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State of Ohio v. Raul A. Hernandez

October 20, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
RAUL A. HERNANDEZ,
DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 08CR-01-0594)

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

Cite as

State v. Hernandez,

(REGULAR CALENDAR)

DECISION

{¶1} Defendant-appellant, Raul A. Hernandez, appeals from the judgment of the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea pursuant to Crim.R. 32.1. For the reasons that follow, we affirm the judgment of the trial court.

{¶2} The charges herein arose out of the shooting death of Courtney Wallace. According to the facts as presented by the state at the plea hearing, on August 9, 2007, Wallace and his friend Nicholas Ballard were at 3804 Zephyr Place when Columbus police were dispatched to that address at approximately 9:48 p.m. on reports of a shooting. When officers arrived at the location, they found Ballard inside the home and Wallace lying on the ground outside. Both Ballard and Wallace were suffering from gunshot wounds and were transported for medical attention. Ballard survived his injuries, but Wallace died at the hospital. Subsequently, Ballard informed the police that appellant was the shooter.

{¶3} Because he was 17 years old at the time of the offense, proceedings against appellant were initiated in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. On August 13, 2007, the state filed a motion to relinquish jurisdiction. A hearing was held on January 25, 2008, and, on January 28, 2008, the juvenile court sustained the motion and ordered that the matter be transferred to the Franklin County Court of Common Pleas, General Division, for prosecution.

{¶4} On February 21, 2008, a Franklin County Grand Jury indicted appellant on one count of aggravated murder, one count of attempted murder, and one count of felonious assault. All three counts contained firearm specifications.

{¶5} A jury trial commenced on April 7, 2009. The following day, voir dire proceedings were interrupted for the trial court's inquiry into appellant's expressed dissatisfaction with his court-appointed counsel. Appellant indicated he wanted a new lawyer to "work harder" on his case because he felt like he could "get a better deal" if a different attorney was involved. (Tr. 3.) The trial court informed appellant that appellant's dislike of his attorneys' advice was not a basis upon which the trial court would appoint new counsel. Discussions ensued and the court asked the prosecutor to put the plea offer on the record. Appellant confirmed that the stated plea offer had been previously conveyed to him by counsel. Thereafter, a recess was taken as the trial court gave appellant time to consult with his counsel.

{¶6} When proceedings resumed, the state informed the court that a plea agreement had been reached. Subsequently, appellant entered pleas of guilty to one count of murder with a firearm specification and one count of attempted murder. The trial court proceeded immediately to sentencing and imposed the jointly recommended sentence of 15 years to life, plus three years for the firearm specification, concurrent to ten years, for an aggregate sentence of 18 years to life. Additionally, appellant was awarded 606 days of jail-time credit.

{¶7} Over one year later, on May 20, 2010, appellant filed through counsel a motion to withdraw guilty plea pursuant to Crim.R. 32.1. In his motion, appellant alleged his trial counsel was ineffective for failing to communicate with him, and that he was prejudiced thereby because it resulted in him entering a plea that was not knowing and voluntary. According to appellant, but for his counsel's ineffectiveness, he would not have entered the pleas of guilty. In support of his motion, appellant attached his own affidavit and an affidavit from his mother. The state opposed the motion, and, on February 2, 2011, the trial court overruled appellant's motion to withdraw guilty plea. The trial court concluded that not only was appellant's motion untimely, but, also, appellant failed to establish that his counsel was ineffective. Additionally, the trial court concluded appellant's contention that his guilty plea was not knowingly and voluntarily entered was not supported by the record.

{¶8} This appeal followed, and appellant brings the following three assignments of error for our review:

[1.] THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA WHERE THE APPELLANT DEMONSTRATED THAT TRIAL COUNSEL WAS INEFFECTIVE AND APPELLANT WAS

PREJUDICED BY COUNSEL'S INEFFECTIVE

PERFORMANCE IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

[2.] THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA WHERE COUNSEL'S INEFFECTIVE ASSISTANCE RENDERED APPELLANT'S PLEA UNINTELLIGENT AND INVOLUNTARY.

[3.] THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA WITHOUT HOLDING AN EVIDENTIARY HEARING WHERE APPELLANT ALLEGED FACTS THAT ESTABLISHED MANIFEST INJUSTICE.

{¶9} Motions to withdraw pleas of guilty are governed by Crim.R. 32.1, which provides 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." In the case sub judice, the motion to withdraw guilty plea was made after sentencing, therefore the issue is whether granting the motion is necessary to correct a manifest injustice. "Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process." State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶5. " '[I]t is clear that under such standard, a post-sentence withdrawal motion is allowable only in the extraordinary cases.' " State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶7, quoting State v. Smith (1977), 49 Ohio St.2d 261, 264. A defendant seeking to withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attached to the motion. State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499.

{¶10} A trial court is not automatically required to hold a hearing on a post- sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. Williams, citing State v. Kent, 10th Dist. No. 03AP-722, 2004-Ohio- 2129.

{ΒΆ11} A trial court's decision to deny a post-sentence motion to withdraw a plea of guilty and the decision whether to hold a hearing on the motion are subject to review for abuse of discretion. Smith. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In deciding a Crim.R. 32.1 motion, the good faith, weight, and credibility of a moving party's assertions are a matter for resolution by the trial court. Smith. Thus, the trial court ...


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