State v. McBride
| Decision Date | 09 June 2017 |
| Docket Number | CASE NO. 16 MA 0002 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. CHRISTOPHER McBRIDE DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
{¶1} Appellant Christopher McBride appeals the judgment of the Mahoning County Common Pleas Court denying a motion to withdraw his guilty plea to multiple counts of aggravated burglary, robbery and burglary. Appellant's counsel filed a no merit brief requesting leave to withdraw. A review of the record reveals there are no appealable issues. Appellant's appointed counsel's motion to withdraw is granted and the judgment of the trial court is affirmed.
{¶2} On March 25, 2003, Appellant pleaded guilty in Mahoning County Common Pleas Court to burglary, in violation of R.C. 2911.12(A)(2), a felony of the second degree; three counts of aggravated burglary, in violation of R.C. 2911.01(A)(1); and two counts of robbery, in violation of R.C. 2911.02(A)(3), a felony of the third degree. The three aggravated burglary charges were accompanied by firearm specifications, in violation of R.C. 2941.145(A). This matter was assigned case number 2002 CR 900 A.
{¶3} Also on March 25, 2003, in Mahoning County Common Pleas Case No. 2002 CR 943 A, Appellant pleaded guilty to aggravated burglary, in violation of R.C. 2911.01(A)(1), a felony of the first degree; and robbery, in violation of R.C. 2911.02(A)(3), a felony of the third degree. The two cases proceeded to a single sentencing hearing on June 3, 2003. In case number 02 CR 900 A, the trial court sentenced Appellant to three years of incarceration on the burglary charge in count one; three years on the aggravated burglary charge in count two; three years on the aggravated burglary charge in count three; three years on the aggravated burglary charge in count four with three years for the firearm specification on this count; three years on the robbery charge in count five; and three years on the robbery charge in count six. These sentences were all to be served consecutively. In case number 02 CR 943 A, Appellant was sentenced to seven years of incarceration for aggravated burglary to be served consecutively to the sentences imposed in case number 02 CR 900 A; and three years for robbery to be served concurrently with the sentence imposed in this case for aggravated burglary. The sentence ordered for Appellant in both cases totaled 28 years. The trial court ordered this 28-year sentence to be served consecutively to a sentence earlier imposed in the Trumbull County Court of Common Pleas in another matter. Appellant did not appeal.
{¶4} Instead, on June 22, 2005, Appellant filed a motion to withdraw his guilty plea. The trial court denied the motion on August 25, 2005 and again Appellant did not appeal. On October 18, 2007, Appellant filed a delayed appeal of the trial court's June 6, 2003 judgment entry of conviction and sentence. This Court denied Appellant's delayed appeal because it was improperly filed. State v. McBride, 7th Dist. No. 07 MA 185. On November 2, 2010, Appellant filed a second motion to withdraw his guilty plea. The trial court denied this motion on November 22, 2010. Appellant did not appeal. On October 5, 2015, Appellant filed a third motion seeking to withdraw his 2003 guilty plea. On December 3, 2015, the trial court denied that motion. Appellant has now filed this timely appeal of the trial court's judgment denying his third motion to withdraw his plea.
{¶5} Appellate counsel seeks to withdraw from representation after reviewing the record and finding no potentially meritorious arguments for appeal. This filing of a no merit brief is made pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). This Court has addressed no merit briefs in State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970). In Toney, this Court established the procedure to be undertaken when appellate counsel wishes to withdraw from a case based on a frivolous appeal.
Id. at syllabus.
{¶6} Appellate counsel filed a no merit brief in this matter on June 10, 2016. On June 14, 2016, we issued a judgment entry informing Appellant of counsel's no merit brief and granting him 45 days to file his own written brief. On July 11, 2016, Appellant filed a pro se brief. On September 8, 2016, Appellee filed a reply brief in the matter.
{¶7} The no merit brief filed by appointed appellate counsel suggests Appellant may arguably raise an issue regarding whether his plea was knowingly or voluntarily made due to the effects of medications Appellant was taking at the time he entered the plea. In reviewing this possible argument, however, counsel concludes it has no merit and the appeal is frivolous. Appellant does not raise the issue in his pro se brief to us, raising other possible issues, instead. However, Toney requires that we independently examine the record to determine whether any potentially meritorious issues exist for appeal.
{¶8} In his pro se brief, Appellant argues that the basis for his motion to withdraw his guilty plea was that the offenses were allied offenses of similar import and the trial court did not inform him of this fact. Thus, Appellant claims the trial court did not substantially comply with Crim.R. 11 prior to accepting his guilty plea and, as a result, Appellant's plea was not made knowingly, voluntarily and intelligently.
{¶9} In response, Appellee argues that res judicata precludes Appellant from raising any issues relating to alleged allied offenses. Appellee also states that should this Court decide res judicata does not operate as a bar to Appellant's claim, the matter is subjected to a review for only plain error, as Appellant failed to raise an issue regarding allied offenses at the time of his guilty plea in case number 2002 CR 900 A and seems to concede merger was warranted to the extent the issue was addressed. While Appellant did raise the issue in case number 2002 CR 943 A, counsel appeared to acknowledge to the trial court that it was questionable whether merger might be possible. While counsel mentioned merger, it was in the nature of a mere suggestion that the court might consider.
{¶10} Whether to grant a motion to withdraw a guilty plea is within the sound discretion of the trial court. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). In order to find an abuse of discretion, a reviewing court must find that the trial court's decision was arbitrary, unconscionable or unreasonable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶11} Crim.R. 32.1 provides: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." This rule establishes a fairly stringent standard for deciding a postsentence motion to withdraw a guilty plea. Xie, 62 Ohio St.3d at 526.
{¶12} The burden of establishing the existence of manifest injustice is on the individual seeking to vacate the plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. A motion to withdraw a guilty plea made after sentencing is allowed only in extraordinary cases. Id. at 264.
Manifest injustice is determined by examining the totality of the circumstances surrounding the guilty plea. Paramount in this determination is the trial court's compliance with Crim.R. 11(C), evidence of which must show in the record that the accused understood his rights accordingly.
State v. Padgett, 8th Dist. No. 64846, 1993 WL 243101, *1 (Jul. 1, 1993).
{¶13} While there is no time limit for filing a motion to withdraw after a sentence is imposed, an undue delay between the time the motion is filed and the reason for such late filings is a factor which may adversely affect the credibility of the movant. Smith at paragraph three of the syllabus.
{¶14} The state asserts Appellant's argument is barred by res judicata and that Appellant is precluded from raising the issue in this third, successive, withdrawal of plea motion when it could and should have been raised on direct appeal.
{¶15} We have noted that a "defendant cannot raise any issue in a post-sentence motion to withdraw a guilty plea...
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