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State v. Perez

Court of Appeals of Ohio, Seventh District

August 14, 2013


Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CR 809

For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor Atty., Ralph M. Rivera, Assistant Prosecuting Attorney.

For Defendant-Appellant: Atty. Ronald D. Yarwood, DeGenova & Yarwood, Ltd.

JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.



(¶1} Appellant Luis S. Perez, Sr, appeals the decision of the Mahoning County Court of Common Pleas denying his pre-sentence motion to withdraw a guilty plea. Appellant pleaded guilty to one count of felonious assault and two counts of harassment with a bodily substance, both felonies. At the sentencing hearing, and after the state had made its recommendation of an eight-year prison term, Appellant announced that he wanted to withdraw his plea and fire his attorney. He claimed the prosecutor was lying and withholding evidence, that he feared for his life, he was not permitted to see his family, mail was being withheld from him, that he was innocent, and that his attorney failed to share evidence with him. The court reviewed the original plea with Appellant and his objections to the plea, and held a colloquy to determine whether the plea was knowingly, voluntarily, and intelligently made. The court then overruled Appellant's oral motion to withdraw his plea and sentenced him to eight years in prison.

(¶2} Appellant argues that a pre-sentence motion to withdraw a plea should be freely granted. Appellant submits that the court did not review the factors found in State v. Cuthbertson, 139 Ohio App.3d 895, 746 N.E.2d 197 (7th Dist.2000) relevant to a pre-sentence motion to withdraw a plea. Appellant contends that the most important factor is that the state will not be prejudiced by the withdrawal of the plea. He also argues that he should have been assigned other counsel after he objected to his own counsel's representation, that the hearing regarding his request to withdraw his plea was inadequate and that the court ignored his declaration of innocence. Appellant cites only to the factors found in Cuthbertson to support his argument. A pre-sentence motion to withdraw a plea is reviewed for abuse of discretion, and there is no absolute right to withdraw a plea prior to sentencing. Contrary to Appellant's contentions, no one factor is conclusive in determining whether an abuse of discretion has taken place. The trial court reviewed Appellant's objections and found them to be baseless. It is apparent from the record that Appellant had a full and fair plea hearing, was well represented throughout the process, understood the charges and the potential penalties, has no defense to the charges, and raised his objections to the plea at the very last moment after the state made its sentencing recommendation. Although there are factors that weigh in Appellant's favor, these do not dictate that the court abused its discretion in denying the oral motion to withdraw the plea, and the judgment of the trial court is affirmed.

History of the Case

(¶3} On May 16, 2011, Appellant pleaded guilty to felonious assault against a peace officer, R.C. 2903.11(A)(1), (D), a first degree felony; and two counts of harassment with a bodily substance, R.C. 2921.39(C), (D), third degree felonies. The charges arose after Appellant, while in jail on other charges, attacked Mahoning County Sheriffs Deputy Michael Watters, causing serious injuries. Appellant, who is HIV-positive, also flung his blood at Deputies Trevor Sumption and Michael Taylor during the altercation.

(¶4} At 8:30 p.m. on July 22, 2010, Appellant was serving a one-day sentence at the Mahoning County Justice Center. (6/27/11 Tr., p. 3.) Deputy Watters was working security that evening in the pod where Appellant was being held. A nurse arrived to distribute medications to the 49 inmates in the pod. Appellant approached and asked for medication. He was told there was nothing for him on the cart. He became verbally abusive. He was told to return to his cell, but he refused. He sat down at the deputy's desk in a restricted area and ignored the deputy's orders. Watters sprayed pepper spray on Appellant. Appellant attacked Watters, jumping on the deputy, beating him repeatedly with his fists, and slamming his head on the bars of a jail cell. No other inmates participated in the attack. Watters blacked out from the attack. Deputies Sumption and Taylor arrived to assist. They transported Appellant to the disciplinary pod. While transporting him, Appellant was noncompliant, pushing against the deputies and refusing to walk. He was ordered to kneel down in front of his bunk. He was bleeding from the head, and while kneeling, whipped his head around to fling blood on the deputies while at the same time telling them he had AIDS. Appellant is HIV-positive and had received medication for that condition while in jail. Appellant succeeded in getting blood on Deputy Sumption. Deputy Watters was badly injured and missed six months of work after the incident. He sustained injuries to his knees, ankles, wrists and head. (6/27/11 Tr., pp. 3-6.) Watters continued to suffer pain almost a year after the incident at the time of sentencing.

(¶5} On May 16, 2011, Appellant entered a guilty plea to the charges in exchange for a recommendation from the prosecutor of an eight-year prison term. The maximum potential prison term in this case was 20 years. Appellant was represented by counsel at the hearing, the court reviewed all the rights that Appellant was waiving by entering a guilty plea, Appellant and his counsel agreed that he had understood his rights and agreed to the terms of the plea agreement, and the court stated on the record that he would not impose more than an eight-year prison term. (5/16/11 Tr., p. 8.) Appellant stated that he had not been threatened or promised anything, other than what was discussed in court at the hearing, to influence his decision to enter into the plea. (5/16/11 Tr., p. 12.) Appellant gave no indication that he was innocent, he had a problem with the quality of his representation, or that he was in fear for any reason leading up to the plea hearing. The court accepted the guilty plea, and sentencing was scheduled for June 27, 2011.

(¶6} At the sentencing hearing, soon after the prosecutor recommended an eight-year prison term and immediately before the court was to view a video recording of the attack, Appellant interrupted and said that he wanted to withdraw his plea and fire his lawyer. (6/27/11 Tr., p. 7.) He claimed that he was in fear for his life, that the prosecutor was lying and withholding evidence, and that he was not getting a fair trial in court. He also stated that mail was being withheld from him, and he was denied visitation with his family. He alleged that he had sought to take the case to trial from the start, and that his lawyer did not know what was going on and refused to share evidence with him. The court questioned counsel, who stated that he had shared all discovery with his client, had discussed the video extensively, and had no idea what threats Appellant was talking about. Appellant admitted that he committed the crimes, but also inexplicably stated that he was innocent. (6/27/11 Tr., pp. 10, 13.) The court, after reviewing Appellant's reasons for seeking to withdraw the plea, denied the motion and continued with sentencing. (6/27/11 Tr., p. 14.)

(¶7} The court reviewed the video recording of the attack. The prosecutor stated that there were recorded calls from the jail in which Appellant can be heard bragging about the assault.

(¶8} The record reflects that Appellant had a number of prior convictions involving violence, including assault convictions in 1993 and 2008, resisting arrest in 2006, and assault and criminal damaging in 2009. He also had a history of noncompliance while being incarcerated, and has had a very similar incident in which he became verbally abusive after being refused medications, refused to obey the orders of the deputies, and was disciplined for the outburst in 2009. Counsel and Appellant both presented lengthy arguments presenting mitigating circumstances. (6/27/11 Tr., pp. 22-39.) The court then sentenced Appellant to eight years in prison for felonious assault on a peace officer, and five years in prison on each count of harassment with a bodily substance, all to be served concurrently. The court's sentencing entry was filed on July 6, 2011. Appellant filed ...

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