I Didn’t Get the Sentence I Agreed To. I Want to Change My Plea

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.

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