State of Ohio/City of Perrysburg v. Ricardo Ybarra
Court of Appeals No. WD-19-006
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Decided: November 22, 2019
[Cite as State v. Ybarra, 2019-Ohio-4824.]
Trial Court No. CRB 1801581
Michael B. Kelley, for appellant.
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MAYLE, P.J.
{¶ 1} Defendant-appellant, Ricardo Ybarra, appeals the February 4, 2019 judgment of the Perrysburg Municipal Court denying his motion to withdraw his plea of no contest. For the reasons that follow, we affirm the trial court judgment.
I. Background
{¶ 2} On December 4, 2018, Ricardo Ybarra was charged in Perrysburg Municipal Court with domestic violence, a violation of
{¶ 3} On December 21, 2018, Ybarra moved to withdraw his plea of no contest. Soon thereafter, a new judge was appointed to the Perrysburg Municipal Court. Following a hearing on January 4, 2019, the new Perrysburg Municipal Court judge denied Ybarra‘s motion. The matter proceeded to sentencing, and the court imposed a jail term of 180 days in the Wood County Justice Center.
{¶ 4} Ybarra appealed. We determined that the January 4, 2019 judgment entry was not final and appealable because it failed to state that Ybarra was found guilty and convicted of the offense. We remanded the case to the trial court for entry of a final appealable order. The court entered an amended judgment on February 4, 2019, and we reinstated the appeal to our docket.
{¶ 5} Ybarra assigns the following errors for our review:
- Appellant‘s motion to withdraw his no contest plea should have been granted, and the court abused its discretion.
Appellant‘s no contest plea was not knowingly, intelligently and voluntarily entered.
II. Law and Analysis
{¶ 6} Ybarra argues in his first assignment of error that the trial court abused its discretion in denying his motion to withdraw his no-contest plea. He argues in his second assignment of error that his plea should be vacated because it was not entered knowingly, intelligently, and voluntarily. We consider each of these assignments in turn.
A. The trial court did not abuse its discretion in denying Ybarra‘s motion to withdraw his no-contest plea.
{¶ 7} The trial court denied Ybarra‘s motion to withdraw his plea of no contest. It found that Ybarra understood the court process and what was happening at the time of his plea, and it concluded that Ybarra had exhibited mere “buyer‘s remorse.” In his first assignment of error, Ybarra argues that the trial court abused its discretion.
{¶ 8}
- whether the state will be prejudiced by withdrawal;
- the representation afforded to the defendant by counsel;
- the extent of the
Crim.R. 11 plea hearing; - the extent of the hearing on the motion to withdraw;
- whether the trial court gave full and fair consideration to the motion;
- whether the timing of the motion was reasonable;
- the reasons for the motion;
- whether the defendant understood the nature of the charges and potential sentences; and
- whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001) (“Griffin factors“). A mere change of heart is not a sufficient reason to permit withdrawal of a plea. (Citations omitted.) State v. Acosta, 6th Dist. Wood No. WD-15-066, 2016-Ohio-5698, ¶ 18.
{¶ 10} Upon the filing of a motion to withdraw a plea, the trial court “must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie at paragraph one of the syllabus. It is then left to the discretion of the trial court whether to allow the defendant to withdraw his or her plea.
{¶ 11} Ybarra maintains that at the plea hearing, he responded that he understood the effect of his plea only after the court explained it to him four times. Even after that, he claims, he told the judge that he did not understand that he may be prohibited under federal law from owning or possessing firearms. Ybarra explains that while he speaks English, he does not read or write English, and he signed a rights form without reading it. He insists that he is innocent and he maintains that at the time he entered his plea, he was nervous, confused, and embarrassed. Ybarra contends that his confusion by the court process was further demonstrated when, at the motion hearing, he “babble[d] senselessly” about double jeopardy, indicated that he only “kind of” understood the effects of withdrawing his plea, asked the court to amend the charges at an inappropriate time, and requested OR bond at an inappropriate time.
{¶ 12} The city maintains that the newly-appointed municipal court judge reviewed the video recordings from the arraignment and plea hearing, held a hearing, and considered the relevant case law and factors before denying Ybarra‘s motion. While it concedes that the motion was timely filed and that it would not be prejudiced by withdrawal of the plea, it insists that Ybarra had competent counsel who stopped the hearing when necessary to explain things to him, the court ensured that Ybarra understood the difference between the possible pleas, and the court explained the potential sentence that could be imposed. The city claims that Ybarra did not assert
{¶ 13} After reviewing the hearing transcripts, the video recordings, and the arguments of the parties, we resolve the nine Griffin factors as follows.
{¶ 14} Prejudice to the state. While the city objected to Ybarra‘s motion, it did not indicate that it would be prejudiced if Ybarra were permitted to withdraw his plea. It concedes on appeal that it would not be prejudiced. This factor, therefore, weighs in favor of allowing Ybarra to withdraw his plea.
{¶ 15} Representation afforded to the defendant by counsel. The trial court found that Ybarra was represented by competent defense counsel who reviewed Ybarra‘s rights with him, including his right to a trial. We agree with the court‘s conclusion, and we find that this factor weighs against allowing Ybarra to withdraw his plea.
{¶ 16} The extent of the
The court: Mr. Ybarra, do you understand that with a no contest plea, you‘re not admitting guilt, but you are accepting as true any statements contained in the charge or stated in court?
The defendant: Yes, ma‘am.
The court: And based on that plea then, the Court would – could find you guilty and sentence you up to 180 days in the Wood County Justice Center, up to a $1,000 fine, do you understand that?
The defendant: Not really. I just want the best thing and I want this resolved. * * * So, I mean, I don‘t know what is better, the no contest or just pleading guilty.
The court: I‘m just telling you the effect of the plea. The no contest plea would not be used against you in a later civil or criminal matter. Even though the plea would not be used against you, a conviction on this charge could be used in the future to enhance a similar offense to a felony. Do you understand that a domestic violence charge is an enhanceable offense? If you‘re convicted of the charge and in the future charged with a similar offense, that similar offense would be enhanced to a felony.
The defendant: I will just plead guilty.
* * *
The court: The difference between a guilty plea is that is a complete admission, yes, I did it. The difference between a no contest plea is, you‘re not admitting that you did it, but you‘re not going to argue the facts of the case. The defendant: Then that‘s what I want to do.
* * *
The court: So, just let me – for the record – go through once again the no contest plea. You‘re not admitting guilt, but you are accepting as true the statements contained in the charge or stated in court. The no contest plea would not be used against you in a later civil or criminal matter, do you understand.
The defendant: Yes, ma‘am.
The court: All right. The effect of the plea. I do need to go over that this is an enhanceable offense. The plea would not be used against you, but a conviction could be used against you to enhance a future domestic violence or similar offense to a felony, do you understand?
The defendant: Yes, ma‘am.
The court: With this charge and a conviction on this charge, you could be prohibited under federal law from owning or possessing any firearms or weapons, do you understand that?
The defendant: I don‘t. Yes, ma‘am.
{¶ 17} The trial court concluded that the only concern exhibited by Ybarra during the plea hearing was the difference between a no contest and a guilty plea. We agree with that assessment, and we conclude that the judge who accepted Ybarra‘s plea patiently described the difference to Ybarra until he understood. There appeared to be no language barrier affecting Ybarra‘s understanding of the proceedings. And to the extent that Ybarra initially responded “I don‘t” when the judge asked him if he understood that he could be prohibited from owning or possessing a firearm, our review of the video recording convinces us that Ybarra was responding that he does not own or possess a firearm—not that he did not understand that he may be prohibited from owning or possessing them if convicted. In fact, he interrupted the court, such that the exchange that took place more accurately reads as follows:
The court: With this charge and a conviction on this charge, you could be prohibited under federal law from owning or possessing any firearms or weapons * * *
[Defendant interrupts]: I don‘t.
[Court continues]: * * * do you understand that?
[Defendant responds]: Yes, ma‘am.
{¶ 19} The extent of the hearing on the motion to withdraw and whether the trial court gave full and fair consideration to the motion. The newly-appointed municipal court judge conducted a full hearing at which both Ybarra and his counsel were permitted to speak. The court had clearly reviewed all materials pertinent to Ybarra‘s motion, including video recordings of the arraignment and plea hearing, and it asked thoughtful questions. It ultimately concluded that Ybarra‘s only confusion was over whether it was more beneficial for him to enter a plea of “guilty” or “no contest,” and observed that the trial judge who accepted his plea explained this to him “ad nauseam” until Ybarra understood. Having reviewed the same materials reviewed by the trial judge, we agree with the court‘s conclusion and we find that these factors weigh against allowing Ybarra to withdraw his plea.
{¶ 20} The timing of the motion. The motion was filed one week after Ybarra entered his plea and ten days before the date originally scheduled for the sentencing hearing. The city concedes that the timing of his motion was reasonable. This factor weighs in favor of allowing Ybarra to withdraw his plea.
{¶ 21} The reasons for the motion. Ybarra claimed in his motion that he did not know what was going on at the time of entering his plea. He maintained that he was confused as to the nature of the plea and “did not understand he was admitting guilt.”
{¶ 22} At the plea hearing, however, Ybarra demonstrated eagerness to resolve the charges. Indeed, Ybarra never wavered in his desire to enter a plea that would resolve the case; he merely questioned whether he should plead guilty or no contest. The court fully explained the difference to Ybarra until he understood. And despite Ybarra‘s contention that it was not until later that it became clear to him “that he made admissions,” the court specifically advised him that by his plea, he would not be admitting guilt, but rather would be “accepting as true any statements contained in the charge or stated in court.” We agree with the trial court that Ybarra exhibited a mere change of heart, or, in the court‘s words, “buyer‘s remorse.” This factor weighs against allowing Ybarra to withdraw his plea.
{¶ 23} Whether the accused was perhaps not guilty or had a complete defense to the charge. As stated, at the plea hearing, Ybarra made clear that he entered the plea because he wished to resolve the matter quickly. He did not profess his innocence, or make any equivocal statements in that regard, on the record. This case is unlike State v. Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 6, in which the defendant
{¶ 24} Regardless, a court‘s consideration of this factor is not limited to whether the accused maintained his innocence but, rather, whether the “accused was perhaps not guilty or had a complete defense to the charge.” Here, Ybarra never admitted assaulting the victim. He ultimately maintained that she inflicted injury upon herself while under the influence of drugs in order to blackmail him into staying with her and to convince him to obtain more drugs for her. The issue of Ybarra‘s guilt is entirely factual and, if this matter went trial, would depend largely upon the jury‘s determinations of witness credibility. We therefore find that this factor weighs neither for nor against Ybarra.
{¶ 25} Considering the Griffin factors as a whole, we conclude that the trial court did not abuse its discretion when it denied Ybarra‘s motion to withdraw his plea. Ybarra was represented by competent counsel, his
{¶ 26} In his second assignment of error, Ybarra argues that the trial court erred in accepting his plea because it was not entered knowingly, intelligently, and voluntarily. For the most part, his arguments mirror those made in support of his first assignment of error. But he also adds that the trial court failed to advise him of his trial rights, including the “right to jury or court trial, cross-exam, subpoena own witnesses, presumption of innocence, right to remain silent, State burden of proof [sic].”
{¶ 27} Ybarra cites
{¶ 28} The advisements required for misdemeanors under
{¶ 29} Under
{¶ 30}
{¶ 31} As fully explained in our discussion of Ybarra‘s first assignment of error, the trial court explained to Ybarra the effect of his plea. Ybarra expressed that he understood the effect of his plea. We, therefore, conclude that the trial court made the advisements necessary under
{¶ 32} We find Ybarra‘s second assignment of error not well-taken.
III. Conclusion
{¶ 33} Our review of the nine Griffin factors leads us to conclude that the trial court did not abuse its discretion when it denied Ybarra‘s motion to withdraw his guilty
{¶ 34} Accordingly, we find Ybarra‘s two assignments of error not well-taken. We affirm the February 4, 2019 judgment of the Perrysburg Municipal Court. Ybarra is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
Christine E. Mayle, P.J.
CONCUR.
Gene A. Zmuda, J., DISSENTS.
ZMUDA, J., dissenting:
{¶ 35} Because I conclude that the trial court abused its discretion by denying Ybarra‘s presentence motion to withdraw his guilty plea without exploring his claim of innocence at the change of plea hearing, I must respectfully dissent.
{¶ 37} Despite the claim of innocence articulated in Ybarra‘s motion to withdraw, defense counsel did not raise Ybarra‘s innocence at the withdrawal hearing, and the trial court did not question Ybarra on the innocence issue. Instead, the trial court focused exclusively on the extent to which Ybarra understood the plea proceedings. Admittedly, defense counsel indicated at the beginning of the withdrawal hearing that Ybarra did not understand what he was doing at the time of the plea, so I find that the trial court appropriately examined that issue. However, entitlement to withdraw a plea presentence is not limited to situations in which the plea was the product of a defendant‘s misunderstanding. Such a motion may also be granted for other reasons, including a defendant‘s claim of innocence.
{¶ 38} Trial counsel did not articulate the innocence claim at the hearing, but that claim was prominent within the written motion to withdraw. Moreover, Ybarra‘s claim of innocence is clearly articulated in the presentence investigation report, which was not referenced by the trial court at the hearing. Thus, I find it problematic that the trial court
{¶ 39} I find that the trial court‘s failure to consider Ybarra‘s claim of innocence is especially troubling given the fact that Ybarra‘s motion to withdraw was filed presentence. As noted by the majority in its analysis, presentence motions to withdraw are to be freely and liberally granted. Xie at 527. Under this liberal standard, trial courts should be required to at least address a movant‘s claim of innocence. Indeed, we have previously stated that “[w]hen a defendant claims he is innocent and wishes to withdraw his plea of guilt prior to sentencing, a comparison of the interests and potential prejudice to the respective parties weigh heavily in the interests of the accused.” State v. Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 29. Failing to address a defendant‘s claim of innocence renders the withdrawal hearing mandated by Xie ineffective, because the court has not satisfied its obligation to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. Id. at ¶ 21; see also State v. Eversole, 6th Dist. Erie Nos. E-05-073, 2006-Ohio-3988, ¶ 14 (“The scope of a hearing on an appellant‘s motion to withdraw his guilty plea should reflect the substantive merits of the motion.“).
{¶ 40} Our decision in Hartman is compelling because the trial court in that case actually “conducted an extensive hearing on the substantive merits of Hartman‘s motion, by hearing arguments from both sides, and personally questioning Hartman and Hartman‘s former counsel regarding the asserted basis for the motion to withdraw.”
{¶ 41} Here, the trial court‘s hearing consisted of confirming that the
{¶ 42} Because the majority holds otherwise, I must respectfully dissent.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.