[Cite as State v. Fife, 2011-Ohio-1147.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : THOMAS JAY FIFE : Case No. 2010CA00161 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2008CR1562
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO THOMAS FIFE, PRO SE Stark County Prosecutor Inmate No. A574-977 Richland Correctional Institution By: RONALD MARK CALDWELL P.O. Box 8107 Assistant Prosecuting Attorney Mansfield, OH 44901 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2010CA00161 2
Farmer, P.J.
{¶1} On October 7, 2008, the Stark County Grand Jury indicted appellant,
Thomas Fife, on one count of intimidation in violation of R.C. 2921.04, one count of
assault in violation of R.C. 2903.13, and one count of criminal damaging or endangering
in violation of R.C. 2909.06. On October 17, 2008, appellant pled guilty as charged. By
judgment entry filed December 16, 2008, the trial court sentenced appellant to five
years of community control.
{¶2} On September 24, 2009, appellant's probation officer filed a motion to
revoke appellant's community control. Appellant waived a probable cause hearing and
stipulated to probable cause. An evidentiary hearing was held on October 21, 2009.
Appellant stipulated to the facts of the alleged violations. By judgment entry filed
December 1, 2009, the trial court revoked appellant's community control and sentenced
him to five years in prison.
{¶3} On May 19, 2010, appellant filed a motion to withdraw his guilty pleas. By
judgment entry filed May 25, 2010, the trial court denied the motion.
{¶4} On June 16, 2010, appellant filed a motion to strike his waiver of probable
cause hearing as void and invalid under existing law. By judgment entry filed June 24,
2010, the trial court denied the motion.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows: Stark County, Case No. 2010CA00161 3
I
{¶6} "THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT
FAILED TO GRANT THE DEFENDANT-APPELLANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA."
II
{¶7} "THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO
ALLOW THE DEFENDANT TO REVOKE A VOIDABLE WAIVER IN A REVOCATION
ACTION OR ORDER COMPETENCY PROCEEDINGS TO TEST DEFENDANT'S
COMPETENCY."
{¶8} Appellant claims the trial court erred in denying his motion to withdraw his
guilty plea pursuant to Crim.R. 32.1. We disagree.
{¶9} Crim.R. 32.1 governs withdrawal of guilty plea and 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." The right to withdraw
a plea is not absolute and a trial court's decision on the issue is governed by the abuse
of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an
abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217.
{¶10} Appellant argues the state breached the plea agreement. Appellant
argues he agreed to a suspended jail sentence with "normal and regular probation," but Stark County, Case No. 2010CA00161 4
instead was placed on "intensive supervised probation." By judgment entry filed
December 16, 2008, the trial court placed appellant on community control under general
supervision and added intensive supervised probation as a condition:
{¶11} "It is therefore ordered that the defendant be sentenced to five (5) years of
community control subject to the general supervision and control of the Court under
such terms and conditions hereinafter set forth as follows:
{¶12} "***
{¶13} "16. The Defendant shall follow the following Special Conditions:
{¶14} "***
{¶15} "d. That this defendant shall comply with the Intensive Supervision
Probation program as directed by his probation officer. Upon successful completion of
the defendant's Intensive Supervision Probation Period, the defendant's probation will
be transferred to the Ohio State Adult Probation Authority for the remainder of
defendant's probationary period."
{¶16} Appellant did not appeal his sentence and conditions. On September 24,
2009, appellant's probation officer filed a motion to revoke appellant's probation for
three reasons based upon the general supervision rules of probation:
{¶17} "It is alleged that the probationer has violated The State of Ohio
Conditions(s) of Probation, which states:
{¶18} "1. RULE #6, which states:
{¶19} "The Defendant shall not purchase, possess, own, use or have under his
control, any firearms, ammunition, dangerous ordnance or weapons, including chemical
agents, electronic devices used to immobilize, pyrotechnics and/or explosive devices. Stark County, Case No. 2010CA00161 5
{¶20} "To wit: On or about 9-23-09, you did have immediate access to a
Loaded BB Rifle, with a BB in the chamber.
{¶21} "2. RULE #7, which states:
{¶22} "The Defendant shall not purchase, possess, use or have under his
control any narcotic drug or other controlled substance or illegal drugs, including any
instrument, device or other object used to administer drugs or to prepare them for
administration, unless it is lawfully prescribed for the defendant by a licensed physician.
The Defendant shall inform the supervising officer promptly of any such prescription and
the Defendant shall submit to drug testing if required by the Adult Parole Authority or
other authorized representatives of the court.
{¶23} "To wit: On or about 9-23-09, you did have possession of suspected
Marijuana, suspected Cocaine, and/or Rx Vicodin 5/500 displayed in a manner of
abusing said drug. In addition you had possession of several articles of Drug
paraphernalia.
{¶24} "3. RULE #16-F, which states:
{¶25} "That this defendant shall abstain from all alcoholic beverages and drugs
during his probation term.
{¶26} "To wit: On or about 9-23-09, you did have 3 beers in your
refrigerator, and 2 liquor bottles in you (sic) living room table."
{¶27} After stipulating to probable cause and the facts as alleged, the trial court
revoked appellant's community control and sentenced him to five years in prison. See,
Judgment Entry filed December 1, 2009. Thereafter, appellant filed his Crim.R. 32.1
motion on May 19, 2010. By judgment entry filed May 25, 2010, the trial court denied Stark County, Case No. 2010CA00161 6
the request, finding appellant's probation was not revoked under intensive supervised
probation: "The Court find Defendant's argument is without merit. Defendant signed two
separate documents on November 26, 2008, which both reflect that the Defendant was
on State Probation."
{¶28} A review of the docket substantiates the trial court's decision. Appellant's
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[Cite as State v. Fife, 2011-Ohio-1147.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : THOMAS JAY FIFE : Case No. 2010CA00161 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2008CR1562
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO THOMAS FIFE, PRO SE Stark County Prosecutor Inmate No. A574-977 Richland Correctional Institution By: RONALD MARK CALDWELL P.O. Box 8107 Assistant Prosecuting Attorney Mansfield, OH 44901 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2010CA00161 2
Farmer, P.J.
{¶1} On October 7, 2008, the Stark County Grand Jury indicted appellant,
Thomas Fife, on one count of intimidation in violation of R.C. 2921.04, one count of
assault in violation of R.C. 2903.13, and one count of criminal damaging or endangering
in violation of R.C. 2909.06. On October 17, 2008, appellant pled guilty as charged. By
judgment entry filed December 16, 2008, the trial court sentenced appellant to five
years of community control.
{¶2} On September 24, 2009, appellant's probation officer filed a motion to
revoke appellant's community control. Appellant waived a probable cause hearing and
stipulated to probable cause. An evidentiary hearing was held on October 21, 2009.
Appellant stipulated to the facts of the alleged violations. By judgment entry filed
December 1, 2009, the trial court revoked appellant's community control and sentenced
him to five years in prison.
{¶3} On May 19, 2010, appellant filed a motion to withdraw his guilty pleas. By
judgment entry filed May 25, 2010, the trial court denied the motion.
{¶4} On June 16, 2010, appellant filed a motion to strike his waiver of probable
cause hearing as void and invalid under existing law. By judgment entry filed June 24,
2010, the trial court denied the motion.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows: Stark County, Case No. 2010CA00161 3
I
{¶6} "THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT
FAILED TO GRANT THE DEFENDANT-APPELLANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA."
II
{¶7} "THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO
ALLOW THE DEFENDANT TO REVOKE A VOIDABLE WAIVER IN A REVOCATION
ACTION OR ORDER COMPETENCY PROCEEDINGS TO TEST DEFENDANT'S
COMPETENCY."
{¶8} Appellant claims the trial court erred in denying his motion to withdraw his
guilty plea pursuant to Crim.R. 32.1. We disagree.
{¶9} Crim.R. 32.1 governs withdrawal of guilty plea and 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." The right to withdraw
a plea is not absolute and a trial court's decision on the issue is governed by the abuse
of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an
abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217.
{¶10} Appellant argues the state breached the plea agreement. Appellant
argues he agreed to a suspended jail sentence with "normal and regular probation," but Stark County, Case No. 2010CA00161 4
instead was placed on "intensive supervised probation." By judgment entry filed
December 16, 2008, the trial court placed appellant on community control under general
supervision and added intensive supervised probation as a condition:
{¶11} "It is therefore ordered that the defendant be sentenced to five (5) years of
community control subject to the general supervision and control of the Court under
such terms and conditions hereinafter set forth as follows:
{¶12} "***
{¶13} "16. The Defendant shall follow the following Special Conditions:
{¶14} "***
{¶15} "d. That this defendant shall comply with the Intensive Supervision
Probation program as directed by his probation officer. Upon successful completion of
the defendant's Intensive Supervision Probation Period, the defendant's probation will
be transferred to the Ohio State Adult Probation Authority for the remainder of
defendant's probationary period."
{¶16} Appellant did not appeal his sentence and conditions. On September 24,
2009, appellant's probation officer filed a motion to revoke appellant's probation for
three reasons based upon the general supervision rules of probation:
{¶17} "It is alleged that the probationer has violated The State of Ohio
Conditions(s) of Probation, which states:
{¶18} "1. RULE #6, which states:
{¶19} "The Defendant shall not purchase, possess, own, use or have under his
control, any firearms, ammunition, dangerous ordnance or weapons, including chemical
agents, electronic devices used to immobilize, pyrotechnics and/or explosive devices. Stark County, Case No. 2010CA00161 5
{¶20} "To wit: On or about 9-23-09, you did have immediate access to a
Loaded BB Rifle, with a BB in the chamber.
{¶21} "2. RULE #7, which states:
{¶22} "The Defendant shall not purchase, possess, use or have under his
control any narcotic drug or other controlled substance or illegal drugs, including any
instrument, device or other object used to administer drugs or to prepare them for
administration, unless it is lawfully prescribed for the defendant by a licensed physician.
The Defendant shall inform the supervising officer promptly of any such prescription and
the Defendant shall submit to drug testing if required by the Adult Parole Authority or
other authorized representatives of the court.
{¶23} "To wit: On or about 9-23-09, you did have possession of suspected
Marijuana, suspected Cocaine, and/or Rx Vicodin 5/500 displayed in a manner of
abusing said drug. In addition you had possession of several articles of Drug
paraphernalia.
{¶24} "3. RULE #16-F, which states:
{¶25} "That this defendant shall abstain from all alcoholic beverages and drugs
during his probation term.
{¶26} "To wit: On or about 9-23-09, you did have 3 beers in your
refrigerator, and 2 liquor bottles in you (sic) living room table."
{¶27} After stipulating to probable cause and the facts as alleged, the trial court
revoked appellant's community control and sentenced him to five years in prison. See,
Judgment Entry filed December 1, 2009. Thereafter, appellant filed his Crim.R. 32.1
motion on May 19, 2010. By judgment entry filed May 25, 2010, the trial court denied Stark County, Case No. 2010CA00161 6
the request, finding appellant's probation was not revoked under intensive supervised
probation: "The Court find Defendant's argument is without merit. Defendant signed two
separate documents on November 26, 2008, which both reflect that the Defendant was
on State Probation."
{¶28} A review of the docket substantiates the trial court's decision. Appellant's
revocation was based upon the general supervision rules of probation. Further, as
noted by the trial court, appellant was under the supervision of the Ohio State Adult
Probation Authority. By the express terms of appellant's probation, appellant was
assigned to state probation after intensive supervised probation. We concur that
despite appellant's objections to intensive supervised probation, he was no longer in the
program when revoked.
{¶29} Upon review, we find there has been no showing of manifest injustice in
denying appellant's motion to withdraw his guilty pleas.
{¶30} Assignment of Error I is denied.
{¶31} Appellant claims the trial court erred in denying his motion to strike his
waiver of probable cause hearing and in failing to determine his competency. We
disagree.
{¶32} We note nowhere in the record is there any indication of competency
issues.
{¶33} Represented by counsel, appellant waived the probable cause hearing
and stipulated there was probable cause that he had violated his probation. An
evidentiary hearing was held on October 21, 2009 and again, appellant was Stark County, Case No. 2010CA00161 7
represented by counsel. T. at 1. Appellant was personally questioned by the trial court,
and he explained that he could not read or write. T. at 5. Upon further inquiry, the trial
court discerned that appellant's counsel had orally explained the reasons for the motion
to revoke, and appellant agreed that he had violated the rules. T. at 5-6. We find
appellant's illiteracy did not impact his decision to stipulate to violating the rules of his
probation.
{¶34} Upon review, we find the trial court did not err in accepting appellant's
stipulation after specific inquiry and in denying his motion to strike his waiver of
probable cause hearing.
{¶35} Assignment of Error II is denied.
{¶36} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
_s/ Sheila G. Farmer__________________
_s/ John W. Wise_____________________
_s/ Julie A. Edwards__________________
JUDGES
SGF/sg 218 Stark County, Case No. 2010CA00161 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : THOMAS JAY FIFE : : Defendant-Appellant : CASE NO. 2010CA00161
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________