[Cite as State v. Walz, 2011-Ohio-1270.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
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Plaintiff-Appellee
v.
GREGORY L. WALZ
Defendant-Appellant
Appellate Case No. 23783
Trial Court Case No. 2009-CR-1959
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 18th day of March, 2011.
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MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTHONY S. VANNOY, Atty. Reg. #0067052, 130 West Second Street, Suite 1600, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Montgomery County Court of
Common Pleas that denied appellant's motion to vacate the guilty pleas he entered to one
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count of felonious assault on a police officer, one count of vandalism, and one count of failure
to comply with an order or signal of a police officer. For the following reasons, the judgment
of the trial court is affirmed.
{¶ 2} Appellant sets forth two assignments of error:
{¶ 3} "First assignment of error
{¶ 4} "APPELLANT'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY EXECUTED, AND SHOULD BE VACATED, BECAUSE OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 5} "Second assignment of error
{¶ 6} "THE TRIAL COURT ERRED IN REFUSING TO VACATE APPELLANT'S
PLEA."
{¶ 7} On June 25, 2009, appellant was indicted on two counts of felonious assault in
violation of R.C. 2903.11(A)(1), one count of vandalism in violation of R.C.
2909.05(B)(1)(a), and one count of failure to comply with an order or signal of a police
officer in violation of R.C. 2921.331(B) and (C)(5). On June 30, 2009, appellant entered
pleas of not guilty to all counts. On October 23, 2009, appellant changed his pleas to guilty
as to all counts; entries of waivers and pleas were filed and a hearing was held that same day.
On November 5, 2009, appellant filed a notice of substitution of counsel along with a motion
to vacate his plea and a request for a hearing. In the motion to vacate his plea, appellant
asserted that he relied on counsel in entering the plea and that counsel failed to fully disclose
the consequences of his decision.
{¶ 8} On December 3, 2009, a hearing was held on appellant's motion to vacate his
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plea. The matter was continued for further hearing on December 9, 2009 on the issue of
whether appellant's belief in his innocence was relevant to his request to withdraw his guilty
plea. On December 11, 2009, the trial court overruled appellant's motion to vacate his plea.
Also on that date, the trial court sentenced appellant to seven years imprisonment for one of
the felonious assault convictions and 12 months for the vandalism conviction, to be served
concurrently, as well as 12 months for the failure to comply conviction, to be served
consecutively with the first two convictions. The two felonious assault convictions were
merged for purposes of sentencing.
{¶ 9} Appellant's two assignments of error will be addressed together. Appellant
claims that he entered the plea agreement based solely on his attorneys' assurances that he
would be eligible for judicial release after five years. He further asserts that he was denied
effective assistance of counsel, which prevented him from entering his plea knowingly,
voluntarily and intelligently.
{¶ 10} Our analysis of appellant's claims requires a review of the October 23, 2009
plea agreement hearing and the December 3, 2009 hearing on appellant's motion to withdraw
his plea.
{¶ 11} The offenses of felonious assault were based on allegations that a police officer
was seriously injured on June 16, 2009, when the officer confronted appellant at a
drive-through scrap metal recycling facility after receiving a tip about a man attempting to sell
brand new copper tubing. When the officer approached appellant in his car and began to talk,
appellant attempted to drive away. The officer, who had reached in the driver's side window
to grab appellant, was dragged forward and thrown into a wall. Both of the felonious assault
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counts on which appellant was indicted charged that the victim was a peace officer who was
assaulted while in the performance of his official duties. R.C. 2903.11(D)(1)(b) provides that
if the victim is a peace officer and the victim suffered serious physical harm, felonious assault
is a felony of the first degree and the trial court shall impose a mandatory prison term from
three to 10 years pursuant to R.C. 2929.14.
{¶ 12} It should be noted that appellant initially hired the firm of Rion, Rion and Rion
for his defense. The Rion law firm employs a "team approach" with its clients. At various
times, appellant was represented by attorneys Jon Paul Rion, Kevin Lennen and Nicole
Rutter-Hirth. When appellant moved to withdraw his guilty plea, he hired new counsel.
{¶ 13} On October 23, 2009, a plea hearing was held. Appellant was represented by
attorney Kevin Lennen. At the outset, the trial court informed appellant that if he entered a
plea of guilty to all of the indicted charges the court would sentence him to eight years
incarceration. The judge asked appellant if his attorneys had given him that information and
appellant responded that they had. The judge again stated his "commitment" that appellant
would receive eight years and appellant responded that he understood.
The judge then
referred to a discussion the previous day during which the issue of judicial release was raised.
The following colloquy took place:
{¶ 14} "THE COURT: And we looked into that. But given the fact that the sentence
that you – the sentence you are facing is a mandatory sentence. What we have discovered is
there's just no way to structure this to make you eligible for judicial release. And I know that
your attorneys have also discussed that with you; is that correct?"
{¶ 15} "THE DEFENDANT: Yes, sir.
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{¶ 16} "THE COURT: All right. And you understand that?
{¶ 17} "THE DEFENDANT: Yes.
{¶ 18} "THE COURT: All right. So, you're not entering into this plea with any
thought that you will get any judicial release or be released early in any way; is that
correct?
{¶ 19} "THE DEFENDANT: Yes, sir." [Emphasis added.]
{¶ 20} Thereafter, the trial court took appellant's plea. The trial court accepted each
of appellant's guilty pleas, finding that the pleas were entered knowingly, intelligently and
voluntarily. The trial court found that appellant understood the constitutional rights he was
waiving, the nature of each charge, the maximum penalties involved and that his prison term
would be eight years.
{¶ 21} The matter was set for sentencing, but when appellant filed the motion to
vacate his guilty plea a hearing on the motion was set for December 3, 2009. Appellant
appeared at the hearing with newly-retained counsel. For purposes of the motion hearing,
appellant waived attorney-client privilege as it related to any of the attorneys with the Rion
firm ("Rion").
{¶ 22} Appellant presented the testimony of Kevin Lennen, an attorney with Rion.
Lennen explained that he worked with appellant primarily with regard to entering the plea and
appeared on appellant's behalf at the plea hearing. The attorney acknowledged a discussion
he and the prosecutor had with the judge the day before the plea hearing regarding appellant's
eligibility for judicial release and stated that the judge informed him at that time that if
appellant entered the plea he would serve eight years.
That information was given to
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appellant. Lennen stated that, on the day of the hearing, he talked with appellant "a good
amount" and reviewed "the ramifications of the plea agreement." He told appellant at the
final pretrial that the judge was "quite clear" that he did not consider appellant eligible for
judicial release. Lennen did not believe appellant was confused about the sentence when the
two of them discussed the plea. Lennen testified that he told appellant that if he entered the
plea he would serve eight years because he knew appellant was still "holding out" for five
years.
{¶ 23} Appellant testified that the day before the final pretrial, attorney Nicole
Rutter-Hirth told him that he was not eligible for judicial release and that the matter would be
continued until the following day. He stated that, upon hearing that information, he decided
he wanted to talk to Jon Paul Rion about going to trial. Appellant testified that Lennen then
told him he believed appellant was eligible for judicial release and that if he took the plea
Lennen would file the appropriate papers in five years. Appellant stated at the motion
hearing that he was confused because "the whole Rion firm" had told him he could get judicial
release after five years. He further testified that he did understand when the judge told him he
would receive an eight-year sentence with no judicial release, and then stated that he made a
mistake when he entered the plea.
{¶ 24} At the motion hearing, appellant agreed that the trial court "went to great
lengths" to make sure appellant understood exactly the prison term he was facing. While
appellant claimed that his attorney was telling him he was eligible for judicial release, he also
admitted he understood at the time of the plea that the very same judge who would make any
decision as to early release was in fact telling him that he would serve the full eight years.
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{¶ 25} Appellant now asserts that when the trial court informed him at the plea
hearing that he would be serving an eight-year sentence, he was confused. However, the
transcript of the hearing, as set forth in part above, clearly reflects that the trial court twice told
appellant that he was not eligible for judicial release; twice, appellant indicated that he
understood.
At the plea hearing, the trial court gave appellant an opportunity to ask
questions; appellant admitted that he did not ask why the judge was telling him he would
serve eight years when his attorney had told him something different.
{¶ 26} Generally, a motion to withdraw a guilty plea that is filed prior to sentencing,
as in this case, will be freely allowed. State v. Drake (1991), 73 Ohio App.3d 640; State v.
Thomas, Allen Cty. App. No. 1-08-36, 2008-Ohio-6067, ¶ 6. However, this does not mean
that a motion to withdraw a guilty plea will be granted automatically. Drake at 645. "A
defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A
trial court must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea."
State v. Xie (1992), 62 Ohio St.3d 521, at paragraph
one of the syllabus. It is within the trial court's sound discretion to determine whether there is
a legitimate and reasonable basis for the withdrawal of a guilty plea and, absent an abuse of
discretion, the trial court's decision on the matter must be affirmed. Id. at 527. An abuse of
discretion is more than an error of judgment; it implies that the decision is unreasonable,
arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶ 27} Before deciding whether to plead guilty, a defendant is entitled to "the effective
assistance of competent counsel." McMann v. Richardson (1970), 397 U.S. 759, 751. The
facts of this case fail to show that appellant received ineffective assistance of counsel pursuant
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to Strickland v. Washington (1984), 466 U.S. 668. Strickland requires a defendant to show,
first, that counsel's representation fellow below an objective standard of reasonableness and,
second, a reasonable probability that, but for counsel's perceived errors, the results of the
proceeding would have been different. This test is applied in the context of Ohio law that
states that a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37
Ohio St.3d 153.
{¶ 28} We note that in Padilla v. Kentucky (2010), __ U.S. __, 130 S.Ct. 1473, the
United States Supreme Court held that trial counsel engaged in deficient performance by
failing to advise Padilla that his plea of guilty made him subject to automatic deportation.
The Padilla court held that counsel has a critical obligation to advise a client of the advantages
and disadvantages of a plea agreement. Padilla at 1485. In the case before us, it is clear
appellant's attorneys believed that his best interests would be served by entering a guilty plea.
Appellant initially accepted the advice of his attorneys but had a change of heart immediately
after entering the plea even though he knew beforehand that he would be sentenced to eight
years imprisonment. Based on the evidence against appellant and the fact that the eight-year
sentence represented a reduction in the potential sentence appellant could have received had
he gone to trial and been found guilty of each count of the indictment, we cannot say that his
attorneys acted unreasonably.
{¶ 29} We find based on the record that there was no assurance given that appellant
would be eligible for judicial release in five years. Any perceived assurance from counsel
flies in the face of the trial court's repeated, emphatic language informing appellant that he
would serve the full eight years and would not be eligible for judicial release. The trial court
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conducted a thorough plea hearing and addressed appellant at length regarding his
understanding of the plea and the rights he was waiving. Appellant's testimony at the plea
withdrawal hearing as summarized above confirmed that he understood the plea agreement
and the trial court's statement that appellant would serve the full eight years.
Appellant's
arguments in support of withdrawing his plea are not persuasive.
{¶ 30} Based on the foregoing and our thorough review of the transcripts of the plea
hearing and motion hearing, this court finds that appellant's plea was entered knowingly,
intelligently and voluntarily and that the trial court did not err by refusing to vacate appellant's
plea. Accordingly, appellant's first and second assignments of error are not well-taken.
{¶ 31} On consideration whereof, the judgment of the Montgomery County Court of
Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R.
24.
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DONOVAN, J., and FROELICH, J., concur.
(Hon. Thomas J. Osowik, Sixth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck, Jr.
Johnna M. Shia
Anthony S. VanNoy
Hon. Michael Tucker
