State v. Gifford

179 N.E.3d 761

STATE of Ohio, Plaintiff-Appellee,

v.Harley S. GIFFORD, Defendant-Appellant.

No. 21AP-136

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on October 26, 2021

On brief: G. Gary Tyack, Prosecuting Attorney, and Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.

On brief: Mango Law Office, and Dominic L. Mango, for appellant. Argued: Dominic L. Mango.

DECISION

NELSON, J.

{¶ 1} Rabbit holes can be inviting, but here we decline the parties’ invitation to stay in one overly long. The issue in this case distills to whether the trial court abused its discretion in denying defendant-appellant Harley S. Gifford's motion to withdraw his domestic violence guilty plea after sentence on the grounds that a predicate offense that had elevated the degree of the offense charged had been misrecorded in a 2019 court entry as aggravated menacing rather than assault. Because either aggravated menacing or assault can elevate the degree of a subsequent domestic violence offense when committed against a family or household member, we do not conclude that the trial court abused its discretion in finding no manifest injustice that would allow Mr. Gifford to withdraw his plea.

{¶ 2} Mr. Gifford's own "statement of facts" provides some context:

On October 4, 2020, police were dispatched on a domestic violence run in response to a 911 call from [M.G.] who claimed she was assaulted by her boyfriend * * * Mr. Gifford. Upon arrival, officers observed a female running from a rear carport to the residence carrying a small child. She advised the officers that Mr. Gifford was inside the house acting crazy. She stated that he had torn up the house, choked her, and slammed her into the wall.

The officers attempted to take Mr. Gifford into custody but he initially refused to come out of his house. He was very distraught and stated that he wanted the police to enter the house and kill him. There was an extended period of negotiation until Mr. Gifford eventually showed his hands and revealed that he did not have a weapon. * * * *

Relying on [a 2019 conviction] as an enhancing predicate offense, the Franklin County Prosecuting Attorney presented the matter to a grand jury. * * * * [Absent witness cooperation,] the charges were brought based solely on the content of the 911 call and the excited utterances that [M.G.] made at the time to responding officers. * * * *

Mr. Gifford was indicted on one count of domestic violence in violation of R.C. § 2919.25(A), being enhanced [sic] to a fourth-degree felony by virtue of an alleged prior conviction for "assault" against a family or household member. On January 8, 2021 Mr. Gifford entered a guilty plea to the lesser included offense of attempt in violation of R.C. § 2923.02 as it relates to R.C. § 2919.25, [with that attempt] being a felony of the fifth degree.

On March 3, 2021 Mr. Gifford was sentenced to a ten-month stated prison term. [Then, in connection with a community control revocation hearing in the 2019 municipal court case, his] counsel discovered for the first time that the underlying judgment entry of conviction was not for the crime of assault in violation of R.C. § 2903.13 as alleged in the instant indictment, but rather for the offense of aggravated menacing in violation of R.C. § 2903.21.

Appellant's Brief at 1-2.

{¶ 3} This recitation of the facts is not significantly inconsistent with what we find in the record. Mr. Gifford had been indicted in this case for domestic violence as a fourth-degree felony under Ohio Revised Code 2919.25. Absent other circumstances, domestic violence is a misdemeanor, but "if the offender previously has pleaded guilty to or been convicted of domestic violence * * * or any offence of violence if the victim of the offense was a family or household member at the time of the commission of the offense," a violation would be a fourth-degree felony. R.C. 2919.25(D)(3). Here, the indictment charged that Mr. Gifford "was previously convicted of or pleaded guilty to Assault involving a victim who was family or a household member at the time of the commission of the violation, to wit: on or about January 11, 2019 in Franklin County Municipal Court, Franklin County, Ohio, in violation of R.C. 2903.13." On January 8, 2021, Mr. Gifford did plead guilty to an attempt at the charged domestic violence, with the attempt being a fifth-degree felony. On March 3, 2021, the trial court accepted the plea and sentenced him to felony time: ten months in prison, with credit for 102 days served.

{¶ 4} And Mr. Gifford did then move to withdraw his plea after the defense discovered, apparently to its surprise, that the 2019 conviction referenced in the indictment as predicate for the 2021 felony-level charge had been recorded by the municipal court as involving a plea and finding of guilty not to assault under R.C. 2903.13 (as supposed by the 2021 indictment), but rather as having involved a plea of guilty to R.C. 2903.21 (which is aggravated menacing).

{¶ 5} "Aggravated Menacing is not a crime listed in 2919.25(D)(3) which can form a basis to [elevate] a subsequent [d]omestic violence [offense] from a misdemeanor to a felony," Mr. Gifford's motion contended: "As such, the Defendant is actually innocent of the crime charged and the charge pleaded to. Furthermore, the State cannot * * * obtain a valid indictment, let alone convict Mr. Gifford, of a felony Domestic Violence [offense] due to the fact that no underlying conviction exists which would serve to enhance the conduct charged in this matter." March 8, 2021 Defendant's Motion to Withdraw Plea Under Criminal Rule 32.1 at 2.

{¶ 6} The trial court promptly conducted a hearing on Mr. Gifford's motion to withdraw his felony plea. The state chose to respond to the motion by arguing that despite the face of the municipal court's 2019 entry, "Mr. Gifford was actually convicted of assault" in that earlier case. March 30, 2021 Motion Hearing Tr. at 9. The municipal court judge had "put the wrong Code section in the entry. But, again, that entry doesn't reflect what actually happened. * * * Mr. Gifford was convicted of assault against a family member. Similarly, when [the 2021] case was presented to the Grand Jury, the Grand Jury received testimony that Mr. Gifford was convicted of assault against a family member." Id. at 10.

{¶ 7} The state submitted evidence to establish that the count to which Mr. Gifford had pleaded guilty in 2019 had been charged as assault (a first-degree misdemeanor, against the same victim M.G. as alleged in the 2021 case), and that one of the counts that was designated as "dismissed" on the 2019 combined plea and sentencing form had been for aggravated menacing. The state also provided as evidence a tape recording of the 2019 municipal court proceeding in which Mr. Gifford articulated his guilt to the charge of assault against M.G. "[D]espite the [s]crivener's error in the [earlier] municipal court conviction, the fact remains that he was actually convicted of a qualifying offense," the state urged. Id. at 11 (again taking the view that "he was actually convicted of the underlying assault").

{¶ 8} The trial court supplemented that argument by saying that "although this isn't testimony in court," the municipal court judge from the earlier case had "come by the chambers [and spoken] with myself, counsel for the State and defendant, and has recognized the issue with the entry and has indicated that he was going to file a corrected, or a nunc pro tunc, entry later today and send it to all counsel." Id. at 14.

{¶ 9} Pursuant to Criminal Rule 32.1 : "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 trial court found no manifest injustice so as to permit withdrawal of the plea. Id. at 15. The 2019 municipal court entry, it found, "clearly, to the Court, indicates a guilty plea to Count 2, which was [specified in the complaint as] assault. And although it lists a Section No. 2903.21, it's clear to the Court, and confirmed by the judge who wrote it, that that was a [s]crivener's error or typo [sic]." Id. (further noting that "if you look at the very next line, Count 3, which was [charged as] the count involving the aggravated menacing, was dismissed"; also citing the tape recording). The trial court further elaborated: "[A]gain, there's a statement of facts done at the time of this guilty plea to the Felony 5. There was no objection made that the defendant was [not] guilty of an assault involving a family or household member back in January of 2019." Id. at 16.

{¶ 10} Following the hearing, the trial court filed its Decision and Entry denying Mr. Gifford's motion "[f]or the reasons set forth by the Court on the record at the conclusion of the hearing." March 30, 2021 Decision and Entry Denying Defendant's Motion to Withdraw Plea. That same day, the municipal court judge from the earlier matter filed a "Nunc Pro Tunc" entry specifying that the 2019 plea and conviction had been for a violation of R.C. 2903.13(A) (assault). Mr. Gifford then appealed in this case, submitting as assignments of error that the trial court had erred and abused its discretion in rejecting his motion to withdraw his plea, or alternatively that the offense should have been sentenced as a first-degree misdemeanor. See Appellant's Brief at 7. He contends:

[1.] The trial court committed prejudicial error and an abuse of discretion when it overruled appellant's motion to withdraw his guilty plea and thereby violated appellant's rights to due process and to a proper presentment to a grand jury that are guaranteed under Article I, Sections 10 and 15 of the Ohio Constitution.

[2.] The Appellant's sentence is clearly and convincingly excessive in violation of Ohio Constitution, Article I Section 9 and otherwise contrary to law and must

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