016
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Rex S. Ward, pro se.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Rex S. Ward, appeals from a judgment of the Franklin County Court of Common Pleas entered on July 29, 2015 which denied his post-sentencing motion to withdraw his guilty plea. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 17, 1997, Ward was indicted for two counts of kidnaрping, four counts of rape, one count of felonious assault, two counts of aggravated burglary, one count of aggravated robbery, three counts of robbery, three counts of theft, and four counts of receiving stolen property. On October 17, 1997, Ward pled guilty to all counts without any promises or deals of any kind. By entry filed February 11, 1998, the trial court sentenced Ward to serve 38 years in рrison.
{¶ 3} Ward attempted to appeal for the first time on June 30, 2006. This court denied leave to appeal on August 8, 2006 and denied reconsideration of that decision on
{¶ 4} Several years passed before, on December 22, 2014, Ward filed a motion to withdraw his guilty plea. Following briefing by the parties, the trial court denied the motion on July 29, 2015. Ward now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 5} Ward presents two assignments of error for review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S MOTION TO WITHDRAW PLEA AS HE DEMONSTRATED A MANIFEST INJUSTICE.
[II.] THE TRIAL COURT FAILED TO SUBSTANTIALLY COMPLY WITH CRIMINAL RULE 11.
Because these assignments of error are interrelated we address them tоgether.
III. DISCUSSION
{¶ 6} When a defendant seeks to withdraw his or her guilty plea after sentence is imposed, the court “may set aside the judgment of conviction and permit the defendant to withdraw his or her plea” in order “to correct manifest injustice.”
The decision whether to hold a hearing on a postsentence motion to withdraw guilty plea and whether to grant or deny the motion is left to the discretion of the trial court. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus * * *. Therefore, this court‘s review of the triаl court‘s denial of a post-sentence motion to withdraw a guilty plea or the decision not to hold a hearing is limited to a determination of whether the trial court abused its discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16.
State v. Chandler, 10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8. “Although аn abuse of discretion is typically defined as an unreasonable, arbitrary, or unconscionable decision, we note that no court has the authority, within its discretion, to commit an error of lаw.”
{¶ 7}
{¶ 8} The trial court determined, and we agree, that timeliness concerns weigh heavily in reviewing Ward‘s appeal of the trial court‘s denial of his post-sentence mоtion to withdraw his guilty plea, having waited more than 16 years to file it. Ward asserts that he was not informed that his sentences would be mandatory and the transcript and plea form are devoid of such lаnguage. However, Ward concedes that the judgment entry containing the record of his conviction and sentence did contain the required language on mandatory prison terms,1 and that the judgmеnt entry was received by the Ohio Department of Rehabilitation and Correction (“ODRC“) in whose custody he has been placed as a result of his offenses.
{¶ 9} Ward argues that, because he, himself, never received a copy of the judgment entry,
Courts may prеsume service to be proper if the civil rules are followed unless the defendant rebuts the presumption by sufficient evidence. Nowak v. Nowak, 8th Dist. No. 80724, 2003-Ohio-1824, at ¶ 7 (citing Rafalski v. Oates, 17 Ohio App.3d 65, 66 (1984). Service of process upon an incarceratеd person is presumed sufficient when the envelope containing the summons and complaint is received by an authorized prison official. Security Natl. Bank and Trust Co. v. Jones, 2nd Dist. No. C.A. 2000-CA-59, (2001-Ohio-1534); State v. Jones, 12th Dist. No. CA2000-02-015 (Oct. 16, 2000).
(Emphasis added.) In re D.C., 9th Dist. No. 23484, 2007-Ohio-2344, ¶ 11. See also In re A.G., 4th Dist. No. 14CA28, 2014-Ohio-5014, ¶ 18 (“Ohio courts have concluded that service оf process upon a parent confined to a correctional institution is valid when it is sent via certified mail and when a prison official signs the certified mail receipt. In re T.F., 4th Dist. Pickaway No. 07CA34, 2008-Ohio-1238; In re D.C., [supra], see Leman ex rel. Estate of Leman v. Fryman, 1st Dist. Hamilton No. C-010056, 2002-Ohio-191.“). Whether or not the judgment entry was sent by certified mail to ODRC is irrelevant, since Ward has conceded that ODRC has his judgment entry.
{¶ 11} Further, we note that
{¶ 13} Ward‘s affidavit attached to his motion to withdraw his guilty plea does not identify when he became aware of the alleged defect in his рlea. Ward merely avers, “I was called into my case manager‘s office and told that all of my Earned Credits (good days) I had received pursuant to
{¶ 14} Ward does not explain how he was prejudiced by the defects he alleges occurred in his plea and sentencing hearings in 1997 and 1998 (except for the inability to earn “good days” in prison) or why these alleged defects resulted in a manifest injustice. While thе trial court was required to substantially comply with
{¶ 15} The trial court found that Ward‘s motion was filed so late as to be prejudicial to the possibility of retrial with no valid excuse offered for the delay. In addition, Ward offered no evidence or even assertion that he suffered prejudice, or further, of a manifest injustice as a result of defects in the plea proceedings in his case. We therefore ovеrrule both assignments of error.
IV. CONCLUSION
{¶ 16} Ward‘s post-sentencing motion to withdraw his guilty plea was filed after an unreasonably long delay and failed to demonstrate prejudice and manifest injustice based оn the procedural defects alleged. We overrule both of Ward‘s assignments of error and affirm the decision of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.