State v. Alt , 2011 Ohio 5393 ( 2011 )

[Cite as State v. Alt, 2011-Ohio-5393.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96289
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SUSAN ALT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527674
BEFORE: Keough, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: October 20, 2011
ATTORNEY FOR APPELLANT
Richard M. Kerger
Kerger & Hartman, LLC
33 S. Michigan Street
Suite 100
Toledo, OH 43604
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Edward H. Kraus
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Susan Alt, appeals the trial court’s judgment denying
her motion to withdraw her plea. Finding no merit to the appeal, we affirm.
I
{¶ 2} In August 2009, Alt was charged in a 96-count indictment stemming from a
sophisticated mortgage fraud scheme that enabled Alt to steal over three million dollars.
Alt pleaded not guilty. Exhaustive discovery and numerous pretrials ensued, and the trial
date was reset several times.
{¶ 3} On July 6, 2010, two weeks prior to trial, Alt pleaded guilty to 31 counts of
the indictment; the remaining counts were nolled. As part of the agreement, Alt agreed
to forfeit two million dollars. The record reflects that she never made any of the
agreed-upon payments.
{¶ 4} In November 2010, at Alt’s request, sentencing was reset to December 16,
2010. But on December 2, 2010, two weeks before sentencing, Alt filed a motion to
withdraw her guilty plea, asserting that her plea should be vacated because she “did not
fully understand all of the ramifications of her plea” and “maintains her innocence and
has a defense to the charges.” She subsequently filed a supplement to her motion in
which she argued that presentence motions to withdraw, although discretionary with the
trial judge, “should almost always be granted.”
{¶ 5} Alt did not appear for sentencing on December 16, 2010 and the trial court
issued a capias. On December 20, 2010, after a hearing at which Alt appeared, the trial
court denied Alt’s motion to withdraw her guilty plea. The court then sentenced her to
nine years incarceration on Count 1 of the indictment (engaging in a pattern of corrupt
activity), and two years on the remaining counts to which she had pleaded guilty, all
counts to run concurrent. The court also advised Alt that she would be subject to five
years mandatory postrelease control.
{¶ 6} On appeal, Alt contends that the trial court erred in denying her motion to
withdraw her plea.
II
{¶ 7} “Crim.R. 32.1 provides that a defendant may move to withdraw his guilty
plea prior to sentencing. A defendant who so moves, however, does not have an absolute
right to have his guilty plea withdrawn. The trial court must conduct a hearing to
determine whether there is a reasonable and legitimate basis for
{¶ 8} withdrawal of the plea. State v. Xie (1992), 62 Ohio St.3d 521, 527, 584
N.E.2d 715. The decision to grant or deny the motion is within the trial court’s
discretion and will not be disturbed absent a finding of an abuse of discretion. Id.”
State v. Hurst, Cuyahoga App. No. 89297, 2007-Ohio-6326, ¶4. A mere change of
heart is insufficient grounds for the withdrawal of a guilty plea prior to sentencing. State
v. Benjamin, Cuyahoga App. No. 85071, 2005-Ohio-2322.
{¶ 9} In State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, 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:
{¶ 10} “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.
{¶ 11} In State v. Montgomery, Cuyahoga App. No. 87246, 2006-Ohio-3850, this
court added another criteria to the Peterseim standard. “In a case in which the record
reflects the defendant made his decision to enter a guilty plea when his case had been
pending for a considerable amount of time and the parties were at a point at which they
were fully prepared to go forward to trial, the ‘court certainly acts within its discretion to
include this circumstance in its subsequent consideration of the genuineness of the
defendant’s motion to withdraw his guilty plea.’” State v. Walker, Cuyahoga App. No.
95701, 2011-Ohio-3979, ¶22, quoting Montgomery at ¶16.
{¶ 12} A review of the record in this case demonstrates the trial court fully
complied with the Peterseim criteria. Alt was represented by competent counsel and
informed the trial judge during her plea hearing that she was satisfied with her lawyer.
Further, our review of the transcript demonstrates that Alt was afforded a complete
Crim.R. 11 hearing before she entered her guilty plea. The trial judge informed Alt of
the constitutional rights she was waiving and made sure she understood them. Further,
the judge informed Alt of the charges and potential penalties upon pleading guilty, which
she indicated she understood. The judge also informed Alt that she would be subject to
five years mandatory postrelease control. Finally, the judge informed Alt that upon
acceptance of her guilty plea, the court could proceed immediately to sentencing, which
Alt again indicated that she understood. The record overwhelmingly demonstrates that
Alt understood the ramifications of her plea and that it was made knowingly, voluntarily,
and intelligently.
{¶ 13} We also find that the trial court afforded Alt a full hearing on her motion to
withdraw. The record reflects that the court held a lengthy hearing at which defense
counsel argued why Alt should be allowed to withdraw her plea. The trial court
considered the State’s objections to the motion and, after full and fair consideration,
denied Alt’s motion. The trial court stated that it was denying the motion because Alt
had indeed understood the ramifications of her plea and her motion was nothing more
than a delay tactic.
{¶ 14} We agree with the trial court that Alt’s motion was simply a stall tactic.
When Alt pled guilty in July, sentencing was set for November in order to give her
sufficient time to procure the two million dollars she had agreed to forfeit. The
sentencing date was subsequently continued at Alt’s request to give her even more time to
obtain the forfeiture monies. Alt never obtained the monies, but then two weeks prior to
sentencing, and five months after her plea, she filed her motion to withdraw the plea.
The timing clearly demonstrates that the motion was made to stall the sentencing; Alt did
not have the money she had agreed to forfeit and knew she was going to prison.
{¶ 15} Furthermore, when Alt pled guilty in July, her case had been pending for
nearly a year and the parties were prepared to go to trial in two weeks. In view of the
fact that Alt pled guilty when trial was imminent, the trial court reasonably concluded that
her new claim of innocence, some five months after her plea and two weeks before
sentencing, lacked credibility. Montgomery, supra at ¶17. Absent a reasonable and
legitimate basis to withdraw the plea, the trial court did not abuse its discretion in denying
Alt’s motion.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR