State v. Glavic

Christley, Judge. This appeal is taken from a final judgment of the Lake County Court of Common Pleas. Appellant, Alan R. Glavie, Jr., appeals from his conviction and sentence on one count of breaking and entering and eight counts of forgery. For the reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion. On May 12, 1999, appellant was indicted by the Lake County Grand Jury on the following charges: (1) one count of breaking and entering in violation of R.C. 2911.13; (2) two counts of receiving stolen property in violation of R.C. 2913.51; (3) three counts of misuse of a credit card in violation of R.C. 2913.21; and (4) ten counts of forgery in violation of R.C. 2913.31. The trial court appointed counsel to represent appellant, who then entered a plea of not guilty to all sixteen charges. Pursuant to a negotiated plea agreement with the state, appellant subsequently entered a written plea of guilty to the one count of breaking and entering and to eight counts of forgery in exchange for the dismissal of the remaining seven charges. Appellant appeared before the trial court on August 9, 1999, at which time the court proceeded to personally question appellant about entering his plea *586 in full compliance with Crim.R. 11. Based on this colloquy, the trial court determined that the pleas were made voluntarily and with full assistance of counsel. In accordance with appellant’s request, the trial court then proceeded immediately to sentencing. Appellant’s attorney and the prosecutor indicated to the trial court that they had reached an agreement on a sentencing recommendation óf a total prison term of two years for all nine charges. The trial court accepted appellant’s guilty pleas and sentenced him to a two-year term of imprisonment. However, in its written judgment entry, the trial court failed to articulate an express sentence for each of the nine counts to which appellant pled guilty. Appellant was transported to the Lorain Correctional Institution to begin serving his sentence. When processing appellant into the system, the prison authorities discovered that the trial court’s sentencing entry failed to include a specific term for each conviction. 1 Accordingly, the prison authorities contacted the Lake County Prosecutor’s Office to ask for clarification. On November 15, 1999, the trial court conducted a hearing to resentence appellant appropriately. Appellant’s attorney and the prosecutor stipulated on the record that an agreement had previously been entered into where in return for appellant’s pleading guilty to nine of the counts contained in the indictment, the state would ask the trial court to enter a nolle prosequi with respect to the remaining charges and recommend that appellant be given a two-year aggregate prison term. During the proceedings, appellant made an oral motion to withdraw his guilty pleas. The trial court, however, summarily denied the request. The court then proceeded to sentence appellant to a one-year term of imprisonment for the breaking and entering charge. Appellant was also sentenced to one year in prison for each count of forgery, with the sentences to run concurrently with each other and consecutive to his sentence for breaking and entering. From this judgment entry, appellant filed a timely notice of appeal with this court. He now asserts the following assignments of error for our review: *587 “[1.] The trial court abused its discretion in refusing the appellant the opportunity to withdraw his guilty pleas[.] “[2.] The appellant was denied the effective assistance of counsel as defense counsel’s actions and omissions at appellant’s plea hearing deprived appellant of the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution^]” Under his first assignment of error, appellant argues that the trial court abused its discretion by ignoring his request to withdraw his guilty pleas. According to appellant, the trial court was obligated to conduct a hearing to determine whether there was a reasonable and legitimate basis for his demand. Moreover, appellant believes that not only did the trial court refuse to hold a hearing, but the court also failed to give full and fair consideration to his request. Crim.R. 32.1 provides the following: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” While a motion to withdraw a guilty plea before sentence should be freely and liberally permitted, such a motion does not have to be automatically granted because there is no “absolute right to withdraw a guilty plea prior to sentencing.” State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraph one of the syllabus. Instead, Crim.R. 32.1 requires that the trial court conduct a hearing on a motion to withdraw a guilty plea prior to sentencing “to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph one of the syllabus. A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court. Id. at paragraph two of the syllabus. See, also, State v. Gibbs (June 9, 2000), Trumbull App. No. 98-T-0190, unreported, 2000 WL 757458. As a result, our review is limited to a determination of whether the trial court abused its discretion by denying the motion to withdraw guilty plea. Gibbs at 6-7. An abuse of discretion connotes more than an error of law or judgment; instead, it implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172-173, 404 N.E.2d 144, 148-149. In determining whether or not a trial court has erred in failing to allow a defendant to withdraw a guilty plea prior to sentencing, this court has applied the same factors that the Eighth Appellate District considered in State v. Peterseim *588 (1980), 68 Ohio App.2d 211, 428 N.E.2d 863. See State v. Davenport (Sept. 25, 1998), Lake App. No. 97-L-230, unreported, 1998 WL 684186; State v. Green (Oct. 27, 1995), Trumbull App. No. 94-T-5103, unreported; State v. Haney (Sept. 8, 1995), Lake App. No. 95-L-001, unreported, 1995 WL 787405. In Peterseim, the court held that a trial court does not abuse its discretion in denying a defendant’s motion to withdraw his guilty plea where the following occur: (1) the trial court made certain, pursuant to Crim.R. 11, that the defendant fully understood the nature and consequences of his original plea and that the plea was entered into voluntarily; (2) the accused was represented by highly competent counsel; (3) the defendant was given an adequate hearing on his motion to withdraw his plea and was afforded the opportunity to make all arguments in support of his motion; and (4) the lower court gave the necessary consideration to defendant’s motion. Peterseim at 214, 22 O.O.3d 341, 428 N.E.2d at 865-866. Before continuing, we would like to note that the state argues in its brief that appellant should be required to show that withdrawal is necessary to correct a manifest miscarriage of justice. This argument is predicated on the assumption that because appellant made his request after he was originally sentenced on August 9, 1999, the motion was made after the imposition of sentence. The state fails to acknowledge, however, that the original sentence was invalid because it did not include a specific sentence for each of the nine convictions. State v. Brown (1989), 59 Ohio App.3d 1, 2, 569 N.E.2d 1068, 1069-1070; State v. Yingling (Dec. 30, 1993), Lucas App. No. L-93-076, unreported, 1993 WL 551527. Accordingly, the trial court had to vacate the original invalid sentence to impose a new one. The record shows that appellant made his motion to withdraw his guilty pleas prior to the trial court’s sentencing him a second time. Thus, appellant does not have to demonstrate that withdrawal is necessary to correct a manifest miscarriage of justice. Here, it is apparent that although there was no formal written motion, appellant sought to withdraw his earlier guilty pleas. During the November 15, 1999 hearing, the following exchange between appellant and the trial court occurred: “THE COURT: Mr. Glavic [appellant], do you admit that there was year on the — there was a time agreement of two years; is that correct? “THE DEFENDANT: I was forced to, yes, Your Honor, I was forced to. I was forced to. I was forced to. Now, had to— “THE COURT: I’m not sure at the time, but I probably asked something about there being a mutual agreement and if you understood whether it was two years or not. *589 “THE DEFENDANT: Can I stop all the many cards and withdraw my plea? Then while — I’ll withdraw my plea, I’d rather do that than take any chances anyways. I think I pled to the wrong charge on the forgery. I never forged no Joseph Walsh’s name, and I am charged with forgery. That will stop everything, I will just withdraw my plea. You guys bring me back here. I want to withdraw my plea. I got papers saying I’m indicted for forgery saying I forged Joseph Walsh’s name, I didn’t forge his name. “THE COURT: I not here for that. Please advise your client, Mr. Grieshammer — ” As can be seen from the preceding discussion, the trial court never truly considered appellant’s request. More importantly, however, the court never afforded appellant the opportunity to address the court with respect to the motion. According to Xie, a trial court confronted with a motion to withdraw a guilty plea prior to sentencing must conduct a hearing to determine whether or not there was a reasonable and legitimate basis for the motion, and the failure to do so constitutes an abuse of discretion. While a trial court is not required to schedule a separate hearing on such a motion, some attempt must be made to consider the arguments in support. State v. Hickman (June 18, 1999), Portage App. No. 98-P-0024, unreported, 1999 WL 417984; Haney at 5 (holding that “a hearing on a presentencing motion to withdraw is mandatory”). In addition, the record shows that appellant’s attorney made no effort to assist appellant in formulating a coherent argument. Therefore, the trial court was not presented with an effective motion emphasizing the specific reasons why appellant was seeking to withdraw his pleas. As a result, we are left to speculate as to appellant’s motives in this regard. Accordingly, we conclude that the trial court’s decision to deny appellant’s motion to withdraw his guilty plea without, at a minimum, asking appellant his reasons, constituted an abuse of discretion. Appellant’s first assignment of error has merit. In his second assignment of error, appellant claims that he was denied the effective assistance of counsel because his attorney failed to request a presentence investigation report (“PSI”). Appellant believes that by failing to do so, his attorney “effectively eliminated” any possibility of his being granted community control in lieu of a prison sentence. To be successful on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test originally articulated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. See, *590 also, State v. Sherman (June 25, 1999), Portage App. No. 98-P-0009, unreported, 1999 WL 454533. First, a defendant must be able to show that his trial counsel was deficient. Bradley at 141, 538 N.E.2d at 378-379. This requires a showing that trial counsel made errors so serious that, in effect, the attorney was not functioning as the “counsel” guaranteed by both the United States and Ohio Constitutions. Id. Second, a defendant must show that the deficient performance prejudiced his defense. Id. at 142, 538 N.E.2d at 379-380. This requires a showing that there is “a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the syllabus. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 142, 538 N.E.2d at 379-380. A reviewing.court must always remember that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-693. There is a strong presumption in Ohio that a licensed attorney is competent. State v. Smith (1985), 17 Ohio St.3d 98, 100, 477 N.E.2d 1128. Sherman at 7-8. Accordingly, to overcome this presumption, a defendant must show that the actions of his attorney did not fall within a range of reasonable assistance. State v. Smith (Dec. 22, 2000), Portage App. Nos. 99-P-0039 and 99-P-0040, unreported, 2000 WL 1876660. In the case sub judice, the record shows that as part of the plea bargain between appellant and the state, the parties agreed to a joint sentencing recommendation of two years in prison: Moreover, at the August 9, 1999 hearing, appellant asked that the trial court proceed immediately to sentencing. In fact, when the trial court specifically asked appellant’s attorney if they wished to go forward without the PSI report, he indicated that he had conferred with his client and that appellant wished to waive the PSI report and proceed accordingly. Therefore, with the record before us, we cannot conclude that appellant’s attorney was deficient for not requesting that a PSI report be prepared. As a matter of fact, appellant waived the preparation of the PSI report so that he could be sentenced immediately in accordance with the plea bargain that had been reached with respect to appellant’s guilty pleas. In addition, when the trial court asked appellant whether or not he understood the consequences of his guilty pleas, appellant responded affirmatively and indicated that he understood that the trial court could proceed immediately to sentencing. Appellant also acknowledged before the court that he was satisfied with his attorney’s representation. *591 When making a claim of ineffective assistance of counsel, the proponent must point to instances in the record to support the claim. Here, however, the record before this court does not contain any evidence to support appellant’s allegations. As a matter of fact, to the extent that there is evidence, it shows that appellant’s attorney explained everything to appellant and, more importantly, that appellant was satisfied with the representation he received. As a result, appellant has failed to show that his attorney’s actions fell below the level of reasonable representation, or that he was prejudiced by those same actions. Appellant’s second assignment of error lacks merit. Based on the foregoing analysis, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. William M. O’Neill, P.J., concurs. Grendell, J., dissents. Footnotes [1] The sentencing entry reads: "The Court has considered the factors under Revised Code Section 2929.13(B) and finds the following: "1. The Defendant previously served a prison term. "For reasons stated on the record, and after consideration of the factors under Revised Code 2929.12, the Court also finds that prison is consistent with the purposes of Revised Code Section 2929.11 and the defendant is not amenable to an available community control sanction. "IT IS THEREFORE ORDERED THAT the defendant serve a stated prison term of two (2) years in prison at the Lorain Correctional Institution, with one hundred thirty-seven (137) days of credit for time served. * * *”