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State v. Farley

Court of Appeals of Ohio, Fourth District

December 30, 2003

STATE OF OHIO, Plaintiff-Appellee,
v.
ROGER FARLEY, Defendant-Appellant.

PRO SE APPELLANT: Roger Farley, #391554 Noble Correctional Institution

COUNSEL FOR APPELLEE: J. B. Collier, Jr. Lawrence County Prosecuting Attorney, W. Mack Anderson Assistant Prosecuting Attorney Lawrence County Court House One Veterans Square

DECISION AND JUDGMENT ENTRY

David T. Evans, Presiding Judge

{¶1} Defendant-Appellant Roger Farley appeals the judgment of the Lawrence County Court of Common Pleas denying his post-sentence motion to withdraw his plea of no contest. Appellant argues that the trial court abused its discretion in denying his motion when it failed to grant an evidentiary hearing on the motion, failed to make adequate findings in denying the motion, and failed to notify appellant of all possible consequences before accepting his no contest plea.

{¶2} Because we find that appellant's arguments lack merit, we overrule his assignments of error in toto. Therefore, we affirm the judgment of the trial court.

I. Proceedings Below

{¶3} On June 25, 1999 and July 13, 1999, appellant was arraigned in separate indictments for various drug offenses, which were subsequently consolidated for trial. On March 8, 2000, pursuant to a plea agreement, appellant pled no contest to three of the charges contained in the July 13, 1999 indictment. Specifically, appellant pled no contest to three counts of aggravated possession of drugs, violations of R.C. 2925.11(A); because of the quantity and type of drug involved, count one amounted to a second-degree felony, count two amounted to a third-degree felony, and count three amounted to a fifth-degree felony. The state dismissed the seven counts of aggravated trafficking in drugs and the three counts of trafficking in drugs contained in the June 25, 1999 indictment. It also dismissed one count of illegal use of food stamp or WIC program benefits from the July 13, 1999 indictment. The state also dismissed firearm specifications from the remaining charges in the July indictment provided that appellant forfeit the firearm. The trial court stated the above on the record as the underlying agreement upon which appellant's plea was based.

{¶4} In its colloquy, the trial court explained the charges to which appellant was pleading no contest and explained the maximum sentences for each charge. The court further explained that by entering a plea of no contest, appellant would be waiving certain constitutional rights Appellant responded that he understood everything the court explained Appellant then entered his pleas of no contest to the three remaining charges Following entry of appellant's no contest pleas, the trial court found appellant guilty of each charge After its judgment of conviction, the court initiated sentencing The court sentenced appellant to three years incarceration and a $7, 500 fine for count one, two years incarceration, consecutively, and a $5, 000 fine for count two, and one year incarceration, concurrently, and a $1, 250 fine for count three. The trial court noted, for the record, that the state would not oppose judicial release after appellant served three years of the five-year sentence. In the sentencing transcript, the trial court took no position on the issue of judicial release, declaring that "the Court has not committed itself one way or the other. Not said, 'yes, ' not said, 'no.'"

{¶5} On June 24, 2002, appellant filed a motion for judicial release. The trial court denied the motion. Thereafter, on June 29, 2002, the Lawrence County Prosecutor filed a civil complaint against appellant for forfeiture of his residence pursuant to R.C. 2925.43. Specifically, the complaint alleged that appellant's house was used in the commission of the felony drug abuse offenses to which appellant pled no contest, and as such, all right, title, and interest in the real estate became vested in the State of Ohio upon appellant's commission of the acts that gave rise to the convictions. On September 18, 2002, appellant filed a motion to withdraw his no contest plea. Appellant argued that the state and court agreed to judicial release after he served three years of his sentence, and that it was a manifest injustice that the court did not grant his motion for judicial release. He also argued that he would not have agreed to the plea bargain had he not been promised judicial release after three years. Appellant further argued that he was not apprised of all the consequences of his plea pursuant to Crim.R. 11. This argument flowed from the fact that appellant was not informed that the prosecutor could, or would, initiate forfeiture proceedings against appellant's real property in connection with appellant's conviction pursuant to R.C. 2925.43. The trial court denied appellant's motion to withdraw his pleas, and this appeal followed.

II. The Appeal

{¶6} In his brief, appellant raised the following assignments of error:

{¶7} First Assignment of Error: "The trial court erred as a matter of law/abuse of discretion [sic] and to the prejudice of appellant in denying appellant's motion to withdraw no contest plea after sentencing without granting an evidentary [sic] hearing."

{¶8} Second Assignment of Error: "The trial court erred as a matter of law/abuse of discretion [sic] to the prejudice of appellant where the court failed to make adequate findings denying the motion to withdraw no contest plea."

{¶9} Third Assignment of Error: "The trial court erred as a matter of law/abuse of discretion [sic] to the prejudice of the appellant under the United States and Ohio Constitutions and Crim.R. 11 by failing to notify appellant of the sentence he faced before accepting a no contest plea."

{¶10} Appellant argues that the trial court abused its discretion by denying his motion to withdraw his no contest pleas for three reasons: 1) because appellant was not granted an evidentiary hearing on the motion; 2) because the trial court failed to make adequate findings denying the motion; and 3) because the trial court failed to notify appellant of the maximum sentence he faced before accepting the no contest pleas in violation of Crim.R. 11. Because we find that the trial court did not abuse its discretion in denying appellant's motion to withdraw his no contest pleas, we overrule appellant's assignments of error and affirm the judgment of the trial court.

A. Standard of Review

{¶11} Crim.R. 32.1 states that 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." Thus, a post-sentence motion to withdraw a plea should be granted only in extraordinary cases. See State v. Cosavage (June 28, 1995), 9th Dist. Nos. 17074, 17075, citing State v. Blatnik (1984), 17 Ohio App.3d 201, 203, 478 N.E.2d 1016. Furthermore, the onus is on the defendant seeking to withdraw his no contest plea after imposition of sentence to ...


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