STATE OF OHIO v. MICHAEL P. MOORE
No. 98132
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 6, 2012
2012-Ohio-5734
BEFORE: Boyle, P.J., Jones, J., and Keough, J.
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-548885
Michael H. Murphy
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: William Leland Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{11} Defendant-appellant, Michael Moore, appeals his сonviction for attempted felonious assault, raising two assignments of error:
- Appellant was not afforded effective assistance of counsel.
- The trial court erred and abused its discretion in denying the appellant‘s рre-sentencing motion to withdraw his plea.
{12} Finding no merit to the appeal, we affirm.
{13} Moore was indicted on one count of felonious assault, in violation of
{14} Nearly six months later, Moore was apprehended and then subsequently brought to court for sentencing on February 24, 2012. At sentencing, Moore was represented by new counsel that Moore had retained the day before sentencing. At thе sentencing hearing, Moore‘s new counsel indicated that he had filed a motion to withdraw the previously entered guilty plea. The basis for the motiоn was that he was recently retained and needed more time to review the transcript of the guilty plea and the state‘s discovery. The trial court denied the motion and proceeded to sentencing.
{15} The trial court ultimately imposed a three-year prison term and informed Moore thаt he was subject to three years mandatory postrelease control.
Ineffective Assistance of Counsel
{17} To еstablish 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.
{18} Aside from the fact that the record contains no evidence to support Moore‘s allegations, the allegations alone fail to satisfy either prong of the Strickland test. The gravamen of Moore‘s allegаtion 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 blamed on his
{19} Further, the record clearly supports that Moore‘s plea was knowingly, voluntarily, and intelligently made. The trial сourt fully complied with
{110} The first assignment of error is overruled.
Withdrawal of Guilty Plea
{111} In his second assignment of error, Moore argues that the trial court abused its discretion in denying his presentence motiоn to withdraw his guilty plea. We disagree.
{112} 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). A defеndant does not, however, have an absolute right to withdraw his plea before sentencing.
No abuse of discretiоn is demonstrated where: (1) the accused is represented by highly competent counsel, (2) the accused was afforded a full hearing, pursuant to
Crim.R. 11 , bеfore 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 gave full and fair consideration to the motion; (6) whether the motion was madе 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 perhaps not guilty or had a complete defense.
(Citation and quotation omitted.) State v. Robinson, 8th Dist. No. 89651, 2008-Ohio-4866, ¶ 23.
{114} Applying thesе standards, we cannot say that the trial court abused its discretion in denying Moore‘s motion to withdraw his guilty plea. At the hearing, Moore‘s new counsel did not rаise any issues regarding the competency of Moore‘s original counsel or any
{15} The second assignment of error is overruled.
{116} 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 Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR