State v. PowersState v. Powers
DECISION AND JUDGMENT ENTRY
{¶ 1} Stephen P. Powers appeals his conviction in the Pickaway County Court of Common Pleas. Powers asserts that the trial court abused its discretion by denying his presentence motion to withdraw his guilty plea. Because we find that the trial court‘s decision was not arbitrary, unreasonable or unconscionable, we disagree. Accordingly, we affirm the judgment of the trial court.
I.
{¶ 2} The Pickaway County Grand Jury indicted Powers on one count of murder, an unspecified fеlony, in violation of
{¶ 3} On April 28, 2003, the date set fоr trial, Powers entered into a plea agreement with the State. Pursuant to the terms of the agreement, the State amended the indictment by amending count one to involuntary manslaughter with a firearm specification, and merging counts two, three, and four into count one. Thereafter, the trial court conducted a full
{¶ 4} Powers entered a plea of guilty to the offense of involuntary manslaughter with a firearm specification. Upon the trial court‘s inquiry, Powers indicated that hе was making the plea voluntarily, with understanding of the nature of the crime charged and its penalty, and without threat or promise of leniency. The trial court accepted the plea.
{¶ 5} After entering the plea, Powers retained new counsel. On July 1, 2003, two months after entering his guilty plea and prior to his sentеncing, Powers filed a motion to withdraw his guilty plea pursuant to
{¶ 6} At the hearing, Powers testified that his former attorneys did not present the plea deal to him until the morning of the scheduled trial. Additionally, Powers testified that, to the best of his knowledge, his former attorneys had not hired or consulted any experts on his behalf, nor had they subpoenaed any witnesses to appear at the trial that was scheduled to occur the day he entered his plea. Therefore, Powers testified, he did not believe he had any choice in entering the plea, and that he began to have “second thoughts” about his plea the very day he entered into it. Powers further testified that his new counsel informed him of the availability of experts whо could be called to testify on his behalf in an effort to prove his professed innocence. However, Powers did not identify any of the experts, nor did he testify or present any other evidence regarding the nature of the experts’ proposed testimony. Accordingly, the trial court found that Powеrs failed to present a legitimate reason for withdrawing his guilty plea. Therefore, the trial court denied Powers’ motion and proceeded to sentencing.
{¶ 7} On September 16, 2003, the trial court sentenced Powers to ten years imprisonment for the offense of involuntary manslaughter and an additional three years imprisonment for the firearm specification to be served consecutively. Powers appeals his conviction, asserting the following assignment of error: “The Court of Common Pleas Abused its Discretion in Denying Stephen Powers’ Motion to Vacate his Plea, by Relying on the Wrong Standard, and Becausе it was not Voluntary, Knowing and Intelligent, and there is a Reasonable Probability that but for Ineffective Assistance of Counsel He Would Not have Plead (sic) Guilty.“[SLB1]1
II.
{¶ 8} Pursuant to
{¶ 9} The decision of whether to grant a motion to withdraw a guilty plea is left to the sound discretion of the trial court. Xie at paragraph two оf the syllabus. The trial court is in the best position to resolve the good faith, credibility and weight of a defendant‘s assertions in support of his motion to withdraw his guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, paragraph two of the syllabus. We will not reverse a trial court‘s decision on a motion to withdraw a guilty plea absent an abuse of discretiоn. Xie at 527, citing State v. Adams (1980), 62 Ohio St.2d 151, 157. An abuse of discretion connotes more than an error in judgment; it implies that the trial court‘s attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, in applying the abuse of discretion standard of review, we are not free to merely substitute our judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, citing Berk v. Matthews (1990), 53 Ohio St.3d 161.
{¶ 10} Our review to determine whether the trial court properly exercised its discretion is aided by the following factors: “(1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full
III.
{¶ 11} Powers admits that he entered his plea after receiving a full
A.
{¶ 12} In order to prove a claim of ineffective assistance of counsel a defendant must show that his counsel‘s performance was deficient, i.e., not reasonably competent, and that counsel‘s deficiencies prejudiced his defense. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 136, pаragraph two of the syllabus. To make this showing, a defendant must overcome the strong presumption that attorneys licensed to practice in Ohio provide competent representation. Bradley at 142. However, in the context of a guilty plea, a defendant must also demonstrate that there is a reаsonable probability that, but for his counsel‘s errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 58-59. See, also, State v. Parker (Jan. 6, 1998), Washington App. No. 96CA35. If one component of the Strickland test disposes of an ineffective assistance of counsel claim, it is not necessary to address both components. Bradley at 380-381, citing Strickland at 697.
{¶ 13} Here, Powers contends that his former attorneys’ representatiоn was deficient in that counsel failed to discuss a plea arrangement with him before the day of his trial. Additionally, Powers testified that, to the best of his knowledge, his former attorneys had not hired any experts to testify on his behalf, and that they had not subpoenaed any witnesses to testify at the trial scheduled to oсcur the day he entered his plea. Powers argues that counsel presented him with the plea arrangement the morning of trial, and due to counsel‘s alleged failure to prepare for trial, he had no choice but to accept the plea or proceed to trial with no defensе.
{¶ 14} The mere failure to subpoena witnesses is not a substantial violation of an essential duty to a client in the absence of a showing that testimony of any one or more of the witnesses would have assisted the defense. Middletown v. Allen (1989), 63 Ohio App.3d 443, 448; State v. Reese (1982), 8 Ohio App.3d 202. Decisions regarding the calling of witnesses often fall within the purview of trial tactics аnd strategy. See State v. Sears (Mar. 26, 1993), Washington App. No. 92CA5.
{¶ 15} Here, Powers contends that his former attorneys erred by failing to subpoena any witnesses to testify on his behalf. However, Powers failed to submit any evidence to the trial court other than his own, broad, self-serving testimony that there were potential witnesses whose testimony would have aided his dеfense had his former attorneys subpoenaed them to testify at trial. Thus, he failed to demonstrate that his former attorneys’ representation was inadequate as a result of their failure to subpoena witnesses to testify on his behalf.
{¶ 16} Similarly, the only evidence Powers presented that his former counsel failed to timely inform him of the plea agreement was his own self-serving testimony. In contrast, we note that at the
{¶ 17} Based upon the foregoing, we cannot say that the trial court acted arbitrarily, unreasonably, or unconscionably in finding Powers’ claims of ineffective assistance of counsel to be unsupported in fact.
B.
{¶ 18} In addition to his claim of ineffective assistance of counsel, Powers contеnds that his claims of innocence justify the withdrawal of his guilty plea. We disagree. A defendant‘s claims of innocence are not sufficient to warrant withdrawal of a plea knowingly entered. State v. Kandiko (Feb. 9, 1995), Cuyahoga App. No. 66888, State v. Frank (April 29, 1993), Cuyahoga App. No. 62201. All defendants who request a withdrawal of their plea base their request upon some claim of innocence. State v. McGowan (Oct. 3, 1996) Cuyahoga App. No. 68971. Here, Powers makes only an unsubstantiated claim of innocence, offering no explanation of the “numerous holes in the state‘s case” his current counsel claims to have found, or the “very good defense to this case” his counsel alluded to in his closing argument. Therefore, the trial court could reasonably have concluded that Powers profession of innocence was nothing more than a change of heart, which is an insufficient basis for withdrawing a guilty plea. State v. Lambros (1988), 44 Ohio App.3d 102, 103.
C.
{¶ 19} In his brief, Powers concedes that he received a full hearing on his motion to withdraw his plea. However, he alleges that the trial cоurt did not give full and fair consideration to his motion due to the court‘s statement at his sentencing hearing, that “[t]here‘s an old saying, actions speak louder than words. And your actions tell me a whole lot more about you than frivolous motions or statements in open court that are just untrue.” However, we note that the trial court made the statement nineteen days after the hearing on Powers’ motion and eight days after the entry denying said motion, wherein the trial court specifically found that the motion was not supported in fact or in law. Further, our review of the record reveals that Powers simply failed to support his motion with any evidence other than his own bald assertions. Accordingly, we cannot find that the trial court‘s statement, made well after it ruled upon Powers’ motion to withdraw his plea, and amply supported by the record, deprived Powers of his right to a full and fair consideration of his motion. Based upon the scant evidence presented at the hearing, we cannot say that the trial court acted arbitrarily, unreasonably, or unconscionably in finding no reasonable and legitimate basis for allowing Powers to withdraw his plea.
D.
{¶ 20} Lastly, Powers argues that the trial court failed to consider all of the relevаnt factors enumerated in State v. Fish (1995), 104 Ohio App.3d 236, in its denial of his motion to withdraw his plea. We have already discussed many of the Fish factors above. However, Powers argues that the timeliness of his motion, filed two months after entering his plea and before his sentencing, as well as the alleged lack of prejudice to the State justify the withdrawal of his guilty plea. We disagree. While these factors may be important, we believe that they come into play only after the defendant satisfies the threshold issue of presenting a reasonable and legitimate basis for withdrawing his plea. Here, Powers simply failed to provide the trial сourt with any evidence to support his broad assertions that he had witnesses whose testimony would aid in his defense or that he had a valid defense to the charges against him. Because we find that the trial court did not abuse its discretion in finding that Powers advanced no reasonable and legitimate basis for withdrawing his plea, we find Powers’ arguments regarding that the timeliness of his motion and the claimed lack of prejudice to the State unpersuasive.
E.
{¶ 21} In sum, because the record reflects that Powers received a full and fair hearing on his motion, and that he has failed to support his claims of inadequate assistance of counsel and his profession of innocence with any evidence other than his own bold assertions, we find that the trial court did not act arbitrarily, unreasonably or unconscionably in denying Powers motion to withdraw his guilty plea. Because Powers did not advance and support a legitimate and reasonable basis for withdrawing his plea, we find the timeliness of his motion and claimed lack of prejudice to the State irrelevant. Accordingly, we overrule Powers sole assignment of error and affirm the judgment of the trial court.
Judgment Affirmed.
Abele, J. and Grey, J.: Concur in Judgment and Opinion.
Hon. Lawrence A. Grey, retired of the Fourth Appellate District, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District.
[SLB1]Great footnote! That‘s the type of thing I need to do a better job mention