[Cite as State v. Barner, 2012-Ohio-4584.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
STATE OF OHIO, : Case No. 10CA9 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY1 : DAVID A. BARNER, : : RELEASED 07/05/12 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:
Timothy Young, State Public Defender and Peter Galyardt, Assistant State Public Defender, Columbus, Ohio, for appellant.
Colleen Williams, Meigs County Prosecutor, and Amanda Bizub-Franzmann, Meigs County Assistant Prosecutor, Pomeroy, Ohio, for appellee. ______________________________________________________________________ Harsha, J.
{¶1} David Barner appeals his convictions for multiple sexual offenses. Barner
contends that he did not knowingly, voluntarily, and intelligently plead guilty to the
offenses because the trial court failed to inform him of the maximum penalty for each
charge. He acknowledges that at the judge’s direction, the prosecutor explained these
penalties to him in open court during the change of plea hearing. However, Barner
argues that Crim.R. 11(C)(2)(a) obligates the judge to personally explain the penalties
and does not permit the judge to delegate this responsibility. We disagree. The rule
only requires that the judge personally address the defendant to ensure he understands
the maximum penalties. Although the rule implies that before the maximum penalty can
be understood it must be explained, nothing in the rule prohibits the prosecutor from
1 We previously dismissed this appeal for Barner’s failure to comply with an order of this court and to prosecute this case. Subsequently, we granted Barner’s App.R. 26(A) application for reconsideration. Meigs App. No. 10CA9 2
explaining it in open court. Rather the rule simply requires the court to address the
defendant to ensure the defendant understands the maximum possible penalty. Here,
after the prosecutor announced the penalties, the trial judge asked Barner if he
understood them, and Barner stated that he did. Because the court confirmed that
Barner understood the maximum penalties before accepting his guilty pleas, the court
substantially complied with Crim.R. 11(C)(2)(a).
{¶2} Next, Barner argues that the trial court abused its discretion when it
denied his pre-sentence motion to withdraw his pleas. Barner argues that he did not
understand that by pleading guilty, he could not appeal “aspects of his case that
occurred before his pleas of guilty.” However, before the court accepted his pleas,
Barner signed a statement that he understood his “limited appellate rights.” Nor does
the record support Barner’s contention that the court applied the wrong legal standard in
denying the motion. Moreover, the record shows that: 1.) Barner received a full Crim.R.
11 hearing; 2.) the court conducted a full hearing on the withdrawal motion; 3.) the court
gave full and fair consideration to the motion; 4.) Barner understood the nature of the
charges and the possible penalties; and 5.) Barner did not file his motion within a
reasonable time. Barner does not argue that he was represented by incompetent
counsel at the change of plea hearing and does not claim that he was not guilty or had a
complete defense to the charges. And the mere fact that the State would not be
prejudiced if the court granted his motion is not dispositive. Because the trial court’s
decision to deny the motion was not unreasonable, unconscionable, or arbitrary, we
affirm the judgment below.
I. Facts Meigs App. No. 10CA9 3
{¶3} In case number 09-CR-003, a grand jury indicted Barner on two counts of
pandering obscenity involving a minor, two counts of pandering sexually oriented matter
involving a minor, two counts of sexual battery, and two counts of gross sexual
imposition. In case number 09-CR-114, Barner was charged in a bill of information with
one count of pandering obscenity involving a minor. The trial court never officially
consolidated these cases.
{¶4} The trial court entered a nollee prosequi on the sexual battery charges,
and Barner pleaded guilty to the remaining charges. The court immediately sentenced
Barner in 09-CR-114 but scheduled sentencing in 09-CR-003 for a later date. Before
the second sentencing hearing, Barner filed a pro se motion to withdraw his guilty plea
in 09-CR-114 based on ineffective assistance of counsel. At a hearing, the parties and
court treated Barner’s motion as one to withdraw his pleas in both cases and acted as if
the cases had been consolidated. They considered Barner’s motion as a pre-sentence
motion to withdraw all of his guilty pleas (because the trial court had not yet sentenced
him on the 09-CR-003 charges, making his sentence in 09-CR-114 interlocutory)
instead of treating it as a post-sentence motion to withdraw his plea in 09-CR-114. The
court denied Barner’s motion, stating:
The defendant does not have an absolute right to withdraw his guilty plea’s [sic] prior to sentencing. To determining [sic] if the defendant should be allowed to withdraw a plea of guilty prior to sentencing the trial court conducted the hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. The defendant did not meet his burden and the Court found no reasonable or legitimate basis for the withdrawal of the plea. (Footnotes omitted.)
{¶5} This appeal followed.
II. Assignments of Error Meigs App. No. 10CA9 4
{¶6} Barner assigns two errors for our review:
ASSIGNMENT OF ERROR I
David Barner was deprived of his right to due process when the trial court accepted unknowing, unintelligent, and involuntary guilty pleas. Fourteenth Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. (August 27, 2009 Transcript, at 4-10).
ASSIGNMENT OF ERROR II
The trial court abused its discretion when it denied Mr. Barner’s November 23, 2009 motion to withdraw his guilty pleas. (March 1, 2010 Transcript, at 4-27); (April 15, 2010 Entry).
III. Explanation of Maximum Penalties
{¶7} In his first assignment of error, Barner contends that his guilty pleas were
not knowing, voluntary, and intelligent because the trial judge did not explain to him the
maximum penalty for each offense before accepting his pleas. In deciding whether to
accept a guilty plea, the trial court must determine whether the plea was made
knowingly, intelligently, and voluntarily. State v. McDaniel, 4th Dist. No. 09CA677,
2010-Ohio-5215, ¶ 8. “‘In considering whether a guilty plea was entered knowingly,
intelligently and voluntarily, an appellate court examines the totality of the
circumstances through a de novo review of the record to ensure that the trial court
complied with constitutional and procedural safeguards.’” (Emphasis sic.) Id., quoting
State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, ¶ 48.
{¶8} “Before accepting a guilty plea, the trial court should engage in a dialogue
with the defendant as described in Crim.R. 11(C).” McDaniel at ¶ 8, citing State v.
Morrison, 4th Dist. No. 07CA854, 2008-Ohio-4913, ¶ 9. Crim.R. 11(C)(2) provides:
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: Meigs App. No. 10CA9 5
(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.
***
Because it does not involve constitutional rights, substantial compliance with Crim.R.
11(C)(2)(a) is sufficient for a valid plea. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 14. “‘Substantial compliance means that, under the
totality of the circumstances, appellant subjectively understood the implications of his
plea and the rights he waived.’” McDaniel at ¶ 13, quoting State v. Vinson, 10th Dist.
No. 08AP-903, 2009-Ohio-3240, ¶ 6.
{¶9} As the Supreme Court of Ohio explained in State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32:
When the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudice is “whether the plea would have otherwise been made.” If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. “A complete failure to comply with the rule does not implicate an analysis of prejudice.” (Emphasis sic.) (Citations omitted.)
{¶10} Barner acknowledges that the trial court explained to him the maximum
aggregate penalty for his crimes at the change of plea hearing. However, he complains
that the trial judge did not personally explain the maximum penalty for each individual
charge. Instead, the prosecutor did this in open court at the trial court’s direction.
Barner contends that his plea was invalid because Crim.R. 11(C)(2)(a) requires the trial Meigs App. No. 10CA9 6
judge to personally give the defendant this information and does not permit the judge to
delegate that duty to the prosecutor. He claims that because the trial court completely
failed to comply with Crim.R. 11(C)(2)(a), we must presume prejudice and vacate his
pleas. And he cites the fact that the prosecutor and his Petition to Enter a Plea of Guilty
overstated the maximum penalty for one of the charges as evidence of the “overall
imprecision that surrounded the proceedings in this case.” (Appellant’s Br. 8).
{¶11} As we already concluded, Crim.R. 11(C)(2)(a) obligates the trial court to
address the defendant personally before accepting a plea and determine that the
defendant understands the maximum penalties involved. However, nothing in the rule
prohibits the trial court from designating another person, such as the prosecutor, to
recite the penalties to the defendant in the trial judge’s presence and then asking the
defendant if he understands them. There is no reason why a defendant could not
understand the maximum penalties he faces simply because the prosecutor recites
them instead of the trial judge. The rule Barner advocates elevates form above
substance.
{¶12} Barner cites State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990) for
the proposition that “the trial court must personally inform the defendant of the
constitutional and nonconstitutional rights that he waives as a result of pleading guilty.”
(Appellant’s Br. 6). Although the Supreme Court of Ohio did indicate that the trial court
must personally advise the defendant of the matters listed in Crim.R. 11(C)(2)(a), see
Nero at 107, we find Nero, which involved the clause related to probation eligibility,
distinguishable from this case. In Nero, no one advised the defendant about his
ineligibility for probation in open court. So the Nero Court did not address whether a Meigs App. No. 10CA9 7
prosecutor could advise the defendant in the court’s presence, and the court could then
personally address the defendant to ensure he understood the prosecutor’s statements.
In other words, the Nero Court did not address the trial court’s ability to delegate its
responsibilities under Crim.R. 11(C)(2)(a).
{¶13} Here, the trial court had the prosecutor inform Barner of the maximum
penalties for each charge in open court. As the prosecutor did so, the trial judge
repeatedly addressed Barner and asked whether he understood the penalties. And
Barner repeatedly stated that he did. Barner’s Petition to Enter a Plea of Guilty and the
prosecutor misstated the maximum penalty for one of his fourth-degree felony charges
for pandering sexually oriented matter involving a minor as eight years when it was only
eighteen months. R.C. 2929.14(A)(4). However, the trial court corrected the
misstatement during the change of plea hearing, further demonstrating the court’s
diligence in ensuring Barner understood the maximum penalty for his individual crimes.
Furthermore, it is hard to see how Barner could have been prejudiced by an
overstatement of the penalties, i.e., that he would not have pled guilty if the penalty was
explained correctly.
{¶14} Finally, it is clear that Barner understood the possible penalties he faced.
Again, the prosecutor explained them in open court, and Barner repeatedly
acknowledged that he understood them. In his petition to enter his guilty pleas, Barner
also represented to the trial court that he understood the maximum penalties he faced.
Moreover, Barner does not argue that he did not understand the penalties. Because the
trial court personally addressed him and ensured that he understood the maximum
penalties he faced prior to accepting Barner’s guilty pleas, we hold that the trial court Meigs App. No. 10CA9 8
substantially complied with Crim.R. 11(C)(2)(a). Accordingly, we overrule Barner’s first
assignment of error.
IV. Motion to Withdraw Guilty Pleas
{¶15} In his second assignment of error, Barner contends that the trial court
abused its discretion when it denied his motion to withdraw his guilty pleas. As we
explained above, the trial court never consolidated Barner’s cases. Nonetheless,
because the parties and trial court treated Barner’s motion as a pre-sentence motion to
withdraw all of his guilty pleas, we will do the same.
{¶16} Crim.R. 32.1 states: “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.” “‘[A] presentence motion to withdraw a guilty plea should
be freely and liberally granted.’” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,
935 N.E.2d 9, ¶ 57, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715
(1992). However, “[a] defendant does not have an absolute right to withdraw a guilty
plea prior to sentencing. A trial court must conduct a hearing to determine whether
there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie at
paragraph one of the syllabus.
{¶17} A trial court possesses discretion to grant or deny a presentence motion to
withdraw a plea, and we will not reverse the court’s decision absent an abuse of that
discretion. See Xie at paragraph two of the syllabus. The phrase “abuse of discretion”
implies that the court’s attitude is unreasonable, unconscionable, or arbitrary. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Furthermore, “[w]hen applying Meigs App. No. 10CA9 9
the abuse of discretion standard, a reviewing court is not free to merely substitute its
judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566
N.E.2d 1181 (1991).
{¶18} We have set forth a list of factors that we consider when determining
whether a trial court abused its discretion by denying a presentence motion to withdraw
a plea: “‘(1) whether the accused was represented by highly competent counsel, (2)
whether the accused was given a full Crim.R. 11 hearing before entering the plea, (3)
whether a full hearing was held on the withdrawal motion, and (4) whether the trial court
gave full and fair consideration to the motion.’” State v. Campbell, 4th Dist. No.
08CA31, 2009-Ohio-4992, ¶ 7, quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765
N.E.2d 884 (1st Dist.2001). Other considerations include: “‘(1) whether the motion was
made within a reasonable time; (2) whether the motion set out specific reasons for the
withdrawal; (3) whether the accused understood the nature of the charges and the
possible penalties; and (4) whether the accused was perhaps not guilty or had a
complete defense to the charges.’” Id., quoting McNeil at 176. However, a change of
heart or mistaken belief about the plea is not a reasonable basis requiring a trial court to
permit the defendant to withdraw the plea. Id., citing State v. Lambros, 44 Ohio App.3d
102, 103, 541 N.E.2d 632 (8th Dist.1988).
{¶19} Barner contends that he did not receive a full Crim.R. 11 hearing because
the trial judge failed to personally explain the maximum penalty for each charge.
However, we already determined that the trial court satisfied its obligation under that
rule to ensure Barner understood the maximum penalties he faced. Moreover, the
transcript from the change of plea hearing demonstrates that Barner received a full Meigs App. No. 10CA9 10
Crim.R. 11 hearing in all other respects.
{¶20} Barner also argues that he did not receive a full hearing on the motion to
withdraw and that the trial court did not give full and fair consideration to his motion.
Barner appears to premise this argument on two complaints. First, Barner complains
that the trial court applied the wrong legal standard when it ruled on his motion. He
contends that the trial court denied his motion because the court concluded he did not
meet the standard for ineffective assistance of counsel claims instead of determining
whether he had a reasonable and legitimate basis for withdrawing his pleas.
{¶21} The record does not support Barner’s argument that the court applied the
wrong legal standard. Although Barner attempts to base his argument on statements by
the court at the hearing on his motion, “[a] court speaks through its journal entries.” In
re J.F., 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19, ¶ 25. And in its journal entry
denying Barner’s motion, the trial court makes no mention of the standard for ineffective
assistance of counsel. Instead, the court accurately stated that it had to determine
whether Barner had a reasonable and legitimate basis for withdrawing his pleas, and
held that he did not.
{¶22} Moreover, contrary to Barner’s contention, the trial court made no
statements at the hearing on his motion to withdraw his pleas that suggest the court
applied the wrong standard. At the hearing, the State correctly argued that the court
had to determine whether Barner had a “reasonable and legitimate basis” for
withdrawing his pleas. Then the State argued, without objection, that because Barner
claimed he received ineffective assistance of counsel, the court should apply the
standard of review for such claims to his motion. However, the trial court gave no Meigs App. No. 10CA9 11
indication that it agreed with the State’s position. Later in the hearing, the following
exchange occurred on pages 20-21 of the transcript, which Barner cites as evidence the
court used the wrong standard:
[PROSECUTOR]: * * * Mr. Barner is not even close to have met his burden in this particular case and in his motion, he just asserted ineffective assistance of counsel. Your Honor, here at the hearing, he’s come up with some additional grounds. Nonetheless, Your Honor, he doesn’t meet the burden. Mr. Barner got to prison, you know, was convicted pedophile; decided he didn’t like prison; decided to file a motion on ineffective assistance of counsel, as the Court will recall and as the record indicates and is filed in this record, an extensive (inaudible) was had. That (inaudible) was followed extensively. The defendant had all of his rights protected; signed a seven-page, or no, Your Honor, multi-page document and he was advised as is contained in all the Court’s records. August 27, 2009, it was an eight-page document, Your Honor, petition to enter a plea of guilty. He also entered a plea of guilty to the indicted charges and a bill of information, Your Honor. The idea… And he received the recommendation (inaudible) and had two counts dismissed. And that’s all contained in the Court’s record, Your Honor. The idea that counsel was somehow ineffective is, you know, speculative at best, ludicrous at worst, Your Honor.
THE COURT: Alright. Prepare a journal entry, Mr. Prosecutor. I tend to side with you * * *
{¶23} Although the prosecutor mentioned the phrase “ineffective assistance of
counsel” during this exchange, he did not mention the standard of review for such
claims. Therefore, we do interpret the court’s statement that it tended to “side with” the
prosecutor as an endorsement of the prosecutor’s earlier argument that the ineffective
assistance standard applied. Barner also claims that the court applied the wrong
standard on page 26 of the hearing transcript, but no discussion of the standard for
deciding Barner’s motion occurred at that time.
{¶24} Second, Barner appears to argue that he did not receive a full hearing on
the motion to withdraw and that the trial court did not give full and fair consideration to Meigs App. No. 10CA9 12
the motion because: “[T]he State used the hearing as an opportunity to try its case. It
aggressively cross-examined Mr. Barner on issues outside of his proposed reasonable
and legitimate basis for withdrawing his guilty pleas, and called the investigating
detective in the case to detail the evidence against Mr. Barner.” (Appellant’s Br. 11).
However, Barner fails to explain how these matters prevented him from getting a full
hearing or prevented the trial court from giving full and fair consideration to his motion.
{¶25} Barner also argues that he filed his motion within a reasonable time.
However, he waited until November 23, 2009, the day he was to be sentenced in 09-
CR-003, to file it. This date was nearly three months after he entered his pleas and the
court sentenced him in 09-CR-114.
{¶26} In addition, Barner claims that he gave the trial court a specific reason for
the withdrawal, i.e., “he did not understand before pleading guilty that he would not be
able to challenge on appeal aspects of his case that occurred before his pleas of guilty.”
(Appellant’s Br. 12). In the “Argument” portion of his brief, Barner does not elaborate on
what aspects of the case he wanted to appeal. In his “Statement of the Case and
Facts,” Barner indicates he wanted to challenge the search warrant for his home but
does not explain why he thought the warrant was improper. (Appellant’s Br. 3). At the
hearing on his motion, Barner claimed he “was never told that * * * [his] chances for
appeal went down with taking this plea.” And more specifically, Barner told the court he
anticipated appealing the fact that police did not allow him or his family to witness the
execution of the search warrant. He also complained that the inventory of items seized
was too general.
{¶27} However, in his Petition to Enter a Plea of Guilty, Barner stated: “I Meigs App. No. 10CA9 13
understand my right to appeal a maximum sentence, my other limited appellate rights
and that any appeal must be filed within 30 days of my sentence.” (Emphasis added.)
Thus Barner knew his appellate rights were limited if he pleaded guilty to the charges
against him. Moreover, Barner does not argue that he was represented by incompetent
counsel at the change of plea hearing. And he does not contend that he was not guilty
or had a complete defense to the charges.
{¶28} Next, Barner contends that the court abused its discretion because
allowing him to withdraw his pleas would not prejudice the State. While this is an
“important factor[ ] in determining whether to allow a presentence motion to withdraw a
guilty plea,” it is not dispositive. State v. Fairrow, 4th Dist. No. 05CA2856, 2006-Ohio-
503, ¶ 18, citing State v. Littlefield, 4th Dist. No. 03CA2747, 2004-Ohio-5996, ¶ 12.
Because none of the other considerations outlined above support a conclusion that the
trial court’s decision to deny Barner’s motion was unreasonable, unconscionable or
arbitrary, we hold that the court did not abuse its discretion. Accordingly, we overrule
Barner’s second assignment of error.
V. Summary
{¶29} Having overruled each of the assignments of error, we affirm the trial
court’s judgment.
JUDGMENT AFFIRMED. Meigs App. No. 10CA9 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.