State v. Burke , 2019 Ohio 4744 ( 2019 )

[Cite as State v. Burke, 2019-Ohio-4744.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case Nos. 19CA1
Plaintiff-Appellee, : 19CA2
:
vs. : DECISION AND JUDGMENT
: ENTRY
EMORY S. BURKE, :
:
Defendant-Appellant. : RELEASED: 11/07/19
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and C.
Michael Gleichauf, Lawrence County Assistant Prosecuting Attorney,
Ironton, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is a consolidated appeal from two judgment entries of the
Lawrence County Common Pleas Court that convicted Appellant Emory
Burke of five felonies and three misdemeanors. On November 14, 2018,
Appellant entered a guilty plea to all of the counts against him in the two
cases, and on December 4, 2018, the trial court sentenced Appellant to a
total of two years and eleven months in prison. Just before his sentencing,
however, Appellant orally requested that the trial court permit him to
withdraw his guilty plea. After a colloquy with Appellant, the trial court
Lawrence App. Nos. 19CA1 and 19CA2 2
denied the request and went forward with the sentencing. Appellant’s sole
assignment of error in this appeal is that the trial court abused its discretion
by failing to properly consider and grant Appellant’s request to withdraw his
guilty plea.
{¶2} As discussed below, the trial court has broad discretion in its
determination of whether to grant a presentence motion to withdraw a guilty
plea. As the trial court did not abuse its discretion in this case, we overrule
Appellant’s assignment of error and affirm the trial court’s judgment.
FACTS
{¶3} On October 18, 2018, Appellant was indicted in the Lawrence
County Common Pleas Court in case number 18-CR-398 on one count of
Forgery, a fifth degree felony, under R.C. 2913.31(A)(3). On October 23,
2018, Appellant, represented by counsel, pleaded not guilty to the charge
and was released on an “own recognizance” bond under R.C. 2937.29. A
pretrial hearing was scheduled for November 14, 2018.
{¶4} Before the pretrial hearing in case number 18-CR-398, a bill of
information was agreed to and entered in a separate case, case number 18-
CR-491, also in the Lawrence County Common Pleas Court. The bill of
information contained seven counts: two counts alleging a violation of R.C.
2913.02(A)(1), Theft, a first degree misdemeanor; one count alleging a
Lawrence App. Nos. 19CA1 and 19CA2 3
violation of R.C. 2913.51, Receiving Stolen Property, a first degree
misdemeanor; two counts alleging a violation of R.C. 2913.02(A)(1), Theft,
a fifth degree felony; and two counts alleging a violation of R.C.
2921.12(A)(1), Tampering with Evidence, a felony of the third degree.
{¶5} On November 14, 2018, the trial court appointed new counsel for
Appellant and held a hearing in both cases. Relevant to case number 18-CR-
491, the trial court conducted a colloquy with Appellant regarding the bill of
information and Appellant’s executed waiver of indictment. The trial court
accepted the waiver and arraigned Appellant on the bill of information. The
trial court then conducted a Crim.R. 11 hearing, after which Appellant
entered guilty pleas in both case number 18-CR-398 and case number 18-
CR-491. The trial court scheduled a sentencing hearing for December 4,
2018. Appellant remained in custody pending sentencing.
{¶6} On December 4, 2018, Appellant appeared with counsel before
the trial court. Prior to sentencing, however, Appellant’s counsel notified
the court that Appellant requested permission to address the court directly.
The trial court granted the request. Appellant then asked if he could have a
furlough before being taken into custody so that he could visit his sick
mother. Appellant initially asked for a furlough of only five hours, but later
requested up to a few days to be with his family. The trial court
Lawrence App. Nos. 19CA1 and 19CA2 4
acknowledged that Appellant was in a “horrible, horrible situation,” but
explained that it could not delay the disposition of Appellant’s cases because
of the impact it would have on the court’s already overburdened docket.
{¶7} After the trial court made it clear that Appellant was not going to
be granted a furlough, Appellant asked if he could withdraw his guilty plea.
The trial court questioned whether Appellant had had a “change of heart”
and stated, “The only reason you want to withdraw your plea is because I
wouldn’t let you go to have time with your family. That’s it right?”
Appellant answered, “Not really. I mean, there’s other reasons.” The trial
court asked Appellant to provide his other reasons.
{¶8} Appellant’s first response was that he did not understand “what
[he] was getting [himself] into.” The trial court discussed its colloquy with
Appellant when he entered his guilty plea, including Appellant’s affirmative
responses to questions regarding his understanding of the charges against
him, the acts in the indictment that he would be admitting upon entry of his
plea, and the maximum sentences that he might receive if found guilty at
trial. Appellant responded that he did not understand what he was signing.
When pressed regarding the particular documents that he signed—the waiver
of his right to trial and his “proceeding on plea of guilty” form, Appellant
Lawrence App. Nos. 19CA1 and 19CA2 5
changed tack and stated that he wanted to take the case to trial because he
had “a better chance at trial.”
{¶9} The trial court then asked Appellant what change in
circumstances had occurred to justify the withdrawal of his plea. Appellant
responded, “I mean, I didn’t want to – I was understanding I would get a
furlough today with – with three years.” The trial court again asked
Appellant to identify the change in circumstances that had occurred.
Appellant initially said he “didn’t understand,” but, when asked for specific
examples of what he did not understand, he responded that he was “under
the influence.” The trial court asked how Appellant could have been under
the influence when he was in jail leading up to the plea hearing. Appellant
said he had “found” marijuana at the jail. After Appellant refused to
disclose where he had found marijuana at the jail, the trial court concluded
he had not presented grounds for the withdrawal of his guilty plea.
{¶10} The trial court entered prison sentences in the two cases to run
concurrently for a total of two years and eleven months, along with
restitution for the victims. On December 13, 2018, the trial court entered its
final judgment entries in the cases. Appellant timely filed a notice of appeal
in both cases on January 14, 2019.
Lawrence App. Nos. 19CA1 and 19CA2 6
{¶11} As a preliminary matter, Appellee, the State of Ohio, contends
that Appellant’s notice of appeal was untimely. Under App.R. 4(A)(1), a
notice of appeal must be filed within thirty days of the final judgment entry
from which the appeal will be taken. In this case, the thirtieth day from the
trial court’s judgment entries was Saturday, January 12, 2019. Under App.
R. 14(A), in computing any period of time allowed under the rules, the “last
day of the period so computed shall be included, unless it is a Saturday,
Sunday or a legal holiday, in which event the period runs until the end of the
next day which is not a Saturday, Sunday or a legal holiday.” Because the
thirty-day period in which Appellant was permitted to file a notice of appeal
ended on a Saturday, his deadline was extended to Monday, January 14,
2019. Appellant therefore timely filed his notices of appeal on January 14,
2019.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO PROPERLY CONSIDER AND GRANT
APPELLANT’S REQUEST TO WITHDRAW HIS
GUILTY PLEA.”
A. LEGAL STANDARD
{¶12} 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
manifest injustice the court after sentence may set aside the judgment of
Lawrence App. Nos. 19CA1 and 19CA2 7
conviction and permit the defendant to withdraw his or her plea.” “[A]
presentence motion to withdraw a guilty plea should be freely and liberally
granted.” State v. Hoke, 4th Dist. Lawrence No. 10CA32, 2011–Ohio–1221,
¶ 12 (internal quotations omitted), quoting State v. Ketterer, 126 Ohio St. 3d
448, 2010–Ohio–3831, 935 N.E.2d 9, at ¶ 57, quoting State v. Xie, 62 Ohio
St.3d 521, 527, 584 N.E.2d 715 (1992). However, a defendant “does not
have an absolute right to withdraw a guilty plea prior to sentencing.” Xie at
paragraph one of the syllabus; see also State v. Spivey, 81 Ohio St. 3d 405,
415, 161, 1998–Ohio–437, 692 N.E.2d 151. “The decision to grant or deny
a presentence motion to withdraw a guilty plea is within the sound discretion
of the trial court” and will not be reversed absent an abuse of that discretion.
Xie at paragraph two of the syllabus. See also State v. Brown, 4th Dist. Ross
No. 16CA3544, 2017-Ohio-2647, ¶ 11. “A trial court abuses its discretion
when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971,
¶ 34, citing State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).
Furthermore, “[w]hen applying the abuse of discretion standard, a reviewing
court is not free to merely substitute its judgment for that of the trial court.”
In re Jane Doe 1, 57 Ohio St. 3d 135, 137–138, 566 N.E.2d 1181 (1991).
Lawrence App. Nos. 19CA1 and 19CA2 8
{¶13} When determining whether a trial court abused its discretion by
denying a presentence motion to withdraw a plea, we consider the following
factors: “‘(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.’” Hoke at 13, quoting State v. Campbell, 4th Dist. Athens No.
08CA31, 2009–Ohio–4992, at ¶ 7, quoting State v. McNeil, 146 Ohio
App.3d 173, 176, 765 N.E.2d 884 (1st Dist.2001); see also State v. Gibbs,
4th Dist. Ross Nos. 10CA3137 and 10CA3138, 2010–Ohio–2246, at ¶ 9.
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.’” Campbell at ¶ 7, quoting
McNeil, 146 Ohio App. 3d at 176. 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. Campbell at ¶ 7; citing State v. Lambros, 44
Ohio App. 3d 102, 103, 541 N.E.2d 632 (8th Dist. 1988).
Lawrence App. Nos. 19CA1 and 19CA2 9
B. ANALYSIS
{¶14} Upon consideration of the above factors, the trial court did not
abuse its discretion in denying Appellant’s request to withdraw his guilty
plea. As to the first factor, Appellant does not claim that his counsel was
ineffective. To the contrary, Appellant’s counsel negotiated a favorable plea
deal that resulted in considerably less prison time than Appellant would have
received if the maximum sentences on all counts were imposed after trial.
As to the second factor, Appellant received a full Crim.R. 11 hearing before
entering his guilty plea.
{¶15} The third and fourth factors ask whether the trial court
conducted a full hearing on the withdrawal motion and gave full and fair
consideration to the motion, respectively. Appellant did not bring a formal
motion, but orally requested to withdraw his guilty plea at his sentencing
hearing. Nevertheless, the trial court gave full and fair consideration to
Appellant’s request. It conducted a colloquy regarding the reasons for the
request and continued its inquiry into each of the asserted reasons until it
determined there were no grounds for withdrawal. Appellant suggests that
the trial court should have held a separate hearing, but that is not required.
The trial court gave Appellant the opportunity to argue all of the grounds for
Lawrence App. Nos. 19CA1 and 19CA2 10
his request at the sentencing hearing. He would not have been afforded
anything more at a separate hearing.
{¶16} None of the other relevant considerations support permitting the
withdrawal of Appellant’s plea. The first such consideration is whether
Appellant made his request within a reasonable time. An “undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea
and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting
the credibility of the movant and militating against the granting of the
motion.” State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993, 773 N.E.2d
522, ¶ 14; citing State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977),
paragraph three of the syllabus. Appellant never clearly identified the
change in circumstances that prompted him to make his request. The
transcript supports a finding that Appellant decided to withdraw his plea
because his furlough request was denied, which is not grounds for
withdrawal of a plea. If the change in circumstances was that Appellant
regained his sobriety after appearing at the plea hearing under the influence,
then he waited three weeks to request withdrawal of his plea. While three
weeks is not a long period in itself, the timing of Appellant’s request still
cuts against his credibility. If the withdrawal request were genuine, then, in
light of its significance to his case, it should have been the first item that
Lawrence App. Nos. 19CA1 and 19CA2 11
Appellant raised with the trial court. It was not. Instead, Appellant
requested a furlough. Importantly, Appellant clearly expected to be
incarcerated at the conclusion of the requested furlough. He stated, “I’m
asking you to give me a five-hour furlough today. I will come back before
3:30 and turn myself in today.” It may be inferred that Appellant expected
to be incarcerated based on upon the trial court’s acceptance of his guilty
plea, not its withdrawal.
{¶17} Another consideration is whether Appellant provided specific
reasons for why he wanted to withdraw his plea. Appellant did so, but the
trial court’s colloquy showed that the asserted reasons were neither credible
nor well-founded. Appellant vacillated among claims that he (1) did not
understand the terms of his plea, (2) believed he would fare better at trial,
and (3) was under the influence of marijuana when he entered the plea. The
hearing transcript gives a strong impression that Appellant was, as the trial
court surmised, simply trying to forestall his imprisonment so that he could
spend time with his family. The most credible statement by Appellant may
have been his immediate response when asked what changed circumstances
prompted his request: “I was understanding I would get a furlough today
with – with three years.” When reviewing a trial court’s ruling on a motion
to withdraw a plea, “the good faith, credibility and weight of the movant’s
Lawrence App. Nos. 19CA1 and 19CA2 12
assertions in support of the motion are matters to be resolved by that court.”
Smith at paragraph two of the syllabus. Here, it is evident the trial court did
not find Appellant’s reasons for the withdrawal of his plea to be credible.
{¶18} As mentioned, the trial court provided a full Crim.R. 11 hearing
before Appellant entered his guilty plea. At that hearing, Appellant thus
asserted that he understood the nature of the charges against him and the
possible penalties. The trial court reminded Appellant of these assertions
when he later requested withdrawal of his plea. The trial court was well
within its discretion to conclude Appellant was not credible when he claimed
that he did not understand the charges because he was under the influence of
marijuana.
{¶19} The last consideration is whether the accused is perhaps not
guilty or has a complete defense to the charges. Here, Appellant never
claimed to be innocent and his belief that he would fare better at trial was
never supported with a reasoned explanation. Thus, this consideration also
does not support Appellant’s request to withdraw his plea.
{¶20} In summary, Appellant has not shown the trial court abused its
discretion in denying his pre-sentencing request to withdraw his guilty plea.
As a result, we overrule Appellant’s assignment of error and affirm the
judgment of the trial court.
Lawrence App. Nos. 19CA1 and 19CA2 13
JUDGMENT AFFIRMED.
Lawrence App. Nos. 19CA1 and 19CA2 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that 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 Lawrence County Court of Common Pleas 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.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
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.