Login | November 26, 2020

11th District affirms Portage County child sex case

TRACEY BLAIR
Legal News Reporter

Published: November 18, 2020

A Portage County trial court did not err by refusing to allow a defendant to change his plea in a molestation case involving an 11-year-old autistic boy, the 11th District Court of Appeals recently ruled.
Donald T. Wasilewski appealed a judgment sentencing him to consecutive prison terms of eight years for attempted rape and 36 months for gross sexual imposition following his guilty pleas.
In March 2018, the Portage County Sheriff’s Office responded to a report from a social worker of a child being sexually abused by someone in his care.
At the plea hearing, Wasilewski told the trial court, “I did not do this. I took the plea so I wouldn’t have to spend the rest of my life in jail for something I didn’t do.”
Wasilewski argued his guilty pleas were not knowingly, intelligently, or voluntarily made because the trial court did not follow the requirements for accepting a guilty plea pursuant to North Carolina v. Alford.
In a 3-0 opinion, the appellate court found the trial court was not required to satisfy requirements applicable to an Alford plea because the record demonstrated Wasilewski did not proclaim innocence at the plea hearing or move to withdraw his guilty pleas at any time.
“Mr. Wasilewski contends that by expressing his innocence at the sentencing hearing, he placed the trial court on notice that he was entering an Alford plea,” 11th District Judge Mary Jane Trapp wrote in her opinion. “Therefore, he asserts that the trial court was required to follow the requirements regarding such a plea. Mr. Wasilewski’s argument lacks merit.”
The 11th District previously held in State v. Hickman (Portage No. 98-P-0024) that an Alford plea occurs when a defendant enters a plea of guilty with a “contemporaneous protestation of innocence.” The court also held in State v. Sterling (Ashtabula No. 2002-A-0026) that “In order for there to be an Alford plea,” a defendant “must have claimed his innocence at the original plea hearing.”
Trapp noted in the case at hand, the record reflects the trial court fully complied with Crim.R. 11 prior to accepting Wasilewski’s guilty pleas.
“The trial court held a hearing and engaged in colloquy regarding Mr. Wasilewski’s understanding of the nature of the charges, the potential penalties, the consequences of the plea agreement, and his constitutional rights,” she wrote. “Mr. Wasilewski stated that he understood the court’s explanations and advisements and expressly waived his constitutional rights. He entered guilty pleas to two counts, and the court found that Mr. Wasilewski made a knowing, intelligent, and voluntary decision to plead guilty. The record is devoid of any protestations of innocence by Mr. Wasilewski during the plea hearing.
“Further, courts have held that ‘[w]hen a defendant makes a claim of innocence after a guilty plea has been accepted, a trial court has no duty to inquire into a defendant’s reasons for pleading guilty.’ “
Trapp added although the proper way to raise the issue is to move to withdraw the plea, a trial court is not required to inform a defendant about the existence of Crim.R. 32.1, which allows the filing of a motion to withdraw a plea.
Wasilewski also attempted to argue the record did not support the trial court’s reasoning for imposing consecutive prison terms because the allegations involved just one incident.
“Although this matter involved only one sexual encounter, Mr. Wasilewski pleaded guilty to two separate offenses – attempted rape and gross sexual imposition,” Trapp wrote. “He did not argue, nor did the trial court determine, that these offenses merged for purposes of sentencing pursuant to R.C. 2941.25(A), which ‘prohibits multiple punishments for the same offense’ and ‘provides that there may be only one conviction for allied offenses of similar import’. Therefore, the record demonstrates that there were “multiple offenses” for purposes of R.C. 2929.14(C)(4)(b).”
The panel, which included judges Cynthia Westcott Rice and Thomas R. Wright, also disagreed with Wasilewski’s claim the offenses did not cause great or unusual harm.
“… The presentence investigation report indicates that according to the victim, Mr. Wasilewski forced him to engage in fellatio and anal intercourse despite his protestations and physical pain,” Trapp said.
The case is cited State v. Wasilewski, 2020-Ohio-5141.


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