Motion to Withdraw Guilty Plea in Ohio

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Motion to Withdraw Guilty Plea in Ohio

On this page, are several motions to withdraw guilty pleas for different types of Ohio cases.

DISCLAIMER:These motions are examples only and should not be construed as legal advise, nor have the cases cited been recently vetted for validity.

Ohio Motion to Withdraw Guilty Plea After Intervention in Lieu of Conviction Revocation

MOTION TO WITHDRAW GUILTY PLEA

Now comes the Defendant, who through counsel, respectfully requests this Court permit him to withdraw his guilty plea. The reasons for this request are set forth for in the memorandum in support below.

MEMORANDUM IN SUPPORT

Background.

On December 11, 2012, a Franklin County grand jury indicted the above-named Defendant on one count of Possession of a Controlled Substance a felony of the fourth degree.

On March 17, 2013, the Defendant, through counsel, filed a motion for intervention in lieu of conviction.

On March 29, 2013, the Court, finding that the Defendant had no prior felony record, and was otherwise qualified for intervention in lieu of conviction, granted his motion.

Also on March 29, 2014, the Defendant signed a guilty plea form which the Court, pursuant to R.C. 2951.041, accepted but did not journalize.

On March 7, 2014, the Franklin County Probation Department filed a statement of violations for intervention in lieu of conviction alleging that the Defendant failed several drug screens which were positive for marijuana and had otherwise failed to adequately comply with ILC requirements.

Constitutional Implications.

A motion to withdraw a defendant’s guilty plea implicates the defendant’s Constitutional Due Process Rights and his Right to the Effective Assistance of Counsel. State v. Armstead (2000), 138 Ohio App. 3d 866; State v. Kidd, 168 Ohio App. 3d 382.

A defendant may dispute the knowing, intelligent, and voluntary nature of his guilty plea by filing a motion to withdraw the plea. State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509.

The Constitutional “voluntariness” implications of a presentence motion to withdraw the Defendant’s guilty plea, trump the statutory ILC revocation requirements of R.C. 2951.041. State v. Abi-Aazar, 154 Ohio App.3d 278, 284  (2003).

“[I]t is universally accepted that consideration of constitutional guarantees, such as… due process, trumps statutory or procedural considerations.” Chirila v. Ohio State Chiropractic Bd., 145 Ohio App. 3d 589, 595 (2001).

A presentence motion to withdraw guilty plea should have been granted where Defendant was not aware and counsel did not advise the Defendant of a line of defenses. State v. Young, 2004 Ohio 5794. It is an abuse of discretion not to allow before trial a withdrawal of a guilty plea where a defense is asserted. State v. Casale, 34 Ohio App. 3d 339.

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. Dickey, 15 Ohio App. 3d 151.

Here, the Defendant was unaware and had not been advised that the fourth degree felony count of Possession of a Controlled Substance under 2925.11 sets forth an affirmative defense of personal use under R.C. 2901.05.

Additionally, the Defendant was also unaware and had not been advised of his right to demand the testimony of the State’s Chemist under 2925.51(D), nor of his right to a Fourth Amendment challenge to the admissibility of the State’s evidence which it obtained by it’s intrusion into the Defendant’s residence.

Elusive Sentencing Recommendation.

Ohio courts have held that motions to withdraw guilty pleas should have been granted, where as here, a negotiated joint recommendation disintegrates. State v. Quinn, 2003-Ohio-5743  See also, State v. Walton, 2 Ohio App. 3d 117 (1981). State v. Rand, 2004 Ohio 5838.

The the Defendant recognizes his failure to maintain abstinence from his use of marijuana during the intervention period.

However, the Defendant also recognizes that based on this experience with ILC he is unlikely to be a successful candidate for reporting probation. For this reason, the Defendant has proposed a number of potential joint sentencing recommendations which would require the Defendant to accept numerous consequences both for the underlying conduct and his failure to maintain abstinence.

The proposed consequences included the Defendant agreeing to a felony conviction, a substantial financial sanction, some period of incarceration and an extended period of non-reporting probation. The only qualification the Defendant has to any potential resolution and recommendation is that he not be set up for failure with urine screens being a requirement of any term of probation. The Defendant recognizes that regrettably the best opportunity for him to consistently abstain with the aide of intervention has passed him by unsuccessfully.

The Defendant does not wish to unrealistically and perhaps falsely represent to the Court that he will never relapse again. Nor does he wish to ask the Court to incur the additional burden of numerous potential violations hearings likely culminating with a result very similar, but perhaps more severe than the resolution currently proposed by the Defendant.

Instead, the Defendant has, through counsel, discussed with the State a range of possible joint recommendations which would impose severe sanctions on the Defendant, while not setting him up for failure with continued reporting requirements and possibly future revocations.

Despite the Defendant having reached an agreement in principle with the State that he would suffer a financial sanction and incur a period of incarceration, the actual joint sentencing recommendation failed to materialize because of an “informal policy” within the Franklin County Prosecutor’s Office.

Conclusion

Because the Defendant has been unable to reach an agreement on a joint recommendation for the Defendant’s sentence, and because the Defendant was unaware and not advised by counsel of several defenses at the time he entered into is guilty plea, the Defendant requests this Court freely grant his pre-sentence request to withdraw his guilty plea.

Ohio Post-Sentence Motion to Withdraw No Contest Plea After Negative Chemical Test DUI / OVI

MOTION TO WITHDRAW NO CONTEST PLEA

Now comes the Defendant, who through counsel, respectfully requests this Court permit him to withdraw his no contest plea. The reasons for this request are set forth for in the memorandum in support below.

MEMORANDUM IN SUPPORT

Background

On May 4, 2015, the State of Ohio charged the Defendant with OVI pursuant to R.C. 4511.19(A)(1)(a).

On May 6, 2015 at arraignment, the Defendant pled no contest and the Court found him guilty of the offense of OVI.

The Defendant entered his no-contest plea under several mistaken beliefs. First, the Defendant believed that, by entering a no contest plea he was submitting himself to an abbreviated court trial. Second, the Defendant believed that the Court would have access to his urine screens which he anticipated would exonerate him.

In July 2015, the Defendant contacted the State High Patrol and discovered that his urine screens were returned, and he had indeed tested negative for any alcohol and/or drugs of abuse.

However, the urine screens were not accessible to the Court nor a factor for the Court’s consideration on the Defendant’s May 6, 2015 arraignment and no-contest plea as the Defendant had believed.

Law and Argument

A hearing on a post-sentence motion to withdraw a guilty or no contest plea is required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn. State v. Kidd, 2006 Ohio 4008, ¶ 5. The court in State v. Norris, held that the trial court abused its discretion in denying a Defendant’s motion to withdraw her no contest plea on an OVI without reviewing a transcript of the defendant’s plea or by providing her a hearing on her motion. 2004 Ohio 1483, ¶ 13.

Here, the Defendant maintains his innocence in the matter and states that his negative urine sample exonerates him. Further, the Defendant requests a hearing on his motion.

A defendant who seeks to withdraw a plea of guilty or no contest after the imposition of a sentence has the burden of establishing that the withdrawal is necessary to correct a manifest injustice. Crim.R. 32.1; State v. Smith, 49 Ohio St.2d 261. A motion to withdraw a plea of guilty or no contest is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by the trial court. State v. Grigsby, 2003 Ohio 2823, ¶19. The manifest-injustice standard requires a showing of “extraordinary” circumstances, and the defendant bears the burden of showing the existence of a manifest injustice. State v. Mays, 2008 Ohio 128, ¶19.

Here, the manifest injustice standard has is met because the Defendant is factually innocent and will supply evidence of the same upon at the hearing he has requested in this matter.

The Defendant also contends he is entitled to withdraw his guilty plea because the evidence he submitted in support of his motion meets the standards for a new trial as set forth in State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002 Ohio 6502.

For the reasons set forth herein, the Defendant respectfully requests that this Court schedule a hearing on this motion and/or enter an order permitting the Defendant to withdraw his no contest plea.

Ohio Post-Sentence Motion to Withdraw Guilty Plea

MOTION TO WITHDRAW GUILTY PLEA
Now comes the Defendant, who through counsel, respectfully requests this Court permit him to withdraw his guilty plea in the above referenced case. The reasons for this request are set forth for in the memorandum in support below.

MEMORANDUM IN SUPPORT

Background.

On July 29, 2015, the above referenced Defendant entered a guilty plea to three counts of Illegal Use of a Minor in Nudity Oriented Materials. Subsequently, this Court sentenced the Defendant to five years in prison for each of the three counts to be served consecutively for a 15 year total sentence.

However, Defendant’s Counsel at the time, advised the Defendant that the he would either be sentenced to probation, and if he were to be sentenced to a prison term it would be for six months and in no event more than two years. See Defendant’s Affidavit (attached).

Law and Argument.

Ineffective assistance of counsel is a proper basis for seeking post-sentence withdrawal of a guilty plea. State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, at ¶ 18; Hamed, 63 Ohio App.3d at 8, 577 N.E.2d 1111. Moreover, a guilty plea is not voluntary if it is the result of ineffective assistance of counsel. State v. Banks, 9th Dist. No. 01CA007958, 2002-Ohio-4858, 2002 WL 31059911, at ¶ 16.

A claim of ineffective assistance of counsel requires a showing that the lawyer’s conduct fell below professional standards and that the defendant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Johnson (2000), 88 Ohio St.3d 95, 108, 723 N.E.2d 1054. When a defendant claims ineffective assistance after entering a guilty plea, she must also show that the ineffective assistance precluded her from entering the plea knowingly and voluntarily. State v. Doak, 7th Dist. Nos. 03 CO 15 and 03 CO 31, 2004 Ohio 1548, 2004 WL 614851, at ¶ 55; State v. Sopjack (Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 WL 869968.

While the court gives “considerable deference to a lawyer’s judgment when advising a client about the likelihood of outcomes within the range of possibilities, there is no justification for misinforming a client about the state of unambiguous law.” Creary at ¶ 10, citing United States ex rel. Hill v. Ternullo (C.A.2, 1975), 510 F.2d 844, 847. Cf.State v. Creary, 2004 Ohio 858..

“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.”   In State v. Xie  (1992), 62 Ohio St.3d 521, the supreme court held that a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea when the motion is made before sentencing.  The supreme court has not decided whether the trial court must conduct a hearing when the defendant’s motion is made after sentencing.

A hearing on a post-sentence motion to withdraw a guilty or no contest plea is required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn. State v. Kidd, 2006 Ohio 4008, ¶ 5.

The manifest-injustice standard requires a showing of “extraordinary” circumstances, and the defendant bears the burden of showing the existence of a manifest injustice. State v. Mays, 2008 Ohio 128, ¶19.

Here, the Defendant requests that this Court permit him to withdraw his guilty plea as his attorney did not advise him of the ramifications of entering his plea, and that the sentence imposed by the Court was even possible under the law.

To the contrary, The Defendant’s trial Counsel advised him that the worst sentence he could expect would be more than a decade less than he in fact received.

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