State Of Ohio v. Lathan, Case No. 09-CA-42

Citation2010 Ohio 4540
Decision Date23 September 2010
Docket NumberCase No. 07CR162,Case No. 09-CA-42
PartiesSTATE OF OHIO Plaintiff-Appellee v. MAURICE D. LATHAN Defendant-Appellant
CourtUnited States Court of Appeals (Ohio)

2010 Ohio 4540

STATE OF OHIO Plaintiff-Appellee
MAURICE D. LATHAN Defendant-Appellant

Case No. 09-CA-42
Case No. 07CR162

Court Of Appeals
Guernsey County Ohio
Fifth Appellate District

DATED: September 23, 2010


For Defendant-Appellant MAURICE D. LATHAN

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County Court of Common Pleas,

Page 2

Gwin, P.J.

{¶1} Defendant-appellant Maurice D. Lathan appeals from the October 26, 2009 Judgment Entry of the Guernsey County Court of Common Pleas overruling his Motion to Withdraw Guilty Plea. Plaintiff-appellee is the State of Ohio.

Statement of the Facts and Case1

{¶2} On August 30, 2007 an Affidavit for Complaint was filed in the Cambridge Municipal Court charging appellant with one count of possession of cocaine in an amount greater than 100 grams but less than 500 grams in violation of R.C. 2925.11(C)(4)(d), a felony of the second degree, and one count of possession of crack cocaine in an amount greater than 100 grams but less than 500 grams in violation of R.C. 2925.11(C)(4)(f), a felony of the first degree.

{¶3} On August 30, 2007 appellant filed a written waiver of his right to a preliminary hearing and the case was bound over to the Guernsey County Grand Jury.

{¶4} On August 31, 2007, appellant's attorney filed a "Notice of Appearance" in Guernsey County Court of Common Pleas, Case No. 07 CR 162.

{¶5} A bond hearing was held on the Court's own motion with appellant and his attorney appearing in open court on September 27, 2007. On October 3, 2007, appellant's trial attorney filed a "Request for Discovery."

{¶6} On October 22, 2007, a Bill of information was filed charging appellant with one count of possession of cocaine in an amount greater than 100 grams but less than 500 grams, a felony of the second degree, and one count of possession of crack cocaine in an amount greater than 10 grams but less than 25 grams, a felony of the

Page 3

second degree. Each count contained a specification for the forfeiture of $66,250.00 cash pursuant to R.C. 2929.13.

{¶7} On November 6, 2007 appellant filed a written waiver of prosecution by indictment and consent to prosecution by information. The written waiver stated,

{¶8} "I, Maurice D. Lathan, defendant in the above cause, having been advised by the Court of the nature of the charge against me, and of my rights under the Constitution, and being represented by counsel, do hereby waive in writing and in open Court, prosecution by indictment, and consent to prosecution by information in Common Pleas Court." Appellant and the trial judge signed the entry.

{¶9} Appellant thereafter filed a written plea of guilty, which contains the following, "PSI to be ordered. Negotiated sentence of 5 yrs. On each count, to be served consecutive to each other. Mandatory fine & court costs to be taken from forfeited monies...." Appellant, his attorney and the prosecuting attorney signed this entry. Appellant entered a guilty plea to the Bill of Information in open court on November 6, 2007.

{¶10} On December 14, 2007, the trial court sentenced appellant in accordance with the negotiated sentence.

{¶11} On August 28, 2009, appellant filed a Motion to Withdraw Guilty Plea. On September 8, 2009, appellant filed a Motion for Post-Conviction Relief. Appellant's motions were denied on October 26, 2009.

{¶12} It is from the trial court's judgment entry of October 26, 2009 that appellant has filed this appeal raising as his assignments of error:

Page 4




{¶15} In his first assignment of error appellant maintains that the trial court erred in refusing to allow appellant to withdraw his negotiated guilty plea. We disagree.

{¶16} Crim. R. 11 requires guilty pleas to be knowingly, intelligently and voluntarily made. Although literal compliance with Crim. R. 11 is preferred, substantial, not strict, compliance with Crim. R. 11 is required. State v. Stewart (1977), 51 Ohio St. 2d 86.

{¶17} The question of an effective waiver of a Federal Constitutional right in a State criminal proceeding is governed by Federal standards. Boykin v. Alabama (1969), 395, U.S. 238. (Citing Douglas v. Alabama (1965) 380 U.S. 415). For a waiver to be valid under the Due Process clause of the United States Constitution, it must be: "[a]n intentional relinquishment or abandonment of a known right or privilege." Boykin, supra, 395 U.S. at 243 n.5 (Quoting Johnson v. Zerbst (1938), 304 U.S. 458).

{¶18} A plea of guilty constitutes a complete admission of guilt. Crim. R. 11 (B) (1). "By entering a plea of guilty, the accused is not simply stating that he did the

Page 5

discreet acts described in the indictment; he is admitting guilt of a substantive crime." United v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 762.

{¶19} With respect to statements made during change of plea hearings, the United States Supreme Court has stated, "the representation of the defendant, his lawyer, and the prosecutor in such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Machibroda v. United States (1962), 368 U.S. 487, 497, 82 S.Ct. 510, 515. Although the plea or sentencing proceedings record is imposing, it is not insurmountable. Id.

{¶20} Crim. R. 32.1: states: "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentences is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

{¶21} Because appellant's request was made post-sentence, the standard by which the motion was to be considered by the trial court was "to correct manifest injustice." The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the syllabus.

{¶22} In Smith, supra, the Ohio Supreme Court, citing United States v. Semel (C.A. 4, 1965), 347 F.2d 228, addressed the concept of "manifest injustice," stating that

Page 6

"[t]his term [manifest injustice] has been variously defined, but it is clear that under such standard, a post sentence withdrawal motion is allowable only in extraordinary cases." Id. at 264.

{¶23} Furthermore, "[b]efore sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. * * * " State v. Peterseim (1980), 68 Ohio App.2d 211, 213, 428 N.E.2d 863, quoting Kadwell v. United States (C.A.9, 1963), 315 F.2d 667.

{¶24} "A hearing on a post-sentence Crim.R. 32.1 motion is not required if the facts alleged by the defendant and accepted as true by the trial court would not require the court to permit a guilty plea to be withdrawn." State v. Wynn (1998), 131 Ohio App.3d 725, 728, 723 N.E.2d 627, 629; State v. Blatnik (1984), 17 Ohio App.3d 201, 204, 478 N.E.2d 1016, 1020.

{¶25} A reviewing court will not disturb a trial court's decision whether to grant a motion to withdraw a plea absent an abuse of discretion. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

{¶26} The basis for appellant's request is alleged procedural defects in the information, timing of the information and ineffective assistance of counsel.

Page 7

{¶27} Specifically, appellant argues that, because the Bill was filed before the Appellant signed a waiver of indictment, rather than within the fourteen-day period after that waiver was filed, the charges and sentence entered against him are void. Further, appellant claims that the information was not witnessed and notarized by the Clerk of Courts.


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT