State v. Horvath

2004 Ohio 7327, 821 N.E.2d 1068, 129 Ohio Misc. 2d 33
CourtHamilton County Municipal Court
DecidedJuly 1, 2004
DocketNo. M03CRB42129
StatusPublished

This text of 2004 Ohio 7327 (State v. Horvath) is published on Counsel Stack Legal Research, covering Hamilton County Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Horvath, 2004 Ohio 7327, 821 N.E.2d 1068, 129 Ohio Misc. 2d 33 (Ohio Super. Ct. 2004).

Opinion

Elizabeth B. Mattingly, Judge.

{¶ 1} This case has a long and tortured history, apparently even before court proceedings began. Defendant Horvath is charged with menacing in violation of Sharonville Municipal Code 537-06, a misdemeanor of the fourth degree that is identical to R.C. 2903.22. The prosecuting witness in this case is a neighbor with whom defendant shared a common but disputed property line.

{¶ 2} The case was initially litigated in mayor’s court in Sharonville, Ohio. It was transferred to this court when defendant Horvath filed a jury demand.1 [34]*34Defendant was arraigned in municipal court on November 6, 2003, and requested a trial, which was initially set for January 7, 2004, and continued by request of the parties.

{¶ 3} On January 21, 2004, defendant, who was then being represented by attorney John Whitehurst, entered a plea of no contest. As the prosecutor read the charge:

On October 3, 2003, Mr. Horvath caused another to fear for his personal safety by threatening him verbally. This has been an ongoing dispute between the adjoining property owners.

{¶ 4} When asked by the court to further explain “threatening,” the prosecutor continued:

There is a property dispute between the two. Mr. Horvath seems to think he owns more property than he does. He threatened the adjoining neighbor, used the expletive — I am ripping your face off, leave my property alone. I’ll take care of this if you won’t leave me alone — things of that nature.

{¶ 5} In response to the court’s subsequent inquiry, Horvath acknowledged that he understood that by pleading no contest he was admitting those facts. Horvath then affirmed that he had spoken to his attorney about the plea. At this point, his attorney, Whitehurst, volunteered the following:

Yes, we have had a good opportunity to discuss this. * * * With your delays in here. We’ve had a lot of opportunity.

{¶ 6} The court then asked defendant Horvath if he understood that he was giving up his right to a trial and asked him if he understood that the maximum penalty was 30 days in jail, a $250 fine, or anything less. Horvath replied that he understood.

{¶ 7} When asked if he had any comment on the facts, defendant’s attorney noted that the issues between the prosecuting witness and the defendant arose from a genuine property dispute that could best be resolved by a survey of the property line. He further noted:

I feel that through pleading this out and through the survey, we will get a successful resolution to this matter; therefore, look forward to the Court considering that we do have what looks like to be a proper resolution of the matter.

{¶ 8} During further discussion of when a survey could be accomplished to resolve the property issue, the officer on the case noted that the problem between these two neighbors had been going on before the October 3, 2004 incident at issue here. Both the prosecuting witness and the defendant agreed to pay one-half of the cost of the survey, and sentencing on the menacing charge was continued until March 1, 2004, when the survey would be completed. During the [35]*35colloquy that followed, the prosecuting witness expressed his concern that the defendant might not cease to threaten his physical well-being in the interim. The defendant noted actions that the prosecuting witness had taken to injure his property. As to the latter, attorney Whitehurst noted that any issues relating to defendant’s dogs were not before the court.

{¶ 9} On March 1, 2004, the court was informed that the survey had been completed. Sentencing was then stayed for defendant to be evaluated by the court clinic. A victim-impact statement was also requested for sentencing that would occur on April 6, 2004.

{¶ 10} On April 9, 2004,2 the court received an 8]i-p'age, single-spaced report from the court clinic that recommended that defendant could benefit from pursuing certain treatment modalities. On April 9, 2004, the court was informed that Horvath had terminated the services of attorney Whitehurst and retained attorney Alan Fischoff to represent him at sentencing. Attorney Fischoff indicated that Horvath had come to him in late March, 2004, apparently not understanding exactly what had happened when he had pled no contest two and one-half months earlier. Attorney Fischoff reiterated Horvath’s position that he had merely followed the advice his attorney had given him even though he did not want to plead to the charge. Attorney Fischoff then orally requested that Horvath be permitted to withdraw his plea.

{¶ 11} In response, the state noted that there had been many pretrials in the case and many discussions with Horvath’s attorney and that none of these objections were raised the first time sentencing had been set to occur on March 1, 2004. The state believed that defendant was raising issues now only because he had become aware that the court clinic was recommending treatment.

{¶ 12} The court then asked Horvath to state exactly what he had misunderstood when he entered his plea.3 Defendant replied:

From what he had told me, he told me that to go ahead and do that. Really, I didn’t want to. I wanted to plead not guilty, and it was his decision for me to go ahead and plead no contest, Your Honor.

{¶ 18} The court then set a hearing on defendant’s oral motion to vacate his plea for April 30, 2004, which was later continued at state’s request to May 12, 2004.

{¶ 14} On May 12, 2004, Horvath’s attorney reiterated that defendant sought to vacate his plea because he didn’t understand that he was entering the plea and [36]*36that he had two defenses to the case. In sum, defendant was claiming that the plea was not made knowingly, intelligently, and voluntarily.

{¶ 15} Horvath testified at the hearing on this matter that he didn’t understand the no contest plea and that he had wanted his girlfriend, Gwen Keller, to testify at the trial on January 21, 2004. He stated that he was told she couldn’t do so. Horvath further indicated that the Sharonville police kept making him think that he was going to lose. So, he figured, he would just go ahead and get this over with and that’s what he did.

{¶ 16} Upon cross-examination, defendant admitted he has an associate’s degree and stated, “I was just entering a plea to get this over with. And not just that, but thinking that I had no chance with this case.”

{¶ 17} Horvath’s first attorney, John Whitehurst, then testified that he had discussed this charge with Horvath quite a bit both at mayor’s court and in this court. Indeed, attorney Whitehurst had thoroughly explained the charges and possible defenses to Horvath both verbally and in writing. Attorney Whitehurst was prepared to go to trial on January 21, 2004, and at the last minute, defendant Horvath did not want to go to trial. The attorney then conversed in the hall with Horvath and the prosecutor for about 20 or 30 minutes. Attorney Whitehurst said that he explained to Horvath that he had a valid defense and he appeared to understand. He further noted that Horvath has previously pled out to a traffic case in this court and advised Horvath that he should discount the comments of the Sharonville police concerning his chances of winning the case.

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State v. McNeil
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Cite This Page — Counsel Stack

Bluebook (online)
2004 Ohio 7327, 821 N.E.2d 1068, 129 Ohio Misc. 2d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-horvath-ohmunicthamilto-2004.