Opinion
No. 75382
May 27, 1999
Appeal from Court of Common Pleas, Case No. CR-363, 142.
AFFIRMED.
WILLIAM D. MASON, Cuyahoga County Prosecutor, MICHAEL T. FISHER, Assistant, for plaintiff-appellee:
SHAWN P. MARTIN, Attorney at Law for defendant-appellant:
OPINION
This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs.
Appellant contends the trial court erred when it accepted his guilty plea and when it denied appellant's subsequent motion to withdraw his guilty plea and that his counsel was ineffective. Since the record indicates appellant voluntarily and knowingly entered his plea, the trial court conducted a hearing and properly denied appellant's motion to withdraw his plea, and appellant's counsel was not ineffective, we affirm.
Appellant was indicted on two counts of aggravated robbery in violation of R.C. 2911.01 with both a one-year firearm specification and a three-year firearm specification, one count of possession of drugs in violation of R.C. 2925.11 with a firearm specification, one count of carrying a concealed weapon in violation of R.C. 2923.12, and one count of receiving stolen property in violation of R.C. 2913.51.
On July 28, 1998, prior to the commencement of trial, appellant appeared before the trial court with Bernadita Rojas, a translator employed by appellant's attorney. The state offered a plea arrangement to appellant whereby appellant would plead guilty to the two counts of aggravated robbery with a one-year gun specification and an agreed-upon five-year sentence, with full credit awarded for time served. The remaining counts would be nolled.
Appellant, through his translator, accepted the state's plea agreement; the trial court set appellant's sentencing hearing for September 8, 1998. On September 8, 1998, appellant again appeared before the court with his interpreter. Appellant addressed the court and stated that he wished to withdraw his plea of guilty. The trial court therefore remanded appellant.
The trial court conducted an additional hearing on September 16, 1998. At the hearing, appellant's attorney requested that appellant be permitted to withdraw his guilty plea because "he didn't feel right pleading to something that he did not do, irrespective of any agreement and the possible time that he may get as a result of going to trial and losing, if he should lose." The trial judge reviewed the matter and concluded that appellant had entered his plea "voluntarily, intelligently, knowingly and in compliance with Criminal Rule 11, with the assistance of counsel, and with the assistance of a translator * * *." The trial court denied appellant's motion to withdraw his plea.
Appellant timely appealed the trial court's ruling.
Appellant's first assignment of error states:
APPELLANT'S PLEA OF GUILTY WAS NOT KNOWING AND VOLUNTARILY MADE AND DID NOT CONFORM TO THE REQUIREMENTS OF CRIMINAL RULE 11.
Crim.R. 11 (C) (2) provides:
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.
When an appellate court is reviewing a plea submitted by a defendant, the focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelly (1991), 57 Ohio St.3d 127, 128. It is the duty of the appellate court to ascertain whether the defendant voluntarily and knowingly waived his constitutional rights. Id.
Appellant does not contend that the trial court did not comply with the rule; rather, it is appellant's position that because the court's statements were made through an interpreter, it is unclear what was said to appellant.
Appellant's argument lacks merit. First of all, the following occurred at the hearing:
MR. FISHER [Prosecutor]:
We would just ask the defendant to waive any defect with the fact that he does not have any court-appointed translator, but rather provided his own translator?
MR. WADE [defense counsel]:
We'll waive that, Judge.
Additionally, in State v. Pina (1975), 49 Ohio App.2d 394, 398, the court established the following guidelines relating to the use of interpreters:
If a witness does not understand English, an interpreter will be sworn to interpret the oath to him and his testimony to the court. 56 Ohio Jurisprudence 2d 516, Witnesses, Section 86; 172 A.L.R. 923. An interpreter is considered and must be sworn as any other witness. While the manner of eliciting the testimony of the witness through an interpreter is within the discretion of the trial court, the proper method is not to address the question to the interpreter but to the witness. The question is then repeated by the interpreter without any remarks of his own, and the answers must be repeated literally by the interpreter in the first person. The interpreter should give the answer, and the whole answer of the witness, adding nothing to it. 58 American Jurisprudence 309, Witnesses, Section 556. The interpreter as well as the witness is subject to cross-examination on the terms and expressions used. 58 American Jurisprudence 365, Witnesses, Section 662. To the same effect is 98 Corpus Juris Secundum 27, Witnesses, Section 326.
At the hearing on July 28, appellant acknowledged to the court that he spoke English "a little bit" and that he understood what Ms. Rojas said to him. The record indicates that Ms. Rojas was sworn in to interpret the proceedings. Moreover, Ms. Rojas translated appellant's responses to the court without any extraneous remarks.
The transcript reveals that the court complied scrupulously with the mandates of Crim.R. 11 (C) (2), and there is no evidence to indicate that the interpreter did not properly translate the proceedings. The court correctly utilized the services of an interpreter as outlined in Pina, supra. See, also, State v. Mejia (Sep. 3, 1998) Cuyahoga App. No. 72716, unreported.
Appellant's first assignment of error is overruled.
Appellant's second assignment of error states:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
The Ohio Supreme Court devised a two-step process that should be employed when a court considers an allegation of ineffective assistance of counsel. State v. Nicholas (1993), 66 Ohio St.3d 431. citing State v. Bradley (1989), 42 Ohio St.3d 136, 141-142.
First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910 [ 98 S.Ct. 3135, 57 L.Ed.2d 11541
Id.
Following its acceptance of appellant's guilty plea, the court continued the matter until September 8, 1998 for sentencing. On September 8, the following exchange occurred:
MR. WADE: I think Mr. Jiminez has something he would like to state to the Court about this situation, where he had problems, he says, and was caught up in this situation and a lot of circumstances that appeared to be worse than they really were
THE COURT: Mr. Jiminez?
INTERPRETER: I don't want to be — I would like to withdraw my plea of guilty; withdraw my plea.
THE COURT: Mr. Wade, do you want a chance to talk to your client?
MR. WADE: Yes, I can talk to him, Judge, but he indicated that to me when he first came out; and, under these circumstances, I would like the Court to know what he relayed to me, as it relates to the plea: We did discuss the plea in great detail, prior to his entering the plea, and part of the reason that the matter was referred to the Probation Department was so that he could have the time — shorten the time that he would have to go the penitentiary —
THE COURT: The agreement, as I recall, was to spare the defendant from doing approximately, 15 years; is that right?
MR. WADE: When it was computed out, it was a little more than that, Judge. Judge, when we sat down and figured it out, it was in the twenties. There's a couple of counts that were separate, and were to be sentenced differently, when we computed it, but if he wants to withdraw the plea, it's all right, if the Court says so, and we'll proceed then. If the Court says he can withdraw, he'll run the risk, if he is convicted.
THE COURT: What is your desire this morning, Mr. Jiminez?
INTERPRETER: Why do I want to plead guilty for something I didn't —
THE COURT: Pardon me?
INTERPRETER: — how am I going to plead guilty for something I didn't do?
THE COURT: The defendant will be remanded at this time. Thank you.
Appellant argues his counsel was ineffective because he ignored his client's protestations of innocence and was advocating for the preservation of the plea.
Appellant's attorney did not render ineffective assistance. The record reveals that the plea agreement, including a sentence of only five years, would be beneficial to appellant. Appellant risked receiving a greatly increased sentence if he proceeded to trial and was found guilty. An attorney's strategic decisions do not support a claim of ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 48-49.
Moreover, the record does not support appellant's contention that his attorney ignored his wishes. The attorney informed the court of appellant's position. The trial court proceeded to remand appellant and to schedule an additional hearing to consider appellant's request that his plea be withdrawn.
Appellant's second assignment of error is overruled.
Appellant's third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT A SENTENCE OF INCARCERATION OF APPELLANT WAS CONSISTENT WITH THE PURPOSES OF OHIO REVISED CODE, SECTION 2929.11.
Appellant next contends that the trial court erred when it sentenced appellant on a plea that was not knowingly entered. As discussed above, the trial court fully complied with Crim.R. 11 (C) (2); thus, appellant's plea was proper and his subsequent sentencing was also correct.
Moreover, the purposes of felony sentencing, pursuant to R.C. 2929.11, are "to protect the public from future crime by the offender and others and to punish the offender." Appellant pled guilty to aggravated robbery, a first degree felony. His sentence certainly complies with the purposes as set out in the statute.
Appellant's third assignment of error is overruled.
Appellant's final assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION TO VACATE PLEA.
Crim.R. 32.1 permits a motion to withdraw a plea of guilty or no contest before sentence is imposed. On September 16, 1998, appellant appeared with his attorney to request that he be allowed to withdraw his guilty plea. The basis for appellant's position, according to his attorney, was that "[h]e said he didn't do it. And after he thought about it for a long time, he didn't feel right pleading to * * *."
The court then found that, based upon its review of appellant's pre-sentence report and the court's compliance with Crim.R. 11 (C) (2) before accepting appellant's guilty plea, appellant's motion to withdraw his plea should be denied.
Whether to grant or deny a presentence motion to withdraw a guilty plea is a decision within the sound discretion of the trial court. State v. Sabatino (1995), 102 Ohio App.3d 483, 487, citing State v. Xie (1992), 62 Ohio St.3d 521, paragraph two of the syllabus. Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. Sabatino, citing Xie at 526, quoting State v. Peterseim (1980), 68 Ohio App.2d 211, 213-214.
Moreover, the court in State v. Rosemark (1996), 116 Ohio App.3d 306, 308, citing Peterseim, supra, noted that when a defendant (1) is represented by competent counsel, (2) is given a full hearing before entering a plea, and (3) is given a hearing on a motion to withdraw during which the court considers the defendant's arguments in support of the motion, there is no abuse of discretion when a trial court denies a defendant's motion to withdraw a guilty plea.
The record reveals that the trial court conducted a hearing on appellant's motion, appellant was represented by counsel and also personally addressed the court, and the trial court fully complied with Crim.R. 11 (C) prior to accepting appellant's plea. The trial court did not abuse its discretion when it denied appellant's motion to withdraw his guilty plea.
Appellant's final assignment of error is overruled.
This cause is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
___________________________________ DIANE KARPINSKI, PRESIDING JUDGE DISSENTS (See separate opinion.)
___________________________________ KENNETH A. ROCCO, JUDGE CONCURS WITH ORIGINAL OPINION
___________________________________ MICHAEL J. CORRIGAN, JUDGE CONCURS WITH ORIGINAL OPINION
I respectfully dissent from the majority's disposition of the fourth assignment of error. Because the trial court did not identify any reason to deny the presentence motion to withdraw the guilty plea of the defendant who maintained his innocence, other than the fact that defendant had already accepted the plea, I believe the trial court abused its discretion under these circumstances.
In State v. Xie (1992), 62 Ohio St.3d 521, the court said that "a presentence motion to withdraw a guilty plea should be freely and liberally granted." Id., at 527. We have likewise said that a motion to withdraw a guilty plea filed prior to sentencing should be freely allowed. See State v. Drake (1991), 73 Ohio App.3d 640; State v. Peterseim (1980), 68 Ohio App.2d 211. In ruling on such a motion, the court should at least consider whether defendant identified any legitimate grounds to withdraw the plea and whether there are legitimate grounds to deny the request: In my view, the defendant's insistence on his innocence merits more than a mere review of whether the plea colloquy complied with Crim.R. 11.
Had the defendant maintained his innocence at the time that he entered his guilty pleas, the trial court would have been obliged either to make further inquiry of him before accepting such an Alford plea or allow him to withdraw the plea. See North Carolina v. Alford (1971), 400 U.S. 25; State v. Hayes (1995), 101 Ohio App.3d 73; State v. Casale (1986), 34 Ohio App.3d 339.
In State v. Barnett (1991), 73 Ohio App.3d 244. the Montgomery County Court of Appeals held that the trial court abused its discretion when it denied the defendant's presentence motion to withdraw the guilty plea solely on the grounds that the defendant originally entered his pleas knowingly, voluntarily, and intelligently. In a discussion that is particularly relevant here, the Barnett court observed:
In State v. Tooson (Aug. 5, 1985), Clark App. No. 2042, unreported, 1985 WL 8774, we stated that "when an individual's liberty is at stake and he has not yet been sentenced, a fact that would raise suspicions regarding sentence-shopping motives, great deference must be given to his decision to withdraw his guilty plea and face a jury of his peers.
In State v. Taylor (June 15, 1989), Montgomery App. No. 11220, unreported, 1989 WL 68470, we held:
"Crim.R. 11 (C) requires the trial court to conduct a specific inquiry to determine that pleas of guilty or no contest are made freely and intelligently. A meticulous procedure is required not only because a defendant thereby subjects himself to penalties but also, and most importantly, because he thereby waives his constitutionally guaranteed right to trial by jury. Proper plea acknowledgments by a defendant do not, however, preclude him from later seeking to withdraw his plea. A motion to withdraw also involves a defendant's right to trial by jury and requires the same full and fair consideration given to his plea."
We conclude from the record before us that appellant was not given a complete and impartial hearing on the motion and that the court failed to give full and fair consideration to his request. [T]he court gave no consideration to any basis for the request and focused only on the fact that a plea had been entered.
State v. Barnett, 73 Ohio App.3d at 250-251 (emphasis added).
Similarly, in State v. Bekesz (1991), 75 Ohio App.3d 436, the Lake County Court of Appeals held that the trial court abused its discretion when it denied defendant's presentence plea withdrawal motion even though the lower court "went to unusual lengths in explaining the nature and consequences of the [appellant's plea], as required under Crim.R. 11." Id., 75 Ohio App.3d at 440. The court ruled:
It is clear from the exchange between the appellant and the trial court that appellant was not afforded a full hearing on his motion and was not granted full, fair and careful consideration of the same. These facts, coupled with the liberal rule that a motion to withdraw a guilty plea prior to sentencing should be freely allowed, lead us to conclude that the trial court abused its discretion in its denial to even consider appellant's motion.
Bekesz, 75 Ohio App.3d at 440-441 (emphasis in original).
In the case at bar, the record suggests that the trial court's only apparent reason for denying the defendant's presentence motion to withdraw his guilty plea was that the defendant had previously entered his guilty pleas knowingly, voluntarily, and intelligently. The majority's opinion says almost in passing that the trial court also considered the defendant's presentence report, but neither the trial court nor the majority explains how anything in that report justified the decision to deny the withdrawal motion. In any event, the mere fact that the defendant entered guilty pleas does not preclude him from withdrawing those pleas before being sentenced. While the defendant seemingly may have received a favorable plea bargain, it remained his prerogative to exercise his right to trial by jury.
When faced with a plea withdrawal motion, "the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Xie, 62 Ohio St. 3 d at 527. The court is thus obliged to balance the legitimate reasons favoring withdrawal against any legitimate reasons in opposition. The motion may be denied even though the defendant did not fully appreciate the consequence of the plea. See, e.g., State v. Xie, supra (denying plea withdrawal notwithstanding counsel's misinformation concerning defendant's parole eligibility); State v. Sabatino (1995), 102 Ohio App.3d 483 (denying plea withdrawal that was based on defendant's mistaken belief as to consequence of guilty plea); State v. Drake, supra (denying plea withdrawal, sought not on the basis of defendant's claimed innocence but rather on mistaken belief that there would be a reduction in the charge). Considerations may also include witness unavailability and other scheduling matters. See State v. Lambros (1988), 44 Ohio App.3d 102.
But nothing in the record in this case suggests that the court balanced competing considerations before denying the defendant's presentence plea withdrawal motion. Neither the trial court nor the majority opinion has identified any legitimate reason to deny the defendant's motion. The only apparent reason for the trial court's decision is the fact that the defendant had previously accepted the plea. I agree with the Montgomery and Lake County Courts of Appeals that this fact alone is insufficient to overcome the defendant's right to have his guilt or innocence determined by trial.
Because prior to sentencing the defendant sought to withdraw his guilty pleas and claimed that he was innocent and because the record does not suggest any legitimate reason for denying his request, I believe that the trial court abused its discretion in denying defendant's presentence motion to withdraw his guilty pleas. I would sustain the fourth assignment of error, reverse the judgment, and remand the matter for further proceedings.