State v. Patrick, 14 MA 93.

• Decision Date: 01 June 2016
• Docket Number: No. 14 MA 93.,14 MA 93.
• Citation: 66 N.E.3d 169
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Kyle PATRICK, Defendant–Appellant.
• Court: Ohio Court of Appeals

66 N.E.3d 169

STATE of Ohio, Plaintiff–Appellee,

v.Kyle PATRICK, Defendant–Appellant.

No. 14 MA 93.

Court of Appeals of Ohio, Seventh District, Mahoning County.

June 1, 2016.

Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, Youngstown, OH, for plaintiff-appellee.

Edward A. Czopur, Youngstown, OH, for defendant-appellant.

GENE DONOFRIO, J., MARY DeGENARO, J., and CAROL ROBB, J.

OPINION

DONOFRIO, P.J.

{¶ 1} Defendant-appellant, Kyle Patrick, appeals the decision of the Mahoning County Common Pleas Court denying his presentence motion to withdraw his guilty plea.

{¶ 2} On September 27, 2012, Appellant was indicted and charged with aggravated murder (R.C. 2903.01(B), (F) ) with a firearm specification (R.C. 2941.145(A) ); aggravated robbery (R.C. 2911.01(A)(1), (C) ) with a firearm specification (R.C. 2941.145(A) ); and tampering with evidence (R.C. 2921.12(A)(1), (B) ). At the time, Appellant was 17 years of age. On August 24, 2012, the Juvenile Court filed an Agreed Judgment Entry relinquishing jurisdiction and transferring this matter to the General Division of the Court of Common Pleas.

{¶ 3} On February 10, 2014, the day he was scheduled for trial, Appellant plead guilty to murder (R.C. 2903.02(A), (D) ); aggravated robbery (R.C. 2911.01(A)(1), (C) ); tampering with evidence (R.C. 2921.12(A)(1), (B) ); and two firearm specifications with regard to the murder and aggravated robbery (R.C. 2941.141 ). His plea was the result of last minute negotiations with Plaintiff-appellee, State of Ohio, before the commencement of trial.

{¶ 4} During the plea hearing on February 10, 2014, the trial court explained to Appellant that he was not eligible for community control, that he would be going to prison, and that he could be sentenced to 15 years to life for murder; one year for the firearm specification that had to be served prior to and consecutive to the sentence for murder (in other words, 16 years to life for these two convictions); a maximum of 11 years for aggravated robbery; and a maximum of three years for tampering to run concurrently with the murder sentence. Appellant indicated that he understood. (2–10–14, Tr. 14). The trial court then indicated it would follow the State's recommendation that Appellant be sentenced to 16 years to life, i.e., 15 years to life on the murder and one year on the firearm specification to run consecutively, 11 years for aggravated robbery to run concurrently with the foregoing, and 36 months for tampering, also to be served concurrently. (2–10–14, Tr. 8). The trial court ordered a presentence investigation and set sentencing for March 10, 2014.

{¶ 5} On February 18, 2014, Appellant, pro se, filed his "NOTICE OF WITHDRAWAL OF GUILTY PLEA" and asserted that since he had not been sentenced, he did not need to state a cause for his withdrawal.

{¶ 6} On March 7, 2014, counsel for Appellant also filed a motion to withdraw the guilty plea asserting, inter alia, that the motion should be granted because Appellant had not been provided sufficient time to appreciate the consequences of his plea; that Appellant timely indicated his desire to withdraw his plea; and that the granting of the motion would not prejudice the State.

{¶ 7} The State filed a Memorandum Contra to Appellant's motion on April 2, 2014. The State asserted that Appellant failed to satisfy the legal criteria to justify the granting of his motion; Appellant had competent counsel; he was given a full hearing to discuss the terms and conditions of his plea; he failed to give a reasonable and legitimate basis for the withdrawal of his plea; and the State had released witnesses who subsequently moved out of town and halted its investigation and preparation for trial.

{¶ 8} The trial court held the first hearing on Appellant's motion on April 28, 2014. During the hearing, the trial court discussed factors to be considered in deciding whether or not to grant the motion, heard the testimony of Appellant, and heard argument from counsel for both parties.

{¶ 9} The assistant prosecuting attorney with the most knowledge as to whether or not the State would be prejudiced by the granting of Appellant's motion was unable to attend the April 28, 2014, hearing. The trial court asked about the potential prejudice to the State: "Do you know if these witnesses are material or if they are, for lack of a better word, peripheral?" (4–28–14, Tr. 16). The assistant prosecutor attending on behalf of the State responded—"I do not know * * * don't want to misrepresent anything to the court." (4–28–14, Tr. 16).

{¶ 10} The trial court stated it did not feel comfortable ruling on the motion without knowing what the prejudice to the State might be—"If they are material witnesses, and if the state is going to be unable to proceed at trial as it relates to the original indictment, then certainly that may be a very strong factor for me to consider in determining whether or not this motion should be granted." (4–10–14, Tr. 16–17).

{¶ 11} On May 15, 2014, approximately three months after Appellant filed his first notice indicating he wished to withdraw his plea, the State filed the affidavit of the assistant prosecutor who could respond to the trial court's concern about any prejudice to the State's case. That affidavit addressed the availability of four witnesses—Aric Longcoy, Chelsea Daviduk, Stephanie Daviduk, and a juvenile witness.

{¶ 12} With regard to Longcoy, the affidavit provided that Longcoy never appeared for an interview and did not respond to a subpoena. Longcoy's father said Longcoy was living on the street in Cleveland and had no address or telephone number. The affidavit stated that on the day of trial Longcoy called and said he was on his way. He then was told of the plea. He did not appear. The State has had no further contact with him. The affidavit said several other witnesses (unidentified) represented that Longcoy was going to move to Florida. The affidavit provided that Longcoy's testimony was "material and crucial" because he could identify Appellant, would provide information about the plan and motive of Appellant, and would provide evidence concerning Appellant's possession of the phone used to lure the victim into the hands of Appellant just prior to the alleged murder, something another witness (Reginald Whitfield) refused to do.

{¶ 13} As to the Daviduks, the affidavit indicated that they, too, did not appear before the day of trial and had moved to a new address. The Daviduks were to provide evidence regarding Appellant's destruction of evidence, including the gun, and the "victim's property in a Struthers dumpster."

{¶ 14} The State's affidavit stated that the juvenile witness was a known runaway and had been incarcerated in the Juvenile Justice Center at the time of trial but that her current location was unknown. The juvenile was to provide information as to Appellant's whereabouts after the murder. Later, Appellant would assert that he had located this witness at a treatment center in Lucasville. In response, affiant stated—"I don't know how available to us she would be." (6–17–14, Tr. 9).

{¶ 15} Finally, affiant represented that she believed "all of these witnesses were material, that allowing the DEFENDANT to withdraw his plea would prejudice the State because we [the State] would have to start at square one in locating and maintaining a location on these witnesses." (Affidavit at ¶ 6).

{¶ 16} Prior to the date of trial, on February 6, 2014, the State filed a witness list containing 34 witnesses. It is unclear whether the juvenile identified in the affidavit is on the list. None of the other 30 witnesses are discussed anywhere in the record.

{¶ 17} A second hearing on the Appellant's motion to withdraw his plea was held on June 17, 2014. After hearing argument from both counsel, the trial court reviewed the criteria to be considered when ruling on a presentence motion to withdraw a plea. The trial court denied Appellant's motion and proceeded to sentence Appellant pursuant to the plea agreement and in accord with the State's recommendation set forth above. Appellant filed this appeal.

{¶ 18} Appellant sets forth one assignment of error:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO WITHDRAW AND, IN SO DOING, ASSIGNED GREATER WEIGHT TO THE, ALLEGED, PREJUDICE TO THE STATE AS AGAINST ALL OTHER FACTORS FOR CONSIDERATION OF SUCH A MOTION.

{¶ 19} Crim. Rule 32.1, "Withdrawal of Guilty Plea", 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.

{¶ 20} The Rule distinguishes between a presentence motion to withdraw a guilty plea and a postsentence motion. A postsentence motion is allowed "to correct manifest injustice."

{¶ 21} The Ohio Supreme Court has explained that Rule 32.1 provides no guidelines for a trial court when ruling on a presentence motion to withdraw a guilty plea. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992) (Moyer, C.J. and Brown, J., dissenting). The Supreme Court has explained that a pretrial motion to withdraw a plea is to be freely allowed and treated with liberality. Id. at 527, 584 N.E.2d 715. However, the Supreme Court also explained that one who enters a guilty plea has no absolute right to withdraw it. Id. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion and that, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. Id. at 526, 584 N.E.2d 715. Thus, despite the fact that presentence motions are to be liberally granted, in reviewing the trial court's ruling an abuse-of-discretion standard is applicable. Id.

{¶ 22} In Xie, it was clear that the defendant was given erroneous advice by his counsel as to when he would be eligible for parole (he was told if he was...