State v. Boshko

• Decision Date: 25 September 2000
• Docket Number: No. CA99-12-117.,CA99-12-117.
• Citation: 139 Ohio App.3d 827,745 NE 2d 1111
• Parties: The STATE of Ohio, Appellee, v. BOSHKO, Appellant.
• Court: Ohio Court of Appeals

139 Ohio App.3d 827

745 NE 2d 1111

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

No. CA99-12-117.

Court of Appeals of Ohio, Twelfth District, Clermont County.

Decided September 25, 2000.

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Donald W. White, Clermont County Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, for appellee.

Jeffrey D. Ferguson, for appellant.

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POWELL, Presiding Judge.

Defendant-appellant, Julius C. Boshko, appeals from his guilty plea, sentences, and adjudication as a sexual predator in the Clermont County Court of Common Pleas. For the reasons that follow, we affirm.

Appellant pled guilty to two counts of rape of a person less than thirteen years of age. The victim was appellant's stepdaughter. The trial court sentenced appellant to serve two consecutive terms of ten years in prison, which was the maximum possible sentence for the offenses. The trial court also adjudicated appellant to be a sexual predator pursuant to R.C. Chapter 2950.

Appellant, proceeding pro se, moved the trial court to allow him to withdraw his guilty pleas. The trial court denied appellant's motion. From this decision of the trial court, his sentences and adjudication as a sexual predator, appellant appeals and raises three assignments of error.

Assignment of Error No. 1:

"The trial court abused its discretion by failing to grant appellant's motion to withdraw his guilty pleas to counts six and seven of the indictment because of appellant's difficulty understanding pertinent points of the english language which created manifest injustice required by Ohio Criminal Rule 32.1 sic."

In his first assignment of error, appellant argues that the trial court abused its discretion and created "a manifest injustice" by failing to grant his motion to withdraw his guilty pleas. Appellant asserts that it is evident that his responses at the plea hearing demonstrate a "lack of comprehension and misinterpretation of the English language" that led the trial court to improperly conclude that he knowingly entered pleas of guilty to the charges.

Appellant's arguments in support of his assignment of error actually raise two distinct issues for review. First, appellant challenges the trial court's decision denying his motion to withdraw his pleas and his request to hold a hearing regarding the motion. Second, appellant challenges the validity of his plea hearing based on his review of the record. We will address each issue in turn.

A motion to withdraw a post-sentence guilty plea will only be granted to correct a manifest injustice. State v. Blatnik (1984), 17 Ohio App.3d 201, 17 OBR 391, 478 N.E.2d 1016; Crim.R. 32.1. The accused has the burden to show a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, paragraph one of the syllabus; State v. Legree (1988), 61 Ohio App.3d 568, 573 N.E.2d 687. 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. See Smith, at paragraph two of the syllabus. The term "abuse of discretion" requires more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331, 334-335; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898-899.

"When a trial court reviews a motion to withdraw a guilty plea, it decides, based upon the allegations in the motion, whether to hold an evidentiary hearing on the motion." State v. Nathan (1995), 99 Ohio App.3d 722, 725, 651 N.E.2d 1044, 1046. Generally, a hearing is only "required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn." Id., citing State v. Hamed (1989), 63 Ohio App.3d 5, 7, 577 N.E.2d 1111, 1112.

Appellant's pro se motion and request for a hearing included no facts or evidentiary material alleging a manifest injustice. Since appellant failed to demonstrate a manifest injustice warranting the withdrawal of his guilty plea, we conclude that the trial court did not abuse its discretion by failing to conduct a hearing on the motion or by denying the motion.

Represented by counsel on appeal, appellant asserts that his responses at the plea hearing demonstrate a "lack of comprehension and misinterpretation of the English language," which led the trial court to improperly conclude that he knowingly entered pleas of guilty to the charges. Appellant appears to maintain that his plea was not knowing, intelligent, or voluntary because that trial court failed to provide for his "obvious" inability to understand the English language or "English legalese."

In a criminal case, a plea must be made "knowingly, intelligently, and voluntarily." State v. Engle (1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450, 451. "Failure on any of these points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." Id. Where a criminal defendant does not speak English, constitutional guarantees of due process and equal protection require that the criminal defendant hears the proceedings in a language that he understands. See State v. Pina (1975), 49 Ohio App.2d 394, 400-401, 3 O.O.3d 457, 460-461, 361 N.E.2d 262, 266-267. A determination of whether a plea is knowing, intelligent and voluntary is based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272, 595 N.E.2d 351, 353-354.

To protect a criminal defendant's rights, Crim.R.11(C) provides the procedure a trial judge must follow when accepting a guilty plea. Specifically, Crim. R.11(C)(2) requires:

"(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:

"(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

"(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

"(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself."

Although strict compliance with Crim.R. 11 is preferred, a reviewing court will consider a plea to be knowing, intelligent and voluntary so long as the trial judge substantially complies with Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." Id.

A defendant who challenges his guilty plea on the basis that it was not knowing, intelligent or voluntary must show a prejudicial effect. Id.; State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167. "The test for prejudice is whether the plea would have otherwise been made." Nero, 56 Ohio St.3d at 108, 564 N.E.2d at 476.

Appellant gleans from the transcript several statements he made at the plea hearing which, taken out of context, appear to demonstrate that appellant is unable to comprehend the English language. However, a review of the entire lengthy plea hearing actually shows that appellant's position is absolutely untenable. The trial court, in a commendable manner, carefully and patiently questioned defendant repeatedly to make sure that he understood implications of his plea and the rights he was waiving. Appellant quite ably, and often verbosely, communicated with the trial court in cogent English, even though he stated that it was not his first language. Moreover, appellant discussed the pleas with his attorney and signed the plea agreement. At the conclusion of the plea hearing, the trial court permitted appellant and his attorney to have an additional discussion off the record to be certain appellant fully understood the implications of his plea. After reviewing the entire record, we conclude that appellant's plea was knowing, voluntary and intelligent.

Appellant's first assignment of error is overruled.

Assignment of Error No. 2:

"The trial court erred by sentencing appellant to maximum sentences of ten years each to counts six and seven of the indictment which was contrary to law and not supported by the record."

In his second assignment of error, appellant challenges three aspects of his sentence: (1) the decision to impose more than the minimum prison term for each count, (2) the decision to impose the maximum prison term for each count, and (3) the decision to impose the prison terms consecutively. In each instance, appellant maintains that the trial court's decision is not supported by the record or is contrary to law. We will address each aspect in turn.

An appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C. 2953.08(G)(1). Clear and convincing evidence is that evidence "which will produce in the mind of the trier of facts a firm belief or conviction as to...