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State v. LaBooth

Court of Appeals of Ohio, Seventh District, Mahoning

March 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RICHARD W. LaBOOTH, JR. DEFENDANT-APPELLANT v.

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13 CR 148

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

          For Defendant-Appellant: Atty. Anthony J. Farris

          JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Richard LaBooth appeals his sentence following a plea entered in the Mahoning County Common Pleas Court. Three issues are raised in this appeal. The first is whether the trial court abused its discretion when it denied Appellant's presentence motion to withdraw his guilty plea. The second issue is whether Appellant's plea was knowingly, intelligently and voluntarily entered or based on Appellant's rational calculation pursuant to North Carolina Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The third is whether Appellant received ineffective assistance of counsel. Regarding the first issue, based on this record the trial court did not abuse its discretion in denying Appellant's motion to withdraw his guilty plea. Appellant's Alford plea was entered into knowingly, voluntarily, and intelligently, as the trial court strictly complied with Crim.R. 11. Appellant also failed to establish that trial counsel's performance was deficient, and failed to establish that his motion seeking to withdraw his guilty plea would have been granted had it been timely filed. Therefore, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural Background

         {¶2} Appellant was indicted on one count of felonious assault, a violation of R.C. 2901.11(A)(2), (D) with a firearm specification pursuant to R.C. 2941.145(A); one count of having weapons under a disability, a violation of R.C. 2923.13(A)(2), (B); and one count of having weapons under a disability, a violation of R.C. 2923.13(A)(3), (B) due to a shooting that took place on December 14, 2013. Appellant originally pleaded not guilty to the offenses. However, on July 22, 2013, Appellant entered into an Alford plea, agreeing to plead guilty to felonious assault, in violation of R.C. 2903.11(A)(2), (D), and to a firearm specification, in violation of R.C. 2941.145(A). The state and Appellant agreed to jointly recommend to the trial court a five year term of imprisonment, without the opportunity for judicial release. The state also agreed to allow Appellant to be free on bond and placed on electronically monitored house arrest while he awaited sentencing. The trial court accepted Appellant's Alford plea and continued his sentencing hearing to allow Appellant to receive medical care for a leg injury in order to avoid a worsening of his medical condition.

         {¶3} On June 9, 2014, Appellant appeared for sentencing. The hearing was to be conducted by another trial court judge who indicated that he understood an agreement between the parties had been reached regarding the Alford plea. (6/9/14 Tr., p. 5.) Defense counsel objected to the "non trial court sentencing." Id. The parties were then directed to the original trial court judge's courtroom to proceed with sentencing. Id. at p. 6. Rather than return to the original judge's courtroom, Appellant fled the courthouse. A warrant was issued for Appellant's arrest and he was later located in Columbus where the warrant was executed.

         {¶4} On January 12, 2015, Appellant was brought back to the trial court for sentencing. Defense counsel orally requested to withdraw the Alford plea. Counsel indicated that Appellant was concerned about his health condition and that he was innocent of the charges. (1/12/15 Tr., p. 3.) The trial court denied Appellant's oral motion, stating that for the several intervening months between Appellant's last appearance and his current appearance there had been no indication that Appellant wished to withdraw his plea. Id. at p. 8.

         {¶5} The sentencing hearing was continued to March 17, 2015, in order for the court to obtain a presentence investigation report. At the March 17th hearing Appellant filed a motion to withdraw his plea. After hearing arguments on the motion, the trial court denied Appellant's second motion to withdraw his plea. (3/17/15 Tr., pp. 2-12.) Appellant was sentenced to four years for felonious assault, in violation of R.C. 2903.11(A)(2), (D) and three years on the firearm specification, in violation of R.C. 2941.145(A) for a total of seven years of incarceration with 366 days credit for time served under house arrest. Appellant timely appeals that judgment.

         ASSIGNMENT OF ERROR NO. 1

         The hearing court abused its discretion in denying Appellant's multiple pre-sentence requests to withdraw his plea.

         {¶6} Trial courts should grant presentence motions to withdraw guilty pleas "freely and liberally", while postsentence motions to withdraw guilty pleas should be granted only to correct a manifest injustice. State Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before [a] sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." However, there is no absolute right to a withdrawal of a guilty plea prior to sentencing. Xie at 527. Thus, "the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id.

         {¶7} A motion to withdraw a guilty plea made pursuant to Crim.R. 32.1 "is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." State Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. Abuse of discretion means that the trial court's ruling was "unreasonable, arbitrary or unconscionable." State Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

         {¶8} We have recognized there are several factors to consider when making a determination on a pre-sentence motion to withdraw a guilty plea. State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). The factors are as follows: (1) prejudice to the state; (2) counsel's representation; (3) adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea withdrawal hearing; (5) whether the trial court gave full and fair consideration to the motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of the nature of the charges and the potential sentences; and (9) whether the defendant was perhaps not guilty or has a complete defense to the charge. Id. No single factor is absolutely conclusive in making the determination. We consider all of the factors and weigh them as a whole in determining whether the trial court abused its discretion. Cuthbertson at 899. Appellant essentially argues that each of the Fish factors weigh in his favor, while the state asserts that a majority weigh in favor of the state.

         {¶9} The first factor is prejudice to the state. Appellant contends as there is no physical evidence in the case and the state's case rested primarily on the testimony of the victim, Jeffrey Rivera, who was present in the courtroom on March 17, 2015 and was available to the prosecution, there is no prejudice to the state. The state acknowledges they would suffer no prejudice. We have held that the state's failure to allege prejudice does not require that a motion to withdraw must be granted. State v. Leasure, 7th Dist. No. 01 BA 42, 2002-Ohio-5019, ¶ 42. Thus, as there is no prejudice to the state this factor would weigh in Appellant's favor.

         {¶10} The second factor is counsel's representation. Appellant contends he had a difficult relationship with counsel throughout the proceedings and that he was pressured by counsel into entering the Alford plea. Appellant also contends that he made numerous requests to withdraw his plea, including the day after he entered the plea and again in June of 2014. There is no support in the record for Appellant's assertions. The record also does not support Appellant's allegations that he was pressured into the plea or that he immediately wished to withdraw his plea. To the contrary, Appellant indicated at the hearing in July of 2013 that he was "uncomfortable" with the plea agreement but that he did not tell counsel that he wished to withdraw his plea. (3/17/15 Tr., pp. 10-12.) Defense counsel filed a written motion to withdraw on March 17, 2015 after the court denied his oral motion to withdraw at the January 12, 2015 hearing. Although it was likely the trial court would not grant the written motion, based on its earlier ruling, an unfavorable outcome for Appellant does not indicate deficient representation by defense counsel. This factor weighs in favor of the state.

         {¶11} The third factor is the adequacy of the Crim.R. 11 hearing. Appellant contends the hearing was inadequate because it appeared the judge was not immediately aware that Appellant intended to make an Alford plea and the court did not address Appellant's assertion that he was "heavily medicated" during the hearing and in "extreme physical distress." (Appellant's Brf., p. 8.) Here, again, Appellant misrepresents the record in this matter. At the very beginning of the hearing, the trial court inquired as to Appellant's medical condition and general health and inquired whether he was in any way impaired by medications, unable to understand the plea process, or to enter a knowing, voluntary plea. Appellant indicated that he understood the plea and answered all of the court's inquiries about his knowledge and understanding of the plea process in the affirmative multiple times throughout the hearing. In fact, Appellant raised only that he was unhappy with the prosecutor. Thus, this record demonstrates that the trial ...


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