STATE OF OHIO, Plaintiff-Appellee, - vs - DOUGLAS L. MONTGOMERY, Defendant-Appellant.
CASE NOS. 2016-A-0057 and 2016-A-0058
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
2017-Ohio-1414
[Cite as State v. Montgomery, 2017-Ohio-1414.]
DIANE V. GRENDELL, J.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Douglas L. Montgomery, appeals from the judgment of the Ashtabula County Court of Common Pleas, denying his Motions to Withdraw his guilty pleas. The issue to be determined by this court is whether the denial of a defendant’s presentence motion to withdraw his guilty plea is an abuse of discretion when the trial court allowed the defendant to state his reasons for withdrawal, relied on statements made at the plea hearing to support its decision to deny the motion, and did
{¶2} On March 2, 2016, in Ashtabula Court of Common Pleas Case No. 16 CR 00081, Montgomery was indicted for Domestic Violence, a felony of the third degree, in violation of
{¶3} A plea hearing for both cases was held on July 5, 2016. The State agreed that Montgomery would enter pleas of guilty to Domestic Violence and an amended charge of Attempted Retaliation and the remaining charge would be dismissed.1 Written Pleas of Guilty signed by Montgomery indicated the maximum potential punishments and outlined the rights being waived by entering the pleas.
{¶4} At the hearing, Montgomery stated that he understood his rights and had not been threatened or promised anything in exchange for his pleas, aside from a recommendation to the court to allow a personal recognizance bond. He indicated that he had sufficient time to discuss the case with his attorney, who answered all of Montgomery’s questions. When asked whether he was satisfied with counsel, he responded “so far, yes.” Montgomery indicated that he would plead “no contest,” and the court noted that the written pleas stated “guilty.” Montgomery changed his pleas to guilty, was asked if he was “sure” and responded affirmatively.
{¶6} On September 9, 2016, Montgomery filed Motions to Withdraw his guilty pleas.
{¶7} On the same date, the sentencing hearing was held. Prior to sentencing, the motions were addressed and Montgomery was asked to provide his reasons for seeking to withdraw his pleas. Montgomery explained that he was innocent and had not wanted to enter the pleas “to begin with.” He stated “I was told something totally different” when speaking with his attorney, although he did not further explain this statement. He reiterated that he was innocent and was talked into taking the pleas by counsel. The court noted that it had fully discussed the pleas with Montgomery, they were knowingly, intelligently and voluntarily entered, and no grounds were demonstrated to withdraw the pleas.
{¶9} Montgomery timely appeals and raises the following assignment of error:
{¶10} “The trial court erred to the prejudice of the appellant when it denied his motion to withdraw his guilty plea.”
{¶11} Montgomery argues that the trial court abused its discretion in denying his Motions to Withdraw his guilty pleas, since the trial court did not satisfy all of the factors found in State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).
{¶12} Under
{¶13} “The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” (Citation omitted.) State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, 880 N.E.2d 515, ¶ 15 (11th Dist.); State v. Bisson, 11th Dist. Portage No. 2012-P-0050, 2013-Ohio-2141, ¶ 23 (“since the determination of
{¶14} This court has applied the four-factor test set forth in Peterseim to determine whether a trial court has abused its discretion in denying a presentence motion to withdraw a plea. State v. Parham, 11th Dist. Portage No. 2011-P-0017, 2012-Ohio-2833, ¶ 19. Under Peterseim, a trial court does not abuse its discretion in denying a motion to withdraw a plea: “(1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
{¶15} Montgomery does not contest the second factor, that there was a full hearing, pursuant to
{¶16} First, he contends that the trial court “failed to address whether [he] was represented by highly competent counsel.” With respect to this factor, courts have held that, “[g]enerally, a properly licensed attorney practicing in this state is presumed to be competent.” State v. Brandon, 11th Dist. Portage No. 2009-P-0071, 2010-Ohio-6251, ¶ 19; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. At the plea hearing, Montgomery confirmed that he did not have any problems with his
{¶17} There is also no question that a hearing was held on the motion to withdraw his pleas, prior to sentencing. “Inviting and hearing oral arguments on a motion to withdraw a guilty plea at the sentencing hearing can constitute a full and fair hearing on that motion.” State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017, 2006-Ohio-4317, ¶ 78. Montgomery does not dispute that a hearing was held but instead argues he was only permitted to make a statement and the court did not inquire further into why he wished to withdraw the pleas. In his estimation, this was not an adequate and impartial hearing and no full and fair consideration was given to his motion.
{¶19} Montgomery emphasizes his assertion that he was “railroaded.” This was not supported by any evidence or allegations of what actions were taken to “railroad” him, other than that his attorney “talked him into” entering the pleas, which is contrary to his statements at the plea hearing. “[B]old assertions without evidentiary support simply should not merit the type of scrutiny that substantiated allegations would merit” in plea hearings. (Citations omitted.) State v. Robinson, 11th Dist. Ashtabula No. 2003-A-0125, 2005-Ohio-5287, ¶ 11, quoting State v. Hall, 8th Dist. Cuyahoga No. 55289, 1989 WL 42253, 1 (Apr. 27, 1989).
{¶20} Montgomery cites State v. Bekesz, 75 Ohio App.3d 436, 599 N.E.2d 803 (11th Dist.1991), in support of the proposition that he did not receive an adequate hearing and the motions were not given full and fair consideration. In Bekesz, prior to the sentencing hearing, the court did not allow the appellant to testify regarding his motion or allow him to present any argument in favor of his request to withdraw, repeatedly stating that motions could not be filed or pursued during that time. This was,
{¶21} Given the foregoing circumstances, the court provided Montgomery with both a complete and impartial hearing and full and fair consideration of the merits of his motion. See State v. Miller, 11th Dist. Portage No. 2009-P-0090, 2011-Ohio-1161, ¶ 29 (the court’s decision to overrule the motion to withdraw a plea was fair and informed when a hearing was held at which the trial court heard the defendant’s allegations and considered them in light of the evidence and testimony presented). Consequently, all Peterseim factors were satisfied. The trial court did not abuse its discretion in denying Montgomery’s Motions to Withdraw his pleas.
{¶22} The sole assignment of error is without merit.
{¶23} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas, denying Montgomery’s Motions to Withdraw his guilty pleas, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.