Judge Collier Denys Pirovolos Motion to Withdraw Plea

On Wednesday, March 31, 2010, Judge Christopher J. Collier denied the motion of Angelo Pirovolos to withdraw his plea of "no contest" to one count of Attempted Murder, a first degree felony, two counts of Felonious Assault, both of which were second degree felonies, and one count of Having a Weapon Under Disability, a third degree felony.

Mr. Pirovolos had entered his pleas at a hearing in front of Judge James Kimbler on September 16, 2008, and had been found guilty at that time. Judge Kimbler then ordered a presentence investigation report and sentenced him to 12 years in prison on November 14, 2008. Following the sentencing, Mr. Pirovolos filed an appeal.

The Court of Appeals reversed the sentence on the grounds that Judge Kimbler had not properly imposed a period of post-release control. When the case was remanded back to Judge Kimbler, Mr. Pirovolos filed a motion to withdraw his pleas to all the charges. At that point, Judge Kimbler transferred the case to Judge Collier. Judge Kimbler believed that since he had taken the plea, and since Mr. Pirovolos was challenging the way the change of plea hearing was conducted, that a different judge should hear the motion.

In overruling Mr. Pirovolos's motion to withdraw the pleas, Judge Collier held that Mr. Pirovolos's case falls under R.C. 2929.191. That statute draws a distinction between sentences that were imposed before and after July 11,2006. If a sentence was imposed prior to July 11,2006, and the judge didn't properly impose post-release control, then the case comes back to the trial court and that court conducts a new sentencing hearing. If, however, the sentence was imposed after July 11, 2006, and the trial court didn't properly impose post-release control, then the case comes back to the trial court, but that court only conducts a hearing to properly impose the post-release control period. Such a hearing is not a new sentencing hearing.

Under the Ohio Supreme Court decision of State v. Singleton, 2009-Ohio-6434, a motion to withdraw a plea filed before the court conducts a R.C. 2929.191 hearing is to be considered a post-sentence motion, not a pre-sentence motion. Post-sentence motions to withdraw a plea are to be granted only to correct a manifest injustice. In Mr. Pirovolos's case, Judge Collier did not find such an injustice, and therefore denied the motion to withdraw the plea.

Judge Collier has scheduled a hearing for April. 9, 2010, at 9 am. At that hearing, Judge Collier will properly impose the post-release control period.