[Cite as State v. Coleman, 2017-Ohio-2826.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case Nos. 16CA3555
: 16CA3556
Plaintiff-Appellee, : 16CA3557
: 16CA3558
vs. :
: DECISION AND JUDGMENT
WALLACE L. COLEMAN, : ENTRY
:
Defendant-Appellant. : Released: 05/11/17
_____________________________________________________________
APPEARANCES:
Angela Miller, Jupiter, Florida, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C.
Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶ 1} This is an appeal from a Ross County Court of Common Pleas
judgment entry sentencing Appellant, Wallace Coleman, after he entered
pleas of guilt to one count of bribery, a third degree felony in violation of
R.C. 2921.02, one count of complicity to bribery, a third degree felony in
violation of R.C. 2923.03, one count of kidnapping, a first degree felony in
violation of R.C. 2905.01, one count of felonious assault, a second degree
felony in violation of R.C. 2903.12, and one count of possession of cocaine,
a fifth degree felony in violation of R.C. 2925.11. On appeal, Appellant
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 2
contends that 1) his plea was obtained in violation of the Fifth and
Fourteenth Amendments to the United States Constitution, Article I, Section
10 of the Ohio Constitution and Crim.R. 11(C); and 2) the trial court abused
its discretion and committed reversible error in overruling his motion to
withdraw his guilty pleas.
{¶ 2} Because we conclude that the trial court did not err in accepting
Appellant’s guilty pleas, which were knowingly, voluntarily and
intelligently given, his first assignment of error is overruled. Because we
conclude that the trial court did not abuse its discretion in denying
Appellant’s motion to withdraw his guilty pleas, his second assignment of
error is overruled. Accordingly, having found no merit in the assignments of
error raised by Appellant, the judgment of the trial court is affirmed.
FACTS
{¶ 3} On August 18, 2015, Appellant, Wallace Coleman, was charged
with one count of possession of cocaine, which stemmed from the execution
of a search warrant at his residence. On August 28, 2015, Appellant was
charged with one count of kidnapping and one count of felonious assault.1
After a review of the record, the circumstances that led to the filing of the
charges are unclear; however, it appears the victim of the crimes was an
1
A supersedeas indictment was later filed as to both of these charges, which added repeat violent offender
specifications to each charge.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 3
adult male, Arthur Hamlin, Jr. Appellant was later charged with one count
of bribery on November 20, 2015 and then was charged with complicity to
bribery on December 11, 2015. It appears the latter two charges involved
calls made by Appellant from a recorded telephone line in the jail to two
different individuals. All of these charges were brought by way of secret
indictment. Appellant pleaded not guilty to the charges at each of his
arraignments and the matter proceeded to trial, though they were not
consolidated at the trial court level.
{¶ 4} On January 4, 2016, a change of plea hearing was held in which
Appellant entered pleas of guilt to all of the charges. Of note, the State did
not make a presentation of evidence regarding the basis for the charges and
the trial court did not make any factual determinations before accepting
Appellant’s guilty pleas. As such, this Court has a limited understanding of
the facts that form the basis of the charges to which Appellant pleaded
guilty. Appellant’s counsel subsequently withdrew from representation and
on March 28, 2016, with the aid of newly appointed counsel, Appellant filed
a motion to withdraw his guilty pleas. A hearing was held on Appellant’s
motion on April 21, 2016, at which Appellant was present and testified
regarding his reasons for seeking withdrawal of his pleas. At the conclusion
of the hearing, the trial court found Appellant’s testimony not credible and
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 4
that Appellant's motion was based upon nothing more than a case of
“buyer’s remorse.” The trial court then denied the motion and the matter
proceeded to sentencing on May 6, 2016. It is from the final sentencing
order that Appellant now brings his timely appeal, setting forth two
assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. APPELLANT’S GUILTY PLEA WAS OBTAINED IN VIOLATION
OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF
THE OHIO CONSTITUTION AND CRIM.R. 11(C).
II. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR IN OVERRULING
COLEMAN’S MOTION TO WITHDRAW HIS GUILTY PLEA.”
ASSIGNMENT OF ERROR I
{¶ 5} In his first assignment of error, Appellant contends that his
guilty plea was obtained in violation of the Fifth and Fourteenth
Amendments to the United States and Ohio Constitutions and Crim.R.
11(C). Appellant specifically argues that the trial court did not adequately
advise him of his right to compulsory process to obtain witnesses in his
favor. The State contends that the trial court's advisement regarding the
waiver of his right to compulsory process was adequate, and also notes that
Appellant signed a written plea agreement that contained a more detailed
advisement. The State further notes that when questioned by the trial court
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 5
as to his understanding of the written agreement and the oral advisement,
Appellant indicated he understood.
{¶ 6} The ultimate inquiry when reviewing a trial court's acceptance
of a guilty plea is whether the defendant entered the plea in a knowing,
intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 7; citing State v. Engle, 74 Ohio St.3d
525, 527, 660 N.E.2d 450 (1996). A defendant enters a plea in a knowing,
intelligent, and voluntary manner when the trial court fully advises the
defendant of all the constitutional and procedural protections set forth in
Crim.R. 11(C) that a guilty plea waives. See State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; citing Engle at 527; State v.
Eckler, 4th Dist. Adams No. 09CA878, 2009-Ohio-7064, ¶ 48. Thus, when
a court reviews a trial court's acceptance of a guilty plea, it must
independently review the record to ensure that the trial court followed the
dictates of Crim.R. 11(C). See State v. Kelley, 57 Ohio St.3d 127, 128, 566
N.E.2d 658 (1991) (“When a trial court or appellate court is reviewing a plea
submitted by a defendant, its focus should be on whether the dictates of
Crim.R. 11(C) have been followed.”); Eckler at ¶ 48 (noting that standard of
review is de novo); State v. Hamilton, 4th Dist. Hocking No. 05CA4, 2005-
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 6
Ohio-5450, ¶ 9; see also State v. Gilmore, 8th Dist. Cuyahoga Nos. 92106,
92107, 92108, and 92109, 2009-Ohio-4230, ¶ 12.
{¶ 7} Crim.R. 11(C)(2)(a)-(c) sets forth the process a trial court must
follow before accepting a guilty plea. The rule prohibits a trial court from
accepting a guilty plea unless the court personally addresses the defendant
and (1) determines “that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing
hearing”; (2) informs “the defendant of and determin[es] that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence”; and
(3) informs “the defendant and determin[es] that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant's favor, and to require the state to prove the
defendant's guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 8} When a trial court engages in a plea colloquy with the
defendant, it must strictly comply with Crim.R. 11(C)(2)(c), which sets forth
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 7
the constitutional rights a guilty plea waives. Thus, the trial court must
explain to the defendant, either literally or in a reasonably intelligible
manner, that a guilty plea waives (1) the right to a jury trial, (2) the right to
confront one's accusers, (3) the right to compulsory process to obtain
witnesses, (4) the right to require the state to prove guilt beyond a reasonable
doubt, and (5) the privilege against compulsory self-incrimination. Veney at
syllabus and ¶¶ 18, 27 (stating that trial court must literally comply with
Crim.R. 11(C)(2)(c), but its failure to do so will not invalidate a plea when
the trial court adequately conveys the information to the defendant in a
reasonably intelligible manner). Failure to do so renders the plea invalid. Id.
at syllabus.
{¶ 9} “The best way to ensure that pleas are entered knowingly and
voluntarily is to simply follow the requirements of Crim.R. 11 when
deciding whether to accept a plea * * *.” Clark at ¶ 29; State v. Ballard, 66
Ohio St.2d 473, 479, 423 N.E.2d 115 (1981) (stating that “the best method
of informing a defendant of his constitutional rights is to use the language
contained in Crim.R. 11(C), stopping after each right and asking the
defendant whether he understands the right and knows that he is waiving it
by pleading guilty”). Thus, “ ‘[l]iteral compliance with Crim.R. 11, in all
respects, remains preferable to inexact plea hearing recitations.’ ” Clark at
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 8
¶ 29; quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814
N.E.2d 51, ¶ 19, fn. 2. However, “a rote recitation of Crim.R. 11(C) is not
required, and failure to use the exact language of the rule is not fatal to the
plea.” Ballard at 480. Instead, the trial court need only “explain[ ] or refer[
]” to the Crim.R. 11(C) protections “in a manner reasonably intelligible to
that defendant.” Id.; see also Veney at ¶ 27 (stating that “a trial court can still
convey the requisite information on constitutional rights to the defendant
even when the court does not provide a word-for-word recitation of the
criminal rule, so long as the trial court actually explains the rights to the
defendant”). Thus, a reviewing court should not invalidate a plea merely
because a trial court did not engage in a “formalistic litany of constitutional
rights.” Ballard at 480.
{¶ 10} A trial court “may not relieve itself of the requirement of
Crim.R. 11(C) by exacting comments or answers by defense counsel as to
the defendant's knowledge of his rights.” Id. at 481. However, a reviewing
court may consider “such a colloquy * * * in the totality of the matter.” Id.
Thus, if the record shows that the trial court ascertained that defense counsel
advised the defendant of his rights, a reviewing court may consider this as a
factor in determining whether the totality of the circumstances supports the
trial court's finding that the defendant knowingly, intelligently, and
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 9
voluntarily entered the plea. Id. (noting that “the record shows that the trial
judge initially ascertained from the defense counsel that the defendant had
been advised of his rights”); State v. McKenna, 11th Dist. Trumbull No.
2009-T-0034, 2009-Ohio-6154, ¶ 67; State v. DeArmond, 108 Ohio App.3d
239, 245, 670 N.E.2d 531 (1995); quoting Riggins v. McMackin (C.A.6,
1991), 935 F.2d 790, 795 (construing Ohio Crim.R. 11), and citing North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, fn.3 (1970) (stating that
inquiry into whether the trial court properly advised a defendant of the
constitutional rights “is not limited solely to the information provided to the
defendant by the trial court. We examine the totality of the circumstances
surrounding the plea. ‘A defendant may learn of information not relayed to
him by the trial court from other sources, such as his attorney’ ”); State v.
Diaz, 9th Dist. Lorain No. 92CA5499, 1993 WL 186716, (June 2, 1993).
{¶ 11} In State v. Saaty, 10th Dist. Franklin No. 96APA06-777, 1997
WL 101654 (Mar. 4, 1997) the court applied this principle and concluded
that although a defense counsel's representation that counsel advised the
defendant of his rights may constitute additional evidence that the court
explained the right in a manner reasonably intelligible to the defendant, it
cannot substitute for the court's compliance with the rule when the court
utterly fails to mention one of the constitutional rights. The court stated:
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 10
“ * * * [W]hile defense counsel advised the trial court he read
aloud the plea forms to defendant and in his opinion defendant
understood them, counsel's actions cannot excuse the trial
court's failure to specifically inform defendant he was waiving
his right to a jury trial. In response to questioning from the trial
court, defense counsel in Ballard stated he had explained to
defendant his constitutional rights, and he believed defendant
understood them. The Ballard court considered defense
counsel's representations as additional proof that the trial court
had meaningfully informed defendant of his right to a jury trial,
stating, ‘[a]lthough the trial court may not relieve itself of the
requirement of Crim.R. 11(C) by exacting comments or
answers by defense counsel as to the defendant's knowledge of
his rights, such a colloquy may be looked to in the totality of
the matter.’ Ballard, supra, at 481.
Thus, where the trial court makes only an indirect or ‘glancing’
reference to a constitutional right, a defense counsel's
representation that he informed a defendant of his constitutional
rights can be ‘looked to in the totality of the matter’ in
determining whether the trial court explained or referred to a
constitutional right in a manner reasonably intelligible to that
defendant. However, where the trial court has completely
omitted mentioning a right specified in Boykin and Ballard,
defendant's counsel's representation is not sufficient;
defendant's plea is invalid and must be vacated. See [State v.]
Sturm [66 Ohio St.2d 483, 422 N.E.2d 853 (1981)]. Here, the
trial court did not refer to the right to a jury trial in any manner.
As Ballard dictates, the trial court's exacting comments or
answers from defendant's attorney did not relieve it from the
mandate of Crim.R. 11(C). Id.”2
2
In State v. Strawther, 56 Ohio St.2d 298, 301, 383 N.E.2d 900, the Supreme Court of Ohio noted that "the
right to compulsory process is not declared by Boykin to be a constitutional right requiring waiver to appear
upon the record." However, three years later, the Supreme Court of Ohio, in State v. Ballard, supra, at FN.
4 noted that although Boykin did not mention the right of a defendant to have compulsory process of
witnesses to testify on his behalf, because the right is guaranteed by the Sixth Amendment to the United
States Constitution and is like the other rights mentioned in Boykin, and therefore held "that the defendant
must also be informed of his right to compulsory process." Thus, Strawther has been expanded to include
the right to compulsory process.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 11
{¶ 12} With the foregoing principles in mind, we turn to Appellant's
specific argument that the trial court failed to adequately advise him of his
constitutional right to compulsory process. In the case at bar, the trial court
engaged in the following colloquy with Appellant regarding the waiver of
his constitutional right to compulsory process:
"THE COURT: Alright. I've been given a two page plea
agreements [sic] in each of these case [sic] that appears to have
been signed by you and your attorney. Is that in fact your
signature?
COLEMAN: Yes sir.
THE COURT: Did you read these agreements?
COLEMAN: Yes sir.
THE COURT: Did you understand them?
COLEMAN: Yes sir.
THE COURT: Are you satisfied with the advice and counsel of
your attorney?
COLEMAN: Yes sir.
***
THE COURT: Do you understand that you have the right to
compulsory process?
COLEMAN: Yes sir.
***
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 12
THE COURT: Do you have any questions for me before we
proceed?
COLEMAN: No sir."
The record further reflects that each written plea agreement Appellant signed
stated as follows with the respect to Appellant's right to compulsory process:
"I understand by pleading guilty I give up my right to a jury
trial where I could see and have my attorney question witnesses
against me, and where I could use the power of the Court to call
witnesses to testify for me. * * *"
Thus, it appears the trial court orally advised Appellant he was waiving his
right to "compulsory process," but did not further state "for obtaining
witnesses in the defendant's favor." Additionally, the written plea agreement
utilizes the phrase "power of the Court," but does not use the phrase
"compulsory process" or "subpoena."
{¶ 13} This Court has recently considered the adequacy of a trial
court's explanation of the defendant's right to compulsory process in State v.
McDaniel, 4th Dist. Vinton No. 09CA677, 2010-Ohio-5215, and also State
v. Pigge, 4th Dist. Ross No. 09CA3136, 2010-Ohio-6541. In McDaniel, the
trial court did not use the phrase "compulsory process" but rather explained
to the defendant as follows with regard to his right to compulsory process:
“you're waiving your right to bring in your own witnesses to subpoena those
witnesses if necessary, to come in as a part of your defense. Do you
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 13
understand you are waiving that right?” Id. at ¶ 16. McDaniel argued that
the trial court's explanation “did not sufficiently inform him that he could
compel witnesses to testify.” Id. at ¶ 17. We rejected McDaniel’s argument
and noted that other Ohio courts have found similar statements sufficient to
explain a defendant's right to compulsory process. Id.; citing State v. Ward,
2nd Dist. Montgomery No. 21044, 2006-Ohio-832, ¶ 12 (court's statement
that the defendant was giving up his right to have his own witnesses come
and testify was “adequate, if less than ideal” when informing him of
compulsory process right); State v. Anderson , 108 Ohio App.3d 5, 11-12,
669 N.E.2d 865 (1995) (finding that “[y]ou are giving up your right to call
witnesses on your own behalf” informed the defendant of compulsory
process right in a reasonably intelligible manner); State v. Thomas, 10th
Dist. Franklin No. 04AP-866, 2005-Ohio-2389, ¶ 9 (finding that “right to
have your witnesses, should you have any, subpoenaed to the courtroom”
informed the defendant of compulsory process right in a reasonably
intelligible manner).
{¶ 14} In Pigge, the trial court orally advised the appellant as follows
regarding the waiver of his right to compulsory process:
"The Court: You also have the right to compulsory process.
That means you have the right to have subpoena's [sic] issued
for any witness that you want to appear on your behalf in court.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 14
B[y] pleading guilty you are giving up that right. Do you
understand that?" Pigge at ¶ 7.
The trial court then asked the appellant if he had reviewed and understood
the guilty plea petition, which stated that he had "the right to use the power
and process of the Court to compel the production of any evidence,
including the attendance of any witnesses in [his] favor." Id. at ¶ 8.
{¶ 15} Thus, like the case sub judice, the trial court in Pigge utilized
the phrase "compulsory process," but did not further state the exact wording
contained in Crim.R. 11 (C)(2)(c) "for obtaining witnesses in the defendant's
favor." Nonetheless, we found the language used in Pigge, during the oral
advisement as well as the written plea form, adequately advised the
appellant of the waiver of his right to compulsory process in a reasonably
intelligent manner, especially where the trial court questioned the appellant
as to his understanding and he claimed he understood.3 Id. at ¶¶ 22, 24-25.
More specifically, we found that the trial court's use of the phrase
"compulsory process" constituted both literal and strict compliance with
Crim.R. 11, and that the use of that phrase "mirrors the language used in
Crim.R. 11.” Id. at ¶ 22; quoting State v. Senich, 8th Dist. Cuyahoga No.
82581, 2003-Ohio-5082; citing State v. Strawther, supra (stating that the use
3
In Pigge, we noted the appellant was mentally impaired but nevertheless found the advisement to be
satisfactory. There is no such element present sub judice.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 15
of the term "compulsory process" was sufficient to explain the right.). We
essentially reasoned that such reference was enough, and that the trial court
went a "step further" by explaining the right in a manner reasonably
intelligible to the defendant. Id. at ¶ 23.
{¶ 16} Prior to reaching our decision in Pigge, we noted our prior
observation in McDaniel that:
"We further observed that some Ohio courts 'have required the
trial court to specifically inform the defendant of the power to
compel the attendance of witnesses.' Id. at ¶ 18, citing State v.
Gardner, Lorain App. No. 08CA009520, 2009-Ohio-6505, at
¶ 9 (court failed to reasonably apprise defendant of compulsory
process right because it did not inform him that he could use the
court's subpoena power to compel witnesses' attendance); State
v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, at ¶ 17
(stating that trial court 'clearly informed' defendant of
compulsory process right by stating that defendant had a right
to subpoena witnesses); State v. Wilson, Cuyahoga App. No.
82770, 2004-Ohio-499, at ¶ 16 ('The trial court must inform a
defendant that it has the power to force, compel, subpoena, or
otherwise cause a witness to appear and testify on the
defendant's behalf. Otherwise, the logical import of the court's
notice is that the defendant could present such witnesses as he
could only secure through his own efforts.') (emphasis sic); see,
also, State v. Rosenberg, Cuyahoga App. No. 84457, 2005-
Ohio-101, at ¶ 14 (stating that 'strict compliance with Crim.R.
11(C) requires the trial court to inform the defendant that
witnesses could be "forced," "subpoenaed," "compelled,"
"summoned," or "required" to appear' and that '[m]erely
advising a defendant that he has "the right to bring in witnesses
to this courtroom to testify for your defense' is insufficient to
apprise a defendant of this constitutional right to compulsory
process" '); State v. Cummings, Cuyahoga App. No. 83759,
2004-Ohio-4470 (holding that informing defendant he had a
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 16
right to 'call witnesses' did not sufficiently advise him of
compulsory process right)." Pigge at ¶ 20.
{¶ 17} Here, however, we conclude that the trial court's oral
advisement during the plea colloquy that Appellant was waiving his right to
"compulsory process," coupled with the fact that Appellant signed, with the
benefit of counsel, a written plea agreement which further stated "I
understand by pleading guilty I give up my right to a jury trial where I could
see and have my attorney question witnesses against me, and where I could
use the power of the Court to call witnesses to testify for me. * * *[,]"
adequately advised Appellant he was waiving his right to compulsory
process for obtaining witnesses in his favor. Pigge at ¶ 25 ("the plea petition
may be used as additional evidence that the defendant understood what the
court meant by the terms 'compulsory process' and 'subpoena.' "); citing
Ballard, supra. In our view, the trial court's use of the phrase in the plea
agreement "power of the Court to call witnesses" more clearly conveys the
meaning of "compulsory process" than the use of the word "subpoena" to a
layperson.
{¶ 18} Further as set forth above, when determining whether a trial
court strictly complied with Crim.R. 11 with regard to constitutional
advisements, a reviewing court must examine the totality of the
circumstances surrounding the plea, and is not limited to the information
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 17
provided by the trial court during the oral colloquy. Pigge at ¶ 17. This
standard was recently reaffirmed by the Supreme Court of Ohio in State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 43
("where a trial court engages in a full Crim.R. 11 plea colloquy with the
defendant and addresses all of the constitutional rights waived by the plea, a
'reviewing court should be permitted to consider additional record evidence
to reconcile any alleged ambiguity [in the colloquy].' "); citing State v.
Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 24.
{¶ 19} Moreover, and similar to the facts before us in Pigge,
Appellant, when questioned by the trial court as to whether he had read and
understood the plea agreement he had signed, advised he did. Appellant
again advised the trial court he understood the oral plea colloquy that
occurred thereafter. Here, the trial court literally complied with Crim.R. 11
by using the exact phrase "compulsory process" and also provided a
reasonably intelligent explanation of that term through the written plea
agreement, which explained the "power of the Court to call witnesses." As
reasoned in Pigge, " 'if the defendant receives the proper information, then [a
court] can ordinarily assume that [the defendant] understands that
information.' " Pigge at ¶ 24; quoting State v. Carter, 60 Ohio St.2d 34, 38,
396 N.E.2d 757. Further, as we also reasoned in Pigge, if Appellant did not
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 18
understand what the court meant by use of the term "compulsory process" or
"power of the Court," he should have advised the trial court when asked.
Finally, we note that in Pigge, we reasoned that "allowing a defendant to
state in open court that he understood a Crim.R. 11(C) right, but then argue
on appeal that he did not, would contravene the general principle that guilty
pleas should be final." Pigge at ¶ 33; citing Ballard at 479.
{¶ 20} Thus, in light of the foregoing and considering the totality of
the circumstances, we find no error in the trial court's acceptance of
Appellant's guilty plea, and find that Appellant voluntarily, knowingly and
intelligently pleaded guilty to the offenses of which he was charged.
Accordingly, Appellant's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶ 21} Appellant contends in his second assignment of error that the
trial court committed reversible error in overruling his motion to withdraw
his guilty plea. In particular, he argues that he received ineffective
assistance of counsel prior to entering the plea, felt pressured to plead guilty
rather than take his case to trial, and is actually innocent of the charges. The
State contends that Appellant has failed to prove his counsel provided
deficient representation, and notes that the court conducted a lengthy
colloquy with Appellant before accepting his guilty pleas. It is the State’s
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 19
position that Appellant’s desire to withdraw his guilty pleas is nothing more
than a change of heart.
{¶ 22} Initially, we note that trial courts possess discretion when
deciding whether to grant or to deny a presentence motion to withdraw a
guilty plea. E.g., State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),
paragraph two of the syllabus. Thus, absent an abuse of discretion, appellate
courts will not disturb a trial court's ruling concerning a motion to withdraw
a guilty plea. Id. at 527. “ ‘A trial court abuses its discretion when it makes
a decision that is unreasonable, unconscionable, or arbitrary.’ ” State v.
Keenan, 143 Ohio St.3d 397, 38 N.E.3d 870, 2015-Ohio-2484, 38 N.E.3d
870, ¶ 7; quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which a
trial court did not engage in a “ ‘sound reasoning process.’ ” State v. Morris,
132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14; quoting AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). Moreover, “[a]buse-of-discretion
review is deferential and does not permit an appellate court to simply
substitute its judgment for that of the trial court.” Darmond at ¶ 34.
{¶ 23} 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
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 20
manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.” Thus,
Crim.R. 32.1 permits a defendant to file a motion to withdraw a guilty plea
before sentence is imposed. “ ‘[A] presentence motion to withdraw a guilty
plea should be freely and liberally granted.’ ” State v. Ketterer, 126 Ohio
St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 57; quoting State v. Xie at 527.
{¶ 24} While trial courts should “freely and liberally” grant a
presentence motion to withdraw a guilty plea, a defendant does not “have an
absolute right to withdraw a guilty plea prior to sentencing.” State v. Xie at
527; accord State v. Ketterer at ¶ 57; State v. Spivey, 81 Ohio St.3d 405,
415, 692 N.E.2d 151 (1998); State v. Wolfson, 4th Dist. Lawrence No.
02CA28, 2003-Ohio-4440, ¶ 14. Instead, “[a] trial court must conduct a
hearing to determine whether there is a reasonable and legitimate basis for
the withdrawal of the plea.” Xie at paragraph one of the syllabus; accord
State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009-Ohio-1577,
¶ 10, superseded by statute on other grounds as stated in State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. While a trial court
possesses discretion to determine whether to grant or to deny a presentence
motion to withdraw a guilty plea, it does not have discretion to determine if
a hearing is required. See Wolfson at ¶ 15. Here, the trial court held a
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 21
hearing and Appellant raises no argument with respect to the provision of
the hearing.
{¶ 25} We have previously set forth a list of factors that we consider
when determining whether a trial court abused its discretion by denying a
presentence motion to withdraw a plea: “ ‘(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.’ ” State v. Campbell, 4th Dist. Athens
No. 08CA31, 2009-Ohio-4992, ¶ 7; quoting State v. McNeil, 146 Ohio
App.3d 173, 176, 765 N.E.2d 884 (1st Dist.2001). 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.’ ” Id.; quoting McNeil at 176. However, 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. Id.; citing State v.
Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 22
{¶ 26} Further, with respect to Appellant’s ineffective assistance of
counsel claim raised within this assignment of error, we note that criminal
defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90
S.Ct. 1441, (1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-
Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of
counsel, a criminal defendant must show (1) that his counsel's performance
was deficient, and (2) that the deficient performance prejudiced the defense
and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998).
In addition, in Xie, the Ohio Supreme Court stated as follows at 524:
“The Strickland test was applied to guilty pleas in Hill v.
Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203.
‘First, the defendant must show that counsel's performance was
deficient.’ Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80
L.Ed.2d at 693; Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88
L.Ed.2d at 209. Second, ‘the defendant must show that there is
a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty * * *.’ Hill, 474 U.S. at 59, 106 S.Ct. at
370, 88 L.Ed.2d at 210; see Strickland, 466 U.S. at 687, 104
S.Ct. at 2064, 80 L.Ed.2d at 693.”
{¶ 27} “When considering whether trial counsel's representation
amounts to deficient performance, ‘a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 23
professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.
13CA33, 13CA36, 2014-Ohio-4966, ¶ 23; quoting Strickland at 689. “Thus,
‘the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.’ ” Id.; quoting Strickland at 689. “ ‘A properly licensed attorney is
presumed to execute his duties in an ethical and competent manner.’ ” Id.;
quoting State v. Taylor, 4th Dist. Washington No. 07CA1, 2008-Ohio-482,
¶ 10. “Therefore, a defendant bears the burden to show ineffectiveness by
demonstrating that counsel's errors were so serious that he or she failed to
function as the counsel guaranteed by the Sixth Amendment.” Id.
{¶ 28} We first address Appellant’s claim of ineffective assistance of
counsel with respect to his decision to enter pleas of guilt to all five charges.
Appellant contends that but for counsel’s advice, he would not have entered
the guilty pleas and would have taken his cases to trial. He argues that he
received ineffective assistance of counsel in that he felt pressured by counsel
to enter guilty pleas, his attorney failed to thoroughly interview important
witnesses, and disregarded evidence that would show his innocence.
Appellant argues that instead of preparing a defense, his attorney pressured
him into “accepting an unappealing plea by informing him he would get
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 24
thirty-five years in prison if he did not accept the state’s offer quickly and
plead guilty to all charges.”
{¶ 29} A review of the record indicates that Appellant’s trial counsel
withdrew from the case just after Appellant entered pleas of guilty.
Appellant thereafter, with benefit of new counsel, filed a motion to withdraw
his guilty pleas. Appellant was afforded a full hearing on his motion where
he was permitted to testify regarding his reasons for seeking to withdraw his
pleas. Although Appellant claims that his trial counsel pressured him into
pleading guilty, the transcript from the hearing indicates that Appellant
conceded as follows on cross examination:
“MARKS: Now when Chase [Appellant’s trial counsel] had
told you that if you didn’t take the plea for the fourteen years
you could get up to thirty-five, that was actually a possible
sentence that you could have received based upon crimes you
were charged with, correct?
COLEMAN: Yes, sir.
MARKS: So he didn’t inflate the numbers or anything like to
you to be dramatic and to make you change your plea?
COLEMAN: He basically said take this fourteen or you can go
to trial and that (inaudible) and get fourteen [sic], so I would
advise you to take this fourteen years, he kept pressuring me to
take it, and he had came over to the jail and talk to me and then
came back to the court and they let me get a phone call, my
mother, let her know what was going on…and just pressure.
MARKS: So you did talk to your mother before you entered.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 25
COLEMAN: Yes.”
Thus, the record reflects by Appellant’s own admission that his trial counsel
simply advised him of the alternative if he did not plead guilty. Further,
Appellant was permitted to call and consult with his mother before deciding
whether to change his plea. We have no doubt Appellant was under
pressure. However, there is nothing before us that indicates Appellant’s
counsel pressured him into entering a plea. Appellant’s counsel would have
been remiss not to warn Appellant of the potential consequences if he chose
not plead guilty, with respect to length of the possible sentence.
{¶ 30} We next consider Appellant’s argument that his trial counsel
failed to thoroughly interview important witnesses and disregarded evidence
that would show his innocence. In particular, Appellant argues that an
individual by the name of Laken Woods would have testified Appellant was
with her on the evening in question and was not involved in the crimes
against the victim, Hamlin. However, we find this argument disingenuous
as the record reflects that Appellant initially made this argument at the
hearing, but then later admitted he was present and part of the events that
occurred on the night of the kidnapping and felonious assault, albeit
allegedly against his will. Appellant also conceded that his counsel initially
spoke with Woods, but as the time for trial approached her story changed.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 26
With regard to the other potential witnesses, Appellant conceded on cross
examination the same was true as to two other potential witnesses, Rhetta
Pierce and Lori Shaw. Appellant also argued he should be able to withdraw
his guilty pleas because two witnesses had died since the incident occurred.
However, he admitted on cross examination that he knew that one of the
witnesses had died at the time he entered his pleas. Further, the State
introduced testimony by Detective Roarke which indicated the other witness,
Lori Shaw, was in fact, still alive.
{¶ 31} Based upon the foregoing, we cannot conclude that Appellant’s
trial counsel was deficient in his representation of Appellant. The record
refutes Appellant’s claims that he was pressured by his counsel to enter
guilty pleas. Advising Appellant of the worst possible alternative to not
taking a plea does not constitute deficient performance. Further, Appellant
himself admitted during his hearing that although it initially appeared
several individuals would testify on his behalf at trial, their stories changed
as trial approached. Additionally, Appellant’s argument that counsel failed
to obtain alibi testimony through Laken Woods is not credible given the fact
that Appellant has admitted to being present on the night in question.
Accordingly, Appellant has not demonstrated he received ineffective
assistance of counsel which led to the entry of his guilty pleas.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 27
{¶ 32} We next consider the factors relevant to a determination as to
whether the trial court erred in denying Appellant’s motion to withdraw his
guilty plea. First, we have already determined that Appellant’s counsel was
not ineffective and there is nothing in the record to suggest his counsel was
not highly competent. Further, at the change of plea hearing, Appellant
advised the trial court that he was satisfied with the advice of his counsel.
Second, we consider whether Appellant was given a full Crim.R. 11 hearing
before entering his plea. We already determined that he was, and that the
trial court did not err in accepting his guilty pleas under Appellant’s first
assignment of error. Third, the record reflects that Appellant was given a
full hearing on his withdrawal motion, where he was afforded the
opportunity to be heard on his reasons for seeking to withdraw his pleas.
Fourth, the record reflects the trial court gave full and fair consideration of
Appellant’s motion, but ultimately issued a denial, reasoning that:
“The court has considered the evidence, the testimony
presented in this matter, as well as all of the factors put forth in
the defendant’s motion to withdraw the plea. The court finds
simply that the defendant’s testimony not to be credible in this
case. This appears to me to be nothing more than a simple case
of buyer’s remorse, and as such I will overrule the motions to
withdraw the pleas.”
These factors clearly weigh against granting Appellant’s motion to withdraw
his pleas.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 28
{¶ 33} With respect to the additional factors to be considered, we note
that Appellant’s motion was made within a reasonable time and before
sentencing and did set out specific reasons for the withdrawal. These factors
weigh in Appellant’s favor. Further, the record reflects Appellant had a full
understanding of the nature of the charges and the possible penalties. This
factor weighs in favor of denying Appellant’s motion. Finally, with respect
to the final factor, Appellant claimed in his motion to withdraw his pleas,
and also claims now on appeal, that he is actually innocent of the charges.
{¶ 34} As noted above, the State did not present evidence regarding
the charges to which Appellant pled during the plea change hearing and the
trial court did not make a factual determination before accepting Appellant’s
plea. Thus, this Court is at somewhat of a loss as to the actual facts that
form the basis of the charges to which Appellant pleaded guilty. While less
than ideal from a reviewing standpoint, we must note that “ ‘ where a
defendant pleads guilty, with no claim of factual innocence, neither Crim.R.
11 nor the Constitutions of Ohio or the United States require the court to
determine if there is a factual basis for the plea.’ ” State v. Campanaro, 4th
Dist. Highland No. 97CA942, 1998 WL 961067, *4 (internal citations
omitted). Appellant made no claim of factual innocence at the time he
entered his pleas. As such, the trial court was not required to determine if
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 29
there was a factual basis for his plea. That being said, we are still rather
limited in understanding and analyzing Appellant’s claims of actual
innocence when we have no point of reference for the details related to the
crimes he pled guilty to committing.
{¶ 35} At the hearing on the motion to withdraw, Appellant did not
argue he was actually innocent of the possession of cocaine charge, nor does
he make any argument regarding that charge on appeal. With respect to the
complicity to bribery and bribery charges, Appellant argued at the hearing
that he did not do what he was accused of doing, and denied making calls on
the recorded jail line to Rhetta Pierce where he offered her money to testify
on his behalf. As to the other bribery charge, he claimed it was Lori Shaw
or Ashley Lewis who offered not to testify against him if he would pay
them, and not the other way around. However, the trial court heard these
arguments made by Appellant at the hearing and simply found Appellant’s
testimony not to be credible. This Court cannot conclude that the trial
court’s determinations regarding such factual and credibility issues were not
based upon a sound reasoning process or were an abuse of discretion.
{¶ 36} Finally, with regard to the kidnapping and felonious assault
charges, Appellant initially seemed to argue at his hearing that he believed
he was innocent because there was no eye witness that placed him at the
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 30
scene, the victim did not identify him in a line-up, and there were
inconsistencies in the discovery provided by the State. In our view, this
argument seems to fall short of claiming Appellant was actually innocent
because he didn’t commit the crimes. Rather, it seems to be a general
challenge to the evidence after the fact. Also, as referenced above,
Appellant argued he had an alibi witness, but then stated he was actually
present during the kidnapping and felonious assault. He argued he was
simply at the wrong place at the wrong time and was held there against his
will. Appellant’s claims of actual innocence with respect to these charges
are inconsistent at best, and the trial court determined they were not credible.
We cannot conclude the trial court erred or abused its discretion in making
this finding.
{¶ 37} Based upon the record before us and taking into consideration
the above factors, we cannot conclude that the trial court abused its
discretion in denying Appellant’s motion to withdraw his guilty pleas.
Instead, a review of the record indicates Appellant changed his mind after, in
his own words, he had time to “reflect” on the discovery provided to him
and his situation. Thus, we agree with the trial court that Appellant’s desire
to withdraw his guilty pleas is based upon a change of heart, which does not
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 31
constitute grounds to permit his guilty pleas to be withdrawn. Accordingly,
Appellant’s second assignment of error is overruled.
{¶ 38} Having found no merit in the assignments of error raised by
Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Ross App. Nos. 16CA3555, 16CA3556, 16CA3557, 16CA3558 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and 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 Ross County Common Pleas Court 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.
Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error I;
Concurs in Judgment Only as to Assignment of Error II.
Harsha, J.: Concurs in Judgment Only.
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.