State v. McKinney

[Cite as State v. McKinney, 2020-Ohio-4721.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

TERRANCE MCKINNEY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0042

Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 17-CR-1285(A)

BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:
Affirmed

Atty. Paul Gains, Mahoning County Prosecutor, Atty. Ralph Rivera, Assistant
Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

Atty. Atty. Megan Patituce and Atty. Kimberly Kendall Corral, Patituce & Associates,
16855 Foltz Industrial Parkway, Strongsville, Ohio 44149, for Defendant-Appellant.
 –2–

Dated:
September 28, 2020

Donofrio, J.

{¶1} Defendant-appellant, Terrance McKinney, appeals his conviction in the
Mahoning County Common Pleas Court following a guilty plea for one count of
discharging a firearm on or near a prohibited premises.
{¶2} A Mahoning County Grand Jury indicted appellant and a co-defendant on
six counts. Three counts applied to appellant: Count Two for discharging a firearm on or
near a prohibited premises in violation of R.C. 2923.162(A)(3)(C)(4), a first-degree felony
with a repeat violent offender specification pursuant to R.C. 2941.149; Count Four for
felonious assault in violation of R.C. 2903.11(B)(1)(D), a second-degree felony with a
firearm specification pursuant to R.C. 2941.145; and Count Six for having weapons under
disability in violation of R.C. 2923.13(A)(3)(B), a third-degree felony with a firearm
specification pursuant to R.C. 2941.145. Appellant pled not guilty on all counts.
{¶3} Eventually, appellant accepted a plea agreement from plaintiff-appellee,
the State of Ohio. The state agreed to dismiss Count Four, dismiss the repeat violent
offender specification on Count Two, and recommend a sentence of ten years of
incarceration. In exchange, appellant agreed to plead guilty to Counts Two and Six. The
trial court accepted appellant’s guilty plea and scheduled a sentencing hearing for a later
date.
{¶4} After appellant pled guilty but prior to sentencing, the state dismissed Count
Six because the indictment was missing material language pertaining to this count. This
left appellant only being convicted of and sentenced on Count Two.
{¶5} Approximately eight days after appellant pled guilty, he filed a pro se
motion indicating he wanted to withdraw his guilty plea. Appellant’s counsel subsequently
filed a motion to withdraw the guilty plea arguing appellant was innocent and his plea was
not freely or voluntarily entered into because it was motivated by fear and panic.
{¶6} The trial court held a hearing on appellant’s motion to withdraw. Appellant
made two arguments in support of his motion. First, he argued that he was innocent
because he was shot at first and only fired in self-defense. Second, he argued that he

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did not know he pled guilty to a first-degree felony. The state argued that video evidence
showed appellant discharging a firearm outside of a bar. The state also argued that
appellant admitted in jail house phone calls that he was in the wrong. The trial court noted
that the original indictment charged appellant with a first-degree felony. The trial court
took the issue under advisement and did not immediately issue a ruling.
{¶7} The state filed a post-hearing memorandum contra to appellant’s motion
to withdraw his plea. The state argued that it would be prejudiced by appellant
withdrawing his plea because it halted all trial preparation and released its witnesses,
appellant was represented by competent counsel, the trial court gave appellant a full
hearing to discuss the terms of the plea agreement, and appellant’s motion was merely a
change of heart.
{¶8} The trial court overruled appellant’s motion to withdraw the guilty plea.
The trial court held that, based on the evidence provided, appellant’s motion could only
be viewed as a change of heart which was an insufficient basis to withdraw a plea.
{¶9} The trial court then held appellant’s sentencing hearing. Appellant renewed
his motion to withdraw the plea but the trial court denied the motion. After hearing
arguments, the trial court sentenced appellant to ten years of incarceration.
{¶10} Appellant timely filed this appeal on April 5, 2019. Appellant now raises
one assignment of error.
{¶11} Appellant’s sole assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION DENYING THE
APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA.

{¶12} Appellant argues that there are numerous factors supporting withdrawal of
his guilty plea but they all center on the arguments that he was not properly informed of
the charges, not properly informed of his potential penalty, and actual innocence.
{¶13} Appellant filed his motion prior to sentencing. A presentence motion to
withdraw a guilty plea should be freely and liberally granted. State v. Ocel, 7th Dist.
Jefferson No. 08 JE 22, 2009-Ohio-2633, ¶ 21, citing State v. Xie, 62 Ohio St.3d 521,
527, 584 N.E.2d 715 (1992). But the Ohio Supreme Court has also recognized that a
“defendant does not have an absolute right to withdraw a plea prior to sentencing.” Id.

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Therefore, the trial court must conduct a hearing on the motion to decide if there is a
reasonable and legitimate basis for it.” Id.
{¶14} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant's
assertions in support of the motion are matters to be resolved by that court.” Ocel at ¶
22, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1997), paragraph two
of the syllabus. Therefore, we will not reverse the trial court’s decision absent an abuse
of discretion. Abuse of discretion means that the trial court’s decision was unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶15} When determining whether a trial court abused its discretion in denying a
presentence motion to withdraw a plea, this court looks to nine factors. Those factors
are:

(1) whether the state will be prejudiced by withdrawal; (2) the representation
afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea
hearing; (4) whether the defendant understood the nature of the charges
and potential sentences; (5) the extent of the hearing on the motion to
withdraw; (6) whether the trial court gave full and fair consideration to the
motion; (7) whether the timing of the motion was reasonable; (8) the
reasons for the motion; and (9) whether the accused was perhaps not guilty
or had a complete defense to the charge.

State v. Scott, 7th Dist. Mahoning No. 08 MA 12, 2008-Ohio-5043, ¶ 13 citing State v.
Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995).
{¶16} No one factor is conclusive for the determination of whether the trial court
should have granted the motion to withdraw. State v. Morris, 7th Dist. Mahoning No. 13
MA 19, 2014-Ohio-882, ¶ 22.
{¶17} Beginning with prejudice to the state, the state conceded at oral argument
that it would not experience prejudice by appellant withdrawing his plea. Therefore, this
factor weighs in appellant’s favor.

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{¶18} Addressing the representation afforded to appellant by counsel, appellant
cites State v. Perry, 8th Dist. Cuyahoga No. 101141, 2015-Ohio-304. In Perry, the Eighth
District overruled Perry’s presentence motion to withdraw a guilty plea, in part, because
one of Perry’s defense attorneys “advised the court that all the sentencing possibilities
and possible defenses were discussed with Perry prior to him entering into his plea.” Id.
at ¶ 11. Additionally, when Perry informed his attorneys he wanted to withdraw his plea
and assert an affirmative defense, his attorneys explained to him why the affirmative
defense would not be successful. Id. Perry also stated he was “extremely” satisfied with
his attorneys’ representation. Id. at ¶ 8. Appellant argues here that because there is no
showing of his counsel’s actions and advice on the record like in Perry, his representation
was inadequate.
{¶19} The state counters that appellant’s trial counsel negotiated a favorable
plea agreement. Appellant faced the following potential prison terms on each count: 11
years for discharging a firearm on or near a prohibited premises pursuant to R.C.
2929.14(A)(1)(b), eight years for felonious assault pursuant to R.C. 2929.14(B)(2)(b), 36
months for having a weapon while under a disability pursuant to R.C. 2929.14(C)(3)(b),
an additional three years for the firearm specification pursuant to R.C. 2941.145(A)(1),
and an additional ten years for the repeat violent offender specification pursuant to R.C.
2929.14(B)(2)(b). If sentenced consecutively, appellant faced a total prison term of 35
years. But through plea negotiations, the state dismissed the felonious assault charge,
dismissed the repeat violent offender specification, and recommended a sentence of 10
years.
{¶20} Moreover, at his change of plea hearing, appellant stated that he was
“completely satisfied” with the representation and advice he received from his trial
counsel. (Plea Tr. 5). Based on the above, the representation afforded to appellant by
counsel was adequate and this factor weighs in the state’s favor.
{¶21} Addressing the extent of the Crim.R. 11 plea hearing, appellant argues it
was inadequate because the trial court did not explain the elements of the offenses the
state would have to prove, the trial court did not cite the Revised Code section appellant
was charged with violating, and the trial court did not inform appellant that he was
pleading guilty to a first-degree felony.

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{¶22} At the change of plea hearing, the state informed the trial court that
appellant was pleading guilty to discharging a firearm on or near a prohibited premises
which is a first-degree felony. The trial court informed appellant “improperly discharging
a firearm carries a maximum term of 11 years and with [sic] a maximum fine of $20,000.”
(Plea Tr. 8). The trial court informed appellant that he would not be sentenced beyond
the state’s recommendation of ten years. Appellant stated that he understood the
elements the state would have to prove if the matter went to trial.
{¶23} While the trial court did not specifically recite the elements of the offense,
the Eighth District has held that the failure to recite the elements of the offense during a
change of plea hearing does not constitute prejudicial error. State v. Turner, 8th Dist.
Cuyahoga No. 80317, 2002-Ohio-3774, ¶ 52. As to appellant’s argument that the trial
court did not recite the specific Revised Code sections of the offenses, not only are the
Revised Code sections for all offenses contained in the indictment, there is no indication
that appellant would not have pled guilty had the trial court recited the specific sections.
{¶24} The trial court advised appellant that by pleading guilty, appellant was
waiving his rights to: a jury trial, require the state to prove his guilt beyond a reasonable
doubt, cross-examine the state’s witnesses, subpoena witnesses on his behalf, and
remain silent. The trial court also informed appellant of the nature of the charges, the
maximum penalty involved, that appellant was not eligible for probation or the imposition
of community control, and the effect of the guilty plea. Based on the above, appellant
had a sufficient Crim.R. 11 hearing and this element weighs in the state’s favor.
{¶25} Addressing whether appellant understood the nature of the charges and
potential sentence, appellant argues that he did not fully understand the nature of the
charges because the trial court did not notify him of the Revised Code section for
discharging a firearm on or near a prohibited premises or the elements of said offense.
For reasons previously stated, the trial court was not required to inform appellant of the
elements of the offenses.
{¶26} The state recited at the beginning of the change of plea hearing that
appellant was charged with, among other things, discharging a weapon on or near a
prohibited premises. The state also informed the trial court that appellant agreed to plead
guilty to discharging a weapon on or near a prohibited premises. The trial court asked

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appellant if he understood the charge of discharging a weapon on or near a prohibited
premises, to which appellant responded yes. The trial court also informed appellant that
discharging a weapon on or near a prohibited premises was punishable by up to 11 years
of incarceration and appellant said he understood this sentence.
{¶27} While the specific Revised Code section for this charge was not stated at
the change of plea hearing, there is no indication that mentioning the Revised Code
section would have had any effect on appellant’s guilty plea. The record shows that
appellant knew the nature of the charge and that it was punishable by up to 11 years of
incarceration. Based on the above, appellant understood the charges and his potential
sentence and this element weighs in the state’s favor.
{¶28} Addressing the extent on the hearing on the motion to withdraw, appellant
makes two arguments. First, he argues the hearing was inadequate because his attorney
made no arguments on his behalf. Second, he argues that the trial court failed to inquire
fully as to the reasons why appellant wanted to withdraw his plea. At the hearing,
appellant stated he wanted to withdraw his plea “partly because I’m innocent.” (Withdraw
Tr. 5). He contends the trial court should have asked him what his other reason was for
wanting to withdraw his plea.
{¶29} As to appellant’s counsel not arguing on appellant’s behalf, the record
shows that counsel said very little at the hearing. But this does not affect whether the trial
court conducted a sufficient hearing on appellant’s motion. The trial court permitted both
appellant and the state to make arguments regarding appellant’s motion. Appellant was
able to explain his two reasons for wanting to withdraw his plea at the hearing: actual
innocence and he pled to a first-degree felony by surprise.
{¶30} As to the innocence claim, the state argued appellant was not innocent
because there was a video of appellant discharging a firearm on or near a prohibited
premises. The state also cited numerous jail house phone calls where appellant
supposedly admitted that “he’s in the wrong, he was being brash, he was being bold, he
wasn’t thinking straight.” (Withdraw Tr. 18). As to the surprise first-degree felony
argument, the trial court noted that the indictment stated discharging a firearm on or near
a prohibited premises is a first-degree felony.

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{¶31} As to appellant’s second argument that the trial court did not inquire into
additional reasons for appellant’s motion, the trial court concluded the hearing by asking
appellant if there was anything he wanted to add. Appellant responded “I’m innocent.
That’s it, Your Honor.” (Withdraw Tr. 19). Thus, the trial court gave appellant the
opportunity to make any other arguments before concluding the hearing. Based on the
above, appellant had an adequate hearing on his motion and this element weighs in the
state’s favor.
{¶32} Addressing whether the trial court gave full and fair consideration to the
motion, appellant only argues that the trial court did not fairly consider his motion.
Specifically, appellant takes issue with the trial court’s ruling that the state would be
prejudiced by withdrawing his plea. He argues that by holding the state has an interest
in preserving guilty pleas, this factor is essentially rendered meaningless.
{¶33} The trial court held that the state would experience prejudice by appellant
withdrawing his plea because the state halted its investigation and trial preparation, which
meant that it released its witnesses, and the state has an interest in preserving guilty
pleas. Thus, the state’s interest in preserving guilty pleas was only part of the showing
for the prejudice to the state factor. While the state conceded at oral argument that it
would not be prejudiced by appellant withdrawing his plea, the trial court’s ruling that the
state would experience prejudice was based, in part, on the state’s argument that it had
halted all trial preparation and released its witnesses. Additionally, the trial court’s
February 20, 2019 judgment entry shows that it engaged in a very detailed Fish analysis.
Based on the above, the trial court gave the motion full and fair consideration and this
factor weighs in the state’s favor.
{¶34} Addressing the timing of the motion, the trial court held and the state
concedes that appellant’s motion was timely. Therefore, this factor weighs in appellant’s
favor.
{¶35} Addressing the reasons for the motion, appellant appears to argue that
because he set forth specific reasons in his motion to withdraw his guilty plea, this factor
weighs in his favor. In support of his argument, appellant cites State v. Caballero, 10th
Dist. Franklin No. 15AP-1132, 2016-Ohio-5496. In Caballero, the Tenth District held that
because Caballero continually cited the same three specific reasons for wanting to

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withdraw his guilty plea, the factor of “specific reasons for withdrawal” was satisfied. Id.
at ¶ 21. Caballero is distinguishable because the Tenth District was considering “whether
the motion set forth specific reasons for the withdrawal[.]” Id. at ¶ 13. On the other hand,
this court is considering “the reasons for the motion” and makes no reference to
specificity.
{¶36} As previously stated, appellant argued at the hearing on his motion that he
was innocent and he claimed to not know that he was pleading guilty to a first-degree
felony. Appellant provided no evidence that he was innocent. A claim of innocence by
itself does not provide a reasonable basis for withdrawing a plea, otherwise withdrawal
would effectively become an automatic right. State v. Magby, 7th Dist. Mahoning No. 17
MA 0006, 2019-Ohio-877, ¶ 44 citing State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255,
880 N.E.2d 515 (11th Dist.). Appellant made no argument at the hearing that his plea
was driven by fear or panic.
{¶37} Appellant also argued at his hearing that he pled to a first-degree felony
by surprise. The basis of this argument is a printout of an online docket dated January 9,
2018 that indicates discharging a firearm on or near a prohibited premises is a third-
degree felony. Appellant attached this printout to his handwritten motion he submitted
pro se.
{¶38} The problem with appellant’s argument that he pled guilty to a first-degree
felony by surprise is that it is contradicted numerous times in the record. The indictment
states that discharging a firearm on or near a prohibited premises is a first-degree felony.
Appellant signed a written waiver of his speedy trial right and the indictment was attached
to this waiver. Appellant’s written guilty plea also indicates discharging a firearm on or
near a prohibited premises is a first-degree felony.
{¶39} Additionally, at the change of plea hearing, the prosecutor stated on the
record that discharging a firearm on or near a prohibited premises is a first-degree felony.
The trial court also advised appellant at the change of plea hearing that his potential
sentence for discharging a firearm on or near a prohibited premises was 11 years. This
is the maximum sentence for a first-degree felony. R.C. 2929.14(A)(1)(a). Based on the
above, the reasons for appellant’s motion are insufficient and this factor weighs in the
state’s favor.

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{¶40} Addressing whether appellant was actually innocent or had a complete
defense to the charges, at no point did appellant state with any specificity what facts
supported a defense or his claim of innocence. As previously stated, there appears to be
video which depicts appellant firing a gun outside of a bar. While the video is not part of
the current record, two photographs of the video were admitted into evidence by the state
at sentencing as Exhibits 3 and 4. Exhibit 3 depicts appellant outside of the bar and near
a road at night firing a gun. There is also a caption on Exhibit 3 which reads “First Shot
fired by Terrance McKinney.”
{¶41} Moreover, as previously stated, there also appear to be jailhouse phone
calls where appellant admitted responsibility for his actions. While the jailhouse phone
calls are not part of the record, the state’s post-hearing memorandum quotes numerous
passages from these phone calls. The trial court’s February 20, 2019 judgment entry
also cites numerous passages from these calls. In a phone call appellant made the same
day he entered his guilty plea, he stated:

Defendant: “They had me, even without the felonious assault and s* * *. .
. They had me dead to rights on weapons under disability. . . I was ready
to cop out and they came with the discharge of a firearm. . . I thought that
was a felony 3, but it’s a felony 1. . . That holds 11 years. . . I would’ve lost
that weapons under disability and discharge of a firearm. . . I would’ve lost
that hands down, because it goes hand in hand. . . I would’ve lost that
because I had a gun and shot a gun. . . That holds 11 itself. . . They
dropped the felonious assault knowing that they couldn’t prove it. . . They
gave me a higher felony cause they knew, and they dropped a gun spec. .
. When it’s all done, everything ran concurrent or will be. . . when I’m done
with my probation violation I’ll be done with the gun spec, after 6 mos. I’ll
be home. . . 2021 I’ll be done with probation violation time. . . But I will
have to do an additional six months.”

{¶42} Based on the above, there was evidence that appellant committed the
offense and subsequently admitted to committing the offense after pleading guilty.
Moreover, appellant did not put forth any specific evidence that he was innocent or had a

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defense to discharging a firearm on or near a prohibited premises. Therefore, this factor
weighs in the state’s favor.
{¶43} In total, two Fish factors, lack of prejudice to the state and timeliness of
the motion, weigh in appellant’s favor. With only these two factors and the insufficient
reasons for appellant’s motion, the trial court did not abuse its discretion when it denied
appellant’s motion to withdraw his guilty plea.
{¶44} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶45} For the reasons stated above, the trial court’s judgment is hereby affirmed.

Waite, P. J., concurs.
D’Apolito, J., concurs.

Case No. 19 MA 0042
[Cite as State v. McKinney, 2020-Ohio-4721.]

For the reasons stated in the Opinion herein, the proposed sole assignment of
error is overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be
waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.