State v. Singh ( 2014 )

[Cite as State v. Singh, 2014-Ohio-3377.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-25
v.
GURWINDER SINGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 13 03 0062
Judgment Reversed and Cause Remanded
Date of Decision: August 4, 2014
APPEARANCES:
Marc S. Triplett for Appellant
Eric C. Stewart for Appellee
Case No. 8-13-25
SHAW, J.
{¶1} Defendant-appellant Gurwinder Singh (“Singh”) appeals the
December 3, 2013 judgment of the Logan County Common Pleas Court denying
Singh’s pre-sentence motion to withdraw his guilty plea and sentencing Singh to
serve five years in prison for Rape in violation of R.C. 2907.02(A)(2), a felony of
the first degree.
{¶2} The facts relevant to this appeal are as follows. On March 12, 2013,
Singh was indicted for Rape in violation of R.C. 2907.02(A)(2), a felony of the
first degree, Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first
degree, and Disrupting Public Service in violation of R.C. 2909.04(A)(3), a felony
of the fourth degree. (Doc. 1). The Bill of Particulars alleged that the charges
stemmed from a February 25, 2013 incident wherein Singh held a woman against
her will, knocked her cell phone out of her hand while she was attempting to call
9-1-1 and raped her. (Doc. 21).
{¶3} On March 19, 2013, an interpreter was appointed for Singh. (Doc. 9).
On April 1, 2013, Singh was arraigned and pled not guilty to the charges. (Doc.
12).
{¶4} On October 7, 2013, Singh filed multiple motions in limine, one of
which sought to exclude evidence regarding Singh’s citizenship. Singh was,
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according to the Bill of Particulars, from India and had entered the United States
illegally. (Doc. 21).
{¶5} On October 9, 2013, Singh entered a written negotiated guilty plea
wherein he agreed to plead guilty to the Rape charge in exchange for the State
dismissing the remaining counts against him.
{¶6} A plea hearing was then held that same day. At the hearing, the court
and defense counsel had a discussion about whether Singh would be subject to a
“mandatory” prison term or whether there was simply a presumption of prison.
(Oct. 9, 2013, Tr. at 3). Singh’s counsel asserted his understanding that the prison
sentence was not mandatory. Singh’s counsel also informed the court that he had
gone over the written plea agreement line-by-line with Singh. (Id. at 5).
{¶7} After the court and the attorneys finished their discussion regarding
the nature of Singh’s potential sentence, the court conducted a Criminal Rule 11
dialogue with Singh, through Singh’s interpreter. As part of that plea dialogue, the
court said to Singh, “[t]his offense is probationable, although there is a
presumption in favor of prison.” (Id. at 10).
{¶8} When the court had gone through the remainder of the Criminal Rule
11 dialogue, Singh plead guilty to Rape as charged in the indictment and the
remaining counts were dismissed. The matter was set for sentencing at a later
date.
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{¶9} On October 11, 2013, a second hearing was held where the court,
defense counsel, and the State reconvened and all agreed that a mistake had been
made at the October 9, 2013 plea hearing. This time, the trial court, the State and
defense counsel all agreed that rather than a presumption of prison, a prison
sentence was mandatory for Singh in this case for the Rape charge. The court
stated that the “plea petition” would need to be amended to reflect that changed
language, and that the court and counsel needed “to correct [their] advice to the
defendant.” (Oct. 11, 2013, Tr. at 2). Singh’s counsel then stated on the record
that “it’s my intention to have further discussion with [Singh] regarding the impact
of this modification of the Court’s advice to him.” The court then recessed, and
no further discussion was had on the record. It is not clear from the transcript
whether Singh was present at this hearing, as the court did not state who was in
attendance.1 At the very least, if Singh was present, he was never directly
addressed by the court regarding the earlier mistake.
{¶10} On October 23, 2013, a judgment entry was filed indicating that the
court had “informed” Singh on October 11, 2013, that the charge of Rape under
R.C. 2907.02(A)(2) carried a mandatory prison sentence. (Doc. 77).
1
The cover of the transcript indicates that both the State and defense counsel were present, and also
indicates that Singh’s interpreter was present.
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{¶11} Prior to sentencing, on November 11, 2013, Singh filed a motion to
withdraw his guilty plea. (Doc. 79).2 In support of his motion, Singh contended
that despite the trial court’s October 23, 2013 judgment entry, Singh was never
called before the court to reaffirm his plea after being informed of the mandatory
nature of his prison sentence. (Id.)
{¶12} On November 27, 2013, the trial court held a hearing on the motion
to withdraw Singh’s guilty plea. At the hearing, each side presented arguments
and the State presented the testimony of the officer who had investigated the case.
The State also introduced the audio recording of the 9-1-1 call where Singh could
be overheard purportedly restraining and raping the victim in this case.3 At the
conclusion of the hearing, the trial court overruled Singh’s motion and proceeded
to sentence Singh. Singh was subsequently sentenced to serve five years in prison.
{¶13} A judgment entry denying Singh’s motion and memorializing his
sentence was filed December 3, 2013. It is from this judgment that Singh appeals,
asserting the following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT OVERRULED MR.
SINGH’S MOTION TO WITHDRAW HIS GUILTY PLEA
2
This motion was amended (Doc. 81), and supplemented (Doc. 82).
3
The call had connected to 9-1-1 prior to the phone being knocked out of the victim’s hands, and continued
to record throughout the incident.
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{¶14} In his assignment of error, Singh contends that the trial court erred
when it overruled his motion to withdraw his guilty plea. Specifically Singh
contends that the trial court erred by incorrectly advising Singh regarding the
mandatory nature of his prison sentence at the original plea hearing and not
advising him on the record regarding this issue at the subsequent hearing, thus
rendering his plea not “knowing” and “intelligent.”
{¶15} Crim.R. 32.1 provides in pertinent part that “[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.” While the
general rule is that motions to withdraw guilty pleas, made before sentencing, are
to be freely granted, the right to withdraw a guilty plea is not absolute. State v.
Xie, 62 Ohio St. 3d 521 (1992), paragraph one of the syllabus. The trial court
must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea. Id. The decision to grant or deny a motion to
withdraw a guilty plea is within the sound discretion of the trial and will not be
disturbed on appeal, absent an abuse of discretion. Id. at paragraph two of the
syllabus. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
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grossly unsound. State v. Boles, 187 Ohio App. 3d 345, 2010-Ohio-278, ¶ 18 (2d
Dist.).
{¶16} There are several factors that have been delineated by this and other
courts to assist in our review of the trial court’s determination to grant or deny a
motion to withdraw a guilty plea, including: (1) whether the State will be
prejudiced by withdrawal; (2) the representation afforded to the defendant by
counsel; (3) the extent of the Crim.R. 11 hearing; (4) the extent of the hearing on
the motion to withdraw; (5) whether the trial court gave full and fair consideration
of the motion; (6) whether the timing of the motion was reasonable; (7) the
reasons for the motion; (8) whether the defendant understood the nature of the
charges and potential sentences; and (9) whether the accused was perhaps not
guilty or had a complete defense to the charge. State v. Prince, 3d Dist. Auglaize
No. 2-12-07, 2012-Ohio-4111, ¶ 22; State v. Lefler. 3d Dist. Hardin No. 6-07-22,
2008-Ohio-3057, ¶ 11; State v. Fish, 104 Ohio App. 3d 236, 240 (1st Dist.1995).
{¶17} In this case the State concedes, and thus the parties are in agreement,
that Singh was improperly advised at his plea hearing regarding the mandatory
nature of his prison sentence. The State argues, however, that the improper
notification was subsequently corrected by the trial court such that any defect in
the earlier plea hearing was cured.
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{¶18} At the plea hearing in this case, when the trial court was conducting
its Criminal Rule 11 dialogue with Singh, the trial court told Singh that the
“offense is probationable, although there is a presumption of prison.” (Tr. at 10).
The trial court finished its dialogue with Singh without correcting this statement.
{¶19} Two days later, the court convened with the State and Singh’s
counsel on the record. The State and Singh’s counsel agreed at this brief
“hearing” that the prison term for Singh was actually mandatory for the Rape
offense rather than “presumed.” The court and Singh’s attorney talked about the
need to discuss this change with Singh, and the need to correct Singh’s written
plea agreement.
{¶20} Singh’s plea agreement appears to have originally contained a
typewritten “Yes” as to whether the prison term was mandatory for Rape. This
“Yes” was crossed out prior to the original plea hearing and replaced with a
handwritten “no.” The record does appear to indicate that the plea agreement was
subsequently altered again to accurately reflect the mandatory nature of the prison
term. On page four of the written plea agreement, there is a handwritten
amendment dated October 11, 2013 indicating that the prison sentence was
mandatory rather than Singh merely having a “presumption of prison” for the
Rape offense. (Doc. 71). There is also some further writing or initialing next to
this amendment, perhaps indicating Singh’s initials, but it is indecipherable. (Id.)
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{¶21} However, despite the change in the written plea agreement, and the
State’s contention that the problems with the original plea hearing were cured in
the subsequent hearing, Singh was never addressed by the court at the second
hearing on the record. The second “hearing” consisted of what amounts to two-
and-a-half pages of dialogue between the court, the State, and defense counsel
clearing up that the prison sentence was mandatory rather than presumed. The
discussion was ended without Singh ever being addressed, with the record
indicating that Singh’s counsel intended to speak with Singh “regarding the impact
of this modification of the Court’s advice to him.” (Tr. at 3). There is no
indication that the court ever specifically advised Singh of the prior mistake or that
Singh was given an opportunity to reevaluate his plea in light of the new
information. Thus based on the record it does not seem, as the State suggests, that
the court’s improper advisement of Singh at the original plea hearing was
corrected at the second hearing.
{¶22} We have held previously that a trial court’s improper advisement of a
defendant at a plea hearing regarding whether his sentence was mandatory—and
thus whether the defendant was subject to judicial release—rendered his plea void.
State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-Ohio-2846, ¶ 12 (“when
reviewing the record, it appears that there was a specific misunderstanding and
mistake of law by court and counsel as to whether Cook was eligible for judicial
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release. We believe a fundamental error of this nature * * * is sufficient to void
the plea[.]”). In Cook, we found that this error constituted a manifest injustice
sufficient to warrant withdrawal in a post-sentence guilty plea withdrawal motion,
where a much higher standard is employed than in the case before us.
{¶23} Similarly, in State v. Bush, 3d Dist. Union No. 14-2000-44, 2002-
Ohio-6146, ¶11, we found that a trial court’s improper notification to the
defendant about his eligibility for judicial release warranted granting defendant’s
motion to withdraw his plea. See also State v. Cox, 3d Dist. Union No. 14-06-47,
2007-Ohio-6023, ¶ 18 (“[I]t is evident that the trial court initially read the
erroneous information to Cox, but then found the error and attempted to correct
the misinformation. However, from our reading of the transcript, we are unable to
say the trial court clearly informed Cox regarding the correct terms of judicial
release or that Cox understood when he would be eligible for his judicial
release.”). In State v. Taylor, 3d Dist. Seneca No. 13-12-25, 2012-Ohio-5130, ¶¶
13-19, we reversed a trial court’s denial of a motion to withdraw a guilty plea
where a defendant was “given the wrong information concerning her [potential]
sentence.” Taylor at ¶ 15. In State v. Maney, 3d Dist. Defiance Nos. 4-12-16, 4-
12-17, 2013-Ohio-2261, we reversed the denial of a pre-sentence motion to
withdraw a guilty plea where the defendant was incorrectly notified of the
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maximum possible sentence and incorrectly notified of mandatory post-release
control. Maney at ¶ 28.
{¶24} On the basis of our prior case law we find that the trial court erred in
failing to grant Singh’s motion as Singh was never properly informed on the
record regarding the nature of his sentence, and he was never given an opportunity
to evaluate his plea in light of the new information.
{¶25} Notwithstanding the court’s error, the State makes several arguments
to support the trial court’s denial of Singh’s pre-sentence motion to withdraw his
guilty plea, including that the State would be prejudiced by the withdrawal.
However, the State has not shown the unavailability of any of its witnesses,
relying only on the difficulty of the victim of having to go through with trial. The
State also argues that Singh was represented by highly competent counsel, and that
there was overwhelming evidence of Singh’s guilt, particularly with regard to the
audio recording of the 9-1-1 call where the purported rape could be overheard.
While both of these arguments may be true, they do not negate the fact that Singh
was improperly advised as to the nature of his plea at the plea hearing, and the
subsequent hearing does not establish on the record that Singh was able to re-
evaluate his plea once he was made aware of the mandatory nature of his prison
sentence.
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{¶26} Accordingly, for the aforementioned reasons the judgment of the
Logan County Common Pleas Court is reversed and the cause is remanded for
further proceedings.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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