Opinion
2023CA00138
09-24-2024
STATE OF OHIO Plaintiff-Appellee v. JOSEPH WILKES Defendant-Appellant
For Plaintiff-Appellee: KYLE L. STONE STARK CO. PROSECUTOR CHRISTOPHER A. PIEKARSKI For Defendant-Appellant: RHYS B. CARTWRIGHT-JONES
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 1999CR0842
APPEARANCES:
For Plaintiff-Appellee: KYLE L. STONE STARK CO. PROSECUTOR CHRISTOPHER A. PIEKARSKI
For Defendant-Appellant: RHYS B. CARTWRIGHT-JONES
Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Judges:
OPINION
Delaney, P.J.
{¶1} Appellant Joseph Wilkes appeals from the October 5, 2023 Judgment Entry of the Stark County Court of Common Pleas overruling his motion to withdraw guilty plea. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's conviction is not necessary to our resolution of this appeal. In 1999, appellant was charged by indictment with one count of aggravated murder pursuant to R.C. 2903.01(A) including a death-penalty specification pursuant to R.C. 2929.04(A)(2) because the offense was committed for hire. On September 27, 1999, appellant agreed to plead guilty as charged, to waive his appellate rights, and to testify truthfully in his co-defendant's trial in exchange for appellee's agreement not to seek the death penalty. The trial court sentenced appellant to an agreed sentence of life in prison with parole eligibility after thirty years.
{¶3} Pursuant to the negotiated plea agreement, appellant did not file a direct appeal from his conviction and sentence.
{¶4} In July 2022, appellant filed a motion for delayed appeal in Fifth District Court of Appeals, Stark County Case Number 2022CA00095. We overruled the motion for leave, finding appellant's arguments insufficient to justify a 20-year delay in filing the motion and that appellant was properly advised of the waiver of his right to appeal. Judgment Entry, September 22, 2022, page 2. The Ohio Supreme Court declined to accept jurisdiction of appellant's appeal from our decision. 169 Ohio St.3d 1489, 2023-Ohio-1149, 206 N.E.3d 735.
{¶5} On November 7, 2022, appellant filed a pro se motion to withdraw guilty plea and subsequently retained counsel, who filed a supplemental memorandum to the motion on September 22, 2023. Appellee filed a memorandum in opposition on October 2, 2023.
{¶6} On October 5, 2023, the trial court overruled the motion to withdraw guilty plea, finding appellant offered no valid reason overcoming the 24-year delay and failed to demonstrate a manifest injustice based upon his self-serving claims and speculative arguments.
{¶7} Appellant now appeals from the trial court's decision overruling his motion to withdraw his guilty plea.
{¶8} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶9} "THE TRIAL COURT ERRED IN OVERRULING WILKES' PETITION."
ANALYSIS
{¶10} In his sole assignment of error, appellant argues the trial court erred in overruling his petition (sic). We disagree and find the trial court did not err in overruling appellant's motion to withdraw his guilty plea.
{¶11} We begin by noting that in his argument before the trial court and on appeal, appellant conflates a post-sentence motion to withdraw guilty plea with the time requirements for a petition for post-conviction relief pursuant to R.C. 2953.21. The Ohio Supreme Court has held that each is a separate, independent remedy. State v. Pepper, 5th Dist. Ashland No. 13 COA 019, 2014-Ohio-364, ¶ 16, citing State v. Bush, 96 Ohio St.3d 235, 773 N.E.2d 522, 2002-Ohio-3993, syllabus.
{¶12} To clarify, appellant's motion before the trial court was indisputably a motion to withdraw his guilty plea pursuant to Crim.R. 32.1 and was treated as such by the trial court. The motion was premised upon the following arguments: 1) appellant entered his negotiated plea before a single judge instead of a three-judge panel; 2) he should have received a psychological examination; 3) evidence was withheld from the defense; and 4) counsel was ineffective in permitting all of the above and in agreeing to require appellant to testify against his co-defendant, consigning appellant to life in prison with the reputation of a snitch.
{¶13} The motion makes only fleeting reference to the time requirements of R.C. 2953.23. Crim.R. 47 states that a motion "shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought." Our review of the motion leads us to conclude it is a post-sentence motion to withdraw guilty plea. Moreover, because appellant's conviction arose from a guilty plea and not from trial, it is unlikely he could meet the "constitutional error at trial" requirement of R.C. 2953.23(A)(1)(b) if he intended to seek PCR relief. Pepper, supra, 2014-Ohio-364, ¶ 26, citing State v. Hamilton, 10th Dist. Franklin No. 03AP-852, 2004-Ohio-3556, ¶ 4 and State v. Clark, 5th Dist. Stark No.2007 CA 00206, 2008-Ohio-194, ¶ 18. The trial court therefore properly treated appellant's motion as a motion to withdraw guilty plea and to the extent that appellant conflates the motion to withdraw his guilty plea with a petition for post-conviction relief, those arguments are unavailing.
{¶14} Turning to the motion to withdraw guilty plea, Crim.R. 32.1 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." A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).
{¶15} The defendant bears the burden of proving "manifest injustice." Id. Whether the defendant has sustained that burden is within the sound discretion of the trial court and we review the trial court's decision for an abuse of discretion. Id. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶16} Further, an "undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and mitigating against the granting of the motion." State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).
{¶17} Under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Williams, 5th Dist. Tuscarawas No. 2013 AP 04 0020, 2014-Ohio-5727. A manifest injustice has been defined as a "clear or openly unjust act." State v. Congrove, 5th Dist. Delaware No. 09CA090080, 2010-Ohio-2933, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 699 N.E.2d 2983 (1998). "A manifest injustice comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through any form of application reasonably available to him." State v. Williams, 5th Dist. Tuscarawas No. 2013 AP 04 0020, 2014-Ohio-5727.
{¶18} Appellant first argues he should be permitted to withdraw his negotiated guilty plea because it was accepted by a single judge instead of a three-judge panel. We addressed a similar argument in State v. Dull, 5th Dist. Stark No. 2019CA00158, 2020-Ohio-4229, at ¶ 19. R.C. 2945.06 provides, "if the accused pleads guilty of aggravated murder, a court composed of three judges shall examine the witnesses, determine whether the accused is guilty of aggravated murder or any other offense, and pronounce sentence accordingly." Pursuant to Criminal Rule 11(C)(3), with respect to aggravated murder:
If the indictment contains one or more specifications that are not dismissed upon acceptance of a plea of guilty or no contest to the charge, or if pleas of guilty or no contest to both the charge and one or more specifications are accepted, a court composed of three judges shall: (a) determine whether the offense was aggravated murder or a lesser offense; and (b) if the offense is determined to have been a lesser offense, impose sentence accordingly, or (c) if the offense is determined to have been aggravated murder, proceed as provided by law to determine the presence or absence of the specified aggravating circumstances and of mitigating circumstances, and impose sentence accordingly.
{¶19} Appellant contends that because the trial court failed to convene a three-judge panel in accordance with R.C. 2945.06 and Criminal Rule 11(C)(3), his plea was not knowingly and intelligently made, and the failure rendered the trial court without jurisdiction to take the plea. Appellant cites the Ohio Supreme Court's case of State v. Parker in support of his argument. 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846. In Parker, the Ohio Supreme Court held that a defendant charged with a crime punishable by death who has waived his right to a jury trial must, pursuant to R.C. 2945.06 and Criminal Rule 11(C)(3), have his case heard and decided by a three-judge panel even if the State agrees that it will not seek the death penalty.
{¶20} However, at the time of appellant's plea (September 27, 1999), Parker had not yet been decided and the law in this district was established by State v. Griffin, 73 Ohio App.3d 546, 597 N.E.2d 1178 (5th Dist. 1992), in which we held that the trial court was not required to follow death penalty procedures where the State of Ohio agreed not to request the death penalty. At the time of appellant's plea, the caselaw in this district established that when a defendant agreed to forego his right to a jury trial in exchange for the prosecutor's agreement not to pursue the death penalty, the case could be heard by a single judge. Id. The Griffin case was not overruled by Parker until 2002.
{¶21} Thus, based upon the caselaw at the time of appellant's plea, and at the time appellant would have appealed his sentence, the failure to convene a three-judge panel was not reversible error and Ohio law provided that special procedural protections associated with a capital offense were required only when the death penalty could be imposed. State v. Dull, 5th Dist. Stark No. 2019CA00158, 2020-Ohio-4229, ¶ 23, citing State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989; Ahart v. Bradshaw, 122 Fed.Appx. 188 (6th Cir. 2005). "That this law may have changed a decade or more later does not justify * * * abandoning the law in place and the convictions based on it at the time of trial" and the fact that the law may have changed in 2002 does not mean appellant had a valid ground for appeal in 1994. Id.
{¶22} Moreover, the proper remedy for appellant's claims was a direct appeal. Dull, supra, 2020-Ohio-4229, ¶ 25. Subsequent to Parker, the Supreme Court clarified that Parker does not stand for the proposition that a court lacks subject-matter jurisdiction in a death penalty case if it fails to convene a three-judge panel upon a defendant's waiver of a jury. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992. Rather, the Ohio Supreme Court has held that the failure to convene a three-judge panel to accept a guilty plea renders a judgment voidable, not void, and is properly challenged on direct appeal. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992; State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d 344; State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543, 721 N.E.2d 1051 (2000). As stated in Pratts v. Hurley, the "failure to convene a three-judge panel to accept a guilty plea did not constitute a lack of subject-matter jurisdiction rendering the court's judgment void ab initio and subject to collateral attack. It constitutes an error in the court's exercise of jurisdiction and must be raised on direct appeal." Id. The lack of a three-judge panel is therefore not a basis for manifest injustice requiring withdrawal of the guilty plea.
{¶23} Appellant next argues his plea was not voluntary because he did not receive a psychological evaluation. He acknowledges defense trial counsel moved for a mental-health evaluation but contends he entered his guilty plea without any examination occurring. Appellant cites R.C. 2929.03(D)(1), which provides that "[a] presentence investigation or mental examination shall not be made except upon request of the defendant. Copies of any reports prepared under this division shall be furnished to the court, to the trial jury if the defendant was tried by a jury, to the prosecutor, and to the offender or the offender's counsel for use under this division." Appellant's speculation that a psychological report would have resulted in a more-favorable outcome does not establish a manifest injustice. Counsel could have reasonably decided to proceed with the plea agreement absent a psychological investigation, which may have delayed or compromised their attempts to save appellant's life by removing the death penalty from the sentencing equation. See, State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 101.
{¶24} Appellant next speculates appellee withheld evidence from defense trial counsel, premising an obtuse argument upon evidence allegedly withheld "to the best of his knowledge" and which may have "merit[ed] from a discovery period." Brief, 13. Like his purely speculative argument about the result and effect of a psychological report, nothing indicates that the prosecutor withheld Brady material in the present case. See, State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 176. We find no basis for a manifest injustice in appellant's nebulous claims of a Brady violation.
{¶25} Finally, appellant's ineffective-assistance argument arises from counsel's failure to address the lack of the three-judge panel and psychological examination; the failure to investigate the alleged missing evidence; and appellant's "stigmatization * * * within the prison system" as a snitch due to his "compulsion" to testify against the co-defendant. Appellant states: "One can say without equivocation that, under these circumstances, a silent pro-se trial would have produced a more favorable outcome for [appellant." It is impossible to take appellant's contention seriously; charged with a death-eligible offense, his agreement to testify against the co-defendant who hired him to commit murder was integral to the plea agreement sparing appellant's life.
{¶26} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant must show that trial counsel was ineffective, i.e., whether counsel's performance fell below an objective standard of reasonable representation and violative of any of his or her essential duties to their client. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.
{¶27} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test, whether the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. Id. This requires a showing that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id.
{¶28} With regard to appellant's ineffective assistance of counsel argument, we find that counsel's performance did not fall below an objective standard of reasonable representation and counsel did not violate any of their essential duties to appellant because, as detailed above, at the time of appellant's plea, the caselaw in this district established that when a defendant agreed to forego his right to a jury trial in exchange for the prosecutor's agreement not to pursue the death penalty, the case could be heard by a single judge. At the time appellant would have appealed his sentence, the failure to convene a three-judge panel was not reversible error. This caselaw was not overruled until eight years after appellant's plea. The law presumes competence on trial counsel's part. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); State v. Hurt, 5th Dist. Muskingum No. CT2019-0053, 2020-Ohio-2754.
{¶29} The trial court fully apprised appellant of the constitutional rights he was giving up in pleading guilty, and appellant unambiguously indicated the voluntary, intelligent, and knowing nature of his plea; appellant makes no claim otherwise. As to appellant's ineffective assistance claim, we find appellant failed to demonstrate he suffered prejudice and counsel's performance did not fall below an objective standard of reasonable representation. Thus, there is no manifest injustice resulting from ineffective assistance of counsel. Absent a showing of manifest injustice, the trial court did not abuse its discretion in denying appellant's motion to withdraw guilty plea.
{¶30} Appellant's motion to withdraw his guilty plea was filed 24 years after his plea and sentencing. Although not dispositive on its own, "[a]n undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Criminal Rule 32.1 is a factor adversely affecting the credibility of the movant and mitigating against the granting of the motion." State v. Martin, 5th Dist. Richland No. 11CA0116, 2012-Ohio-4394.
{¶31} The allegations contained in the motion concerning the lack of a three-judge panel are insufficient in this case to demonstrate a manifest injustice. Further, appellant's self-serving speculation regarding a psychological evaluation and further investigation are insufficient to demonstrate a manifest injustice. State v. Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16. Nor has appellant demonstrated ineffective assistance of counsel. Upon review of the entirety of appellant's claims in support of his motion to withdraw plea, we are unpersuaded the trial court abused its discretion in declining to find a manifest injustice warranting the extraordinary step of negating appellant's plea more than 24 years after the entry thereof.
CONCLUSION
{¶32} Appellant's sole assignment of error is overruled and the judgment of the Stark County Court of Common Pleas is affirmed.
Delaney, P.J., Hoffman, J. and Wise, J., concur.