[Cite as State v. Taylor, 2011-Ohio-2150.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95339
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TEVIN P. TAYLOR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531560
BEFORE: Celebrezze, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 5, 2011
ATTORNEY FOR APPELLANT
Bruce M. Courey
5546 Pearl Road
Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Tevin Taylor, appeals the decision of the trial court
denying his request to withdraw his guilty plea. After a thorough review of
the record and relevant case law, we affirm.
{¶ 2} On December 10, 2009, appellant was indicted by a Cuyahoga
County Grand Jury in a 13-count indictment. He was charged with four
counts of aggravated burglary in violation of R.C. 2911.11(A)(2), felonies of
the first degree; four counts of kidnapping in violation of R.C. 2905.01(A)(2),
felonies of the first degree; four counts of aggravated robbery in violation of
R.C. 2911.01(A)(1), felonies of the first degree; and one count of felonious
assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. In
addition, each count included one- and three-year firearm specifications and a
forfeiture of a weapon specification.
{¶ 3} The underlying criminal charges resulted from an incident where
appellant was accused of participating in a home invasion wherein males
wore masks and brandished guns upon the victims. Further, as part of the
incident, it was alleged that appellant held a gun to a victim’s head and
subsequently discharged the firearm in her proximity.
{¶ 4} Prior to proceeding to trial, the state and appellant reached a plea
agreement. The trial court reviewed the plea agreement on the record on
May 6, 2010. In particular, the contemplated plea agreement included
appellant’s plea to amended counts of burglary and robbery, with all four
victims listed. Additionally, the burglary and robbery charges each included a
three-year firearm specification; however, as part of the plea agreement, the
firearm specifications would merge for purposes of sentencing. The trial
court advised appellant that if he accepted the plea agreement, the minimum
sentence that he would face would be five to 19 years. Further, the court
informed appellant that, based on the number of victims, he would probably
receive more than the minimum sentence, but that he would not receive the
maximum possible sentence. Appellant confirmed his understanding of the
plea agreement on the record.
{¶ 5} On May 7, 2010, the trial court held a change of plea hearing. At
the hearing, the state advised the court and appellant that there was a
pending DNA report that was undergoing peer review, but that the results
had been made known to appellant and that a report would be provided to
appellant once it became available. The trial court advised appellant that if
there was a variation in the results or dissatisfaction with the results of that
report, the court would allow appellant to withdraw his plea without penalty.
{¶ 6} Subsequently, the trial court engaged appellant in a thorough
Crim.R. 11 colloquy regarding the knowing, voluntary, and intelligent nature
of his plea. The trial court instructed appellant on all of his constitutional
rights. Appellant repeatedly stated that he understood the rights he was
waiving and was prepared to enter a guilty plea. Additionally, the trial court
explained the degrees of the offenses and their respective penalties, including
the fact that there would be a mandatory period of postrelease control.
{¶ 7} Following this colloquy, appellant withdrew his previously
entered plea of not guilty and entered a plea of guilty to the amended
indictment, which included amended Count 1, burglary in violation of R.C.
2911.12(A)(1), a felony of the second degree, with a three-year firearm
specification; and amended Count 2, robbery in violation of R.C.
2911.02(A)(1), a felony of the second degree, with a three-year firearm
specification. As part of the plea agreement, the parties agreed that the
firearm specifications would merge for purposes of sentencing. Appellant
confirmed that no threats or promises had been made in order to induce his
plea. The trial court found that appellant understood his constitutional
rights and made a knowing, intelligent, and voluntary waiver and plea. At
the conclusion of the plea hearing, the trial court ordered a presentence
investigation and set the matter for sentencing.
{¶ 8} On June 7, 2010, a sentencing hearing was held. Prior to the
court imposing sentence, appellant made an oral motion to withdraw his plea
of guilty to amended Counts 1 and 2. When explaining the basis of his
motion to the court, appellant stated, “* * * it was — I basically made my
decision — I didn’t base my decision correct. I only had a certain amount of
time to make that decision from May 6th to May 7th, and I felt I was, like, way
pressured to it from listening to how much time I will get and how much time
I will not get. And from being under the influence during that, I just — I
judged my decision wrong, and I want to take, refuse my plea and take it to
trial.”
{¶ 9} Appellant further stated, “[d]uring that time, all my evidence — I
just now found that out that DNA samples came back, and I felt our side was
not prepared on going to trial. And we was supposed to start trial May 19th.
* * * And I feel I wasn’t — I was not ready — I was incompetent to stand trial
at that point.”
{¶ 10} In response to this, the following colloquy took place between the
trial court and appellant:
{¶ 11} “COURT: * * * You’re using some words that sound like legal
terms, but you’re using them, with no disrespect to you, incorrectly. So you
said that you felt like you were incompetent. Do you have any mental health
history?
{¶ 12} “APPELLANT: No, ma’am.
{¶ 13} “COURT: * * * so you’re saying when I went through all these
series of questions with you and talked about the range and I said to you has
anyone made any threats or promises in order to get you to plead guilty other
than what I’ve stated on the record here today, and you said no, and then I
said, whose desire is it to plead guilty at this time, and I read the counts to
you and I asked you how you pled, and you said guilty for each of those times,
that you’re saying today, now, at this moment, you didn’t have enough time to
think about that? Or you were thinking about the possibility of being found
guilty at the trial and that — you pled guilty as a decision to — knowing that
the time was less, basically?
{¶ 14} “APPELLANT: Yes.”
{¶ 15} In explaining what he meant by his statement that he was
incompetent to stand trial, appellant stated, “I mean, based — I feel I based
my decision off of I was not in my right state of mind at that point in time, off
of just — I was still hearing the time that I might get if I lose trial and what
you can give me from in between. * * * I wasn’t thinking right.”
{¶ 16} Although no formal motion was made, the court agreed to hold a
hearing to determine whether appellant’s request to withdraw his plea had
merit. In addressing the issue, the trial court applied the standards of State
v. Weakley, Cuyahoga App. No. 93282, 2010-Ohio-2464. After hearing the
basis of appellant’s motion and applying the standards derived from Weakley,
the trial court denied appellant’s motion to withdraw, stating that appellant
was represented by competent counsel, was afforded a full hearing pursuant
to Crim.R. 11 before entering the plea, was given a complete hearing on the
motion to withdraw, and was given full and fair consideration of the request
to withdraw his plea.
{¶ 17} Thereafter, the trial court proceeded to sentencing. Appellant
was sentenced to a term of incarceration for a period of three years on the
firearm specifications, seven years on the burglary count, and five years on
the robbery count. The counts were to run consecutively for a total term of
incarceration of 15 years.
{¶ 18} Appellant now raises two assignments of error for review.
Law and Analysis
Motion to Withdraw Plea
{¶ 19} In his first assignment of error, appellant argues that the trial
court abused its discretion and committed reversible error by denying his
presentence motion to withdraw his plea of guilty. We disagree.
{¶ 20} Crim.R. 32.1 governs motions to withdraw guilty pleas and states
that “[a] motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed * * *.” Although “presentence motions to
withdraw guilty pleas should be freely granted, a defendant ‘does not have an
absolute right to withdraw a plea prior to sentencing.’” State v. McGregor,
Cuyahoga App. No. 86165, 2005-Ohio-5561, ¶3, quoting State v. Xie (1992), 62
Ohio St.3d 521, 527, 584 N.E.2d 715. “Instead, the trial court ‘must conduct
a hearing to determine whether there is a reasonable and legitimate basis for
the withdrawal of the plea.’” Id. A mere change of heart is insufficient
grounds for the withdrawal of a guilty plea prior to sentencing. State v.
Benjamin, Cuyahoga App. No. 85071, 2005-Ohio-2322, ¶9.
{¶ 21} The decision of a trial court to grant or deny a motion to
withdraw a guilty plea is reviewed using an abuse of discretion standard.
State v. Van Dyke, Lorain App. No. 02CA008204, 2003-Ohio-4788, ¶7, citing
State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, paragraph two
of the syllabus. To constitute an abuse of discretion, it must be
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 22} In determining whether the trial court abused its discretion by
denying the appellant’s motion to withdraw a plea, we consider the following
factors: (1) whether the accused was represented by highly competent
counsel; (2) whether the accused was afforded a full hearing pursuant to
Crim.R. 11 before he entered the plea; (3) whether, after the motion to
withdraw was filed, the accused was given a complete and impartial hearing
on the motion; and (4) whether the record reveals that the court gave full and
fair consideration to the plea withdrawal request. Weakley at ¶12, citing
Peterseim at paragraph three of the syllabus.
{¶ 23} The first element in Weakley requires that highly competent
counsel represented the defendant. Appellant argues that his attorney
should have requested a continuance from his May 7, 2010 plea hearing in
order to obtain lab reports relating to the state’s DNA evidence. Further,
appellant contends that he was not represented by competent counsel and
that he pled guilty based on his belief that his attorney was not prepared to
go to trial.
{¶ 24} At the May 7, 2010 plea hearing, there were discussions of a DNA
report being prepared by the Bureau of Criminal Identification and
Investigation. As of the date of the plea agreement, the DNA results
indicated that the items submitted for testing were unable to identify
appellant; however, they were also unable to exclude him. 1 The record
indicates that appellant’s counsel was aware of those results and advised
appellant of those results prior to his plea. Although a physical copy of the
DNA lab report was not released to appellant at the time he entered his plea
because it was still under peer review, there is no indication that the peer
review report contained results contrary to the results appellant was advised
of prior to his plea. If a variance in the report existed, appellant’s counsel
would have been able to request a withdrawal of plea, as instructed by the
court.
{¶ 25} Further, appellant’s counsel routinely met with appellant and
fully advised him of all of his rights and the possible penalties associated with
his guilty plea. The record indicates that appellant’s counsel specifically
stated on the record that he was prepared to proceed with a trial, and we find
no evidence to suggest otherwise. Accordingly, we find that appellant’s
counsel was more than competent as it related to his assistance of appellant
in this case.
{¶ 26} We also find that the trial court complied with Weakley’s second
element. The record demonstrates that the court conducted a full hearing
pursuant to Crim.R. 11 before accepting appellant’s plea.
DNA testing was conducted on two guns and the interior of a mask left at
1
the crime scene.
{¶ 27} Pursuant to Crim.R. 11(C)(2), the trial court may not accept a
defendant’s guilty plea unless it (1) determines that the defendant is
voluntarily entering the plea and understands the nature of the charges and
the maximum penalty he faces, (2) informs the defendant of the effect of
accepting the plea and that the court may proceed with judgment and
sentencing once it is accepted, and (3) informs the defendant that he is
waiving his constitutional right to a jury trial, confrontation of witnesses,
compulsory process, and the state’s burden of proof beyond a reasonable
doubt. Id. at ¶27.
{¶ 28} Appellant argues that he did not enter his plea knowingly,
intelligently, and voluntarily because the trial court failed to inform him
during the plea colloquy that his sentence included a mandatory term of
postrelease control. We find no merit to appellant’s assertion. In addition
to explaining the potential minimum and maximum penalties associated with
appellant’s plea and addressing each of appellant’s constitutional and
nonconstitutional rights, the trial court clearly informed appellant that he
would be subject to a mandatory term of postrelease control. Addressing the
issue of postrelease control, the trial court stated, in pertinent part:
{¶ 29} “COURT: I want to advise you as well that when you are
released from the penitentiary on this case that you will face three years of
postrelease control * * * do you understand?
{¶ 30} “APPELLANT: Yes.” (Emphasis added.)
{¶ 31} “Will” is mandatory language and is not stated in permissive
terms. As such, the trial court adequately advised appellant of the
postrelease control pertinent to his plea and afforded him a full Crim.R. 11
hearing.
{¶ 32} Finally, we find that the trial court afforded appellant a full
hearing on his motion to withdraw his plea and gave the request full and fair
consideration. Although no formal hearing was requested, the trial court
adequately considered the merits of appellant’s motion to withdraw his plea
and carefully outlined the basis for its denial of the motion. Throughout the
hearing on his request to withdraw, appellant stated that, at the time he
entered his plea, he fully understood the nature of the charges and the
minimum and maximum penalties associated with a plea of guilty to those
charges.
{¶ 33} There is no evidence to conclude that appellant’s motion to
withdraw represented anything more than a change of heart. As this court
has previously explained, a mere change of heart is an insufficient basis to
withdraw a guilty plea. Benjamin, supra. Accordingly, the trial court did
not abuse its discretion when it denied appellant’s motion to withdraw his
guilty plea.
Manifest Injustice
{¶ 34} In his second assignment of error, appellant argues that in order
to correct a manifest injustice, this court must set aside his conviction and
permit him to withdraw his guilty plea. We disagree.
{¶ 35} Rule 32.1 of the Ohio Rules of Criminal Procedure 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.”
{¶ 36} Therefore, when a defendant seeks to withdraw a plea of guilty or
no contest after sentencing, he must prove the existence of “manifest
injustice.” State v. Peterseim (1980), 68 Ohio App. 2d 211, 428 N.E.2d 863.
{¶ 37} A review of the docket in this case shows that appellant did not
make a post-sentence motion to withdraw his plea. As such, the “manifest
justice” analysis is irrelevant to our review of the trial court’s presentence
denial of appellant’s request to withdraw his guilty plea. Accordingly,
appellant’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
State v. Taylor
Combined Opinion