State v. Ramos

• Decision Date: 23 June 1993
• Docket Number: No. 92CA005497,92CA005497
• Citation: 623 N.E.2d 1336,88 Ohio App.3d 394
• Parties: The STATE of Ohio, Appellee, v. RAMOS, Appellant.
• Court: Ohio Court of Appeals

Page 394

88 Ohio App.3d 394

623 N.E.2d 1336

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

No. 92CA005497.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided June 23, 1993.

Gregory A. White, Lorain County Pros. Atty., Elyrian, for appellee.

Kort Gatterdam, Columbus, for appellant.

BAIRD, Judge.

This cause comes before the court upon the appeal of Anthony Ramos upon the denial of his petition for postconviction relief filed pursuant to R.C. 2953.21. This petition was denied, without hearing, by the Lorain County Court of Common Pleas.

Ramos was indicted in September 1989 on one count of rape (R.C. 2907.02[A][b] ) and one count of gross sexual imposition (R.C. 2907.05[A] ). He was arraigned and pled not guilty to the charges.

On February 8, 1990, Ramos withdrew the plea of not guilty and entered a plea of guilty. After examination by the court, his plea was accepted and he was sentenced to seven to twenty-five years on the rape charge and two years incarceration on the gross sexual imposition charge.

Ramos filed a petition for postconviction relief in August 1991, along with a motion for the trial court to recuse itself from determining the merits of the petition. These motions were supported by several affidavits, including those of his trial counsel and several family members who were present during conversations between Ramos and his attorney.

In his petition, Ramos alleged that his trial counsel entered into plea negotiations with the prosecutor and the judge and that his counsel advised him that he would be given an opportunity to plead guilty. In exchange, he would be released on "supershock" probation after serving one year of his sentence. According to Ramos, his counsel also told him that the "deal" would not be discussed on the record.

After pleading guilty and serving one year of his sentence, a motion for supershock probation was filed. However, this motion was denied by the trial court because persons convicted of rape are not eligible for probation under any circumstances. R.C. 2951.02.

Ramos alleged that, because of the faulty assurances of trial counsel, he was induced to plead guilty and, therefore, his plea was not knowingly, voluntarily, and intelligently made. Ramos also argued that, due to the trial judge's alleged involvement in the plea negotiations and the likelihood that she would be called to testify at an evidentiary hearing on the issue, the court should recuse itself.

Both the petition for postconviction relief and the motion for recusal were denied without hearing. Ramos now appeals, asserting three assignments of error.

Assignments of Error Nos. I and II

"I. A trial court errs when it fails to allow a defendant to withdraw a guilty plea that he entered into upon the belief that he would receive supershock probation. Said error deprives a defendant of his rights to due process guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article One, Sections Five, Ten and Sixteen of the Ohio Constitution.

"II. A defendant is denied the effective assistance of trial counsel, guaranteed by the Ohio and United States Constitutions, when counsel erroneously promises a defendant that he will receive supershock probation after serving one year of a rape sentence."

Appellant alleges that the trial court should have allowed him to withdraw a guilty plea which was entered based upon a promise of probation which was made by his attorney. We find that the trial court should have conducted an evidentiary hearing on these matters and remand the cause for that purpose.

In his motion to vacate, appellant alleged that his guilty plea was induced by his attorney's statement that a deal had been made with the prosecution and judge and his promise that supershock probation would be granted within one year of his conviction. If that is true, appellant's guilty plea was arguably not knowingly, voluntarily and intelligently made, and his conviction could be overturned. Machibroda v. United States (1962), 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, 478; State v. Bowen (1977), 52 Ohio St.2d 27, 6 O.O.3d 112, 368 N.E.2d 843.

"Where a claim raised by a petition for postconviction relief under R.C. 2953.21 is sufficient on its face to raise an issue that petitioner's conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief." State v. Milanovich (1975), 42 Ohio St.2d 46, 71 O.O.2d 26, 325 N.E.2d 540, paragraph one of the syllabus. See, also, State v. Legree (1988), 61 Ohio App.3d 568, 575, 573 N.E.2d 687, 692.

Although the legal landscape has changed since Milanovich, with the adoption of Crim.R. 11, it remains...