State v. MooreState v. Moore
{¶1} Defendant-appellant, Michael Moore, appeals his conviction for attempted felоnious assault, raising two assignments of error:
I. Appellant was not afforded effectiv e assistance of counsel.
II. The trial court erred and abused its discretion in denying the appellant‘s pre-sentencing motion to withdraw his plea.
{¶2} Finding no merit to the appeal, we affirm.
{¶3} Moore was indicted on one count of felonious assault, in violation of
{¶4} Nearly six months later, Moore was apprehended and then subsеquently brought to court for sentencing on February 24, 2012. At sentencing, Moore was represented by new counsel that Moore had retained the day beforе sentencing. At the sentencing hearing, Moore‘s new counsel indicated that he had filed a motion to withdraw the previously entered guilty plea. The basis for the motion was that he was recently retained and needed more time to review the transcript of the guilty plea and the state‘s discovery. The triаl court denied the motion and proceeded to sentencing.
{¶5} The trial court ultimately imposed a three-year prison term and informed Moore that he was subject to three years mandatory postrelease control.
Ineffective Assistance of Counsel
{¶7} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel‘s errors, the proceeding‘s result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. There is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance, and that strategy and tactical decisions exercised by defense counsel are well within the range of professionally reasonable judgment. Strickland at 699.
{¶8} Aside from the fact that the record contains no evidence to support Moоre‘s allegations, the allegations alone fail to satisfy either prong of the Strickland test. The gravamen of Moore‘s allegation is that his trial counsel was deficient for not filing a motion to withdraw his guilty plea earlier. But the record reveals that Moore failed to appear for his scheduled hearing and was capias for nearly six months. Thus, the alleged untimeliness of any motion to withdraw is directly related to Moore‘s actions and cannot be blamеd on his
{¶9} Further, the record clearly supports that Moore‘s plea was knowingly, voluntarily, and intelligently made. The trial court fully complied with
{¶10} The first assignment of error is overruled.
Withdrawal of Guilty Plea
{¶11} In his second assignment of errоr, Moore argues that the trial court abused its discretion in denying his presentence motion to withdraw his guilty plea. We disagree.
{¶12} Generally, a motion to withdrаw 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). A defendant does not, however, have an absolute right to withdraw his pleа before sentencing.
No abuse of discretion is demonstrated where: (1) the accused is represented by highly competеnt counsel, (2) the accused was afforded a full hearing, pursuant to
Crim.R. 11 , before entering the plea, (3) after the motion to withdraw is filed the accused is given a complete and impartial hearing on the motion, and (4) the record reveals that the trial court gave full and fair consideration to the plea withdrawal request.
State v. Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.), citing State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).
{¶13} This court has further recognized that these factors have been expanded to include:
(5) whether the court gаve full and fair consideration to the motion; (6) whether the motion was made in a reasonable time; (7) whether the motion states specific reasons for withdrawal; (8) whether the accused understood the nature of the charges and the possible penalties; and (9) whether the accused was pеrhaps not guilty or had a complete defense.
(Citation and quotation omitted.) State v. Robinson, 8th Dist. No. 89651, 2008-Ohio-4866, ¶ 23.
{¶14} Applying these standards, we cannot say that the trial court abused its discretion in denying Moore‘s motiоn to withdraw his guilty plea. At the hearing, Moore‘s new counsel did not raise any issues regarding the competency of Moore‘s original counsel or any
{¶15} The second assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover of 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR