State v. Smith, No. 76-612

• Court: Ohio Supreme Court
• Writing for the Court: CELEBREZZE; C. WILLIAM O'NEILL; WILLIAM B. BROWN
• Citation: 361 N.E.2d 1324,49 Ohio St.2d 261,3 O.O.3d 402
• Docket Number: No. 76-612
• Decision Date: 23 March 1977
• Parties: , 3 O.O.3d 402 The STATE of Ohio, Apellant, v. SMITH, Appellee.

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49 Ohio St.2d 261 361 N.E.2d 1324, 3 O.O.3d 402 The STATE of Ohio, Apellant,
v.
SMITH, Appellee. No. 76-612. Supreme Court of Ohio. March 23, 1977.

Syllabus by the Court

1. A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice. (Crim.R. 32.1).

2. A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court.

3. An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.

On February 16, 1967, a criminal charge ¹ was filed against Charles Smith, based on [361 N.E.2d 1325] the affidavit of Mary Weeks. Weeks alleged that Smith was the father of her illegitimate daughter, Courtney, and that Smith had failed to maintain and support such child. The appellee appeared

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before the Juvenile Court Division of the Court of Common Pleas of Cuyahoga County on February 1, 1968, and entered a plea of guilty. The court thereupon sentenced appellee to a term in the Cleveland House of Correction, and ordered sentence suspended contingent upon payment of weekly current support and arrearage to the Cuyahoga County Welfare Department.

On May 13, 1968, the appellee was summoned before the court, and upon a finding that he had failed to comply with the prior order, the original sentence was ordered into effect. After appellee made payment toward the outstanding indebtedness on May 15, 1968, the court again suspended the balance of the sentence, on condition that appellee comply with the terms of the February 1, 1968, order.

Appellee subsequently failed to contribute to the support of the child, and on February 7, 1970, a capias was issued for his arrest. Smith was eventually arrested and brought before the court on January 13, 1975. At that time the court ordered appellee to furnish a personal appearance bond, which was to remain in effect until all payments on the arrearage had been made.

On January 21, 1975, not quite seven years after the plea had been entered, appellee moved, pursuant to Crim.R. 32.1, ² to withdraw his guilty plea. After a hearing, this motion was denied by the trial court.

The Court of Appeals, on April 22, 1976, eight years and nearly three months after the fact, reversed the judgment of the trial court, vacated the plea of guilty, and remanded the cause for further proceedigs.

This cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.

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John T. Corrigan, Pros. Atty., and Thomas J. Tenwick, Cleveland, for appellant.

Ticktin, Baron, Kabb & Valore Co., L. P. A., and Russell Z. Baron, Cleveland, for appellee.

CELEBREZZE, Justice.

The majority opinion of the Court of Appeals below stated that '* * * the trial judge abused his discretion in refusing to allow the * * * (defendant) to withdraw his plea of guilty.' We disagree.

The appellate court's conclusion is premised upon its application of the principles of law announced in Cleveland v. Whipkey (1972), 29 Ohio App.2d 79, 278 N.E.2d 374 and Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. In Whipkey, it was held, inter alia, that knowing, intelligent and voluntary waivers of the rights to trial by jury, to confrontation of one's accusers and against self-incrimination, mandated as necessary prerequisites to a valid plea of guilty to a felony charge in Boykin, supra, would henceforth be indispensable to a valid plea of guilty to a misdemeanor. Boykin, decided more than one year subsequent to the entry of the plea of guilty in the case at bar, also established that the state must demonstrate the defendant's knowing waiver of the three constitutional rights listed above, and that waiver would not be presumed from a silent record.

Assuming, arguendo, that the principles of Boykin and Whipkey are applicable to the instant guilty plea, it becomes necessary to discuss the nature of the proceedings here under review. Appellee has made a motion under Crim.R. 32.1 to withdraw his guilty plea, approximately seven years after [361 N.E.2d 1326] the imposition of sentence. Because the Ohio Rules of Criminal Procedure are of relatively recent vintage, having become effective on July 1, 1973, there is a dearth of Ohio case authority construing Crim.R. 32.1. However, Rule 32(d) of the Federal Rules of Criminal Procedure is virtually identical to Ohio's Crim.R. 32.1, and thus federal case law should show a path in applying the Ohio rule.

The federal case authority is collected in a comprehensive

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annotation, Withdrawal of Plea of Guilty or Nolo Contendere, After Sentence, under Rule 32(d) of Federal Rules of Criminal Procedure, 9 A.L.R.Fed. 309. This article notes, at page 316, that federal courts will not set aside a judgment of conviction and permit the withdrawal of a guilty plea after sentence has been imposed unless such action is required to correct 'manifest injustice.' United States v. Roland (C.A. 4, 1963), 318 F.2d 406. This term has been variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases. United States v. Semel (C.A. 4, 1965), 347 F.2d 228, certiorari denied 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 rehearing denied 382 U.S. 933, 86 S.Ct. 312, 15 L.Ed.2d 346. The standard rests upon practical considerations important to the proper administration of...