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State v. West

Court of Appeals of Ohio, Ninth District, Summit

November 8, 2017

JASON WEST Appellant


          JASON WEST, pro se, Appellant.

          MIKE DEWINE, Attorney General, and MICAH R. AULT, Assistant Attorney General, for Appellee.



         {¶1} Jason West appeals a judgment of the Summit County Court of Common Pleas that dismissed his petition for post-conviction relief. For the following reasons, this Court affirms.


         {¶2} Mr. West pleaded guilty to 17 counts of telecommunications harassment, one count of menacing by stalking, one count of obstruction of official business, two counts of intimidation of a crime victim or witness, and one count of intimidation. The trial court sentenced him to a total of 10 years imprisonment. This Court upheld his convictions on appeal, but vacated his sentence in part and remanded the matter so that the trial court could properly impose post-release control. Meanwhile, Mr. West petitioned for post-conviction relief, arguing that his trial counsel were ineffective, that he should be allowed to withdraw his guilty pleas, that he was deprived of the right to a fair and unbiased trial, and that a certain investigator should not have been allowed to work on his case. The trial court dismissed Mr. West's petition, concluding that his claims were without merit and barred under the doctrine of res judicata. Mr. West has appealed, assigning five errors. We have rearranged and combined some of the assignments of error for ease of discussion.




         {¶3} Mr. West argues that his trial counsel's ineffectiveness deprived him of the opportunity to withdraw his plea before sentencing. He, therefore, argues that his petition for post-conviction relief should be granted and that he be allowed to withdraw his plea. "[A] trial court's decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court's finding on a petition for postconviction relief that is supported by competent and credible evidence." State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.

         {¶4} To prevail on a claim of ineffective assistance of counsel, Mr. West must establish (1) that his counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that but for his counsel's deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In addition, to establish prejudice, Mr. West must show that there existed a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.

         {¶5} According to Mr. West, before his sentencing hearing, he told his attorney that he wanted to withdraw his plea. His attorney allegedly spoke to the trial judge about it in chambers and was told that the request was denied and that Mr. West would have to raise the issue on appeal. Mr. West contends that, when he attempted to speak during the sentencing hearing, his attorney silenced him. He also contends that his appellate counsel refused to argue the issue on appeal because there was no record of the conversation in chambers and no motion to withdraw was made during the sentencing hearing. In support of his argument, Mr. West submitted an affidavit from his wife that corroborated Mr. West's recounting of his conversation with his attorney after the attorney spoke to the trial judge in chambers.

         {¶6} We will begin by examining whether Mr. West was prejudiced by his counsel's representation because it is dispositive. Criminal Rule 32.1 provides that "[a] motion to withdraw a plea of guilty * * * 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." "A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court * * *." State v. Smith,49 Ohio St.2d 261 (1977), paragraph two of the syllabus. "At the same time, the extent of the trial court's exercise of discretion * * * is determined by the particular provisions that govern the motion the defendant is proceeding under * * *." State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 33. "[A] presentence motion to withdraw a guilty plea should be freely and liberally granted." State v. Xie, 62 Ohio St.3d 521, 527 (1992). ...

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