State v. Walton

• Decision Date: 18 June 1981
• Citation: 440 N.E.2d 1225,2 Ohio App.3d 117
• Parties: , 2 O.B.R. 131 The STATE of Ohio, Appellee, v. WALTON, Appellant.
• Court: Ohio Court of Appeals

Page 117

2 Ohio App.3d 117

440 N.E.2d 1225, 2 O.B.R. 131

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

Court of Appeals of Ohio, Tenth District, Franklin County.

June 18, 1981.

Syllabus by the Court

Where immediately after entering a guilty plea and plea bargain and prior to sentencing the defendant makes a motion to withdraw his guilty plea indicating an intent not to live up to a portion of the plea bargain, the trial court abuses its discretion in both overruling the motion to withdraw and refusing to abide by the state's obligations under the plea bargain.

Michael Miller, Pros. Atty., Alan C. Travis and Mr. Edmund W. Morgan, Columbus, for appellee.

Andrew S. Wentworth, Columbus, for appellant.

WHITESIDE, Judge.

Defendant appeals from a judgment of the Franklin County Court of Common Pleas entered upon his plea of guilty to involuntary manslaughter as a result of plea bargaining under which the state entered a nolle prosequi as to charges of aggravated robbery, forgery and receiving stolen property.

Appointed counsel, although finding no arguable merit, has pursuant to defendant's request raised two assignments of error as follows:

"1. The trial court erred in denying Defendant-Appellant's motion to withdraw his plea of guilty to the charge of involuntary manslaughter and to allow him to proceed forward on his defense to all counts against him, to wit: 79CR-10-2734, one court (sic ) of receiving stolen property; 79CR-10-2838, one count forgery and; 80CR-02-397A, one count aggravated robbery and one count involuntary manslaughter.

"2. Defendant-Appellant was inefficiently represented by counsel and, therefore, denied his constitutionally guaranteed rights under the Sixth and Fourteenth Amendments of the United States Constitution."

As to the second assignment of error, there is nothing in the record indicating that defendant's trial counsel (different from the counsel appointed for appeal) was in any way ineffective or did not effectively represent defendant. The second assignment of error is overruled.

Defendant was charged with four serious crimes. A plea bargain was entered into whereby he was permitted to plead guilty only to one charge, involuntary manslaughter, albeit a felony of the first degree. However, in addition, with concurrence of the trial court, it was further agreed that it would be recommended that the minimum sentence imposed be that of four years, the minimum possible, and that the trial court expressly indicated acceptance of the recommendation provided "if you are called upon to testify and do testify truthfully with regard to your brother's case." Actual sentencing, however, was delayed until later, apparently as a "club" against defendant to insure his testifying against his brother.

Defendant apparently had second thoughts about testifying against his brother. In any event, three days after the entering of the guilty plea, which was never reduced to a judgment since sentencing was delayed, defendant filed a motion for withdrawal of his guilty plea. One month later the trial court entered an order overruling the motion for withdrawal of the guilty plea, and some three months after that finally entered a judgment in the case. In so doing, however, the trial court did not implement the plea-bargain agreement of minimum sentence but, instead, imposed the maximum minimum sentence that could be imposed under the law without indication that defendant had failed to live up to his part of the plea bargain, although presumably he had, and the increased sentence was in retaliation.

Whether to allow withdrawal of a guilty plea is a matter lying within the sound discretion of the trial court. At the time the motion was made in this case, apparently no part of the plea bargain had been implemented by the state, with only defendant's having implemented a substantial part of his obligation under the plea bargain by entering the plea of guilty to one count, there remaining his obligation to testify against his brother when he came for trial. Presumably, the nolle prosequi as to the other counts was not entered until time of sentencing, some four months after the entering of the guilty plea.

What constitutes an abuse of discretion with respect to denying a motion to withdraw a guilty plea necessarily is variable with the facts and circumstances involved. Under those herein involved, only slight justification would be necessary to justify a withdrawal of a guilty plea. However, none was given. Defendant's only justification was to the effect of a change of mind. At that time, of course, the state had not failed to fulfill its part of the plea bargain which was in part somewhat nebulously conditioned upon further acts of defendant.

There is, however, an abuse of discretion demonstrated. The trial court not only refused to permit defendant to withdraw his guilty plea because he no longer wished to live up to the terms and conditions thereof, but the trial court failed to live up to the plea bargain. Where immediately after entering a guilty plea and plea bargain and prior to sentencing the defendant makes a motion to withdraw his guilty plea indicating an intent not to live up to a portion of the plea bargain, the trial court abuses its discretion in both overruling the motion to withdraw and refusing to abide by the state's obligations under the plea bargain.

Under such circumstances, if the trial court determines within its discretion not to permit the defendant to withdraw his guilty plea, the trial court is then bound to follow through with all of the state's obligations made under the plea...