Guilty Pleas


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office


State v. Rohrbaugh, 178 Ohio App. 3d 211, 2008-Ohio-4781 – Syllabus: “A defendant may plead guilty to an indictment that was amended to change the name and identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.”
Cincinnati v. Smith, 180 Ohio App. 3d 587, 2009-Ohio-143 – Defendant wanted a jury trial on a new prostitution charge, but pled no contest as to probation revocation. Judge was willing to continue probation if she plead to the solicitation, but the defendant held to her wish to have a jury trial. Judge gave her 180 days on the probation violation and suggested she reconsider jury trial on the new charge which carried a maximum of 60 days. She folded and probation was continued with additional conditions. Plea was coerced. Reversed.
Iowa v. Tovar (2004), 124 S.Ct. 1379 -- Less is required in obtaining a waiver of the right to counsel upon entry of a guilty plea than when a defendant elects to go to trial unrepresented. The Iowa Supreme Court had held it was necessary to advise unrepresented defendant of the risk a viable defense might be overlooked and that counsel could provide an independent opinion as to the advisability of pleading guilty. The Sixth Amendment does not require these admonitions.
State v. Watkins, 99 Ohio St. 3d 13, 2003-Ohio-2419 -- The Traffic Rules apply to non-felony OMVI cases. ¶ 28: "Crim. R. 11(C) sets forth how a judge should explain those rights to a defendant. However, there are no such constitutionally mandated informational requirements for defendants charged with misdemeanors. The protections that the Criminal Rules provide to felony defendants should not be read into the Ohio Traffic Rules, which deal only with misdemeanor offenses." Syllabus: "When a defendant charged with a petty misdemeanor traffic offense pleads guilty or no contest, the trial court complies with Traf. R. 10(D) by informing the defendant of the information contained in Traf. R. 10(B)."
State v. Baker, 170 Ohio App. 3d 331, 2006-Ohio-7085 -- A plea is not knowing, intelligent and voluntary when the court misleads the defendant as to the sentence he will receive. Defendant pled no contest to aggravated vehicular assault. The plea exchange plainly indicated the judge was receptive to the recommended sentence of three years, with judicial release and alcohol treatment after one year. But a five year sentence was imposed including three years of mandatory time.
State v. Oklata, 156 Ohio App. 3d 123, 2004-Ohio-569 -- Though State v. Watkins, 99 Ohio St. 3d 13, 2003-Ohio-2419 may reduce the court's obligations in taking a no contest plea in a traffic case, failure to inform the defendant of the effect of his no contest plea, as outlined in Traffic Rule 10(B)(2), requires reversal. Also see State v. Smith, Wyandot App. No. 16-03-17, 2004-Ohio-1953 involving a charge of assault.
State v. Gordon, 149 Ohio App. 3d 237, 2002-Ohio-2761 -- Defendant characterized his guilty plea as voluntary, but under duress, explaining that his hands were tied if he was forced to go to trial with the attorney he had tried unsuccessfully to have discharged. Reversed. Even though the court found no error in the refusal to appoint new counsel, the court should have refused to accept the plea, or in an abundance of caution, appointed a new attorney.
Kercheval v. United States (1927), 274 U.S. 220, 223 -- "A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is in itself a conviction. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences."
Machibroda v. United States (1982), 368 U.S. 487, 493 -- "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void." Also see Brady v. United States (1970), 397 U.S. 742; Santobello v. New York (1971), 404 U.S. 257; State v. Griffey (1973), 35 Ohio St. 2d 101.
North Carolina v. Alford (1970), 400 U.S. 25 -- A guilty plea may be voluntary, knowing and understanding, where entered to avoid a greater penalty, though the defendant denies guilt.
State v. Jackson (1980), 68 Ohio App. 2d 35 -- While it is constitutionally permissible to accept a guilty plea in the face of continued protestations of innocence, the court is not required to do so. There is no constitutional right to plead guilty.
State v. Padgett (1990), 67 Ohio App. 3d 332 -- In the face of continued protestations of innocence despite a guilty plea, the court's inquiry must address whether the defendant has rationally decided to enter the plea, including consideration of the strength of the evidence against the defendant.
State v. Gales (1998), 131 Ohio App. 3d 56 -- Defendant protested his innocence at sentencing hearing, but not at the time plea was entered. Alford doesn't apply. Nor did misstatements with respect to maximum fine, bad time and post-release control invalidate plea.
Stacy v. Van Coren (1969), 18 Ohio St. 2d 188 -- A guilty plea to a lesser offense, while represented by counsel, constitutes a waiver of the constitutional right to indictment by a grand jury.
Boykin v. Alabama (1969), 395 U.S. 238 -- Waiver of constitutional rights, including compulsory self-incrimination, jury trial and confrontation, will not be inferred from a silent record. Without a proper record cannot conclude that the defendant voluntarily and understandingly entered his plea of guilty. Also see State v. Griffey (1973), 35 Ohio St. 2d 101 for the pre Rule 11 view of when the record established a defendant's plea of guilty in a felony case was voluntarily, knowingly and intelligently made.
State v. Richter (1993), 92 Ohio App. 3d 395 -- A court does not have authority to accept a guilty plea, then dismiss the charge. Compare Strickland v. Ohio Bureau of Motor Vehicles (1994), 92 Ohio App. 3d 755 -- BMV suspended license under the implied consent law. Defendant subsequently entered a conditional plea of guilty and entered a diversion program. Written plea did not provide for it to be withdrawn if program was not completed, but did state that plea would not be accepted and charge would be dismissed upon successful completion. Held that the Bureau was required to reinstate license.
Cuyahoga Falls v. Simich (1982), 5 Ohio App. 3d 10 -- Placement in alcohol abuse diversion program involved signing a guilty plea form with the understanding the charge would be dismissed if the defendant completed the form. When the defendant failed to do so, the form was submitted to and accepted by the court. Held that this was improper and that the plea was not voluntarily made in accordance with the applicable rules.
State v. Bolin (1998), 128 Ohio App. 3d 58 -- The competency standard for entry of a guilty plea is the same as applicable to competency to stand trial. Godinez v. Moran (1993), 509 U.S. 389 followed.
State v. Borchers (1995), 101 Ohio App. 3d 157 -- Defendant's claim that he was not competent to enter guilty pleas found not to be supported by the record. Competency is presumed and no hearing on that issue is required when the issue has not been raised.
State v. Bowen (1977), 52 Ohio St. 2d 27 -- Syllabus: "The inducement of a guilty plea, in part, by the prosecutor's promise to recommend to the trial court the imposition of concurrent sentences notwithstanding the fact that R.C. 2929.41 expressly provides for consecutive sentences under the circumstances (parole violator with new conviction), negates the requisite voluntary and knowing character of the plea and thus voids the plea."
State v. Byrd (1980), 63 Ohio St. 2d 288 - Syllabus: "A trial judge's participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea." Also see State v. Walker (1989), 61 Ohio App. 3d 768 -- It was improper for a judge to encourage the defendant to plead guilty by telling him trial was futile because of the number of prior convictions and weakness of his defense.
Hill v. Lockhart (1985), 474 U.S. 52 -- The two part test for measuring claims of ineffective assistance of counsel set forth in Strickland v. Washington (1984), 466 U.S. 668, at 687, applies to guilty plea challenges based on ineffective assistance of counsel.


State v. Dye, 127 Ohio St. 3d 357, 2010-Ohio-5728 – Defendant was driving under the influence when his truck struck the victim, causing severe injuries. Victim died seven years later. By then the defendant had pled guilty aggravated vehicular assault and completed the maximum eighteen month sentence. Though the defendant pled guilty to the indictment, specifications were deleted and the prosecutor told the defendant bond would be continued until sentencing. The prosecutor did not reserve the right to reindict for homicide in the event the victim died. Court follows State v. Carpenter (1993), 68 Ohio St. 3d 59, where the syllabus held, “The state cannot indict a defendant for murder after the court has accepted a negotiated guilty lea to lesser offense and the victim later dies of injuries sustained in the crime, unless the state specifically reserves the right to file additional charges on the record at the time of the defendant’s plea.”
State v. Griggs, 103 Ohio St. 3d 85, 2004-Ohio-4415 -- Syllabus: "A defendant who has entered a guilty plea without asserting actual innocence is presumed to understand that he has completely admitted his guilt. In such circumstances, a court's failure to inform the defendant of the effect of his guilty plea as required by Crim. R. 11 is presumed not to be prejudicial." Applies to both felony and misdemeanor cases.
State v. McQueeney, 148 Ohio App. 3d 606, 2002-Ohio-3731 -- A guilty plea precludes appealing a suppression issue. It is also an implied admission of sanity. No error found where insanity plea was not formally withdrawn, Rule 11 was complied with, and competency does not appear to have been an issue.
State v. Carpenter (1993), 68 Ohio St. 3d 59 -- Syllabus: "The state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant's plea."
Menna v. New York (1975), 423 U.S. 61 -- Guilty plea does not bar appeal of a double jeopardy issue. Also see Blackledge v. Perry (1974), 417 U.S. 21.
State v. Kelley (1991), 57 Ohio St. 3d 127 -- Syllabus: "(1) A plea of guilty waives a defendant's right to challenge his or her conviction on statutory speedy trial grounds pursuant to R.C. 2945.71(B)(2). (Montpelier v. Greeno [1986], 25 Ohio St. 3d 170...applied and followed.) (2) A plea of guilty following a trial and prior to sentencing effectively waives all appealable errors which may have occurred at trial, unless such errors are shown to have precluded the defendant from voluntarily entering into his or her plea pursuant to the dictates of Crim. R. 11 and Boykin v. Alabama (1969), 395 U.S. 238, 243." Also see State v. Spates (1992), 64 Ohio St. 3d 269 -- Guilty plea waives any claim of denial of right to counsel at preliminary hearing. State v. Barnett (1991), 73 Ohio App. 3d 244 -- Claims of ineffective assistance of counsel are waived except as affect whether plea was less than knowing or voluntary. Court should have conducted a hearing instead of focusing on fact a plea was entered.
Huber Heights v. Duty (1985), 27 Ohio App. 3d 244 -- Unlike a no contest plea, a guilty plea is a waiver of the right to appeal an erroneous ruling on a pretrial motion to suppress evidence. Also see Menna v. New York (1975), 432 U.S. 61, 63-63, fn. 2.
State v. Riggins (1980), 68 Ohio App. 2d 1 -- (1) Errors which deprive the trial court of subject matter jurisdiction are not waived by the entry of a guilty plea. (2) Entry of a guilty plea does not waive appeal of constitutional deficiencies in juvenile bindover proceedings.

Compliance with Criminal Rule 11 - Felony Cases

State v. Barker, 129 Ohio St. 3d 472, 2011-Ohio-4130 – Syllabus: “(1) A trial court complies with Crim.R. 11(C)(2)(c) when its explanation of the constitutional right to compulsory process of witnesses is described to the defendant during the plea colloquy as the ‘right to call witnesses to speak on your behalf.’ (2) An alleged ambiguity during a Crim. R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea.” In State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶29 the court stated, “Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey those rights to the defendant.” Barker does not abrogate this language. It only allows consideration of the plea form when the right has been included in the oral colloquy. See ¶21-26.
State v. Clark, 119 Ohio App. 3d 239, 2008-Ohio-3748 – Defendant pleaded guilty to aggravated murder and was sentenced to twenty-eight years to life. Simply stating the maximum term of life without parole would have been sufficient. However, the judge‘s advisement muddling parole and postrelease control misinformed the defendant, since unclassified felonies are not subject to postrelease control. Thus the plea was not entered knowingly, intelligently and voluntarily.
State v. Byrd, 178 Ohio App. 3d 646, 2008-Ohio-5515, ¶30 – "We hold that when a defendant on whom a mandatory prison sentence is imposed enters a plea of guilty or no contest, before accepting he plea the court must determine the defendant‘s understanding that the mandatory sentence renders the defendant ineligible for alternative sentences of probation or community-control sanctions. Crim. R. 11(C)(2)(a). However, though the mandatory sentence likewise renders the defendant ineligible for judicial release during his prison term, R.C. 2929.20(A), the court is not required by Crim. R. 11(C)(2)(a) to determine the defendant‘s understanding of that fact, absent notice of some misstatement or misrepresentation that causes the determination to be "applicable" in order to ensure that the defendant‘s plea of guilty or no contest is knowing, intelligent, and voluntary."
State v. Silvers, 181 Ohio App. 3d 26, 2009-Ohio-687 – Trial court failed to substantially comply with Crim. R. 11 because it failed to correct incorrect statements within the plea form that he did not face a mandatory prison term and that he was eligible for judicial release.
State v. Jones, 181 Ohio App. 3d 47, 2009-Ohio-483 – In 2000 the defendant was charged with possession of about a kilo of cocaine, with a major drug offender specification. In exchange for his testimony he was allowed to plead to F-4 preparation of drugs for sale, and was sentenced to two years of community control. Later in 2000 he was found in violation, and the suspended sentence of 17 months was imposed. There was no immediate appeal, but in 2008 he was allowed a delayed appeal, apparently challenging his plea on Rule 11 grounds. The opinion does not explain where he had been during the intervening years. Reversed as the court did not properly assure he understood the nature of the offense he pled to. Preparation for sale is not a lesser included offense to possession – in fact the opposite is true. At the plea hearing nothing was said about the elements of the offense to which a plea was entered.
State v. Barajas-Larios, 178 Ohio App. 3d 613, 2008-Ohio-5460 – Drug charge carried a mandatory sentence of ten years. Parties jointly recommended a sentence in the 3-7 year range. Though the sentence was jointly recommended it remains reviewable, notwithstanding R.C. 2953.08(D)(1), because the recommended sentence was not authorized by law. A plea induced by the promise that cannot be fulfilled is not made knowingly, intelligently and voluntarily.
State v. Johnson, 182 Ohio App. 3d 628, 2009-Ohio-1871 – Shared misunderstanding as to eligibility for judicial release after serving four years rendered plea invalid. On the eleven year aggregate sentence imposed, the defendant would not be eligible for judicial release.
State v. Asberry, 173 Ohio App. 3d 443, 2007-Ohio-5436 – Plea was not voluntary where it was represented that the state only sought community control and the judge did not forewarn the defendant it would not be bound by any sentencing agreement. A different judge presided at sentencing. A different prosecutor appeared and defense counsel failed to call the agreement to the court‘s attention.
State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200 – Syllabus: "A trial court must strictly comply with Crim.R. 11(C))(C) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one‘s accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant‘s plea is invalid. (Crim.R. 11(C)(2)(C), applied.)" Right to require proof of guilt beyond a reasonable added to the list of constitutionally protected rights. As to nonconstitutional rights the defendant must show prejudice. Dissenters would not require a showing of prejudice as to constitutional rights, but would allow the prosecution to rebut presumption plea is invalid because the oral advisement was imperfect. Followed: State v. Woods, 192 Ohio App. 3d 494, 2011-Ohio-727.
State v. Barkley, 185 Ohio App. 3d 686, 2009-Ohio-5549 – Plea colloquy is not required to include an advisement community control may be required if court costs are not paid. Compare State v. Moss, 186 Ohio App. 3d 787, 2010-Ohio-1135, ¶16-21 – Advice at the sentencing hearing that failure to pay costs may lead to serving community service is mandatory.
State v. Rowbothan, 173 Ohio App. 3d 642, 2007-Ohio-6227 – Reversed for failure to mention compulsory process and requirement of proof beyond a reasonable doubt during plea colloquy.
Bradshaw v. Stumpf (2005), 125 S.Ct. 2398 -- A judge need not personally explain the elements of an offense to the defendant. It is sufficient for counsel to represent at the plea hearing that they had been explained. While the prosecutor later made inconsistent factual arguments in the trial of a codefendant, Stumpf failed to demonstrate how this affected the knowing, voluntary, and intelligent nature of his plea. However this inconsistency requires remand for further consideration of sentencing claims.
State v. Gooch, 162 Ohio App. 3d 105, 2005-Ohio-3476 -- The right to assistance by appointed counsel does not have to be covered in the plea colloquy. It must be separately addressed if the defendant appears without counsel, but this is not required if the defendant appears with counsel. The court need not advise the defendant regarding consecutive sentences.
State v. Greathouse, 158 Ohio App. 3d 135, 2004-Ohio-3402 -- Crim. R. 11(C) does not require the court establish the factual basis for the offense before accepting a guilty plea. Instead it must assure the defendant understand the nature of the charge. It is the facts in the indictment that are admitted, not the facts proffered at the plea hearing. But the defendant's statement he did not return a car because it had been stolen from him indicated a lack of understanding of the nature of the charge, requiring reversal.
State v. Corbin (2001), 141 Ohio App. 3d 381 -- Plea colloquy did not meet Crim. R. 11 obligations that the defendant understand the nature of the charge and the maximum penalty he faced. Confusion arose from differential treatment of crack and ordinary cocaine. The offense the plea was entered to was treated as a first degree felony, on which the agreed sentence would be five years. In fact it was a third degree felony and five years was the maximum.
State v. Singh (2000), 141 Ohio App. 3d 137 -- Telling the defendant, "You could testify but you need not testify if you desire not to" does not adequately inform the defendant of his constitutional right against self-incrimination, which also embraces the right not to be compelled to testify, and the right to have the jury informed that the failure to testify may not be used against an accused.
State v. Ballard (1981), 66 Ohio St. 2d 473, 478 -- Clarifying that compulsory process is among the constitutional rights requiring strict compliance in the Crim R. 11 colloquy: "We hold that a guilty plea is constitutionally infirm when the defendant is not informed in a reasonable manner at the time of entering his guilty plea of his rights to a trial by jury and to confront his accusers, and his privilege against self-incrimination, and his right of compulsory process for obtaining witnesses in his behalf." Followed: State v. Green, Mahoning App. No. 02 CA 217, 2004-Ohio-6371 (mention in plea form not enough). Also see State v. Cummings, 107 Ohio St. 3d 1206, 2005-Ohio-6506, appeal dismissed as improvidently granted, where the court of appeals had found the words "you have a right to call witnesses to appear on your behalf" insufficient.
State v. Wilson, Cuyahoga App. No. 82770, 2004-Ohio-499 -- Defendant appealed imposition of maximum and consecutive sentences following a plea bargain dropping numerous counts. Sua sponte the court of appeals reverses, finding plain error in failure to advise regarding the right to compulsory process. It is not enough to merely mention 'the right to bring in witnesses to this courtroom to testify for your defense." There must be advice as to the right to have a subpoena enforced.
State v. Pitts 159 Ohio App. 3d 852, 2005-Ohio-1389 -- While generally a court need not advise the defendant that sentences may be ordered served consecutively, it must do so when consecutive sentences are required by law. State v. Johnson (1988), 40 Ohio St. 3d 130, distinguished.
State v. Clark, Pickaway App. No. 02CA12, 2002-Ohio-6684 -- Plea was not voluntary due to the trial court's failure to ascertain that the defendant understood the sentence jointly recommended by defense counsel and the prosecutor was not binding on the court, which instead imposed the maximum.
State v. Ruby, Adams App. No. 03CA780, 2004-Ohio-3708 -- Mistakenly advising the defendant he was eligible for community control meant the plea was not knowing or voluntary.
State v. Doak, Columbiana App. No. 03 CO 15, 2004-Ohio-1548 -- At the time a plea is entered, if the defendant informs the court he is taking medication, the court must ensure the defendant is competent to enter the plea. A hearing is not necessary. Competency may be established through the plea colloquy. Though the defendant's medication could cause confusion, he had not taken it on the morning of the plea and gave no indication the plea was not knowing and voluntary.
State v. Lamb, 156 Ohio App. 3d 128, 2004-Ohio-474, ¶16 -- "We...therefore hold that in order to substantially comply with Crim. R. 11(C)(2)(a), a trial court must advise a defendant of any mandatory post-release control at the time of a defendant's plea." When post-release control is mandatory, it is a part of the maximum sentence. Court only advised that post-release control was a possibility. Also see State v. Prom, 12th Dist No. CA2002-01-007, 2003-Ohio-6543; State v. Perry, 8th Dist No. 82085, 2003-Ohio-6344, ¶ 10; State v. Jones (May 24, 2001), 8th Dist. No. 77657; State v. Windle, Hocking App. No. 03CA16, 2004-Ohio-6827.
State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085 -- Syllabus: "(1) When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence. (2) When a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of R.C. 2929.19(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing." Omission does not preclude postrelease control, but it may not be imposed unless it is a part of the trial court's judgment.
State v. White, 155 Ohio App. 3d 215, 2003-Ohio-5816 -- Failure to advise on bad time does not render a guilty plea involuntary and unknowing as the bad time was held unconstitutional in State ex rel Bray v. Russell (2000), 89 Ohio St. 3d 132.
State v. Stewart (1977), 51 Ohio St. 2d 86 -- When judging whether a guilty plea was taken in compliance with Criminal Rule 11, the standard is whether there was substantial compliance with the rule, not whether the rule was scrupulously adhered to. Compare State v. Caudill (1976), 48 Ohio St. 2d 342. Also see State v. Billups (1979), 57 Ohio St. 2d 31.
State v. Gibson (1986), 34 Ohio App. 3d 146 -- A court must advise a defendant as to critical constitutional rights before accepting a guilty plea. As to other matters, substantial compliance with Criminal Rule 11 is required. This obligation is not met when the court fails to advise the defendant of the maximum penalty applicable. Also see State v. Wilson (1978), 55 Ohio App. 2d 64, 65-66.
State v. Williams (1989), 65 Ohio App. 3d 70 -- Criminal Rule 11 was not complied with when court failed to inform the defendant of the consequences of pleading guilty to a firearm specification.
State v. Calvillo (1991), 76 Ohio App. 3d 716 -- There was not substantial compliance with Crim. R. 11 where the court failed to advise the defendant of the maximum penalty or that he was ineligible for probation where the circumstances did not indicate that the defendant knew he was ineligible. Also see State v. Colbert (1991), 71 Ohio App. 3d 734 where the defendant expected shock probation would be granted.
State v. Strawther (1978), 56 Ohio St. 2d 298 -- There was no showing of prejudicial effect where the court failed to orally advise a defendant of his right to compulsory process, but the written plea form covered this matter and a jury had already been empaneled, indicating the time for issuing subpoenas had already passed.
State v. Nero (1990), 56 Ohio St. 3d 106 -- Syllabus: "Where the circumstances indicate that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim. R. 11(C)(2)(a), the trial court's acceptance of the defendant's guilty plea to the nonprobationable crime of rape without personally advising the defendant that he was not eligible for probation constitutes substantial compliance with Crim. R. 11..."
State v. Smith (1986), 31 Ohio App. 3d 26, 27 -- The trial court has no duty to inform a defendant of his probation ineligibility where the facts then before it do not preclude probation. Also see State v. Walton  (1977), 50 Ohio App. 2d 386.
State v. Reynolds (1988), 40 Ohio St. 3d 334 -- Syllabus: "Where a criminal defendant represented by counsel is charged with a violation of R.C. 2923.12(A), the trial court is not required, pursuant to Crim. R. 11(C), to apprise him of the affirmative defenses thereto contained in R.C. 2923.12(C) prior to accepting his plea of guilty to the charge." But see State v. Dickey (1984), 15 Ohio App. 3d 151 as to proceeding on motion to withdraw guilty plea.
State v. Johnson (1988), 40 Ohio St. 3d 130 -- Syllabus: "Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim. R. 11(C)(2), and does not render the plea involuntary."
State v. Flint (1986), 36 Ohio App. 3d 4 -- No reversal for non- compliance with Crim. R. 11 where defendant was partially advised of additional consequences he faced as a parole violator, but not advised concerning consecutive time on finding of parole violation. Also see State v. Waddell (1985), 26 Ohio App. 3d 33.
State v. Fletchinger (1977), 51 Ohio App. 2d 73 -- Guilty plea was erroneously accepted where the less serious offense was not a lesser-included offense, was one which the defendant could not in fact have been charged with, given the facts of the case, and where court's failure to explain the mens rea element of the lesser offense prevented there from being a proper waiver of rights. (Case is something of an aberration and may have been an effort to dump the defendant from the frying pan into the fire.)
State v. Green (1998), 81 Ohio St. 3d 100 -- Syllabus: When a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel is required to examine witnesses and to hear any other evidence properly presented by the prosecution in order to make a Crim. R. 11 determination as to the guilt of the defendant." For a subsequent case attempting to avoid this rule, see State v. Bolin (1998), 128 Ohio App. 3d 58.
State ex rel. Henry v. McMonagle (2000), 87 Ohio St. 3d 543 -- If the indictment is amended to eliminate death penalty specifications, a single judge may take a guilty plea to aggravated murder.
State v. McCann (1997), 120 Ohio App. 3d 505 -- Failure to mention right to jury trial invalidated plea. File did not contain jury waiver form and majority refuses to give weight to judge's admonition at a suppression hearing that the defendant listen carefully to the testimony because "it is going to come right back in front of 12 people."
State v. Shields (1997), 119 Ohio App. 3d 807 -- Failure to mention constitutional right against self-incrimination invalidated guilty plea.
State v. DeArmond (1995), 108 Ohio App. 3d 239 -- The entry of a guilty plea is a grave decision by an accused to dispense with a trial. In taking a plea, a court must assure the defendant is meaningfully informed as to his constitutionally mandated rights. Though the court did not expressly mention the right to jury trial in the Rule 11 colloquy, majority concludes reference to trial, content of plea form, and other inquiries satisfied Rule 11. See dissent. Also see State v. Anderson (1995), 108 Ohio App. 3d 5.
State v. Higgs (1997), 123 Ohio App. 3d 400 -- (1) The state's burden of proof beyond a reasonable doubt is of constitutional dimension, requiring strict compliance with Crim. R. 11. (2) Failure to follow up after the defendant indicated he didn't understand the nature of the offense, and later denied having a gun, made the plea involuntary with respect to both the offense and firearm specification. (3) Misstatement of the penalty invalidated the plea. (4) Acceptance of a guilty plea violates due process when the defendant pleads to a lesser offense that is not a lesser included offense, the court fails to explain the additional elements, and under the facts of the indictment the defendant could not be convicted of that offense.
State v. Grubbs (1998), 129 Ohio App. 3d 730 -- Mentally limited defendant pleading guilty to robbery said he "didn't use no force" during plea colloquy. Reversed as plea was not entered with the necessary understanding of the charge against him.
State v. Caplinger (1995), 105 Ohio App. 3d 567 -- Indictment and warrant mistakenly referred to offense as a fourth degree felony, and at the change of plea hearing the judge advised the defendant of the penalties for such offenses. At the sentencing hearing, the offense was properly recognized at a third degree felony. Reversed as plain error. Misstating maximum penalty by five years rendered plea was involuntary.
Garfield Heights v. Mancini (1997), 121 Ohio App. 3d 155 -- Failure to inform defendant as to penalty invalidated no contest plea. Also see State v. Moore (1996), 111 Ohio App. 3d 833.
State v. Holder (1994), 97 Ohio App. 3d 486, 493-494 -- "Since a Crim. R. 11 hearing requires the trial court's examination of an accused's free will to waive constitutional and statutory rights, an accused who knows he is innocent and professes his innocence but voluntarily and knowingly pleads guilty to that offense does so at his own peril, for the law can only go so far to protect the innocent and even the guilty. The law cannot protect an innocent man with sound mind who pleads guilty to the offense he is charged with committing, when he knows he did not have to so plead."
State v. Swift (1993), 86 Ohio App. 3d 407 -- While courts have not held that the elements of an offense must be explained in detail when a guilty plea is taken, where the colloquy between the judge and the defendant makes it unclear whether the defendant understand the meaning of an element of the offense he was pleading guilty to.
State v. Blair (1998), 128 Ohio App. 3d 435 -- Colloquy mentioned plea was to attempted rape but did not touch on whether defendant understood the nature of such a charge. Reversed.
State v. Scott (1996), 113 Ohio App. 3d 401 -- Majority finds substantial compliance standard applicable to statutory rights was sufficient for advice regarding state having to prove guilt beyond a reasonable doubt. Dissent correctly indicates strict compliance was required as to constitutional right to have proof established beyond a reasonable doubt, even though it was not among the specific constitutional rights listed in Boykin v. Alabama (1969), 395 U.S. 238. 10th Circuit generally follows the dissent.
State v. Thomas (1996), 116 Ohio App. 3d 530 -- Court erred when it accepted no contest plea without advising defendant of his right to compulsory process. It was not enough to inform him he would have the right to present his own evidence during the trial.
State v. Filchock (1996), 116 Ohio App. 3d 572 -- Court erred in accepting no contest plea to OMVI and other charges without informing the defendant of the effect of his plea, apprising him of his right to counsel and obtaining a waiver of counsel, and making certain that the plea was knowing and voluntary in the constitutional sense. Judge faulted for having proposed the plea bargain, promised what sentence he would give, and implied things would come out worse otherwise. Due process violation found. Also see State v. Flichock (1998), 126 Ohio App. 3d 66.
State v. Robinson (1998), 127 Ohio App. 3d 395 -- Advice as to the right to appointed counsel pursuant to Crim. R. 11(C)(1) does not apply when the defendant is represented by retained counsel.
State v. Mikulich (1996), 116 Ohio App. 3d 787 -- Defendant with an extensive psychiatric history pleaded guilty. Though exchange with bench covered to a degree whether voluntary drug use might be the basis for an insanity plea, the general defense of insanity was not addressed. Plea held not to have been knowing intelligent and voluntary.
State v. Mulhollen (1997), 119 Ohio App. 3d 560 -- Criminal Rule 11 (F) requires putting on the record which charges are being pled to and which charges are to be dismissed. Generally, the rule does not apply to promises made by the state concerning sentencing matters.
In re Terrance P. (1998), 129 Ohio App. 418 -- When juvenile's responses indicated possible lack of understanding of the rights being waived, defense counsel took over inquiry, securing damaging admissions. Reversed as ineffective assistance of counsel.
State v. Hawk (1977), 55 Ohio App. 2d 231, 236 -- When there is a reversal based on a defect in the taking of a guilty plea, the case returns to the status existing at the time the plea was accepted.
State v. Ishmail (1981), 67 Ohio St. 2d 16 -- Failure to raise on direct appeal noncompliance with Crim. R. 11 at the time a guilty plea was entered constitutes waiver, preventing that issue being litigated in a postconviction action.

Compliance with Criminal Rule 11 - Misdemeanor Cases

State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093 – Syllabus: "(1) In accepting a plea to a misdemeanor involving a petty offense, a trial court is required to inform the defendant only of the effect of the specific plea being entered. Crim.R. 11(E) construed. (2) To satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under Crim.R. 11(B)." Domestic violence charges arose from hitting fiancé‘s children with a bug zapper. Defendant‘s complaint in a motion to withdraw the guilty plea was that he should have been informed of the effects of a no contest plea as well – such plea would have allowed him to appeal a challenge to the validity of the DV statute. Lead opinion signed by three justices finds the court omitted informing the defendant that the "effect" of his guilty plea is a complete admission of guilt, but the omission was not prejudicial. Concurring/dissenting justice finds the defendant should have known what pleading guilty means. Three dissenting justices believe the court should have explained the effect of a no contest plea as well.
State v. Eckles, 173 Ohio App. 3d 606, 2007-Ohio-6220 -- Defendant pled guilty to felony OMVI and a 20-year look back specification. No error found in counsel initially stating that the defendant pled guilty as the plea was not accepted until after inquiry from the bench. Nor was the judge required to elaborate that every element had to be proven beyond a reasonable doubt, and that a decision not to testify could not be used against him or commented upon. But the court was required to fully advise as to the maximum penalty, including an additional mandatory term on the look-back specification. The court neglected to impose this term so despite winning the appeal the defendant faces a longer sentence upon remand.
State v. Hackathorn, Ashtabula App. No. 2004-A-0008, 2004-Ohio-6694 -- Sua sponte reversal as the court failed to advise defendant of his right to plead no contest. Based of the defendant's responses, the court should have referred the unrepresented defendant for a competency hearing, but was not under a duty to do so.
Westlake v. Kilbane (2001), 146 Ohio App. 3d 308 -- Rule 11 was not complied with when the court's remarks were addressed more to counsel that the defendant and referred only to the constitutional right to remain silent.
Cleveland v. Wanzo (1998), 129 Ohio App. 3d 664 -- Though Crim. R. 11(E), applicable to pleas in misdemeanor cases, only calls for the defendant to be informed of the effect of the plea, the court must advise the defendant of his rights in the same manner as in a felony case. The strict compliance standard applies to advice regarding constitutional rights. Prejudice is presumed from noncompliance.
State v. Bloom (1989), 44 Ohio Misc. 2d 20 -- Guilty plea to misdemeanor charges does not collaterally estop defendant from litigating same issues in related felony.

Immigration Law Consequences

R.C. 2943.031 -- Advice as to possible deportation, exclusion or denial of naturalization upon guilty or no contest pleas.
State v. Francis, 104 Ohio St. 3d 490, 2004-Ohio-6894 -- Syllabus: "A trial court accepting a guilty or no-contest plea from a defendant who is not a citizen of the United States must give verbatim the warning set forth in R.C. 2943.031(A), informing the defendant that conviction of the offense for which the plea is entered 'may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'" In ruling on motion to withdraw a guilty plea, a court may apply the substantial compliance standard and may consider the timeliness of the motion. The court expresses no opinion as to whether the defendant must show prejudice. See concurring and dissenting opinions. Also see State v. Encarnacion, 168 Ohio App. 3d 577, 2006-Ohio-4425.
State v. Yuen, Franklin App. No. 01AP-1410, 2002-Ohio-5083 -- There is no time limit for the filing of a motion to withdraw a guilty or no contest plea based on failure to advise in accordance with R.C. 2943.031. Compare State v. Tabbaa, 151 Ohio App. 3d 353, 2003-Ohio-299 interposing R.C. 1.47 to permit denial of motion when the staleness of the state's case would make the consequences of granting the motion unreasonable or absurd.
State v. Yanez, 150 Ohio App. 3d 510, 2002-Ohio-7076 -- (1) A motion to withdraw a guilty plea based on the failure to advise concerning immigration law consequences is not subject to the manifest injustice standard set forth in Crim. R. 32.1. If advice was not given, the plea must be vacated. (2) The court must personally address the defendant when providing the statutory advisement. Reference to the plea form is not enough. Substantial compliance with the statutory language is required. The statute is satisfied if the interpreter reads the warning in open court under the judge's supervision. Concurring judge believes strict compliance is required as the Eighth Circuit held in State v. Quran, 2002-Ohio-4917, ¶23.
State v. Traish (1999), 133 Ohio App. 3d 648 -- When resident alien pleaded guilty to domestic violence he was not advised in accordance with R.C. 2943.031. Trial court later dismissed a motion seeking in the alternative postconviction relief or to withdraw guilty plea, claiming it lacked jurisdiction as the case was on appeal. (1) Under the current version of R.C. 2953.21(C) the court could consider a postconviction action even while an appeal is pending. (2) Since citizenship status is not a matter of record cause must be remanded to the trial court. (3) Trial court has no discretion to deny motion provided advisement was required but not given, defendant is a non-citizen, and faces immigration law consequences. Compare State v. White (2001), 142 Ohio App. 3d 132 where procedural default is interposed.
State v. Arnold, Clark App. No. C.A. 02CA0002, 2002-Ohio-4977 -- R.C. 2943.031 advice is required when there is a guilty or no contest plea, but not when the defendant has been found guilty at trial.
State v. Rodriguez, Clark App. No. 01CA0062, 2002-Ohio-5489, vacating same case at 2002-Ohio-3568 -- A defendant must file a motion to withdraw his guilty plea in the trial court and make a showing that there is the potential for deportation. The issue may not simply be raised on appeal, citing a silent record. Also see State v. Abi-Aazar, 149 Ohio App. 3d 359, 2002-Ohio-5026.
State v. Abi-Aazar, 154 Ohio App. 3d 278, 2003-Ohio-4780 -- A motion to withdraw a guilty plea must be granted when there has not been substantial compliance with the purpose of the advisement regarding immigration law consequences. Case involved a plea in furtherance of intervention in lieu of conviction. For purposes of immigration law, a guilty plea to a drug offense triggered deportation proceedings, even though without a sentence it did not constitute conviction under Ohio law. As a catch-22 proposition, under Ohio law, the ruling on the motion to withdraw is not appealable until sentence has been imposed.
State v. Almingrad, 151 Ohio App. 3d 453, 2003-Ohio-295 -- The record must affirmatively establish the defendant is not a citizen. Failure to provide passport, affidavit or other documentation leads to affirmance. Also see Euclid v. Muller (1999), 134 Ohio App. 3d 737.
State ex rel. White v. Suster, 101 Ohio St. 3d 212, 2004-Ohio-719 -- The exclusive remedy for a 2943.031(D) motion to withdraw a guilty plea is direct appeal. Mandamus does not lie following repeated attempts to vacate plea by motion and appeal.
State v. White, 163 Ohio St. 3d 377, 2005-Ohio-4898 -- Court erroneously overruled a motion to withdraw guilty pleas filed years after the sentence had been served. Defendant was not under an affirmative duty to advise the court he was a noncitizen. Res judicata does not apply.
State v. Brown, 167 Ohio App. 3d 239, 2006-Ohio-3266 -- Drawing a parallel to Civil Rule 60(B), two of three judges think res judicata is relevant in reviewing postsentence motions to withdraw guilty pleas. See concurring opinion for the better view.
State v. Wahba, Cuyahoga App. No. 84012, 2004-Ohio-5978 -- In Cuyahoga County a defendant must show prejudice arising from the court's failure to advise on immigration law consequences.
State v. Sok, 170 Ohio App. 3d 777, 2007-Ohio-729 -- Defendant facing deportation to Cambodia sought to withdraw guilty plea. Though he had been advised of possible immigration law consequences, counsel incorrectly advised him that a plea to CCW would not be a problem. Denial of motion affirmed. See dissent.
State v. Odubanjo (1992), 80 Ohio App. 3d 329 -- While R.C. 2943.031 now requires that defendants be advised of the consequences of their plea if they are not U.S. citizens, court finds that the statute did not apply to defendant charged before the 1989 effective date. (Would seem pleas entered after 10-2-89 would have to include admonition.)
State v. Arvanitis (1986), 36 Ohio App. 3d 213 -- Headnote: "Whether defense counsel's failure to advise an alien defendant of the deportation consequences of a guilty plea results in an involuntary plea or can be grounds for showing ineffective assistance of counsel is to be determined on a case-by-case basis."
State v. Weber (1997), 125 Ohio App. 3d 120 -- A court must grant a motion to withdraw a guilty plea pursuant to R.C. 2943.031(D) if (1) the court failed to provide the advisement set forth in Division (A) about possible immigration law consequences, (2) such advice was required, (3) the defendant is not a U.S. citizen, and (4) conviction of the offense carries possible consequences under immigration law. In need not be shown that withdrawal of the plea is necessary to correct a manifest injustice or that the plea would not have been entered if proper advice had been given.

Motion to Withdraw Guilty Plea

Last updated 1/30/2018
State v. Morgan, 2d Dist. No. 2017-CA-29, 2018-Ohio-319. Guilty plea set aside because the lower court failed to substantially comply with Crim. R. 11(C)(2)(a). Defendant pled guilty to rape plus a three year firearm specification. Court accepted the guilty plea and ordered the preparation of a presentence investigation report. At sentencing court imposed a sentence of 10 years for the rape plus three years for use of the firearm for an aggregate total of 13 years’ imprisonment. But the trial court failed to inform the defendant at the time of the guilty plea that under R.C. 2929.13(F)(2) the rape count carried mandatory time and that he was ineligible for community control. The appeals court held “In the instant case, the State argues that the trial court substantially complied with Crim. R. 11(C)(2) because it expressly informed Morgan that he was subject to a mandatory three-year prison term  for the firearm specification attached to the rape count. However, a conviction for the firearm specification was contingent upon the trial court accepting Morgan’s guilty plea to the rape count. Furthermore, it is undisputed that the trial court failed to inform Morgan that he was subject to a mandatory prison term if it accepted his guilty plea to the rape count. The trial court also failed to inform Morgan that because the prison time was mandatory for a rape conviction, he was ineligible for community control sanctions in lieu of prison. In fact, the record establishes that the trial court did not even mention the possibility or impossibility of community control at the plea hearing.” Morgan at ¶ 14.
State v. Whitfield, 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139
Trial court’s failure to advise defendant that entire nine year sentence for trafficking in drugs was mandatory warranting post-sentence withdrawal of guilty plea.
State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509 – Syllabus: "(1) If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea wither by filing a motion to withdraw the plea or upon direct appeal. (2) If the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with Crim.R. 11 and the reviewing court must vacate the plea and remand the case." Court rejects waiver and substantial compliance claims.
State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577 – Syllabus: "A motion to withdraw a plea of guilty or no contest made by a defendant who has been given a void sentence must be considered as a presentence motion under Crim. R. 32.1."
State v. Smith, Franklin App No. 11AP-6, 2012-Ohio-465 – Defendant pled guilty to a registration violation following the enactment of S.B. 10. Trial court abused its discretion by denying a pre-sentencing motion to withdraw guilty plea based on claims S.B 10 did not apply.
State v. Mays, 174 Ohio App. 3d 681, 2008-Ohio-128 – In her motion to withdraw a guilty plea the defendant claimed she had been advised by counsel she would receive three days of jail time credit against her eight year sentence for each day she had already served. Though the court doubts this was the case, and notes the delay in filing the motion, a hearing was required because the facts alleged in support of the motion were unrebutted and would have required relief if true.
State v. Holin, 174 Ohio App. 3d 1, 2007-Ohio-6255 – Defendant with an IQ of 73 pled guilty to conspiracy to commit aggravated murder in a plot targeting four public officials with pipe bombs. She also faced prosecution in federal court. Motion to withdraw guilty plea properly denied in the view of the majority, which focuses on advance notice of the intent to plead and minimizes her claims of actual innocence and undue influence by counsel. Dissent notes the court is not appellant‘s guardian as to the advisability of withdrawing the plea and faults the majority for setting the bar so high that motions to withdraw guilty pleas need never be granted.
State v. Murphy, 176 Ohio App. 3d 348, 2008-Ohio-2382 – Applying the factors enumerated in State v. Griffin (2001), 141 Ohio App. 3d 551, pre-sentencing hearing motion to withdraw guilty plea should have been granted. At the plea hearing the parties and the judge appear to have believed placement in a treatment program was a possibility. Whether or not the defendant sincerely wished treatment is immaterial. Prejudice to the state resulting from allowing withdrawal may not be presumed. Timing of motion was reasonable as it followed the defendant learning placement in the treatment program he expressed an interest in was not a possibility.
State v. Tekulve, 188 Ohio App. 3d 792, 2010-Ohio-3604 – Defendant pled no contest to stealing a ball cap. As a result he was later bounced from a diversion program. Motion to withdraw no contest plea was denied. Affirmed. Defendant admitted taking cap and the circumstances do not suggest a manifest injustice.
State v. Bennett, 192 Ohio App. 3d 608, 2011-Ohio-961 – Defendant sought to withdraw his guilty plea prior to sentencing in a kiddie porn case. Claim he felt “rushed” doesn’t stand up to court’s offer of additional time. Rule 11 was meticulously complied with. Possible attack on search warrant affidavit would not have been viable in the court’s view.
State v. Turner, 171 Ohio App. 3d 82, 2007-Ohio-1346, ¶25-27 -- While the slayer may not be at fault in creating the situation giving rise to the affray, this does not bar raising self-defense on the basis that the defendant was engaged in unlawful activity, here at attempt to purchase marijuana. Counsel rendered faulty advice in this regard. Motions to withdraw guilty pleas and postconviction are alternative remedies for ineffective assistance of counsel claims. Hearing was required.
State v. Kidd, 168 Ohio App. 3d 382, 2006-Ohio-4008 -- An evidentiary hearing was required on a post-sentence motion to withdraw a guilty plea when the record provides a plausible basis for concluding the plea was less than knowing and voluntary due to ineffective assistance of counsel. Lab reports gave weight under five grams and plea was to a sale exceeding five grams. Lab report had not been obtained through discovery and was forwarded to the defendant after he was in prison.
State v. Tull, 168 Ohio App. 3d 54, 2006-Ohio-3365 -- Defendant sought to withdraw his no contest plea before sentencing, complaining that the amount of support ordered exceeded his income. The judge blew this off, saying that the amount ordered was only a matter for the domestic relations court. Denial of the motion was an abuse of discretion. Among the factors to be considered is whether the defendant has a meritorious defense. Inability to pay is an affirmative defense included in the nonsupport statute.
State v. Gonder, Greene App. No. 2003-CA72, 2004-Ohio-4051 -- Presentence motion to withdraw guilty plea should have been granted where defendant contended he was induced to plead guilty by former counsel's representation the racist nature of the county would prevent him receiving a fair trial.
State v. Young, Greene App. No. 2003 CA 89, 2004-Ohio-5794 -- Pre-sentence motion to withdraw guilty plea should have been granted where defendant was not aware of a line of defense and counsel failed to investigate adequately. Defendant's father said his son sometimes occupied the burgled premises, and that he had not been contacted by former defense counsel.
State v. Rand, Franklin App. No. 03AP-745, 2004-Ohio-5838 -- Initial entry did not state prison was mandatory. In a previous appeal it was held that the defendant was entitled to a resentencing hearing so the court could make the necessary finding that prison was mandatory. At this hearing the defendant moved to withdraw his guilty plea on the basis that the plea hearing did not comply with the Rule 11 requirement that the defendant be advised if he is ineligible for community control or judicial release. This is construed as a pre-sentence motion to withdraw a guilty plea, and such motions are to be freely granted, and here should have been.
State v. Williams, Franklin App. No. 03AP-1214, 2004-Ohio-6123 -- At the plea hearing the judge advised the defendant he would be eligible for judicial release since firearm specifications had been dropped. But it did not advise him he would be ineligible if he received consecutive sentences in excess of ten years. The sentences totaled eighteen years. Post-sentence motion to withdraw guilty plea required an evidentiary hearing, since the defendant's motion alleged facts, that if accepted as true, would establish manifest injustice.
State v. Dalton, 153 Ohio App. 3d 286, 2003-Ohio-3813 -- Post-sentencing motion to withdraw a guilty plea should have been granted to correct manifest injustice. Defendant, while on judicial release, was charged with two counts of pandering obscenity involving a minor. Counsel didn't realize both counts were based on fictional events in his journal, and advised him to plead guilty to one count. Because a constitutional distinction is drawn between real and fictional depictions of children, counsel rendered ineffective assistance. Since it is unlikely a guilty plea would have been entered had he been properly advised, motion to withdraw should have been granted.
State v. Davis, Clark App. No. 2003-CA-87, 2004-Ohio-5979 -- Reversal where plea colloquy did not touch on ineligibility for judicial release. Since the motion to withdraw the no contest plea was post-sentence, remanded for a hearing on whether there was manifest injustice insofar as the plea would not have been entered had there been such advice. Also see State v. Davis, 166 Ohio App. 3d 468, 2006-Ohio-1592.
State v. Norris, Champaign App. No. 2003-CA-25, 2004-Ohio-1483 -- Trial court abused its discretion in not conducting a hearing on a post-sentencing motion to withdraw a no contest plea, where the plea was uncounselled, the defendant did not know the meaning of "OMVI," the ticket was not checked to indicate whether the offense was a per se or impaired driving violation and the test was only .0334.
State v. Grigsby, Montgomery App. No. 02CA16, 2003-Ohio-2823 -- Hearing was required on post-sentence motion to withdraw guilty pleas. Pleas were entered mid trial. The record indicated only a judicial promise to consider the sentence recommended by the prosecutor, but affidavit of defense counsel indicated plea was induced by off the record judicial promise to follow that recommendation. Court declines prosecutor's invitation to refer defense counsel to Disciplinary Counsel for committing a fraud on the court by permitting in-court statements at odds with what was agreed to in chambers. (Would seem prosecutor would have been subject to referral as well.)
State v. Quinn, Miami App. No. 02CA54, 2003-Ohio-5743 -- Plea was entered in front of one judge on expectation the defendant would receive concurrent sentences, but the prosecutor failed to make this recommendation at sentencing before another judge, who imposed consecutive sentences. Motion to withdraw guilty pleas should have been granted.
State v. Pelphrey, 149 Ohio App. 3d 578, 2002-Ohio-5491 -- Defendant filed a motion to withdraw his guilty plea and alternately sought postconviction relief after new counsel discovered his predecessor represented both the defendant and one of the victims. Court was obliged to conduct a hearing.
State v. Cuthbertson (2000), 139 Ohio App. 3d 895, 898-899 -- "Some of the factors that are weighed in considering a presentence motion to withdraw a guilty plea include the following: (1) whether the state will be prejudiced by withdrawal, (2) the representation afforded to the defendant by counsel, (3) the extent of the Crim. R. 11 plea hearing, (4) the extent of the hearing on the motion to withdraw, (5) whether the trial court gave full and fair consideration to the motion, (6) whether the motion was reasonable, (7) the reasons for the motion, (8) whether the defendant understood the nature of the charges and potential sentences, (9) whether the accused was perhaps not guilty or had a complete defense to the charge." Applying these factors to a presentence motion to withdraw where the defendant maintained he was innocent but had been pressured to plead guilty, the motion should have been granted. Also see State v. McIntosh, 160 Ohio App. 3d 544, 2005-Ohio-1760.
State v. Griffin (2001), 141 Ohio App. 3d 551 -- Motion to withdraw a guilty plea should have been sustained where professed innocence, timeliness of the motion, confusion, and the judicial standard that such motions should be liberally granted were to be weighed against the prosecutor being placed back in the position of having to prove guilt. Prejudice will not be presumed from the prosecutor being put in such a position.
State v. Munger, Greene App. No. 2002CA 12, 2003-Ohio-314 -- Defendant who said he was bipolar sought to withdraw his guilty plea before being sentenced. Judge stated "(t)here's no doubt in my mind, Mr. Munger, that you don't understand everything that is going on here today...Doesn't it make you wonder a little bit that most everybody else involved in this case seems to understand it and you don't." With this recognition of the defendant's lack of understanding, the motion should have been granted.
State v. McNeil (2001), 146 Ohio App. 3d 173, 176 -- "The scope of the hearing to be held on a motion to withdraw a guilty plea should reflect the substantive merit of the motion itself." Majority faults the defendant for not vigorously reasserting his defense of alibi. Dissenting judge points out that the defendant himself was not given a opportunity to speak at the brief hearing conducted on the motion.
State v. Bush, Montgomery App. No. C.A. 19139, 2002-Ohio-4962 -- Based on defendant's claim he was promised workhouse time by counsel at the time the plea was entered, a hearing was required on his pre-sentencing motion to withdraw. Review of the tape of the plea hearing alone was not sufficient. The defendant's in-court statements at that time may have been part of an out-of-court understanding in furtherance of the plea bargain.
State v. Armstead (2000), 138 Ohio App. 3d 866 -- Guilty plea was entered after defense witnesses were excluded due to failure to provide reciprocal discovery. Court was obliged to conduct a hearing on motion to withdraw guilty plea made before sentencing. Ineffective assistance of counsel may have rendered plea less than knowing and voluntary.
State v. Glavic (2001), 143 Ohio App. 3d 583 -- Instead of imposing terms on each count the trial court imposed an aggregate sentence of two years. Prison sought clarification. Original sentence was vacated and individual terms were imposed. During that hearing the defendant asked to withdraw his guilty pleas. Court erred by not conducting a hearing on that request. Since original sentence was invalid, defendant did not have to demonstrate manifest injustice.
State v. Boshko (2000), 139 Ohio App. 3d 827 -- No hearing was required on a post-sentence motion to withdraw a guilty plea where the defendant failed to proffer facts demonstrating a manifest injustice.
State v. Martin (2000), 140 Ohio App. 3d 326 -- At the plea hearing the defendant was advised he would not be eligible for judicial release until he had served six months, but he was later given a seven year, eleven month sentence which required waiting five years. The court was not limited to imposing a sentence permitting judicial release after six months. Avenue for seeking relief is a motion to withdraw the guilty plea.
State v. Horch, 154 Ohio App. 3d 537, 2003-Ohio-5135 -- During plea colloquy defendant was mistakenly advised she would be eligible for judicial release after serving 180 days of a five year sentence. In fact she had to serve four years. Reversed as plea was not entered knowingly and intelligently.
State v. Florence, Allen App. No. 1-03-60, 2004-Ohio-1956 -- Post-sentence motion to withdraw a guilty plea should have been granted as mistaken advisement on eligibility of judicial release meant the plea was no knowing and voluntary.
State v. Caynor (2001), 142 Ohio App. 3d 424 -- Promptly filed post-sentence motion to withdraw a no contest plea should have been granted where the record failed to establish a proper waiver of the right to counsel. For eventual outcome, see State v. Caynor, Monroe App. No. 867, 2003-Ohio-3282.
State v. Aponte (2001), 145 Ohio App. 3d 607 -- "Defendant's agreement" provided called for the defendant to plead guilty to first degree felonies, then, if he fulfilled his obligations, the pleas could be withdrawn and pleas entered to less serious offenses. Since the court, not the prosecutor, had the authority to permit withdrawal of guilty pleas, the plea bargain was illusory and unenforceable. Pleas were voidable. Trial and appellate counsel were ineffective. Application of res judicata would be unjust.
State v. Lewis, Allen App. No. 1-02-10, 2002-Ohio-3950 -- Court acted within its discretion in overruling motion to withdraw guilty plea made before sentencing. But prosecutor breached agreement to stand mute at sentencing except as to restitution by stating the confidential informant had been assaulted by the defendant. Agreement to stand mute was not limited to not recommending a sentence. Remanded to trial court to fashion a remedy, suggestions being a new sentencing hearing in front of a different judge, or further consideration of motion to withdraw guilty plea.
State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993 -- Syllabus: "R.C. 2953.21 and 2953.23 do not govern a Crim. R. 32.1 postsentence motion to withdraw a guilty plea." Thus motions do not have to be filed within the time limits for commencing a postconviction action. Also see < State v. Brown, 1st Dist App. No. C-010755, 2002-Ohio-5813>; State v. Newcomb, Franklin App. Nos. 03AP-404, 961, 2004-Ohio-4099 (further stating that motions to withdraw a guilt plea may be heard while an appeal is pending).
State v. Gossard, Montgomery App. No. 19494, 2003-Ohio-3770 -- Motion to withdraw Alford plea should have been sustained where the plea colloquy does not adequately demonstrate the calculus of entering plea notwithstanding a claim of innocence.
State v. Jones, Greene App. No. 03CA7, 2003-Ohio-4843, ¶ 27 -- "The criminal justice system would surely collapse if every criminal case went to trial. Therefore, while it may seem strange to say so, the pleas of guilty or no contest that are entered in most cases are vital to the functioning of the system. Even so, that need and the heavy volume of hard work it involves cannot overcome the associated need to insure that a defendant is committed to the plea he or she enters. That does not mean the defendant must be glad of it; but it does mean that the defendant accepts it, wholly and without reservation. That is true even in the event of a genuine Alford plea, where acceptance of the benefit must be manifest. The duties that Crim. R. 11 imposes on the court are intended to achieve those goals." Reversed where the defendant's response to questions from the bench indicated a denial of an essential element.
State v. Alvarez, Cuyahoga App. No. 82337, 2003-Ohio-6888 -- It was an abuse of discretion to deny a pre-sentencing motion to withdraw a guilty plea based on an intervening court of appeals decision holding the defendant's conduct did not constitute an offense.
State v. Hall, Montgomery App. No. 20025, 2004-Ohio-3561 -- According to the 1990 plea bargain, prosecutor and judge were to recommend an early release parole to the APA. Instead they opposed such release when interviewed. Denied parole in 2000, the defendant sought to withdraw his guilty plea. (1) Specific performance of original agreement, albeit lackluster, and initial grant of an earlier date to be reconsidered were an adequate remedy. (2) Subsequent opposition by the family, facilitated by the Office of Victims' Services was not within the original agreement, provided this action was not orchestrated by the prosecutor.
State v. Burks, Franklin App. No. 04AP-531, 2005-Ohio-1262 -- Court did not initially release defendant on shock probation as agreed, then balked at outright release when it turned out he was ineligible for a CBCF placement the court deemed necessary. Specific performance was impossible. Defendant should be allowed to withdraw his guilty plea.
State v. Burger, Montgomery App. No. 19666, 2004-Ohio-6053 -- The plea agreement was that the defendant would receive community control, but the judge never stated agreement or disagreement. Defendant was removed from the courtroom for disruptive behavior. His presentence motion to withdraw guilty plea should have been granted.
State v. Plassman, Fulton App. No. F-04-019, 2005-Ohio-917 -- A motion to withdraw a guilty plea is not an appropriate method by which to challenge an unexpected increase of time of imprisonment due to a change in parole guidelines. Also see State v. Lawhorn, Cuyahoga App. No. 83623, 2004-Ohio-2852.
State v. Xie (1992), 62 Ohio St. 3d 521 -- A defendant does not have an absolute right to withdraw a guilty plea before sentencing. The trial court must conduct a hearing to determine whether there is a legitimate and reasonable basis for withdrawal of the plea. No abuse of discretion found on the part of the trial court which overruled defendant's request where defendant entered plea based on erroneous advice from counsel as to when would become eligible for parole. Court had determined this was not the overriding factor in the decision to change the plea and had complied with Crim. R. 11. Also see State v. Donner (1994), 96 Ohio App. 3d 486; State v. Spivey (1998), 81 Ohio St. 3d 405, 415.
State v. Smith (1977), 49 Ohio St. 2d 261 -- Syllabus: "(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)... (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." Also see State v. Caraballo (1985), 17 Ohio St. 3d 66.
Kadwell v. United States (9th Cir. 1963), 315 F.2d 667, 670 -- Applying equivalent Federal Crim. R. 23(d): Rule 32(d) imposes no limitation upon the withdrawal of a guilty plea before sentence is imposed, and such leave 'should be freely allowed.' Poole v. United States, 102 U.S.App.D.C. 71, 250 F.2d 396, 400 (1957). See also Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499, 502 (1959). On the other hand, withdrawal of a guilty plea after sentence is conditioned by Rule 32(d) upon a showing of 'manifest injustice.' This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and to fritter away the time and painstaking effort devoted to the sentencing process."
Barker v. United States (10th Cir. 1978), 579 F.2d 1219 -- The test to be applied when a motion is made before sentencing is that of "fairness and justice." Also see Dorton v. United States (10th Cir. 1971), 447 F.2d 401; Kercheval v. United States (1927), 274 U.S. 220; State v. Peterseim (1980), 68 Ohio App. 2d 211; Eastlake v. DeNiro (1984), 21 Ohio App. 3d 102.
State v. Fish (1995), 104 Ohio App. 3d 236 -- Opinion discusses apparent inconsistency between the directive that motions to withdraw guilty or no contest pleas should be freely allowed, if made before sentence is imposed, and the propensity of appellate courts to apply an abuse of discretion standard when it is claimed such a motion was erroneously overruled. Factors to be considered in weighing a trial court's exercise of discretion are: (1) quality of representation provided; (2) degree of Crim. R. 11 compliance; (3) extent of hearing on motion to withdraw; (4) amount of consideration given the motion by the court; (5) timing of the motion; (6) the reasons given for withdrawal; (7) the defendant's understanding of the charges and penalties; and (8) the existence of a meritorious defense.
State v. Walton (1981), 2 Ohio App. 3d 117 -- Only slight justification was needed to withdraw guilty plea (before sentencing) where plea bargain required defendant to testify against his brother. Abuse of discretion to impose sentence greater than that agreed to in such circumstances.
State v. Casale (1986), 34 Ohio App. 3d 339 -- Headnote: "It is an abuse of discretion not to allow before trial a withdrawal of a guilty plea that was made with protestations of innocence and which was unsupported by a factual basis for the plea in the record." Compare State v. Drake (1991), 73 Ohio App. 3d 640 (merely mistaken belief degree of offense also dropped when specifications were dropped).
State v. Hayes (1995), 101 Ohio App. 3d 73 -- Trial court erred in overruling motion to withdraw an Alford plea. No proffer of facts was made at the plea hearing. At p. 75: "In accepting an Alford plea, absent the presentation of some basic facts surrounding the charge, there can be no determination that the accused made an intelligent and voluntary guilty plea, because the absence of a basic factual framework precludes a trial judge from evaluating the reasonableness of the defendant's decision to plead guilty notwithstanding the protestation of innocence."
State v. Dickey (1984), 15 Ohio App. 3d 151 -- It was an abuse of discretion not to allow defendant to withdraw her no contest plea to CCW before sentencing where she had not been advised of the affirmative defenses set forth in the statute.
State v. Newland (1996), 113 Ohio App. 3d 832 -- Defendant wanted the prestige of an out of town lawyer and was adamant that he did not want to plea bargain. Retained counsel sent an associate to cover a motion in limine. Without consulting his superior, the associate negotiated a seemingly very favorable plea bargain, which he coerced the defendant, who was heavily medicated on morphine, into accepting. Retained counsel fired associate and supported defendant's claims, as did treating physician. Motion to withdraw guilty plea should have been sustained. Court of appeals decision was issued well after defendant would have served complete sentence.
State v. Sabatino (1995), 102 Ohio App. 3d 482 -- Defendant's mistaken belief that he would be able to maintain employment had no impact on whether plea was knowing and voluntary, nor did it make it an abuse of discretion for the court to overrule motion to withdraw guilty plea.
State v. Hollis (1993), 91 Ohio App. 3d 371 -- Statute of limitations issue was raised by the judge during a guilty plea hearing, but counsel could not say whether it was a legitimate issue and the matter was not definitively addressed from the bench. Post-sentence motion to withdraw guilty plea should have been granted to correct manifest injustice.
State v. Hawk (1991), 81 Ohio App. 3d 296 -- If a defendant pleads guilty upon the representation that he is eligible for probation, a motion to withdraw the guilty plea should be granted. Also see State v. Hyatt (1996), 116 Ohio App. 3d 418; State v. Keefer (1998), 128 Ohio App. 3d 262.
State v. Ruff (April 15, 1993), Franklin Co. App. No. 92AP-1625, unreported (1993 Opinions 1449) -- Manifest injustice shown where victim recanted story given authorities, that story was uncorroborated, and the defendant indicated had pleaded to reduced charge to avoid life sentence and appeared to be of limited ability.
State v. Ball (1991), 72 Ohio App. 3d 549 -- Manifest injustice not shown where basis of defendant's motion to withdraw guilty plea is failure to present exculpatory evidence to the grand jury.
State v. Bekesz (1991), 75 Ohio App. 3d 436 -- Though the court may have carefully complied with Crim. R. 11 at the time the plea was entered, this does not excuse it from the obligation to conduct a full and fair hearing should the defendant seek to withdraw his guilty plea before sentence is passed. Such motions are to be freely granted and a court abuses its discretion by refusing to even consider such a motion. Also see State v. Wyke (April 8, 1993) Franklin Co. App. No. 92AP-1137, unreported (1993 Opinions 1319); State v. Barnett (1991), 73 Ohio App. 3d 244 (court focused only on the fact a plea had been entered).
State v. Blatnik (1984), 17 Ohio App. 3d 201, 204 -- A hearing is not required when the facts alleged by the defendant and accepted as true by the court do not require the guilty plea be withdrawn. Also see State v. Wynn (1998), 131 Ohio App. 3d 725 (compare dissent); United States v. Fournier (1st Cir. 1979), 594 F. 2d 276.
State v. Hill (1998), 129 Ohio App. 3d 658 -- If filed after the time allowed for direct appeal, a motion to withdraw a guilty plea, if premised upon violation of constitutional rights, will be construed as a petition seeking postconviction relief, and is subject to the time limits for filing postconviction actions. Also see State v. Walters (2000), 138 Ohio App. 3d 715.
State ex rel. Smith v. Tate (1991), 77 Ohio App. 3d 228 -- Once defendant's guilty plea had been stricken, he was entitled to be released from prison and returned to the county where prosecution was pending. Mandamus lies to enforce this right.

Other Issues

State v. Barr, 178 Ohio App. 3d 318, 2008-Ohio-4754 – Defendant tried to interpose his no contest plea to marijuana possession in Municipal Court as the basis for double jeopardy barring subsequent prosecution for felony drug possession, on the basis that the factual recitation in support of the no contest plea referred to both the marijuana and "a bottle of pills." Double jeopardy doesn‘t apply as the offenses are separate and the misdemeanor complaint referred only to marijuana. Plain error reasonable reliance pitch fails for failure to articulate a basis for believing the no contest plea would resolve everything.
United States v. Ruiz (2002), 122 S.Ct. 2450 -- In a federal prosecution, fast-track plea bargaining required waiver of the Brady right to exculpatory impeachment evidence. Since such material relates to the fairness of a trial and not the voluntariness of a plea, no Fifth or Sixth Amendment violation found. Government remained obliged to turn over exculpatory evidence relating to factual innocence.
State v. Green (1998), 81 Ohio St. 3d 100 -- Syllabus: When a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel is required to examine witnesses and to hear any other evidence properly presented by the prosecution in order to make a Crim. R. 11 determination as to the guilt of the defendant." For a subsequent case attempting to avoid this rule, see State v. Bolin (1998), 128 Ohio App. 3d 58.
State ex rel. Henry v. McMonagle (2000), 87 Ohio St. 3d 543 -- If the indictment is amended to eliminate death penalty specifications, a single judge may take a guilty plea to aggravated murder. Also see State v. Jones, Williams App. No. WM-02--12, 2003-Ohio-1037 reaching the same conclusion where actual dismissal of the specifications came after the plea was tendered, but before it was accepted.
State v. Brown, 166 Ohio App. 3d 90, 2006-Ohio-1792 -- R.C. 2951.041 does not provide for intervention in lieu of conviction in OMVI cases. A court may not provide such a program on the basis of common law. Placement is such a program means the guilty plea may not be sustained under Crim. R. 11.
Mitchell v. United States (1999), 526 U.S. 314 -- Pursuant to Federal Rule of Criminal Procedure 11, entry of a guilty plea does not operate as a waiver of the defendant's Fifth Amendment privilege. Nor may the defendant's silence provide the basis for adverse inferences in determining factual issues at the sentencing hearing.
State v. Robertson (1995), 108 Ohio App. 3d 173 -- The presumption of vindictiveness which applies when a defendant has won on appeal, then been convicted when retried, and given a greater sentence, does not apply when the greater sentence follows an appeal from a guilty plea, and conviction at trial.
Garfield Heights v. Brewer (1984), 17 Ohio App. 3d 216 -- Headnote 1: "A written waiver of counsel is not a substitute for compliance with the Criminal Rules which require an oral waiver in open court before a judge which is recorded, nor does it comply with the constitutional mandate that the waiver affirmatively appear on the recorded."
Chardon v. Moyer (1986), 33 Ohio App. 3d 154 -- When the court permits the withdrawal of a no contest plea in a petty offense case, any previous waiver of the right to jury trial is withdrawn as well.
State v. Gibson (1986), 34 Ohio App. 3d 146, 148 -- If the court allows withdrawal of a guilty plea, and that conviction was subsequently used to enhance the penalty for another offense, relief must be granted as to the later case as well.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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