Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-17-613638-A and CR-17-619586-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Thomas Miranda, Assistant Prosecuting
Attorney, for appellee.
Law Offices of Eric L. Foster, Eric L. Foster, for appellant.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE
1} Defendant-appellant James Peak appeals from the
trial court's judgment denying his motion to withdraw his
guilty plea and the imposition of consecutive sentences. For
the following reasons, we affirm the trial court's denial
of the motion to withdraw Peak's guilty plea and affirm
the consecutive sentences.
History and Substantive Facts
2} In 2007, Peak pleaded guilty to two counts of
sexual battery and one count of abduction in Cuyahoga C.P.
No. CR-04-458380-A. After accepting his guilty plea and
finding Peak guilty, the court determined that Peak was a
sexual predator, which subjected him to certain reporting
requirements, and sentenced Peak to a total of two years'
3} In February 2017, Peak was charged with failure
to provide notice of change of address in violation of R.C.
2950.05(E)(1), a felony of the third degree, as a result of
his registration requirement from his conviction in 2007. In
July 2017, Peak was charged with "failure to verify
address" in violation of R.C. 2950.06(F), a felony of
the third degree, also alleging a registration requirement
from his 2007 conviction. Both indictments contained a
furthermore specification that Peak had previously pleaded
guilty to or been convicted of a similar crime in September
2014 (in Cuyahoga C.P. No. CR-14-584726-A).
4} In February 2018, the court held a plea hearing
during which the state offered to amend the two charges to
felonies of the fourth degree: "attempted failure to
provide notice of change of address" and "failure
to verify address." Following the hearing, Peak pleaded
guilty to the amended indictments, and the court scheduled
the matter for sentencing.
5} In March 2018, the trial court held the
sentencing hearing. Prior to sentencing, however, Peak
requested to withdraw his guilty plea. After engaging in a
dialogue with Peak and his counsel regarding Peak's oral
request to withdraw his plea, the trial court denied the
motion and imposed sentence. The court sentenced Peak to 18
months in prison on each count. The counts were to be served
concurrently. After additional dialogue with Peak, the trial
court ordered the sentence to be served consecutively and it
made consecutive-sentence findings.
6} Peak now appeals, assigning the following errors
for our review:
I. The trial court erred by refusing to allow James Peak to
withdraw his guilty plea prior to sentencing.
II. The trial court erred by imposing consecutive sentences
where the record fails to support them.
to Withdraw Guilty Plea
7} In his first assignment of error, Peak contends
that the trial court erred when it denied his motion to
withdraw his presentence guilty plea. In support, he argues
that the trial court failed to provide a full hearing on his
motion to withdraw and failed to give full and fair
consideration to his request.
8} Crim.R. 32.1 governs withdrawals of guilty pleas
and provides that "[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." Generally, a
presentence motion to withdraw a guilty plea should be freely
and liberally granted. State v. Xie, 62 Ohio St.3d
521, 527, 584 N.E.2d 715 (1992). It is well established,
however, that a "defendant does not have an absolute
right to withdraw a guilty plea prior to sentencing.
Therefore, a trial court must conduct a hearing in order to
determine whether there is a reasonable and legitimate basis
for the withdrawal of the plea." Id.
9} The decision whether to grant or deny a motion to
withdraw a guilty plea is entirely within the sound
discretion of the trial court, and we will not alter the
trial court's decision absent a showing of an abuse of
that discretion. Xie at paragraph two of the
syllabus; State v. Peterseim, 68 Ohio App.2d 211,
428 N.E.2d 863 (8th Dist.1980), paragraph two of the
syllabus. "'[U]nless it is shown that the trial
court acted unjustly or unfairly, there is no abuse of
discretion.'" Peterseim at 213-214, quoting
Barker v. United States, 579 F.2d 1219, 1223 (10th
10} A trial court does not abuse its discretion in
denying a motion to withdraw a guilty plea where the
following occurs: (1) the accused is represented by competent
counsel; (2) the accused was afforded a full hearing,
pursuant to Crim.R. 11, before he entered the plea; (3) when,
after the motion to withdraw is filed, the accused is given a
complete and impartial hearing on the motion; and (4) the
record reflects that the court gave full and fair
consideration to the plea-withdrawal request.
Peterseim at paragraph three of the syllabus;
State v. King, 8th Dist. Cuyahoga No. 106709,
2018-Ohio-4780, ¶ 13. Additional factors this court has
considered include whether the motion was made in a
reasonable time; whether the motion states specific reasons
for withdrawal; whether the accused understood the nature of
the charges and the possible penalties; and whether the
accused was perhaps not guilty or had a complete defense.
King at ¶ 14, citing State v. Benson,
8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
11} Here, Peak concedes that he was represented by
competent counsel. He also concedes that he was afforded a
full Crim.R. 11 hearing. Indeed, the record reflects that the
court engaged in a full Crim.R. 11 plea colloquy before Peak
entered his plea. During the plea hearing, the court advised
Peak of the effect of his plea, the nature of the charges,
the potential penalties he faced, and the constitutional
rights he was waiving by pleading guilty. Peak repeatedly
indicated that he understood the court's advisements and
he was in fact guilty. Additionally, Peak confirmed that no
threats or promises were made in exchange for his guilty
plea, and at no time did Peak express confusion during the
hearing or that he misunderstood the court's advisements.
A trial court's adherence to Crim.R. 11 raises a
presumption that a plea is voluntarily entered. State v.
McKissick, 8th Dist. Cuyahoga No. 105607, 2018-Ohio-282,
12} Peak contends, however, that the trial court
failed to provide him a complete hearing on his motion to
withdraw and failed to fully consider his request.
Specifically, Peak argues that the court routinely
interrupted him and did not consider his claim of innocence.
He also argues that rather than addressing his concerns, the
court "continued to defend its compliance with Crim.R.
13} The scope of a hearing on a motion to withdraw
should reflect the substantive merits of the motion.
State v. Robinson, 8th Dist. Cuyahoga No. 89651,
2008-Ohio-4866, ¶ 25, 26. "'[B]old assertions
without evidentiary support simply should not merit the type
of scrutiny that substantiated allegations would
merit.'" Id., quoting State v.
Smith, 8th Dist. Cuyahoga No. 61464, 1992 Ohio App.
LEXIS 6259, 14 (Dec. 10, 1992). Therefore, where a defendant
fails to make a prima facie showing of merit, the trial court
need not "devote considerable time to" his or her
request to withdraw. Smith at 14. Further, the scope
of the hearing is within the sound discretion of the trial
court, subject to this court's review for an abuse of
discretion. State v. Farkosh, 8th Dist. Cuyahoga No.
102393, 2015-Ohio-3588, ¶ 9, citing Xie, 62
Ohio St.3d at 526, 584 N.E.2d 715 (1992). "This approach
strikes a fair balance between fairness for an accused and
preservation of judicial resources." Smith at
14} Importantly, where an individual claims he or
she is innocent, "'the trial judge must determine
whether the claim is anything more than the defendant's
change of heart about the plea agreement.'"
State v. Minifee, 8th Dist. Cuyahoga No. 99202,
2013-Ohio-3146, ¶ 27, quoting State v. Kramer,
7th Dist. Mahoning No. 01-CA-107, 2002-Ohio-4176, ¶ 58.
And this court has repeatedly held that a change of heart
regarding a guilty plea and the possible sentence is
insufficient justification for withdrawal of a guilty plea.
State v. Norman, 8th Dist. Cuyahoga No. 105218,
2018-Ohio-2929, ¶ 20; McKissick, 8th Dist.
Cuyahoga No. 105607, 2018- ...