State v. Small

[Cite as State v. Small, 2017-Ohio-110.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104813

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

KEITH SMALL
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603858-A

BEFORE: McCormack, P.J., Stewart, J., and Boyle, J.

RELEASED AND JOURNALIZED: January 12, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
1360 East 9th St., Suite 600
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Jonathan M. McDonald
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

{¶1} Defendant-appellant Keith Small appeals from his conviction following a

guilty plea. For the reasons that follow, we affirm.

{¶2} On February 26, 2016, Small was charged as follows: aggravated robbery

in violation of R.C. 2911.01(A)(3), a first-degree felony; felonious assault in violation of

R.C. 2903.11(A)(1), a second-degree felony; and theft in violation of R.C. 2913.02(A)(1),

a first-degree misdemeanor. The indictment stems from an incident wherein Small and a

codefendant, while apparently extremely intoxicated, tackled, dragged, robbed, and beat a

homeless gentleman to the point of unconsciousness.

{¶3} On June 13, 2016, Small withdrew his not guilty plea and pleaded guilty to

amended Count 2 — aggravated assault, a fourth-degree felony. In exchange for his

guilty plea, the state agreed to dismiss the remaining charges. The court ordered a

presentence investigation report and scheduled the matter for sentencing.

{¶4} Immediately prior to sentencing, Small advised his counsel that he wished

to withdraw his guilty plea, and counsel notified the court. The trial court held a hearing

on Small’s motion to withdraw his guilty plea and, after reviewing the plea transcript,

denied Small’s motion. The court then sentenced Small on the amended charge of

aggravated assault to one year of community control sanctions, contingent upon Small’s

eligibility for placement in the community based correctional facility and successful

completion of the program.
 {¶5} Small now appeals the trial court’s denial of his motion to withdraw his

guilty plea, claiming the court erred in doing so.

{¶6} Crim.R. 32.1 governs withdrawals of guilty pleas and provides as follows:

“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 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. The trial court must, therefore, hold a hearing in order to determine

whether there is a “reasonable and legitimate basis for the withdrawal of the plea.” Id.

{¶7} 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),

syllabus. The good faith, credibility, and weight of the movant’s assertions in support of

the motion are matters to be resolved by the trial court. State v. Smith, 49 Ohio St.2d

261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. “‘Unless 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).
 {¶8} 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 highly

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 reveals that the

court gave full and fair consideration to the plea withdrawal request. Peterseim at

paragraph three of the syllabus. 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. State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8, 9.

{¶9} Here, the record demonstrates that Small was represented by highly

competent counsel during the plea bargain. Small’s attorney successfully negotiated a

plea agreement that resulted in the dismissal of two of the charges contained in the

indictment — a first-degree felony and a first-degree misdemeanor — and an amendment

to one count that reduced the offense from a second-degree felony to a fourth-degree

felony. Additionally, Small confirmed during his plea hearing that he was satisfied with

the representation of his trial counsel. Finally, at the hearing on Small’s motion to

withdraw, the trial court emphasized that it found Small’s counsel to be highly competent.
 {¶10} Next, the record shows that Small was afforded a full Crim.R. 11 hearing

before he entered his plea and he understood the nature of the charges and the possible

penalties.

{¶11} Our review of the plea hearing reflects that the trial court engaged in a

thorough Crim.R. 11 colloquy, explaining to Small each of the constitutional rights he

would be waiving by pleading guilty. The court repeatedly asked Small if he understood

the court’s explanations, and each time, Small indicated that he understood. The court

also described the offense and advised Small about the possible penalties, including the

maximum sentence, and the consequences of his plea. Small advised the court that no

threats or promises had been made, including what sentence would be imposed. At no

time did Small indicate to the trial court that he did not understand the matters of which

he was advised. Nor was there any evidence of confusion, hesitation, or protestations of

innocence at the hearing.

{¶12} Moreover, defense counsel and the prosecutor advised the court that it had

complied with Crim.R. 11 requirements. A trial court’s adherence to Crim.R. 11, raises

a presumption that a plea is voluntarily entered. State v. Elliott, 8th Dist. Cuyahoga No.

103472, 2016-Ohio-2637, ¶ 25; State v. Spence, 8th Dist. Cuyahoga No. 54880, 1989

Ohio App. LEXIS 167, 3 (Jan. 19, 1989). Thereafter, the trial court found that Small’s

plea was knowingly, intelligently, and voluntarily made.
 {¶13} A review of the record also shows that the trial court held a complete and

impartial hearing on Small’s motion to withdraw his plea. Additionally, the record

demonstrates the court gave full and fair consideration to the plea withdrawal request.

{¶14} The scope of a hearing on a defendant’s motion to withdraw a plea should

reflect the substantive merit of the motion; bold assertions without evidentiary support do

not merit the scrutiny that substantiated allegations would merit. State v. Hall, 8th Dist.

Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602, 2-3 (Apr. 27, 1989). The scope of

the hearing is within the sound discretion of the trial court. State v. Bosby, 8th Dist.

Cuyahoga No. 94466, 2011-Ohio-599, ¶ 10.

{¶15} Here, Small surprised defense counsel the morning of his sentencing when

he advised his counsel that he wished to withdraw his plea. When the court inquired of

Small’s basis for withdrawing the plea, Small stated, “I did not do it and when he offered

the plea deal my mom was out there sick. I was like, I need to go out there and see her

and I don’t know what I was thinking about pleading guilty to something that I didn’t do.”

{¶16} Thereafter, the court discussed Small’s recent declaration, reminding Small

of the plea colloquy, in which he expressed that he understood that by entering the plea,

he admitted to the truth of the facts and to his guilt. The court also reminded Small that

defense counsel agreed that the court complied with Crim.R. 11 in notifying Small of the

rights that he is waiving by entering such plea. The court then heard from the state, who

was equally surprised by Small’s request. When the court inquired of defense counsel

whether counsel was making the motion or “simply referring to what your client wishes to
do, and if you are making this motion, what are the grounds?” Defense counsel

responded that he is making the motion based upon his client’s request, stating, “I just

found out about it when I saw Mr. Small this morning. The grounds that he’s relating to

me is he pled * * * guilty but did not do this. That’s what he’s telling me. Again, this

is the first I’ve heard about it this morning as well.” At this point, the court advised the

parties that it would order the transcript of the plea hearing in order to ensure that Small’s

rights were protected and that Small did, in fact, make a knowing, voluntary, and

intelligent plea.

{¶17} After the court reviewed the transcript from Small’s plea hearing, the parties

reconvened on the motion to withdraw. The court heard from defense counsel, who

indicated that the basis of his motion was “Mr. Small’s request to have the motion made,

his position that he * * * wasn’t involved in this incident * * * that was the basis of his

plea.” Counsel then conceded that he “didn’t see any issues with regard to [the plea],”

but that he was asking the court “to consider the motion based on Mr. Small’s request.”

The court also heard from the state, which provided that Small’s plea was knowingly,

voluntarily, and intelligently made, and asked the court to deny Small’s motion.

{¶18} Thereafter, the court noted that it reviewed the transcript of the plea hearing

and considered the record. It stated that Small was represented by highly competent

counsel and, in agreeing with defense counsel, found no errors in the plea hearing. The

court noted that Small indicated he “understood what was happening” and he was

satisfied with counsel’s representation. The court then addressed Small’s new
proclamation of innocence, finding it was a mere change of heart, and therefore, it is an

insufficient basis for vacating his plea.

{¶19} When presented with a claim of innocence “‘the trial judge must determine

whether the claim is anything more than the defendant’s change of heart about the plea

agreement.’” State v. Hoyle, 8th Dist. Cuyahoga No. 102791, 2016-Ohio-586, ¶ 31,

quoting State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 27. It is

well established that a mere change of heart is an insufficient basis for withdrawing a

guilty plea. State v. Elliott, 8th Dist. Cuyahoga No. 103472, 2016-Ohio-2637, ¶ 30;

State v. Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶ 23; State v. Barrett,

8th Dist. Cuyahoga No. 100047, 2014-Ohio-1234, ¶ 9. Additionally, a defendant’s

claim of innocence alone is insufficient grounds for vacating a plea that was knowingly,

voluntarily, and intelligently entered. Elliott; State v. Bloom, 8th Dist. Cuyahoga No.

97535, 2012-Ohio-3805, ¶ 13.

{¶20} In this case, the record shows that Small was represented by highly

competent counsel, he was given a full Crim.R. 11 hearing before he entered a plea, he

was given a complete and impartial hearing on the motion to withdraw, and the court

gave full and fair consideration to the plea withdrawal request. Moreover, there is no

evidence that the trial court acted unjustly or unfairly. Rather, the record supports the

trial court’s determination that Small’s new proclamation of innocence is merely a change

of heart, where perhaps the matter regarding visiting with his sick mother was no longer a
pressing issue. We therefore find that the trial court acted within its discretion when it

denied Small’s motion to withdraw his guilty plea.

{¶21} Small’s sole assignment of error is overruled.

{¶22} Judgment affirmed.

It is ordered that appellee recover of 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. 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.

________________________________________
TIM McCORMACK, PRESIDING JUDGE

MELODY J. STEWART, J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY