The case, State v. Simone, 2010 Ohio 1824, involved a multiple DUI offender who plead guilty and was sentenced to nine months in prison (his fourth conviction of DUI in five years).  The defendant served his six months and ten years later filed a motion to withdraw his plea.  The basis of the motion was the defendant’s claim that one of his prior pleas was uncounseled.

In its opinion, the court cited Crim R 32.1 that 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 court went on to say:

“It is the defendant’s burden to prove that a manifest injustice exists. State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The trial court should grant the motion only in extraordinary cases. Id. A trial court’s decision to grant or deny a motion to withdraw a guilty plea will not be reversed on appeal absent an abuse of discretion. State v. Brown, 9th Dist. No. 23455, 2007 Ohio 2885, at P9,  [**9] quoting State v. Atkinson, 9th Dist. No. 05CA0079-M, 2006 Ohio 5806, at P10, citing Smith, 49 Ohio St.2d at 264. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140.”

The court then defined “abuse of discretion” as follows:

“A trial court does not abuse its discretion in denying a motion to withdraw a plea where three elements are met. First, the defendant must have been represented by competent counsel; second the court must provide the defendant a full hearing prior to accepting the original guilty plea; and, finally, the court must provide a full hearing to the defendant, considering all the arguments in favor of withdrawal of his plea, before rendering a decision on the motion.” (Internal citations and quotations omitted). Brown at P10.”

So, if we summarize the court’s opinion, the following is obvious:

1.  A motion to withdraw a plea must be filed prior to sentencing in nearly all cases.

2.  The court will only entertain such a motion AFTER sentencing to cure some manifest injustice.

3.  It is the defendant’s burden to prove the existence of the injustice.

4.  The motion will granted only in extraordinary circumstances (which means rarely).

5.  A lower court’s failure to grant such a motion will only be overturned if the court abused its discretion.

6.  Abuse of discretion will not be granted when:

a.  The defendant was represented by a competent attorney.

b.  A full hearing was had prior to the court’s acceptance of the defendant’s original plea.

c.  The court provided a full hearing on the defendant’s motion.

As one can see, the burden on the defendant is great.  Not only must the defendant present overwhelming evidence of some patent injustice, but a higher court will not reverse or remand a lower court’s decision absent some showing of the lower court’s abuse of discretion – a very high standard indeed.

The lesson to be learned is be sure you have a full understanding of the consequences of your plea.  Be sure you retain competent counsel who is fully versed on the law and the possible sentences that could result from your plea.  If there is any issue regarding your plea, be sure your attorney enters an exception on the record.  Finally, don’t sit on your rights.  Timely filing is always an issue.

A recent Ohio Supreme Court case demonstrates the futility felt by many Defendants and their attorneys even when the higher court sustains the Defendant’s motion to suppress evidence that is fundamental to the prosecution of one accused of OVI in Ohio.

The case, O’Neill v. Mayberry, 2010 Ohio 1707, involved a defendant charged with (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony; (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony; (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony; (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor. A conviction of the more serious charges had to be predicated on a successful prosecution of one of the charges under R.C. 4511.19.

The trial court denied O’Neill’s motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O’Neill entered pleas of no contest to Counts 1, 2, 3, and 5, Count 5 being the OVI charge. In exchange, the state dismissed Count 4, the per se violation, and O’Neill was sentenced on his no contest pleas. The Defendant appealed his convictions and the Supreme Court sustained his motion to suppress. resulting in the dismissal of the per se violation. It is important to note that the court in its opinion stated that “…O’Neill’s convictions for aggravated vehicular homicide and aggravated vehicular assault depended upon a violation of R.C. 4511.19.”

Nonetheless, the state re-instituted prosecution of O’Neill on the original charges. O’Neill attempted to have these charges dismissed by filing a Writ of Prohibition with the Supreme Court claiming the lower court no longer had jurisdiction to try the charges.

The Ohio Supreme Court disagreed saying, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal,” State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429…Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred…Accordingly, when we remanded the case to the trial court following our determination that the trial court should have granted the motion to suppress, respondent was required to proceed from the point at which the error occurred, that is, after he denied the motion to suppress but before the plea agreement in which the state dismissed the general DUI charge.”

So, while the per se violation was dismissed, the state was permitted to go forward on the OVI charge, thus predicating a conviction of the more serious offenses based upon a conviction of that OVI case.