State v. McNeilState v. McNeil
Lead Opinion
Maintaining that the trial court abused its discretion, defendant-appellant, Donelle McNeil, challenges the denial of his presentence motion to withdraw his plea of guilty to a charge of аggravated robbery, which included a firearm specification. Concluding that the court properly exercised its discretion, we overrule McNeil’s assignment of error.
McNeil was indicted for aggrаvated robbery, with a firearm specification, in violation of
Two days before sentencing, McNeil filed a motion to withdrаw his guilty plea, asserting that he was innocent of the underlying charges. On the day of sentencing, a brief hearing ensued with the trial court considering comments from McNeil’s counsel. Upon reviewing McNeil’s responses to the
It is well established that, even though a defendant does not have an absolute right to withdraw a plea prior to sentencing, a presentence motion to withdraw a guilty plea should be “freely and libеrally granted.”
1
Although such a motion is to be treated liberally, the trial court’s decision is still ultimately one of discretion. In determining whether the trial court has properly exercised its
Although an extensive hearing was not held on McNeil’s motion to withdraw his plea, we cannot say that the trial court abused its discretion. 4 The scope of the hearing to be held on a motion to withdraw a plea should reflect the substantive merit of the motion itself. 5 “[B]old assertions without evidentiary support simply should not merit the type of scrutiny that substantiated allegations would merit.” 6 Here, McNeil’s motion to withdraw his plea of guilty merely stated that he was innocent but did not offer any evidentiary material to support this “bold assertion.” Prior to signing the plea agreement, McNeil had filed a notice of alibi, indicating that he was at his sister’s home “or in the [surrounding] neighborhood” on the date and time that the aggravated robbery occurred. But, at the hearing on the motion to withdraw the guilty plea, McNeil did not indicate that he had any possible defense to the underlying charges. Further, MсNeil did not attempt to call any witness or present any evidence in support of his innocence. Thus, we conclude that the trial court gave appropriate consideration to McNeil’s motion to withdraw his plea in light of the lack of any evidentiary support offered for the assertion that he was innocent.
McNeil also told the trial court that he had signed the plea аgreement because he was scared that if he went to trial he would possibly receive a longer sentence than the one that was offered by the state in the plea agreement. Though, as the trial court noted, this was an understandable fear, this was exactly what McNeil was considering when deciding whether to sign the plea agreement. The record
Because McNeil voluntarily entered his guilty plea, clearly understanding the nature of the charges and the possiblе penalties, and because the trial court gave McNeil’s motion to withdraw his plea the consideration it merited, in light of the lack of evidence offered to support the claim that McNeil was innocent, we hold that the trial court did not abuse its discretion in denying McNeil’s motion to withdraw his plea of guilty. Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
Notes
.
State v. Xie
(1992),
.
State v. Peterseim,
(1980),
.
State v. Fish
(1995),
. See
Slate v. Taylor
(Dec. 26, 1997), Hamilton App. No. C-961141, unreported,
.
State v. Abdelhag
(July 31, 1997), Cuyahoga App. No. 71136, unreported,
. State v. Hall, supra.
Dissenting Opinion
dissenting.
All Ohio courts say that a motion to withdraw a plea made before sentencing should be “freely and liberally granted.” 7 But then this court too often glosses over this rule of law and affirms even the slightest nod by the trial court. The consideration here was slight indeed.
The record reveals that the trial court denied McNeil’s motion to withdraw his guilty plea because McNeil (1) had received а full Grim.R. 11 hearing before entering his plea and (2) had entered his plea voluntarily. While I agree that McNeil entered his plea voluntarily after receiving a full
The function of a hearing on a motion to withdraw a plea is to determine whether there is a “rеasonable and legitimate basis” for the withdrawal of the
Based on the record before this court, I conclude that McNeil was not afforded an adequate hearing. Due process requires not only reasonable notice, but also an opportunity to be heard. The trial court did not give McNeil a full opportunity to be heard, either by his own words or by his counsel’s representations on his behalf, regarding his claim of innocence and the possibility that he had a complete defense to the charges. Further, а factor mitigating against withdrawal of a plea, prejudice to the state, does not seem to apply here. 9
Our colleagues in the Seventh Appellate District have, in a recent case strikingly similar to ours, put it thus: “Ultimately, this court must weigh the factors in favor of permitting a plea withdrawal with the factors against such an action. Here, we have a multitude of reasons in favor of plea withdrawal: professed innocence; confusion; timeliness; and a judicial standard of free and liberal granting of such a motion. To offset these factors, we merely have the restoration of the state of Ohio to the position it had prior to the plea bargain, i.e., it has to prove the guilt of a party presumed to be innocent. Without more, we must conclude that the balance scale tilts so far in favor of appellant that the denial of appellant’s motion to withdraw his plea was unfair.” 10 I cannot say it better.
Because the trial court did not provide an adequate hearing on McNeil’s motion to withdraw his guilty plea, I would reverse his conviction and remand this case for a new hearing consistent with the law.