State v. Hamed

For the reasons herein stated, I respectfully dissent.

Defendant was indicted for trafficking in food stamps. On November 25, 1987, being represented by counsel, he entered a plea of no contest and was found guilty of the charge. He was referred to probation for a pre-sentence report. On January 20, 1988, he was sentenced to a term of imprisonment of six months. Shortly thereafter, defendant retained new counsel who, pursuant to Crim.R. 32.1, filed a motion to set aside the judgment of conviction and to withdraw defendant's plea of no contest. Attached to this motion was defendant's affidavit making several allegations of ineffective assistance of counsel. The trial court, without conducting an evidentiary hearing, denied defendant's motion. Defendant claims that the trial court abused its discretion in denying his motion. I disagree.

Crim.R. 32.1 provides that a court may, after sentence, set aside a judgment of conviction to correct a manifest injustice. I find no manifest injustice resulting from the court's denial of defendant's motion.

I have reviewed defendant's affidavit which was attached to his motion. Despite its allegations, and upon full consideration of the entire record, especially the trial court's journal entries, I cannot find that the trial court abused its discretion in failing to grant defendant an oral hearing or in denying his motion to withdraw his plea of no contest. SeeState v. Jackson (1980), 64 Ohio St.2d 107, 18 O.O.3d 348,413 N.E.2d 819; State v. Reynolds (Apr. 24, 1986), Cuyahoga App. No. 50368, unreported, 1986 WL 4956. It is not the purpose of Crim.R. 32.1 to permit the entry of a guilty or no contest plea merely to test the weight of potential punishment. State v.Smith (1977), 49 Ohio St.2d 261, 264, 3 O.O.3d 402, 404,361 N.E.2d 1324, 1325-1326.

The trial court's journal entry of December 2, 1987 recites the events which occurred at the taking of defendant's no contest plea on November 25, 1987. The court's journal entry clearly states that it heard evidence before making a finding of defendant's guilt.

Filed with defendant's notice of appeal to this court was a praecipe which enumerated the contents of defendant's appellate record. Specifically, excluded from the record by defendant was a transcript of proceedings. Hence, the record does not contain a transcript of the proceedings which occurred at the time defendant entered his plea of no contest.

However, an important fact must be noted. At page 6 of appellant's brief, he states: "The trial court accepted appellant's plea after making the requisite determinations that the plea was being entered knowingly, voluntarily and intelligently."

In this posture, I must conclude that: (1) Defendant was represented by counsel of his choice at the time he entered his plea of no contest. (2) The court received evidence which supported its finding of defendant's guilt. (3) The defendant's affidavit is unsupported by other evidence and is insufficient to justify a conclusion that the trial court abused its discretion in failing to give defendant an oral hearing on his motion. (4) There is no claim that the defendant is innocent or that his conviction is not supported by evidence received by the court. (5) The defendant entered his no contest plea knowingly, voluntarily, and intelligently. (6) Manifest injustice does not result from the trial court's action denying the defendant's motion.

Under these circumstances, I cannot find that the trial court abused its discretion in refusing to allow defendant-appellant, after sentence, to withdraw his guilty plea.

I would affirm.