The Akron Legal News

Appeal for shorter sentence denied in vehicular homicide case

ANNIE YAMSON
Special to the Legal News
Published: October 8, 2014

In the 1st District Court of Appeals, a panel of three judges recently ruled that the Hamilton County Court of Common Pleas properly denied a defendant’s postsentence motion to withdraw his no contest plea in a vehicular homicide case.

The defendant, Dennis Alsip, was sentenced to an eight-year prison term, the maximum allowed, for the death of Lisa Hasting.

On Aug. 16, 2012, Alsip was driving when his vehicle went left of center and struck the car driven by Hasting head-on, killing her.

A grand jury indicted Alsip on two counts of aggravated vehicular homicide.

After he entered no contest pleas the trial court found him guilty, merged the counts and imposed a maximum prison term of eight years.

Last summer, Alsip filed a motion to withdraw his plea and attached an affidavit from his attorney, Matthew Ernst.

In the affidavit, Ernst said he had discussed the case with his client off the record with the trial court and the prosecuting attorney.

“It was related to me by the judge that Mr. Alsip would not receive the minimum sentence and not receive the maximum sentence upon entering a plea to the felony of the second degree,” Ernst stated.

The attorney then informed his client that “this deal would not be and was not to be discussed on the trial record.”

On the basis of the affidavit, Alsip argued that his plea was not voluntarily entered.

In response to Alsip’s motion, the state filed a memorandum in opposition and attached an affidavit from the prosecuting attorney, Richard Gibson.

Gibson stated that he, Ernst and the trial court just discussed Alsip’s possible plea.

In the affidavit, he claimed Ernst had “asked the judge what sentence she would impose if Alsip pled guilty or no contest.”

At that point, Gibson informed the judge that he would seek the maximum penalty.

The judge then refused to make a commitment to any particular sentence but only informed Ernst that she “normally did not impose a maximum sentence where a plea of guilty or no contest was entered.”

The trial court denied Alsip’s motion to withdraw his plea without holding an evidentiary hearing.

Upon appeal, Alsip argued that decision was an abuse of discretion.

“Alsip asserts that his counsel’s advice that the trial judge would not impose the maximum sentence upon a plea resulted in manifest injustice where Alsip received the statutory maximum,” wrote Judge Patrick Fischer on behalf of the court of appeals. “Manifest injustice may result from counsel’s statements to a defendant regarding a promised sentence, however, manifest injustice does not ipso facto result from such statements.”

The appellate panel noted that, even if it were to construe the factual allegations in Alsip’s motion as true, there was no evidence to show that Alsip had substantially relied on his attorney’s statements that he would not receive the maximum sentence upon pleading no contest.

“Unlike in State v. Collins, where the defendant and his counsel stated that the defendant would not have pleaded guilty absent the promised sentence, in this case, we do not have any evidence that Alsip would not have pleaded guilty if he thought the maximum sentence might have been imposed,” wrote Judge Fischer. “Thus, Alsip failed to meet his burden under Crim.R. 32.1 and the trial court did not abuse its discretion in denying Alsip’s motion without an evidentiary hearing.”

The judgment of the Hamilton County court was affirmed with Presiding Judge Penelope Cunningham and Judge Patrick DeWine concurring.

The case is cited State v. Alsip, 2014-Ohio-4180.

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