State v. Hess, CASE NO. 2018-P-0106
| Decision Date | 15 October 2019 |
| Docket Number | CASE NO. 2018-P-0106 |
| Citation | 2019 Ohio 4223 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ARCHIE R. HESS, III, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00532.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
James W. Armstrong, Leipply & Armstrong, 2101 Front Street, Riverfront Centre, Suite 101, Cuyahoga Falls, OH 44221 (For Defendant-Appellant).
{¶1} Appellant, Archie R. Hess III ("Mr. Hess"), appeals the Portage County Court of Common Pleas' judgments denying his motion to withdraw his guilty plea and sentencing him to community control sanctions that included 180 days in jail, with credit for five days served, and required him to register as a Tier I sex offender, following his guilty plea to two counts of gross sexual imposition of a minor, fourth degree felonies, in violation of R.C. 2907.05(A)(4).
{¶2} Mr. Hess raises three errors on appeal: (1) the trial court erred in sentencing him to consecutive sentences; (2) the trial court abused its discretion in denying his motion to withdraw his guilty plea; and (3) his counsel was ineffective for allowing him to plead guilty despite his protestations of innocence.
{¶3} We find these contentions to be without merit. Firstly, the trial court sentenced Mr. Hess to a term of community control; thus, no consecutive sentences were ever imposed. Secondly, Mr. Hess failed to demonstrate the trial court abused its discretion in denying his motion to withdraw his guilty plea. The record reveals Mr. Hess knowingly, voluntarily, and intelligently pleaded guilty, and he failed to introduce a reasonable or legitimate basis to the contrary at a full and impartial hearing during which the court gave his arguments fair consideration. For similar reasons, Mr. Hess' last argument also fails because he failed to introduce any evidence that his counsel's assistance was ineffective and that his plea was involuntary or unknowingly made. Thus, we affirm the judgment of the Portage County Court of Common Pleas.
{¶4} In April of 2017, Mr. Hess was secretly indicted by the Portage County Grand Jury on six counts: two counts of unlawful sexual conduct with a minor, third degree felonies, in violation of R.C. 2907.04(A)&(B)(3); two counts of sexual battery, third degree felonies, in violation of R.C. 2907.03(A)(5)&(B); extortion, a third degree felony, in violation of R.C. 2905.11(A)(5)&(B); and, lastly, intimidation of a victim or witness in a criminal case, a first degree misdemeanor, in violation of R.C. 2921.04(A)&(D).
{¶5} Mr. Hess' appointed counsel filed a notice of alibi, claiming that Mr. Hess' schedule as a college student at Kent State University, where he also tutored, as well ashis job at a daycare, effectively proved he could not have committed the alleged sexual crimes on the minor victim. Both the state and appointed counsel filed numerous motions for continuances sparked by material produced in discovery, including Snapchat messages (a cellphone picture/messaging application) between Mr. Hess and the victim, and subsequently, the authentication of those messages. Additional time was also requested for a stipulated polygraph.
{¶6} On the day of trial, the court granted Mr. Hess' oral motion to withdraw his waiver of a jury. In anticipation of his motion, forty jurors were waiting to be called in for voir dire. The court then reviewed with Mr. Hess the state's plea offer in which he would plead guilty to two counts of gross sexual imposition, a fourth degree felony, and register as a Tier I sex offender. Mr. Hess informed the court that he rejected the offer due to the residency requirements of sex offender registration. The court then addressed defense counsel's motions in limine and the state's possibly prejudicial character evidence.
{¶7} The court held a brief recess at which time Mr. Hess and the state entered into a plea deal. Mr. Hess agreed he would plead guilty to two counts of gross sexual imposition, fourth degree felonies, and be classified a Tier I sex offender at the time of sentencing. In turn, the state would move to dismiss the balance of the indictment. Mr. Hess, with the consultation and advice of counsel, signed the written plea agreement.
{¶8} Prior to accepting Mr. Hess' written plea, the court informed Mr. Hess of the maximum sentence he would be facing and notified him of post-release control and the ramifications of violating community control if it should be imposed. The court then engaged Mr. Hess in the Crim.R. 11(C) colloquy to ensure he was knowingly, voluntarily, and intelligently pleading guilty to the charges resulting from the plea negotiations andaccepting them as his own. After Mr. Hess waived each of his rights and assured the court he had no questions as to his constitutional rights, the court accepted Mr. Hess' written plea of guilty, found him guilty as to the amended counts two and three of the indictment, and entered a nolle prosequi as to the remaining counts. The court then ordered a presentence investigation.
{¶9} Several weeks later, Mr. Hess filed a pro se motion to vacate his guilty plea and requested new counsel. Mr. Hess claimed his counsel was ineffective due to a breakdown in communication and that his counsel pressured and forced him to enter a plea of guilty.
{¶10} The court held a hearing on Mr. Hess' motion on November 21, 2018. Mr. Hess, who was appointed new counsel, testified. Mr. Hess told the court, Mr. Hess wanted to "go to court" and prove that he was innocent, claiming that he had an alibi. Because the minor victim could not identify a specific time period, Mr. Hess provided his counsel with the times and dates of his schedule. He offered this schedule as evidence of his counsel's ineffectiveness. He also offered into evidence emails between himself and his prior counsel, by which he communicated his desire to withdraw his guilty plea both following the plea hearing as well as several days later. His former counsel advised him in a reply email as follows:
{¶11} Mr. Hess further testified that he did not remember having a dialogue with his attorneys regarding his constitutional rights and that he was told only to "sign a piece of paper." He testified that his former counsel was ineffective because they pressured him, failed to file motions to authenticate certain evidence, and failed to subpoena all of his witnesses to corroborate his alibi defense. He claimed he did not know he was pleading guilty to two counts of gross sexual imposition and believed he was only pleading guilty to one count.
{¶12} On cross examination, Mr. Hess testified that he was aware his former counsel had filed a notice of alibi along with his school and work schedule during the time period of the alleged offenses. The state also provided him with a list of witnesses his defense counsel had intended to call. Mr. Hess responded it contained only a few of the witnesses he wanted to testify. Lastly, the state provided Mr. Hess with motions his former counsel had filed to order Snapchat to comply with his requests for authentication. The state then reviewed the plea hearing transcript, where Mr. Hess acknowledged that the court allowed him to inquire about a question with his counsel, that he asked and received clarifications from the court at various points, and that he told the court he understood the effects of his guilty plea and its consequences, as well as the rights he was waiving. Further, the court reviewed the counts and the maximum term to which he was pleading guilty, demonstrating he was aware he was pleading guilty to two counts of gross sexual imposition, not just one.
{¶13} Tammy Reed ("Ms. Reed"), a friend of Mr. Hess, who was present on the date set for trial and witnessed dialogue between Mr. Hess and his counsel, also testified. Ms. Reed testified that Mr. Hess' former counsel pressured him into accepting the plea and that Mr. Hess' counsel did not inform him he would be pleading guilty to two counts of gross sexual imposition.
{¶14} The court then asked Mr. Hess if he remembered that 40 jurors had been waiting in the jury pool, that the court had reviewed the state's plea deal with Mr. Hess, and that Mr. Hess had indicated he wanted to speak with his attorneys. The court also reviewed that Mr. Hess never protested his innocence during the plea hearing but was solely concerned about the residency requirement of Tier I sexual offender registration.
{¶15} The court denied Mr. Hess's motion to withdraw his guilty plea and set the matter for sentencing. At the sentencing hearing, approximately one week later, the court sentenced Mr. Hess to community control, including 180 days in jail with credit for five days served. The court notified Mr. Hess that if he violated his community control, he could receive more restrictive community control sanctions or serve a specific prison term of eighteen months for each offense, to run consecutively.
{¶16} Mr. Hess now appeals, raising three assignment of error for our review:
{¶17} "[1.] The trial court, although the prison sentence was suspended, committed plain error by failing to follow R.C. 2929.14(C)(4) by sentencing Appellant to...
To continue reading
Request your trial