State v. ScottState v. Scott
{¶ 1} This is an appeal from a judgment of the Sandusky County Court of Common Pleas. Appellant, Mychal D. Scott, appeals the trial court‘s denial of his motion to withdraw his guilty plea.
{¶ 2} Appellant was originally indicted on one count of felonious assault, a violation of
{¶ 3} On October 21, 2005, appellant entered, pursuant to a plea agreement, a plea of guilty to robbery, a felony of the second degree, with a firearm specification. Prior to accepting the plea, the common pleas judge engaged in the mandated
{¶ 4} However, appellant, through his attorney, agreed to a statement of the facts, as made by appellee, the state of Ohio. That statement reveals that during the course of a robbery, appellant struck an individual in the head with his firearm while his co-defendant was collecting money from the other patrons in a restaurant. Appellant subsequently threw the gun in a river, but it was later recovered by law enforcement officers. The firearm was test fired and found “capable of ejecting a projectile.” After hearing this statement of facts, the court ordered a presentence investigation and had appellant signed a written plea of guilty.
{¶ 5} On the morning of appellant‘s sentencing hearing, he filed a motion to withdraw his guilty plea. The motion did not set forth any rationale for the requested withdrawal of his plea. At the inception of the sentencing hearing, appellant‘s trial counsel explained that appellant wanted to withdraw his plea because, after entering his guilty plea, he was remanded without bond. Appellant claimed that, pursuant to the terms of his plea agreement, he could be “bonded out.” The trial judge reviewed the written plea agreement and informed appellant that there was nothing in that agreement entitling appellant to a bond. Appellant‘s attorney interposed and stated that his client wanted to withdraw his plea based upon a professed innocence.
{¶ 6} Appellee argued that, due to the fact that a jury was sworn in and one witness testified before appellant decided to change his plea to guilty, the factual scenario in this cause was different than in most cases in which a defendant seeks to withdraw a guilty plea prior to sentencing. Appellee urged that under the facts of this cause jeopardy “attached;” therefore, the state would be barred from prosecuting appellant under the Double Jeopardy Clause of the
{¶ 7} The trial court denied the
{¶ 8} “1. The trial court improperly denied a withdrawal of plea by not complying with proper procedure resulting in judicial abuse of discretion.
{¶ 9} “2. The trial court was improperly influenced by an unsubstantiated and speculative argument regarding prejudice to the state if the guilty plea were withdrawn.”
{¶ 10} In his first assignment of error, appellant contends that the trial court erred by failing to hold a full hearing on his motion to withdraw his guilty plea.
{¶ 11}
{¶ 12} A reviewing court may examine a number of factors in resolving whether the trial court abused its discretion in refusing to grant a presentence motion to withdraw a guilty plea. These factors include whether the accused was represented by highly competent counsel, whether he was afforded a full
{¶ 13} A trial court may deny a request to withdraw a guilty plea without conducting an evidentiary hearing when the defendant fails to submit sufficient evidentiary materials and the record demonstrates the defendant is not entitled to relief. See State v. Flannigan (Apr. 10, 1996), 4th Dist. No. 95-CA-499 (citations omitted). Specifically, a defendant‘s claims of innocence are not sufficient, absent any offer of evidence to support this claim, to warrant withdrawal of a plea knowingly entered. State v. Powers, 4th Dist. No. 03CA21, 2004-Ohio-2720, at ¶ 18 (citations omitted). A change of heart or mistaken belief about his guilty plea does not constitute a basis that requires a court to permit a defendant to withdraw his guilty plea. State v. Lambros (1988), 44 Ohio App.3d 102, 103,
{¶ 14} As applied to the instant case, appellant failed to offer any evidentiary basis for his claim of innocence, and it must therefore be deemed merely a change of heart. Furthermore, the record establishes that appellant mistakenly believed that the plea agreement contained a term that would allow him to “bond out” of jail prior to sentencing. Moreover, the record of this cause reveals that appellant‘s counsel appears to be highly competent, that appellant was given a full
{¶ 15} In his second assignment of error, appellant asserts that the trial court erred in allowing appellee to speculate with regard to the attachment of jeopardy and concomitant potential prejudice to the state. The sentencing transcript in the case sub judice discloses that although appellee raised the issue of double jeopardy, the trial court never addressed this issue. The court simply held, both in the hearing and in its journal entry on sentencing, that appellant failed to offer any basis for his motion to withdraw his guilty plea. Because a court speaks only through its journal entry, State ex rel. Geauga Cty. Bd. of Commrs. v. Mulligan, 100 Ohio St.3d 366, 2003-Ohio-6608, at ¶ 20, error, if any, in allowing the prosecution to raise the question of jeopardy did not prejudice appellant. See
{¶ 16} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair hearing, and the judgment of the Sandusky County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Handwork, J., Pietrykowski, J., Parish,