JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 12, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628273-A

Appearances:

Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant County Prosecuting Attorney, for appellee.

Russell S. Bensing, for appellant.

LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Yvonne Hall (“Hall“) appeals the trial court‘s denial of her motion to withdraw her guilty plea and defense counsel‘s motion to withdraw as counsel. For the reasons that follow, we affirm.

{¶ 2} In 2018, Hall was charged with two counts of rape, two counts of gross sexual imposition, and one count of kidnapping. The victim was the five-year-old child of Hall‘s partner, with whom she lived. As charged, Hall was facing a mandatory sentence of life in prison. Hall entered into a plea bargain with the state and pleaded guilty to one count of sexual battery and one count of gross sexual imposition.

{¶ 3} Prior to sentencing, Hall‘s attorney filed a motion to withdraw as counsel. The attorney also filed a motion to withdraw Hall‘s guilty plea. At the sentencing hearing, Hall told the court that she wanted to withdraw her guilty plea because she was innocent and her attorney had told her that if she pleaded guilty, she might get probation. She expressed that her attorney was discussing the case with her father, who had retained the attorney, and the attorney had pressured her into pleading guilty. Hall‘s attorney told the court that he had explained to his client that the case had many difficulties and he had counseled his client against taking the case to trial. The state objected to Hall‘s motion to withdraw her plea.

{¶ 4} The court denied both motions and sentenced Hall to eight years in prison, five years of postrelease control, and classified her as a Tier III sex offender.

{¶ 5} Hall filed a notice of appeal and raises two assignments of error:

The trial court erred in denying defense counsel‘s motion to withdraw.
The trial court erred in denying defendant‘s motion to withdraw her guilty plea.

{¶ 6} In the first assignment of error, Hall contends that the trial court erred when it denied her attorney‘s motion to withdraw as counsel of record.

{¶ 7} Pursuant to the Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution, a criminal defendant has the right to counsel. State v. Milligan, 40 Ohio St.3d 341, 533 N.E.2d 724 (1988), paragraph one of the syllabus. A criminal defendant does not, however, have the right to counsel with whom he or she has a rapport or with whom he or she can develop a meaningful lawyer and client relationship. State v. Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997). “Under the federal and state constitutions, the defendant is simply entitled to the effective assistance of legal counsel.” State v. Hudson, 8th Dist. Cuyahoga No. 98967, 2013-Ohio-1992, ¶ 7.

{¶ 8} This court reviews a trial court‘s decision on a motion to withdraw as counsel for an abuse of discretion. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. Similarly, we review a trial court‘s decision regarding a defendant‘s request for substitute counsel for an abuse of discretion. State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). An abuse of discretion occurs when the trial court‘s decision was unreasonable, arbitrary, or unconscionable. State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12.

{¶ 9} In this case, Hall‘s attorney, a seasoned defense attorney, was retained by Hall‘s father to represent Hall. Prior to her plea, Hall and her attorney met 15 times to discuss the case and neither Hall nor the attorney raised any issue with the attorney‘s representation of Hall. During her plea hearing, Hall told the court that she was satisfied with her legal representation.

{¶ 10} Hall‘s sentencing hearing was originally set for January 15, 2018. Hall requested two continuances, which the trial court granted. It was after the second continuance that Hall asked her attorney to withdraw as counsel. In the motion to withdraw, Hall‘s attorney stated: “The Defendant has requested that I withdraw from her case and that a Public Defender be appointed despite the fact that she [pled] guilty to two [third-degree felonies]. She believes that I am not representing her properly.”

{¶ 11} At the sentencing hearing, although neither Hall nor her attorney had previously mentioned any discord, the attorney stated that Hall “indicated at various times she was dissatisfied with me. * * * We weren‘t getting along. She was dissatisfied with me.” Hall told the court that she wanted to “withdraw” her attorney because the attorney told her if she went to trial she was facing life in prison, but if she accepted a plea offer, she might receive probation. Hall also accused her attorney of not keeping her informed of the status of her case and discussing the case with her father.

{¶ 12} In response, Hall‘s attorney briefly reviewed the facts of the case and stated:

So, I felt, in sum, that after going over everything, that she [Hall] was in danger of losing the case at trial for a lot of different reasons. And I explained that to her, and I talked to her father. Her father is a long-time client of mine, and I asked him to talk to her about it because of the seriousness of the offense. That‘s why the father * * * advised her to take the plea.

So, I figured family coming into this would be a good thing, not a bad thing. She never told me that I couldn‘t talk to her dad. Her dad hired me to represent her.

(Tr. 24-25.)

{¶ 13} The court noted that “client satisfaction isn‘t a requirement” and denied the motion to withdraw.

{¶ 14} After careful consideration, we find no abuse of discretion. During the plea colloquy, the court told Hall that she would be sentenced to one to five years in prison on each count, as per the plea agreement, and that the offenses were not allied offenses of similar import, so she would be sentenced to up to ten years in prison. Hall stated that she understood the charges against her and the penalties involved. In addition, Hall was facing a life sentence if convicted of the charges with which she was indicted. See R.C. 2907.02(A)(1)(b) and 2907.02(B).

{¶ 15} We do, however, note with some concern the attorney‘s purported relationship with Hall‘s father, who retained the attorney. Although the father may have been the person paying the attorney bills, the attorney was hired to represent Hall and the attorney-client relationship was between the attorney and Hall — not between the attorney and Hall‘s father. However, after a careful review of the record, we do not find evidence that the relationship between the father and the attorney interfered with the attorney‘s representation of his client. Although we could certainly see circumstances where a defendant may terminate the services of retained counsel in a criminal case, based on the facts of this case, the court used its discretion to deny defense counsel‘s motion to withdraw. In light of the above, we find that the trial court did not abuse its discretion. The first assignment of error is overruled.

{¶ 17} In the second assignment of error, Hall contends that the trial court erred when it denied her motion to withdraw her guilty plea.

{¶ 18} Generally, a motion to withdraw a guilty plea made before sentencing should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). 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 conviction and permit the defendant to withdraw his or her plea.”

{¶ 19} A defendant does not, however, have an absolute right to withdraw his or her plea before sentencing. Xie at paragraph one of the syllabus. When presented with a presentence motion to withdraw a guilty plea, a trial court “must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. Following the hearing, the trial court‘s decision to grant or deny a motion to withdraw a plea will be upheld absent an abuse of discretion. Id. at 527. Thus, while a presentence motion to withdraw a guilty plea generally should be “freely and liberally granted,” our review of the trial court‘s denial of such a motion is for an abuse of discretion.

{¶ 20} We will not find that the trial court abused its discretion if (1) the defendant was represented by highly competent counsel, (2) the defendant was afforded a full hearing, pursuant to Crim.R. 11, before entering the plea, (3) the trial court afforded the defendant a complete and impartial hearing on the motion to withdraw the guilty plea, and (4) the record shows that the trial court gave full and fair consideration to the motion. State v. Bosby, 8th Dist. Cuyahoga No. 94466, 2011-Ohio-599, ¶ 8, citing State v. Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828 (2d Dist.). This court has also considered other factors, including (5) whether the state will be prejudiced by the withdrawal, (6) whether the motion was made in a reasonable time, (7) the reasons for the withdrawal request, (8) whether the accused understood the nature of the charges and the possible penalties, and (9) whether the accused was perhaps not guilty or had a complete defense. State v. Walcot, 8th Dist. Cuyahoga No. 99477, 2013-Ohio-4041, ¶ 19, citing State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). The above list of factors is not exhaustive and “[n]o single factor is conclusive[.]” State v. Burris, 10th Dist. Franklin No. 13AP-238, 2013-Ohio-5108, ¶ 11, citing State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, and Fish.

{¶ 21} Hall takes issue with the first and second requirements. She claims that her relationship with her counsel was irretrievably damaged. However, as discussed under the first assignment of error, Hall has not shown that was the case. Hall claims that her attorney did not effectively represent her at the plea withdrawal hearing and was “not competent” because, instead of advocating for her position that she be allowed to withdraw her plea, he “did nothing more than explain why Ms. Hall should have taken [the plea].”

{¶ 22} The record reflects that Hall was represented by highly competent and experienced counsel. Hall was facing a maximum mandatory sentence of life in prison if she was convicted as indicted. Hall‘s attorney, who met with his client numerous times prior to the plea hearing, stated that he had thoroughly reviewed the case with Hall, including showing her video evidence, and was concerned about the risk to his client if they took the case to trial. It is evident from the record that the attorney was attempting to strike a balance between his duty to advocate for his client‘s desire to discharge him and withdraw her plea and what he believed to be a sound plea deal. A review of the plea colloquy shows that the trial court afforded Hall a full Crim.R. 11 hearing before she entered her guilty pleas.

{¶ 23} Hall is unable to articulate any other reason to justify her position that she be allowed to withdraw her guilty plea. Her alleged innocence was known to her at the time of the plea agreement, as was the fact that she was facing mandatory prison time. See Bosby, 8th Dist. Cuyahoga No. 94466, 2011-Ohio-599, at ¶ 11. Hall was afforded a presentence investigation after her plea and before her sentence. When interviewed by probation, she declined to make a statement; at that time, she did not insist on her innocence or state that she wanted to withdraw her plea or fire her retained attorney and seek assigned counsel. This court has consistently held that a mere change of heart is insufficient to justify a withdrawal of a guilty plea. Id.

{¶ 24} We also consider the other factors and find that none of them weigh in Hall‘s favor. Hall stated that she was satisfied with her counsel at her plea hearing. Although Hall‘s motion was timely made, she failed to articulate any substantial reason for withdrawal. Likewise, despite Hall‘s claimed innocence, as pointed out by her attorney, there was evidence to the contrary. Under these circumstances, we cannot say that the trial court abused its discretion in denying Hall‘s presentence motion to withdraw her plea.

{¶ 25} In light of the above, the second assignment of error is overruled.

{¶ 26} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

EILEEN T. GALLAGHER, P.J., and

FRANK D. CELEBREZZE, JR., J., CONCUR