[Cite as State v. Singh, 2014-Ohio-3377.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 8-13-25

        v.

GURWINDER SINGH,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 13 03 0062

                       Judgment Reversed and Cause Remanded

                             Date of Decision: August 4, 2014




APPEARANCES:

        Marc S. Triplett for Appellant

        Eric C. Stewart for Appellee
Case No. 8-13-25



SHAW, J.

       {¶1} Defendant-appellant    Gurwinder    Singh    (“Singh”)   appeals   the

December 3, 2013 judgment of the Logan County Common Pleas Court denying

Singh’s pre-sentence motion to withdraw his guilty plea and sentencing Singh to

serve five years in prison for Rape in violation of R.C. 2907.02(A)(2), a felony of

the first degree.

       {¶2} The facts relevant to this appeal are as follows. On March 12, 2013,

Singh was indicted for Rape in violation of R.C. 2907.02(A)(2), a felony of the

first degree, Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first

degree, and Disrupting Public Service in violation of R.C. 2909.04(A)(3), a felony

of the fourth degree. (Doc. 1). The Bill of Particulars alleged that the charges

stemmed from a February 25, 2013 incident wherein Singh held a woman against

her will, knocked her cell phone out of her hand while she was attempting to call

9-1-1 and raped her. (Doc. 21).

       {¶3} On March 19, 2013, an interpreter was appointed for Singh. (Doc. 9).

On April 1, 2013, Singh was arraigned and pled not guilty to the charges. (Doc.

12).

       {¶4} On October 7, 2013, Singh filed multiple motions in limine, one of

which sought to exclude evidence regarding Singh’s citizenship.        Singh was,



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according to the Bill of Particulars, from India and had entered the United States

illegally. (Doc. 21).

        {¶5} On October 9, 2013, Singh entered a written negotiated guilty plea

wherein he agreed to plead guilty to the Rape charge in exchange for the State

dismissing the remaining counts against him.

        {¶6} A plea hearing was then held that same day. At the hearing, the court

and defense counsel had a discussion about whether Singh would be subject to a

“mandatory” prison term or whether there was simply a presumption of prison.

(Oct. 9, 2013, Tr. at 3). Singh’s counsel asserted his understanding that the prison

sentence was not mandatory. Singh’s counsel also informed the court that he had

gone over the written plea agreement line-by-line with Singh. (Id. at 5).

        {¶7} After the court and the attorneys finished their discussion regarding

the nature of Singh’s potential sentence, the court conducted a Criminal Rule 11

dialogue with Singh, through Singh’s interpreter. As part of that plea dialogue, the

court said to Singh, “[t]his offense is probationable, although there is a

presumption in favor of prison.” (Id. at 10).

        {¶8} When the court had gone through the remainder of the Criminal Rule

11 dialogue, Singh plead guilty to Rape as charged in the indictment and the

remaining counts were dismissed. The matter was set for sentencing at a later

date.

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        {¶9} On October 11, 2013, a second hearing was held where the court,

defense counsel, and the State reconvened and all agreed that a mistake had been

made at the October 9, 2013 plea hearing. This time, the trial court, the State and

defense counsel all agreed that rather than a presumption of prison, a prison

sentence was mandatory for Singh in this case for the Rape charge. The court

stated that the “plea petition” would need to be amended to reflect that changed

language, and that the court and counsel needed “to correct [their] advice to the

defendant.” (Oct. 11, 2013, Tr. at 2). Singh’s counsel then stated on the record

that “it’s my intention to have further discussion with [Singh] regarding the impact

of this modification of the Court’s advice to him.” The court then recessed, and

no further discussion was had on the record. It is not clear from the transcript

whether Singh was present at this hearing, as the court did not state who was in

attendance.1      At the very least, if Singh was present, he was never directly

addressed by the court regarding the earlier mistake.

        {¶10} On October 23, 2013, a judgment entry was filed indicating that the

court had “informed” Singh on October 11, 2013, that the charge of Rape under

R.C. 2907.02(A)(2) carried a mandatory prison sentence. (Doc. 77).




1
  The cover of the transcript indicates that both the State and defense counsel were present, and also
indicates that Singh’s interpreter was present.

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        {¶11} Prior to sentencing, on November 11, 2013, Singh filed a motion to

withdraw his guilty plea. (Doc. 79).2 In support of his motion, Singh contended

that despite the trial court’s October 23, 2013 judgment entry, Singh was never

called before the court to reaffirm his plea after being informed of the mandatory

nature of his prison sentence. (Id.)

        {¶12} On November 27, 2013, the trial court held a hearing on the motion

to withdraw Singh’s guilty plea. At the hearing, each side presented arguments

and the State presented the testimony of the officer who had investigated the case.

The State also introduced the audio recording of the 9-1-1 call where Singh could

be overheard purportedly restraining and raping the victim in this case.3 At the

conclusion of the hearing, the trial court overruled Singh’s motion and proceeded

to sentence Singh. Singh was subsequently sentenced to serve five years in prison.

        {¶13} A judgment entry denying Singh’s motion and memorializing his

sentence was filed December 3, 2013. It is from this judgment that Singh appeals,

asserting the following assignment of error for our review.

                     ASSIGNMENT OF ERROR
        THE TRIAL COURT ERRED WHEN IT OVERRULED MR.
        SINGH’S MOTION TO WITHDRAW HIS GUILTY PLEA




2
  This motion was amended (Doc. 81), and supplemented (Doc. 82).
3
  The call had connected to 9-1-1 prior to the phone being knocked out of the victim’s hands, and continued
to record throughout the incident.

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       {¶14} In his assignment of error, Singh contends that the trial court erred

when it overruled his motion to withdraw his guilty plea. Specifically Singh

contends that the trial court erred by incorrectly advising Singh regarding the

mandatory nature of his prison sentence at the original plea hearing and not

advising him on the record regarding this issue at the subsequent hearing, thus

rendering his plea not “knowing” and “intelligent.”

       {¶15} Crim.R. 32.1 provides in pertinent part that “[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.” While the

general rule is that motions to withdraw guilty pleas, made before sentencing, are

to be freely granted, the right to withdraw a guilty plea is not absolute. State v.

Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus.       The trial court

must conduct a hearing to determine whether there is a reasonable and legitimate

basis for the withdrawal of the plea. Id. The decision to grant or deny a motion to

withdraw a guilty plea is within the sound discretion of the trial and will not be

disturbed on appeal, absent an abuse of discretion. Id. at paragraph two of the

syllabus.   A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or



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grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 18 (2d

Dist.).

          {¶16} There are several factors that have been delineated by this and other

courts to assist in our review of the trial court’s determination to grant or deny a

motion to withdraw a guilty plea, including: (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 hearing; (4) the extent of the hearing on

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

of 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. Prince, 3d Dist. Auglaize

No. 2-12-07, 2012-Ohio-4111, ¶ 22; State v. Lefler. 3d Dist. Hardin No. 6-07-22,

2008-Ohio-3057, ¶ 11; State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995).

          {¶17} In this case the State concedes, and thus the parties are in agreement,

that Singh was improperly advised at his plea hearing regarding the mandatory

nature of his prison sentence.        The State argues, however, that the improper

notification was subsequently corrected by the trial court such that any defect in

the earlier plea hearing was cured.



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        {¶18} At the plea hearing in this case, when the trial court was conducting

its Criminal Rule 11 dialogue with Singh, the trial court told Singh that the

“offense is probationable, although there is a presumption of prison.” (Tr. at 10).

The trial court finished its dialogue with Singh without correcting this statement.

        {¶19} Two days later, the court convened with the State and Singh’s

counsel on the record.      The State and Singh’s counsel agreed at this brief

“hearing” that the prison term for Singh was actually mandatory for the Rape

offense rather than “presumed.” The court and Singh’s attorney talked about the

need to discuss this change with Singh, and the need to correct Singh’s written

plea agreement.

        {¶20} Singh’s plea agreement appears to have originally contained a

typewritten “Yes” as to whether the prison term was mandatory for Rape. This

“Yes” was crossed out prior to the original plea hearing and replaced with a

handwritten “no.” The record does appear to indicate that the plea agreement was

subsequently altered again to accurately reflect the mandatory nature of the prison

term.    On page four of the written plea agreement, there is a handwritten

amendment dated October 11, 2013 indicating that the prison sentence was

mandatory rather than Singh merely having a “presumption of prison” for the

Rape offense. (Doc. 71). There is also some further writing or initialing next to

this amendment, perhaps indicating Singh’s initials, but it is indecipherable. (Id.)

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       {¶21} However, despite the change in the written plea agreement, and the

State’s contention that the problems with the original plea hearing were cured in

the subsequent hearing, Singh was never addressed by the court at the second

hearing on the record. The second “hearing” consisted of what amounts to two-

and-a-half pages of dialogue between the court, the State, and defense counsel

clearing up that the prison sentence was mandatory rather than presumed. The

discussion was ended without Singh ever being addressed, with the record

indicating that Singh’s counsel intended to speak with Singh “regarding the impact

of this modification of the Court’s advice to him.” (Tr. at 3). There is no

indication that the court ever specifically advised Singh of the prior mistake or that

Singh was given an opportunity to reevaluate his plea in light of the new

information. Thus based on the record it does not seem, as the State suggests, that

the court’s improper advisement of Singh at the original plea hearing was

corrected at the second hearing.

       {¶22} We have held previously that a trial court’s improper advisement of a

defendant at a plea hearing regarding whether his sentence was mandatory—and

thus whether the defendant was subject to judicial release—rendered his plea void.

State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-Ohio-2846, ¶ 12 (“when

reviewing the record, it appears that there was a specific misunderstanding and

mistake of law by court and counsel as to whether Cook was eligible for judicial

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Case No. 8-13-25



release. We believe a fundamental error of this nature * * * is sufficient to void

the plea[.]”). In Cook, we found that this error constituted a manifest injustice

sufficient to warrant withdrawal in a post-sentence guilty plea withdrawal motion,

where a much higher standard is employed than in the case before us.

      {¶23} Similarly, in State v. Bush, 3d Dist. Union No. 14-2000-44, 2002-

Ohio-6146, ¶11, we found that a trial court’s improper notification to the

defendant about his eligibility for judicial release warranted granting defendant’s

motion to withdraw his plea. See also State v. Cox, 3d Dist. Union No. 14-06-47,

2007-Ohio-6023, ¶ 18 (“[I]t is evident that the trial court initially read the

erroneous information to Cox, but then found the error and attempted to correct

the misinformation. However, from our reading of the transcript, we are unable to

say the trial court clearly informed Cox regarding the correct terms of judicial

release or that Cox understood when he would be eligible for his judicial

release.”). In State v. Taylor, 3d Dist. Seneca No. 13-12-25, 2012-Ohio-5130, ¶¶

13-19, we reversed a trial court’s denial of a motion to withdraw a guilty plea

where a defendant was “given the wrong information concerning her [potential]

sentence.” Taylor at ¶ 15. In State v. Maney, 3d Dist. Defiance Nos. 4-12-16, 4-

12-17, 2013-Ohio-2261, we reversed the denial of a pre-sentence motion to

withdraw a guilty plea where the defendant was incorrectly notified of the



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maximum possible sentence and incorrectly notified of mandatory post-release

control. Maney at ¶ 28.

       {¶24} On the basis of our prior case law we find that the trial court erred in

failing to grant Singh’s motion as Singh was never properly informed on the

record regarding the nature of his sentence, and he was never given an opportunity

to evaluate his plea in light of the new information.

       {¶25} Notwithstanding the court’s error, the State makes several arguments

to support the trial court’s denial of Singh’s pre-sentence motion to withdraw his

guilty plea, including that the State would be prejudiced by the withdrawal.

However, the State has not shown the unavailability of any of its witnesses,

relying only on the difficulty of the victim of having to go through with trial. The

State also argues that Singh was represented by highly competent counsel, and that

there was overwhelming evidence of Singh’s guilt, particularly with regard to the

audio recording of the 9-1-1 call where the purported rape could be overheard.

While both of these arguments may be true, they do not negate the fact that Singh

was improperly advised as to the nature of his plea at the plea hearing, and the

subsequent hearing does not establish on the record that Singh was able to re-

evaluate his plea once he was made aware of the mandatory nature of his prison

sentence.



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       {¶26} Accordingly, for the aforementioned reasons the judgment of the

Logan County Common Pleas Court is reversed and the cause is remanded for

further proceedings.

                                                     Judgment Reversed and
                                                          Cause Remanded

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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