 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
MOTION TO WITHDRAW GUILTY PLEA; MANIFEST INJUSTICE DEFINED State v. Hartzell, No. 17499 (2d Dist. Ct. Apps., Montgomery Co., 8-20-99). Donald Hartzell entered guilty pleas to twenty-five counts arising from his stealing cars. Having had motions for shock and supershock probation overruled, and having had his petition for postconvicion relief dismissed, Hartzell filed a motion to withdraw his guilty plea under Crim. R. 32.1. Hartzell alleged that his pleas, entered four years earlier, were involuntary, because he had received ineffective assistance of counsel, and the court had failed to comply with Crim. R. 11. After holding a hearing, at which Hartzell testified that his attorney had promised him shock probation and that the prosecutor had threatened to indict his daughter, the court denied Harzell's motion. Hartzell appealed. The appellate court affirmed the trial court, saying the following: A "manifest injustice" comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her. Crim. R. 32.1 derives from the court's inherent power to vacate its own prior orders when justice so requires. Rule 11 claims, the court continued, could have been raised on direct appeal. Claims of promises made by Hartzell's lawyer, claims the lawyer denied at the hearing, could have been raised in a postconviction petition. Therefore, the court said, appellant has failed to show manifest injustice. The court affirmed the trial court's order. COMMUNITY CONTROL; DEFENDANT CAN WAIVE OBJECTION TO UNCONSTITUTIONAL CONDITION. State v. Mack, No. 17516 (2d Dist. Ct. Apps., Montgomery Co. 9-24-99). Charles A. Mack entered a guilty plea to aggravated burglary and was put on community control for five years. He was found to have violated a condition of that community control, to wit: he failed to leave the state and return to Maryland. The court revoked his community control and Mack appealed, claiming the condition was unconstitutional. Although the Montgomery County Court of Appeals agreed that banishment as a condition of probation is unconstitutional, the court held that Mack had waived the right to complain. The record of the guilty plea failed to record the condition that the defendant would return to Maryland and stay there for five years. However, the prosecutor testified at the hearing on the motion to withdraw the guilty plea that the defendant had asked to be allowed to return to Maryland where he had family. Everyone seems to have agreed that the defendant understood that he was to leave Ohio as soon as possible and to stay away from the victim, with whom he had had a tumultuous relationship. Appellant never left Ohio. The appellate court affirmed the trial court's revoking the appellant=s community control. EXPUNGEMENT; THE STATUTE REQUIRES A HEARING AND FINDINGS. State v. Berry, No. 17780 (2d Dist. Ct. Apps. Montgomery Co., 10-22-99). On June 23, 1995, the Montgomery County grand jury returned a no true bill of indictment on two allegations of gross sexual imposition against Ian Berry. On August 26, 1998, Mr. Berry filed an application for expungement. On April 27, 1999, the trial court denied the application without a hearing because "the case dismissed was a sex offense." The defendant appealed and the state agreed that the case should be reversed. A trial court faced with an application to seal records under R.C. 2953.52, the appellate court said, must give notice to the prosecuting attorney and "shall set a date for a hearing." The expungement statute further provides that "The court shall do each of the following:...(d) Weigh the interests of the person... against the legitimate needs, if any, of the government..." and determine whether the interests of the government outweigh theinterests of the person. The appellate court reversed and remanded the case for a mandatory hearing. STATUTE OF LIMITATIONS; TOLLING STOPS WHEN VICTIM REACHES MAJORITY; TIME TOLLED AGAIN BY DEFENDANT'S ARREST. State v. Wooldridge, No. 17708 (2d Dist. Ct. Apps., Montgomery Co., 10-8-99). The state appealed from the trial court's dismissing ten counts charging Larry Wooldridge with sexually abusing four girls between 1981 and 1993. The defendant was arrested on August 25, 1998 and indicted on September 24, 1998. Three of the alleged victims were twenty-four when the defendant was arrested. The fourth alleged victim celebrated her twenty-fourth birthday between August 25, 1998 and September 24, 1998. The trial court held that the statute of limitations began to run when each alleged victim reached the age of eighteen. As six years had passed, the trial court granted the defendant's motion to dismiss. The state appealed. Citing several cases from other counties, the Montgomery County Court of Appeals held that a victim who was sexually abused as a child is presumed to understand the criminality of the offense when the victim reaches majority. The presumption may be rebutted, by showing, for example, that the victim suffered from repressed memory [Ault v. Jasko (1994), 70 Ohio St. 3d 114]. As three of the alleged victims had reached the age of twenty-four before appellant's arrest, the appellate court affirmed the trial court=s dismissing the counts involving them. However, the court held that the trial court erred by dismissing the charges involving the alleged victim who was twenty-three when the defendant was arrested but twenty-four when he was indicted. The defendant's arrest, the court held, tolled the statute of limitations in that case. The court affirmed the trial court in part and reversed the court in part, and remanded for trial on the charges involving the youngest alleged victim. WRONGFUL IMPRISONMENT; VICTIM=S RECANTING INSUFFICIENT TO PROVE WRONGFUL IMPRISONMENT, WHEN. State v. Palmer, No. 2878-M (9th Dist. Ct. Apps., Medina Co., 10-13-99). Dale Palmer Sr. was convicted in 1994 of felonious sexual penetration of his daughter. In 1995, the victim recanted her testimony. The trial court granted Palmer a new trial and the state dismissed the charges. Palmer then filed a petition to be declared a wrongfully imprisoned person. The trial court denied the motion and Palmer appealed. The appellate court affirmed. In recanting her testimony, the victim said both that she had lied about her father's touching her and that she did not remember anyone's having touched her. A doctor who examined the victim after she recanted her testimony, Dr. Stephen Guertin, saw no signs of abuse and criticized the findings of Dr. Amy Richardson, who had examined the victim before trial. Mr. Palmer also called a psychologist, Dr. Dawn Lord, who claimed that psychologist Suzanne LeSure, who had treated the victim, had possibly contaminated the victim's testimony. In addition to exposing weaknesses in the testimony of both Dr. LeSure and Dr. Guertin, the state called Dr. Richardson, who reaffirmed her original opinion. To show unlawful imprisonment, the court said, a petitioner must prove by a preponderance of the evidence that he is innocent, by proving either that no crime was committed or that it was committed by someone else. Using standards applicable to determining whether a criminal conviction is against the weight of the evidence, the Medina County Court of Appeals affirmed the trial court's finding that the defendant had failed to meet his burden. NO CONTEST PLEA; WAIVER OF RIGHT TO INDICTMENT MUST BE SPECIFIC. State v. Moore, No. 17666 (2d Dist. Ct. Apps., Montgomery Co., 10-29-99). Harold D. Moore Jr. entered a no contest plea to aggravated assault, in a case in which he had been charged with robbery. The trial court=s having convicted him on the no contest plea, the defendant appealed. Rejecting the state's argument that the defendant had waived his right to argue that aggravated assault is not an included offense of robbery, the Montgomery County Court of Appeals reversed. As aggravated assault is not a lesser included offense of robbery, the court said, the trial court could not amend the indictment to charge aggravated assault. If the defendant had waived his right to indictment in writing in open court, the appellate court continued, the state could have proceeded on a bill of information. Failing that, the state was required to indict on aggravated assault before the trial court could convict the defendant of that offense on a no contest plea. The court reversed and remanded for further proceedings. CRIMINAL RULE 32.1 AND R.C. 2953.21: TIME LIMITS APPLY TO CONSTITUTIONAL CLAIMS BUT NOT TO NONCONSTITUTIONAL CLAIMS; RES JUDICATA State v. McMinn, No. 2927-M (9th Dist. Ct. Apps., Medina Co., 6-16-99) Earnest McMinn entered guilty pleas to two counts of rape of a person under age thirteen, one count of forcible rape, and two counts of disseminating harmful material to minors. The court imposed two life sentences, one six-to-twenty-five year sentence, and two two-to-five year sentences. Having filed at least four post conviction petitions and at least two motions to withdraw his guilty pleas, McMinn ,on July 31, 1998, filed a "Motion to Withdraw Plea of Guilty or Alternatively Ad Hoc Motion for Judicial Release." The trial court denied the motion and the defendant appealed. The Medina County Court of Appeals in dicta discussed the relationship between Crim. R. 32.1 and R.C. 2953.21. The court observed that in earlier cases, relying on State v. Reynolds (1997), 79 Ohio S. 3d 158, it had held that the time limits under R.C. 2953.21 and R.C. 2953.23 applied to Crim. R. 32.1 motions that raised constitutional issues. However, the court continued, the time limits are inapplicable when the reason the defendant offers for seeking to withdraw his plea is non-constitutional. In the instant case, the defendant argued he should be allowed to withdraw his plea because the court failed to comply with Crim. R. 11. Although the time limits of R.C. 2953.21 would be inapplicable to such a claim, the court said, the trial court nevertheless correctly denied the motion. The defendant had raised the Rule 11 claim before and the court of appeals had decided it against the defendant. Therefore, the court held, the doctrine of res judicata barred the defendant from litigating the issue again. The court affirmed the trial court order. SEARCH AND SEIZURE: PRETEXTUAL STOP PERMISSIBLE. State v. Dennewitz, No. 99 CA 2491 (4th Dist. Ct. Apps., Ross Co. 11-5-99) A Chillicothe police officer, on routine patrol in a neighborhood know for drug sales, saw Jane Dennewitz pick up a female passenger. Shortly after, the passenger left the car. The officer followed Ms. Dennewitz. The officer had to follow her a long time before she made an improper turn. The officer called for a drug-sniffing dog. The dog and its handler arrived in fifteen minutes. The dog alerted and the officers found cocaine when they searched the car. The trial court granted the defendant's motion to suppress evidence, finding the traffic stop pretextual. The state appealed and the Ross County Court of Appeals reversed. We agree with the trial court's viewpoint that a pretextual stop based on a very minor traffic infraction is not "the way the law ought to work." As a practical matter, validating pretextual stops creates the danger that officers will stop individuals based on nothing more than a hunch of illegal drug activity, based solely on a car having driven through a "high drug sales area." Thanks to Ms. Dennewitz activating her turn signal less than one hundred feet before she made a right turn, Officer Lytle was afforded the chance to see if his hunch was correct. Nevertheless, despite the pretextual nature of the stop, we are bound to follow the law as set forth in Whren...[Whren v. United States (1996), 517 U.S. 806]... and Erickson...[Dayton v. Erickson, (1996), 76 Ohio St.3d 3]. A pretextual stop is not an unreasonable seizure within the meaning of the Ohio or United States constitutions. The court reversed and remanded for trial. JURY MATTERS: MISTRIAL UNNECESARY WHEN JURORS WHO HAD BEEN INTERFERED WITH WERE DISMISSED FROM PROSPECTIVE PANEL. State v. Walker, No. 74773 (8th Dist. Ct. Apps., Cuyahoga Co. 11-4-99) Anthony Walker was charged with prior-calculation-and-design murder, aggravated burglary, aggravated robbery, attempted murder, two counts of kidnapping, and aggravated murder in the course of aggravated burglary or robbery, all with firearm specifications. The jury acquitted him of prior-calculation-and-design aggravated murder but convicted him of all other charges. Walker had originally been convicted of complicity with six others to kill Derrick Harris during a burglary. He was originally sentenced to death. The Cuyahoga County Court of Appeals had reversed that conviction, holding the defendant had received ineffective assistance of counsel. At the retrial, three of the six others testified about planning to burgle Harris=s home, and to rob and kill Harris. This time, Walker received a sentence of thirty-three years. According to the defendant, before the start of the second trial, a woman approached two prospective jurors and told them about the earlier trial. The defendant and the prosecutor both asked for a mistrial. The trial court refused to grant a mistrial. On appeal, the defendant argued that the improper communication deprived him of a fair trial. The Cuyahoga County Court of Appeals held that a mistrial would have been inappropriate because the "challenged communications took place between dismissed jurors only and not jurors retained for the trial. The record reflects that both of the involved jurors were subsequently excused from the jury." The trial court interviewed the other jurors and determined that none had been tainted by the incident. The appellate court affirmed the convictions. SENTENCING: JUDICIAL RELEASE UNAVAILABLE, WHEN; NO APPEAL. State v. Byrum, No. 99CA38 (2d Dist. Ct. Apps., Clark Co., 10-29-99) On April 18, 1996, Robert Byrum was sentenced to prison terms of 2.5 years to 10 years for burglary, one year for vandalism, (consecutive to the burglary sentence), and six months for vandalism (concurrent to the burglary sentence). He was transported to the penitentiary on May 7, 1996. On July 25, 1997, appellant filed his first motion for shock probation. The trial court denied the motion because, as none of appellant's crimes was an aggravated felony, he could file a motion for shock only between 30 and 60 days after entering the prison. On January 9, 1998, appellant filed a motion for judicial release pursuant to R.C. 2929.20. Because that statute became effective after appellant had been sentenced, the trial court held it inapplicable to appellant. Appellant filed additional motions for shock probation and judicial release, which the trial court denied The Clark County Court of Appeals affirmed, saying the following: At the outset, we note that a court of appeals has no jurisdiction to review the denial of motions for judicial release or shock probation since they are not final appealable orders, absent a violation of some constitutional or statutory standard. State v. Waller (Oct. 31, 1997), Trumbull App. No. CA97-T-0082, unreported. Even if we were to consider the merits, we would affirm the trial court for the reasons cited in the above-quoted entry; that is, the judicial release is not available to defendants who committed their crime before the effective date of the statute setting forth the terms of judicial release, which is July 1, 1996. [Ed. Note: The following is the first of occasional articles about significant issues. Anyone wishing to submit articles should send them to Joyce Anderson, 369 South High Street, 5th Floor, Columbus, Ohio 43215] ALLIED OFFENSES AFTER STATE V. RANCE (1999) 85 OHIO ST. 3d 632. By Steve Taylor, Franklin County Prosecutor's Office The Ohio Supreme Court has set forth a two-step analysis for determining whether two offenses will "merge" as allied offenses of similar import for purposes of sentencing under R.C. 2941.25. In the first step, the elements of the offenses are compared to determine whether one offense "will result" in the commission of the other. If not, sentencing on both counts is allowed; if so, the crimes are allied offenses of similar import, and the analysis then proceeds to the second step. Under the second step, sentencing on both counts will be barred unless the facts of the case show that the offenses were committed separately or with a separate animus. Courts have disagreed about whether the "will result" language means "will necessarily result" or whether "will result" means "might result." Under this more lenient standard, the first step is satisfied if the two offenses possibly can be committed by the same conduct. The Ohio Supreme Court in State v. Rance held that, under the first step of the analysis, the "will result" test is really a "will automatically result" test that focuses strictly on the statutory elements in the abstract. The court overruled cases holding or implying that the facts of a particular case are considered under the first step of the analysis. Using the abstract comparison-of-elements test, Rance held that involuntary manslaughter and aggravated robbery are not allied offenses of similar import. Each offense can be committed without automatically committing the other. Under Rance, for example, felonious assault and child endangering will not merge, because each can be committed without automatically committing the other.
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