State v. Xie

Decision Date12 February 1992
Docket NumberNo. 90-1814,90-1814
Citation62 Ohio St.3d 521,584 N.E.2d 715
PartiesThe STATE of Ohio, Appellant and Cross-Appellee, v. XIE, Appellee and Cross-Appellant.
CourtOhio Supreme Court

SYLLABUS BY THE COURT

1. A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.

2. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.

On November 16, 1988, defendant Hanwen Xie was indicted by the Franklin County Grand Jury on one count of aggravated murder with a firearm specification. Xie subsequently entered a plea of not guilty, and the case was set for trial. A series of unsuccessful plea negotiations with the county prosecutor's office ensued prior to the start of the trial.

The case proceeded to jury selection on July 5, 1989. On the second day of jury voir dire, it was agreed that Xie would plead guilty to the lesser included offense of murder with no firearm specification. R.C. 2929.02(B) required that Xie be sentenced to an indefinite term of imprisonment of fifteen years to life for this offense. The trial court held a hearing, pursuant to Crim.R. 11, and accepted Xie's guilty plea. At Xie's request, sentencing was delayed until the following week.

On July 11, 1989, prior to the date set for sentencing, Xie filed a motion to withdraw his guilty plea. The motion was supported by the affidavits of Xie, his wife, and one of his attorneys. Xie stated that he had changed his mind about the plea bargain because he had been talked into accepting it by one of his attorneys and by his wife, and "did not feel right" about it.

The trial court held a hearing on July 17, 1989 to consider Xie's motion to withdraw the guilty plea. At that time, Xie contended that a crucial factor in his decision to enter a guilty plea to the lesser charge was advice from one of his attorneys that he would not be eligible for parole for a minimum of twenty-three years if he were found guilty of aggravated murder with a gun specification. The trial court indicated that the attorney's advice was in fact erroneous. Had Xie been convicted of that offense, he would actually have been eligible for parole in seventeen years. Xie claimed that if he had known the true facts concerning parole eligibility, he would not have pleaded guilty to the lesser offense, but rather would have proceeded to trial on the original charge.

The trial court, in ruling on the motion to vacate the plea, found that no constitutional or criminal rule due-process violation had occurred. The trial court emphasized that Crim.R. 11 had been complied with to ensure that the plea was entered "knowingly, voluntarily, and intelligently." The trial court found that "the prosecution had a strong case" and that "there was a strong probability of defendant's conviction" if the case had gone to trial. The court stated that "parole eligibilities are mere estimates and not guarantees," and denied Xie's motion to vacate his guilty plea. Xie was later sentenced to an indefinite term of fifteen years to life for the offense of murder without a firearm specification.

Xie appealed the trial court's denial of the motion to withdraw the guilty plea to the Court of Appeals for Franklin County. He alleged that his attorney's incorrect advice regarding parole eligibility constituted ineffective assistance of counsel; that his guilty plea was unintelligent and involuntary due to the misinformation and also due to undue pressure from one of his attorneys to plead guilty; and that the trial court abused its discretion when it refused to grant the motion to vacate the guilty plea.

The court of appeals reversed the trial court's denial of the motion, finding that the trial court abused its discretion when it refused to allow Xie to withdraw his guilty plea. The court of appeals determined that Xie's reliance on the misinformation given by counsel made his decision to plead guilty unintelligent and involuntary. Reasoning that motions to withdraw guilty pleas should be freely allowed if made prior to sentencing, the court of appeals found that the trial court had ruled improperly on Xie's motion. While the court of appeals found that the misinformation given by Xie's attorney arguably did constitute ineffective assistance of counsel, the court of appeals did not rely on that reason in reversing the trial court.

The cause is now before this court upon the allowance of a motion and cross-motion for leave to appeal.

Michael Miller, Pros. Atty., and James V. Canepa, for appellant and cross-appellee.

Max Kravitz and David Kentner, for appellee and cross-appellant.

ALICE ROBIE RESNICK, Justice.

The state now appeals, asserting that the trial court did not abuse its discretion in refusing to allow Xie to withdraw his guilty plea; and that Xie's alleged reliance on the misinformation of his attorney did not render the guilty plea unintelligent and involuntary. Xie cross-appeals, contending that the misinformation tendered by his attorney constituted ineffective assistance of counsel of such a degree that the guilty plea should be vacated on that ground.

The court of appeals based much of its decision to reverse on the role the erroneous information regarding parole eligibility supplied by counsel played in Xie's decision to plead guilty. There is no doubt that the parole eligibility information given to Xie was erroneous. His attorney advised him that the minimum amount of time he would serve before parole eligibility if convicted of aggravated murder with a firearm specification would be twenty-three years. However, when the good-behavior reduction contained in Ohio Adm.Code 5120-2-05(A) is factored in, the minimum time to be served before parole eligibility is seventeen years. 1

We initially address the claim of ineffective assistance of counsel because it has strong ramifications on the other issues involved in this case.

I

Xie, in his cross-appeal, argues that the misinformation concerning his parole eligibility constitutes ineffective assistance of counsel which mandates granting the motion to withdraw his guilty plea. To prevail on this claim, Xie must meet the test for ineffective assistance of counsel established in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831, 837; State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

The Strickland test was applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88 L.Ed.2d at 209. Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty * * *." Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210; see Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

At the hearing on the motion to withdraw his guilty plea, Xie testified that the fear of serving twenty-three years before parole eligibility was a major factor inducing him to plead guilty to the lesser charge. Xie contended that, had he known he would be eligible for parole in a minimum of seventeen years if convicted of the indicted offense, he would have chosen to go to trial and risk conviction for that offense.

The trial court, in its ruling on the motion to vacate the plea, stated that "parole eligibilities are mere estimates and not guarantees and do not rise to the level of promises. * * * Representations by defense counsel about parole eligibility are at best hopeful, good faith estimates * * *." Xie in essence contends that this reasoning does not properly reflect the degree of importance he placed on parole eligibility in the plea-bargaining process. We note that a defendant who bases a plea decision on parole eligibility will often be relying on a factor beyond the prediction of defense counsel, and beyond the actual control of a defendant. 2

While defense counsel's advice was clearly incorrect in this case, Xie has not satisfied the standards of the Strickland- Hill test for ineffective assistance of counsel. To satisfy the second prong of the test, Xie must show that he would not have pleaded guilty to the reduced charge if his attorney's advice had been correct. Xie attempted to make this showing at the hearing to vacate his plea before the trial court, but was unsuccessful. The trial court considered Xie's contention at that time, and was not convinced that the misinformation justified vacation of the plea.

We decline to second-guess the trial court's finding on this question. The trial court was in a better position to evaluate the motivations behind the guilty plea than is an appellate court which is only reviewing a record of the hearing. State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, though it concerned a motion to withdraw a guilty plea made after sentencing, offers guidance here. We defer to the judgment of the trial court, because "the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith, 49 Ohio St.2d at 264, 3 O.O.3d at 404, 361 N.E.2d at 1326. We find no evidence of an abuse of discretion by the trial court which requires vacation of the guilty plea solely because counsel offered Xie faulty advice. We thus affirm the court of appeals' decision on the issue of ineffective assistance of counsel, but use different reasoning to reach our result.

II

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