2023 Ohio 451
Ohio Ct. App.2023Background
- On April 7, 2022, Terrell Silver pleaded guilty in two Cuyahoga County cases: attempted robbery (one with a one-year firearm specification and one without) and having weapons while under disability.
- Sentencing was set for May 9, 2022; Silver filed a motion to withdraw both guilty pleas on the morning of sentencing.
- At the plea hearing the court conducted a full Crim.R. 11 colloquy; Silver stated satisfaction with counsel and was advised of rights, consequences, and maximum penalties.
- At the withdrawal hearing the court reviewed the plea colloquy and heard Silver claim (1) he pled out of fear/panic about severe mandatory sentences, (2) he discovered an alleged discrepancy in the arrest date on a municipal probable-cause form, and (3) he wanted to exercise his right to trial; he did not present a claim of actual innocence or a full defense.
- The trial court found Silver’s reasons amounted to a change of heart and that the affidavit-date discrepancy did not justify withdrawal; it denied the motion and imposed an aggregate 36-month prison sentence.
- The Eighth District applied the Peterseim four-part test and the Pinkerton factors, concluded the court did not abuse its discretion, and affirmed the denial of the presentence motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying Silver’s presentence motion to withdraw his guilty plea | Denial proper because plea was knowing, voluntary after full Crim.R.11 colloquy; counsel competent; motion based on change of heart and meritless technical claims | Plea involuntary due to fear/panic about sentence; newly discovered discrepancy in arrest date in discovery; seeks to exercise right to trial | Affirmed. Court found Crim.R.11 compliance, counsel competent, hearing adequate, and reasons insufficient to warrant withdrawal; decision within discretion |
Key Cases Cited
- State v. Xie, 62 Ohio St.3d 521 (1992) (presentence motions to withdraw pleas should be liberally granted but are not an absolute right)
- State v. Peterseim, 68 Ohio App.2d 211 (8th Dist. 1980) (four-part test for reviewing denial of presentence plea-withdrawal motions)
- State v. Porch, 100 N.E.3d 1134 (8th Dist. 2017) (an oral motion at sentencing may be untimely; timeliness matters when considering withdrawal)