Opinion
Case No. 97CA144
July 20, 1998.
Criminal appeal from the Licking County Court of Common Pleas, Case No. 92CR18489.
Affirmed
KENNETH W. OSWALT, ASSISTANT COUNTY PROSECUTOR, For Plaintiff-Appellee.
DAVID HANSON, ASSISTANT PUBLIC DEFENDER, For Defendant-Appellant.
OPINION
Defendant Kirk E. Winters appeals a judgment of the Court of Common Pleas of Licking County, Ohio, overruling his motion to withdraw his plea of no contest to one count of aggravated murder and one count of aggravated robbery. Appellant assigns a single error to the trial court:
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S CRIM. R. 32.1 MOTION TO WITHDRAW HIS NO CONTEST PLEA WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING.
Crim.R. 32.1 provides in pertinent part:
A motion to withdraw a plea of guilty or no-contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
Our standard of reviewing the overruling of a motion to withdraw a plea is the abuse of discretion standard, see State v. Maurer (1984), 15 Ohio St.3d 239. The Supreme Court has frequently held the term abuse of discretion implies the court's decision is ". . . unreasonable, arbitrary or unconscionable . . . ." See State v. Adams (1980), 62 Ohio St.2d 151 at 157, citations deleted.
Appellant argues the trial court should have conducted an evidentiary hearing on his motion to withdraw. In State v. Smith (1977), 49 Ohio St.2d 261, the Ohio Supreme Court held the court need conduct a hearing on the motion only if the facts indicate a manifest injustice would occur if the accused is not allowed to withdraw his plea. An evidentiary hearing is not required if the allegations made in the motion are contradicted by the record, see State v. Legree (1988), 61 Ohio App.3d 568 at 574.
Here, appellant was intoxicated when he was arrested for the underlying offenses. He gave an incriminating statement to police. Defense counsel moved to suppress the statement, arguing appellant was so intoxicated he was unable to knowingly and voluntarily waive his right to counsel. The trial court overruled the motion.
After losing the motion to suppress, appellant withdrew his plea of not guilty and changed his plea to no-contest. During the Crim.R. 11 dialogue, the court inquired whether any promises had induced appellant to enter this plea, and the appellant responded no.
Appellant now claims his defense counsel informed him if he changed his plea to no-contest, the court's decision on the suppression motion would be overturned. Appellant claims defense counsel assured him he could receive a new trial in which his incriminating statement would be suppressed. He urges this rendered his plea of no-contest involuntary, and resulted in a manifest injustice.
We find the record on appeal contradicts appellant's allegations, and for this reason, a motion to withdraw the guilty plea is not the proper vehicle with which to attack the plea. Appellant presents evidence outside the record on appeal, which is most properly presented in a petition for post-conviction relief. The trial court cannot grant a motion to withdraw a plea based upon an affidavit which directly contradict the record.
The assignment of error is overruled.
For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
By Gwin, P.J., and Reader, J., concur, Hoffman, J., dissents.
I respectfully dissent from the majority opinion. My reasons follow.
The determination of whether an evidentiary hearing is warranted for a Crim.R. 32.1 motion requires a two step analysis. First, a hearing need only be conducted if the motion is justified, that is, if the facts, as alleged by the defendant, indicate a manifest injustice would occur if the plea of guilty or no contest were not allowed to be withdrawn. State v. Smith (1977), 49 Ohio St.2d 261, 3; State v. Blatnik (1984), 17 Ohio St.3d 46; State v. Hamed (1989), 63 Ohio App.3d 5; State v. Reynolds (April 24, 1986), Cuyahoga App. No. 50368, unreported.
Second, it must be determined whether the allegations made by the defendant in support of his motion are conclusively and irrefutably contradicted by the record. If the allegations upon which a Crim.R. 32.1 motion is based are so contradicted by the record, an evidentiary hearing is not required . State v. Legree (1988), 61 Ohio App.3d 568, 574.
In the instant case, appellant claims defense counsel represented to him that if he pled no contest, he would be able to successfully appeal the trial court's decision on the suppression motion. Appellant claims defense counsel also stated, as a result of this appeal, he would receive a new trial during which the evidence challenged by the suppression motion could not be used against him. These facts, as alleged by appellant, support the conclusion a manifest injustice would occur if the plea of no contest were not allowed to be withdrawn.
Next, it is necessary to consider whether the record contains any evidence, which irrefutably contradicts appellant's claim.
Appellee contends the record reveals appellant stated, under oath, he was making his plea voluntarily, without the influence of promises or threats. Transcript of Plea, pp. 18-20. As such, appellee submits the record conclusively refutes appellant's assertion he entered his plea in response to a guarantee of a new trial by his attorney and; therefore, a hearing was not required under Legree, supra.
In reviewing this argument, I find a conceptual distinction between representations made by defense counsel to his client concerning future appellate strategy and promises made between the trial court and/or prosecutor and defense counsel relative to the present consequences of a defendant changing his or her plea.
In order to ensure the requirements of Crim.R. 11(C) are met, the trial court customarily inquires of a defendant whether his plea was induced by promises or threats.
This is intended to elicit information which assists in determining whether a defendant's plea is voluntary.
The trial court's questioning a defendant as to whether his plea was induced by a promise may not, necessarily, evoke a response from him concerning representations made by his own counsel regarding future appellate strategy. Rather, the term "promises" brings to mind plea bargains or other agreements made between the trial court and/or prosecutor, and the defense counsel relative to dismissal/reduction of charges and/or sentencing considerations. I find the fact a defendant affirmatively indicates he was not induced to plead in a given manner by any promises does not, necessarily, foreclose a defendant from asserting his plea was not knowingly, intelligently and voluntarily made because it was based upon an unfulfilled guarantee of future appellate disposition made by his own counsel.
In State v. Milanovich (1975), 42 Ohio St.2d 46, the Ohio Supreme Court recognized a defendant's denial that promises had been made did not preclude him from moving to withdraw his plea where he had been instructed by his counsel to do so because the plea bargain was "under the table".
Upon review of the trial record, I find it does not conclusively and irrefutably contradict appellant's allegation his plea was not knowingly, intelligently, and voluntarily made because of defense counsel's assurance of a successful appeal and new trial without his statement to the police. Accordingly, I find the trial court abused its discretion by denying appellant's motion to withdraw his plea without conducting an evidentiary hearing. At the hearing, the credibility of appellant's allegation could be tested and determined by the trial court in light of all the evidence.
I would sustain appellant's assignment of error are remand this case to the trial court for a hearing.
JUDGE WILLIAM B. HOFFMAN.
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to appellant.