State v. Burke

[Cite as State v. Burke, 2019-Ohio-4744.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY

STATE OF OHIO, :
: Case Nos. 19CA1
Plaintiff-Appellee, : 19CA2
:
vs. : DECISION AND JUDGMENT
: ENTRY
EMORY S. BURKE, :
:
Defendant-Appellant. : RELEASED: 11/07/19
_____________________________________________________________
APPEARANCES:

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

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and C.
Michael Gleichauf, Lawrence County Assistant Prosecuting Attorney,
Ironton, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} This is a consolidated appeal from two judgment entries of the

Lawrence County Common Pleas Court that convicted Appellant Emory

Burke of five felonies and three misdemeanors. On November 14, 2018,

Appellant entered a guilty plea to all of the counts against him in the two

cases, and on December 4, 2018, the trial court sentenced Appellant to a

total of two years and eleven months in prison. Just before his sentencing,

however, Appellant orally requested that the trial court permit him to

withdraw his guilty plea. After a colloquy with Appellant, the trial court
Lawrence App. Nos. 19CA1 and 19CA2 2

denied the request and went forward with the sentencing. Appellant’s sole

assignment of error in this appeal is that the trial court abused its discretion

by failing to properly consider and grant Appellant’s request to withdraw his

guilty plea.

{¶2} As discussed below, the trial court has broad discretion in its

determination of whether to grant a presentence motion to withdraw a guilty

plea. As the trial court did not abuse its discretion in this case, we overrule

Appellant’s assignment of error and affirm the trial court’s judgment.

FACTS

{¶3} On October 18, 2018, Appellant was indicted in the Lawrence

County Common Pleas Court in case number 18-CR-398 on one count of

Forgery, a fifth degree felony, under R.C. 2913.31(A)(3). On October 23,

2018, Appellant, represented by counsel, pleaded not guilty to the charge

and was released on an “own recognizance” bond under R.C. 2937.29. A

pretrial hearing was scheduled for November 14, 2018.

{¶4} Before the pretrial hearing in case number 18-CR-398, a bill of

information was agreed to and entered in a separate case, case number 18-

CR-491, also in the Lawrence County Common Pleas Court. The bill of

information contained seven counts: two counts alleging a violation of R.C.

2913.02(A)(1), Theft, a first degree misdemeanor; one count alleging a
Lawrence App. Nos. 19CA1 and 19CA2 3

violation of R.C. 2913.51, Receiving Stolen Property, a first degree

misdemeanor; two counts alleging a violation of R.C. 2913.02(A)(1), Theft,

a fifth degree felony; and two counts alleging a violation of R.C.

2921.12(A)(1), Tampering with Evidence, a felony of the third degree.

{¶5} On November 14, 2018, the trial court appointed new counsel for

Appellant and held a hearing in both cases. Relevant to case number 18-CR-

491, the trial court conducted a colloquy with Appellant regarding the bill of

information and Appellant’s executed waiver of indictment. The trial court

accepted the waiver and arraigned Appellant on the bill of information. The

trial court then conducted a Crim.R. 11 hearing, after which Appellant

entered guilty pleas in both case number 18-CR-398 and case number 18-

CR-491. The trial court scheduled a sentencing hearing for December 4,

2018. Appellant remained in custody pending sentencing.

{¶6} On December 4, 2018, Appellant appeared with counsel before

the trial court. Prior to sentencing, however, Appellant’s counsel notified

the court that Appellant requested permission to address the court directly.

The trial court granted the request. Appellant then asked if he could have a

furlough before being taken into custody so that he could visit his sick

mother. Appellant initially asked for a furlough of only five hours, but later

requested up to a few days to be with his family. The trial court
Lawrence App. Nos. 19CA1 and 19CA2 4

acknowledged that Appellant was in a “horrible, horrible situation,” but

explained that it could not delay the disposition of Appellant’s cases because

of the impact it would have on the court’s already overburdened docket.

{¶7} After the trial court made it clear that Appellant was not going to

be granted a furlough, Appellant asked if he could withdraw his guilty plea.

The trial court questioned whether Appellant had had a “change of heart”

and stated, “The only reason you want to withdraw your plea is because I

wouldn’t let you go to have time with your family. That’s it right?”

Appellant answered, “Not really. I mean, there’s other reasons.” The trial

court asked Appellant to provide his other reasons.

{¶8} Appellant’s first response was that he did not understand “what

[he] was getting [himself] into.” The trial court discussed its colloquy with

Appellant when he entered his guilty plea, including Appellant’s affirmative

responses to questions regarding his understanding of the charges against

him, the acts in the indictment that he would be admitting upon entry of his

plea, and the maximum sentences that he might receive if found guilty at

trial. Appellant responded that he did not understand what he was signing.

When pressed regarding the particular documents that he signed—the waiver

of his right to trial and his “proceeding on plea of guilty” form, Appellant
Lawrence App. Nos. 19CA1 and 19CA2 5

changed tack and stated that he wanted to take the case to trial because he

had “a better chance at trial.”

{¶9} The trial court then asked Appellant what change in

circumstances had occurred to justify the withdrawal of his plea. Appellant

responded, “I mean, I didn’t want to – I was understanding I would get a

furlough today with – with three years.” The trial court again asked

Appellant to identify the change in circumstances that had occurred.

Appellant initially said he “didn’t understand,” but, when asked for specific

examples of what he did not understand, he responded that he was “under

the influence.” The trial court asked how Appellant could have been under

the influence when he was in jail leading up to the plea hearing. Appellant

said he had “found” marijuana at the jail. After Appellant refused to

disclose where he had found marijuana at the jail, the trial court concluded

he had not presented grounds for the withdrawal of his guilty plea.

{¶10} The trial court entered prison sentences in the two cases to run

concurrently for a total of two years and eleven months, along with

restitution for the victims. On December 13, 2018, the trial court entered its

final judgment entries in the cases. Appellant timely filed a notice of appeal

in both cases on January 14, 2019.
Lawrence App. Nos. 19CA1 and 19CA2 6

{¶11} As a preliminary matter, Appellee, the State of Ohio, contends

that Appellant’s notice of appeal was untimely. Under App.R. 4(A)(1), a

notice of appeal must be filed within thirty days of the final judgment entry

from which the appeal will be taken. In this case, the thirtieth day from the

trial court’s judgment entries was Saturday, January 12, 2019. Under App.

R. 14(A), in computing any period of time allowed under the rules, the “last

day of the period so computed shall be included, unless it is a Saturday,

Sunday or a legal holiday, in which event the period runs until the end of the

next day which is not a Saturday, Sunday or a legal holiday.” Because the

thirty-day period in which Appellant was permitted to file a notice of appeal

ended on a Saturday, his deadline was extended to Monday, January 14,

2019. Appellant therefore timely filed his notices of appeal on January 14,

2019.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO PROPERLY CONSIDER AND GRANT
APPELLANT’S REQUEST TO WITHDRAW HIS
GUILTY PLEA.”

A. LEGAL STANDARD

{¶12} 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
Lawrence App. Nos. 19CA1 and 19CA2 7

conviction and permit the defendant to withdraw his or her plea.” “[A]

presentence motion to withdraw a guilty plea should be freely and liberally

granted.” State v. Hoke, 4th Dist. Lawrence No. 10CA32, 2011–Ohio–1221,

¶ 12 (internal quotations omitted), quoting State v. Ketterer, 126 Ohio St.3d

448, 2010–Ohio–3831, 935 N.E.2d 9, at ¶ 57, quoting State v. Xie, 62 Ohio

St.3d 521, 527, 584 N.E.2d 715 (1992). However, a defendant “does not

have an absolute right to withdraw a guilty plea prior to sentencing.” Xie at

paragraph one of the syllabus; see also State v. Spivey, 81 Ohio St.3d 405,

415, 161, 1998–Ohio–437, 692 N.E.2d 151. “The decision to grant or deny

a presentence motion to withdraw a guilty plea is within the sound discretion

of the trial court” and will not be reversed absent an abuse of that discretion.

Xie at paragraph two of the syllabus. See also State v. Brown, 4th Dist. Ross

No. 16CA3544, 2017-Ohio-2647, ¶ 11. “A trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971,

¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

Furthermore, “[w]hen applying the abuse of discretion standard, a reviewing

court is not free to merely substitute its judgment for that of the trial court.”

In re Jane Doe 1, 57 Ohio St.3d 135, 137–138, 566 N.E.2d 1181 (1991).
Lawrence App. Nos. 19CA1 and 19CA2 8

{¶13} When determining whether a trial court abused its discretion by

denying a presentence 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 given a full Crim.R. 11 hearing before

entering the plea; (3) whether a full hearing was held on the withdrawal

motion; and (4) whether the trial court gave full and fair consideration to the

motion.’” Hoke at 13, quoting State v. Campbell, 4th Dist. Athens No.

08CA31, 2009–Ohio–4992, at ¶ 7, quoting State v. McNeil, 146 Ohio

App.3d 173, 176, 765 N.E.2d 884 (1st Dist.2001); see also State v. Gibbs,

4th Dist. Ross Nos. 10CA3137 and 10CA3138, 2010–Ohio–2246, at ¶ 9.

Other considerations include: “‘(1) whether the motion was made within a

reasonable time; (2) whether the motion set out specific reasons for the

withdrawal; (3) whether the accused understood the nature of the charges

and the possible penalties; and (4) whether the accused was perhaps not

guilty or had a complete defense to the charges.’” Campbell at ¶ 7, quoting

McNeil, 146 Ohio App.3d at 176. A change of heart or mistaken belief

about the plea is not a reasonable basis requiring a trial court to permit the

defendant to withdraw the plea. Campbell at ¶ 7; citing State v. Lambros, 44

Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist. 1988).
Lawrence App. Nos. 19CA1 and 19CA2 9

B. ANALYSIS

{¶14} Upon consideration of the above factors, the trial court did not

abuse its discretion in denying Appellant’s request to withdraw his guilty

plea. As to the first factor, Appellant does not claim that his counsel was

ineffective. To the contrary, Appellant’s counsel negotiated a favorable plea

deal that resulted in considerably less prison time than Appellant would have

received if the maximum sentences on all counts were imposed after trial.

As to the second factor, Appellant received a full Crim.R. 11 hearing before

entering his guilty plea.

{¶15} The third and fourth factors ask whether the trial court

conducted a full hearing on the withdrawal motion and gave full and fair

consideration to the motion, respectively. Appellant did not bring a formal

motion, but orally requested to withdraw his guilty plea at his sentencing

hearing. Nevertheless, the trial court gave full and fair consideration to

Appellant’s request. It conducted a colloquy regarding the reasons for the

request and continued its inquiry into each of the asserted reasons until it

determined there were no grounds for withdrawal. Appellant suggests that

the trial court should have held a separate hearing, but that is not required.

The trial court gave Appellant the opportunity to argue all of the grounds for
Lawrence App. Nos. 19CA1 and 19CA2 10

his request at the sentencing hearing. He would not have been afforded

anything more at a separate hearing.

{¶16} None of the other relevant considerations support permitting the

withdrawal of Appellant’s plea. The first such consideration is whether

Appellant made his request within a reasonable time. An “undue delay

between the occurrence of the alleged cause for withdrawal of a guilty plea

and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting

the credibility of the movant and militating against the granting of the

motion.” State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d

522, ¶ 14; citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph three of the syllabus. Appellant never clearly identified the

change in circumstances that prompted him to make his request. The

transcript supports a finding that Appellant decided to withdraw his plea

because his furlough request was denied, which is not grounds for

withdrawal of a plea. If the change in circumstances was that Appellant

regained his sobriety after appearing at the plea hearing under the influence,

then he waited three weeks to request withdrawal of his plea. While three

weeks is not a long period in itself, the timing of Appellant’s request still

cuts against his credibility. If the withdrawal request were genuine, then, in

light of its significance to his case, it should have been the first item that
Lawrence App. Nos. 19CA1 and 19CA2 11

Appellant raised with the trial court. It was not. Instead, Appellant

requested a furlough. Importantly, Appellant clearly expected to be

incarcerated at the conclusion of the requested furlough. He stated, “I’m

asking you to give me a five-hour furlough today. I will come back before

3:30 and turn myself in today.” It may be inferred that Appellant expected

to be incarcerated based on upon the trial court’s acceptance of his guilty

plea, not its withdrawal.

{¶17} Another consideration is whether Appellant provided specific

reasons for why he wanted to withdraw his plea. Appellant did so, but the

trial court’s colloquy showed that the asserted reasons were neither credible

nor well-founded. Appellant vacillated among claims that he (1) did not

understand the terms of his plea, (2) believed he would fare better at trial,

and (3) was under the influence of marijuana when he entered the plea. The

hearing transcript gives a strong impression that Appellant was, as the trial

court surmised, simply trying to forestall his imprisonment so that he could

spend time with his family. The most credible statement by Appellant may

have been his immediate response when asked what changed circumstances

prompted his request: “I was understanding I would get a furlough today

with – with three years.” When reviewing a trial court’s ruling on a motion

to withdraw a plea, “the good faith, credibility and weight of the movant’s
Lawrence App. Nos. 19CA1 and 19CA2 12

assertions in support of the motion are matters to be resolved by that court.”

Smith at paragraph two of the syllabus. Here, it is evident the trial court did

not find Appellant’s reasons for the withdrawal of his plea to be credible.

{¶18} As mentioned, the trial court provided a full Crim.R. 11 hearing

before Appellant entered his guilty plea. At that hearing, Appellant thus

asserted that he understood the nature of the charges against him and the

possible penalties. The trial court reminded Appellant of these assertions

when he later requested withdrawal of his plea. The trial court was well

within its discretion to conclude Appellant was not credible when he claimed

that he did not understand the charges because he was under the influence of

marijuana.

{¶19} The last consideration is whether the accused is perhaps not

guilty or has a complete defense to the charges. Here, Appellant never

claimed to be innocent and his belief that he would fare better at trial was

never supported with a reasoned explanation. Thus, this consideration also

does not support Appellant’s request to withdraw his plea.

{¶20} In summary, Appellant has not shown the trial court abused its

discretion in denying his pre-sentencing request to withdraw his guilty plea.

As a result, we overrule Appellant’s assignment of error and affirm the

judgment of the trial court.
Lawrence App. Nos. 19CA1 and 19CA2 13

JUDGMENT AFFIRMED.
Lawrence App. Nos. 19CA1 and 19CA2 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Lawrence County Court of Common Pleas to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.