State v. WiseState v. Wise
Damion Craig Wise, pro se, PID# A582587, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, OH 45601 (Defendant-Appellant).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Damion Craig Wise, appeals from the Judgment Entry of the Trumbull County Court of Common Pleas, denying his Motion to Withdraw Plea. The issue to be determined by this court is whether the trial court abused its discretion when it denied a motion to withdraw a plea pursuant to
{¶3} On September 11, 2009, the grand jury issued a Superseding Indictment, charging Wise with the following: one count of Felonious Assault (Count One), a felony of the second degree, in violation of
{¶4} Wise entered a plea of not guilty by reason of insanity on November 2, 2009.
{¶5} On November 17, 2009, the trial court issued a Journal Entry titled “Order Directing Evaluation of Defendant‘s Sanity at the Time of the Offense Charged.” In this Entry, the court ordered that an examination be completed to determine Wise‘s “mental condition at the time of the offenses charged” and ordered that the examiner submit a written report to the court within 30 days. The recоrd does not indicate that such a report was ever filed with the court.
{¶7} Pursuant to an Amended Entry on Sentence filed by the court on April 12, 1010, Wise was sentenced to seven years in prison on Count One аnd Count Three. Count Two was found to merge with Count One and Count Four was found to merge with Count Three, for the purposes of sentencing. Wise was sentenced to six months each on Counts Five and Seven. On Count Six, Wise was sentenced to a minimum term of ten years and a maximum term of life imprisonment. On Counts Eight through Ten, Wise wаs sentenced to four years on each count. All sentences were ordered to be served concurrently, for an aggregate sentence of ten years to life in prison. Wise was also classified as a Tier III sex offender.
{¶8} On January 16, 2012, Wise filed a Motion to Withdraw Plea, pursuant to
{¶9} In the State‘s Memorandum in Opposition, it noted that there was no evidence tо support Wise‘s assertion that he was incompetent or that his plea was not entered knowingly and voluntarily.
{¶10} On March 2, 2012, the trial court issued a Judgment Entry, denying Wise‘s Motion to Withdraw Plea.
{¶12} “[The] trial court abused its discretion by denying the apрellant‘s motion to withdraw his guilty plea, without a hearing.”
{¶13} “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.”
{¶14} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentеnce has the burden of establishing the existence of manifest injustice.” Smith at paragraph one of the syllabus. “A motion made pursuant to
{¶15} In the present matter, Wise argues that his Motion to Withdraw Plea should have been granted because the trial court failed to take into account his incompetency when accepting his guilty plea, and, therefore, his plea could not have been knowingly and intelligently entered. He argues that he attempted suicide prior to
{¶16} As an initial matter, we note that there were no transcripts filed with the record and, therefore, the only evidence in the record related to the circumstances surrounding the entry of Wise‘s guilty plea is the “Finding of Guilty Plea to the Amended Indictment,” signed by Wise, his counsel, the prosecutor, and the trial court judge. “Pursuant to
{¶17} A review of the record reveals no evidence of Wise‘s incompetence to enter his guilty plea. Although he did initially enter a plea of not guilty by reason of insanity, no evidence was ever presented to support the сontention that he was incompetent to enter a guilty plea. A competency evaluation was ordered to be completed, but no results were filed showing Wise to be incompetent. Wise himself, however, admitted in his Motion to Withdraw Plea that he was found competent to stand triаl in a competency evaluation.
{¶19} Additionally, Wise points to no support for a finding that a suicide attempt alone is evidence of incompetence to enter a guilty plea. Several districts have found that a suicide attempt, when it is not coupled with any other evidence of a defendant‘s incompetеnce, does not warrant a conclusion that a defendant is incompetent to either stand trial or enter a plea of guilty. See State v. Thayer, 6th Dist. No. E-08-059, 2009-Ohio-5198, ¶ 60 (a plea was knowingly and intelligently made, although the defendant attempted suicide prior to entering the plea, when no other evidence was present to show the defendant was incompetent); State v. Robinson, 8th Dist. No. 89136, 2007-
{¶20} Wise also cites Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975), for the proposition that the trial court erred by not holding a competency hearing prior to accepting his guilty plea.
{¶21} Criminal defendants are presumed to be competent to stand trial or enter a plea. State v. Hackathorn, 11th Dist. No. 2004-A-0008, 2004-Ohio-6694, ¶ 19. “This presumption is rebutted if the defendant shows he is unable to understand the proceedings or assist in his or her defense.” Id., citing State v. Swift, 86 Ohio App.3d 407, 411, 621 N.E.2d 513 (11th Dist.1993). As has been explained by the Ohio Supreme Court, Drope holds that the right to a competency hearing “* * * rises to the level of a constitutional guarantee where the record contains ‘sufficient indicia of incompetence,’ such that an inquiry * * * is necessаry to ensure the defendant‘s right to a fair trial.” (Citation omitted.) State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 156, citing Drope at 171; Hackathorn at ¶ 20 (a defendant who enters a guilty plea is not entitled to a competency hearing when the record does not contain sufficient indicia of incompetence).
{¶22} We first note that, pursuant to the record, there was no evidence before the trial court that Wise had even attempted suicide, such that the court would have been aware of a potential issue related to Wise‘s competence. There is also nothing in the record to suggest that Wise or his counsel requested a second competency hearing, after the alleged suicide attempt.
{¶24} Further, it must be emphasized that Wise filed his Motion to Withdraw Plea almost two years after he entered his guilty plea. “‘[A]n undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶25} Wise also argues that he was entitled to an evidentiary hearing on his Motion to Withdraw Plea.
{¶26} “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
{¶27} When accepting Wise‘s alleged suicide attempt as true, but considering that there is no other evidence linking suсh an attempt to a finding of incompetence, there can be no finding that Wise was entitled to relief. There is no statement by Wise before the court as to how the suicide attempt caused Wise to be incompetent or that it prevented him from competently entering a plea. Additionally, the assertion that the plea was not rendered knowingly and intelligently due to incompetence is contradicted by the various statements in the written plea that the plea was being made “knowingly and voluntarily” and that Wise had a “full understanding” of his legal rights.
{¶28} In the present matter, as discussed above, the only evidence supporting a finding of incompetence is presented through the self-serving statements contained in Wise‘s Motion to Withdraw Plea. These are not enough to warrant any finding of a
{¶29} The sole assignment of error is without merit.
{¶30} For the foregoing reasons, the Judgment Entry of Trumbull County Court of Common Pleas, denying Wise‘s Motion to Withdrаw Plea, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.