No. CT2005-0050. | Ohio Ct. App. | Jun 19, 2006
{¶ 2} Plaintiff-appellee is the State of Ohio.
{¶ 4} On September 12, 2001, Defendant-Appellant was indicted by the Muskingum County Grand Jury upon one (1) count of Aggravated Murder with a gun specification, in violation of R.C. §
{¶ 5} On September 19, 2001, Defendant-Appellant appeared before the Court for arraignment and pled "not guilty" to the Indictment.
On November 1, 2001, Defendant-Appellant appeared before the trial court for the purpose of changing his plea. At this hearing, Defendant-Appellant withdrew his former plea of "not guilty" and entered a plea of "guilty" to an amended indictment that charged him with one count of Voluntary Manslaughter with a firearms specification, in violation of R.C. §
{¶ 6} On September 20, 2004, the trial court held a sentencing hearing. At said hearing, the trial court heard the report of the pre-sentence investigator and the statements of counsel for the respective parties before pronouncing sentence. The trial court sentenced Defendant-Appellant to a stated prison sentence of ten (10) years on the amended count of Voluntary Manslaughter and three (3) years on the gun specification, said sentences to be served consecutive to one another for a total sentence of thirteen (13) years.
{¶ 7} Defendant did not perfect a timely appeal from his conviction.
{¶ 8} On or about June 17, 2005, Defendant-Appellant filed a Petition to Set Aside Judgment of Conviction or Sentence. In said petition, Defendant-Appellant relied upon the cases of Blakelyv. Washington, (2004)124 S. Ct. 2531" date_filed="2004-06-24" court="SCOTUS" case_name="Blakely v. Washington">124 S.Ct. 2531 and U.S. v. Booker, (2005)
{¶ 9} On July 14, 2005, the trial court denied the petition without an evidentiary hearing.
{¶ 10} On August 25, 2005, Defendant-Appellant filed a Motion for Leave to File a Delayed Appeal of the decision of the trial court that dismissed his Petition to Set Aside Judgment of Conviction or Sentence. (This appeal was assigned case number CT20050-041).
{¶ 11} By entry dated October 11, 2005, this Court denied Defendant/Appellant's Motion for Leave to File a Delayed Appeal and dismissed the matter.
{¶ 12} On September 15, 2005, Defendant-Appellant filed a Post Sentence Criminal Rule 32.1 Motion to Correct Sentence. This motion was again premised upon the cases of Blakely v.Washington, (2004)
{¶ 13} On September 22, 2005, the trial court denied said motion. In its decision, the trial court held:
{¶ 14} "As indicated in the plea form signed by the defendant he waived his right to appeal a maximum sentence based upon the plea agreement with the State. Based upon the plea agreement the Court hereby denies the Defendant's motion."
{¶ 15} On October 21, 2005, Defendant-Appellant filed the instant appeal, assigning the following as error:
{¶ 17} "II. THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION AND COMMITTED PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT'S POST SENTENCE CRIMINAL RULE 32.1 MOTION TO CORRECT SENTENCE AND FAILED TO PROCEED TO AN EVIDENTIARY HEARING ON THE ISSUES AND MERITS OF THE CLAIM.
{¶ 18} "III. THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION COMMITTED PREJUDICIAL ERROR IN HOLDING THAT THE U.S. SUPREME COURT'S DECISION IN APPRENDI V. NEW JERSEY AND BLAKELY V. WASHINGTON DO NOT APPLY TO OHIO'S SENTENCING SCHEME.
{¶ 19} "IV. TRIAL COUNSEL WAS INEFFECTIVE, FAILING TO DEFEND DURING SENTENCING HEARING BY FAILING TO RAISE STRUCTURAL ERRORS, CONSTITUTIONAL VIOLATIONS, AND ALLOWING THE STATE TO LOWER IT'S [SIC] BURDEN OF PROOF DURING SENTENCING PHASE."
{¶ 21} A trial court is vested with sound discretion to grant or deny a post-sentence motion for withdrawal of a plea. Statev. Pearson, 11th Dist. Nos. 2002-G-2413 and 2002G-2414,
{¶ 22} Initially, Appellant argues that the trial court denied him his constitutional right to due process.
{¶ 23} "By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime."United States v. Broce (1989),
{¶ 24} Appellant further argues that it was error for the trial court to deny his motion without first holding an evidentiary hearing.
{¶ 25} While a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made before sentencing, the same is not true if the request is made after the trial court has already sentenced the defendant. State v. Xie
(1992),
{¶ 26} An evidentiary hearing on a post-sentence motion to withdraw a guilty plea "is not required if the facts as alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn." State v. Patterson,
Stark App. No. 2003CA00135,
{¶ 27} It is well-settled that an appellant cannot appeal from a sentence that is recommended by both parties (i.e., the prosecutor and the defendant) and is authorized by law. See R.C.
{¶ 28} "A sentence imposed upon a defendant is not subject to review as of right if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."
{¶ 29} As for Appellant's argument that the trial court erred in finding that the Apprendi and Blakely cases did not apply to Ohio's sentencing scheme, the effect of the such cases upon Ohio's sentencing scheme has been resolved in State v. Foster,
{¶ 30} Appellant's first, second and third assignments of error are overruled.
{¶ 32} Again, Appellant could have raised the argument he now makes in support of this assignment of error, that being that his trial counsel was ineffective in a direct appeal. As stated above, Appellant failed to file a direct appeal from his sentence.
{¶ 33} Furthermore, Appellant did not raise this issue in his Post Sentence Crim.R. 32.1 Motion to Correct Sentence. {¶ 34} Because Appellant did not make the ineffective assistance of trial counsel argument to the trial court or on direct appeal, he has waived that argument, and may not now raise it in this appeal.
{¶ 35} We find no error in the order of the trial court overruling Jones's motion to correct sentence, from which this appeal is taken.
{¶ 36} Appellant's fourth assignment of error is overruled.
{¶ 37} For the foregoing reasons, the judgment of the Muskingum County Court is hereby affirmed.
By: Boggins, J. Hoffman, P.J. and Farmer, J., concur.