State v. Wyrick

2011 Ohio 5089

• Court: Ohio Court of Appeals
• Decided: September 30, 2011
• Docket: 11 CAA 04 0034
• Status: Published

Opinion

[Cite as State v. Wyrick, 2011-Ohio-5089.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OFOHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11 CAA 04 0034 JOSEPH L. WYRICK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR I 07 0382

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 30, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN BRIAN G. JONES PROSECUTING ATTORNEY 2211 US Highway 23 North GREGORY A. TAPOCSI Delaware, Ohio 43015 ASSISTANT PROSECUTOR 140 North Sandusky Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 11 CAA 04 0034 2

Wise, J.

{¶1} Defendant-Appellant Joseph L. Wyrick appeals the March 22, 2011,

Judgment Entry entered in the Delaware County Common Pleas Court denying his

motion to withdraw his guilty plea.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On July 9, 2010, the Grand Jury of Delaware County returned a sixteen

count indictment against Appellant Joseph L. Wyrick based on a series of home

invasions conducted by Appellant in a continuing course of criminal conduct from June

17, 2010, to July 2, 2010. As a result, Appellant was charged with the following: one

count of Burglary in violation of R.C. §2911.12(A)(2), being a felony of the second

degree; two counts of Attempted Burglary in violation of R.C. §2923.02(A) as it relates

to R.C. §2911.12(A)(2), being third degree felonies; one count of Receiving Stolen

Property in violation of R.C. §2913.51(A), being a felony of the fourth degree; and one

count of Having Weapons While Under Disability in violation of R. C. §2923.12(A)(2),

being a felony of the third degree.

{¶4} On July 23, 2010, Appellant appeared before the Court for purposes of

arraignment, where he pled not guilty to all counts, and a trial date of September 28,

2010, was established.

{¶5} On September 27, 2010, Appellant was transported to the trial court for a

hearing on a motion to continue filed by his retained attorney, Linda Kendrick. (Plea T.

at 2). Attorney Kendrick noted she was seeking to continue Appellant's trial because a

fire destroyed "everything" in her office, and she was not prepared to go forward on the Delaware County, Case No. 11 CAA 04 0034 3

scheduled date. (Plea T. at 2-3). Attorney Kendrick then advised the trial court that she

wished to withdraw as Appellant's attorney of record due to "a difference of opinion."

(Plea T. at 3). At that time, however; Appellant informed Attorney Kendrick that he

wanted to enter a guilty plea. (Plea T. at 4).

{¶6} The State then proceeded to orally enter the parties' agreement on the

record. Id. Pursuant to negotiations, Appellant agreed to plead guilty to one count of

Attempted Burglary and one count of Having Weapons While Under Disability, both

being felonies of the third degree. (Plea T. at 4). In exchange, the State agreed to

dismiss the three remaining charges. (Plea T. at 7).

{¶7} Attorney Kendrick then asked the trial court for time to review the plea

paperwork with Appellant before allowing the hearing to continue. ld.

{¶8} After a brief recess, Appellant was placed under oath, at which time the

trial court advised Appellant:

{¶9} “Mr. Wyrick, I’m gonna ask you some questions. If at anytime you don't

understand anything, let me know, be happy to clarify it for you. I recognize this is

important to you, I want to make sure that you're aware of everything going on. So will

you do that?" (Plea T. at 5).

{¶10} Appellant then responded in the affirmative. Id.

{¶11} After speaking with Appellant, the trial court stated that it found Appellant

to be "mature, alert, reasonably educated, not under the influence of alcohol or drugs,

capable of understanding the proceedings here today." (Plea T. at 6).

{¶12} The trial court then discussed the content of the parties' Crim.R. 11 (F)

negotiations. (Plea T. at 7). Appellant acknowledged that the plea paperwork was Delaware County, Case No. 11 CAA 04 0034 4

correct and further acknowledged the presence of his signature on the Crim.R. 11(F)

agreement. Id.

{¶13} The trial court then proceeded to question Appellant about the two crimes

for which he was entering pleas of guilty. (Plea T. at 10). Appellant admitted to

attempting to open a sliding glass door and then trying to pry open a kitchen window

screen for purposes of stealing items from within a Delaware County home. Id.

Appellant also stated he was in possession of three firearms at the time of his arrest

despite having two prior burglary convictions. (Plea T. at 11).

{¶14} Upon inquiry from the trial court, Appellant stated that he was entering his

pleas voluntarily and further stated that he had the opportunity to review all the essential

elements, possible defenses, and possible penalties with his attorney, Ms. Kendrick.

(Plea T. at 12). Further, Appellant confirmed that Ms. Kendrick answered all his

questions and stated that he was satisfied with her advice, counsel, and competence.

Id.

{¶15} The trial court informed Appellant that it could impose a definite prison

term of one, two, three, four, or five years, as well as a $10,000 fine for Count 3 and

one, two, three, four or five years in prison and a fine not to exceed $10,000 on Count 5.

(Plea T. at 13).

{¶16} The trial court further inquired of Appellant:

{¶17} "And understanding that those penalties can be imposed consecutively or

one after the other, so you're facing a maximum of ten years in prison and up to a

$20,000 fine, do you still wish to enter a plea of guilty." Id.

{¶18} To which, Appellant responded in the affirmative. Id. Delaware County, Case No. 11 CAA 04 0034 5

{¶19} Appellant also signed a written plea of guilty which specified that Appellant

understood that "[p]rison terms for multiple charges, even if consecutive sentences are

not mandatory, may be imposed consecutively by the Court." (Judgment Entry

Withdrawal Guilty Pleas, Sept. 28, 2010, at 2; See also T. Vol. 3, at 17).

{¶20} After discussing the constitutional rights waived by Appellant as a result of

his pleas, the trial court found Appellant guilty and ordered Appellant's sentencing to

occur at a later date so that a presentence investigation could be conducted to help the

court to fashion an appropriate sentence for Appellant. (Plea T. at 16-18).

{¶21} On November 1, 2010, Appellant was sentenced to serve a stated prison

term of four years on the Attempted Burglary charge and four years on the Having

Weapons While Under Disability charge to be served consecutively for a total stated

prison term of eight years. (Sent. T. at 15).

{¶22} On January 14, 2011, Appellant filed a motion to withdraw his guilty pleas.

{¶23} On March 21, 2011, a hearing was held on Appellant’s motion.

{¶24} By Judgment Entry filed March 22, 2011, the trial court denied Appellant's

motion to withdraw his guilty pleas.

{¶25} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶26} “I. THE COURT ERRED IN NOT GRANTING MR. WYRICK’S MOTION

TO WITHDRAW HIS GUILTY PLEA BECAUSE HE WAS PROVIDED WITH

INNEFFECTIVE [SIC] ASSISTANCE OF COUNSEL DUE TO THE FACT THAT HIS

COUNSEL DID NOT PROPERLY INFORM HIM OF WHAT A GUILTY PLEA WOULD Delaware County, Case No. 11 CAA 04 0034 6

ENTAIL AND THUS, HIS PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY,

AND VOLUNTARILY.

{¶27} “II. THE COURT ERRED IN NOT GRANTING MR. WYRICK’S MOTION

TO WITHDRAW HIS GUILTY PLEAS BECAUSE HE WAS NOT PROPERLY

INFORMED BY THE COURT WHAT A CONSECUTIVE SENTENCE WAS AND THUS,

HIS GUILTY PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY.

II.

{¶28} For clarity of analysis, we shall address Appellant’s assignments of error

out of order.

{¶29} In his second assignment of error, Appellant claims that the trial court

erred in denying his motion to withdraw his guilty pleas. We disagree.

{¶30} Appellant claims that the trial court failed to properly inform him of the

possibility of consecutive sentences.

{¶31} As stated above, the trial court, at Appellant’s change of plea hearing on

Sept. 27, 2010, engaged in the following discussion with Appellant:

{¶32} The Court: “Understanding that today, if I accept your pleas of guilty,

that I’m able to impose a definite prison term of imprisonment on State – or on Count 3

of one, two, three, four, or five years duration and a fine not to exceed $10,000, and on

Count 5 one, two, three, four, five years in prison and a fine not to exceed $10,000, do

you still wish to enter a plea of guilty to those two charges?”

{¶33} Defendant: “Yes.” Delaware County, Case No. 11 CAA 04 0034 7

{¶34} The Court: "And understanding that those penalties can be imposed

consecutively or one after the other, so you're facing a maximum of ten years in prison

and up to a $20,000 fine, do you still wish to enter a plea of guilty."

{¶35} Defendant: “Yes.” (Plea T. at 13).

{¶36} We therefore find Appellant’s argument that he was not properly informed

about the possibility of consecutive sentences not well-taken.

{¶37} Based on the foregoing, we find Appellant’s second assignment of error

not well-taken and overrule same.

I.

{¶38} In his first assignment of error, Appellant claims that the trial court erred in

denying his motion to withdraw his guilty pleas. We disagree.

{¶39} More specifically, Appellant claims that his guilty pleas were not made

knowingly, voluntarily and intelligently, arguing that his attorney failed to adequately

advise him as to the consequences of his guilty pleas.

{¶40} Crim.R. 11 requires guilty pleas to be knowingly, intelligently and

voluntarily made. Although literal compliance with Crim.R. 11 is preferred, substantial,

not strict, compliance with Crim.R. 11 is required. State v. Stewart (1977), 51 Ohio St.2d

86, 364 N.E.2d 1163.

{¶41} Crim.R. 32.1 governs the withdrawal of a guilty or no contest plea and

states:

{¶42} “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 Delaware County, Case No. 11 CAA 04 0034 8

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.”

{¶43} Because Appellant's request was made post-sentence, the standard by

which the motion was to be considered was “to correct manifest injustice.” The accused

has the burden of showing a manifest injustice warranting the withdrawal of a plea.

State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the

syllabus.

{¶44} Further, a reviewing court will not disturb a trial court's decision whether to

grant a motion to withdraw a plea absent an abuse of discretion. State v. Caraballo

(1985), 17 Ohio St.3d 66, 477 N.E.2d 627. In order to find an abuse of discretion, the

reviewing court must determine that the trial court's decision was unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450

N.E.2d 1140.

{¶45} A properly licensed attorney is presumed competent. State v. Hamblin

(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the

result of the proceedings would have been different. Strickland v. Washington (1984),

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136, 538 N.E.2d 373.

{¶46} In other words, Appellant must show that counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id. Delaware County, Case No. 11 CAA 04 0034 9

{¶47} Further, a Criminal Rule 32.1 motion 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. Reed, 7th

Dist. No. 04 MA 236, 2005-Ohio-2925, ¶ 7, citing State v. Smith (1977), 49 Ohio St.2d

261, 361 N.E.2d 1324, paragraph two of the syllabus.

{¶48} In the case sub judice, the trial court found that Appellant failed to present

credible evidence in support of his claims that his attorney failed to properly advise as to

the consequences of his guilty pleas. We agree.

{¶49} While Appellant testified that his attorney never told him that he could

receive consecutive sentences, the trial court found his testimony to be lacking in

credibility and further found that Appellant failed to present any evidence that his

counsel advised him that he would receive less than the ten year sentence imposed.

The trial court further found that the plea hearing record contradicted Appellant’s

testimony. (March 22, 2011, Judgment Entry Denying Motion to Withdraw Guilty Plea).

{¶50} Further, as set forth above in our analysis of Appellant’s second

assignment of error, Appellant was in fact advised as to the possible sentences that

could be imposed and the possibility of the imposition of consecutive sentences by the

trial court. We therefore find his argument that his pleas were not knowingly, voluntarily

and intelligently made not well-taken.

{¶51} Based on the foregoing, we find that the trial court did not abuse its

discretion in overruling Appellant's motion based on the claim of ineffective assistance

of counsel. Delaware County, Case No. 11 CAA 04 0034 10

{¶52} Appellant’s first assignment of error is overruled.

{¶53} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Delaware County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

___________________________________

JUDGES JWW/d 0915 Delaware County, Case No. 11 CAA 04 0034 11

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OFOHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOSEPH L. WYRICK : : Defendant-Appellant : Case No. 11 CAA 04 0034

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Delaware County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES