State v. BurrisState v. Burris
Rendered on November 19, 2013
SADLER, J.
{¶ 1} Defendant-appellant, Clay O. Burris, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of one count of aggravated robbery, a felony of the first degree, in violation of
I. BACKGROUND
{¶ 2} Appellant was indicted for aggravated robbery, a first-degree felony, two counts of robbery, second and third-degree felonies respectively, kidnapping, a first-degree felony, and having a weapon while under disability, a third-degree felony. All but the last charge carried a firearm specification. Initially, appellant entered guilty pleas to
{¶ 3} The trial court held a plea hearing, in which it addressed the provisions required by
{¶ 4} At the November 8, 2012 hearing, the trial court sua sponte expressed concern with appellant‘s statement reflected in the PSI that he “hears voices and acts out on them.” (Nov. 8, 2012 Tr., 3.) The trial court also referenced a letter from the record of previous criminal cases brought against appellant which discussed appellant‘s mental illness. (Nov. 8, 2012 Tr., 3.) After the trial court‘s comments and prior to any argument from the parties, appellant requested a new competency evaluation. The trial court granted appellant‘s request, delayed the remainder of the hearing, and ordered a competency evaluation.
{¶ 5} At the competency and
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant brings the following assignment of error for our review:
The trial court erred, abused its discretion, and denied [appellant] due process of law by denying his presentence motion to withdraw his guilty plea.
Fifth andFourteenth Amendments to the United States Constitution ;Section 16, Article I of the Ohio Constitution ;Crim.R. 32.1 .
III. DISCUSSION
{¶ 8} Appellant‘s sole assignment of error alleges the trial court abused its discretion in denying his presentence motion to withdraw his guilty plea. We disagree.
{¶ 9} “The general rule is that motions to withdraw guilty pleas prior to sentencing are to be freely and liberally allowed.” State v. Kirigiti, 10th Dist. No. 06AP-612, 2007-Ohio-6852, ¶ 5, citing State v. Peterseim, 68 Ohio App.2d 211, 214 (8th Dist.1980). However, the right to withdraw a guilty plea prior to sentencing is not absolute, as “[o]ne who enters a guilty plea has no right to withdraw it.” State v. Xie, 62 Ohio St.3d 521, 526 (1992). The initial burden under
{¶ 10} On review, ” ‘[a]n appellate court is not permitted to perform a de novo review of the trial court‘s decision with respect to a withdrawal of a guilty plea.’ ” Kirigiti at ¶ 6, quoting State v. Van Dyke, 9th Dist. No. 02CA008204, 2003-Ohio-4788, ¶ 7. Instead, our standard of review requires us to consider whether the trial court abused its discretion in its decision to grant or deny the motion. Xie at 527. “It must be emphasized
{¶ 11} This court has identified a number of factors to be used when determining whether a trial court abused its discretion in denying a motion to withdraw a guilty plea. These factors include: (1) whether the defendant was represented by highly competent counsel, (2) whether the trial court conducted a full
{¶ 12} Appellant concedes that he did receive a full
{¶ 13} In Cuthbertson, the defendant entered a guilty plea to a charge of murder pursuant to a plea agreement with the state. The defendant, less than one week after entering his plea and without the aide of counsel, requested to withdraw his guilty plea. At the
{¶ 14} Appellant asserts that the facts of Cuthbertson are similar to the case at hand and argues we should find accordingly. Specifically, appellant asserts, as in Cuthbertson, he was pressured into pleading guilty, and he is innocent of the charges levied against him.
{¶ 15} We find this case distinguishable from Cuthbertson in several important aspects. In Cuthbertson, the defendant testified at the
{¶ 16} Here, in denying appellant‘s motion to withdraw his guilty plea, the trial court issued a 17-page decision which considered both appellant‘s claim of improper influence and his assertion that he was innocent of all charges levied against him. In considering appellant‘s argument that his wife improperly influenced him to plead guilty, the court noted that appellant‘s wife attended the trial on October 1, 2012, and the court granted her request to speak with appellant. At no time did appellant object to speaking with her, nor was there any evidence that the relationship was an “antagonistic” one. Appellant‘s wife‘s “expressed reason for urging defendant to ‘take the deal’ was simply that she had a son incarcerated already, and did not want [appellant] to be tried and then to face the possibility of an extraordinarily long sentence in prison if he lost.” (Feb. 6, 2013 Journal Entry Denying Motion to Withdraw Guilty Plea, 4.) Prior to appellant entering his guilty plea, the trial court stated “[i]n all seriousness, I don‘t want to have you come back tomorrow and say, ‘you know, Judge, I really was getting my arm twisted’ ” to plead guilty. (Feb. 6, 2013 Journal Entry Denying Motion to Withdraw Guilty Plea, 7,
{¶ 17} Appellant also argues his case is analogous to Cuthbertson because, like the defendant in that case, appellant said he is innocent of all charges. In Cuthbertson, the defendant gave testimony at the withdrawal hearing that he was innocent of all charges. However, a review of the record reveals, and the trial court held, that here, appellant never testified either live at the
{¶ 18} In denying appellant‘s
{¶ 19} Accordingly, we overrule appellant‘s sole assignment of error.
IV. CONCLUSION
{¶ 20} Having overruled appellant‘s sole assignment of error, we affirm the decision of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).