State v. Lawless, Unpublished Decision (12-2-1999)
State v. Lawless, Unpublished Decision (12-2-1999)
Opinion of the Court
OPINION
Appellant Robert Lawless appeals the decision of the Muskingum County Court of Common Pleas that denied his motion to withdraw his guilty plea. The following facts give rise to the appeal. In November 1985, the Muskingum County Grand Jury indicted appellant for one count of trafficking in marihuana. Appellant entered a plea of not guilty to the charge. On March 10, 1986, appellant appeared before the trial court, withdrew his previous not guilty plea, and entered a plea of guilty. Prior to entering his guilty plea, appellant executed a "Plea of Guilty" form wherein he indicated he understood that he was waiving certain constitutional rights by entering a guilty plea and further understood the possible sentences he could receive as a result of his guilty plea. After the completion of a pre-sentence investigation, on April 30, 1986, the trial court sentenced appellant to a determinate sentence of one and one-half years. On August 29, 1986, the trial court granted appellant's motion for shock probation, released appellant from prison and placed him on probation for a period of three years. Appellant successfully completed his conditions of probation. Thereafter, on February 3, 1999, the Muskingum County Grand Jury indicted appellant for one count of possessing a weapon while under disability. This charge was the result of an incident appellant had with his brother. As a result of this charge, on March 10, 1999, appellant filed a written motion for withdrawal of his guilty plea entered in the 1986 trafficking case. In support of his motion, appellant argues that when he entered his guilty plea to the charge of trafficking in marihuana, he did not know that as a result of his guilty plea, he would lose his constitutional right to own or possess weapons. By judgment entry dated March 25, 1999, the trial court denied appellant's motion to withdraw his guilty plea. Appellant filed a notice of appeal and sets forth the following assignments of error for our consideration:I. WHETHER THE MOTION FOR WITHDRAWAL OF GUILTY PLEA FILED BY THE DEFENDANT-APPELLANT WAS MOOT.
II. WHETHER THE MOTION FOR WITHDRAWAL OF GUILTY PLEA FILED BY THE DEFENDANT-APPELLANT WAS FILED UNTIMELY.
III. WHETHER THE DENIAL OF THE MOTION FOR WITHDRAWAL OF GUILTY PLEA BY THE COURT PREJUDICED THE DEFENDANT-APPELLANT.
IV. WHETHER THE DENIAL OF THE MOTION FOR WITHDRAWAL OF GUILTY PLEA BY THE COURT IS "REVERSIBLE ERROR".
V. WHETHER THE DENIAL OF THE MOTION FOR WITHDRAWAL OF GUILTY PLEA BY THE COURT IS "FUNDAMENTAL ERROR".
For the foregoing reasons, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. By: Wise, P.J. Gwin, J., concurs. Hoffman, J., concurs separately.
Concurring Opinion
I concur in the majority's analysis and disposition of appellant's third, fourth, and fifth assignments of error based upon the presumption of regularity when a transcript is not provided by the appellant. However, I do not believe the lack of a transcript precludes consideration of the trial court's determination appellant's motion was untimely filed. Nevertheless, I find the trial court did not abuse its discretion in finding the motion untimely under the facts presented in the case sub judice. Finally, unlike the majority, I would sustain the appellant's first assignment of error. Despite my belief the trial court erred in finding the appellant's motion to be moot, such error is meaningless given the two independent reasons noted supra for affirming the trial court's judgment. Accordingly, I join in the judgment reached by this court.
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