State v. Lauharn

[Cite as State v. Lauharn, 2012-Ohio-6185.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-9
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-47
v. :
:
GARY D. LAUHARN : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of December, 2012.
...........
ROBERT E. LONG, III, Atty. Reg. #0066796, Miami County Prosecutor’s Office, 201 West
Main Street, Safety Building, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
GARY D. LAUHARN, Inmate #A638-815, Toledo Correctional Institution, 2001 East Central
Avenue, Post Office Box 80033, Toledo, Ohio 43608-0033
Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} Gary D. Lauharn appeals pro se from the trial court’s denial of a post-sentence
motion to withdraw his no-contest plea and motion for reconsideration.
[Cite as State v. Lauharn, 2012-Ohio-6185.]
{¶ 2} In his sole assignment of error, Lauharn contends the trial court erred in
denying the plea-withdrawal motion and the motion for reconsideration of that ruling because
his no-contest plea was not entered knowingly, intelligently, and voluntarily.
{¶ 3} The record reflects that Lauharn entered a no-contest plea to multiple counts
of rape, pandering obscenity involving a minor, and pandering sexually oriented material
involving a minor. Pursuant to a plea agreement, the State dismissed a number of additional
charges. The trial court imposed an aggregate sentence of forty years in prison. Lauharn
appealed.
{¶ 4} While his direct appeal was pending, Lauharn moved to withdraw his
no-contest plea. The trial court overruled that motion and a motion for reconsideration while
the direct appeal remained pending. Lauharn filed a second appeal from the trial court’s denial
of those motions.
{¶ 5} This court disposed of the initial appeal by reversing and remanding to allow
the trial court to correct a defect in its sentencing entry. See State v. Lauharn, 2d Dist. Miami
No. 2010-CA-35, 2011-Ohio-4292 (“Lauharn I”). This court later dismissed Lauharn’s appeal
from the trial court’s denial of his motion to withdraw his no-contest plea and his motion for
reconsideration. This court reasoned that the trial court lacked jurisdiction to rule on the
motions while a direct appeal was pending. See State v. Lauharn, 2d Dist. Miami No.
2011-CA-10, 2012-Ohio-1572 (“Lauharn II”).
{¶ 6} On May 17, 2012, with jurisdiction returned to it, the trial court again
considered and overruled Lauharn’s motion to withdraw his no-contest plea and motion for
reconsideration. In relevant part, the trial court reasoned:
The motion to withdraw plea filed April 1, 2011, asserts that the
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defendant was unaware that he could receive consecutive sentences. However,
the transcript of the plea hearing of September 8, 2010, demonstrates that, on
multiple occasions, Lauharn was told that the sentences for the offenses could
be run concurrently or consecutively. On each occasion, Lauharn stated under
oath that he understood. The motion to withdraw plea filed April 1, 2011 is
overruled.
The defendant also has filed a motion for reconsideration on April 14,
2011, asking the court to reconsider the court’s denial of the motion to
withdraw his plea. In the motion for reconsideration, Lauharn reasserts that he
was not informed about the possibility of consecutive sentences. In addition,
Lauharn asserts the additional ground that, at the time of the plea, he was “ . . .
under the influence of several medical and psychotropic medications during the
time of his plea hearing.” The transcript of the plea hearing reveals the court
asked Lauharn if he was under the influence of any medication and Lauharn
responded that he was taking seizure medication. The court explained to the
defendant that if any medication affected his ability to understand what he was
doing, the court would not go ahead with the plea. The defendant also assured
the court that he would let the court know if he did not understand something
during the plea hearing. In addition, the colloquy between Lauharn and Judge
Lindeman demonstrates that the defendant appropriately responded to
questions throughout the proceeding. This assertion that he was under the
influence of multiple, albeit unnamed, medications is in contrast to the
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defendant’s testimony at the plea hearing. The motion for reconsideration fails
to establish that any medications interfered with his ability to understand the
proceedings during the plea hearing. The motion for reconsideration is
overruled.
(Doc. #58 at 1-2).
{¶ 7} On appeal, Lauharn contends he should have been permitted to withdraw his
no-contest plea for several reasons: (1) his attorney “convinced him he would receive a
sentence from the range of 5 to 8 years”; (2) he was advised, incorrectly, that the maximum
aggregate punishment he faced was ninety-two years in prison rather than 129 years; (3) the
plea form and the trial court both incorrectly stated that the penalty for count ten was three to
fifteen years in prison rather than two to fifteen years; (4) he did not understand that he could
be required to serve consecutive sentences; and (5) he was in a “drug induced stupor at the
time of the plea.”
{¶ 8} Pursuant to Crim.R. 32.1, a defendant must demonstrate a “manifest injustice”
to withdraw a plea after sentencing. “A manifest injustice has been defined as ‘a clear or
openly unjust act’ that involves ‘extraordinary circumstances.’” State v. Minkner, 2d Dist.
Champaign No. 2009 CA 16, 2009-Ohio-5625, ¶ 25, quoting State v. Stewart, 2d Dist. Greene
No. 2003-CA-28, 2004-Ohio-3574. We review a trial court’s ruling on a post-sentence motion
to withdraw a plea for an abuse of discretion. Xenia v. Jones, 2d Dist. Greene No. 07-CA-104,
2008-Ohio-4733, ¶ 6. We see no abuse of discretion here.
{¶ 9} During the plea hearing, Lauharn admitted that no one had promised or
guaranteed him anything with regard to his sentence. He also acknowledged that the trial court
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would not be bound by any promises or representations made by anyone. (Plea hearing
transcript at 6). Lauharn did not mention any expectation of a five-to-eight year prison
sentence, and nothing the trial court said should have caused him to expect such a sentence.
{¶ 10} The hearing transcript does reflect that the trial court told Lauharn he faced a
maximum sentence of ninety-two years in prison. Actually he faced a potential 129-year
sentence because three of the ten charges to which he pled were committed before July 1,
1996, resulting in indeterminate sentences. Nevertheless we previously determined that we see
no prejudice to Lauharn and no manifest injustice. This court previously addressed the issue in
Lauharn I, albeit arguably in dicta. 1 This court noted that advising a defendant of the
maximum sentence he faces is not constitutionally required. This court also found no evidence
that, but for the trial court’s misstatement, Lauharn would have refused to plead. Lauharn I at
¶ 8-10 and fn. 2. The same reasoning applies here. We find no manifest injustice in the trial
court telling Lauharn, who was fifty-seven years old, that he faced up to ninety-two years in
prison rather than 129 years, particularly where he received an aggregate sentence
substantially shorter than either of those terms.
{¶ 11} We reach the same conclusion with regard to Lauharn’s claim that the penalty
for count ten, a second-degree felony, was misstated as being three to fifteen years in prison
rather than two to fifteen years. This misstatement did not render his plea to count ten less
than knowing, intelligent, and voluntary. We note that a trial court is not even required to
1
In part because this court’s discussion of the issue in Lauharn I arguably was dicta, we decline the State’s invitation to apply res
judicata. In addressing the validity of the plea in Lauharn I, this court began: “Lauharn correctly points out that at the plea hearing the trial
court informed him of the wrong maximum penalty for Count 6. While he raises the issue, Lauharn does not assign error to or argue or even
assert that his no-contest plea to this count was thereby rendered involuntary. While we may therefore disregard the issue, see App.R.
12(A)(2) and 16(A), we will nevertheless address it briefly.” Lauharn I at ¶ 7.
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address the minimum sentence a defendant faces. State v. Dixon, 2d Dist. Montgomery No.
23671, 2010-Ohio-4919, ¶ 24; State v. Beatty, 8th Dist. Cuyahoga No. 75926, 2000 WL
1844754 (Dec. 14, 2000) (noting that a “defendant’s knowledge of the maximum and
minimum sentences is not constitutionally required”). Moreover, we see no likelihood that the
misstatement impacted Lauharn’s decision to plead no contest, particularly where the trial
court overstated the minimum sentence by a year. Indeed, he cannot seriously argue that he
would have refused to plead if he had known the minimum sentence was a year less than he
believed.
{¶ 12} The sentencing transcript belies Lauharn’s claim that he did not understand he
could receive consecutive sentences. Lauharn argues that the trial court used misleading
terminology about consecutive sentences which suggested to him that he would not receive
consecutive sentences. We note that there were ten counts explained by the court. The six
counts of rape were first addressed. The court stated: “And because there is more than one
charge here, all those rape charges, well they could all run at the same time or they could run
consecutively.” (Sentencing Tr. at 11-12). Lauharn acknowledged his understanding. Then,
after discussing the four pandering charges, the court stated: “Because once again, we have
more than one charge, those pandering obscenity charges could run concurrently, or at the
same time, or whatever sentence you got on each one of those could run consecutive to one
another.” (Id. at 13). The defendant again acknowledged his understanding. Finally, the court
addressed the interrelation of the two sets of charges as follows: “And since we have all- the
rapes over here, and the panderings over here, technically the - all the rape charges and the
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pandering charges could all run consecutive.” (Emphasis added.). (Id. at 14). Again, the
defendant acknowledged his understanding. Later in the colloquy, when the court and
defendant’s counsel were calculating the maximum potential penalty, after stating that all the
penalties could be consecutive, the court said: “So, I’m going to say uh, and as I explained to
you in theory everything could run consecutive, like you know, all after - one after the other,
thirty-two [4 x 8 years for the pandering charges] and sixty [calculating 6 x 10 years for the
rape charges] - that’s ninety-two years, actually. In theory.” (Emphasis added.). (Id. at 17). It
is the defendant’s contention that his attorney led him to believe he would receive a 5-8 year
sentence and the court’s quoted dialog failed to dissuade him of this belief. His argument fails
for at least three reasons. First, there is nothing of record of any representation of any
sentencing expectation. To the contrary, the defendant indicated no one promised or
guaranteed him anything in exchange for his pleas to the 10 charges. (Id. at 6). The court
specifically stated it was not bound by any promises or representations and the defendant said
he understood. Second, the tenor of the entire plea colloquy does not suggest that the
defendant will only receive concurrent sentences. Perhaps the court was anticipating that it
would not make the pandering charges consecutive to the rape charges, which is in fact what it
did, but taken as a whole, the court did not mislead the defendant by its terminology. Thirdly,
the charges stem from the defendant repeatedly, often daily, having sex with his daughter from
the time she was about 14 until she was 17. He took photos and audio tapes of several of the
encounters. He facilitated some of the offenses by giving her alcohol and perhaps drugs. The
defendant admitted to the police he had an extended sexual relationship with his minor
daughter. He also was charged, and convicted, of rape of one of his daughter’s girlfriends. It is
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simply beyond belief that any attorney would indicate that the defendant would get a sentence
of only 5-8 years and it is beyond belief that the defendant, knowing the egregious
circumstances of the charges, could ever harbor a realistic expectation of a 5-8 year sentence.
The trial court advised Lauharn about the potential for consecutive sentences, and he indicated
his understanding. (Id at 12-14, 17). His argument that the trial court misled him is not
supported by the record.
{¶ 13} Likewise the hearing transcript belies Lauharn’s claim that he was in a
drug-induced stupor when he entered his no-contest plea. The trial court inquired about
Lauharn’s medication. He assured the trial court that his medication did not prevent him from
understanding what was happening. (Id. at 7). He also responded appropriately to the trial
court’s inquiries throughout the hearing and gave no indication that he was acting under the
influence of anything.
{¶ 14} In short, the hearing transcript demonstrates that Lauharn’s plea was entered
knowingly, intelligently, and voluntarily. The trial court did not abuse its discretion in finding
no manifest injustice requiring withdrawal of the plea.
{¶ 15} The assignment of error is overruled, and the judgment of the Miami County
Common Pleas Court is affirmed.
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GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Robert E. Long, III
Gary D. Lauharn
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Hon. Christopher Gee