[Cite as State v. Acosta, 2016-Ohio-5698.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-15-066

        Appellee                                 Trial Court No. 2015CR0119

v.

Michael Acosta                                   DECISION AND JUDGMENT

        Appellant                                Decided: September 2, 2016

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, Alyssa M.
        Blackburn and David T. Harold, Assistant Prosecuting Attorneys,
        for appellee.

        Stephen D. Long, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Michael Acosta, appeals from the October 8, 2015 judgment of

the Wood County Court of Common Pleas accepting appellant’s guilty plea to and

convicting him of attempted felonious assault and sentencing him to 18 months of

imprisonment.
       {¶ 2} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s appointed counsel has filed an appellate

brief and motion to withdraw as counsel. He mailed a copy of the brief and motion to

appellant and informed him that he had a right to file his own brief, but he did not do so.

       {¶ 3} Appellant’s counsel states in his motion that he thoroughly reviewed the

record in this case and concluded that the trial court did not commit any error prejudicial

to appellant. However, in compliance with the requirements of Anders, appellant’s

counsel has submitted a brief setting forth two potential assignments of error, but he

concludes that they are unsupported by the record and/or by the law.

       {¶ 4} First, appellant’s counsel considered a potential assignment of error related

to whether appellant entered a knowing, intelligent, and voluntary guilty plea at the

Crim.R. 11 hearing. However, he concluded the argument would be frivolous.

       {¶ 5} Appellant was indicted on charges of felonious assault and abduction. The

day before trial, a Crim.R. 11 plea hearing was held. The state was prepared to present

witnesses who would testify that when police responded to a domestic dispute dispatch

on March 9, 2015, the victim came running out of the house. She stated to the police she

had been taking a bath when appellant hit her in the face, attempted to tie her up, choked

her, and threaten to kill her. The police observed that the victim was bruised, had blood

in her eye and on her face, and there was blood in the sink. At the hearing, appellant

withdrew his not guilty plea and entered a guilty plea to a single reduced charge of

attempted felonious assault with an agreed sentence of 18 months imprisonment. The




2.
trial court accepted the plea. Appellant was convicted and sentenced to 18 months of

imprisonment.

       {¶ 6} A guilty or no contest plea must be made knowingly, intelligently, and

voluntarily to be valid under both the United States and Ohio Constitutions. Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, before accepting a plea of guilty or

no contest to a felony offense, Crim.R. 11(C)(2) requires that a trial court conduct a

hearing with a personal colloquy with the defendant, make specific determinations and

give specific warnings required by Crim.R. 11(C)(2)(a) and (b), and notify the defendant

of the constitutional rights listed in Crim.R. 11(C)(2)(c) that he would be waiving. State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 13.

       {¶ 7} Whether the rights involved are constitutional or non-constitutional, literal

compliance with Crim.R. 11(C) is the proper means to ensure that a defendant’s guilty or

no contest plea is knowingly, intelligently, and voluntarily made. State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30; Veney at ¶ 14. When there is

not literal compliance, the reviewing court must determine if the trial court fulfilled the

purposes of the rule. Clark. If the court did not, the appellate court must also determine

the significance of the failure and the remedy. Id.

       {¶ 8} Because the defendant gives up significant constitutional rights by entering a

guilty or no contest plea, the trial court must strictly comply with Crim.R. 11(C)(2) and

inform the defendant personally regarding federal constitutional rights he waives by




3.
entering a guilty or no contest plea or the reviewing court will presume the plea was not

knowingly, intelligently, and voluntarily made. Veney at ¶ 7; State v. Nero, 56 Ohio

St.3d 106, 107, 564 N.E.2d 474 (1990). The acceptable level of compliance is lower for

non-constitutional rights. For those rights, the reviewing court must find the trial court

substantially complied with the rule. Clark at ¶ 31-32. If the trial court deviated from

literal compliance with the rule, the reviewing court must confirm that the trial court

substantially complied by finding the record demonstrates the defendant “subjectively

under[stood] the implications of his plea and the rights he was waiving” from the “totality

of the circumstances.” Id. at ¶ 31, quoting Nero at 108, Veney at ¶ 15.

       {¶ 9} If the reviewing court determines the trial court did not substantially comply

with Crim.R. 11(C)(2)(a) and (b), it must then consider whether the trial court partially

complied or completely failed to comply with the rule. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462 at ¶ 31-32. The appellate court will not invalidate a plea

where the trial court partially complied with Crim.R. 11(C) unless appellant has also

demonstrated he was prejudiced by the court’s action. Id. However, if there is no

compliance with the rule at all, the defendant does not need to show prejudice and the

plea must be vacated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, ¶ 25.

       {¶ 10} Civ.R. 11(C)(2) requires that the court determine “the defendant is making

the plea voluntarily, with understanding of the * * * the maximum penalty involved

* * *.” Crim.R. 11(C)(2)(a). The rule requires, therefore, that the court determine the




4.
defendant entered a voluntary plea in light of an understanding of these key facts, not that

the court personally notify the defendant of these facts. Therefore, the reviewing court

must find the totality of the circumstances would support the trial court’s determination

the defendant understood these facts prior to entering the plea. Nero, 56 Ohio St.3d at

108-109, 564 N.E.2d 474; State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-

5145, ¶ 20; State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 39;

State v. Torres, 6th Dist. Lucas No. L-07-1036, 2008-Ohio-815, ¶ 38-44; State v. Milazo,

6th Dist. Lucas No. L-07-1264, 2008-Ohio-5137, ¶ 17; State v. Abuhashish, 6th Dist.

Wood No. WD-07-048, 2008-Ohio-3849, ¶ 34-35. Compare Sarkozy at ¶ 19-22 (plea

vacated without the need to show prejudice where trial court did not mention postrelease

control and there was a complete failure to notify defendant of the maximum sentence.)

The constitution does not require that a defendant be informed of the potential maximum

and minimum sentence he could obtain in order to enter a knowing, intelligent, and

voluntary plea. State v. Johnson, 40 Ohio St.3d 130, 133, 532 N.E.2d 1295 (1988).

Therefore, the right to know the potential maximum sentence is a non-constitutional

right.

         {¶ 11} Appellate counsel first considered whether the trial court erred when it did

not inform appellant of the maximum possible sentence appellant faced. We agree this

argument lacks merit. The written plea agreement clearly stated the maximum sentence

which could have been imposed. At the Crim.R. 11 hearing, appellant’s trial attorney

stated he discussed the plea agreement with appellant. Appellant acknowledged to the




5.
trial court that he had read the plea agreement, signed it, and understood the information.

Considering the totality of the circumstances, we find there is no basis for arguing the

trial court did not substantially comply with Crim.R. 11(C)(2)(a) when it determined that

appellant knew the potential maximum sentence which could be imposed.

        {¶ 12} Furthermore, a trial court is required by Crim.R. 11(C)(2)(c) to notify the

defendant, and determine he understands the constitutional rights waived by entering the

plea: “the rights to jury trial, to confront witnesses against him or her, to have

compulsory process for obtaining witnesses in the defendant’s favor, and to require the

state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.” The right to waive a

jury trial in favor of a bench trial, pursuant to R.C. 2945.05, is a statutory (non-

constitutional) right. State v. Bell, 2d Dist. Montgomery No. 24356, 2011-Ohio-5016,

¶ 17.

        {¶ 13} In the case before us, appellant’s attorney argues the trial court informed

appellant he was waiving his right to a jury trial, but it did not inform appellant that he

was also waiving his right to a bench trial. The plea agreement did include a statement

that appellant was waiving both his right to a “jury trial or court trial.”

        {¶ 14} First, we find Crim.R. 11(C)(2)(a) does not require the court to inform the

defendant that a guilty plea will result in the waiver of a right to a bench trial. Second,

any ambiguity in the court’s language explaining the effect of entering a guilty plea is

clarified by the plea agreement, which appellant acknowledged he understood.




6.
Therefore, this proposed error could not be a basis for vacating the plea. Finally,

appellant did not file a brief in response to notice of his appellate counsel’s filing of an

Anders’ brief and has not presented an argument of prejudice. State v. Ramey, 7th Dist.

Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 18.

       {¶ 15} Therefore, we agree that the first proposed assignment of error lacks merit.

       {¶ 16} In his second potential assignment of error, appellant’s attorney identified a

possible error regarding whether the trial court erred by not allowing appellant to

withdraw his guilty plea. Appointed counsel concluded the argument is not supported by

the record.

       {¶ 17} There is no absolute right to withdraw a guilty plea after conviction, but

prior to sentencing, State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph

one of the syllabus, and the matter is left to the sound discretion of the trial court, which

is in the better position to evaluate both the motivation of the defendant in pleading guilty

and the credibility and weight to be given to the reasons for seeking to withdraw the plea.

Id. at paragraphs one and two of the syllabus. An appellate court will not reverse the trial

court’s denial of the motion unless the defendant can establish that the trial court abused

its discretion. Id. at 525. An abuse of discretion standard requires a finding that the trial

court committed “more than an error of law or of judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable * * *.” State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144 (1980).




7.
       {¶ 18} Crim.R. 32.1 gives no criteria for determining when withdrawal of a plea is

justified. However, the Ohio Supreme Court has held that “a presentence motion to

withdraw a guilty plea should be freely and liberally granted.” Xie at 527. Appellate

courts evaluate the trial court’s decision based upon the following considerations:

              (1) whether the state will be prejudiced by withdrawal; (2) the

       representation afforded to the defendant by counsel; (3) the extent of the

       Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

       withdraw; (5) whether the trial court gave full and fair consideration to the

       motion; (6) whether the timing of the motion was reasonable; (7) the

       reasons for the motion; (8) whether the defendant understood the nature of

       the charges and potential sentences; and (9) whether the accused was

       perhaps not guilty or had a complete defense to the charge. State v.

       Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39

       (6th Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d

       310 (7th Dist.2001).

A change of heart is an insufficient reason to permit withdrawal of the plea. State v.

Williams, 6th Dist. Lucas Nos. L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 13 (citations

omitted).

       {¶ 19} Appellant’s plea was accepted on June 2, 2015, and sentencing was

scheduled for June 30, 2015. On the day of sentencing, appellant orally moved to




8.
withdraw his plea and a hearing was scheduled. At the hearing to withdraw the plea, new

counsel was appointed to represent appellant.

       {¶ 20} At the time of the plea, appellant acknowledged he was satisfied with his

appointed counsel’s representation. Appellant testified he had understood his rights

during the plea hearing and he had not been under the influence of alcohol or elicit

substances at the time nor a mental distress disorder at the time of the plea.

       {¶ 21} After the guilty plea had been entered, appellant sought to withdraw his

plea asserting his appointed counsel had not investigated a witness who could have

provided testimony contrary to the victim. His attorney also had not investigated an

incident appellant was aware of which could have damaged the victim’s credibility.

Appellant believed he had a meritorious defense to the crime.

       {¶ 22} The state argued that there was no basis for withdrawal of the plea. The

court also noted the state had dismissed a count in exchange for the plea, which could

have added an additional three years of incarceration. Furthermore, the negotiated plea

reduced appellant’s sentence from a potential eight years to 18 months. The court noted

appellant’s prior appointed counsel was very experienced and competent.

       {¶ 23} We agree with appellate counsel there is no basis for arguing the trial court

abused its discretion by denying the motion to withdraw the plea. Considering the factors

above, we find that although the state did not allege it would be prejudiced by withdrawal

of the plea, appellant failed to demonstrate a sufficient basis for withdrawing his plea.




9.
       {¶ 24} While appellant stated he was dissatisfied with his trial counsel’s failure to

investigate a defense witness, appellant produced no evidence to support a finding that

this witness would have provided exculpatory evidence or that his trial counsel did not

investigate the case thoroughly. While appellant asserts that he was not guilty and had a

complete defense to the charge, he did not support that allegation with any evidence.

Appellant identified a witness whom he said could exonerate appellant, but there was no

evidence that the witness was willing to testify or could be located.

       {¶ 25} Furthermore, the trial court was satisfied that appellant’s counsel was very

competent. Appellant had not complained of his counsel’s representation at the time of

the plea hearing and all of the facts appellant alleged were not investigated were known

at that time. The trial court concluded that appellant’s counsel had been able to negotiate

a plea to reduce appellant’s sentence from a potential eight years of imprisonment to 18

months.

       {¶ 26} The Crim.R. 11 hearing was properly conducted and appellant had an

opportunity to raise any issues he desired. Appellant indicated that he understood the

nature of the charges and potential sentences. At the hearing on the motion to withdraw,

new counsel was appointed to represent appellant and he was also given ample

opportunity to support his oral motion to withdraw the plea. We find the trial court gave

full and fair consideration to the motion.

       {¶ 27} Therefore, we agree with appellate counsel the second proposed

assignment of error lacks merit as well.




10.
       {¶ 28} Finally, this court has the obligation to fully examine the record in this case

to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.

1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial

court which would justify a reversal of the judgment. Therefore, we find this appeal to be

wholly frivolous. Counsel’s request to withdraw as appellate counsel is found well-taken

and is hereby granted.

       {¶ 29} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Wood County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on

appeal. The clerk is ordered to serve all parties with notice of this decision.


                                                                         Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




11.
