A number of inquiries ask the question, “Can I withdraw my guilty (or no-contest) plea if the sentence I get is not what I expected?”  This question has been an on-going issue for many legal scholars.  A recent Sixth Appellate District case appears to answer the question.  While the ruling, legally, only applies to cases within Ohio’s Sixth District (Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood counties), the case may or may not be adopted by other courts in Ohio and, ultimately, The Ohio Supreme Court.  But, for now, the case does respond to the issue.

In the case, State v. Matthews, 2011 Ohio 1265, as part of a plea bargain, the prosecutor made a recommendation to the judge regarding sentencing.  Based upon this recommendation, Matthews entered a guilty plea and, while sentencing, the judge refused to take the recommendations of the prosecutor and gave the defendant a much harsher sentence.  Immediately, the defendant attempted to withdraw his guilty plea and his request was denied by the court.  The defendant appealed.

 
The defendant argued he made his motion before imposition of sentence by the court, because the motion was made prior to the trial court’s filing of the sentencing judgment entry.  The court of appeals disagreed.  The court cited Kadwell v. United States at 670 in stating “…if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.”

 
The court went on to say that such a motion is considered post sentence and therefore must be determined based upon an “abuse of discretion” standard, a very hard standard to overcome.  The defendant, in an attempt to surmount this burden argued that the lower court’s failure to hold a hearing was an abuse of discretion.

 
The court of appeals disagreed and concluded, “No hearing is required on post-sentence motions under the rule unless the facts as alleged by the appellant, taken as true, would require the court to permit withdrawal of the plea. State v. Blatnik, 17 Ohio App.3d at 204. The fact that a sentence imposed pursuant to a guilty or no contest plea is unexpectedly more severe than anticipated does not present a manifest injustice for which a post-sentence Crim.R. 32.1 motion to withdraw a plea is to be granted. State v. McComb, supra, at ¶ 9; State v. Blatnik (1984), 17 Ohio App.3d 201, 203-204.”  Matthew’s appeal was denied.

 
So, be warned.  If possible, one should be sure the court will go along with sentencing recommendation before proceeding.

Once in a while courts use shortcuts to expedite their dockets.  This is particularly true on the municipal level where dockets are particularly large.  In some instances, the defendant’s counsel, the prosecutor and the court will conference and decide on a plea and sentence and the court will subsequently issue a judgment entry memorializing the agreement.
A danger in doing so was illustrated in a recent Delaware County case.  The case, State v. Robar, 2010 Ohio 5319, involved an agreed plea wherein the defendant pled to a single count of DUI and the remaining counts were dismissed.  Subsequently, the trial court issued a sentencing entry including a jail term of ninety days, a $ 1,000.00 fine, plus the addition of a class four license suspension for five years.  The license suspension was not mentioned during the sentencing hearing.
The defendant appealed stating “The trial court violated appellant’s rights under the Fifth Amendment, Section 10, Article I of the Ohio Constitution, and Criminal Rule 43, when it failed to impose a license suspension during the sentencing hearing, but included a license suspension in the subsequent written sentencing entry.”
In its opinion, the court cited Ohio Criminal Rule 43 that states, in part:
“…the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules…”
Because the defendant was not present when the court imposed the license suspension, the court reversed and remanded the case back to the lower court.
All practitioners and courts should be aware of this important nuance and make sure that the written entry reflect everything outlined in the plea and/or sentencing hearing.

A number of Ohio criminal statutes call for enhancement in the event a defendant has history of violent crime.  The enhancements can include an increase the in the degree or sanctions.  Many times a violation of a certain criminal statute can raise what is commonly a misdemeanor to a felony or raise the crime to a more serious felony.  In other instances, a prior conviction of a crime of violence can increase the penalty or make jail time mandatory.  The same can happen of the federal level where a prior crime of violence will result in an enhancement of a defendant’s sentence.
An important case was heard before the Federal Sixth District which took on the question of whether a conviction of driving under the influence (or OVI) is a crime of violence.  The case, United States v. Evans, 378 Fed. Appx. 485, involved the enhancement of the defendant’s sentence resulting from a prior conviction of driving under the influence.  The defendant was convicted for being a felon in possession of a firearm.  The lower court sentenced the defendant 57 months in jail due to the fact that the court deemed his prior conviction for DUI a crime of violence.
The Sixth District found otherwise.  In its analysis, the court said,
“The term “crime of violence” in U.S.S.G. § 2K2.1 is defined by reference to U.S.S.G. § 4B1.2, 2 the career-offender provision, which provides in pertinent part:
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or  (2) is burglary of a dwelling, arson or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The court summarized: “…the prior crime [must] be both similar to the enumerated offenses of § 4B1.2(a) in its risk of physical injury to others, and alike in the “purposeful, violent, and aggressive” nature of the conduct.”
The court concluded that driving under the influence is not “purposeful, violent and aggressive” in nature and, therefore, is not a crime of violence pursuant to the federal sentencing guidelines.
Now, how does this apply to convictions under Ohio law.  Under Ohio law, “violent crime” is defined under RC 2901.01(A)(9):
(9) “Offense of violence” means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211 [2903.21.1], 2903.22, 2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161 [2923.16.1], of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
(d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.
It would appear, at least, under Ohio law, a criminal offense can not be enhanced due to a prior conviction for DUI as subsection c specifically exempts a “traffic offense.”  But, those practicing on the federal level should be cognizant of the ruling analyzed in this blog.