STATE OF OHIO v. MAURICE SHAW
No. 102802
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 10, 2016
[Cite as State v. Shaw, 2016-Ohio-923.]
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-575691-A
BEFORE: S. Gallagher, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: March 10, 2016
R. Brian Moriarty
55 Public Square - 21st Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Scott Zarzycki
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Maurice Shaw appeals from his conviction for involuntary manslaughter, aggravated burglary, and having a weapon while under disability, following a guilty plea. As part of the plea deal, Shaw agreed that the individual felony counts were not allied offenses of similar import and that his sentence of imprisonment would fall between 15 and 23 years. For the following reasons, we affirm.
{¶2} The victim was found in his home in June 2012, having been murdered. DNA samples were collected from under the victim‘s fingernails and from a doorknob in his home. The Cuyahoga County Mediсal Examiner created a partial DNA profile, but was unable to identify Shaw as the contributor. The samples were then sent to a third party for further analysis. Those results linked Shaw to the crime scene.
{¶3} After a series of pretrial motions and hearings, including challenges to the DNA evidence contested at a heаring held pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),1 Shaw pleaded guilty on the day his trial was set to commence. Before the sentencing hearing, Shaw filed a pro se motion to withdraw his plea even though he was then represented by counsel. His counsel, three appointed attorneys, also sought to withdraw. Before ruling on either motion, the triаl court appointed two more attorneys to represent Shaw. A hearing occurred in February 2015 on both motions. The trial court denied Shaw‘s
{¶4} In his first and second assignments of error, Shaw claims that the trial court erred in denying his motion challenging the admissibility of the DNA and the DNA analysis. We summarily overrule both. Shaw pleaded guilty, and therefore, his challenges to the admissibility of the expert evidence have been waived. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 104, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78; State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992), paragraph two of the syllabus; and State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus.
{¶5} In his final assignment of error, Shaw argues that the trial court erred in denying his presentence motion to withdraw his guilty plea. Shaw superficially claims that he was coerced into pleading guilty by his three attorneys and his father. On the dаy his trial was to commence, Shaw was presented with a plea offer for the first time. According to Shaw, his three attorneys and his father then spent six hours coercing him into pleading guilty. The record does not support Shaw‘s claim; therefore, we overrule his third and final assignment of error.
{¶6} A motion to withdraw a guilty plea is governed by
A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represеnted by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
Crim.R. 11 , before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.
One of the factors to be weighed in considering a motion to withdraw a guilty plea is a claim of coercion. “To make this claim, an appellant must submit supporting material containing evidence that the guilty plea was induced by false promises.” State v. Thomas, 8th Dist. Cuyahoga No. 85294, 2005-Ohio-4145, ¶ 5, citing State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823 (1983). A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a guilty plea.
{¶7} In this case, there is no dispute that Shaw was represented by highly competent counsel. In fact, and as found by the trial court, three respected attorneys were appointеd to represent Shaw between his July 2013 arraignment and the February 2015 hearing. Further, Shaw was afforded a full hearing pursuant to
{¶8} Shaw‘s only claim in support of withdrawing his plea was that he was coerced into pleading guilty by his counsel and the trial court abused its discretion by not giving greаter weight to his self-serving testimony. During the hearing on his motion to withdraw, however, Shaw never testified to having been coerced into pleading guilty, only that he felt pressured because of his attorneys’ recommendations. On appeal and during his hearing, Shaw instead relied on blanket assertions of coercion, which are insufficient to satisfy his burden of proof.
{¶10} Further, Shaw never testified to having been coerced by his trial counsel. He claimed he felt pressured because his three attorneys offered their recommendations based on the state‘s anticipated evidence and the lengthy sentence faced on the original indictment. Even if we considered his tеstimony of “feeling pressured” by his situation as being coercion, a “[d]efendant‘s own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary.” Kapper, 5 Ohio St.3d at 38. It is notable that Shaw successfully precluded the state from calling his three аttorneys as witnesses at the hearing by invoking his attorney-client privilege. We need not comment on this incongruity because it benefitted Shaw. He was able to characterize his conversation with his attorneys in the light most favorable to his own claim, without the fear of contrary evidence being admitted.
{¶12} It is within the trial court‘s discretion to determine whether Shaw‘s arguments in support of his motion were reasonable and legitimate. An appellate panel must defer to the trial court‘s judgment in evaluating the “good faith, credibility and weight” of Shaw‘s motivation and assertions in entering and attempting to withdraw his
{¶13} Finally, there is no claim of actual innocence in this case and Shaw‘s claim of being denied access to discovery as a basis to withdraw his guilty plea is irrelevant. Shaw could have addressed the discovery issue with the trial court before pleading guilty. He was present during the Daubert hеaring and had the opportunity to review every facet of the DNA evidence at that hearing. Daubert, 509 U.S. 579. With respect to any insinuation of actual innocence, and although not considered by the trial court, Shaw admitted guilt in his presentence investigation report interview. In addition, the state was prepared to submit the following evidence at trial irrespective of the disputed DNA evidence: (1) Shaw was identified as one of the individuals who sold the deceased victim‘s stolen items to a purchaser, (2) Shaw‘s codefendant was prepared to testify to Shaw‘s involvement in the robbery and homicide, and (3) another independent witness could identify Shaw‘s involvement in the premeditated planning of the crime. The DNA evidence was the proverbial icing on the cake, placing Shaw at the scene and in contact with the victim.
It is ordered that appellee recover from 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
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION)
MARY EILEEN KILBANE, P.J., DISSENTING:
{¶15} I respectfully dissent. I would find that the trial court abused its discretion in denying Shaw‘s presentence motion to withdraw his guilty plea.
{¶16} In the instant case, Shaw filed a pro se motion to withdraw his plea less than three weeks after he entered into his plea. His defense counsel also filed a motion to
{¶17} While it is within the sound discretion of the trial court to determine what circumstances justify granting a presentence motion to withdraw a guilty plea, such motions generally are freely and liberally granted. Id. at 527. Moreover, this court has found that coercion by the court, the state, or defense counsel may be a valid basis to withdraw a guilty plea. State v. Vaughn, 8th Dist. Cuyahoga No. 87245, 2006-Ohio-6577, ¶ 14, citing Thomas, supra.
{¶19} Shaw stated that he never had access to the statements or DNA results that would be used as evidence against him. Shaw testified that the Daubert hearing “played a big part in [the] case.” He asked defense counsel for copies of discovery. Counsel told him he could get copies of everything after the hearing, but he never received the majority of the discovery. Hе stated that if he had all of the discovery, it would have made a difference in his decision because he would “know everything that is going on in [his] case.” He had not seen 500 pages of the 4,000 pages of discovery in his case. Shaw stated he was “still blind as far as like the DNA and the results and like.” The
{¶20} Shaw testified that at his guilty plea, he felt as though he was under too much pressure and “was ready to get it over with.” This was also why he told the trial judge during his plea that he was satisfied with the representation of his counsel. Shaw testified that the plea was his deсision. Ultimately, he took the plea deal because he felt that defense counsel was not prepared to go to trial. He described it as a “lose-lose situation” — either take the plea deal or lose at trial. Shaw testified that defense counsel never advised him prior to this point that he wаs going to lose and should take the plea.
{¶21} Even though the trial court held a hearing on Shaw‘s motion and Shaw was represented by competent counsel, I would find an abuse of discretion in the court‘s denial of Shaw‘s plea withdrawal request because Shaw filed his motion shortly after he entered into his plea, he wаs pressured by defense counsel and his father for approximately six hours, without any food or water, and there is a question to the reliability of the DNA testing used by the state that links Shaw to the crime. Based on these circumstances, the record demonstrates that Shaw‘s desire to change his plea was more than a mere change of heart. As a result, the court should have permitted Shaw to withdraw his plea.
{¶22} Accordingly, I would sustain the third assignment of error, vacate Shaw‘s conviction and sentence, and remand the matter.