Opinion
23 CO 0042
07-15-2024
STATE OF OHIO, Plaintiff-Appellee, v. MALCOLM L. GILFORD, Defendant-Appellant.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee Atty. Aaron M. Meikle, for Defendant-Appellant
Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2022 CR 58
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee
Atty. Aaron M. Meikle, for Defendant-Appellant
BEFORE: Cheryl L. Waite, Carol Ann Robb, Katelyn Dickey, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Appellant Malcolm L. Gilford is challenging the trial court's decision to accept his guilty plea to possession of cocaine. Appellant argues that this plea was not made knowingly or intelligently because the court gave him contradictory and false information. Appellant states that the trial judge told him he was eligible for community control. The trial judge also told him that no presentence investigation report ("PSI") would be ordered. As R.C. 2951.03(A)(1) requires that a court order a PSI before imposing community control, Appellant contends that the decision not to order preparation of a PSI contradicts the statement that he was eligible for community control. For these same reasons, Appellant also argues that the court should have granted his postsentence motion to withdraw his plea.
{¶2} Although the trial court gave Appellant potentially confusing information about community control (assuming that Appellant was fully aware of the content and ramifications of R.C. 2951.03(A)(1) at his change of plea hearing), Appellant has suffered no harm in this case. Appellant testified at his change of plea hearing that he assumed the court would impose a 12-month prison term. Instead, the court ordered an 18-month prison term. Because Appellant expected to serve some term of imprisonment when he pleaded guilty to the charge, the court's failure to order a PSI and failure to consider community control did not prejudice Appellant. Appellant's attempt to withdraw his plea was merely a result of his change of heart, based on the length of the prison term he ultimately received. Appellant's two assignments of error are without merit and the judgment of the trial court is affirmed.
Case History and Facts
{¶3} On February 10, 2022, Appellant was indicted on one count of possession of cocaine pursuant to R.C. 2925.11(A), a fourth degree felony. On March 1, 2023, the date set for trial, Appellant informed the court that he sought to plead guilty to the charge, despite the fact that there was no Crim.R. 11 plea agreement offered or accepted in this case. The court immediately held a change of plea hearing. The court informed Appellant of the consequences of changing his plea and explained the constitutional and nonconstitutional rights he was waiving by pleading guilty. This included the judge's statement: "A prison term is not presumed necessary. You could be sentenced to community control for a period of time not to exceed five years." (3/1/23 Tr., p. 9.) However, at the end of the change of plea hearing, Appellant was told:
Court: Now, off the record I told counsel if Mr. Gilford determined to change his plea today I would not order a presentence investigation because I'm aware of his past criminal record, but I would schedule a sentencing hearing in roughly two weeks.(3/1/23 Tr., p. 14.)
{¶4} Sentencing was scheduled for March 16, 2023. Prior to sentencing, on March 2, 2023, Appellant was seen leaving a known drug house and was found to be in possession of illegal narcotics and drug paraphernalia. On March 7, 2023, the state moved to revoke Appellant's bond based on his post-plea arrest. Appellant then failed to appear at the March 16, 2023 sentencing hearing and a bench warrant was issued. Sentencing was rescheduled for April 14, 2023. Appellant was present at sentencing on April 14, 2023, and at that hearing the court sentenced Appellant to the maximum prison term of 18 months. The final judgment of conviction and sentence was entered on April 17, 2023. On April 19, 2023, Appellant filed a hand-written motion seeking to withdraw his plea. Appellant also filed a notice of appeal that same day.
{¶5} On May 26, 2023, the court held a hearing on Appellant's motion to withdraw his plea. Appellant admitted that he thought he would be sentenced to a 12-month prison term, and assumed when he entered into a plea agreement that he would serve twelve months. He was upset by the fact that, instead, the court imposed an 18-month prison term. (5/26/23 Tr., p. 5.)
{¶6} The motion to withdraw his plea was overruled in a judgment entry filed on June 21, 2023. Although Appellant has not amended his notice of appeal to include the June 21, 2023 judgment entry, his arguments on appeal apply to both the sentencing entry and the decision to deny his motion to withdraw. Thus, we will treat his April 19, 2023 notice of appeal as a premature notice of his appeal of the June 21, 2023 judgment entry. Appellant raises two assignments of error. As they both make essentially the same argument, we will address them together.
ASSIGNMENT OF ERROR NO. 1
MR. GILFORD'S GUILTY PLEA IS VOID BECAUSE IT WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY. STATE V. LYDA, 2021-OHIO-2345 (7TH DIST.); CRIM.R. 11; CRIM.R. 32.2; DEFENDANT'S RESPONSE TO COURT; TRANSCRIPT OF PROCEEDINGS, MARCH 1, 2023.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ALLOW MR. GILFORD TO WITHDRAW HIS GUILTY PLEA. STATE V. GRIFFIN, 2023-OHIO-4011 (7TH DIST.); STATE V. MILLER, 2023-OHIO-2290, (7TH DIST); DEFENDANT'S RESPONSE TO COURT; TRANSCRIPT OF PROCEEDINGS, MARCH 1, 2023; TRANSCRIPT OF PROCEEDINGS, APRIL 14, 2023; MOTION TO WITHDRAW PLEA, FILED APRIL 19, 2023.
{¶7} Both of Appellant's assignments of error are centered on the same contention: that the trial court made certain assertions or promises regarding community control that could not be kept because the court failed to order preparation of a PSI. Appellant correctly asserts that community control is not a permissible sentence for a felony unless a PSI is ordered. R.C. 2951.03(A)(1) provides in part:
Unless the defendant and the prosecutor who is handling the case against the defendant agree to waive the presentence investigation report, no person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court.
{¶8} The Ohio Supreme Court has held that a trial court may not impose the sanction of community service without first ordering a PSI. State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528. While the court may impose community control if the defendant and prosecutor have agreed to waive the preparation of a PS I, no such agreement was struck in this case.
{¶9} A guilty plea must be made knowingly, intelligently, and voluntarily in order for it to be deemed valid and enforceable. State v. McBride, 7th Dist. Mahoning No. 16 MA 0002, 2017-Ohio-4281, ¶ 19. A criminal defendant may challenge for the first time on appeal whether his or her plea was made knowingly, intelligently, and voluntarily. State v. Milite, 11th Dist. Lake No. 2020-L-061, 2020-Ohio-5384, ¶ 8. Appellant in this matter bases his appeal on the assertion that his plea was not entered knowingly, intelligently, and voluntarily. While he did not raise these concerns to the court prior to sentencing, Appellant filed a postsentence motion seeking to withdraw his plea. "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." Crim.R. 32.1. "[A] defendant seeking to withdraw a plea of guilty after sentence has the burden of establishing the existence of manifest injustice." State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The defendant must show withdrawal is "necessary" to correct manifest injustice. State v. Stumpf, 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987).
{¶10} When a trial judge gives mistaken information, or mistakenly describes the law to a defendant during the plea colloquy, this may raise sufficient justification to void the plea and remand the case back to the trial court. State v. Cook, 3rd Dist. Putnam No. 12-01-15, 2002-Ohio-2846, ¶ 12. For example, in Cook, both the defendant's counsel and the trial judge gave the defendant incorrect information about his eligibility for judicial release. Defendant relied on this information in entering a guilty plea. These mistakes provided the basis for the Third District Court of Appeals to invalidate the plea, vacate the conviction, and remand the case for further proceedings. In most cases, however, a misstatement by the trial judge will not result in reversal unless the defendant also demonstrates that the error was prejudicial, rather than harmless, error. To show prejudicial error a defendant must show that the outcome of the proceeding clearly would have been different absent the error. State v. Cochran, 11th Dist. Geauga No. 2006-G-2697, 2007-Ohio-345, ¶ 26. Harmless error is "[a]ny error, defect, irregularity, or variance which does not affect substantial rights" and will be disregarded. Crim.R. 52(A).
{¶11} Appellee contends that a trial judge is required to explain certain constitutional and nonconstitutional rights to a defendant pursuant to Crim.R. 11(C), so that the defendant may make a knowing, intelligent, and voluntary decision about entering a guilty plea. State v. Rowbotham, 173 Ohio App.3d 642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 17 (7th Dist.). There is no question that the trial court complied with these requirements. The question is whether the somewhat contradictory statements that the trial judge made regarding Appellant's eligibility for community control, but decision not to order a PSI, rise to the level of prejudicial error or manifest injustice.
{¶12} Appellee asserts that as Appellant was aware that the trial judge was going to impose a prison term, Appellant cannot show prejudice even if it appears the trial judge may have given somewhat contradictory information at the change of plea hearing. A defendant is normally required to show some prejudice occurred when challenging the nonconstitutional aspects of his or her plea colloquy. State v. Krieger, 7th Dist. Belmont No. 19 BE 0045, 2020-Ohio-6964, ¶ 17. Appellant testified at the May 26, 2023 hearing on his motion to withdraw his plea: "you took me into chambers and throw me -- you was going to give me a year, and that's what I signed to. That is what I thought I was going to get, and then you gave me eighteen months." (5/26/23 Tr., p. 5.) It is readily apparent that Appellant's disagreement with his sentence is not that the court failed to impose community control, but rather, that the court failed to impose the expected 12-month prison term. In light of Appellant's statement at the hearing that he knew he would be sentenced to prison, the judge's decision to forego ordering a PS I in this matter is an obvious one. The judge clearly stated at the change of plea hearing that the court was aware of Appellant's past criminal history and clearly indicated Appellant's sentence would not involve community control, even though he may have been statutorily eligible. Taken in context, there was no contradictory information provided in this case. Based on Appellant's criminal history, the trial court was not going to sentence him to community control, even though another offender facing this charge might be eligible for community control. Hence, no PSI was deemed necessary by the sentencing judge. Appellant could not have been confused by this, and he was not induced to change his plea because he believed he would be sentenced to community control.
{¶13} We have often held that a "mere change of heart forms an insufficient basis on which to withdraw a guilty plea." State v. Kinney, 7th Dist. Monroe No. 22 MO 0002, 2023-Ohio-2549, ¶ 31, quoting State v. Perez, 7th Dist. Mahoning No. 12 MA 110, 2013-Ohio-3587, ¶ 10. It is clear from this record that Appellant's motion to withdraw his plea involved his mere change of heart due to his mistaken impression that the judge would impose a 12-month prison term, rather than an 18-month maximum term. This record reveals no basis on which to find Appellant's plea was not entered into knowingly, intelligently, and voluntarily. Additionally, neither prejudicial error nor manifest injustice occurred in denying Appellant's motion to withdraw his post-sentence plea. Both of Appellant's assignments of error are overruled.
Conclusion
{¶14} Appellant argues that his guilty plea to possession of cocaine was not validly made because the court provided contradictory information during the change of plea colloquy. Appellant argues that he was told he was eligible for community control, but then was also told no PSI would be ordered. Under R.C. 2953.21, the court could not impose community control without first ordering preparation of a PSI. There was no contradiction because the judge explained, inartfully, that while eligible, Appellant would not receive community control based on his criminal history. Appellant then testified at his change of plea hearing that he expected a 12-month prison term and was upset that he received an 18-month prison term, instead. Because Appellant knew he would be sentenced to a prison term, the court's awkward phrasing at the change of plea hearing does not rise to the level of prejudicial error or manifest injustice. Appellant's attempt to withdraw his plea was merely a change of heart based on the length of the prison term he received. Appellant's two assignments of error are overruled, and the judgment of the trial court is affirmed.
Robb, P.J. concurs.
Dickey, J. concurs.
For the reasons stated in the Opinion rendered herein, Appellant's assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.