State v. Blatnik

• Decision Date: 20 July 1984
• Docket Number: No. OT-84-5,OT-84-5
• Citation: 478 N.E.2d 1016,17 Ohio App.3d 201
• Parties: , 17 O.B.R. 391 The STATE of Ohio, Appellee, v. BLATNIK, Appellant.
• Court: Ohio Court of Appeals

Page 201

17 Ohio App.3d 201

478 N.E.2d 1016, 17 O.B.R. 391

The STATE of Ohio, Appellee, v. BLATNIK, Appellant.

No. OT-84-5.

Court of Appeals of Ohio, Sixth District, Ottawa County.

July 20, 1984.

Syllabus by the Court

1. A court may set aside a conviction and permit a defendant to withdraw a guilty plea after imposition of sentence only to correct a manifest injustice. (Crim.R. 32.1; State v. Smith [1977], 49 Ohio St.2d 261, 361 N.E.2d 1324 , followed.)

2. A post-sentence motion to vacate a guilty plea is addressed to the sound discretion of the trial court. Appellate review of a trial court's denial of a post-sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion.

3. 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by the defendant and accepted as true by the trial court would not require the court to permit a guilty plea to be withdrawn.

4. Manifest injustice, as contemplated by Crim.R. 32.1, does not ipso facto result from counsel's erroneous advice and incorrect speculation regarding the sentence that will be imposed.

5. In order for an aggregate term of imprisonment to be served in the state penitentiary under R.C. 2929.41(E)(4), several requisite conditions must first be satisfied: (1) there must be consecutive terms of imprisonment, (2) imposed for misdemeanor offenses, (3) whether the aggregate term of imprisonment is more than one year, (4) and at least one such consecutive term is for a misdemeanor of the first degree, (5) that is an offense of violence. (R.C. 2929.41[E], construed.)

6. The legislature has determined that a violation of R.C. 4511.19(A) is a traffic offense, and therefore, pursuant to R.C. 2901.01(I)(3), cannot be an offense of violence.

Lowell S. Petersen, Pros. Atty. and Barbara Petersen, Lakeside, for appellee.

Michael W. Sandwisch, Oak Harbor, for appellant.

DOUGLAS, Judge.

This matter is before the court on appeal from judgment of the Port Clinton Municipal Court. Appellant, Spencer D. Blatnik, pled guilty to charges that he had violated R.C. 4511.19(A)(1) and 4507.02. The trial court accepted appellant's guilty pleas to both charges and entered a finding of guilty against appellant on said charges. When imposing sentence upon appellant, the trial court sentenced him to one year imprisonment for his violation of R.C. 4511.19(A)(1) and to six months imprisonment for his violation of R.C. 4507.02. The trial court further ordered that appellant's sentences were to be served consecutively, thus constituting an aggregate term of imprisonment of eighteen months. Additionally, the trial court ordered that appellant serve the eighteen-month aggregate imprisonment term in the Ohio State Penitentiary.

Subsequent to sentencing, appellant filed a motion to withdraw his guilty pleas based on the contention that appellant had received erroneous advice from counsel regarding his sentence. The trial court denied appellant's motion to withdraw his guilty plea.

Appellant now appeals from his judgment and sentence and from the trial court's denial of his motion to withdraw his guilty plea. For our review, appellant asserts the following two assignments of error:

"1. The Trial Court erred in sentencing the Defendant to the Ohio State Penitentiary for the offenses of OMVI (O.R.C. Section 4511.19(A)(1)) and No Operator's License (O.R.C. Section 4507.02).

"2. The Trial Court abused its discretion and erred in not allowing the Defendant to withdraw his guilty pleas after sentencing where Defendant had not been advised prior to sentencing that the Court would or could impose imprisonment in the Ohio State Penitentiary, and where no hearing on the motion to withdraw the pleas was had."

Initially, we address appellant's second assignment of error, wherein appellant claims that the trial court erred in refusing to permit him to withdraw his guilty pleas. A court may set aside a judgment of conviction and permit a defendant to withdraw a guilty plea after imposition of sentence only to correct a manifest injustice. Crim.R. 32.1; State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 ; State v. Peterseim (1980), 68 Ohio App.2d 211, 213, 428 N.E.2d 863 . The burden of establishing the existence of a manifest injustice is upon the individual seeking vacation of the plea. Smith, supra, paragraph one of the syllabus. A post-sentence motion to vacate a guilty plea is addressed to the sound discretion of the trial court, id. at paragraph two of the syllabus, and an appellate court's review of a trial court's denial of a post-sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion. ¹ Peterseim, supra, at 214, 428 N.E.2d 863.

"What constitutes an abuse of discretion with respect to denying a motion to withdraw a guilty plea necessarily is variable with the facts and circumstances involved." State v. Walton (1981), 2 Ohio App.3d 117, 119, 440 N.E.2d 1225. We recognize, however, that if a plea of guilty could be retracted with ease after sentence had been imposed, " '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. * * * ' " (Citations omitted.) Peterseim, supra, 68 Ohio App. at 213, 428 N.E.2d 863. See Smith, supra, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

Appellant filed an attendant affidavit together with his motion requesting post-sentence withdrawal of his guilty plea in the trial court. In his affidavit, appellant attests that he was informed by his former counsel at the time of entering his guilty pleas that he would be required to undergo an alcoholic rehabilitation program and to serve a short term of imprisonment. Appellant further states that at no time was he informed, either by his former or his latter counsel, that his imprisonment would or could be served in the state penitentiary. Additionally, appellant states that his latter counsel informed him at his sentencing hearing that the maximum sentence which he would receive was eighteen months servable in the county detention facility. Appellant attests that if he had known that his imprisonment would be served in the penitentiary, he would not have entered a guilty plea, or would have withdrawn his guilty plea prior to sentencing. Appellee-state has not refuted or put in issue any of appellant's attestations contained in his affidavit.

A post-sentence withdrawal motion is permitted only in extraordinary cases, Smith, supra, at 264, 361 N.E.2d 1324, and only when necessary to correct a "manifest injustice." See Annotation, Withdrawal of Plea of Guilty or Nolo Contendere, After Sentence, Under Rule 32(d) of Federal Rules of Criminal Procedure (1971), 9 A.L.R.Fed. 309, 323, Section 5, for an elaboration upon the meaning and application of this standard. Although difficult to precisely define, suffice it to say that an overwhelming authority of case law states that manifest injustice, as contemplated by the rule, does not, ipso facto result from counsel's erroneous advice concerning the sentence that will be imposed. United States v. Scharf (C.A.8, 1978), 568 F.2d 106, 107-108; Masciola v. United States (C.A.3, 1972), 469 F.2d 1057, 1059; United States v. Becklean (C.A.8, 1979), 598 F.2d 1122, 1125, certiorari denied (1979), 444 U.S. 864, 100 S.Ct. 135, 62 L.Ed.2d 87; Smith v. United States (C.A.D.C.1963), 324 F.2d 436, 440, certiorari denied (1964), 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975; Georges v. United States (C.A.5, 1959), 262 F.2d 426, 430; United States v. Parrino (C.A.2, 1954), 212 F.2d 919, 921, certiorari denied (1954), 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663.

There is also authority which suggests that under certain circumstances, erroneous advice of counsel regarding the sentence which is to be imposed may result in manifest injustice. In Becklean, supra, the Eighth Circuit stated that if a guilty plea is entered solely because of erroneous advice, or if the erroneous advice plays a substantial part of inducement for the guilty plea, manifest injustice may result. Becklean, supra, at 1125. Also, it has been held that if a guilty plea is entered pursuant to counsel's representation, as opposed to counsel's likely prediction, that such a plea would result in a lesser sentence than the sentence actually received, it is necessary to permit post-sentence withdrawal of the guilty plea in order to prevent manifest injustice. United States v. Hawthorne (C.A.3, 1974), 502 F.2d 1183, certiorari denied (1976), 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177. In this regard, the Cuyahoga County Court of Appeals, in State v. Longo (1982), 4 Ohio App.3d 136, 140, 446 N.E.2d 1145, stated that when:

" 'a guilty plea was entered as a result of a "grave misunderstanding" solely on the part of defense counsel and not participated in by either the prosecution or the judge, the interests of justice required that the defendants be relieved of their pleas and the judgments of conviction vacated.' " Quoting from United States, ex rel. Elksnis, v. Gilligan (S.D.N.Y.1966), 256 F.Supp. 244, 249.

The record herein, other than appellant's affidavit, discloses only that appellant pled guilty and was then sentenced. Appellant does not assert that a plea arrangement had been made with the prosecutor concerning the length of his sentence as in Hawthorne, supra, nor does appellant assert that his counsel mistakenly represented to him the sentence which the state promised as in Becklean, supra. See Walton, supra, 2 Ohio App.3d at 119, 440 N.E.2d 1225. What appellant does assert is that his counsel speculated, although incorrectly, as to what appellant's sentence would be. According to the overwhelming weight of authority, this bare assertion does not, in and of itself, constitute manifest injustice. It has long been held that this type of speculation by counsel does not...