State v. Walter B. Graves, 98-LW-5300

• Decision Date: 19 November 1998
• Docket Number: 98AP-272,98-LW-5300
• Parties: State of Ohio, Plaintiff-Appellee, v. Walter B. Graves, Defendant-Appellant
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee, v. Walter B. Graves, Defendant-Appellant

No. 98AP-272

98-LW-5300 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

November 19, 1998

APPEAL from the Franklin County Court of Common Pleas.

Ronald J. O'Brien, Prosecuting Attorney, and Amy H. Kulesa, for appellee.

Dagger Johnston, Miller, Ogilvie & Hampson, and Randy L. Happeney for appellant.

OPINION

LAZARUS J.

Defendant-appellant, Walter B. Graves, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of one count of aggravated vehicular assault in violation of R.C. 2903.08. He assigns as error the following:

1. "The trial court erred as a matter of law in refusing to consider the agreed upon no contest plea in this cause."

2. "It is an abuse of discretion and plain error for a court to continue a sentencing hearing when the plea negotiations and the order of the court specifically provided for a pre-sentence investigation and the pre-sentence investigation was not complete."

3. "The trial court committed plain error in amending the judgment entry in this cause and making a finding that the offense was alcohol related when the prosecution had withdrawn the alcohol specification."

Appellant was indicted on one count of aggravated vehicular homicide in violation of R.C. 2903.06 and two counts of driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and 4511.19(A)(4). The indictment stemmed from a June 29, 1997 automobile accident on Interstate Route 70 at the Brice Road exit in Franklin County. At approximately 9:27 p.m., appellant was driving a Ford F-150 truck, travelling eastbound on I-70 in the far right lane. Witnesses stated that a phantom vehicle^[1] swerved into appellant's lane. Appellant swerved to avoid contact with the vehicle, and in so doing he struck and killed Johnny Justice, a pedestrian who was walking along the berm of the interstate.

Appellant filed a motion to suppress statements made by appellant and the results of a field sobriety test administered by the police. The trial court also granted appellant's motion to have the urine sample collected by the Columbus Police Department analyzed by an independent testing laboratory.

Trial was originally set for November 19, 1997, but was continued until January 6, 1998. Prior to trial and the hearing on the motion to suppress, the parties negotiated a plea agreement. The agreement was that the prosecution would dismiss both DUI counts, reduce the charge of aggravated vehicular homicide to aggravated vehicular assault and withdraw the alcohol specification. Appellant would plead no contest, with the parties jointly recommending a community control sanction with alcohol counseling.

On January 6, 1998, counsel presented the entry of no contest plea agreement to the trial court. After questioning appellant regarding the voluntary nature of the plea, the prosecution indicated, as per the agreement, that the plea was no contest to the amended charge. The trial court then inquired of appellant:

"THE COURT: I understand you wish to withdraw your previously entered not guilty plea and now plead guilty; is that correct?

"[DEFENSE COUNSEL]: No contest, Your Honor.

"THE COURT: Is this an Alford plea?

"[PROSECUTOR]: No, it's a no contest.

"THE COURT: I don't accept no contest pleas. I'll accept an Alford plea if he's going to avoid the consequences of going to trial. That was not discussed at the side-bar here. I don't accept no contest pleas. It's either going to be a guilty plea or an Alford plea.

"[PROSECUTOR]: I'm sorry. I thought I said it was a no contest.

"THE COURT: I didn't write anything about a no contest plea at the side-bar. It's one or the other.

"[DEFENSE COUNSEL]: If I could just explain to him.

"THE COURT: It's either an Alford plea -- I don't accept no contest pleas, so it's an Alford plea or guilty plea.

"[DEFENSE COUNSEL]: Your Honor, can I confer with my client for a moment?

"THE COURT: Sure. One goes to him. No, we're on the record. Here, you can just do it right there.

"[PROSECUTOR]: Judge, would you prefer that I write this on the guilty plea form?

"[DEFENSE COUNSEL]: It's on the no contest plea form.

"THE COURT: It's on the Senate Bill 2 form. You have it down on the no contest?

"[PROSECUTOR]: Yes.

"THE COURT: Unless you want to just amend it, scratch it out, unless that whole form needs to be rewritten.

"[DEFENSE COUNSEL]: It's throughout the form, Your Honor. The form is basically the same as the guilty except the guilty form says --

"THE COURT: To me, they're just alike, like a standard guilty plea form. It's the same form. Did you want to take a minute? What's it's going to be, an Alford plea or guilty plea?

"[DEFENSE COUNSEL]: Guilty, Your Honor.

"THE COURT: Okay. Here, you can have the original back. You give him this copy. Does it become -- are you writing it?

"[PROSECUTOR]: No, I have copies.

"THE COURT: Just destroy it.

"[PROSECUTOR]: I prepared a new entry along the same lines as the prior one except it's on a guilty plea. Would you prefer that I go through it?

"THE COURT: You don't have to go through the facts again, but I think you just -- they need to read into the record that the form has been changed and signed by --

"[PROSECUTOR]: Correct.

"THE COURT: Give it to his counsel. It's now an entry of guilty plea form?

"[PROSECUTOR]: That's correct, Your Honor.

"THE COURT: Okay." (Tr. 6-8.)

After consultation with counsel, appellant's counsel indicated the plea would be guilty to the amended charge. Appellant entered a plea of guilty, and the trial court ordered a presentence investigation ("PSI"). Sentencing was set for February 9, 1998.

At the start of the sentencing hearing on February 9, 1998, the prosecution noted that the brother and other family members of the victim were in Kentucky and were unavailable. The prosecution advised the trial court that he had told the victim's brother that the sentencing probably would not go forward that day due to a "mix-up" about appellant reporting to the adult probation department to have the PSI done. Before either party requested a continuance, the trial court indicated that the sentencing would go forward that day. The trial court indicated that it had received a letter from the victim's family attorney and that the letter would be made part of the record.

Prior to imposing sentence, the trial court stated that it had ordered a PSI but that appellant had not appeared, and therefore it was unable to consider imposing a community control sanction. The trial court then imposed a sentence of twelve months, suspended appellant's driver's license for a period of three years, ordered appellant to pay restitution in the amount of $7,250 and the costs of the action.

After sentencing, appellant's counsel stated that appellant's failure to appear for the PSI was largely counsel's fault because counsel had erroneously told appellant that he would be contacted by the probation department. The trial court responded that it had informed defense counsel at the plea hearing that it was ordering a PSI, had handed defense counsel the "yellow copy,"^[2] and had informed counsel to take appellant over to probation. Defense counsel did not object to the trial court's characterization but stated that he had "just wanted to make that notation." (Tr. 15.)

In his first assignment of error, appellant alleges that the trial court's blanket policy of refusing to consider no contest pleas constitutes an abuse of discretion.

Under Crim.R. 11(A), a defendant can enter the following pleas: (1) not guilty; (2) not guilty by reason of insanity; (3) guilty; or (4) with the consent of the court, no contest. In felony cases, the court may refuse to accept a plea of guilty or a plea of no contest. Crim.R. 11(C)(2). A plea of no contest is not an admission of guilt, but an admission of the truth of the facts alleged in the indictment. Crim.R. 11(B)(2).

The decision whether to accept or reject a no contest plea lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. State v. Jenkins (1984), 15 Ohio St.3d 164, 222-223, certiorari denied Jenkins v. Ohio (1985), 472 U.S. 1032, 105 S.Ct. 3514; State v. Mehozonek (1993), 8 Ohio App.3d 271.

In State v. Carter (Dec. 12, 1997), Clark Cty. App. No. 96-CA-15, unreported, a case similar to the instant case, the defendant desired to enter a no contest plea, but the trial court stated that it did not accept no contest pleas but would accept an Alford plea. In agreeing to plead guilty, the defendant's attorney stated:

"For the record, Your Honor, the Court has indicated that it would not accept a no contest plea but that it would accept an Alford plea. *** [Defendant] feels that his only choice here this morning then is to go ahead and plead guilty to the two counts that have been mentioned in the negotiated plea, so at this time [defendant] will go ahead and plead guilty to Counts Three and Four of the indictment." Id.

The Clark County Court of Appeals held that the trial court's blanket policy of not accepting no contest pleas constituted an abuse of discretion. The court stated:

"We find that the trial court's policy of not accepting no-contest pleas constitutes an abuse of discretion in that the trial court arbitrarily refused to consider the facts and circumstances presented,

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