State v. Carrington , 2011 Ohio 3228 ( 2011 )

[Cite as State v. Carrington, 2011-Ohio-3228.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2010CA00228
ANTHONY M. CARRINGTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2009CR0134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO VERNON M. INFANTINO
PROSECUTING ATTORNEY, Schnars, Baca & Infantino, LLC
STARK COUNTY, OHIO 610 Market Avenue North
Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00228 2
Hoffman, J.
{¶1} Defendant-appellant Anthony M. Carrington appeals the June 3, 2010
Judgment Entry of the Stark County Court of Common Pleas denying his motion to
withdraw his plea of guilty. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶2} On April 2, 2009, Appellant entered a plea of guilty to four counts of
aggravated robbery and one count of carrying a concealed weapon. The trial court
sentenced Appellant to six years in prison on the four aggravated robbery counts to run
concurrently. On the carrying a concealed weapon charge, the trial court sentenced
Appellant to eighteen months, with the term to run concurrent with the aggravated
robbery count. Appellant received the mandatory three years on the four firearm
specifications which coincided with the aggravated robbery counts and which terms
were imposed consecutively with the four aggravated robbery terms. Accordingly,
Appellant was sentenced to a total of eighteen years on all counts.
{¶3} On April 19, 2010, Appellant filed a motion to withdraw his guilty plea and
to vacate or void the judgment. The trial court scheduled a hearing on the motion and a
hearing to resentence Appellant with regard to post-release control. Via Judgment
Entry of May 24, 2010, the trial court denied the motion to withdraw the guilty plea, and
imposed the same sentence except for modifying post-release control. Appellant now
appeals, assigning as error:
{¶4} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA AND REQUEST FOR
NEW COUNSEL.”
Stark County, Case No. 2010CA00228 3
{¶5} Ohio Rule of Criminal Procedure 32.1 governs the withdraw of guilty
pleas:
{¶6} “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.”
{¶7} The trial court’s decision to grant or deny a motion to withdraw a guilty
plea is vested within the sound discretion of the court, and will not be reversed by an
appellate court unless there has been an abuse of discretion. State v. Xie (1992), 62
Ohio St.3d 521.
{¶8} Appellant cites the First District Court of Appeals decision in State v. Fish
(1995), 104 Ohio App.3d 236, in which that court stated:
{¶9} “There are numerous additional factors which should be weighed in
considering a motion to set aside a plea, which motion is made before sentencing,
some of which are set out in Peterseim, as follows: (1) whether the accused is
represented by highly competent counsel, (2) whether the accused was given a full
Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the
motion, and (4) whether the trial court gave full and fair consideration to the motion. We
would also add: (5) whether the motion was made within a reasonable time, (6) whether
the motion sets out specific reasons for the withdrawal (see State v. Mathis [May 30,
1990], Hamilton App. No. C-890286, unreported), (7) whether the accused understood
the nature of the charges and possible penalties, and (8) whether the accused was
perhaps not guilty of or had a complete defense to the charge or charges (see State v.
Stark County, Case No. 2010CA00228 4
Cloud [1993], 91 Ohio App.3d 366, 632 N.E.2d 932). Obviously, the list is not
exhaustive, and other factors will appear to trial and appellant courts depending upon
the merits of each individual case.”
{¶10} Appellant asserts he was not granted an opportunity to speak regarding
his motion or permitted to offer expert testimony or witnesses other than himself to
testify as to the effects of medication on his judgment at the time of the hearing.
Appellant asserts had he been given the opportunity he would have demonstrated the
effect certain drugs had on his understanding of what was going on at the time of the
change of plea hearing.
{¶11} Upon review of the record, Appellant offers no evidence to support his
argument the medications affected his ability to knowingly and intelligently enter his
pleas of guilty. Instead, Appellant’s argument is based upon speculation and
assumption. Moreover, at the hearing, Appellant conceded the motion was motivated
more by a change of heart and an attempt to reduce the original sentence:
{¶12} “The Court: Okay. So I guess I’m trying to understand. You’re asking to
withdraw your plea.
{¶13} “Besides this medication issue, are there any other claims that you’re
making why this plea should be withdrawn?
{¶14} “The Defendant: Yeah. I just felt that I didn’t get the right punishment for
a first-time felony.
{¶15} “The Court: Okay. You think I was too harsh?
{¶16} “The Defendant: Yes.
Stark County, Case No. 2010CA00228 5
{¶17} “The Court: Okay, and I can understand that. I mean I can appreciate
your feelings on that, but again, looking at State versus Fish, the next prong is whether
a full hearing was on the motion. It appears that we did have a full hearing on it.
{¶18} “Whether the motion was made within a reasonable time, it seems that it
has.
{¶19} “Then I see whether you made your motion on the specific time, and you
made it almost a year after the sentence.
{¶20} “It seems to me that what you have more is a change of heart than really
anything, isn’t it?
{¶21} “The Defendant: Yes.
{¶22} “* * *
{¶23} “So I was hoping that you can grant my punishment a little lower so I can
have another shot by doing what’s right in life.”
{¶24} Tr. at 14-15; 18.
{¶25} Based upon the above, we find Appellant has not demonstrated the trial
court abused its discretion in denying his motion to withdraw his plea.
Stark County, Case No. 2010CA00228 6
{¶26} The June 3, 2010 Judgment Entry of the Stark County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00228 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANTHONY M. CARRINGTON :
:
Defendant-Appellant : Case No. 2010CA00228
For the reason stated in our accompanying Opinion, the June 3, 2010 Judgment
Entry of the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards
HON. JULIE A. EDWARDS