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State v. Calabrese

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CARL E. CALABRESE DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-591977-A

          ATTORNEY FOR APPELLANT David M. Lynch.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brett Hammond David Schwark Assistant County Prosecutors.

          BEFORE: Blackmon, J., Keough, A.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶1} Carl E. Calabrese ("Calabrese") appeals from the order of the trial court denying his motion to vacate his guilty plea to intimidation. He assigns the following error for our review:

The trial court committed error by denying [Calabrese's] motion to vacate his plea because [Calabrese] was mentally incapable of entering his guilty plea on the day that he entered it.

         {¶2} Having reviewed the record and pertinent law, we affirm.

         {¶3} The record reflects that in 2004, the Cuyahoga County Probate Court issued an order finding Calabrese incompetent, and appointing a guardian for him. Several months later, Calabrese pled guilty in Case No. CR-03-443466 to intimidation, attempted intimidation, and vandalism, apparently in connection with actions against a Lyndhurst Municipal Court judge. Calabrese was sentenced to three years imprisonment.

         {¶4} On December 18, 2014, Calabrese was indicted on one count of intimidation, arising out of statements that he made to a Mayfield Heights Police Department employee, again concerning the same Lyndhurst Municipal Court judge. In January 2015, after Calabrese's counsel advised the court that the guardianship remained in effect, Calabrese was referred to the court's psychiatric clinic, and the matter was transferred to the court's mental health docket. The February 12, 2015 and April 16, 2015 reports of the psychiatric clinic indicated that Calabrese has bipolar disorder and substance dependency issues. He was prescribed mood stabilizing medication and was determined to be eligible for the court's treatment in lieu of a conviction program.

         {¶5} At a hearing on April 23, 2015, the parties stipulated to the court psychiatric reports. Defense counsel also explained that the probate guardianship arose from Calabrese's bipolar disorder, and that Calabrese's father is his guardian. Defense counsel stated that "as long as [Calabrese] takes his medications, he seems to be fine and able to cope with everyday life." Calabrese informed the court that he wished to enter a guilty plea, and the trial court undertook a Crim.R. 11 plea colloquy. In relevant part, the court asked Calabrese whether he understood the proceedings, and he stated that he did. He also denied being under the influence of any drugs, alcohol, or medication that would adversely affect his ability to understand what was happening or to enter into a plea. At the conclusion of the colloquy, the court stated:

[T]he Court is satisfied that * * * Defendant has been informed of his Constitutional rights, [and] understands the nature of the charges, the effect of a plea, and the maximum penalties which may be imposed. The Court further finds that the Defendant's pleas will be made knowingly, intelligently, and voluntarily.

         {¶6} After Calabrese pled guilty to intimidation, defense counsel asked the court to place Calabrese in the treatment in lieu of a conviction program. The trial court granted the motion and the case was stayed so that Calabrese could enter treatment in lieu of conviction. He was supervised by the court's mental health unit. He was required to attend his doctor's appointments, take prescribed medication, undergo drug testing, attend sobriety meetings, and report to his probation officer on a weekly basis. By June 24, 2015, however, Calabrese had tested positive for marijuana five times, and positive for cocaine once. The court continued the intervention program, but Calabrese continued to test positive for marijuana. Calabrese also missed required group meetings and was inconsistent with required 12-step meetings. The court found him to be in violation of community control on November 6, 2015. The court also ordered a revaluation of Calabrese's medication on that same date.

         {¶7} The matter was scheduled for sentencing on December 7, 2015, then was continued until January 26, 2016. Four days before the sentencing hearing, Calabrese's counsel moved to withdraw the guilty plea, asserting that Calabrese "did not have a full understanding of the effect of the plea ...


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