[Cite as State v. Robinson, 2018-Ohio-1427.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27280
:
v. : T.C. NO. 2016-TRC-2221-A
:
DESTIN D. ROBINSON : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
...........
OPINION
Rendered on the 13th day of April, 2018.
...........
JOE CLOUD, Atty. Reg. No. 40301, 3973 Dayton-Xenia Road, Dayton, Ohio 45432-2632
Attorney for Plaintiff-Appellee
JOHN PINARD, Atty. Reg. No. 85567, 120 W. Second Street, Suite 603, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the September 13, 2016 Notice of Appeal
of Destin D. Robinson. Robinson appeals from his conviction and sentence, following a
guilty plea, on an amended charge of having physical control of a vehicle while under the
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influence (“physical control”), in violation of R.C. 4511.194(B)(1), a misdemeanor of the
first degree. Counsel for Robinson originally filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly
examining the record and the law, no meritorious issues existed for appeal. On August
8, 2017, this Court set aside counsel’s Anders brief and appointed new counsel to act as
Robinson’s advocate on appeal, and appointed counsel’s brief is now before us.
{¶ 2} The events giving rise to this matter began on March 11, 2016, when
Robinson was stopped by the Ohio State Highway Patrol for an alleged traffic violation.
Robinson was subsequently arrested for operating a vehicle under the influence, in
violation of R.C. 4511.19(A)(1)(a). Robinson pled not guilty on March 18, 2016, and on
May 4, 2016, he filed a motion to suppress. A hearing on the motion was scheduled for
June 30, 2016. The Transcript of Docket Entries reflects that on June 20, 2016,
Robinson withdrew his motion to suppress, although a written withdrawal is not in the
record. The Transcript of Docket Entries reflects that a “Disposition” was set for August
16, 2016. On that date, Robinson pled guilty to the amended charge of physical control.
{¶ 3} The file before us contains correspondence, dated August 31, 2016,
addressed to “The Honorable Judge Cynthia M. Heck.” The correspondence bears a
time stamp of September 9, 2016, although it is not reflected in the Transcript of Docket
Entries. The correspondence provides as follows:
Dear Judge Heck:
I am writing to you to request a Motion to Withdrawal my plea in case
# TRC160221A on 8/16/2016. Your Honor, I was totally confused and
under complete duress. My attorney, Charles Rowland, was not up front
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with me about several things prior to my plea before you: 1) when I met with
him in his office to view the trooper’s video, he told me that the video does
not uphold the trooper’s original report, and that I had done everything right
and the trooper did not have legal grounds to stop me. He told me that he
had never seen anything like this and not to worry that this was all about
how far you’re willing to take it, and that I would not owe him any additional
fee. 2) He was not forth coming as to what the plea would entail. He told
me that if I pled guilty, I would get my license back that same day with no
other penalties, but if I went to trial, I would get a trial tax if I lost the case
with additional jail time; and that I would lose my license for two years. He
told me I had to make a decision right then because if I wanted to go to trial,
the trial would be scheduled the following week. 3) He then asked me, are
you going to pay me (after previously telling me I would not owe him) if we
go to trial because nobody wants to work for free, and most attornies [sic]
will not take on a case after a second pre-trial.
Your Honor, prior to the Hearing on August 16, 2016, I had a Motion
to Suppress Hearing that was originally scheduled for June 30th 2016 at
9:45 am in which I was never granted admission into your courtroom. Mr.
Rowland arrived roughly around 10 am. I was taken into room # 204 where
my attorney said he had a deal for me to plead to. Nothing was explained
other than “physical control.” Mr. Rowland told me that the guy overseeing
my case was a guy he used to work with who I now know to be Mr. David
Caldwell. Mr. Rowland said that Mr. Caldwell agreed with us that I should
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not have been stopped; and that there was nothing there, but he had to
charge me with something because if not the officer would lose his arrest
and that could signal to law enforcement that you’re not willing to work with
them; and that he counts on them to send him cases; I have been there as
a prosecutor and it can be an uncomfortable position to be in. I told my
attorney that I didn’t agree with that and he said that’s just the way it is. I
asked Mr. Rowland how long I have to decide. He stated as long as you
like.
Around July 6[,] 2016, I met & spoke with Mr. Rowland for the last
time before the hearing on August 16, 2016. I asked Mr. Rowland how
come I didn’t have a standard Motion to Suppress like his office and website
had described. Mr. Rowland responded saying why show them what we’re
up to before trial. I ask[ed] him if he could just talk to the judge about the
case and what really happened. Mr. Rowland said she’s not going to care
what you have to say; the judge is not on your side.
Approximately a week later, I received a letter stating a Disposition
Hearing was scheduled for August 16th, 2016. I mistakenly thought this
“Disposition Hearing” was a Deposition Hearing. Upon arrival I was taken
into room #204 where I felt railroaded, distraught, and even angered for
reasons mentioned above and I was told that I had to make a decision at
that moment. I never knew the extent of what I pled to until I got home and
made an internet search. I later returned to the clerk’s desk to ask
questions about my records. That’s when I was told that my original Motion
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to Suppress Hearing had been withdrawn on June 30th 2016 which was
news to me. Attorney Rowland never mentioned to me that he withdrew
the original Motion to Suppress, and I never gave him permission to do so.
In summation Your Honor, I am humbly asking you to accept my
Motion to Withdraw my Plea due to inadequate representation and the
pressure I was experiencing to make a decision based on the information
given to me. Additionally, I never gave permission to withdraw the original
Motion to Suppress; and I was not admitted entry inside your courtroom on
June 30, 2016.
{¶ 4} On August 16, 2016, the trial court journalized Robinson’s guilty plea and
sentenced him to one year of probation, 180 days in jail (177 days suspended), and a six
month license suspension. The Court ordered Robinson to pay $225.00 in court costs
and a fine of $250.00 (with $50.00 suspended). Robinson’s notice of appeal provides
the following probable issues for review: “Motion to suppress hearing never granted,
ineffective assistant to counsel [sic]. Motion to suppress hearing withdrawn without
knowledge or permission.”
{¶ 5} Robinson asserts three assignments of error herein. His first assignment of
error is as follows:
THE TRIAL COURT FAILED TO PROPERLY INFORM APPELLANT
OF THE EFFECT OF HIS GUILTY PLEA IN COMPLIANCE WITH OHIO
CRIMINAL RULE 11.
{¶ 6} Robinson argues as follows:
* * * At no point in the record does the Judge indicate to Appellant
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his plea of guilty is a complete admission of guilt. In fact, Appellant never
formally states he is guilty, though it can be inferred that was his intent. As
the trial court has failed to comply with Ohio Criminal Rule 11, this case
involves an invalid plea. As such, the plea should be ordered withdrawn
and the case reversed and remanded to the trial court.
{¶ 7} The State responds that the Ohio Traffic Rules, and not Crim.R. 11, apply
herein. The State asserts that Robinson’s claim that he “never entered a guilty plea is
also erroneous.” The State asserts as follows:
* * * The Trial Court informed the Defendant of the effect of his guilty
plea by: insuring his right to a jury trial * * *; the nature of the charge and the
maximum penalty * * *; that the plea was being made knowingly and
voluntarily * * *; that he was assured of the advice of legal counsel * * *; and
finally, that he would have the opportunity to personally address the Court
in mitigation * * *.
{¶ 8} “ ‘Traffic case’ means any proceeding, other than a proceeding resulting from
a felony indictment, that involves one or more violations of a law, ordinance, or regulation
governing the operation and use of vehicles * * *.” Traf. R. 2(A). Traffic cases are
governed by the Ohio Traffic Rules. Crim.R. 1(C); Traf.R. 1(A). A conviction for
physical control in violation of R.C. 4511.194 carries a criminal penalty of six months or
less in jail. R.C. 2929.24(A)(1). Under Traf.R. 2(D), a “petty offense” is defined as “an
offense for which the penalty prescribed by law includes confinement for six months or
less.” Physical control is a petty offense.
{¶ 9} The trial court’s acceptance of Robinson’s guilty plea was governed by
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Traf.R. 10, which provides in relevant part:
***
(B) Effect of Guilty or No Contest Pleas. With reference to the offense
or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the defendant's guilt.
***
(D) Misdemeanor Cases Involving Petty Offenses. In misdemeanor
cases involving petty offenses, except those processed in a traffic violations
bureau, the court may refuse to accept a plea of guilty or no contest and
shall not accept such pleas without first informing the defendant of the effect
of the plea of guilty * * *. This information may be presented by general
orientation or pronouncement.
{¶ 10} As this Court has previously noted (footnote omitted):
In State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d
635, the Ohio Supreme Court clarified that in order to meet Traf.R. 10(D)'s
requirement of “informing the defendant of the effect of the plea,” the trial
court need only inform the defendant of the information contained in Traf.R.
10(B). Watkins, supra; see State v. Darden, 2d Dist. Greene No. 2005 CA
109, 2006-Ohio-2908, ¶ 16. The Supreme Court stated that “[a] judge's duty
to a defendant before accepting his guilty or no contest plea is graduated
according to the seriousness of the crime with which the defendant is
charged.” Watkins at ¶ 25. It held that, “in all cases, the judge must inform
the defendant of the effect of his plea.” Id. at ¶ 26. The Supreme Court
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observed that trial courts have additional requirements under Crim.R. 11 for
felony cases and misdemeanor cases involving serious offenses. However,
the Watkins court noted that there are no “constitutionally mandated
informational requirements for defendants charged with misdemeanors,”
and thus “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.” Id. at ¶ 28. The Supreme Court held that
“where 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).” Id.
State v. Mullett, 2013-Ohio-3041, 995 N.E.2d 924, ¶ 13 (2d Dist.).
{¶ 11} In State v. Craaybeek, 2d Dist. Greene No. 2004-CA-39, 2005-Ohio-437,
Lisa Craaybeck argued that her suspension for driving while under suspension “should
be set aside because the trial court failed to tell her that her guilty plea was a complete
admission of her guilt as required by Traf.R. 10(D).” Id., ¶ 2. This Court determined as
follows:
Recently the Ohio Supreme Court held that 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.
State v. Griggs, 103 Ohio St.3d 85, 87, 814 N.E.2d 51, 2004-Ohio-4415.
Justice O’Connor wrote as follows:
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“The right to be informed that a guilty plea is a complete admission
of guilt is nonconstitutional and therefore is subject to review under a
standard of substantial compliance. State v. Nero, 56 Ohio St.3d at 107,
564 N.E.2d 474. Though failure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a presumption that
it was entered involuntarily and unknowingly, failure to comply with
nonconstitutional rights will not invalidate a plea unless the defendant
thereby suffered prejudice. [Id.] at 108, 564 N.E.2d 474. The test for
prejudice is ‘whether the plea would have otherwise been made.’ [Id.]
Under the substantial-compliance standard, we review the totality of
circumstances surrounding Griggs’ plea and determine whether he
subjectively understood that a guilty plea is a complete admission of guilt.”
Id., ¶ 14-15.
{¶ 12} Robinson’s reliance upon Crim.R. 11 is misplaced, and having reviewed
the record, we conclude that there was substantial compliance with Traf.R. 10(D) herein
as well. The record reflects that the following exchange occurred at Robinson’s plea
hearing:
JUDGE: Good morning. Alright, how are you going to proceed
with Mr. Robinson?
MR. ROWLAND: Your Honor, at this time we’d respectfully request
leave of the court to withdraw our previously entered plea of Not Guilty and
enter a plea to the amended charge of 4511.194, that being Physical
Control. I have advised my client of the rights he’s giving up by going
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forward. He knows that there will be no Jury Trial in this matter and he
does waive his right to a Jury Trial. At this time we respectfully enter a plea
of Guilty to the charge.
JUDGE: Is there a Jury Demand on this case?
MR. ROWLAND: There was a Jury Demand, yes. Let me just . . .
JUDGE: Because we need that waived in writing as well.
MR. ROWLAND: What, what’s going to happen is because you
have a right to a Jury Trial it’s so important you have to waive it in writing,
that’s what this document is going to say, okay? If I may approach, Your
Honor.
JUDGE: Actually, we, we don’t have a request for Jury Trial, but I
still want him to waive it in writing, because I’m not going through the entire
file to make sure someone simply forgot to put in on the back.
MR. ROWLAND: Your Honor, if I may approach, please let the
record reflect that the Jury Waiver has been executed in open Court.
***
JUDGE: * * * Alright, Mr. Robinson, let’s talk about your plea for just
a moment. A Physical Control is still a first degree misdemeanor, that
means that it can carry as much as $1,000.00 fine and six months in jail,
and knowing [what] the maximum charge carries did you still want to enter
a Guilty plea and accept the plea offer?
MR. ROWLAND: You’re not going to get that, but she has to inform
you of the maximums, so she has to . . .
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JUDGE: Did you hear me okay, do you know what I said?
MR. ROBINSON: Yes.
JUDGE: * * * Is that your understanding, you’re accepting the offer
of Physical Control?
MR. ROBINSON: Yes.
JUDGE: Okay, and did you want to then give up your right to have
a Trial, either a Bench Trial to the Court or Jury Trial of your peers, either
one? Are you okay?
MR. ROBINSON: Yes.
JUDGE: Alright, what’s going on?
MR. ROBINSON: I’m alright.
JUDGE: What?
MR. ROBINSON: I’m alright.
JUDGE: Okay.
MR. ROBINSON: May I have one, one second?
JUDGE: You want a second?
MR. ROBINSON: Yes.
MR. ROWLAND: Yeah, so what, I, I work for you buddy, you tell me
what you want, I’ll do it. Now this would be before her, it’s what we talked
about before, it’s what we talked about many times. This is what you want
to do? This is literally your last chance to tell me this is not what you want
to do and, if we can go forward that’s what everybody’s here to do today, is
to go forward and get this over with.
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JUDGE: Did you understand that when you told me you wanted to
accept the offer of Physical Control, we’re not going to set the case for a
Trial, right, because you’ve accepted the plea offer. I just want to make
sure that it’s [a] knowing, voluntary plea. That’s my job to make sure that
this is what you want to do. And once you tell me that you want to accept
the plea off . . . offer then I’m going to give you a chance to speak in your
own behalf, anything in mitigation of your sentence, anything you want to
tell me about the matter. That’s how this works. I’m not trying to scare
you right now. I’m making sure it’s a knowing voluntary plea, nobody’s
twisted your arm, this is something that you want to do. Are you thinking,
worried about the sentence, is that what’s bothering you?
MR. ROBINSON: I’m thinking a few different things.
JUDGE: A few different things?
MR. ROBINSON: Yes.
JUDGE: I’ve pretty much explained to your lawyer it’d be a three
day program, a fine, a license suspension, which you would have gotten
anyway because you refused. That’s . . .
MR. ROBINSON: I still get a license suspension?
MR. ROWLAND: Yes, you do.
JUDGE: When you refuse the test. You’d have a refusal
suspension anyway. You were told that when you signed the, the form with
the . . .
MR. ROWLAND: Your Honor, at this time we would ask that it be
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set for Trial before the, do you want a Jury Trial or do you want a Trial before
the Court?
MR. ROBINSON: That has to be done today?
MR. ROWLAND: You have to decide right now what you want.
JUDGE: Well, you’ve got to remember then you’re talking about it’s
back to an OVI and then that’s a whole different set of penalties, alright, if
you do that. I’m just trying to make you think about it. Do you want a
chance to speak with your client?
MR. ROWLAND: I, I would, Your Honor. I, and I, I think that we’ve
talked about this before, but I’ll have the, a chance, if you don’t mind, while
the other . . .
JUDGE: Yes.
MR. ROWLAND: . . . case is going on?
JUDGE: He needs to understand that by operation of law when he
refused the test regardless.
MR. ROWLAND: We under . . . we’ve gone over that but we’ll go
over it again.
JUDGE: Okay.
MR. ROWLAND: Mr. Robinson, come out with me.
(OFF RECORD)
BAILIFF: Your Honor, we’re back on record now on State versus
Robinson, Mr. Rowland’s representing.
JUDGE: Okay, where are we now, Mr. Robinson?
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MR. ROBINSON: Physical control.
JUDGE: Your lawyer’s done a really good job for you. I’m not quite
sure what this is all about, but we’re going to move forward and that’s what
you want to do, you want to accept the plea bargain?
MR. ROBINSON: Yes.
JUDGE: I’m going to find that you’ve knowingly waived your rights,
make a finding of guilt and accept your Guilty plea. * * *
{¶ 13} It is clear that Robinson executed a jury waiver in open court. He
ultimately indicated that he wanted to accept the plea bargain, namely to enter a plea of
guilty to physical control in exchange for the dismissal of the O.V.I. charge. The court
addressed the amended charge and its penalties, and Robinson was afforded additional
time to confer with counsel. The court advised him that in the event he chose to plead not
guilty, he would proceed to trial on the O.V.I. offense. We conclude that prejudice is not
shown due the court’s failure to advise Robinson that his guilty plea is a complete
admission of guilt, and Robinson’s first assignment of error is overruled.
{¶ 14} Robinson’s second assignment of error is as follows:
THE TRIAL COURT FAILED TO INQUIRE WHETHER AN
APPELLANT PROCLAIMING HIS INNOCENCE WAS MAKING A
RATIONAL DECISION TO ENTER A GUILTY PLEA.
{¶ 15} Robinson directs our attention to State v. Dunnier, 2d Dist. Montgomery No.
21762, 2007-Ohio-4891, which noted that in “the case of North Carolina v. Alford (1970),
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, the United States Supreme Court held that a
plea of guilty may be accepted by a trial court despite a defendant’s protestations of
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innocence.” Id., ¶ 23. This Court further noted in Dunnier as follows:
In the case where a defendant protests innocence but nevertheless
is willing to plead guilty, the trial court “must determine that the defendant
has made a rational calculation to plead guilty notwithstanding his belief that
he is innocent.” State v. Padgett (1990), 67 Ohio App.3d 332, 338, 586
N.E.2d 1194. The accomplishment of this task requires a trial court at a
minimum, to make an “inquiry of the defendant concerning his reasons for
deciding to plead guilty notwithstanding his protestations of innocence; it
may require, in addition, inquiry concerning the state’s evidence in order to
determine that the likelihood of the defendant’s being convicted of offenses
of equal or greater magnitude than the offenses to which he is pleading
guilty is great enough to warrant an intelligent decision to plead guilty.” Id.
at 338-39.
Id., ¶ 26.
{¶ 16} Robinson argues as follows:
Appellant specifically indicates he was not drinking on the night in
question. Thus, he denies an essential element of the charge. No inquiry
was made into his reasoning for entering a guilty plea notwithstanding his
protestations of innocence. Furthermore, no inquiry was made into the
state’s evidence to determine the likelihood of his conviction as required by
Dunnier and Padgett. As such, the plea should be ordered withdrawn and
the case remanded to the trial court.
{¶ 17} The record reflects that after the court accepted Robinson’s guilty plea as
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set forth above, the following exchange occurred:
***
JUDGE: * * * And do you think there’s a drinking problem that needs
addressed?
MR. ROBINSON: Absolutely not.
JUDGE: Okay, any kind of drug problem?
MR. ROBINSON: No, no ma’am.
***
JUDGE: Anything else you want to tell me about this night in
question, where had you been or you don’t have to tell me anything if you
don’t want to.
MR. ROBINSON: The night in question?
JUDGE: This night here, on March 11. Only tell me the truth or
just . . .
MR. ROWLAND: This is the colloquial, she’s trying to get an idea
of who you are so she can fashion a remedy. You tell her the truth. This
is, this is what we do now, yes. You, if you want to talk to her . . .
JUDGE: I always call it, I’ve already said it once, this is reality court.
MR. ROWLAND: Yes.
JUDGE: People make mistakes. This does not mean that you’re
a bad person that you’re in front of me. I don’t make that kind of judgment
at all. Very good people make mistakes in judgment every day.
MR. ROBINSON: I was coming from getting something to eat, on
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my way home and he pulled me over.
JUDGE: Okay. Okay, it’s going to be a $200.00 fine, Court costs,
one (1) year probation, a hundred and eighty days (180) days, suspending
all but three (3) and I’m going to give you option of three (3) days jail or an
alcohol education program, a hundred and seventy-seven (177) days
suspended on the condition no drug or alcohol related offenses for the next
year. Six-month license suspension backdated to March 11 of 2016.
Looks like you’re otherwise valid except for the suspension, this ALS
suspension, correct? I’ll go ahead and terminate that ALS suspension, six
(6) months, you’ve got a little bit left on your suspension. You need to drive
where, work?
MR. ROBINSON: And school.
***
JUDGE: Where do you go to school, you didn’t tell me about that.
MR. ROBINSON: Downtown, Sinclair.
JUDGE: What are you taking there?
MR. ROBINSON: Information Systems.
JUDGE: Information Systems, okay. Do you think you have a
drinking problem that needs addressed? I saw the break you got three (3)
years ago, as well as the Diversion Program.
MR. ROBINSON: Ma’am, truthfully I didn’t drink that night.
JUDGE: He smelled an odor of alcohol strong on your breath.
MR. ROBINSON: Ma’am, I did not drink that night. Video doesn’t
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match the Statement of the Facts. I’ll go to my grave with that.
JUDGE: What?
MR. ROBINSON: I will go to my grave with that.
JUDGE: Okay, that’s all, thank you.
{¶ 18} We conclude that Robinson’s reliance on Dunnier is misplaced. The
defendant in Dunnier advised the court that he intended to enter an Alford plea to the
indicted charges, and he pled guilty to four counts of gross sexual imposition in exchange
for the State not going forward with securing a new indictment for rape, pursuant to which
he would face life in prison. Id., ¶ 2. Robinson protested his consumption of alcohol
after the court accepted his guilty plea and after the court imposed sentence. The Traffic
Rules require no pre-plea factual inquiry by the court, and as the State asserts, “the case
law cited by Appellant under the Second Assignment of Error can be distinguished since
they apply to felony cases and Ohio Crim.R. 11 instead of traffic cases.” Accordingly,
Robinson’s second assignment of error is overruled.
{¶ 19} Robinson’s third assignment of error is as follows:
THE TRIAL COURT MUST MAKE A RULING ON A MOTION TO
WITHDRAW A GUILTY PLEA PRIOR TO AN ENTRY CERTIFYING THE
SENTENCE.
{¶ 20} Robinson asserts that this “assignment of error is moot as the plea was
invalid and needs to be withdrawn. However, the Court needed to make a ruling on the
motion to withdraw the plea prior to certifying the sentence.”
{¶ 21} The State responds that Robinson’s “third assignment of error must fail
because no Motion to Withdraw was ever received or filed with the Trial Court.
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Therefore, no ruling was required.” According to the State, Robinson’s correspondence
bearing a time stamp of September 9, 2016 “is simply a letter dated August 31, 2016
addressed to the Honorable Judge Cynthia M. Heck stating, ‘I am writing you to request
a Motion to Withdrawal my plea’ * * *.” The State asserts that “[t]his statement requests
that the Court file a Motion to Withdraw on the Defendant’s behalf. It has been
mischaracterized as a Motion to Withdraw a Plea.” The State argues that Robinson was
represented by Attorney Rowland, “and for obvious reasons the Court could not file a
Motion on the Defendant’s behalf.” The State asserts as follows:
This document was submitted post sentencing, does not conform to
any recognizable pleading form, was personally addressed to Judge Heck,
contained no Certificate of Service to the Prosecutor’s Office, reflects no
evidentially sound manifest miscarriage of justice, and was followed three
days later with a hand written request for a Notice of Appeal. In addition,
the last paragraph of this document states, “In summation Your Honor, I am
humbly asking you to accept my Motion to Withdraw my Plea due to
inadequate representation and the pressure I was experiencing to make a
decision based on the information given to me.”
Again, this sentence permits a reasonable interpretation that a
Motion to Withdraw was to be attached, or included with the
correspondence. It was not. And, the trial court was in no position to
provide legal advice to the Defendant. It can be reasonably concluded that
the Defendant decided not to file a Motion to Withdraw, and instead filed a
Notice of Appeal three days later. Should this Honorable Court construe
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this letter to be a Motion to Withdraw a plea, neither the Prosecutor’s Office,
nor the Trial Court were provided adequate time to respond. The letter was
filed on September 9, 2016 which was a Friday. The letter was then
supplanted by a Notice of Appeal filed September 13, 2016, which was the
following Tuesday. That timeline makes no accounting for any notice and
response time for the State of Ohio Prosecutor. A fair and just conclusion
can be made for a tacit withdrawal of the letter’s disguised request.
{¶ 22} The Traffic Rules do not include a rule governing the service of motions.
Traf.R. 20 provides that if “no procedure is specifically prescribed by these rules, the
Rules of Criminal Procedure and the applicable law apply.” Crim.R. 49(A) provides that
“* * * written motions other than those heard ex parte * * * shall be served upon each of
the parties.” Crim.R. 49(C) provides that “[p]apers filed with the court shall not be
considered until proof of service is endorsed thereon or separately filed. The proof of
service shall state the date and the manner of service and shall be signed and filed in the
manner provided in Civil Rule 5(D).” Robinson failed to properly serve his “motion to
withdraw his plea,” thus the jurisdiction of the trial court was not properly invoked, and the
court was precluded from ruling upon the motion. In other words, the motion was a
nullity. Accordingly, Robinson’s third assignment of error is overruled.
{¶ 23} Having overruled Robinson’s three assignments of error, the judgment of
the trial court is affirmed.
.............
WELBAUM, P.J. and TUCKER, J., concur.
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Copies mailed to:
Joe Cloud
John Pinard
Hon. Cynthia M. Heck