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State v. Harris

November 26, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DENNIS HARRIS, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07 CR 654.

The opinion of the court was delivered by: DeGenaro, P.J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite.

{¶1} This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Defendant-Appellant, Dennis Harris, appeals the decision of the Mahoning County Court of Common Pleas that accepted his guilty plea to domestic violence and violation of a protective order, denied his motion to withdraw that plea, and sentenced Harris for the offenses to which he pleaded guilty. On appeal, Harris argues that the trial court erred when making each of these decisions. However, the circumstances of Harris' decision to plead guilty indicate that it was knowing, intelligent, and voluntary; the trial court did not abuse its discretion when denying Harris' oral presentencing motion to withdraw his guilty plea; and the sentence imposed on Harris was not contrary to law. Accordingly, the trial court's decision is affirmed.

Facts

{¶2} On June 7, 2007, Harris was indicted by the Mahoning County Grand Jury for a first degree felony offense of aggravated burglary, and two third degree felony offenses of domestic violence and violation of a protection order. Harris pleaded not guilty to the charges and Attorney Jeff Limbian was appointed as counsel to represent Harris.

{¶3} On September 17, 2007, Harris entered into a plea agreement with the State of Ohio. In the agreement, Harris agreed to plead guilty to the two third degree felonies in exchange for a dismissal of the aggravated burglary charge, a recommendation that Harris be sentenced to four years imprisonment, and an agreement that the State would stand silent on the issue of judicial release. The trial court held a change of plea hearing that day and accepted Harris' guilty plea.

{¶4} Harris contacted Attorney Mark Lavelle early in October 2007 to represent him in an effort to withdraw his guilty plea. After some discussions, Harris had a third-party send Attorney Lavelle a check for a retainer fee, which proved to be drawn on a closed account. Meanwhile, Attorney Lavelle informed Attorney Limbian that Harris had retained him. After Attorney Lavelle found out that the check was not good, he tried to contact Harris, but Harris never responded. Since Attorney Lavelle was not properly retained as counsel, he never filed a motion to withdraw the guilty plea on Harris' behalf.

{¶5} At Harris' February 8, 2008 sentencing hearing, the trial court was informed for the first time that Harris wished to withdraw his guilty plea. The trial court gave Harris an opportunity to explain his reasons for seeking to withdraw his guilty plea, but ultimately denied that motion. The trial court then proceeded to sentence Harris to a total of four years imprisonment on the two charges, ordering that the sentences for the two third degree felonies be served concurrent to each other.

Guilty Plea

{¶6} For analysis purposes, we will first address Harris' second of five assignments of error, which argues:

{¶7} "Defendant Appellant's plea of guilty was unconstitutional under both the United States Constitution and the Ohio Constitution as the same was not knowingly, intelligently and voluntarily made."

{¶8} Harris contends that the trial court erred when accepting his guilty plea because it was not knowing, intelligent, and voluntary. Harris identifies two problems with the plea: 1) the trial court did not ensure that Harris understood all of the constitutional rights he was waiving by pleading guilty and 2) the trial court failed to ensure that Harris understood the nature of the charges against him. The State contends that the trial court complied with Crim.R. 11(C) to the extent necessary to uphold the plea.

{¶9} The due process clauses in both the United States and Ohio Constitutions require guilty pleas to be knowing, intelligent, and voluntary. Parke v. Raley (1992), 506 U.S. 20, 28-30, 113 S.Ct. 517, 121 L.Ed.2d 391; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶7. A court must consider all of the relevant circumstances surrounding a plea when determining the voluntariness of that plea. State v. Johnson, 7th Dist. No. 07MA8, 2008-Ohio-1065, at ¶8. If the plea is not knowing, intelligent, and voluntary, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03MA196, 2004-Ohio-6806, at ¶11, citing Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274.

{¶10} Crim.R. 11(C)(2) describes the procedure a trial court must use when accepting a guilty plea in a felony case. It requires that the trial court engage in a colloquy with the defendant to do all of the following:

{¶11} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.

{ΒΆ12} "(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of ...


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