State v. Wynn, No. 73805.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: SPELLACY, J., concurs
• Citation: 131 Ohio App.3d 725,723 NE 2d 627
• Decision Date: 21 December 1998
• Docket Number: No. 73805.
• Parties: The STATE of Ohio, Appellee, v. WYNN, Appellant.

131 Ohio App.3d 725
723 NE 2d 627

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

No. 73805.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided December 21, 1998.

131 Ohio App.3d 726

COPYRIGHT MATERIAL OMITTED

131 Ohio App.3d 727

Stephanie Tubbs-Jones, Cuyahoga County Prosecuting Attorney, and Thomas A. Rein, Assistant Prosecuting Attorney, for appellee.

Shawn D. Wynn, pro se.

131 Ohio App.3d 726

MICHAEL J. CORRIGAN, Judge.

Defendant-appellant, Shawn D. Wynn, appeals the decision of the Cuyahoga County Court of Common Pleas to deny his motion to withdraw his guilty plea without a hearing. Appellant, acting pro se, assigns one error for review. This court, finding no error, affirms the trial court's decision.

On February 5, 1993, appellant and several co-defendants were indicted on four counts of felonious assault with violence and firearm specifications. Appellant was also indicted on one count of having a weapon while under a disability. On April 16, 1993, appellant pled not guilty to all charges.

On July 15, 1993, pursuant to a plea agreement, appellant changed his plea to guilty of two counts of felonious assault, one count with a firearm specification (nonprobationable) and one count with the specifications deleted. The remaining charges against appellant were nolled. The remaining co-defendants pled guilty to reduced probationable felonious assault charges.

Although the appellant pled guilty to a nonprobationable offense, the trial court set sentencing for the following day to allow appellant to "clean up his personal affairs." The trial judge warned appellant of the potential result if he did not appear for sentencing. Nevertheless, appellant absconded for several months, and a capias was issued for his arrest.

On February 18, 1994, when appellant finally appeared for his sentencing, he was sentenced to a term of three years' mandatory incarceration for the firearm specification followed by four to fifteen years on count one, and four to ten years on count two to be served concurrently. Appellant did not file a direct appeal following his sentencing.

On April 18, 1997, twenty-two months after being sentenced, appellant filed a motion to withdraw his plea and requested an oral hearing pursuant to Crim.R. 32.1. Appellant argued that he was deprived of effective assistance of counsel because his counsel had information that would have exonerated him in the shooting of the victim. Appellant supported his motion with his affidavit and an affidavit of the victim, which averred (1) that a co-defendant, not appellant, shot him in the face, (2) that appellant was not carrying a gun, and (3) that he provided this information to appellant's counsel in a recorded statement prior to sentencing.

131 Ohio App.3d 728

On December 11, 1997, the trial court denied appellant's motion. The trial court held that the undue delay in filing the motion adversely affected appellant's credibility, that appellant never claimed innocence or dissatisfaction with his counsel and never mentioned the victim recanting at his plea or sentencing, and that the belated date on the victim's affidavit caused the court to doubt its credibility. Appellant timely filed this appeal.

Defendant-appellant states as his sole assignment of error:

"I. The trial court abused its discretion in failing to hold an evidentiary hearing on defendant's motion to withdraw his plea of guilty."

The court in State v. Peterseim (1980), 68 Ohio App.2d 211, 22 O.O.3d 341, 428 N.E.2d 863, recognized that postsentence plea revocations are governed by Crim.R. 32.1 and may only be granted to avoid a miscarriage of justice. See, also, State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, paragraph two of the syllabus. The burden of establishing manifest injustice is on the movant. Id. at paragraph one of the syllabus. The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdrawing the plea if the sentence was unexpectedly severe. State v. Caraballo (1985), 17 Ohio St.3d 66, 17 OBR 132, 477 N.E.2d 627.

When presented with the trial court's refusal to accept a plea revocation, our review is limited to a determination of whether the trial court abused its discretion, that is, whether the court's attitude was unreasonable, arbitrary or unconscionable, in reaching its decision. State v. Blatnik (1984), 17 Ohio App.3d 201, 202, 17 OBR 391, 392-393, 478 N.E.2d 1016, 1018-1019; Peterseim, supra, 68 Ohio App.2d at 214, 22 O.O.3d at 343, 428 N.E.2d at 865-866; State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632. Abuse of discretion is found in the rare instance when a decision is grossly violative of fact and logic so as to demonstrate perversity of will, defiance of judgment, undue passion or extreme bias. State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 360-361, 473 N.E.2d 264, 313-314; State v. Lombardo, Jr. (Feb. 15, 1995), Summit App. No. 16368, unreported, 1995 WL 66354.

A hearing on a postsentence motion to withdraw a guilty plea is not required if the facts alleged by the defendant and accepted as true by the trial court would not require the court to allow the withdrawal of the plea. Blatnik, 17 Ohio App.3d at 204, 17 OBR at 394-395, 478 N.E.2d at 1020-1021; State v. Hamed (1989), 63 Ohio App.3d 5, 7, 577 N.E.2d 1111, 1112; State v. Milton (June 01, 1995), Cuyahoga App. No. 65828, unreported, 1995 WL 328433.

131 Ohio App.3d 729

In this case, appellant argued in his motion to withdraw that he was denied effective assistance of counsel. In order to prevail on a postsentence motion to vacate that alleges ineffective assistance of counsel, a defendant is required to show that (1) his counsel's performance was, in fact, deficient, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and instead, would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 57-59, 106 S.Ct. 366, 369-371, 88 L.Ed.2d 203, 290-210; State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, 717-718.

In assessing and evaluating appellant's motion, the assessment cannot be made in a vacuum. Considerations such as the presence of counsel, the existence or not of co-defendants, the status of the co-defendants as it relates to involvement in the criminal justice system, and the application of complicity and the like become pivotal. In evaluating this case, the affidavits of the defendant and the victim read alone and accepted as true might well justify a hearing and perhaps a withdrawal of a plea. In the matter before the court, however, even if accepted as true, these affidavits would not exculpate the defendant.

This matter is affected by the fact that in this case there were three co-defendants. The statement submitted by the victim, Dominic Starks, if accepted as true, merely states that appellant may not have been the principal. It is not necessary that appellant be the gunman or for that matter that he personally possess a firearm for him to be charged with felonious assault as well as a firearm specification. The law is well settled that when two or more people engage in a course of criminal conduct and one does one part and the other another, each is responsible for the acts of the other as though he had personally performed each of the acts. See State v. Chapman (1986), 21 Ohio St.3d 41, 21 OBR 327, 487 N.E.2d 566. The trial court and counsel were aware of the application...