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IN THE SUPREME COURT OF OHIO

MICHAEL A SHAFFER, ) On Appeal from Muskingum CountyAppellant, ) Court of Appeals,

Vs.Fifth Appellate District of Ohio.

Appeals Number CT2007-0018

STATE OF OHIO,Appellee. 0^-1`777

MEMORANDUM IN SUPPORT OF JURISDICTIONOF DEFENDANT-APPELLANT MICHAEL A. SHAFFER

Michael A. ShafferNoble Correctional Institution15708 McConnelsville RoadCaldwell, Ohio 43724

Counsel for Appellant, Michael A. Shaffer, pro se

Vs.

D. Michael HaddoxMuskingum County Prosecutor27 North Fifth StreetZanesville, Ohio 43701

Counsel for Appellee, State of Ohio

NOV 2 44 2-10,08

CLERK OF COURTSUPREME C®URT OF OHip

I Fa1NOV 24 ZC-03

CLERK OF COURTSUPREME COURT OF OHiO

TABLE OF CONTENTSPaae

EXPLANATION WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERALINTERSTAND INVOLVES SUBSTANTIAL CONSTITUTIONALAND FEDERAL QUESTION .................................................................................................... 1

STATEMENT OF CASE AND FACTS ..................................................................................... 2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ..................................................... 3

Proposition of Law I: The trial court erred as a matter of law by acceptingAppellant's plea of guilty to a felony three Aggravated Vehicular Homicidecharge that was erroneously predicated solely on a minor misdemeanorreckless operation of a motor vehicle charge in violation of Appellant'sUnited States Constitutional right of Due Process of Law and EqualProtection of Law, United States Constitution Fourteenth Amendment andOhio Constitution Article I, Section 10 .............................................................. 3

Proposition of Law 11: The trial court erred as a matter of law by not allowingAppellant to withdraw his guilty plea when such plea contained an incorrectstatement or interpretation of the law, and thus not knowing, voluntary, andintelligent as required by Criminal Rule 11, in contravention of his UnitedStates Constitutional Fourteenth Amendment, and Ohio Constitution Article I,Section 10 ............................................................................................................ 6

Proposition of Law III: The trial court erred as a matter of law by acceptingAppellant's guilty plea to two counts of R.C. 2903.06(A)(2)(a) as suchstatutes is unconstitutional under the Due Process Clause of the UnitedStates Constitution, and Ohio Constitution Article I, Section 10 ........................ 8

Proposition of Law IV: The trial court abused its discretion by not allowingAppellant to withdraw his guilty plea when such motion to withdraw wasmade prior to sentencing and for good cause shown, thereby violatingAppellant's United States Constitution Fourteenth Amendment and OhioConstitution Article I, Section 10 rights ............................................................. 10

Proposition of Law V: The trial court erred as a matter of law by notAllowing Appellant to withdraw his guilty plea when such denial ofAppellant's motion resulted in a violation of Appellant's United StateConstitution Sixth Amendment right to effective assistance of counsel ............ 12

TABLE OF CONTENTSPaee

CONCLUSION ......................................................................................................................... 14

PROOF OF SERVICE .............................................................................................................. 14

APPENDIX Appx. Paize

Opinion of the Muskingum County Cotut of Appeals(June 2, 2008) .............................................................................................................. 1

Judgment Entry of the Muskingum County Court of Appeals(June 2, 2008) ............................................................................................................. 15

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EXPLANATION WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES SUBSTANTIAL

CONSTITUTIONAL AND FEDERAL QUESTION

This case will affirm at least (5) critical constitutional issues for the fature of criminal

defendants in the state of Ohio who express their rights to Equal Protection of Law and Due Process of

Law only to have those rights denied.

The Trial Court erred and denied the Appellant his right to withdraw his guilty plea and take his

case to trial, when this clearly took place before Appellant was sentenced as trial counsel admits on

record that they were ineffective pursuant to the standards set forth in Strickland v Washing-ton. (1984).

104 S. Ct. 2052.

The pleas agreement between the State and Appellant was contrary to law because, pursuant to

the clear, unambiguous language of O.R.C. 2903.06(A)(4), the predicate minor misdemeanor charge

would only lead to a charge of Vehicular Manslaughter under O.R.C. 2903.06(A)(4), and not

Aggravated Vehicular Homicide under O.R.C. 2903.06(A)(2)(a). Clearly the Fifth District Court of

Appeals erred in denying the Appellant relief on his claims.

Wherefore, this appeal presents very controversial issues that involve Equal Protection of Law;

Due Process of Law; Ineffective Assistance of Trial and Appellate Counsel, in violation of the United

States Constitution Amendment(s) 5, 6, and 14; also Ohio Constitution Article I, Section 10; and a fair

appeal as of right.

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STATEMENT OF CASE AND FACTS

On October 13, 2005, Appellant Michael A. Shaffer was involved in an automobile accident

resulting in the deaths of two individuals who were traveling in another vehicle. Appellant was taken

to the hospital to receive medical treatment and immediately placed in custody. Appellant was

subsequently transferred to the Muskingum County Jail in Zanesville, Ohio.

On October 20, 2005, Appellant was indicted by the Muskingum County Grand Jury on the

following charges: two counts of Aggravated Vehicular Homicide, felonies of the second degree under

R.C. 2903.06(A)(1)(a); two counts of Aggravated Vehicular Homicide, felonies of the third degree

under R.C. 2903.06(A)(2)(a); one count of OVI, a misdemeanor of the first degree under R.C.

4511.19(A)(1)(g); one count of OVI, a misdemeanor of the first degree under R.C. 4511.19(A)(1)(a):

and one count of Reckless Operation, a minor misdemeanor under R.C. 4511.20(A). Appellant was

unable to post bond so he remained incarcerated during the proceedings in the trial court.

Eventually, after much dispute over discovery, the defense and the State of Ohio began plea

negotiations. On June 16, 2006, Appellant signed a plea of guilty, which was accepted by the trial court

on June 29, 2006, in which Appellant pleaded to the following charges: two counts of Aggravated

Vehicular Homicide that constituted-felonies of the third degree under R.C. 2903.06(A)(2)(a) and the

Reckless Operation charge that constituted a minor misdemeanor under R.C. 4511.20(A). The State of

Ohio dismissed the two Aggravated Vehicular Homicide charges that constituted felonies of the second

degree under R.C. 2903.06(A)(1)(a) and the two OVI charges.

At the sentencing hearing on February 12, 2007, Appellant's counsel raised the argument, based

on law that was discovered days prior to the hearing, that the plea agreement was contrary to law

because, pursuant to the clear, unambiguous language of R.C. 2903.06(A)(4), the predicate minor

misdemeanor charge would only lead to a charge of Vehicular Manslaughter under R.C. 2903.06(A)(4),

and notAggravated Vehicular Homicide under R.C. 2903.06(A)(2)(a). Accordingly, Appellants

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counsel asked the trial court for leave to withdraw Appellant's guilty plea, as it was contrary to law,

Criminal Rule 11, and Appellant's Constitutional Rights, as in that it was not knowing, intelligent, or

voluntary due to its fatal statutory defect.

The trial court deferred sentencing in order to provide Appellant with an oral hearing on the

motion to withdraw his guilty plea, which was set by the trial court on February 26, 2007. At such

hearing, Appellant's counsel raised the arguments regarding this fatal, statutory flaw in Appellant's

guilty plea, or, in the alternative, allow leave to amend the pleas to reflect the statutory-mandated

charge of Vehicular Manslaughter, a misdemeanor of the second degree, as provided by R.C.

2903.06(A)(4), based on the predication on a Reckless Operation minor misdemeanor under R.C.

4511.20(A). The trial court denied Appellant's motion an moved forward with sentencing at the close

of the hearing.

Appellant appealed to the Fifth District Court of Appeals and now appeals to this Court that the

trial court's acceptance of the plea that was contrary to law, that contained other fatal defects and

denying Appellant's motion to withdraw guilty plea is in violation ofAppellant's Constitutional Rights.

Provosition of Law I: The trial court erred as a matter of law byaccepting Appellant's plea of guilty to a felony three AggravatedVehicular Homicide charge that was erroneously predicated solelyon a minor misdemeanor reckless operation of a motor vehiclecharge in violation of Appellant's United States Constitutionalright of Due Process of Law and Equal Protection of Law,United States Constitution Fourteenth Amendment and OhioConstitution Article I, Section 10.

Oluo Revised Code Section 2903.06(A)(2)(a) provides in pertinent part:

No person, while operating or participating in the operation of *** a motorveliicle *** shall cause the death of another *** in one of the followingways: Recklessly[.]"

See R.C. 2903.06(A)(2)(a). This charge constitutes "Aggravated Vehicular Homicide" and is a felony of the

third degree. See R.C. 2903.06(B)(3).

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Ohio Revised Code Section 2903.06(A)(4) provides in pertinent part:

No person, while operating or participating in the operation of *** a motorvehicle *** shall cause the death of another *** in any of the following ways:***[a]s the proximate result of committing a violation of any provision ofany section contained in Title XLV [Title 45] of the Revised Code that isa minor misdemeanor.

(Emphasis added). See R.C. 2903.06(A)(4). This charge constitutes "Vehicular Manslaughter" and is a

misdemeanor of the second degree. See R.C. 2903.06(D).

Ohio Revised Code Section 4511.20(A) provides, in pertinent part:

No person shall operate a vehicle *** on any street or highway in willful orwanton disregard of the safety of persons or property.

See R.C. 4511.20(A). This charge, located within Title XLV of the Ohio Revised Code, constitutes, "Willful or

Wanton Operation [of a vehicle] on Street or Highway" and is a minor misdemeanor. See R.C. 4511.20(B).

"Wanton" behavior has been defined by the Ohio Supreme Court to be substantially similar to "recldess"

behavior, State v Earlenbaugh (1985). 18 Ohio St. 319.

In order to prove Vehicular Manslaughter, the State must charge a predicate offense located within Title

45 of the Revised Code. State v Reinhart, (3rd Dist. May 14 2007). Van Wert App . No. 15-06-07. 2007-Ohio-

2284. If the State charges such a minor misdemeanor predicate offense, the only appropriate charge under R.C.

2903.06 that can be predicated on the minor misdemeanor offense is Vehicular Manslaughter, according to the

plain unambiguous language of R.C. 2903.06(A)(4).

Further, the mens rea of "reckless" is not synonymous with the phrase "recldess operation of a motor

vehicle." See Reinhart, supra. In interpreting statutory language, it is the court's duty to give effect to the words

used, not to delete words or insert words not used. PerrvsburQ Twp v Rossford (2004), 103 Ohio St.3d 79.

Thus, because R.C. 2903.06(A)(2)(a) prohibits recklessly causing the death of another, and R.C. 2903.06(A)(4)

prohibits causing the death of another while committing a minor misdemeanor traffic offense under

Section 45 of the Revised Code, the two statutory sections must be given their distinct meanings. If the

legislature had intended to allow the predication of a charge of R.C. 2903.06(A)(2)(a) on a minor rnisdemeanor

Reckless Operation charge under R.C. 4511.20(A), then they would not have added the Vehicular Manslaughter

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provision under R.C. 2903.06(A)(4) in 2000, as it would have been improperly superfluous. See Reinhart

(Rogers, P.J., concurring), supra. As such, giving all statutory words their meaning, the only offense under R.C.

2903.06 that may properly be predicated upon a Reckless Operation charge under R.C. 4511.20(A) is a charge of

Vecular Manslaughter under R.C. 2903.06(A)(4).

In the instant case, Appellant was indicted on the two counts of Aggravated Vehicular Homicide, in

violation of R.C. 2903.06(A)(1)(a)-second degree felonies; two counts ofAggravated Vehicular Homicide, in

violation of R.C. 2903.06(A)(2)(a)-third degree felonies; two counts of OVI, in violation of R.C.

4511.19(A)(1)(g) and (A)(1)(a); and one count of Reckless OperaGon, a violation of R.C. 4511.20(A)-a minor

misdemeanor.

During the course of the proceedings in the trial court, Appellant and the State of Ohio entered plea

discussions wherein Appellant pleaded guilty to the two counts of Aggravated Vehicular Homicide that

constitutes felonies of the third degree under R.C. 2903.06(A)(2)(a) and the Reckless Operation charge that

constituted a minor niisdemeanor under R.C. 4511.20(A). The State of Ohio dismissed the two Aggravated

Veliicular Homicide charges that constituted felonies in the second degree and the two OVI charges. Appellant

ultimately entered this plea agreement, the trial court accepted Appellant's plea, and refused to allow him to

withdraw his plea prior to sentencing. Appellant was sentenced on February 26, 2007.

In dismissing the second-degree felony charges of Aggravated Vehicular Homicide and the OVI charges

against Appellant, the State of Ohio precluded a proper plea under Criniinal Rule 11 to the third degree felony

charges of Aggravated Vehicular Honucide. By predicating the third degree felony Aggravated Vehicular

Honiicide charges solely on the minor misdemeanor charge ofReckless Operation underR.C. 4511.20(A), the

trial court was only properly able to accept a plea to the charge of Vehicular Manslaughter under R.C.

2903.06(A)(4) and the accompanying minor misdemeanor Reckless Operation charge, as the plea terms state that

the relevant deaths were caused by a violation of a minor misdemeanor under Title XLV of the Revised Code.

See R.C. 2903.06(A)(4). This charge is a misdemeanor of the second degree, not a felony of the third degree.

Thus, the trial court erroneously accepted Appellant's plea under the agreement, as the plea violated the

mandates of Criminal Rule 11 that such plea be entered knowingly, voluntarily, and intelligently. See Crim.R.

5

11. Such an improper plea, if accepted by the trial court, violates the Ohio and United States Constitution, and

must be reversed on appeal. State v Hollis. (1993), 91 Ohio App.3d 371 State v Mitchell. (1992). 78 Ohio

App.3d 613: State v Riev_ins. (1980) , 68 Ohio Ap .n 2d 1. By pleading to two improper charges under R.C.

2903.06(A)(2)(a) that constitutes felonies of the third degree, instead of two proper charges under R.C.

2903.06(A)(4) that constituted misdemeanors of the second degree as clearly stated by the Revised Code

sections cited supra, Appellant certainly did not enter such a plea agreement knowingly, voluntarily, and

intelligently as required by Criminal Rule 11, due to the vast differences in potential sanctions and incarceration

related to distinct charges. Further, not only did the trial court's acceptance of Appellant's plea violate Criminal

Rule 11, but the plea itself was contrary to law as it improperly predicated a felony-three aggravated vehicular

homicide charge on a minor misdemeanor reckless operation of a motor vehicle charge, in direct contravention

of the clear, unambiguous statutory language of R.C. 2903.06(A)(4). See Reinhart, supra.

For the above reasons, the trial court's improper acceptance of Appellant's plea that was contrary to law

and that was not made lrnowingly, voluntarily, and intelligently violated Criminal Rule 11 and must be reversed

by the Court on review.

Pronosition of Law II: The trial court erred as a matter of law bynot allowing Appellant to withdraw his guilty plea when such pleacontained an incorrect statement or interpretation of the law, and thusnot knowing, voluntary, and intelligent as required by Criminal Rule 11,in contravention of his United States Constitutional FourteenthAmendment, and Ohio Constitution Article I, Section 10.

A trial court must conduct a hearing to determine if there is a reasonable and legitimate basis for

withdrawal of a defendant's guilty plea pursuant to Criminal Rule 32.1. State v Xie, (1992), 62 Ohio St3d 521. A

presentence motion to withdraw a guilty plea should be freely granted. See id. Such a presentence motion to

withdraw a guilty plea may properly be made at a sentencing hearing, either orally or in writing. State v Griffin.

(81' Dist.. Mar. 18 , 2004), Cuvahoga App No. 82832, 2004-Ohio-1246. See also State v Scott, (518 Dist., Aug. 7,

2000). StarkApp. No. 1999CA00354 and 1999CA00219) (determining that a presentence motion to withdraw a

guilty plea may be properly and timely made orally on the day of the defendant's sentencing hearing and need

not be in writing or filed).

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Further, it is a violation of defendant's rights under the Due Process Clause when a trial court accepts a

plea of guilty that is premised on an incorrect interpretation or tenet of the law, because such plea is not

knowing, intelligent, and/or voluntary under Criminal Rule 11, and thus void. State v Kellv. (1991). 57 Ohio

St.3d 127: State v Mikulic. (1996), 116 Ohio App.3d 787: State v Fletchiner. (1997) . 51 Ohio AU.2d 73: State v

Buchanan, (1974). 43 Ohio App.2d 93.

In the instant case, Appellant's presentence motion to withdraw his guilty plea was heard on February 26,

2007. Appellant's trial counsel brought the following errors of law, discussed supra, to the attention of the court:

[Appellant's motion to withdraw his guilty plea] is strictly a matter of law.*** I would reiterate what I said *** at the last hearing, [when] we were setfor sentencing. At the sentencing hearing, I indicated that very late the nightbefore, reviewing all of the documents, I rather got very concerned that ***error [occurred] by Mr. Shaffer agreeing to plead to two counts of Felony 3reckless homicide [under R.C. 2903.06(A)(2)(a)] predicated on a minormisdemeanor reckless [operation of a motor vehicle], that can't happen.Certainly Mr. Shaffer can plead to a nunor misdemeanor recldess [operation]if he chooses to do so but that does not lead to a Felony 3 reckless homicide.***[I]n the event that I am right and that one cannot have a Felony 3 recklesshoniicide predicated on a nunor misdemeanor reckless [operation], then,Your Honor, I respectfully request that Mr. Shaffer be allowed to amend his pleathat which seems to be legally accurate. And in the event that he does pleadto a minor misdemeanor reckless [operation], I believe that this leads to avehicular manslaughter charge [under R.C. 2903.06(A)(4)] as opposed to areckless vehicular homicide charge [under R.C. 2903.06(A)(2)(a)].

Clearly Appellant's counsel made the trial court aware of the legal problems with the plea agreement

discussed supra. Regardless, upon conclusion of Appellant's hearing on this motion to withdraw his improper

guilty plea, the trial court allowed the Appellant to speak on his behalf, and stated that "[t]he Court sees no

reason not to follow the recommendation of the State of Ohio' insofar as sentencing, and proceeded forthwith,

thus implicitly denying Appellant's motion to withdraw his improper guilty plea.

The trial court erred by failing to clear up the issue as to the improper predication of an Aggravated

Vehicular Homicide charge under R.C. 2906.06(A)(2)(a) upon a minor misdemeanor Reckless Operation charge

under R.C. 4511.20(A), when R.C. 2903.06(A)(4) clearly provides that the proper predicated charge would be

Vehicular Manslaughter. See Reinhart, sunra. "It is clear that a court must 'clear up' any confusion on the part

of the defendant before it can accept a guilty plea." See State v Mikulic. (1996) . 116 Ohio App 3d 787. Where

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there is an indication of confusion or misunderstanding on the part of the defendant being sentenced, the

implication is that the issue was not resolved and the defendant did not make a knowing plea. See id. When

such confusion or misunderstanding regarding the plea is not addressed and resolved by the trial court, it

constitutes reversible error. See id.

As clearly stated in the record, and as Appellant's counsel argued at the hearing on Appellant's motion to

withdraw his guilty plea, one of the problems with the plea agreement prompted Appellant to move the lower

court to withdraw the guilty plea was that the plea agreement was incorrect as it improperly predicated afelony-

three aggravated vehicular homicide charge on a minor misdemeanor reckless operation of a motor vehicle

charge, in direct contravention of the clear, unambiguous statutory language of R.C. 2903.06(A) (4). See

Reinhart. As such, the improper predication of the felony-three aggravated vehicular homicide on the minor

niisdemeanor reckless operation charge rendered the ability of Appellant to make a knowing, intelligent, and

voluntary decision regarding the plea pursuant to Criniinal Rule 11 legally possible.

For the above reasons, the trial court erred as a matter of law by not allowing Appellant to withdraw his

guilty plea that was based on an incorrect interpretation of law, and was thus neither knowingly, intelligent, rior

voluntary under Criminal Rule 11, ans was thus void and thereby violating Appellant's United States

Constitutional Rights of Due Process of Law and Equal Protection of Law.

Proposition of Law III• The trial court erred as a matter of law byaccepting Appellant's guilty plea to two counts of R:C. 2903.06(A)(2)(a)as such statutes is unconstitutional under the Due Process Clause ofthe United States Constitution, and Ohio Constitution Article I,Section 10.

Ohio Revised Code Section 2903.06(A)(2)(a) provides, in pertinent part:

No person while operating or participating in the operation of ***a motor vehicle *** shall cause the death of another *** in oneof the following ways: Recklessly[.]

The statute prohibits a person from causing the death of another person while acting recklessly

during the operation or participation in the operation of a motor vehicle. See id. "Recklessness" is a

culpable mental state that must be proven by the prosecution. State v Gates, (1983). 10 Ohio App.3d

8

165. However, some Ohio courts have held that operating a motor vehicle under the influence of

alcohol is per se "recklessness" would appear to violate the presumption of innocence found in the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.

A case on point has arisen in the State of Illinois that discusses this conflict. People v

Pomvkala. (2003), 326 111. App. 3d 390. In Pomykala the defendant, who was driving irratically, struck

an oncoming vehicle and killed a passenger. The defendant was charged with and convicted of

"reckless homicide". He admitted that he had been drinking, that he failed field sobriety tests, and that

he tested for a breath-alcohol concentration of 0.2%. The reckless homicide statute charged contained

a provision stating that recklessness shall be presumed from being under the influence of alcohol. On

appeal, the Supreme Court of Illinois reversed the defendant's conviction, and held that the

presumption of recklessness was unconstitutional as it conflicted with the presumption of innocence

provided by the Due Process Clause. Pomvkavla, (holding that section 9-3(b) of the Criniinal Code

created an unconstitutional mandatory presumption because it necessitated a "finding of recklessness

without any factual connection between the intoxication and the reckless act, unless this presumed

connection is disproved").

In the instant case, the trial court accepted Appellant's plea to two counts of Aggravated

Vehicular Homicide under R.C. 2903.06(A)(2)(a), which prohibits a person from causing the death of

another person while acting recklessly during the operation or participation of a motor vehicle. As

provided supra, some Ohio courts have recognized a"presuinption of recklessness" solely based upon

an individual's intoxication. See State v Stinson, (1984), 21 Ohio App.3d 14. This presumption in the

Illinois statute held as unconstitutional is nearly identical to the presumption as stated in Stinson, with

the only exception that the Illinois presumption is created by statute and the Ohio presumption is

created by case law. Appellant submits that this presumption of recklessness directly conflicts with the

presumption of innocence to wliich is entitled by the Due Process Clause.

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For the above reasons, the trial court erred as a matter of law by accepting Appellant's plea of

guilty, because the statute, read with Ohio case law, places an unconstitutional presumption of

recklessness upon Appellant's actions, in direct violation of the presumption of innocence mandated by

the Due Process Clause of the United States Constitution and Ohio Constitution Article I, Section 10,

and thus such action must be reversed by the Court.

Proposition of Law IV: The trial court abused its discretion bynot allowing Appellant to withdraw his guilty plea when suchmotion to withdraw was made prior to sentencing and for goodcause shown, thereby violating Appellant's United StatesConstitution Fourteenth Amendment and Ohio ConstitutionArticle I, Section 10 Rights.

A presentence motion to withdraw a guilty plea should be freely and liberally granted. State v

xe, (1992). 62 Ohio St.3d 521. Such a presentence motion to withdraw a guilty plea may properly be

made at a sentencing hearing, wither orally or in writing. State v Gri j'fan. (8'h Dist., Mar 18, 2004).

CuvahogaApp. No. 82832, 2004-Ohio-1246. State v Scott, (5' Dist. Aug. 7 , 2000). StarkApp. No.

1999CA00354 and 1999CA00219, (determining that a presentence motion to withdraw a guilty plea

may be properly and timely made orally on the day of the defendant's sentencing hearing and need not

to be written or filed).

Although within the discretion of the trial court, "the general rule is that motions to withdraw

guilty.pleas before sentencing are to be freely allowed and treated with liberally[.]" State v Peterseim,

(1980) , 68 Ohio App.2d 211. If a trial court acts unjustly or unfairly in denying such a presentence

motion to withdraw a guilty plea, such denial will be an abuse of discretion, and must be reversed on

appellate review. "A trial court abuses its discretion when it acts in a manner that is 'unreasonably,

arbitrary or unconscionable"'. Blakemore v Blakemore. (1983). 5 Ohio St.3d 217.

In the instant case, Appellant participated in a plea hearing on June 16, 2006, in the trial court.

At this hearing, trial counsel informed the court of problems with Appellant's mental state at the time,

10

and whether or not Appellant would be capable and competent to make a knowing and intelligent plea.

Further during the proceeding, Appellant violently slammed his head and facial region into the counsel

table at which he was seated, thus further suggesting serious mental competency issues. The trial court

did order competency evaluations, but accepted Appellant's plea initially at the plea hearing, and

ordered it to be filed, even under these disturbing circumstances regarding Appellant's mental capacity

to take such action.

Under the Ohio Supreme Court's holding in Xie, supra, before Appellant was sentenced, he

should have been "freely and liberally" granted leave to withdraw his guilty plea. Appellant attempted

to do just that on February 12, 2007, by making both written and oral motion to withdraw his guilty

plea based on fatal errors of law that Appellant discovered in his plea negotiation, as discussed supra at

I and II. As such, under Ohio case law, Appellant timely filed his motion for leave to withdraw his

guilty plea. The trial court held a hearing on Appellant's presentence motion to withdraw his guilty

plea on February 26, 2007.

At the presentence hearing, Appellant presented his argument of law to the trial court. Due to

the presentence nature of Appellant's motion, taken in consideration with Appellant's competency

issues as demonstrated by his self-destructive behavior at the plea hearing, the trial court should have

freely allowed Appellant to withdraw his guilty plea before being sentenced, as good cause was shown

for such withdrawal. Under Blakemore. supra, the trial court's denial of Appellant's presentence

motion to withdraw his guilty plea was unreasonable in light of the reasons set forth by Appellant at the

hearing on his motion, as well as the trial court's knowledge of Appellant's competency issues at the

time of the plea hearing.

For the above reasons, the trial court abused its discretion by denying Appellant's presentence

motion to withdraw his guilty plea when good cause was shown for same, thereby violating Appellant's

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United States Constitutional Fourteenth Amendment and Ohio Constitution Article I, Section 10 rights

and thus such action must be reversed by the Court.

Proposition of Law V: The trial court erred as a matter oflaw by not allowing Appellant to withdraw his guilty pleawhen such denial of Appellant's motion resulted in a violationof Appellant's United States Constitution Sixth Amendmentright to effective assistance of counsel.

Under both state and federal law, a plea violates the constitution unless it is made in a knowing,

intelligent and voluntary manner. State v Hollis, (1993), 91 Ohio A,2p.3d 371.

Ineffective assistance of counsel renders a defendant's plea involuntary. Hill v Lockhart, (1985)

474 U.S. 52. It bears repetition that, absent a knowing, intelligent, and voluntary waiver of the right to

effective assistance of counsel, a defendant cannot be convicted, and sentenced to prison. State v

Tynico, (1975) 42 Ohio St.2d 39 - State v Kleve (1981) , 2 Ohio App 3d 407; State v Haag, (1976). 49

Ohio App.2d 268.

In U.S v Becklean. (1979). 598 F2d 1122, the Court of Appeals held that if a guilty plea is

entered solely because of the erroneous advice of counsel, or if the erroneous advice plays a substantial

part in the inducement of the defendant's guilty plea, manifest injustice may result. Furthermore, "it

has been held that if a guilty plea is entered pursuant to counsel's representation, as opposed to

counsel's likely prediction, that such a plea would result in a lesser sentence than the sentence actually

received, it is necessary to permit post-sentence withdraw of the guilty plea in order to prevent manifest

injustice." State v Hurayt (1992) No. 60676 Court ofAppeals District Eight (unreported), at 4, citing

State v Lambros, (1988)44 Ohio App.3d 102. Accord State v Ramos, (1993) , 88 Ohio App.3d 394 •

State v Hawk (1992) 81 Ohio App.3d 296.

In the case at bar, trial counsel advised Appellant regarding the plea and proposed sentence.

Under ARprendi v New Jersey, (2000), 530 U.S. 466, and including Blakely v Washington (2004) 542

U.S. 296, and its progeny, it was based upon this advise that Appellant agreed to waive his right to a

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jury trial and the associated rights on June 16, 2006. Trial counsel felt that her advise felt that her

advise was accurate on the date given. However, upon further review as the case progressed below,

trial counsel found errors to the legal accuracy of the plea. In fact, at the hearing on February 12, 2007,

when Appellant, through counsel, made his presentence motion to withdraw his guilty plea, trial

counsel stated to the trial court that, upon review of the plea discussed supra at I and II, that "[counsel]

got very concerned and had made an error ** and that error was that by Mr. Shaffer [pleading] to two

counts of Felony 3 reckless homicide predicated on a minor misdemeanor reckless, that-that can't

happen."

Trial counsel made it clear on the record that she had been mistaken in her understanding of the

legal ramifications of Appellant's plea, and such mistakes in understanding would influence Appellant's

decision as to how to proceed with the plea discussions. The difference in potential sentences based on

how the plea was interpreted under the legal theory argued by Appellant at the motionto withdraw

hearing, according to the discussion supra at I and II, was between one year and ten years of

incarceration. Accordingly, Appellant should have been permitted to withdraw his guilty plea pursuant

to his motion prior to sentencing and reinstate his previously entered plea of not guilty. Appellant

should have been permitted, in light of the admitted error on the part of trial counsel, to decide again if

he wished to waive his right to trial. Only in this manner is it possible to cure the Blakelv violation that

occurred and avoid a new constitutional violation.

For the above reasons, the trial court erred as a matter of law by denying Appellant's presentece

motion to withdraw his guilty plea, as such denial violated his United States Constitution Sixth

Amendment and Ohio Constitution Article I, Section 10 rights to effective assistance of counsel, to trial

by jury, and to fundamental faimess, and such action must be reversed by the Court.

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CONCLUSION

Therefore, the failure of the State to provide an adequate remedy for violations of the

Appellant's rights, is it-self a violation of Due Process of Law and Equal Protection of Law under the

United States Constitution Fourteenth Amendment. Wherefore it is prayed that this Honorable Court

accepts jurisdiction over this case so that these important and controversial issues will be reviewed

upon their merits.

Respectfully submitted,

Michael A. ShafferNoble Correctional Institution15708 McConnelsville RoadCaldwell, Ohio 43724

, pro se

PROOF OF SERVICE

I hereby certify that a copy of the foregoing, including appendix was sent by regular U.S. mail

to the Muskingum County Prosecutor, D. Michael Haddox at 27 North Fifth Street Zanesville, Ohio

43701, this day of 12008.

pro seMichael A. ShafferNoble Correctional Institution15708 McConnelsville RoadCaldwell, Ohio 43724

14

COURT OF APPEALSMUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appe!lee

-vs-

MICHAEL A. SHAFFER

Defendant-Appellant

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

D. MICHAEL HADDOXPROSECUTING ATTORNEYROBERT L. SMITHASSISTANT PROSECUTOR27 North Fifth Street, P. O. Box 189Zanesville, Ohio 43702

----- ^ ^fLEt7

^^ CtiUF7TFrAPPIEAI g 9X

I 1JUN G ^ 20r 08

^ MUSKINCLM C'OUNTY, OHtpTODD A. BICKLE, C'LERkC

JUDGES:Hon. Sheila G. Farmer, P.J.Hon. John W. Wise. J.Hon. Patricia A. Delaney, J.

Case No. CT2007-0018

OPINION

Criminal Appeal from the Court of CommonPleas, Case No. CR2005-0305

Affirmed

For Defendant-Appellant

ELIZABETH N. GABAJAMES D. MILLER1231 East Broad StreetColumbus, Ohio 43205

Muskingum County, Case No. CT2007-0018 2

Wise, J.

{¶1} Defendant-appellant Michael A. Shaffer appeals his conviction and

sentence entered in the Muskingum County Court of Common Pleas.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{T3} On or about October 13, 2005, Patrolman Shane Patterson of the South

Zanesville Police Department was parked on Maysville Avenue, in the Village of South

Zanesville, Ohio, and was speaking with Deputy Ryan Paisley of 4he Muskingum County

Sheriff's Department, who was also parked in the same parking lot. While the two

officers were conversing, they observed a 1992 Dodge Caravan mini van, which was

traveling southbound at a speed much greater than the posted thirty-five (35) mile per

hour speed limit. Officer Patterson pulled out of the lot in which he had been parked and

headed southbound in pursuit of the 1992 Dodge Caravan. As he pulled onto Maysville

Avenue, Officer Patterson observed the vehicle travel at a high rate of speed through

the red light governing southbound traffic on Maysville Avenue at the intersection of

Maysville Avenue and Lasalle Street, Officer Patterson then observed the vehicle travel

at a high rate of speed through the red light governing southbound traffic on Maysville

Avenue at the intersection of Maysville Avenue and West Main Street. As it did so, the

Dodge van collided with a 1997 Dodge that was turning left from West Main Street onto

Maysville Avenue. As the result of the collision, both occupants of the 1997 Dodge were

killed. It was determined by police officers that Appellant Michael Shaffer was driving

the 1992 Dodge Caravan at the time of the impact. Officers also found that Appellant


had consumed alcohol prior to the accident and that the 1992 Dodge Caravan was

traveling approximately seventy-one (71) miles per hour just prior to impact.

{¶4} These last two facts were never presented to the trial court due to the plea

negotiations that led to the DefendanUappellant's change of plea.

{¶5} On October 19, 2005 Appellant was indicted by the Muskingum County

Grand Jury upon seven (7) separate counts, all of which arise from the two vehicle

accident on October 13, 2005, in which two (2) people were killed. Those charges are:

{16} Aggravated Vehicular Homicide, in violation of Ohio Revised Code Section

2903.06(A)(1), a felony of the second degree;

{¶7} Aggravated Vehicular Homicide, in violation of Ohio Revised Code Section

2903.06(A)(2)(a), a felony of the third degree;


2903.06(A)(1), a felony of the second degree;


2903.06(A)(2)(a), a felony of the third degree;

{¶10} Driving While Under the Influence of Drugs and/or alcohol, in violation of

Ohio Revised Code Section 4511.1 9(A)(1), a misdemeanor of the first degree;

{¶11} Driving While Under the Influence of Drugs and/or alcohol, in violation of

Ohio Revised Code Section 4511.19(A)(1), a misdemeanor of the first degree;

{¶12} Reckless Operation of a Motor Vehicle, in violation of Ohio Revised

Code Section 4511.20, a minor misdemeanor.


{T13} On October 26, 2005, Appellant appeared in the Muskingum County Court

of Common Pleas for arraignment and entered a general plea of "Not Guilty" to all

seven (7) counts of the Indictment.

{¶14} After several motions and hearings, Appellant aareed to withdraw his "not

guilty plea" and enter a plea of "guilty" pursuant to a written plea agreement. Under the

terms of this agreement, the State agreed to enter a Nolle Prosequi as to the more

serious charges involving aggravated vehicular homicide: Counts One and Three, both

felonies of the second degree and both of which allege the use of a!cohol during the

operation of a motor vehicle while causina the death of another.

{¶15} In addition, the State agreed to enter a Nolle Prosequi upon Counts Five

and Six, which alleae that Appellant operated a motor vehicle while under the influence

of drugs and/or alcohol.

{T"6} T lis matter came on for the change of plea hearing on June 16, 2006.

After Appellant signed the appropriate paperwork, defense counsel indicated that she

was not willing to proceed because she felt that her client "was not competent." The

parties then agreed that Appellant would enter the plea and that, as a part of the pre-

sentence investigation, the trial court would order a competency evaluation. If that

evaluation indicated Appellant was not competent, Judge Fleegle would not accept the

plea. Defense counsel agreed with that proposal and Appellant proceeded to change

his plea in open court pursuant to the agreement and in accordance with Ohio Rule of

Criminal Procedure 11.

Muskingum County, Case No. C T 2007-0018 5

{¶17} Judge Fleegle referred the matter of the competency evaluation to the

Forensic Diagnostic Center of District Nine, Inc. and Dr. Denise A. Kohler was assigned

to perform ihis evaluation.

{¶18} On July 14, 2006, Dr. Kohler filed a report that concluded that Appe!lant

was indeed competent. However, defense counsel requested leave to seek an

independent evaluation. Appellant then retained Dr. Ken Tecklenburg.

{¶19} On August 31, 2006, Dr. Techlenburg filed his written report of his

examination of Appellant in which he stated that "Shaffer is presently capable of

understanding the nature and the objectives of the legal proceedings against him, but

he is not capable or"assisting counsel in his own defense."

{¶20} Subsequently, the State of Ohio requested leave to seek its own

independent evaluation.

{121} On December 21, 2006, the trial court presided over a hearina in which all

three (3) experts testified concerning their respective examination of Appellant.

{¶22} The trial court issued a decision in which it concluded that Appellant was

competent at the time he entered his change of plea. The matter was then set for a

sentencing hearing on February 12, 2007.

{¶23} On February 12, 2007, immediately prior to the commencement of the

sentencing hearing, Appellant filed a written motion to withdraw his guilty plea. The

sentencing hearing was continued to allow for the State to respond.

{¶24} On February 26, 2007, following a hearing which included oral arguments

and testimony, the trial court denied the Motion to Withdraw Plea and proceeded to

sentencing.


{¶25} The trial court then sentenced Appellant to a stated prison term of four (4)

years on Count Two and to a stated prison term of four (4) years on Count Four, said

sentences to be served consecutive to one another for an aggregate prison sentence of

eight (8) years. In addition: Appellant received a fine of One Hundred Fifty and

OOi100ths Dollars ($150.00) on the minor misdemeanor charge and a suspension of his

operator's license for a period of fifteen (15) years.

{¶26} On March 30, 2007, Appellant filed his Notice of Appeal with this Court,

assianing the following errors for review:

ASSIGN3UIENTS OF ERROR

{¶27} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY ACCEPTING.

APPELLANT'S PLEA OF GUILTY TO A FELONY THREE AGGRAVATED VEHICULAR

HOMICIDE CHARGE THAT WAS ERRONEOUSLY PREDICATED SOLELY ON A

MINOR MISDEMEANOR RECKLESS OPERATION OF A MOTOR VEHICLE CHARGE.

{¶28} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT

ALLOWING APPELLANT TO WITHDRAW HIS GUILTY PLEA WHEN SUCH PLEA

CONTAINED AN INCORRECT STATEMENT OR INTERPRETATION OF THE LAW,

AND THUS WAS NOT KNOWING, VOLUNTARY, AND INTELLIGENT AS REQUIRED

BY CRIMINAL RULE 11.

{¶29} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY

ACCEPTING APPELLANT'S GUILTY PLEA TO TWO COUNTS OF R.C. §

2903.06(A)(2)(a) AS SUCH STATUTE IS UNCONSTITUTIONAL UNDER THE DUE

PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.


{730} W. THE TRIAL COURT ABUSED I T S DISCRETION BY NOT

ALLOWING APPELLANT TO WITHDRAW HIS GUILTY PLEA VJHEN SUCH MOTION

TO WITHDRAW' WAS MADE PRIOR TO SENTENCING AND FOR GOOD CAUSE

SHOWN.

{T31} "V. THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT

ALLOWING APPELLANT TO WITHDRAW HIS GUILTY PLEA WHEN SUCH DENIAL

OF APPELLANT'S MOTION RESULTED IN A VIOLATION OF APPELLANT'S SIXTH

AMENDMENT RIGHT TO EFFEC T iVE ASSISTANCE OF COUNSEL."

{¶32} In his first assignment of eror, Appellant argues that it was error for the

triai court to accept his plea because such was predicated on a minor misdemeanor

charge. We disagree.

{¶33} Appellant argues that a minor misdemeanor charge of reckless operation

cannot serve as the predicate offense for a charge of aggravated vehicular homicide

and therefore his plea was therefore improper.

{¶34} Upon review we find Appellant's argument to be unpersuasive.

{¶35} Appellant entered a plea of guilty to two counts of Aggravated Vehicular

homicide, in violation of R.C. §2903.06(2)(a), which provides:

{¶36} "(A) No person, while operating or participating in the operation of a motor

vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the

death of another or the unlawful termination of another's pregnancy in any of the

following ways:

{¶37} "(2) In one of the following ways:


{¶38} "(a) Recklessly;"

{¶39} If this case had gone to trial, in order to find that Appellant committed

aggravated vehicular homicide, the State would have had to prove beyond a reasonable

doubt that Appellant recklessly caused the death of another while operating a motor

vehicle. R.C, §2903.06(A)(2).

{T40} A person acts recklessly "when, with heedless indifference to ihe

consequences, he perversely disregards a known risk that his conduct is like!y to cause

a certain result R.C. §2901.22(C). i hus, the State would have had to nrove that

Appellant, with heedless indifference to the consequences, perversely disregarded a

known risk that his conduct was likely to cause the death of another. A risk is defined as

a strong probability, as contrasted with a remote probability that a certain result may

occur. R.C. §2901.01(A)(7).

{¶41}"'A person is said to be reckless under the section when, without caring

about the consequences, he obstinately disregards a known and significant possibility

that his conduct is likely to cause a certain result or be of a certain nature, cr that certain

circumstances are likely to exist.' " Bexley v. Selcer (1998), 129 Ohio App.3d 72, 77,

quoting State v. Pack (1996), 110 Ohio App.3d 632, 636, quoting Legislative Service

Commission Comment to R.C. §2901.22.

{¶42} However, in the case sub judice, Appellant, pursuant to a negotiated plea

agreement, decided to enter a plea of guilty to two charges of Aggravated Vehicular

Homicide charged under R.C. §2903.06(A)(2). As such, he cannot now be heard to

challenge the sufficiency of the evidence with regard to charges that he "recklessly

cause[d] the death of" Gail Singer and Beverly Singer.

Muskingum County, Case No. CT2007-0018 a

{¶43} A defendant who enters a knowing, voluntary, and intelligent guilty plea

waives all non-jurisdictional defects for the purpose of future proceedings. State v.

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, at ¶ 78. The waiver is effective both

for direct appeal and collateral attack of a conviction. See, e.a., State v. Woodhouse,

6th Dist. No. S-04-004, 2004-Ohio-6160, at ¶ 16, State v. Idowu, 1 st Dist No. C-

010646, 2002-Ohio-3302, at ¶ 25-26, holdina abroaated on other arounds, State v.

Bush (2002), 96 Ohio St.3d 235, 2002-Ohio-3993. Defendant waived his right to

challenge the sufficiency of the evidence underlying his conviction by pleading guilty.

{744} We shall address the argument as to the voluntary nature of such plea

under Appellant's Assignment of Eri-or II.

{¶45} Furthermore, while it is correct that Appellant pled guilty to only those

charges of two counts of third-degree aggravated vehicular homicide and reckiess

operation, Appellant was charged with two second-degree felony counts of

aggravated vehicular assault, two third-degree felony counts of aggravated vehicular

homicide, two first-degree misdemeanor counts of OMVI and one count of Reckless

Operation, a minor misdemeanor. It was only as a result of the negotiated plea

agreement that the State agreed to dismiss the remaining charges.

{¶46} Appellant's first assignment of error is overruled.

II.

{¶47} In his second assignment of error, Appellant argues that the trial court

should have allowed him to withdraw his guilty plea because such plea was not made

knowingly, voluntarily ad intelligently. We disagree.


{^,48} Upon review of the record, we find that Appellant has not provided this

Court with a transcript of the change of plea of hearing.

{T49} An appellant is required to provide a transcript for appellate review. Knapp

v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384. Such is

necessary because an appellant shoulders the burden of demonstrating error by

reference to matters within the record. See, State v. Skaggs (1978), 53 Ohio St.2d 162,

163, 372 N.E.2d 1355.

{¶50} This principle is embodied in App.R. 9(B), which states in relevant part:

{T51) "At the time of filing the notice of appeal the appeliant, in writing, shall

order from the reporter a complete transcript or a transcript of the parts of the

proceedings not already on file as the appellant considers necessary for inclusion in the

record and file a copy of the order with the clerk. If the appellant intends to urge on

appeal that a finding or conclusion is unsupported by the evidence or is contrary to the

weight of the evidence, the appellant shall include in the record a transcript of all

evidence relevant to the findings or conclusion." App.R. 9(B); see, also, Streetsboro v.

Hughes (July 31, 1987), 11th Dist. No. 1741.

{¶52} Where portions of the transcript necessary for the resolution of assigned

errors are omitted from the record, an appellate court has nothing to pass upon. As

Appellant cannot demonstrate those errors, the court has no choice but to presume the

validity of the lower court's proceedings. State v. Ridgway (Feb. 1, 1999), 5th Dist.

No.1998CA00147, citing Knapp, supra.

{¶53} Under the circumstances, a transcript of the proceedings is necessary for

a complete review of Appellant's error that his guilty plea was not made knowingly,


intelligently and/or voluntarily. As Appellant has failed to provide this Court with a

transcript, we must presume regularity of the proceedings below.

{¶54} As to the argument that such plea was not been made voluntarily because

such plea was improper based on the lack of a proper predicate offense, we find same

not well-taken based upon our above holding as to same.

{°¶55} Appellant's second assignment of error is overruled.

III.

{T56} In his third assignment of error, A.ppellant argues that R.C.

§2903.06(A)(2)(a) is unconstitutional. We disagree.

{757} More specifically, Appellant argues that R.C. 2903.06(A)(2)(a) provides for

a presumption of per se recklessness, based on a finding of operation of motor vehicle

while under the influence of alcohol, and that such violates the presumption of

innocence found in the Due Process Clause.

{¶58} Initially, we note that there is a strong presumption that such statutes are

constitutional. State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224, certiorari

denied (1991), 501 U.S. 1257, 111 S.Ct. 2904, 115 L.Ed.2d 1067.

{¶59} A presumption is "an assumption of fact that the law requires to be made

from another fact or group of facts found or otherwise established in the action." Black's

Law Dictionary (6 Ed.Rev.1990).

{¶60} Upon review of the case sub judice, we find there is no evidentiary

presumption at issue in this case.


('¶61) In the instant case, Appellant pled guilty, pui-suant to a plea agreement to

charges which contained no references of intoxication. Furthermore, Appellant did not

object to the statement of the facts provided by the State of Ohio at that time.

{¶62} We therefore find Appellant was not subjected to any presumptions

pursuant to this negotiated plea and that his due process rights were not violated by

such plea.

{¶63} Appellant's third assignment of error is overruled.

iV., V.

{¶64} In his fourth and fifth assignments of error, Appellant argues that the trial

court erred in not allowing him to withdraw his guilty plea prior to sentencing. We

disagree.

{766} Crim.R. 32.1 states as follows: "A motion to withdraw a plea of guilty or no

contest may be made 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."

{¶66} Unlike the "manifest injustice" standard governing a post-sentence motion,

Crim.R. 32.1 has no specific guidelines for granting a pre-sentence motion to withdraw

a guilty plea. State v. CalloUiay, Hamilton App.No. C-040066, 2004-Ohio-5613, ¶ 11,

citing State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. A presentence

motion to withdraw a guilty plea should be freely and liberally granted; however, the

decision is left to the trial court's sound discretion. Id., citing Xie at 526.

{¶67} A trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of the plea. Xie, supra. The court


should examine whether the withdrawal of the plea will prejudice the prosecution, the

timing of the motion, the reasons given for the withdrawal, the defendant's

understanding of the charoes and penalties, and the existence of a meritorious defense.

State v. Graham, Holmes App No. 04-CA-001, 2004-Ohio-2556, ¶ 39, citing State v.

Kimbrough (March 28. 1988), Stark App.No. CA-7363, and State v. Fish (1995), 104

Ohio App.3d 236, 240, 661 N.E.2d 788.

{¶68} The scope of the hearing to be held on a motion to withdraw a plea should

reflect the substantive merit of the motion itself. State v. McNeil (2001), 146 Ohio

App.3d 173, 176.

{76°} In determining whether a trial court has abused its discretion in denying a

motion to withdraw a guilty plea, we begin our analysis with the understanding that "[a]

defendant does not have an absolute right to withdraw a guilty plea prior to sentencing."

Xie, at paragraph one of the syllabus. We then consider the following four factors set

forth in State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863: "(1) did the trial

court follow Crim.R. 11 and ensure the defendant understood his rights and voluntarily

waived those rights by pleading guilty; (2) was the defendant represented by highly

competent counsel; (3) was the defendant given a hearing wherein he could assert all

arguments supporting his motion to withdraw the plea; and (4) did the trial court give

careful consideration to the merits of the defendant's motion?" State v. Bailey, 11th Dist.

No.2004-P-0086, 2005-Ohio-6900, at ¶ 26; State v. Patt, 11th Dist. No.2002-L-073,

2004-Ohio-2601, at ¶ 10.


{¶70} Under the circumstances of this case, we hold the trial court sufficiently

addressed Appellant's oral motion to withdraw his plea and did not abuse its discretion

in denying the motion.

{¶71 } A review of the record reveals that the trial court did in fact hold a hearing

on Appellant's motion, wherein Appellant was represe,nted by counsel and where he

had an opportunity to assert his arguments in support of his plea. At the conclusion of

said hearing, the trial court reviewed the circumstances of the negotiated plea, found

that the plea was not something that "came up immediately or all of sudden", that it was

something that "was discussed over several hours over several days" and found that

same had been made knowingly. (T. at 12-13).

{¶72} Pursuant to our ruling on Assignment of Error I, we further find that

Appellant's plea was not rendered involuntary based on Appellant's argument of

ineffective assistance of counsel as such is based on the same argument.

{¶73) Appellant's fourth and fifth assignments of error are overruled.

{¶74) For the foregoing reasons, the judgment of the Court of Comnion Pleas of

Muskingurn County, Ohio, is affirmed.

By. Wise, J J.Farmer, P. J., andDelaney, J. , concur.

/.,

JUDGESJWVV/d 513

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

FILEDFIFTH DISTRICT

COURT OF APPEALS

JUN 0 2 2008STATE OF OHIO

Plaintiff-Appellee

-vs-

MICHAEL A. SHAFFER

Defendant-Appellant

MUSKINGUM COUNTY, OHIOTODD A. SICKLE, CLERK

JUDGMENT ENTRY

Case No, CT2007-0018

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs assessed to Appellant.

11

".^.;)

. )'? CC.'

JUDGES

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