State v. Lambros

• Decision Date: 19 December 1988
• Docket Number: No. 54744,54744
• Citation: 541 N.E.2d 632,44 Ohio App.3d 102
• Parties: The STATE of Ohio, Appellee, v. LAMBROS, Appellant. *
• Court: Ohio Court of Appeals

Page 102

44 Ohio App.3d 102

541 N.E.2d 632

The STATE of Ohio, Appellee, v. LAMBROS, Appellant.^*

No. 54744.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 19, 1988.

Syllabus by the Court

1. Generally, a motion to withdraw a guilty plea filed before sentencing will be freely allowed; however, a motion to withdraw a guilty plea will not be granted automatically. Consideration must be given to the facts that (1) the state's witnesses have been released, (2) the prosecutor is engaged in another case, and (3) the court must interrupt and rearrange its calendar to try a case that had been amicably handled. A mere change of heart, for instance, is insufficient justification.

2. When the trial court denies a presentence motion to withdraw a guilty plea pursuant to Crim.R. 32.1, appellate review is limited to a determination of whether the court abused its discretion.

3. A defendant who has a change of heart regarding his guilty plea should not be permitted to withdraw that plea just because he is made aware that an unexpected sentence is going to be imposed.

John T. Corrigan, Pros. Atty., and Kathleen S. Peterson, Cleveland, for appellee.

Arthur P. Lambros and David L. Doughten, Cleveland, for appellant.

PAUL H. MITROVICH, Judge.

On December 11, 1986, defendant-appellant Louis P. Lambros was indicted for bribery and theft in office. He pled not guilty at his arraignment.

After a period of discovery, defendant appeared in court on August 10, 1987, withdrew his previously entered plea of not guilty, and entered a plea of guilty to theft in office. The bribery charge was dismissed, and defendant was referred for a presentence investigation.

On November 5, 1987, defendant appeared for sentencing and made an oral motion to withdraw his guilty plea because he had been led to believe that he would be put on probation. Defendant's attorney acknowledged that he had told defendant that if the court did not give him probation, defendant would be permitted to withdraw his plea. The court denied it had ever made such representations to anyone, and defense counsel indicated that he had heard it from a third person who had talked to the judge.

The trial court denied defendant's motion to withdraw his guilty plea and sentenced him to one year's imprisonment. He now appeals, assigning two errors for review.

Assignment of Error No. I:

"The trial court abused its discretion by denying appellant's motion to withdraw his guilty plea and thereby deprived appellant of his rights to a trial by jury and to due process of law under the Ohio and United States Constitutions."

Generally, a motion to withdraw a guilty plea filed before sentencing will be freely allowed. State v. Peterseim (1980), 68 Ohio App.2d 211, 22 O.O.3d 341, 428 N.E.2d 863. This does not mean, however, that a motion to withdraw a guilty plea will be granted automatically. ¹ A mere change of heart, for instance, is insufficient justification. State v. Walton (1981), 2 Ohio App.3d 117, 2 OBR 131, 440 N.E.2d 1225.

When the court denies a presentence motion to withdraw a guilty plea, appellate review is limited to a determination of whether the trial court abused its discretion. State v. Meade (May 22, 1986), Cuyahoga App. No. 50678, 1986 WL 5954, unreported; State v. Posta (1988), 37 Ohio App.3d 144, 524 N.E.2d 920, syllabus. Abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.

At the time he entered his guilty plea, appellant acknowledged that no promises or threats were made to induce his plea and he understood the possible sentencing consequences. It appears from the record that appellant attempted to withdraw his plea before sentencing only because defense counsel became aware that appellant would be sentenced to a period of incarceration.

It seems that a defendant who has a change of heart regarding his guilty plea should not be permitted to withdraw that plea just because he is made aware that an unexpected sentence is going to be imposed. Peterseim, supra, 68 Ohio App.2d at 213, 22 O.O.3d at 342, 428 N.E.2d at 865. Otherwise, defense counsel merely has to allege that the defendant's plea was induced by some underlying "mistaken belief" that the defendant would receive probation and the plea would be vacated. Cf. State v. Longo (1982), 4 Ohio App.3d 136, 140, 4 OBR 228, 232, 446 N.E.2d 1145, 1149.

In this case, the trial court was satisfied that no representations had been made regarding appellant's sentence. Coupled with appellant's admitted understanding of the possible sentence and his express denial of any promises or threats at the time he entered his plea, there was no basis for appellant's "mistaken belief" that his plea was conditioned on receiving probation.

The trial court did not abuse its discretion in refusing appellant's presentence motion to withdraw his guilty plea.

The first assignment of error is overruled.

Assignment of Error No. II:

"Defense counsel improperly induced appellant's plea and thereby deprived appellant of his constitutionally guaranteed right to effective assistance of counsel and to his right to a trial by jury."

Appellant cites State v. Blatnik (1984), 17 Ohio App.3d 201, 203, 17 OBR 391, 394, 478 N.E.2d 1016, 1020, which stated:

"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 [United States v. Becklean (C.A. 8, 1979), 598 F.2d 1122], the Eighth Circuit stated that if a guilty plea is entered solely because of erroneous advice, [or] if the erroneous advice plays a substantial...