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State v. Liller

Court of Appeals of Ohio, Eleventh District, Trumbull

March 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
KAYLA LILLER, Defendant-Appellant.

         Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00040.

          Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee).

          Ronald D. Yarwood, DeGenova & Yarwood, Ltd., (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Kayla Liller, appeals from the judgment of the Trumbull County Court of Common Pleas denying her post-sentence motion to withdraw her plea of guilty. We affirm.

         {¶2} Appellant was indicted by the Trumbull County Grand Jury on one count of felonious assault, a felony of the second degree, in violation of R.C. 2930.11(A)(1) and (D)(1)(a); one count of child endangering, a felony of the third degree, in violation of R.C. 2919.22(A) and (E)(1) and (c); and one count of child endangering, a felony of the second degree, in violation of R.C. 2919.22(B)(1) and (E)(1) and (2)(d). Appellant entered a plea of not guilty. She later changed her plea and entered a plea of guilty to an amended indictment to each child-endangering charge. The plea agreement specifically stated that, by entering a plea of guilty, appellant understood each count carried the possibility of imprisonment, up to 36 months for the felony-three count and up to eight years for the felony-two count. The agreement also provided that "[t]he State is not bound by the sentencing recommendation of the Trumbull County Probation Department, and is expressly reserving the right to make a sentencing recommendation at the sentencing hearing. The state will recommend a prison sentence."

         {¶3} At the plea hearing, appellant appeared with defense counsel, Attorney Holly Hanni. The trial court engaged appellant in a full Crim.R. 11 colloquy after which it determined she knowingly and voluntarily waived all constitutional and statutory rights. The court explicitly asked appellant if any promises or threats were made that caused her to enter the plea and sign the agreement. Appellant responded in the negative. The court accepted appellant's plea and set the matter for sentencing.

         {¶4} On October 7, 2015, the court held a sentencing hearing. The state requested, and the court imposed, an aggregate prison term of seven years. Following the hearing, defense counsel was discharged and a different attorney was retained to handle any post-conviction issues.

         {¶5} On December 29, 2015, appellant filed a motion to withdraw her guilty plea. In the motion, appellant asserted her plea was not entered knowingly, intelligently, and voluntarily because, she alleged, trial counsel promised her: (1) she would receive community control and (2) the prosecutor would remain silent and make no recommendation on sentencing.

         {¶6} The matter proceeded to hearing, appellant called a total of five witnesses, four members of her family as well as herself. Each of appellant's family members testified they were generally aware that appellant could receive a prison term in exchange for her plea of guilty. They each acknowledged that Attorney Hanni provided them with conflicting accounts of whether appellant would go to prison and whether the prosecutor would remain silent during sentencing. And each family member testified that they were not present for every conversation between Attorney Hanni and appellant.

         {¶7} Appellant testified she was aware she could go to prison on the felony charges to which she pleaded guilty and, in particular, that the potential penalty for the felony-two child endangering count included a presumption that prison be imposed. She was also aware that her co-defendant, Tedy Mendez, had been sentenced to a term of seven-years imprisonment for pleading guilty to the same charges prior to entering her plea. Appellant acknowledged she read the original plea agreement and, as such, she was aware of the potential penalties for the charges to which she pleaded and that the prosecutor would recommend prison. She also conceded that she was not subjected to any threats or promises at the time she entered the plea. Appellant also acknowledged she had lied throughout the progression of the case.

         {¶8} Attorney Hanni testified she has never made a promise or guarantee to a client. And Attorney Hanni emphasized she did not promise appellant she would receive community control; similarly, even though she may have communicated her belief that the prosecutor would remain silent at sentencing, Attorney Hanni testified she did not promise appellant the prosecutor would stand silent. Attorney Hanni further testified that she explained to appellant that, regardless of what the defense requested or the state recommended, her ultimate sentence was a matter within the exclusive province of the trial court.

         {¶9} On February 16, 2016, the trial court determined appellant failed to establish her plea of guilty resulted in a manifest injustice. The court noted that, although Attorney Hanni may have given differing versions of appellant's potential sentence, she testified she did not promise appellant she would receive community control. Also, the court found appellant was plainly aware of the consequences of entering the guilty plea. Hence, the court concluded no manifest injustice occurs where an attorney predicts a lighter sentence than the sentence imposed by the trial court.

         {¶10} Next, the court observed that, even though Attorney Hanni relayed her mistaken belief that the prosecutor would not openly speak at the sentencing hearing to appellant, the state's recommendation "was of no consequence." The court stated that it independently decided appellant's sentence after reading the presentence investigation report. The court therefore ...


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