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State v. Anderson

Court of Appeals of Ohio, Second District

January 16, 2004

STATE OF OHIO Plaintiff-Appellee

Criminal Appeal from Common Pleas Court T.C. NO. 02CR443

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, Attorney for Defendant-Appellee



{¶l} Harry W. Anderson, Jr., appeals from a decision of the Greene County Court of Common Pleas, which overruled his motion to withdraw his plea of guilty.

{¶2} On July 2, 2002, Anderson was indicted for robbery, a felony of the third degree. He filed a Notice of Alibi, and on August 28, 2002, he moved to suppress all of the statements that he made to the police and any and all photographic line-up evidence. After several continuances, a hearing on the motion to suppress was scheduled for November 27, 2002. On that date, rather than pursuing his suppression motion, Anderson pled guilty to the robbery charge, pursuant to a plea agreement with the state. As alluded to in the record, in January, 2003, Judge Reid, the judge who had presided over the plea hearing, retired, and Judge Wolaver became the presiding judge. On January 20, 2003, Anderson moved with new counsel to withdraw his guilty plea, arguing that his original trial counsel had been ineffective so that he "misunderstood" the nature of his charges and the consequences of his plea. On February 21, 2003, the court conducted an evidentiary hearing on the motion. Anderson asserted that his original attorney had promised him that he would receive community control and the Monday Program, and that he would not be parole violated. On February 28, 2003, the trial court overruled the motion to withdraw plea, crediting the testimony of Anderson's original counsel that he had not been promised a particular sentence. The court further concluded that Anderson's "testimony and demeanor during the hearing was an attempt to hide his 'extensive' experience in the criminal justice system" and that his claims of innocence were not credible. Anderson was subsequently sentenced to two years of incarceration.

{¶3} Anderson asserts two assignments of error on appeal, which we will address together.



{¶6} Pre-sentence motions to withdraw a plea should be liberally granted. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraph 1 of the syllabus; State v. Uribe (Mar. 5, 1999), Montgomery App. No. 17044. However, a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. Xie, supra. A decision to allow the withdrawal of a guilty plea before sentencing is within the sound discretion of the trial court. Xie, supra, paragraph 2 of the syllabus; State v. Perdue, Montgomery App. No. 19267, 2003-Ohio-6244, ¶ 17. "[A] trial court will not be found to have abused its discretion in denying a motion to withdraw a plea where (1) the accused is represented by highly competent counsel, (2) the accused received a full hearing pursuant to Crim.R. 11, (3) the accused is given a complete and impartial hearing on the motion to withdraw after it is filed, and (4) the record reveals that the court gave full and fair consideration to the plea withdrawal request." State v. Ramos, Montgomery App. No. 19429, 2003-Ohio-2086, ¶ 8. "Generally, a defendant is not allowed to withdrawal [sic] a guilty plea prior to sentencing just because he is made aware that a subjectively unexpected sentence is going to be imposed." Uribe, supra (citations omitted).

{¶7} In his first assignment of error, Anderson asserts that the trial judge had suggested that he receive drug treatment rather than imprisonment; that his original trial counsel, Linda Cushman, "guaranteed" probation; and that the parole office had assured Cushman that if the trial judge did not sentence him to prison, his parole would not be revoked. Anderson argues that "considering the misleading representations under which Anderson's guilty plea was given, it is clear that said plea was not 'knowingly and freely given' as mandated by Rule 11(C) of the Ohio Rules of Criminal Procedure." In his second assignment of error, Anderson asserts that the trial court's ruling on his motion to withdraw plea erroneously concluded: "His [Anderson's] attorney advised him that if he did not go to prison he would likely not be revoked, however that is the extent of the discussion." (emphasis added by appellant).

{¶8} During the plea hearing, the trial court asked Anderson a series of questions to ascertain whether his plea of guilty was knowingly and freely given. Anderson represented to the court that he could read, write and understand English, that he was pleading guilty voluntarily, and that he had not been coerced. He stated that he had not had any drugs or alcoholic beverage within the last seven days and was not, at that time, under the influence of alcohol or drugs. Anderson further indicated that he had reviewed the plea agreement with his attorney. When asked whether there was anything he did not understand, he stated: "No, sir. I understood it quite well." The trial court inquired whether Anderson was "completely satisfied with the legal services that [Cushman] has provided to you, " to which he answered "Yes, your honor." After reviewing the recommended sentence by the state, Anderson was able to tell the court that the maximum authorized sentence was five years of imprisonment and the maximum authorized fine was $10, 000. The trial court then asked:

{ΒΆ9} "THE COURT: That's correct. So knowing you could be sentenced to prison up to five years or fined up to $10, 000 or ...

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