DocketNumber: No. 01 BA 60.
Judges: WAITE, Presiding Judge.
Filed Date: 2/14/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On August 23, 1997, appellant was arrested for DWI in Flushing Township, Belmont County, Ohio. On October 1, 1997, appellant was indicted on a felony charge of DWI, in violation of R.C.
{¶ 3} After the case was remanded, appellant entered a guilty plea to the DWI charge on August 24, 2001, after a full plea hearing. Appellant's written guilty plea form indicated that he could receive up to twelve months in prison. The prosecutor agreed to recommend a sentence of six months of community control sanctions. The trial judge told appellant at the plea hearing that he could receive a maximum sentence of twelve months of local incarceration. (8/24/01 Tr., p. 4.) Sentencing was scheduled for October 5, 2001, but was rescheduled for September 28, 2001.
{¶ 4} Appellant attempted to retain new counsel, attorney Albert W. Davies, on September 28, 2001. Attorney Davies had not met with appellant, but had been sent a retainer fee. Attorney Davies attended the September 28, 2001, hearing. At the scheduled hearing, attorney Davies raised an oral motion to withdraw appellant's guilty plea. (11/14/01 J.E.) Attorney Davies immediately ceased representing appellant after this hearing.
{¶ 5} A hearing on the motion to withdraw the guilty plea was held on November 2, 2001. Appellant had new appointed counsel, attorney Paul Jefferis, at this hearing. Appellant's argument at the hearing appeared to be that he only entered a guilty plea to avoid any chance of going to prison. Appellant later concluded that he could not have been sentenced to prison under the sentencing laws in effect at the time he committed the crime. (11/2/01 Tr., p. 23, 28.) Appellant seemed to assert that he would not have pleaded guilty to the charge if he had known there was no possibility of a prison term. The court overruled appellant's motion to withdraw his guilty plea, and proceeded to sentence him. The court found that appellant had six prior DWI convictions, seventeen license suspensions, drug and alcohol problems, other criminal convictions, and lied about his prior record. The court sentenced him to twelve months of community control sanctions, including twelve months of incarceration at the Belmont County Jail, along with a $750 fine and a lifetime license suspension. (11/14/01 J.E.) This timely appeal followed.
{¶ 6} Appellant's sole assignment of error asserts:
{¶ 7} "The trial court erred constituting an abuse of discretion by denying the Defendant-Appellant's motion to withdraw his guilty plea."
{¶ 8} Appellant argues that he would not have agreed to plead guilty to felony DWI if he had known that there was no danger the court would impose a prison term. Considering that the trial court clearly explained to appellant that the maximum penalty would only involve local incarceration rather than prison, there is no basis for appellant's argument.
{¶ 9} Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." This rule provides no guidelines for a trial court to use in evaluating a presentence motion to withdraw a guilty plea. State v. Xie (1992),
{¶ 10} The trial judge has the discretion to grant or deny the motion. Id. at paragraph two of the syllabus. An abuse of discretion requires more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v.Clark (1994),
{¶ 11} This court has developed a set of guidelines for determining whether a presentence motion to withdraw a guilty plea should be granted:
{¶ 12} "(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 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to 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. Griffin (2001),
{¶ 13} Appellant's reason for withdrawing his plea is based onGriffin factor No. 8, "whether the defendant understood the nature of the charges and potential sentences". (Emphasis added.) Id. at 554. Appellant's reason for withdrawing his plea is based, in part, in changes to Ohio's felony sentencing laws in 1996 and 1997. The first DWI sentencing statute at issue is R.C.
{¶ 14} "(4)(a) If, within six years of the offense, the offender has been convicted of or pleaded guilty to three or more violations of division (A) or (B) of section
{¶ 15} This statute established that appellant's crime was a fourth degree felony, and that it might be punishable by either local incarceration or prison, depending on the application of R.C.
{¶ 16} The version of R.C.
{¶ 17} "(G) Notwithstanding divisions (A) to (E) of this section, if an offender is being sentenced for a fourth degree felony OMVI offense, the court shall impose upon the offender a mandatory term of local incarceration or a mandatory prison term in accordance with the following:
{¶ 18} "(1) Except as provided in division (G)(2) of this section, the court shall impose upon the offender a mandatory term oflocal incarceration of sixty days as specified in division (A)(4) of section
{¶ 19} "OMVI" is an abbreviation for operating a motor vehicle while intoxicated in violation of R.C.
{¶ 20} The version of R.C.
{¶ 21} "(2) If the offender previously has been sentenced to a mandatory term of local incarceration pursuant to division (G)(1) of this section for a fourth degree felony OMVI offense, the court shall impose upon the offender a mandatory prison term of sixty days as specified in division (A)(4) of section
{¶ 22} This section of the statute imposed a mandatory prison term, but only for a defendant who committed a second or subsequent fourth degree felony DWI.
{¶ 23} Appellant's indictment does contain a specification that he had four prior DWI convictions within the past six years, elevating the crime to a fourth degree felony. The indictment did not specify or allege that any of the prior convictions were felony convictions, but neither did the indictment rule out that possibility.
{¶ 24} Appellant's argument is based on proving three items: (1) that, at the time he entered his guilty plea, he could not have been sentenced to a prison term; (2) he was told that he could have been given a prison term; and (3) this contradiction is a sufficient reason for allowing him to withdraw his guilty plea.
{¶ 25} It is fairly obvious from the record that appellant was informed, prior to the court's acceptance of his plea, that prison was an option. This is supported by Appellant's written guilty plea, which notes that the maximum penalty was twelve months in prison and that a prison term was necessary. (9/7/01 Plea of Guilty.) This form is signed by appellant's attorney, the prosecutor, and the trial judge, Hon. John M. Solovan, II.
{¶ 26} Given the state of the law at the time, it appears that appellant was subject to a possible prison term by admitting he committed a fourth degree felony DWI. Additional facts apart from his plea agreement might dictate whether his felony DWI would require a prison term or local incarceration, but those facts were not listed in appellant's plea agreement. Given that the guilty plea form contains no other limitations on the nature of the felony, it correctly noted that a fourth degree felony DWI was subject to a possible prison term.
{¶ 27} The trial judge determined at the plea hearing that Appellant would be subject to only local incarceration. The judge does not specify the basis for this limitation. The trial judge specifically told appellant that he could only receive local incarceration. (8/24/10 Tr., p. 4.) Appellant stated that he understood the possible penalties as explained by the judge. (8/24/01 Tr., p. 4.) Although prison had been a punishment option up to this point, the trial judge himself excluded the option at the plea hearing.
{¶ 28} Based on the preceding analysis, it appears that appellant was at risk of receiving a prison sentence if the case had gone to trial. It might have been proven at trial that Appellant had a prior felony DWI conviction. That issue never reached trial because appellant agreed to plead guilty to the charge, and because the judge restricted the possible penalty to local incarceration.
{¶ 29} It is understandable that appellant may have been somewhat confused by the sentencing options presented to him, even though there were no errors in the events that led up to his sentencing. The sentencing provisions for felony DWI convictions are confusing by their very nature. Appellant's possible confusion is the only factor weighing in his favor for allowing him to withdraw his plea. The following factors weigh heavily against granting the motion to withdraw the plea: (1) appellant was represented by counsel when he made his plea; (2) there were extensive hearings both in accepting the plea and in considering the motion to withdraw the plea; (3) the motion was thoroughly considered by the trial judge; (4) the timing of the motion to withdraw the plea was very suspect, coming just before sentencing was scheduled; (5) appellant's stated reason for withdrawing his plea has no factual or legal basis; (6) the trial judge clearly informed appellant of the maximum potential penalties; (7) there are no other indications that appellant was confused when he entered his plea; and (8) appellant does not assert that he is actually not guilty of the charges against him or that he has a valid defense. Seeing that the overwhelming weight of the Griffin factors supports the trial court decision, the trial court was within its discretion to overrule appellant's motion to withdraw his plea.
{¶ 30} We hereby overrule appellant's assignment of error and affirm the trial court's decision in full.
Judgment affirmed.
Donofrio and DeGenaro, JJ., concur.