COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72849 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND MORRIS NOVAK, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-336024 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: STEPHEN WALKER The Brownell Building 1340 Sumner Court Cleveland, Ohio 44115 -2- KARPINSKI, J.: Defendant-appellant, Morris Novak, appeals from the judgment of the trial court which accepted his plea of guilty to one count of complicity in the commission of attempted murder. On appeal defendant challenges (1) whether the trial court had subject matter jurisdiction, (2) whether the trial court substantially complied with Crim.R. 11 when it accepted defendant's plea of guilty, and (3) whether the trial court abused its discretion by denying, without a hearing, defendant's motion to withdraw his plea. For the reasons that follow, we affirm the judgment of the trial court. Defendant was indicted on three counts charging him with complicity in the commission of (1) attempted murder, (2) attempted felonious assault, and (3) attempted felonious sexual penetration. The charges arose as a result of defendant's allegedly asking Jack Searl, an old acquaintance, to murder Nicholas Wilson, the ex- husband of defendant's girlfriend. At the time defendant was negotiating with Searl, Searl was under a federal indictment. As part of his cooperation with the F.B.I., Searl taped his conversations with defendant and turned the tapes over to the authorities. On December 20, 1996, after various pretrials, defendant pled guilty to complicity in the commission of attempted murder. The trial court then engaged in a colloquy with defendant and accepted his plea of guilty. At that stage, defendant did not protest his innocence. The court sentenced defendant to five to twenty-five years incarceration. After the court imposed sentence, defendant -3- filed a motion to withdraw or otherwise vacate defendant's guilty plea. The trial court denied this motion without a hearing. In a timely appeal defendant submits six assignments of error. I. IT IS A DENIAL OF DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILS TO SET ASIDE A GUILTY PLEA WHEN THE TRIAL COURT LACKED JURISDICTION OF THE SUBJECT MATTER OVER THE ORIGINAL CHARGES. Defendant's guilty plea acts as a waiver of all non- jurisdictional defects in the prior stages of the proceedings. State v. Brown (1988), 43 Ohio App.3d 39. Defendant raises one of the few issues, however, that can be raised on appeal: Whether the trial court had jurisdiction over the charges against defendant. Defendant argues that the trial court lacked subject matter jurisdiction because the murder was to take place in California. The state alleged that defendant was in Cuyahoga County, however, when he negotiated the deal with Jack Searl to have Nicholas Wilson killed. R.C. 2901.11, which defines subject matter jurisdiction for criminal matters, states in pertinent part as follows: (A) A person is subject to criminal prosecution and punishment in this state if any of the following occur: (1) He commits an offense under the laws of this state, any element of which takes place in this state; (2) While in this state, he conspires or attempts to commit, or is guilty of complicity in the commission of an offense in another jurisdiction, which offense is an offense under both the laws of this state and such other jurisdiction ***. The staff notes state that this section is designed to allow the state the broadest possible jurisdiction, consistent with constitutional limitations over crimes and persons committing crimes in or affecting this state. -4- In the case at bar, the grand jury found that, the above named Defendant(s), on or about [January 1, 1996 to February 26, 1996] in the County of Cuyahoga, unlawfully * * * purposely, [sic] or soliciting or procuring another to commit the offense, did attempt to cause the death of another to-wit: Nicholas Wilson. (Emphasis added.) By pleading guilty to the indictment defendant admitted to all the facts contained therein. Crim.R. 11(B); State v. Riggins (1980), 68 Ohio App.2d. 1. Additionally, in open court the following exchange took place: THE COURT: Do you understand that the crime with which you propose now to plead guilty is complicity, in the commission of attempted murder, in violation of Ohio Revised Code Section 2925.03, 2923.02, and 2903.02? And that you did for a period of time commencing January 1, 1996 to February 26, 1996, in Cuyahoga County, Ohio, you did unlawfully, purposely, or in soliciting or procuring another to commit the offense, you did attempt to cause the death of another, to wit, Nicholas Wilson. Do you understand that? THE DEFENDANT: Yes, I understand that, your Honor. * * * THE COURT: Understanding that, how do you plead to this offense? THE DEFENDANT: Guilty, your Honor. (Tr. 6-7.) Thus defendant admitted to the act of hiring in Cuyahoga County, Ohio, someone to kill Nicholas Wilson. Moreover, in the statement of facts for his motion to withdraw his plea, defendant admits that there were seven recorded conversations with Searl. Defendant was in Cuyahoga County, Ohio during all these conversations. Accordingly, the trial court had subject matter jurisdiction over the charges against defendant. Defendant's argument that no attempt was ever made to murder defendant is irrelevant to the issue of subject matter jurisdiction. In pleading guilty to complicity in the commission -5- of attempted murder, defendant waived any argument that his actions did not constitute the crime charged. Accordingly, because the trial court properly exercised jurisdiction over these charges, the first assignment of error is overruled. In assignments of error two through five, defendant challenges the trial court's acceptance of his guilty plea. These assignments state as follows: II. AN ACCUSED IS DENIED DUE PROCESS OF LAW WHEN HIS GUILTY PLEA IS INDUCED AND EFFECTUATED BY PROSECUTORIAL MISCONDUCT. ALTERNATIVELY, AN ACCUSED IS DENIED DUE PROCESS OF LAW WHEN THERE IS NO FACTUAL BASIS FOR HIS PLEA. III. A GUILTY PLEA INDUCED BY PROMISES AND/OR THREATS WHICH DEPRIVED THE PLEA OF THE CHARACTER OF BEING A VOLUNTARY ACT, RENDER IT VOID AND THE CONVICTION OBTAINED A VIOLATION OF DUE PROCESS OF LAW. IV. A PLEA IS NOT VOLUNTARY AND KNOWINGLY ENTERED AND DUE PROCESS OF LAW IS DENIED AN ACCUSED WHEN THE TRIAL COURT FAILS TO INFORM THE ACCUSED OF THE NATURE AND THE ELEMENTS OF THE CRIME CHARGED (AND THE DEFENSE AVAILABLE TO HIM.) V. THE ACCUSED IS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILS TO COMPLY WITH THE DICTATES OF RULE 11 OHIO RULES OF CIVIL PROCEDURE AND WHEN APPRISED THEREAFTER OF THIS SHORTCOMING FAILS TO SET ASIDE ANY PLEA SO OBTAINED.1 In these four assignments, defendant alleges he was denied due process when the court accepted his plea of guilty. None of these arguments has any merit. In the second assignment, defendant first argues that the court erred by not ascertaining a factual basis for the charges. However, absent any protestations of innocence as in an Alford 1 In his argument, defendant specifies Crim.R. 11, but the assignment states Civil R. 11. -6- situation, a trial court is not required to establish a factual basis for a guilty plea. State v. Post (1987), 32 Ohio St.3d 380, 386-387. Under the second assignment, defendant additionally raises the issue of prosecutorial misconduct. Specifically, he argues that the state engaged in misconduct when it succeeded in having defendant's pretrial bond revoked. A guilty plea, however, waives the right to contest adverse rulings that occurred before defendant entered his plea. State v. Kelley (1991), 57 Ohio St.3d 127. Moreover, defendant has not cited any specific instances of impropriety or misconduct by the prosecutor. The trial court allowed defendant to be out on bond on the condition that defendant have no contact with his girlfriend or her son. Defendant admitted to violating this condition, and the trial court revoked the bond. The record contains no evidence that the trial court abused its discretion in revoking the bond. In the third assignment, defendant alleges that his plea was improperly based on promises and threats. The record discloses otherwise. At the plea hearing the court clearly inquired about any promises or threats: THE COURT: In making your guilty plea do you understand that no promise can be made for this Court as to what penalty or sentence will be imposed? THE DEFENDANT: Yes, your Honor. THE COURT: Have any promises been made to you or threats made against you to cause you to plead guilty? THE DEFENDANT: No, your Honor. (Tr. 7.) In this colloquy defendant's statements that no promises or threats were made can dispel an argument on appeal that the plea -7- was induced by promises or threats. State v. Lambros (1988), 44 Ohio App.3d 102; State v. Howard (Feb. 27, 1997), Cuyahoga App. No. 68399, unreported. Accordingly, the third assignment is overruled. In the fourth assignment, defendant argues that the court erred by failing to inform him of the elements of the crime charged. This argument is meritless. It is not necessary that the judge explain the elements of each of the offenses, or even ask the defendant specifically whether he understands the charges. State v. Rainey (1982), 3 Ohio App.3d 441; State v. Swift (1993), 86 Ohio App.3d 407; State v. Burks (Nov. 13, 1997), Cuyahoga App. No. 71904, unreported. Such an inquiry is necessary only if the totality of the circumstances shows that defendant does not understand the charge. Rainey, supra at 442. In the case at bar, when the court asked defendant whether he understood the crime for which he was charged, defendant responded that he did. (Tr. 6-7.) Defendant did not give any indication that he failed to understand the charge. Therefore, it was not necessary to explain each individual element of the charges to defendant. In the fifth assignment, defendant reasserts the arguments that the court erred in accepting his plea without obtaining a factual basis for the plea or without explaining the elements of the crime charged. Additionally, defendant asserts that the trial court erred by accepting his plea without inquiring whether defendant was under the influence of medication or any chemical substance. -8- As stated supra, the lack of a factual basis or explanation of the elements of the crime does not warrant a reversal in the case sub judice. Furthermore, there is no statutory requirement that the trial court has to specifically inquire whether defendant was on medication that would impair his understanding. State v. Howard (Feb. 27, 1997), Cuyahoga App. No. 68399, unreported; State v. Butler (Sept. 22, 1994), Cuyahoga App. No. 65932, unreported; State v. Manos (Feb. 10, 1994), Cuyahoga App. No. 64616, unreported. At the time of the plea defendant gave no indication to the trial court that he was under any medication that would impair his understanding. Nor was the court given any reason to believe that defendant's understanding was in any other way impaired. Accordingly, the trial court's dialogue did not fail in any respect. The fifth assignment of error is overruled. VI. AN ACCUSED IS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT SUMMARILY DENIES A MOTION TO WITHDRAW A GUILTY PLEA WITHOUT AFFORDING THE ACCUSED A FULL AND FAIR HEARING. Crim.R. 32.1 does not automatically provide for an evidentiary hearing when, after sentencing, a defendant seeks to withdraw a previously entered guilty plea. An evidentiary hearing on a post- sentence motion to withdraw a guilty plea is not required if the facts as alleged by the defendant, even if accepted as true, would not require that the guilty plea be withdrawn. State v. Legree (1988), 61 Ohio App.3d 568; State v. Blatnik (1984), 17 Ohio App.3d 201. A court may allow a defendant to withdraw a previously entered guilty plea after the court has imposed sentence but only to correct a manifest injustice. State v. Smith (1977), 49 Ohio -9- St.2d 261. The burden of establishing manifest injustice is on the defendant. Id. Defendant has not met this burden. The decision to deny a defendant's motion to withdraw a guilty plea is reviewed under an abuse of discretion standard. State v. Xie (1992), 62 Ohio App.3d 521; State v. Fish (1995), 104 Ohio App.3d 236. One of the primary considerations regarding a motion to withdraw a plea is the timing of the motion. Before sentencing, motions are freely granted. Xie, supra. However, courts are understandably reluctant to allow a defendant to withdraw a guilty plea after sentencing. The rationale for this rule is that a defendant should not be able to plead guilty and test the waters as to what the sentence would be and then bring that plea into doubt if the defendant is dissatisfied with the sentence. As this court previously stated, Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. State v. Peterseim (1980), 68 Ohio App.2d 211, 213, quoting Kadwell v. United States (C.A.9, 1963), 315 F.2d 667, 670. In the case at bar, the court did not abuse its discretion either in denying the motion to withdraw the guilty plea or in failing to hold a hearing on the motion. Defendant had two months between the plea and sentencing to withdraw his plea. He moved to withdraw his plea only after he was denied probation. A mistaken belief as to the consequences of a plea is insufficient to warrant -10- the withdrawal of a plea after sentencing. State v. Sabatino (1995), 102 Ohio App.3d 483. Defendant's motion, moreover, did not state any manifest injustice that would occur if the motion to withdraw were not allowed. Accordingly, the sixth assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .