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State v. Peak

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES A. PEAK, Defendant-Appellant.

          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.

          The 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.

         Procedural 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' incarceration.[1]

         {¶ 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.

         Motion 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 Cir.1978).

         {¶ 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, ¶ 23.

         {¶ 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. 11."

         {¶ 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 15.

         {¶ 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- ...


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