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State v. Cherry

Court of Appeals of Ohio, Sixth District

June 21, 2013

State of Ohio Appellee
v.
John D. Cherry, Sr. Appellant

Trial Court No. 2008-CR-686

Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.

Dan M. Weiss, for appellant.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from a judgment of conviction and sentence entered by the Erie County Court of Common Pleas after defendant-appellant, John D. Cherry, Sr. pled guilty to one count of attempted felonious assault. Appellant now challenges that judgment through the following assignments of error:

A. The trial court erred in denying appellant's pre-sentence motion to withdraw his plea of guilty in case No. 2008-CR-686.
B. The court committed reversible error by participating in plea negotiations and off record discussions with appellant.

{¶ 2} Appellant was indicted on December 10, 2008, and charged with one count of felonious assault with a physical harm specification and one count of tampering with evidence. Upon arraignment, appellant entered a plea of not guilty. On April 8, 2009, appellant was indicted and charged with two additional charges, aggravated burglary and aggravated robbery, both with physical harm specifications, in relation to the same incident that prompted the original charges. Upon arraignment on the additional charges, appellant again entered pleas of not guilty.

{¶ 3} On February 12, 2010, in open court, appellant withdrew his previous not guilty pleas and entered a plea of guilty to one count of attempted felonious assault in violation of R.C. 2903.11(A)(1) and 2923.02, a third degree felony. In exchange for appellant's guilty plea, the state agreed to dismiss all remaining charges and specifications. In addition to the plea in this case, appellant, through his attorney, agreed to admit to a probation violation in case No. 2006-CR-250 and to waive a hearing in that case. Appellant also agreed to serve a three-year prison sentence in this case, which would run concurrent to the sentence for the probation violation in case No. 2006-CR-250.

{¶ 4} On April 29, 2010, appellant filed a motion to withdraw his guilty plea. Appellant asserted that he had entered the plea because he had been told by the court and prosecutor that if he did not enter the plea, his probation would be revoked in case No. 2006-CR-250 and he would be sent to prison in that case on the Tuesday following the plea hearing. Evidently, due to other charges pending in Sylvania Municipal Court, appellant had violated his probation in case No. 2006-CR-250. Appellant claimed, however, that his probation officer told him that she was not going to recommend that he be charged with a probation violation in that case. Had he known that he would not be charged with a probation violation in case No. 2006-CR-250, appellant asserted, he would not have entered the plea in this case. The state responded that appellant's plea had been knowing, voluntary and intelligent and that the record from the plea hearing demonstrated that no one forced appellant to enter the plea.

{¶ 5} On August 19, 2010, the lower court held a hearing on appellant's motion to withdraw. Following arguments from counsel, the court denied the motion. The court also denied appellant's counsel's request to allow appellant to testify. The court found that appellant's guilty plea was entered in compliance with Crim.R. 11. The court further determined that the probation officer's comments to appellant were irrelevant because ultimately whether appellant had violated his probation in case No. 2006-CR-250 was the court's decision. The court then proceeded to sentence appellant to the agreed upon term, three years in prison, and ordered that that sentence run concurrent to the time he had remaining in case No. 2006-CR-250.

{¶ 6} We will first address appellant's second assignment of error, in which he asserts that the lower court committed reversible error by participating in plea negotiations and off-the-record discussions with appellant. Appellant contends that the lower court's participation made his plea involuntary and created in his mind the belief that he could not receive a fair trial.

{¶ 7} In Ohio, although a judge's participation in plea negotiations is strongly discouraged, such participation does not per se render a plea invalid under the Ohio and United States Constitutions. State v. Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980). Rather, the court in Byrd held that "[a] trial judge's participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea." Id. at the syllabus. A judge's participation in negotiations affects a guilty plea when: the judge conveys a message to the defendant that going to trial would be futile; the judge implies that sentencing after a trial would be greater than sentencing if the defendant pleads guilty; or the judge goes to great lengths to intimidate a defendant into accepting a guilty plea. State v. Lutchey, 6th Dist. No. WD-03-094, 2004-Ohio-4847, 11, citing Byrd, at 292-293.

{¶ 8} In the proceedings below, the case proceeded to the sentencing hearing on August 19, 2010, at which time the court also addressed appellant's motion to withdraw his guilty plea. Appellant's counsel argued that appellant should be permitted to withdraw his plea because, prior to entering the plea he had been led to believe, in off-the-record discussions, that if he did not enter the guilty plea in this case his probation would be revoked in a different case four days later and he would be sentenced to three years in prison on that probation violation. Counsel expressly argued that "[n]o plea should be entered – accepted by a Court when the Court is aware that it was a [sic] either/or choice. * * * He has a right to both ...


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