State v. Risner

2021 Ohio 342

STATE OF OHIO, PLAINTIFF-APPELLEE, v. PATRICIA R. RISNER, DEFENDANT-APPELLANT.

CASE NO. 16-20-05

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

February 8, 2021

OPINION

Appeal from Wyandot County Common Pleas Court

Trial Court No. 19-CR-0083

Judgment Affirmed

APPEARANCES:

Edwin M. Bibler for Appellant

Eric J. Figlewicz for Appellee

WILLAMOWKSI, P.J.

{¶1} Defendant-appellant Patricia R. Risner ("Risner") appeals the judgment of the Wyandot County Court of Common Pleas, alleging (1) that the trial court erred by denying her motion to withdraw her guilty plea; (2) that she was denied her right to the effective assistance of counsel; and (3) that the trial court erred by sentencing her to serve a term in prison. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On July 24, 2019, Risner was indicted on one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree; one count of complicity to burglary in violation of R.C. 2923.03(A)(2), a felony of the third degree; one count of misuse of credit cards in violation of R.C. 2913.21(B)(2), a misdemeanor of the first degree; and one count of complicity to misuse of credit cards in violation of R.C. 2923.03(A)(2), a misdemeanor of the first degree. Doc. 1. Risner entered her sister's home without permission and participated in the theft of money and a bank card. Change of Plea Tr. 11; Sentencing Hearing Tr. 8. Julie A. Wolf ("Wolf") and Larae M. Brand ("Brand") were allegedly involved with Risner in the commission of these offenses. Doc. 10. On July 29, 2019, Risner pled not guilty to the charges against her. Doc. 7.

{¶3} However, on January 29, 2020, Risner pled guilty to one count of complicity to burglary in violation of R.C. 2911.12(A)(3), R.C. 2923.03(A)(2).Doc. 28, 30. The remaining three counts against her were subsequently dismissed. Doc. 28. During the Crim.R. 11 colloquy preceding the entry of her plea of guilty, Risner informed the trial court that she was on a medication but that it did not interfere with her ability to think clearly. Change of Plea Tr. 4. The trial court then found her competent to proceed. Id. After the Crim.R. 11 colloquy, the trial court accepted Risner's plea of guilty. Doc. 30.

{¶4} Risner's sentencing hearing was scheduled for May 20, 2020. Doc. 45. However, on May 19, 2020, Risner filed a motion to withdraw her guilty plea. Doc. 35. In this motion, Risner alleged that she "only pled guilty out of fear and panic." Doc. 35. She further alleged that she was innocent and that she "ha[d] recently discovered new evidence to help prove her innocence." Doc. 35. This evidence was a letter ("the letter") that Risner alleged to be from Wolf. Motion Hearing Tr. 6. Risner stated that she had obtained this letter from Wolf's mother. Id.

{¶5} On May 20, 2020, the trial court held a hearing on this motion. Motion Hearing Tr. 1. Risner testified at the hearing about the contents of the letter, but defense counsel indicated that he had "just got [the letter] before we walked into the courtroom." Motion Hearing Tr. 17. The trial court then directed the parties to quote the relevant portions of the letter in their written, closing arguments on this motion. Id. The trial court then summarized Risner's testimony at the motion hearing as follows:

[S]he testified that she received a letter from Jessica Wolf and that Jessica Wolf stated she was bribed by Larae Brand to say that [Risner] was present for the crime. [Risner] further testified that she did not know where Jessica Wolf was at this time. [Risner] testified that she had no actual knowledge of bribery, and further admitted to telling law enforcement she entered the victim's house.

Doc. 35. The State subsequently filed a judgment entry that indicated Wolf had failed to appear at a hearing in the criminal proceeding against her and that a warrant had been issued for her arrest. Doc. 44, Ex. A.

{¶6} On June 19, 2020, after considering Riser's testimony and the written closing arguments of the parties, the trial court denied Risner's motion to withdraw her guilty plea. Doc. 35. In its entry, the trial court noted that

the letter was hearsay at best, and the Court is unaware of its actual contents. One would also need to believe that this Defendant was one of the most fortunate persons in the criminal justice system to obtain such a letter from a co-defendant within a day of her sentencing and on the very day she also realized she had been confused when she entered her plea.

Doc. 35. The trial court also noted that Risner had "admitted to the charge and explained her role in it at the change of plea hearing." Doc. 35.

{¶7} After the trial court denied Risner's motion to withdraw her guilty plea, Wolf resurfaced and appeared in the trial court. Sentencing Hearing Tr. 8. Wolf "confirmed Defendant's [(Risner's)] participation in the crime. Id. at 8. On July 21, 2020, Risner appeared at her sentencing hearing. Doc. 47. The trial court ordered Risner to serve thirty months in prison. Doc. 47. The appellant then filedher notice of appeal on August 5, 2020. Doc. 48. On appeal, Risner raises the following three assignments of error:

First Assignment of Error

The trial court erred by not permitting further hearing and ultimately denying the Appellant's Pre-sentence motion to Withdraw Guilty Plea when there was evidence of the Appellant's innocence.

Second Assignment of Error

Appellant received ineffective assistance of counsel when trial counsel failed to (1) subpoena Wolf to the hearing on the Motion to Withdraw Plea; (2) failed to admit the letter from Wolf into evidence; and (3) by failing to request a continuance of the hearing so that the location of Appellant's co-defendant may be found.

Third Assignment of Error

The trial court erred by sentencing the Defendant to thirty-six (36) months when the Appellant was a first time felon, and had shown she was amenable to community control sanctions.

First Assignment of Error

{¶8} Risner argues that the trial court erred in denying her motion to withdraw her guilty plea.

Legal Standard

{¶9} "A motion to withdraw a guilty plea is governed by Crim.R. 32.1 * * *." State v. Bush, 3d Dist. Union No. 14-2000-44, 2002-Ohio-6146, ¶ 10. Under Crim.R. 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.

Crim.R. 32.1. While "a presentence motion to withdraw a guilty plea should be freely and liberally granted[,] * * * a defendant does not have an absolute right to withdraw a plea prior to sentencing." State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715, 719 (1992).

{¶10} "A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Xie, paragraph one of the syllabus.

Some of the factors that are weighed in considering the trial court's decision on a presentence motion to withdraw a plea are as follows: (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 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to 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. Griffin (2001), 141 Ohio App.3d 551, 554, 752 N.E.2d 310 [(7th Dist.)].

State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21. "None of the factors is determinative on its own and there may be numerous additional aspects 'weighed' in each case." State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 16. {¶11} "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." State v. Peacock, 3d Dist. Seneca No. 13-13-42, 2014-Ohio-1571, ¶ 26. An abuse of discretion is not merely an error of judgment. State v. Sullivan, 2017-Ohio-8937, [102 N.E.3d 86], ¶ 20 (3d Dist.). Rather, an abuse of discretion is present where the trial court's decision was arbitrary, unreasonable, or capricious. State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23. When the abuse of discretion standard applies, an appellate court is not to substitute its judgment for that of the trial court. State v. Thompson, 2017-Ohio-792, 85 N.E.3d 1108, ¶ 11 (3d Dist.).

Legal Analysis

{¶12} Risner argued that her motion to withdraw her guilty plea should have been granted because "her judgment was impaired when she entered her guilty plea [due] to emotions of fear and panic" and because she "discovered new evidence to help prove her innocence." Doc. 35. We will review these arguments and the decision of the trial court under the nine applicable factors set forth above. Lane, supra, at ¶ 21.

{¶13} First, as to whether the State would be prejudiced by the withdrawal, the prosecution pointed to the fact that this offense occurred in July of 2019 and argued that the fading memories of "those witnesses that had small, but relevantroles in this case" would prejudice their case. Doc. 44. In particular, the State identified the

employees that created/secured security footage for law enforcement, an employee that assisted in confirming alleged fraudulent transactions, and a witness that observed a relevant vehicle and movement a the victim's residence during the time frame of the alleged burglary.

Doc. 44. The trial court found that the State, in this argument, "articulated actual prejudice" if the trial court allowed Risner to withdraw her plea. Doc. 45.

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