Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2015 CR 00040.
Watkins, Trumbull County Prosecutor, and LuWayne Annos,
Assistant Prosecutor, Administration Building, (For
D. Yarwood, DeGenova & Yarwood, Ltd., (For
CYNTHIA WESTCOTT RICE, P.J.
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
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."
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.
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.
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.
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.
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.
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.
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.
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 ...