State v. BurressState v. Burress
Stеven H. Eckstein, Washington Court House, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Hess, J.
{¶1} Roger D. Burress appeals his conviction for one count of possession of drugs. In his sole assignment of error, Burress contends that the trial court abused its discretion when it denied his pre-sentence motion to withdraw his guilty plea. Because the trial court’s decision was not unreasonable, arbitrary, or unconscionable, we overrule the assignment of error and affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} In October 2020, the Lawrence County grand jury indicted Burress on one count of possession of drugs in violation of
{¶3} Two days before his sentencing hearing, Burress filed a motion to withdraw his guilty plеa, “because he claims he is innocent and does not wish to plead guilty to something that he did not do.” The trial court held a hearing on Burress’s motion at which he claimed that he was not guilty, “I searched with my mind and – and everything, and I’m just not guilty.” Burress explained that he believed there was a witness in Florida who would allegedly exonerate him, though he did not know the witness’s full name. The trial court stated that the witness disclosure list filed by his attorney showed that this alleged witness was known to Burress prior to entering his guilty plea.
I am finding that * * * all the requirements * * * to have been addressed at this time, in that finding that the accused was represented by highly competent counsel. The accused was given a full Criminal 11 hearing before the Change of Plea. Uh, there has now been now a full hearing on the Withdraw Motion, and the trial court has gave [sic] full and fair consideration to the Motion but finds the Motion to be nothing more than but a change of heart. Additional factors, not required, but considerations the Court can make, whether the Motion was made within a reasonable time. I don’t find it was made within a reasonable time. Again, being filed the day before the sentencing hearing for issues that we are being now told that * * * went back to the beginning of October * * * none of these issues аre different than what they existed prior to you changing your plea in the first place. Uh, the Motion did set out the specific reasons for the withdrawal, but there’s no indication at all whatsoever that if we wouldn’t have went forward with the trial that was originally scheduled, which was only vacated due to the fact that you admitted to committing these crimes and changed your plea, that we would’ve been in any different situation than we are right now.
The trial court sentenced Burress to the jointly recommended sentence of four to six years in prison.
II. ASSIGNMENT OF ERROR
{¶5} Burress presents one assignment of error:
The trial court abused its discretion in denying the Defendant-Appellant’s pre-sentence motion to withdraw his guilty plea.
III. LAW AND ANALYSIS
{¶6}
{¶7} Nine factors we consider when reviewing a trial court’s ruling on a pre-sentence motion to withdraw a guilty plea are:
(1) whether “highly competent counsel” represented the defendant; (2) whether the trial court afforded the defendant “a full
Crim.R. 11 hearing before entering the plea“; (3) whether the trial court held “a full hearing” regarding the dеfendant’s motion to withdraw; (4) “whether the trial court gave full and fair consideration to the motion“; (5) whether the defendant filed the motion within a reasonable time; (6) whether the defendant’s motion gave specific reasons for the withdrawal; (7) whether the defendant understood the naturе of the charges, the possible penalties, and the consequences of his plea; (8) whether the defendant is “perhaps not guilty or ha[s] a complete defense to the charges“; and (9) whether permitting the defendant to withdraw his plea will prejudice the state. (Braсkets sic.)
State v. Howard, 2017-Ohio-9392, 103 N.E.3d 108, ¶ 24 (4th Dist.), quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st Dist.). ” ’ “Consideration of the factors is a balancing test, and no one factor is conclusive.” ’ ” Id., quoting State v. Jones, 10th Dist. Franklin No. 15AP-530, 2016-Ohio-951, ¶ 14, quoting State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 13. ” ‘The ultimate question is whether there exists a “reasonable and legitimate basis for the withdrawal of the plea.” ’
{¶8} As to the first factor, the competency of trial counsel, Burress concedes that the trial court found that he was represented by highly competent counsel, that he “does a fantastic job” and is one of the few members of the Lawrence County Bar with his level of experience in higher level felony cases. However, Burress argues that he did not believe his attorney was communicating with witnesses on his behalf. He argues that this factor could weigh in his favor.
{¶9} As to the second, third, and fourth factors, Burress conсedes he had a full
{¶11} With regard to the sixth factor (whether the defendant’s motion gave specific reasons for the withdrawal), the fact that Burress provided specific reasons for why he wanted to withdraw his guilty plea weighs in favor of granting the motion to withdraw. Howevеr, “[w]hen reviewing a trial court’s ruling on a motion to withdraw a plea, ‘the good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by that court.’ ” Burke at ¶ 17, quoting State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. In this case, the trial court did not find the specific reasons for withdrawal credible. The trial court found that the witness
{¶12} The seventh factor (whether the defendant understood the nature of the charges, the possible penaltiеs, and the consequences of the plea) weighs against granting the motion to withdraw. Burress concedes that he did not set forth this factor as a reason for filing his motion and that it does not weigh in his favor.
{¶13} The eighth factor (whether the defendant is perhaps not guilty or has a complеte defense to the charges) is entitled to little weight in favor of granting the motion to withdraw. Defendant’s claim of innocence, without more, is an insufficient ground to withdraw the plea:
When faced with a claim of innocence, ” ‘the trial judge must determine whether the claim is anything more thаn the defendant‘s change of heart about the plea agreement.’ ” A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a guilty plea. Likewise, a defendant‘s protestations of innocence аre not sufficient grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered. (Citations omitted.)
State v. Maddox, 2017-Ohio-8061, 98 N.E.3d 1158, ¶ 18 (8th Dist.); State v. Palmer, 4th Dist. Highland No. 02CA9, 2002-Ohio-6345, ¶ 6 (“This rationale amounts to a ‘change of heart,’ which is not a legitimate basis for granting a presentencing motion to withdraw a plea“). Burress claimed he was innocent аnd that he had a witness that could exonerate him, yet he knew of and had identified this witness prior to entering his guilty plea. The trial court found this to be a change of heart motion:
This is a change of heart. * * * [N]one of these issues are different than what they existed prior to your changing your plea in the first place * * * there’s no indication at all whatsoever that if we wouldn’t have went forward with the trial that was originally scheduled, which was only vacated due to the fact that you admitted to committing these crimes and changed your plea, that we would’ve been in any different situation than we are right now. * * *
So, a change of heart * * * is not a reasonable basis requiring the Court to permit the Defendant to withdraw a plea * * *.
{¶14} The ninth factor (whether permitting the defendant to withdraw the plea will prejudice the state), Burress concedes, does not weigh in his favor. He admits he did not raise this as a factor in his motion or address it at the hearing.
{¶15} After balancing the above factors, the majority of which weigh against granting the motion to withdraw, we cannot conclude that the trial court’s denial of the motion to withdraw the guilty plea was unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion when it denied the pre-sentence motion to withdraw the guilty plea. Accordingly, we overrule the assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
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 60 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 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Suрreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 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. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.