Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 18 CR 672 A
Gains, Mahoning County Prosecutor, Atty. Ralph Rivera,
Assistant Prosecutor, for Plaintiff-Appellee
Maro, Maro & Schoenike Co., for Defendant-Appellant.
BEFORE: Gene Donofrio, Carol Ann Robb, David A.
OPINION AND JUDGMENT ENTRY
Defendant-appellant, Earl Charity, III, appeals his
conviction following a guilty plea in the Mahoning County
Common Pleas Court for one count of aggravated murder.
On July 19, 2018, a Mahoning County Grand Jury indicted
appellant and Juan Phillips on numerous charges surrounding
the death of Oscar Caywood. Appellant was indicted for: one
count of aggravated murder in violation of R.C. 2903.01(B),
an unspecified felony; one count of murder in violation of
R.C. 2903.02(A), an unspecified felony; one count of
aggravated robbery in violation of R.C. 2911.01 (A)(3), a
first-degree felony; and ten counts of having a weapon under
disability, each count specifying a different firearm
appellant allegedly possessed, in violation of R.C.
2923.13(A)(3), third-degree felonies. Appellant was also
indicted on three firearm specifications pursuant to R.C.
2941.145 and three repeat violent offender specifications
pursuant to R.C. 2929.01.
Appellant reached a plea agreement with plaintiff-appellee,
the State of Ohio. Appellant agreed to plead guilty to
aggravated murder and its firearm specification. In exchange,
the state dismissed all remaining charges and specifications
and agreed to recommend a sentence of 23 years to life
On December 4, 2018, the trial court held a change of plea
hearing. The trial court performed the plea colloquy. (Plea
Tr. 3-11). During the plea colloquy, appellant informed the
trial court that he was on parole for involuntary
manslaughter and felonious assault. (Plea Tr. 7). The trial
court informed appellant that pleading guilty to aggravated
murder would be a violation of his parole and any punishment
the adult parole authority ordered would be served
consecutive to the sentence the trial court issued for
aggravated murder. (Plea Tr. 7-8). Appellant stated that he
understood the rights he was waiving by pleading guilty and
his potential maximum sentence. (Plea Tr. 3-11). The trial
court accepted appellant's guilty plea and scheduled the
sentencing hearing for December 10, 2018.
At the scheduled sentencing hearing, appellant's counsel
made an oral motion to withdraw the guilty plea. (Sent. Tr.
2). A written motion was not filed because counsel was only
made aware of appellant's desire to withdraw the plea
approximately 30 minutes before the sentencing hearing. (Sent
Tr. 3). Appellant addressed the court himself and made two
arguments in support of withdrawing his plea.
First, appellant argued that his plea should be withdrawn
because he was not fully aware of the potential increased
prison time he faced due to his parole violation when he pled
guilty. (Sent. Tr. 4-7). Appellant originally believed his
parole violation would result in a nine-month increase of his
sentence but later learned that it would result in a 42-month
increase of his sentence. (Sent. Tr. 4). The trial court
noted that it informed appellant at his change of plea
hearing that a guilty plea in this case would result in a
parole violation and the sentence for the parole violation
would be served consecutive to the sentence in this case.
(Sent. Tr. 7).
Second, appellant argued that he was in possession of
evidence that would support his defense if he went to trial.
(Sent. Tr. 8). Appellant then conferred with his counsel off
the record. After that conference, appellant's counsel
informed the trial court that appellant called Detective
Lambert of the Youngstown Police Department, the detective
who investigated Caywood's death, the day before the
sentencing hearing. (Sent. Tr. 9). Appellant claimed that he
told Detective Lambert that someone else had murdered
Caywood. (Sent Tr. 9). Appellant's counsel was unaware of
this phone call prior to the sentencing hearing. (Sent. Tr.
The trial court permitted the state to summarize the evidence
it would have presented had the matter gone to trial. (Sent.
Tr. 10-13). The trial court then granted a recess to permit
the state and appellant to contact Detective Lambert. (Sent.
The state and appellant's counsel managed to contact
Detective Lambert by phone. Detective Lambert confirmed that
he received a call from appellant the day before the
sentencing hearing. (Sent. Tr. 15). But Detective Lambert
would not speak to appellant on the basis that appellant was
represented by counsel. (Sent. Tr. 16).
Appellant's counsel then informed the trial court that
appellant had given him "a piece of paper with some
information on it that [appellant] believes is the identity
of the person that committed the crime." (Sent Tr. 18).
Appellant's counsel then requested a recess of the
sentencing hearing in order to investigate the information
appellant had provided. (Sent. Tr. 18). The trial court
denied the recess. (Sent. Tr. 18).
The trial court then addressed several factors concerning
appellant's motion and concluded there was not a
sufficient basis to allow appellant to withdraw his plea.
(Sent. Tr. 19-35). The trial court then sentenced appellant
to the agreed upon sentence of 23 years to life imprisonment.
(Sent. Tr. 51).
Appellant's sentence was memorialized in a judgment entry
dated December 14, 2018. Appellant timely filed this appeal
on January 2, 2019. ...