State v. McConnell , 2022 Ohio 2244 ( 2022 )

[Cite as State v. McConnell, 2022-Ohio-2244.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2021-0062
TERREL MCCONNELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2021-0153
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 28, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH SAMUEL H. SHAMANSKY
PROSECUTING ATTORNEY DONALD L. REGENSBURGER
TAYLOR P. BENNINGTON ASHTON C. GAITANOS
ASSISTANT PROSECUTOR SAMUEL H. SHAMANSKY CO., LPA
27 North Fifth Street, P.O. Box 189 523 South Third Street
Zanesville, Ohio 43702-0189 Columbus, Ohio 43215
Muskingum County, Case No. CT2021-0062 2
Wise, John, J.
{¶1} Defendant-Appellant Terrel McConnell appeals his conviction entered in the
Muskingum County Court of Common Pleas on one count of attempted murder, one count
of discharging a firearm over a roadway, and one count of tampering with evidence,
following a guilty plea.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On March 1, 2021, Robert Gladden reported to law enforcement that he had
been shot. Following an investigation, Appellant Terrel McConnell and his two brothers,
Jamarr McConnell and Juan McConnell, were identified as the shooters.
{¶5} An argument between Appellant and Mr. Gladden had previously occurred
outside of Mr. Gladden's home on Bates Street in Zanesville. Appellant and his brothers
returned to Bates Street, waited across the street from Mr. Gladden's house, and once
Mr. Gladden walked outside his residence they began shooting. Both Mr. Gladden and
his house were struck by bullets. Officers recovered 23 spent shell casings.
{¶6} A nearby surveillance video captured Appellant and Jamarr leaving a
residence on Pine Street, just a few houses down from the victim's home, immediately
before the shooting. One of the men was carrying a nylon bag, which was large enough
to have a rifle contained within it. The video showed that individual running across Pine
Street. Two or three minutes later, Jamarr returned carrying the bag, but now there was
a jacket covering it up. Appellant arrives back at the Pine Street house. He's seen and
identified with a female leaving through the front door. Then another female goes out the
Muskingum County, Case No. CT2021-0062 3
door. They all run to a Chevy Malibu. Also, at that point, Jamarr is seen sitting at the
house with an unknown object. Appellant then runs across Pine Street and tosses Jamarr
a cell phone. Jamarr gets in the Chevy Malibu and leaves the scene.
{¶7} Officers were able to execute a warrant at Appellant's Pine Street address
on March 3, 2021. Inside, they found several empty AR-15 magazines. One of them was
partially loaded with the same round type and head stamp manufacturer as all of the
rounds found at the shooting scene. Also inside the house were three ski masks that were
royal blue, light blue, and navy blue in color. Mr. Gladden had identified the shooter as
having a blue ski mask on. Mr. Gladden was later shown the ski masks, and he identified
them and recognized them from the shooting.
{¶8} Officers also located a plastic baggie with a white rock substance. That
baggie was located in a room along with credit cards and prescriptions for Appellant. That
substance was collected, submitted for testing, and found to be 8.396 grams of Cocaine.
Appellant was indicted on Possession of Drugs in a separate case. (Case No. CR2021-
0143).
{¶9} On March 17, 2021, Appellant was indicted on seventy-one (71) counts as
follows:
Count 1: Attempted Murder, with a firearm specification, felony of the first degree
Counts 2-24: Felonious Assault, with firearm specifications, felonies of the second
degree
Counts 25-47: Improperly Discharging a Firearm at or into a Habitation, with
firearm specifications, felonies of the second degree
Muskingum County, Case No. CT2021-0062 4
Counts 48-70: Discharging a Firearm over a Public Roadway, with firearm
specifications, felonies of the third degree
Count 71: Tampering with Evidence, a felony of the third degree
{¶10} A jury trial was scheduled on the matter for August 3, 2021.
{¶11} On July 21, 2021, Appellant entered pleas of guilty to one count of
Attempted Murder, a felony of the first degree, one count of Discharging a Firearm over
a Roadway, as amended, a felony of the third degree, and one count of Tampering with
Evidence, a felony of the third degree.
{¶12} On September 3, 2021, Appellant filed a motion to withdraw guilty pleas.
{¶13} On September 29, 2021, a hearing was held on the motion. The trial court
denied the motion and proceeded to sentencing. The trial court sentenced Appellant to a
mandatory minimum sentence of seven (7) years and an indefinite prison term of ten and
a half (10 ½) years on the one count of Attempted Murder, felony of the first degree, thirty-
six (36) months on the one count of Discharging a Firearm over a Roadway, as amended,
a felony of the third degree, and thirty-six (36) months on the one count of Tampering with
Evidence, a felony of the third degree.
{¶14} In accordance with the plea agreement, the trial court ordered the periods
of incarceration imposed on Discharging over a Roadway and Tampering with Evidence
be served concurrently with one another, but consecutive to the Attempted Murder count
and to the 12-month sentence imposed in Case No. CR2021-0143, for an aggregate
minimum prison sentence of eleven (11) years, of which seven (7) of those years are
mandatory time, and an indefinite prison sentence of fourteen and a half (14 ½) years.
Muskingum County, Case No. CT2021-0062 5
{¶15} Appellant now appeals, raising the following assignment of error for review:
ASSIGNMENT OF ERROR
{¶16} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY RELYING ON
FACTUAL FINDINGS THAT WERE UNSUPPORTED BY THE RECORD AND BY
DENYING APPELLANT'S PRESENTENCE MOTION TO WITHDRAW HIS GUILTY
PLEAS.”
I.
{¶17} In his sole assignment of error, Appellant argues the trial court abused its
discretion in denying his presentence motion to withdraw his guilty pleas. We disagree.
{¶18} Crim.R. 32.1 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.”
{¶19} Generally, a presentence motion to withdraw a guilty plea is to be freely and
liberally granted. State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. However,
the Xie court indicated a defendant does not have an absolute right to withdraw a guilty
plea prior to sentencing. Id. at paragraph one of the syllabus. Rather, “[a] trial court must
conduct a hearing to determine whether there is a reasonable and legitimate basis for the
withdrawal of the plea.” Id. The court further held “[t]he decision to grant or deny a
presentence motion to withdraw a guilty plea is within the sound discretion of the trial
court.” Id. at paragraph two of the syllabus. Accordingly, in order to find the trial court
abused its discretion, a reviewing court must find the court's ruling was “unreasonable,
arbitrary or unconscionable.” Id. at 527, 584 N.E.2d 715.
Muskingum County, Case No. CT2021-0062 6
{¶20} In reviewing a trial court's decision to deny a presentence motion to
withdraw a guilty plea, this Court has previously adopted the factors as set forth in State
v. Fish, 104 Ohio App. 3d 236, 661 N.E.2d 788 (1st Dist. Hamilton 1995), overruled on
other grounds by State v. Sims, 1st Dist. Hamilton No. C-160856, 2017-Ohio-8379, 99
N.E.3d 1056:
In reviewing a trial court's decision regarding a motion to withdraw a
plea, the court in State v. Fish (1995), 104 Ohio App.3d 236, 661 N.E.2d
788, set forth a non-exhaustive list of factors to weigh when considering a
motion to withdraw a plea. Such factors include: (1) whether the prosecution
would be prejudiced if the plea was vacated; (2) whether the accused was
represented by highly competent counsel; (3) whether the accused was
given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the
motion; (5) whether the trial court gave full and fair consideration to the
motion; (6) whether the motion was made within a reasonable time; (7)
whether the motion set forth specific reasons for the withdrawal; (8) whether
the accused understood the nature of the charges and possible penalties;
and (9) whether the accused was perhaps not guilty or had a complete
defense to the crime. Id. at 240, 661 N.E.2d 788. Finally, a change of heart
or mistaken belief about pleading guilty is not a reasonable basis that
requires a trial court to permit the defendant to withdraw his guilty plea.
State v. Lambros (1988), 44 Ohio App.3d 102, 103, 541 N.E.2d 632. When
looking at the ninth factor, “the trial judge must determine whether the claim
of innocence is anything more than the defendant's change of heart about
Muskingum County, Case No. CT2021-0062 7
the plea agreement.” State v. Kramer, Mahoning App. No. 01-C.A.-107,
2002-Ohio-4176, ¶ 58.
{¶21} State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 2008-Ohio-7037, ¶
45. See, also, State v. Shelton, 5th Dist. Stark No. 2012CA00024, 2012-Ohio-4482, ¶ 20;
State v. Pickering, 5th Dist. Perry No. 20-CA-00019, 2021-Ohio-2579, ¶ 13; State v.
Lewis, 5th Dist. Delaware No. 20 CAA 06 0025, 2021-Ohio-530, ¶ 39.
{¶22} As to the first factor, the State does not argue that it would necessarily be
prejudiced by the withdrawal of the plea.
{¶23} The second factor to be considered is whether Appellant was represented
by highly competent counsel. Here, we find that Appellant’s counsel negotiated a plea
deal which amended the attempted murder charge to a lesser degree and called for the
dismissal of 68 of the 71 counts. Further, counsel had prepared and filed a detailed motion
to suppress evidence in this case.
{¶24} As to the third, fourth and fifth factors, the record reflects that Appellant was
given a full Crim.R. 11 hearing. Likewise, Appellant was given a hearing on his motion to
withdraw his plea and the record demonstrates the court gave full and fair consideration
to his motion. The trial court reviewed the medical records, the transcript of the plea
hearing, and the psychological assessment filed with the presentence investigation.
{¶25} The sixth factor is whether the motion was made within a reasonable time.
The motion was filed approximately six weeks after Appellant entered his guilty pleas,
and three weeks prior to the sentencing hearing, shortly after the hiring of new counsel.
We find the motion was made within a reasonable time.
Muskingum County, Case No. CT2021-0062 8
{¶26} The seventh factor is whether the motion sets forth specific reasons for
withdrawal of the plea. The motion in the instant case sets forth specific reasons for
withdrawal of the plea, claiming he was concerned that his former attorney would not have
adequately represented him at trial, that he could not independently afford another
attorney, and that he was concerned that expressing those fears during his plea hearing
could have “blown up” the plea deal. (Sent. T. at 4-5).
{¶27} The eighth factor is whether Appellant understood the nature of the charges
and the possible penalties at the plea hearing. The trial court noted during the hearing on
the motion to withdraw that Appellant had a good understanding of the criminal justice
system, having been previously involved in a case. Nothing in the record demonstrates
that Appellant did not understand the plea proceedings or voluntarily enter his plea.
{¶28} The transcript of the plea hearing demonstrates Appellant appeared fully
aware of what was occurring and was able to engage the court in appropriate dialogue
regarding his understanding of the charges and the possible penalties.
{¶29} The final consideration is whether the accused was possibly not guilty, or
had a defense to the crime. The record does not demonstrate that Appellant put forth any
such evidence to the trial court.
{¶30} Again, as set forth above, a mere change of heart is not sufficient to serve
as the basis for a pre-sentence motion to withdraw a guilty plea. State v. Drake, 73 Ohio
App.3d 640.
{¶31} Considering all of the factors set forth above, we do not find that the trial
court abused its discretion in overruling Appellant's motion to withdraw his plea.
Muskingum County, Case No. CT2021-0062 9
{¶32} Appellant’s sole assignment of error is overruled.
{¶33} Accordingly, the judgment of the Court of Common Pleas, Muskingum
County, Ohio, is affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Delaney, J., concur.
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