Judge Collier Allows Kenneth Grad to Withdraw Plea

On March 31, 2010, Judge Christopher Collier granted Mr. Kenneth Grad's motion to withdraw his previous entered pleas of no contest to nine felony counts involving injuries to his son. Previously, Mr. Grad had entered a change of plea in front of Judge Kimbler, but, before sentencing, filed a motion to withdraw those pleas and proceed to trial.

After filing the motion to withdraw the plea, Mr. Grad's attorney filed an affidavit of bias against Judge Kimbler in the Ohio Supreme Court. Upon receiving notice of the filing of the affidavit of bias, but before the Ohio Supreme Court could rule on the motion, Judge Kimbler recused himself from the case and transferred the case to Judge Collier.

Judge Collier conducted a hearing on Mr. Grad's motion. In his journal entry granting the Mr. Grad's motion, Judge Collier wrote that a motion to withdraw a plea made prior to imposition of sentence, is to, according to the Ohio Supreme Court, be "liberally and freely" granted. The Ohio Supreme Court, in the same decision, also made it clear that a defendant does not have an absolute right to withdraw a plea prior to sentencing.

The withdrawal of plea motion is to be granted if there is a reasonable basis to withdraw the plea. The Ohio Supreme Court outlined factors to be considered in deciding whether there is a reasonable basis for the withdrawal of the plea. Those factors include whether the State will be prejudiced by the withdrawal; the representation afforded to the defendant by his or her attorney; the extent of the Criminal Rule 11 change of plea hearing; the extent of the hearing on the motion to withdraw the plea; whether the timing of the motion was reasonable; whether the defendant understood the nature of the charges and the potential sentences; and whether the accused has a complete defense or is perhaps not guilty of the charges.

In Mr. Grad's case, Judge Collier found that while the change of plea hearing was conducted properly, Mr. Grad did not understand the effect of his "no contest" plea. Mr. Grad testified that he believed that he would have an opportunity to call witnesses to establish his innocence at the sentencing hearing. Judge Collier found that it wasn't until after his attorneys explained to him that he wouldn't have that opportunity that he wanted to withdraw his pleas.

After granting the motion to withdraw the pleas, Judge Collier set the case down for a status hearing on April 23, 2010, at 9:00 am.

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.