State v. Acosta , 2016 Ohio 5698 ( 2016 )

[Cite as State v. Acosta, 2016-Ohio-5698.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-15-066
Appellee Trial Court No. 2015CR0119
v.
Michael Acosta DECISION AND JUDGMENT
Appellant Decided: September 2, 2016
*****
Paul A. Dobson, Wood County Prosecuting Attorney, Alyssa M.
Blackburn and David T. Harold, Assistant Prosecuting Attorneys,
for appellee.
Stephen D. Long, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Michael Acosta, appeals from the October 8, 2015 judgment of
the Wood County Court of Common Pleas accepting appellant’s guilty plea to and
convicting him of attempted felonious assault and sentencing him to 18 months of
imprisonment.
{¶ 2} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s appointed counsel has filed an appellate
brief and motion to withdraw as counsel. He mailed a copy of the brief and motion to
appellant and informed him that he had a right to file his own brief, but he did not do so.
{¶ 3} Appellant’s counsel states in his motion that he thoroughly reviewed the
record in this case and concluded that the trial court did not commit any error prejudicial
to appellant. However, in compliance with the requirements of Anders, appellant’s
counsel has submitted a brief setting forth two potential assignments of error, but he
concludes that they are unsupported by the record and/or by the law.
{¶ 4} First, appellant’s counsel considered a potential assignment of error related
to whether appellant entered a knowing, intelligent, and voluntary guilty plea at the
Crim.R. 11 hearing. However, he concluded the argument would be frivolous.
{¶ 5} Appellant was indicted on charges of felonious assault and abduction. The
day before trial, a Crim.R. 11 plea hearing was held. The state was prepared to present
witnesses who would testify that when police responded to a domestic dispute dispatch
on March 9, 2015, the victim came running out of the house. She stated to the police she
had been taking a bath when appellant hit her in the face, attempted to tie her up, choked
her, and threaten to kill her. The police observed that the victim was bruised, had blood
in her eye and on her face, and there was blood in the sink. At the hearing, appellant
withdrew his not guilty plea and entered a guilty plea to a single reduced charge of
attempted felonious assault with an agreed sentence of 18 months imprisonment. The
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trial court accepted the plea. Appellant was convicted and sentenced to 18 months of
imprisonment.
{¶ 6} A guilty or no contest plea must be made knowingly, intelligently, and
voluntarily to be valid under both the United States and Ohio Constitutions. Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio
St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, before accepting a plea of guilty or
no contest to a felony offense, Crim.R. 11(C)(2) requires that a trial court conduct a
hearing with a personal colloquy with the defendant, make specific determinations and
give specific warnings required by Crim.R. 11(C)(2)(a) and (b), and notify the defendant
of the constitutional rights listed in Crim.R. 11(C)(2)(c) that he would be waiving. State
v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 13.
{¶ 7} Whether the rights involved are constitutional or non-constitutional, literal
compliance with Crim.R. 11(C) is the proper means to ensure that a defendant’s guilty or
no contest plea is knowingly, intelligently, and voluntarily made. State v. Clark, 119
Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30; Veney at ¶ 14. When there is
not literal compliance, the reviewing court must determine if the trial court fulfilled the
purposes of the rule. Clark. If the court did not, the appellate court must also determine
the significance of the failure and the remedy. Id.{¶ 8} Because the defendant gives up significant constitutional rights by entering a
guilty or no contest plea, the trial court must strictly comply with Crim.R. 11(C)(2) and
inform the defendant personally regarding federal constitutional rights he waives by
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entering a guilty or no contest plea or the reviewing court will presume the plea was not
knowingly, intelligently, and voluntarily made. Veney at ¶ 7; State v. Nero, 56 Ohio
St.3d 106, 107, 564 N.E.2d 474 (1990). The acceptable level of compliance is lower for
non-constitutional rights. For those rights, the reviewing court must find the trial court
substantially complied with the rule. Clark at ¶ 31-32. If the trial court deviated from
literal compliance with the rule, the reviewing court must confirm that the trial court
substantially complied by finding the record demonstrates the defendant “subjectively
under[stood] the implications of his plea and the rights he was waiving” from the “totality
of the circumstances.” Id. at ¶ 31, quoting Nero at 108, Veney at ¶ 15.
{¶ 9} If the reviewing court determines the trial court did not substantially comply
with Crim.R. 11(C)(2)(a) and (b), it must then consider whether the trial court partially
complied or completely failed to comply with the rule. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462 at ¶ 31-32. The appellate court will not invalidate a plea
where the trial court partially complied with Crim.R. 11(C) unless appellant has also
demonstrated he was prejudiced by the court’s action. Id. However, if there is no
compliance with the rule at all, the defendant does not need to show prejudice and the
plea must be vacated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224, ¶ 25.
{¶ 10} Civ.R. 11(C)(2) requires that the court determine “the defendant is making
the plea voluntarily, with understanding of the * * * the maximum penalty involved
* * *.” Crim.R. 11(C)(2)(a). The rule requires, therefore, that the court determine the
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defendant entered a voluntary plea in light of an understanding of these key facts, not that
the court personally notify the defendant of these facts. Therefore, the reviewing court
must find the totality of the circumstances would support the trial court’s determination
the defendant understood these facts prior to entering the plea. Nero, 56 Ohio St.3d at
108-109, 564 N.E.2d 474; State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-
5145, ¶ 20; State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 39;
State v. Torres, 6th Dist. Lucas No. L-07-1036, 2008-Ohio-815, ¶ 38-44; State v. Milazo,
6th Dist. Lucas No. L-07-1264, 2008-Ohio-5137, ¶ 17; State v. Abuhashish, 6th Dist.
Wood No. WD-07-048, 2008-Ohio-3849, ¶ 34-35. Compare Sarkozy at ¶ 19-22 (plea
vacated without the need to show prejudice where trial court did not mention postrelease
control and there was a complete failure to notify defendant of the maximum sentence.)
The constitution does not require that a defendant be informed of the potential maximum
and minimum sentence he could obtain in order to enter a knowing, intelligent, and
voluntary plea. State v. Johnson, 40 Ohio St.3d 130, 133, 532 N.E.2d 1295 (1988).
Therefore, the right to know the potential maximum sentence is a non-constitutional
right.
{¶ 11} Appellate counsel first considered whether the trial court erred when it did
not inform appellant of the maximum possible sentence appellant faced. We agree this
argument lacks merit. The written plea agreement clearly stated the maximum sentence
which could have been imposed. At the Crim.R. 11 hearing, appellant’s trial attorney
stated he discussed the plea agreement with appellant. Appellant acknowledged to the
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trial court that he had read the plea agreement, signed it, and understood the information.
Considering the totality of the circumstances, we find there is no basis for arguing the
trial court did not substantially comply with Crim.R. 11(C)(2)(a) when it determined that
appellant knew the potential maximum sentence which could be imposed.
{¶ 12} Furthermore, a trial court is required by Crim.R. 11(C)(2)(c) to notify the
defendant, and determine he understands the constitutional rights waived by entering the
plea: “the rights to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s favor, and to require the
state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.” The right to waive a
jury trial in favor of a bench trial, pursuant to R.C. 2945.05, is a statutory (non-
constitutional) right. State v. Bell, 2d Dist. Montgomery No. 24356, 2011-Ohio-5016,
¶ 17.
{¶ 13} In the case before us, appellant’s attorney argues the trial court informed
appellant he was waiving his right to a jury trial, but it did not inform appellant that he
was also waiving his right to a bench trial. The plea agreement did include a statement
that appellant was waiving both his right to a “jury trial or court trial.”
{¶ 14} First, we find Crim.R. 11(C)(2)(a) does not require the court to inform the
defendant that a guilty plea will result in the waiver of a right to a bench trial. Second,
any ambiguity in the court’s language explaining the effect of entering a guilty plea is
clarified by the plea agreement, which appellant acknowledged he understood.
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Therefore, this proposed error could not be a basis for vacating the plea. Finally,
appellant did not file a brief in response to notice of his appellate counsel’s filing of an
Anders’ brief and has not presented an argument of prejudice. State v. Ramey, 7th Dist.
Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 18.
{¶ 15} Therefore, we agree that the first proposed assignment of error lacks merit.
{¶ 16} In his second potential assignment of error, appellant’s attorney identified a
possible error regarding whether the trial court erred by not allowing appellant to
withdraw his guilty plea. Appointed counsel concluded the argument is not supported by
the record.
{¶ 17} There is no absolute right to withdraw a guilty plea after conviction, but
prior to sentencing, State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph
one of the syllabus, and the matter is left to the sound discretion of the trial court, which
is in the better position to evaluate both the motivation of the defendant in pleading guilty
and the credibility and weight to be given to the reasons for seeking to withdraw the plea.
Id. at paragraphs one and two of the syllabus. An appellate court will not reverse the trial
court’s denial of the motion unless the defendant can establish that the trial court abused
its discretion. Id. at 525. An abuse of discretion standard requires a finding that the trial
court committed “more than an error of law or of judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable * * *.” State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
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{¶ 18} Crim.R. 32.1 gives no criteria for determining when withdrawal of a plea is
justified. However, the Ohio Supreme Court has held that “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” Xie at 527. Appellate
courts evaluate the trial court’s decision based upon the following considerations:
(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.
Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39
(6th Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d
310 (7th Dist.2001).
A change of heart is an insufficient reason to permit withdrawal of the plea. State v.
Williams, 6th Dist. Lucas Nos. L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 13 (citations
omitted).
{¶ 19} Appellant’s plea was accepted on June 2, 2015, and sentencing was
scheduled for June 30, 2015. On the day of sentencing, appellant orally moved to
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withdraw his plea and a hearing was scheduled. At the hearing to withdraw the plea, new
counsel was appointed to represent appellant.
{¶ 20} At the time of the plea, appellant acknowledged he was satisfied with his
appointed counsel’s representation. Appellant testified he had understood his rights
during the plea hearing and he had not been under the influence of alcohol or elicit
substances at the time nor a mental distress disorder at the time of the plea.
{¶ 21} After the guilty plea had been entered, appellant sought to withdraw his
plea asserting his appointed counsel had not investigated a witness who could have
provided testimony contrary to the victim. His attorney also had not investigated an
incident appellant was aware of which could have damaged the victim’s credibility.
Appellant believed he had a meritorious defense to the crime.
{¶ 22} The state argued that there was no basis for withdrawal of the plea. The
court also noted the state had dismissed a count in exchange for the plea, which could
have added an additional three years of incarceration. Furthermore, the negotiated plea
reduced appellant’s sentence from a potential eight years to 18 months. The court noted
appellant’s prior appointed counsel was very experienced and competent.
{¶ 23} We agree with appellate counsel there is no basis for arguing the trial court
abused its discretion by denying the motion to withdraw the plea. Considering the factors
above, we find that although the state did not allege it would be prejudiced by withdrawal
of the plea, appellant failed to demonstrate a sufficient basis for withdrawing his plea.
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{¶ 24} While appellant stated he was dissatisfied with his trial counsel’s failure to
investigate a defense witness, appellant produced no evidence to support a finding that
this witness would have provided exculpatory evidence or that his trial counsel did not
investigate the case thoroughly. While appellant asserts that he was not guilty and had a
complete defense to the charge, he did not support that allegation with any evidence.
Appellant identified a witness whom he said could exonerate appellant, but there was no
evidence that the witness was willing to testify or could be located.
{¶ 25} Furthermore, the trial court was satisfied that appellant’s counsel was very
competent. Appellant had not complained of his counsel’s representation at the time of
the plea hearing and all of the facts appellant alleged were not investigated were known
at that time. The trial court concluded that appellant’s counsel had been able to negotiate
a plea to reduce appellant’s sentence from a potential eight years of imprisonment to 18
months.
{¶ 26} The Crim.R. 11 hearing was properly conducted and appellant had an
opportunity to raise any issues he desired. Appellant indicated that he understood the
nature of the charges and potential sentences. At the hearing on the motion to withdraw,
new counsel was appointed to represent appellant and he was also given ample
opportunity to support his oral motion to withdraw the plea. We find the trial court gave
full and fair consideration to the motion.
{¶ 27} Therefore, we agree with appellate counsel the second proposed
assignment of error lacks merit as well.
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{¶ 28} Finally, this court has the obligation to fully examine the record in this case
to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.
1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial
court which would justify a reversal of the judgment. Therefore, we find this appeal to be
wholly frivolous. Counsel’s request to withdraw as appellate counsel is found well-taken
and is hereby granted.
{¶ 29} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Wood County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on
appeal. The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
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