[Cite as State v. Batke, 2011-Ohio-4636.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95947 and 95948
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DALE D. BATKE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-521243 and CR-521830
BEFORE: Jones, J., Kilbane, A.J., and Keough, J.
RELEASED AND JOURNALIZED: September 15, 2011
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
BY: Kristopher A. Haines
Assistant State Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Dale Batke, appeals the trial court’s denial of his
post-sentence motion to withdraw his guilty pleas. For the reasons that follow, we affirm the
trial court’s decision.
{¶ 2} On June 15, 2009, Batke pleaded guilty in Case No. CR-521243 to one count
each of the following: felonious assault with a firearm specification, domestic violence with
a firearm specification, violating a protection order with a firearm specification, domestic
violence, disrupting public service, violating a protection order, felonious assault on a police
officer, failure to comply with order or signal of a police officer, theft, and inducing panic.
In Case No. CR-521830, Batke pleaded guilty to violating a protection order and intimidation.
{¶ 3} On July 10, 2009, the trial court sentenced Batke to 18 years in prison. Three
days later, and before Batke was transferred to prison, the trial court held another hearing and
amended Batke’s sentence to 14 years in prison. Batke’s counsel then orally moved the trial
court to withdraw Batke’s guilty pleas. His counsel indicated that he would file a written
motion to withdraw the guilty pleas and asked to be excused from the case.
{¶ 4} On July 20, Batke moved to withdraw his guilty pleas. The state opposed the
motion. A year later, on July 21, 2010, Batke, represented by new counsel, filed a
supplement to his motion to withdraw his guilty pleas. Two days later, the trial court held a
hearing on the motion. Batke and his sister testified that his original attorney promised them
that Batke would receive no more than ten years in prison.
{¶ 5} The trial court continued the matter and ultimately denied Batke’s motion.
{¶ 6} Batke filed two delayed notices of appeal. We have consolidated his cases for
briefing and disposition. Batke raises two assignments of error for our review, in which he
challenges the trial court’s denial of his motion.
I
{¶ 7} We begin by discussing Batke’s contention under his second assignment of
error that the trial court should have considered his motion under the pre-sentence standard for
a motion to withdraw a guilty plea.
{¶ 8} Crim.R. 32.1 governs withdrawals of guilty pleas and states as follows:
{¶ 9} “A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 10} The general rule is that motions to withdraw guilty pleas before sentencing are
to be freely and liberally allowed. State v. Peterseim (1979), 68 Ohio App.2d 211, 214, 428
N.E.2d 863, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223. However, a
defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State
v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. In ruling on a presentence motion to
withdraw a plea, the court must conduct a hearing and decide whether there is a reasonable
and legitimate basis for withdrawal of the plea. Id. at 527. The decision to grant or deny
such a motion is within the sound discretion of the trial court. Id.
{¶ 11} In contrast, the trial court can set aside a judgment of conviction after it imposes
sentence, and may allow the defendant to withdraw his plea, only “to correct a manifest
injustice.” State v. Bell, Cuyahoga App. No. 87727, 2007-Ohio-3276, citing State v. Smith
(1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The defendant bears the burden of
establishing the existence of a “manifest injustice.” Id., paragraph one of syllabus.
“Manifest injustice” is an extremely high standard that permits the court to allow a plea
withdrawal only in “extraordinary cases.” State v. Malone, Cuyahoga App. No. 91439,
2009-Ohio-1364, ¶8. A post-sentence motion to vacate a guilty plea is also left to the
discretion of the trial court and will not be reversed absent an abuse of discretion. State v.
Blatnik (1984), 17 Ohio App.3d 201, 202, 478 N.E.2d 1016.
{¶ 12} Batke claims that his motion should have been treated as a presentence motion
because the court was aware prior to sentencing that he wanted to withdraw his guilty plea.
Although Batke makes this claim, our review of the record shows that the motion to withdraw
his guilty plea was made after he was sentenced.
{¶ 13} Thus, Batke’s motion was a post-sentence motion to withdraw his guilty pleas
and we will consider his arguments under that standard.
{¶ 14} The second assignment of error is overruled.
II
{¶ 15} In his first assignment of error, Batke argues that the trial court erred when it
denied his motion to withdraw his guilty pleas.
{¶ 16} Crim.R. 32.1 requires a defendant making a post-sentence motion to withdraw a
plea to demonstrate manifest injustice because it is designed “to discourage a defendant from
pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the
sentence was unexpectedly severe.” State v. Caraballo (1985), 17 Ohio St.3d 66, 67, 477
N.E.2d 627, citing Peterseim at 213.
{¶ 17} At the hearing on the motion, Batke testified that he did not understand his
constitutional rights as the court stated them during the plea colloquy. He claimed that he
had not understood the right to compulsory process and further submitted that he had taken
prescription drugs before he entered his pleas.
{¶ 18} We have reviewed the plea colloquy and find that it adhered to the mandates as
stated in Crim.R. 11. The underlying purpose of Crim.R. 11(C) is to convey certain
information to a defendant so that he or she can make a voluntary and intelligent decision
regarding whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480, 423
N.E.2d 115. Although we review a trial court’s decision to deny a motion to withdraw a
guilty plea for an abuse of discretion, the standard for reviewing whether the trial court
accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. See State
v. Cardwell, Cuyahoga App. No. 92796, 2009-Ohio-6827, ¶26, citing State v. Stewart (1977),
51 Ohio St.2d 86, 364 N.E.2d 1163.
{¶ 19} Crim.R. 11(C)(2) provides that in felony cases the court may refuse to accept
and shall not accept a plea of guilty without first addressing the defendant personally and
doing all of the following:
“(a) Determining that the defendant is making the plea voluntarily, with understanding
of the nature of the charges and of the maximum penalty involved, and if applicable,
that the defendant is not eligible for probation or for the imposition of community
control sanctions at the sentencing hearing.
“(b) Informing the defendant of and determining that the defendant understands the
effect of the plea of guilty or no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.
{¶ 20} “(c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and
to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which
the defendant cannot be compelled to testify against himself or herself.”
{¶ 21} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements
that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Under the more stringent standard for
constitutionally protected rights, a trial court’s acceptance of a guilty plea will be affirmed
only if the trial court engaged in meaningful dialogue with the defendant which, in substance,
explained the pertinent constitutional rights “in a manner reasonably intelligible to that
defendant.” Ballard, paragraph two of the syllabus.
{¶ 22} With respect to the nonconstitutional requirements of Crim.R. 11, set forth in
Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial
compliance with the rule. Veney at ¶14-17. “Substantial compliance means that under the
totality of the circumstances the defendant subjectively understands the implications of his
plea and the rights he is waiving.” State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d
474. “[I]f it appears from the record that the defendant appreciated the effect of his plea and
his waiver of rights in spite of the trial court’s error, there is still substantial compliance.”
State v. Caplinger (1995), 105 Ohio App.3d 567, 572, 664 N.E.2d 959.
{¶ 23} Further, a defendant must show prejudice before a plea will be vacated for a
trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the
colloquy are at issue. Veney, at ¶ 17.
{¶ 24} In the case at bar, our review of the record shows that the trial court adhered
to the requirements of Crim.R. 11. During the plea colloquy, Batke affirmatively expressed
that he understood his rights, and that he understood he was giving up those rights by entering
a guilty plea. Although Batke testified at the motion hearing that he had not understood his
rights, the record belies that claim.
{¶ 25} The trial court explained each count to Batke and informed him of the
maximum time he could receive on each count, the effect of pleading guilty to gun
specifications, and explained mandatory, discretionary, consecutive, and concurrent time to
him. The trial court inquired about any medication Batke took and had a lengthy discussion
with Batke about his medications and his mental illness diagnoses. The trial court inquired if
Batke felt “well enough” and if he thought he could make “strong, good decisions for
yourself,” to which Batke replied, “Yes, your Honor.” In its decision denying Batke’s
motion to withdraw his guilty pleas, the trial court found that Batke was unable to show that
prescription drugs caused him to be confused or “to be unable to rationally and coherently
consider the offered plea bargain and answer correctly to the Court’s questions in the plea
inquiry. He assured the Court at the time that he had no such difficulties. He gave the
Court no reason to question his comprehension at the time.”
{¶ 26} Based on the record, we find no fault with the plea colloquy or that Batke did
not understand the rights that he waived. We also do not find that Batke has shown that the
medications he was taking at the time of the plea affected his judgment so that his plea was
not knowingly and intelligently made.
{¶ 27} Batke additionally argues that the trial court should have allowed him to
withdraw his plea because his original attorney told him he would receive “seven to nine, but
no more than ten years” in prison if he pled guilty. At the hearing on his motion, Batke
testified he took his attorney’s “word for it because he’s a personal friend of one of my
friends.” He explained to the trial court that if he had known that his sentence could exceed
ten years, he would have taken his cases to trial.
{¶ 28} The trial court found that Batke presented no credible evidence tending to show
he was promised or assured he would receive a certain sentence if he pleaded guilty and
concluded that the record established no manifest injustice; it only evidenced Batke’s “change
of heart once he heard what his sentence was.”
{¶ 29} We agree with the trial court; our review of the record shows nothing more than
that Batke had a “change of heart” after he was sentenced. Once Batke received a sentence
that was longer than he thought it should be, he began on a course to try and withdraw his
plea. During his testimony, Batke admitted that his attorney did not guarantee him a certain
sentence. And although Batke’s sister testified that Batke’s attorney thought he would
receive less than ten years in prison if he pled guilty, she also admitted that his attorney never
promised him a certain sentence.
{¶ 30} Our review of the record evidences no manifest injustice. Not only did the
trial court hold a full hearing on the motion, it continued the matter twice so that defense
counsel could gather and present additional information.
{¶ 31} Based on the foregoing, the trial court did not abuse its discretion when it
denied Batke’s post-sentence motion to withdraw his guilty pleas.
{¶ 32} The first assignment of error is overruled.
Accordingly, judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
State v. Batke
Combined Opinion