State v. Creed ( 2012 )


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  • [Cite as State v. Creed, 
    2012-Ohio-2627
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97317
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    JIM CREED
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-548666
    BEFORE:          Celebrezze, P.J., Cooney, J., and Keough, J.
    RELEASED AND JOURNALIZED:                    June 14, 2012
    ATTORNEY FOR APPELLANT
    James E. Valentine
    323 Lakeside Avenue
    Suite 450
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Jennifer A. Driscoll
    Assistant Prosecuting Attorney
    The Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    FRANK D. CELEBREZZE, JR., P.J.:
    {¶1} On reconsideration, the original announcement of State v. Creed, 8th Dist.
    No. 97317, 
    2012-Ohio-2305
    , released on May 24, 2012, is hereby vacated. We find it
    necessary to vacate that opinion because of our misstatement regarding the punitive
    nature of R.C. Chapter 2950 following the Ohio Supreme Court’s decision in State v.
    Williams, 
    129 Ohio St.3d 344
    , 
    2011-Ohio-3374
    , 
    952 N.E.2d 1108
    . Nevertheless, for the
    reasons discussed below, we reach the same outcome and affirm the judgment of the trial
    court.
    {¶2} On April 20, 2011, the Cuyahoga County Grand Jury returned a 15-count
    indictment against defendant-appellant, Jim Creed. The charges included five counts of
    rape in violation of R.C. 2907.02(A)(1)(b); five counts of gross sexual imposition in
    violation of R.C. 2907.05(A)(4); and five counts of kidnapping in violation of
    R.C. 2905.01(A)(4). All counts included sexually violent predator specifications, and the
    kidnapping counts contained additional sexual motivation specifications.
    {¶3} On July 15, 2011, appellant entered a plea of guilty to three counts of sexual
    battery, as amended from rape, in violation of R.C. 2907.03(A)(1), a felony of the third
    degree, without sexually violent predator         specifications.   All other counts were
    dismissed by the state.
    {¶4} Prior to the sentencing hearing, appellant, through counsel, filed a motion to
    withdraw his guilty plea. In his motion, appellant argued that he felt pressure from his
    attorney to enter the guilty plea and that he did not understand the ramifications of his
    plea because he was “confused and bewildered” throughout the proceedings.
    {¶5} On August 11, 2011, the trial court held a hearing on appellant’s motion to
    withdraw. At the conclusion of the hearing, the trial court denied the withdrawal motion,
    finding that appellant “had absolutely no credibility in this matter” and that allowing
    appellant to withdraw his plea would be “inappropriate and contrary to justice.” 1
    Subsequently, appellant was sentenced to three years for each count of sexual battery, to
    be served consecutively, for an aggregate sentence of nine years in prison.
    {¶6} Appellant now brings this timely appeal, raising one assignment of error for
    review.
    Law and Analysis
    Motion to Withdraw Guilty Plea
    {¶7} In his sole assignment of error, appellant argues that the trial court erred and
    abused its discretion by denying his motion to withdraw his guilty plea.
    1
    The trial court further opined that appellant’s motion was an inappropriate ruse to
    withdraw his plea because he was worried about his family’s financial situation, stating, “He’s
    indicated that he would no longer get Social Security and that it would not go to his wife. He
    indicates his family might lose the house. I don’t think he wants to withdraw the plea for any
    other reason, other than to continue his checks coming, so that his family can meet their
    obligations. That is not a legal reason to withdraw the plea.”
    {¶8} A motion to withdraw a guilty plea is governed by the standards set forth in
    Crim.R. 32.1, which provides:
    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.
    {¶9} The general rule is that motions to withdraw guilty pleas before sentencing
    are to be freely and liberally allowed. State v. Peterseim, 
    68 Ohio App.2d 211
    , 214, 
    428 N.E.2d 863
     (8th Dist.1980), citing Barker v. United States, 
    579 F.2d 1219
    , 1223 (10th
    Cir.1978). However, a defendant does not have an absolute right to withdraw a guilty
    plea prior to sentencing. State v. Xie, 
    62 Ohio St.3d 521
    , 
    584 N.E.2d 715
     (1992). In
    ruling on a presentence motion to withdraw a plea, the court must conduct a hearing and
    decide whether there is a reasonable and legitimate basis for withdrawal of the plea. Id.
    at 527. The decision to grant or deny such a motion is within the sound discretion of the
    trial court. Id.
    {¶10} In Peterseim, this court set forth the standard for determining whether the
    trial court has abused its discretion in denying a presentence motion to withdraw a plea:
    A trial court does not abuse its discretion in overruling a motion to
    withdraw: (1) where the accused is represented by highly competent
    counsel, (2) where 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) where the record reveals that the court gave full and fair
    consideration to the plea withdrawal request. Id. at paragraph three of the
    syllabus.
    A review of the record in this case demonstrates that the trial court fully complied with
    the Peterseim criteria.
    {¶11} Although appellant does not raise any issues relating to his counsel, the
    record on appeal demonstrates that appellant was represented by competent counsel
    throughout the proceeding. Appellant informed the trial judge during the plea hearing
    that he was satisfied with his counsel. Additionally, it is well-settled that “* * * a properly
    licensed attorney practicing in this state is presumed to be competent.” State v. Brandon,
    11th Dist. No. 2009-P-0071, 
    2010-Ohio-6251
    , at ¶ 19, citing State v. Lytle, 
    48 Ohio St.2d 391
    , 397, 
    358 N.E.2d 623
     (1976).
    {¶12} Further, the record demonstrates that appellant was afforded a proper
    hearing pursuant to Crim.R. 11.     “When a defendant enters a plea in a criminal case, the
    plea must be made knowingly, intelligently, and voluntarily. Failure on any of those
    points renders enforcement of the plea unconstitutional under both the United States
    Constitution and the Ohio Constitution.”        State v. Engle, 
    74 Ohio St.3d 525
    , 527,
    
    1996-Ohio-179
    , 
    660 N.E.2d 450
    . We will not reverse such a determination if the trial
    court substantially complied with the nonconstitutional requirements of Crim.R.
    11(C)(2)(a), which includes the maximum penalties.        State v. Nero, 
    56 Ohio St.3d 106
    ,
    108, 
    564 N.E.2d 474
     (1990), citing State v. Stewart, 
    51 Ohio St.2d 86
    , 92-93, 
    364 N.E.2d 1163
     (1977). “A plea is in substantial compliance * * * when it can be inferred from the
    totality of the circumstances that the defendant understands the charges against him.”
    State v. Walker, 8th Dist. No. 65794, 
    1994 WL 530892
    , *2 (Sept. 29, 1994), citing State
    v. Rainey, 
    3 Ohio App.3d 441
    , 
    446 N.E.2d 188
     (10th Dist.1982), paragraph one of the
    syllabus.   Furthermore, a defendant must show a prejudicial effect, or, in other words,
    whether the plea would have otherwise been made. 
    Id.
    {¶13} In challenging the sufficiency of his Crim.R. 11 hearing, appellant argues
    that his plea was not made knowingly because the trial court failed to notify him that by
    pleading guilty he would be unable to live within 1,000 feet of a school, in accordance
    with R.C. 2950.034.
    {¶14} With respect to this issue, this court has repeatedly held that the
    constitutional advisements a trial court is required to provide pursuant to Crim.R. 11 do
    not include the collateral consequences of being classified as a sexual predator under
    Ohio Revised Code Chapter 2950. State v. Rice, 8th Dist. No. 72685, 
    1999 WL 125742
    ,
    at *3 (Feb. 18, 1999); State v. Perry, 8th Dist. No 82085, 
    2003-Ohio-6344
    ; State v.
    Woodward, 8th Dist. Nos. 94672 and 94673, 
    2011-Ohio-104
    . This court rationalized
    that such advisements were not required because the requirements imposed on sex
    offenders pursuant to R.C. Chapter 2950 are civil and remedial in nature, and not criminal
    or punitive.
    {¶15} However, the conclusions reached in Rice, Perry, and Woodward have
    recently been challenged by State v. Williams, 
    129 Ohio St.3d 344
    , 
    2011-Ohio-3374
    , 
    952 N.E.2d 1108
    . In Williams, the Ohio Supreme Court held that, based on the significant
    changes to the statutory scheme governing sex offenders following the enactment of S.B.
    10, R.C. Chapter 2950 is currently punitive and not remedial in nature. Id. at ¶ 16.
    {¶16} If those requirements are now punitive under R.C. Chapter 2950, then they
    are no longer considered collateral consequences of a conviction.    Rather, they are part
    of the penalty for the offense and must be addressed during a Crim.R. 11 colloquy.   State
    v. Bush, 2d Dist. No. 10CA82, 
    2011-Ohio-5954
    , ¶ 20 (Fain, J., concurring). This is not
    to say, however, that the trial court is required to review each of the numerous individual
    restrictions and requirements set forth in R.C. Chapter 2950 in order to substantially
    comply with nonconstitutional provisions of Crim.R. 11.
    {¶17} In the case at hand, the record reflects that appellant was informed during
    his Crim.R. 11 dialogue that he would be labeled a Tier III offender by operation of law.
    Moreover, the trial court notified appellant that as a Tier III sex offender, he would be
    subject to various reporting and notification requirements for life. We find that this
    advisement substantially complies with Crim.R. 11(C)(2)(a).          The totality of the
    circumstances indicate that appellant subjectively understood that by pleading guilty to a
    sexually oriented offense, he would be subjected to certain restrictions as a Tier III sex
    offender.   The fact that appellant was not specifically informed that he would be
    prohibited from living within 1,000 feet of a school does not invalidate his plea.
    Accordingly, we find that appellant was afforded a full hearing, pursuant to Crim.R. 11.
    {¶18} Next, appellant contends that the trial court erred in denying his motion to
    withdraw where he maintained his claim of innocence. In State v. Abdelhag, 8th Dist.
    No. 71136, 
    1997 WL 428647
     (July 31, 1997), this court held:
    [D]efendant’s protestations of innocence are not sufficient, however
    frequently repeated, to warrant grounds for vacating a plea knowingly
    entered. By inference, all defendants who request a withdrawal of their
    guilty plea do so based upon some claim of innocence. A mere change of
    heart regarding a guilty plea and the possible sentence is insufficient
    justification for the withdrawal of a guilty plea. (Citations omitted.)
    {¶19} Under the circumstances, it is axiomatic that defendant would proclaim his
    innocence of the offense. However, this is not sufficient to warrant the withdrawal of a
    guilty plea where, as in the case sub judice, the record supports the trial court’s finding
    that appellant entered his plea voluntarily, knowingly, and intelligently.
    {¶20} Finally, we find that the trial court adequately afforded appellant a full and
    impartial hearing on his motion to withdraw and gave full and fair consideration to
    appellant’s request.   Here, the trial court ensured that appellant received a full and
    impartial    hearing   by    permitting     opening    statements,    direct   examination,
    cross-examination, redirect, closing argument, and a review of the psychiatric report
    before it rendered a decision. Moreover, the record reflects that the trial court fairly
    considered appellant’s motion to withdraw and only denied the motion after conducting a
    lengthy hearing and carefully weighing several factors, including the arguments raised in
    appellant’s motion to withdraw, information provided in appellant’s psychiatric report,
    and appellant’s testimony and demeanor at the hearing.
    {¶21} Because all four prongs set forth in Peterseim were satisfied, we cannot say
    that the trial court abused its discretion in denying appellant’s motion to withdraw his
    guilty pleas under the circumstances of this case. Appellant’s sole assignment of error is
    overruled.
    {¶22} Judgment affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution. The defendant’s conviction having
    been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
    for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
    COLLEEN CONWAY COONEY, J., and
    KATHLEEN ANN KEOUGH, J., CONCUR