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State v. Howard

Court of Appeals of Ohio, Fourth District, Scioto

December 28, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL J. HOWARD, Defendant-Appellant.

         CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 12-28-17.

          Matthew F. Loesch, Portsmouth, Ohio, for appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. The trial court found Michael J. Howard, defendant below and appellant herein, guilty of second-degree-felony possession of heroin and fourth-degree-felony possession of cocaine, both in violation of R.C. 2925.11(A). The court sentenced appellant to serve a total of nine-and-one-half years in prison. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO PROPERLY CONSIDER AND GRANT
APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA" SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO THE MAXIMUM SENTENCED [SIC] ALLOWED BY LAW "
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO SUPPRESS."

         {¶ 2} On July 16, 2015, a Scioto County grand jury returned an indictment that charged appellant with four drug-related offenses. Appellant entered not guilty pleas and later filed a motion to suppress evidence. The trial court overruled appellant's motion to suppress evidence.

         {¶ 3} On January 6, 2016, appellant agreed to plead guilty to possession of heroin (a second-degree felony) and possession of cocaine (a fourth-degree felony), both in violation of R.C. 2925.11(A). At the change of plea hearing, the trial court initially noted:

The record should further reflect that it's a negotiated plea, pursuant to Section 2953.08(D) and Criminal Rule 11(F), that as long as [appellant] abides by his conditions of bond when he returns here for sentencing February 17 * * * he'll receive a four year mandatory prison term [for the possession of heroin offense], and on the [possession of cocaine offense], an 18 month prison-non-mandatory prison term, for a total of five-five and a half years. If he fails to abide by his conditions of bond he'll receive a nine and one half year prison term.

         Both defense counsel and appellant concurred that the court accurately recited their understanding of the agreement.

         {¶ 4} The trial court asked appellant if he understood that "by proceeding in this fashion, * * * you're waiving your right to appeal[.]" Appellant indicated that he understood. The court observed that appellant had signed a document entitled, "Waiver, " and questioned appellant whether he signed the Waiver. Appellant responded affirmatively. The document indicates that the court advised appellant of the charges against him, the penalty provided by law, his rights under the constitution, including the right to a jury trial, the right to confront witnesses, the right to compulsory process, and the right to require the state to prove his guilt beyond a reasonable doubt. The document additionally recites that "[n]o promises, threats or inducements have been made to me by anyone to secure my plea of guilty."

         {¶ 5} In addition to asking appellant about the written form, the trial court verbally questioned appellant whether he understood that pleading guilty waives his right to a jury trial, his right to confront witnesses, his right to compulsory process, and his right to require the state to prove his guilt beyond a reasonable doubt. Appellant responded that he understood and further stated that he understood that he could not be made to testify against himself.

         {¶ 6} The trial court next reviewed the maximum penalties and informed appellant that a fourth-degree felony carries a maximum prison term of eighteen months and a $5, 000 maximum fine, and that a second-degree felony carries a maximum prison term of eight years and a $15, 000 maximum fine. Appellant indicated that he understood the maximum penalties. Appellant also signed two documents entitled, "Maximum Penalty." One document outlined the maximum penalty for appellant's possession of cocaine offense, and the other set forth the maximum penalty for appellant's possession of heroin offense.

         {¶ 7} After the trial court explained post-release control, the court asked appellant if he was "satisfied with the efforts of [his] lawyer." Appellant answered, "Yes." The court asked appellant: "Other than what's been stated on the record here today, has anybody made any additional promises, threats, or inducements in order to get you to change your plea to guilty?" Appellant responded, "No."

         {¶ 8} The trial court next asked appellant, "how do you plea?" Appellant answered, "No contest." Defense counsel interjected, "Guilty." The trial court stated, "No, that won't get it." Appellant then stated, "No, guilty. Guilty." The court again asked him his plea, and appellant stated, "Guilty."

         {¶ 9} The trial court subsequently accepted appellant's guilty plea and scheduled the sentencing hearing for February 17, 2016.

         {¶ 10} However, prior to the sentencing hearing, appellant took a drug test, tested positive for THC and fled the jurisdiction. Appellant later was apprehended in the State of Nevada.

         {¶ 11} On June 23, 2016, appellant, through new counsel, filed a motion to withdraw his guilty plea. He claimed that when he entered his guilty plea, "he was in distress * * *, acted out of fear and panic, was confused in his thought process, and prematurely entered a guilty plea." Appellant contended that "his judgement was impaired when he entered his guilty plea [due] to emotions of fear, panic, and confusion." He asserted that "he did not have any other choice but to accept a plea deal in this case, despite significant misgivings about accepting the same." He thus argued that his plea was not knowing and voluntary.

         {¶ 12} On June 23, 2016, the trial court held the sentencing hearing. The court noted that appellant did not appear as scheduled for the February 17, 2016 sentencing hearing. The court pointed out that appellant appeared late, tested positive for THC, and fled the jurisdiction.

         {¶ 13} Before the trial court proceeded with the sentencing hearing, defense counsel addressed appellant's motion to withdraw his guilty plea. Appellant's counsel asserted that appellant will testify that

he was basically told he had no option but to plea, that he was scared into this. He was confused, and therefore, that's why he did. * * * He's explained to me the full background of what happened. So he feels as though there are many legitimate grounds to grant a withdraw[al] of his plea based on his prior interactions with his previous counsel.

         {¶ 14} Appellant took the stand and testified that he tried to plead "no contest, " but the court would not allow it. Appellant spoke with his counsel, and counsel informed him that he has "to enter a guilty plea. That was part of the deal." Appellant stated that he believed that he should be permitted to withdraw his plea because his previous defense counsel pressured him to accept the state's plea offer. Appellant claimed that his previous counsel stated:

"This is the best deal. I've seen people" * * * get more for less. Take this deal. You know, if you want to see your daughter, you want to get out, take this deal. And I was just like, what, I couldn't believe it like the amount of evidence that was-that was being held against me or whatever and by me never being in prison, never, you know, I just couldn't understand it. He was like, "Well, take it or you're going to get eight years or something"

         Appellant stated that he "was scared like shit" and did not believe that he really had a choice.

         {¶ 15} The state cross-examined appellant and asked him whether he wished to withdraw his plea because he believes "the sentence [he] agreed to was too harsh." Appellant responded, "Not necessar[il]y too harsh[;] it was just I was coerced into believing that I have no other option."

         {¶ 16} After consideration, the trial court overruled appellant's motion to withdraw his guilty plea and found that appellant had entered his guilty plea in a knowing, intelligent, and voluntary manner. The court then proceeded to sentencing and stated:

[O]n January 6, 2016, [appellant] entered a negotiated plea, which he absolutely recognized was not appealable. He was told he would get a four year mandatory prison term on the felony two, Possession of Heroin, 18 months non-mandatory on the Possession of Cocaine, and also I told him very clearly if he failed to abide to his conditions of bond he'd get nine and one half years.

         {¶ 17} The trial court recited that it considered the record, the oral statements, as well as the purposes and principles of sentencing set forth in R.C. 2929.11(A), (B), and (C), and the seriousness and recidivism factors set forth in R.C. 2929.12(B), (C), (D), and (E). The court further indicated that it considered R.C. 2929.13(B). The court found, after weighing the seriousness and recidivism factors, that prison is consistent with the purposes of principles of sentencing and that appellant is not amenable to community control sanctions. The court additionally determined that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, and are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (2) appellant's criminal history shows that consecutive terms are necessary to protect the public from future crime. The court next indicated that the sentence is

a jointly recommended and agreed sentence by the Defendant and the State of Ohio that if he failed to abide by his conditions of bond he'd receive a mandatory eight year prison term on the felony of the second degree, and an 18 month non-mandatory prison term[] on the felony of the fourth degree, running consecutively with each other, for an aggregate nine and one half year prison term.

         {¶ 18} The court thus sentenced appellant to serve eight years in prison for his possession of heroin conviction and eighteen months in prison for his possession of cocaine conviction. The court also ordered appellant to serve the sentences consecutively to one another, for a total of nine years and six months in prison.[1] This appeal followed.

         I MOTION TO WITHDRAW GUILTY PLEA

         {¶ 19} In his first assignment of error, appellant argues that the trial court abused its discretion by overruling his motion to withdraw his guilty plea.

         A

         STANDARD OF REVIEW

         {¶ 20} Initially, we note that trial courts possess discretion when deciding whether to grant or to deny a presentence motion to withdraw a guilty plea. E.g., State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph two of the syllabus. Thus, absent an abuse of discretion, appellate courts will not disturb a trial court's ruling concerning a motion to withdraw a guilty plea. Id. at 527. An "abuse of discretion" means that the court acted in an "'unreasonable, arbitrary, or unconscionable'" manner or employed "'a view or action that no conscientious judge could honestly have taken.'" State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶23. Moreover, a trial court generally abuses its discretion when it fails to engage in a "'sound reasoning process.'" State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally, "[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶34.

         B

         CRIM.R. 32.1

         {¶ 21} Crim.R. 32.1 states: "A motion to withdraw a plea of guilty or no contest may be made only before 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." Crim.R. 32.1 thus permits a defendant to file a motion to withdraw a guilty plea before sentence is imposed. While trial courts should "freely and liberally" grant a presentence motion to withdraw a guilty plea, a defendant does not "have an absolute right to withdraw a guilty plea prior to sentencing." Xie, 62 Ohio St.3d at 527; accord State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶57; State v. Spivey, 81 Ohio St.3d 405, 415, 692 N.E.2d 151 (1998); State v. Wolfson, 4th Dist. Lawrence No. 02CA28, 2003-Ohio-4440, 2003 WL 21995244, ¶14. Instead, "[a] trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Xie at paragraph one of the syllabus; accord State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009-Ohio-1577, ¶10, superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.

         {¶ 22} While a trial court possesses discretion to determine whether to grant or to deny a presentence motion to withdraw a guilty plea, it does not have discretion to determine if a hearing is required. See Wolfson at ¶15. Instead, a trial court has a mandatory duty to hold a hearing regarding a presentence motion to withdraw a guilty plea. Xie at paragraph one of the syllabus; State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, 2014 WL 7251568, ¶50; State v. Burchett, 4th Dist. Scioto No. 11CA3445, 2013-Ohio-1815, 2013 WL 1867629, ¶13; State v. Davis, 4th Dist. Lawrence No. 05CA9, 2005-Ohio-5015, 2005 WL 2327600, ¶9; Wolfson at ¶15; State v. Wright, 4th Dist. Highland No. 94CA853, 1995 WL 368319 (June 19, 1995).

         {¶ 23} In the case sub judice, appellant has not argued that the trial court failed to hold a hearing concerning his presentence motion to withdraw his guilty plea. We therefore do not address this issue. Instead, appellant contends that the trial court abused its discretion when it ruled on the merits of his motion.

         {¶ 24} This court and others have identified nine factors that appellate courts should consider when reviewing a trial court's decision regarding a presentence motion to withdraw a guilty plea: (1) whether "highly competent counsel" represented the defendant; (2) whether the trial court afforded the defendant "a full Crim.R. 11 hearing before entering the plea"; (3) whether the trial court held "a full hearing" regarding the defendant's motion to withdraw; (4) "whether the trial court gave full and fair consideration to the motion"; (5) whether the defendant filed the motion within a reasonable time; (6) whether the defendant's motion gave specific reasons for the withdrawal; (7) whether the defendant understood the nature of the charges, the possible penalties, and the consequences of his plea; (8) whether the defendant is "perhaps not guilty or ha[s] a complete defense to the charges"; and (9) whether permitting the defendant to withdraw his plea will prejudice the state. State v. McNeil 146 Ohio App.3d 173, 176, 756 N.E.2d 885 (1st Dist. 2001), citing State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist. 1980), and State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist. 1995); e.g., State v. Jones, 10th Dist. Franklin No. 15AP-530, 2016-Ohio-951, 2016 WL 916609, ¶14; State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio-4992, ¶7; State v. Harmon, 4th Dist. Pickaway No. 04CA22, 2005-Ohio-1974, 2005 WL 983245, ¶22; State v. Littlefield, 4thDist. Ross No. 03CA2747, 2004-Ohio-5996, ¶9 and 12 (recognizing that "[w]hether the state will suffer prejudice if a motion to withdraw a guilty plea is granted is an important factor, " but "is not the only factor"). "'Consideration of the factors is a balancing test, and no one factor is conclusive.'" Jones at ¶14, quoting State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶13; accord State v. Crawford, 2nd Dist. Montgomery No. 27046, 2017-Ohio-308, 2017 WL 390253, ¶12. "The ultimate question is whether there exists a 'reasonable and legitimate basis for the withdrawal of the plea.'" State v. Delpinal, 2nd Dist. Clark Nos. 2015-CA-97 and 2015-CA-98, 2016-Ohio-5646, 2016 WL 4591376, 9, quoting Xie, 62 Ohio St.3d at 527; accord Crawford at ¶12. A mere change of heart is not a legitimate and reasonable basis for the withdrawal of a plea. E.g., Campbell at ¶7; Harmon at ¶22.

         {¶ 25} In the case at bar, appellant claims that applying the foregoing factors yields the following results: (1) the state will not suffer prejudice if appellant is allowed to withdraw his plea (2) appellant's counsel was deficient because appellant was coerced and forced to take a plea, (3) the Crim.R. 11 hearing was sufficient, (4) the hearing on the withdrawal motion occurred immediately before sentencing, (5) the court did not give full and fair consideration to the motion, (6) the motion "was reasonable as it was made prior to sentencing and for good reason, " (7) the reason for the motion was that appellant's trial counsel coerced him into accepting the plea, (8) it is uncertain whether appellant fully understood the nature of the charges and the sentence, and "he was confused by what plea he was * * * allowed to enter, " and (9) "Appellant had defenses to the charges against him as this was a constructive possession case and

          Appellant only admitted to knowledge of the marijuana in the vehicle."

         1 Prejudice to the State

         {¶ 26} We initially agree with appellant that any prejudice the state would suffer if the court permitted appellant to withdraw his guilty plea appears to be minimal. The state has not argued that it would suffer any prejudice "beyond the ordinary impact of any defendant's subsequent withdrawal of a guilty plea." State v. Harris, 10th Dist. Franklin No. 09AP-1111, 2010-Ohio-4127, ¶26. Thus, this factors weighs in favor of granting appellant's motion.

         2 Highly Competent Counsel

         {¶ 27} Appellant claims that his trial counsel performed deficiently by forcing him to accept the state's plea offer. He points out that he presented uncontroverted testimony at the plea withdrawal hearing that ...


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