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State v. Miller

Court of Appeals of Ohio, Third District, Hardin

June 3, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AARON SCOTT MILLER, DEFENDANT-APPELLANT.

          Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20172164

          Emily P. Beckley for Appellant

          Jason M. Miller for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Aaron Scott Miller ("Miller"), appeals the November 29, 2018 judgment entry of sentence issued by the Hardin County Court of Common Pleas journalizing his conviction after pleading guilty, and ordering him to serve a non-mandatory aggregated sentence of forty-five months in prison. On appeal, Miller claims that the trial court erred in not conducting a hearing on his pre-sentence motion to withdraw his guilty plea.

         {¶2} On November 27, 2017, the Hardin County Grand Jury returned a six-count indictment against Miller alleging that he committed the offenses of: Count One, Possession of Heroin, in violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; Count Two, Trafficking in Heroin, in violation of R.C. 2925.03(A)(2), (C)(6)(2), a felony of the fourth degree; Count Three, Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree; Count Four, Breaking and Entering, in violation of R.C. 2911.13(A), a felony of the fifth degree; Count Five, Theft from a Person in a Protected Class, in violation of R.C. 2913.02(A)(1), (B)(3); and Count Six, Felonious Assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree.

         {¶3} The charges arose from allegations that Miller committed the six offenses on three different dates. The first incident was alleged to have occurred on August 17, 2016, when a female who was a passenger in a vehicle stopped by law enforcement was found to have 28 units doses of heroin, two orange strips of Burprenorphine, and three tablets of Alprazolam in her vagina. The female claimed that the drugs belonged to Miller and that he had directed her to conceal them from law enforcement to avoid detection. The second incident occurred on February 19 and/or February 20, 2017. Miller was alleged to have participated in conduct with an acquaintance where a padlock on the door of a barn belonging to an elderly man was cut off and over $ 1, 000.00 worth of tools was taken from the barn. The third incident occurred on February 22, 2017, when Miller was alleged to have fled from a home under law enforcement surveillance. Miller obtained a vehicle belonging to another individual and drove it toward a law enforcement officer who was chasing him on foot, causing the officer to move out of the way to avoid being struck by the vehicle. Miller entered a plea of not guilty to the charges listed in the indictment.

         {¶4} On October 31, 2018, Miller appeared before the trial court and withdrew his previously tendered not guilty plea and entered a plea of guilty to Count One, fourth degree felony Possession of Heroin; Count Four, fifth degree Breaking and Entering; and Count Six amended from a second degree felony of Felonious Assault to a fourth degree felony offense of Assault. The prosecution agreed to dismiss the remaining three counts listed in the indictment. Miller's written Waiver of Rights and Plea of Guilty was filed in the record on November 1, 2018. On the same day, the trial court issued a Judgment Entry of Guilty, acknowledging its acceptance of Miller's guilty plea in open court and finding him guilty of the three charges specified above.

         {¶5} On November 28, 2018, the trial court conducted a sentencing hearing. Before the trial court pronounced its sentence, Miller made an oral motion to withdraw his guilty plea. The trial court overruled the motion and imposed a seventeen-month prison term on Count One, fourth degree felony Possession of Heroin; an eleven-month prison term on Count Four, fifth degree felony Breaking and Entering; and a seventeen-month prison term on amended Count Six, fourth degree felony Assault. The trial court ordered the prison terms to be served consecutively for a non-mandatory aggregated prison term of forty-five months.

         {¶6} Miller filed this appeal, asserting the following assignment of error.

THE TRIAL COURT ERRED IN NOT HOLDING A HEARING ON A PRESENTENCE MOTION TO WITHDRAW A GUILTY PLEA

         {¶7} In his sole assignment of error, Miller claims that the trial court erred when it did not conduct a separate hearing on his oral motion to withdraw his guilty plea made during the sentencing hearing.

         Legal Standard

         {¶8} A defendant may file a presentence motion to withdraw a guilty plea. Crim.R. 32.1. Although a trial court should freely grant such a motion, the Supreme Court of Ohio has held that a defendant does not maintain an absolute right to withdraw his plea prior to sentencing. State v. Xie,62 Ohio St.3d 521, 526 (1992). Instead, a trial court must hold a hearing to determine whether a ...


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