State v. SimmonsState v. Simmons
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 13, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.
Gary H. Levine, for appellant.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant Terrance Simmons appeals the trial court‘s “summary denial” of his postconviction motion for leave to withdraw his guilty pleas pursuant to
{¶ 2} For the reasons that follow, we affirm the trial court.
Procedural History and Factual Background
{¶ 3} On February 2, 2017, a Cuyahoga County Grand Jury indicted Simmons on 25 counts, including counts of rape, kidnapping, telecommunications harassment, burglary, criminal damaging, menacing by stalking, domestic violence, robbery and disrupting public services. These charges arose out of multiple incidents of alleged sexual assault and domestic violence involving two women with whom Simmons had previously had relationships, A.M. and T.J.
{¶ 4} In March 2018, Simmons pled guilty to 17 counts as follows:
- amended Count 1: attempted rape of A.M. in Simmons’ bedroom in July 2016, a second-degree felony;
- amended Count 3: sexual battery of A.M. in Simmons’ bedroom in September 2016, a third-degree felony;
- Count 5: telecommunications harassment of A.M. on or about October 1, 2016, a first-degree misdemeanor;
- amended Count 6: attempted rape of A.M. in the Cleveland Metroparks on or about October 29, 2016, a second-degree felony;
- amended Count 7: attempted kidnapping of A.M. in connection with an incident in the Cleveland Metroparks on or about October 29, 2016, a second-degree felony;
- amended Count 10: burglary (when trying to reach or grab A.M. through a broken window at her grandparents’ house) on or about November 30, 2016, a third-degree felony;
Count 11: criminal damaging or endangering (involving property damage to a bay window when a brick was thrown at the home of A.M.‘s grandparents) on or about December 1, 2016, a second-degree misdemeanor; - Count 12: menacing by stalking of A.M. from on or about July 20, 2016 through on or about December 1, 2016, a first-degree misdemeanor;
- Count 13: domestic violence against T.J. on a bus on or about May 21, 2015, a first-degree misdemeanor;
- amended Count 14: robbery of T.J. on a bus on or about May 21, 2015, a third-degree misdemeanor;
- amended Count 15: abduction of T.J. outside a Boys and Girls Club on or about July 15, 2015, a third-degree felony;
- Count 17: domestic violence against T.J. at a rapid station on or about August 26, 2015, a first-degree misdemeanor;
- amended Count 20: abduction of T.J. after they were at the movies on or about June 15, 2016, a third-degree felony;
- Count 21: domestic violence against T.J. after they were at the movies on or about June 15, 2016, a first-degree misdemeanor;
- Count 23: telecommunications harassment of T.J. on or about November 3, 2016, a first-degree misdemeanor;
- Count 24: violating a protection order obtained by T.J. on or about November 3, 2016, a first-degree misdemeanor; and
- Count 25: menacing by stalking of T.J. from on or about May 21, 2015 through on or about November 3, 2016.
In exchange for Simmons’ guilty pleas, the remaining counts were nolled.
{¶ 6} At the sentencing hearing, Simmons stated: “I take full responsibility for my actions. And I‘m very remorseful for the situations that led up to being in here[.]” He apologized to A.M. and T.J. “for everything that I put you two through” and stated he “agree[d]” with the trial judge, when the trial judge stated that it was not “okay to treat these women the way that you did.”
{¶ 7} Simmons appealed his convictions. Among his assignments of error, Simmons claimed that the trial court did not comply with
{¶ 8} On February 7, 2019, this court affirmed Simmons’ convictions and sentences, except as to the amount of restitution ordered to A.M. The court remanded the case for the trial court to order restitution in an amount that did not exceed the amount of economic loss suffered by A.M. and for the issuance of a nunc pro tunc order to correct certain typographical errors in the trial court‘s sentencing journal entry. State v. Simmons, 8th Dist. Cuyahoga No. 107144, 2019-Ohio-459, ¶ 23.
{¶ 9} On April 22, 2020 — more than a year later and more than two years after Simmons entered his guilty pleas — Simmons filed a motion for leave to withdraw his guilty pleas pursuant to
{¶ 10} In support of his motion, Simmons attached an affidavit he had executed. In his affidavit, Simmons described his relationship with one of the
{¶ 11} Simmons also averred that, on the morning of his scheduled trial, he spoke with his trial counsel “in the small lockup room outside of the courtroom” in the presence of two county deputies, that he was told by his trial counsel “with the deputies[‘] encouragement” that “it is better for you and your family to take the plea”
{¶ 12} Simmons claimed that his guilty pleas were “the product of several factors,” including that: (1) he had been incarcerated for 16 months; (2) his trial counsel had not acknowledged receipt of the text messages and Simmons did not believe trial counsel had presented the text messages to the prosecutor; (3) his trial counsel did not interview any witnesses, including Simmons’ mother; (4) Simmons was not provided a copy of the statement he made to the Cleveland Police; (5) his trial counsel “did not convey beyond a minimal understanding of the significant favorable evidence that was readily available” and (6) his “total lack of confidence in his counsel that was justified by his perception that counsel had not conducted anything approaching a thorough investigation and pressure to enter a plea.” Simmons averred that had he had not engaged in “any unlawful activity” with A.M. at any time and that he was “not guilty of any criminal conduct as alleged in CR-17-613120.”
{¶ 13} On May 26, 2020, the trial court denied Simmons’ motion to withdraw his guilty pleas without a hearing.
{¶ 14} Simmons appealed, raising the following assignment of error for review:
The trial court erred to the substantial prejudice of Appellant by its failure to conduct [a]n Evidentiary Hearing on the Motion for Leave to Withdraw Guilty Plea.
{¶ 15} Simmons’ sole argument on appeal is that the trial court abused its discretion in denying his motion to withdraw his guilty pleas without holding an evidentiary hearing. Simmons contends that his motion and supporting affidavit were sufficiently detailed to warrant an evidentiary hearing on the motion based on his claims of coercion and ineffective assistance of counsel.
{¶ 16} The withdrawal of a guilty plea is governed by
A motion to withdraw a plea of guilty * * * may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
{¶ 17} In his appellate brief, Simmons cites several cases involving presentence motions to withdraw guilty pleas in support of his argument that the trial court “committed prejudicial error” in denying his motion without a hearing. Although, as a general matter, a presentence motion to withdraw a guilty plea “should be freely and liberally granted” and requires a hearing “to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea,” see, e.g., State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992); State v. Mason, 2020-Ohio-3671, 154 N.E.3d 1256, ¶ 15-16 (8th Dist.), this case involves a postsentence motion to withdraw a guilty plea.
{¶ 18} In a postsentence motion to withdraw a guilty plea, the defendant bears the burden of establishing the existence of “manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. Manifest injustice is “a clear or openly unjust act,” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), “that is evidenced by ‘an extraordinary and fundamental flaw in the plea proceeding,‘” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640 and 104641, 2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, ¶ 8; see also State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 41 (8th Dist.); State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, ¶ 17 (“‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.‘“), quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5.
{¶ 19} A claim of manifest injustice must be supported by specific facts in the record or through affidavits submitted with the motion. See, e.g., State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 10. Postsentence withdrawal of a guilty plea is permitted ‘“only in extraordinary cases.‘” McElroy at ¶ 30, quoting State v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, ¶ 22. We review a trial court‘s decision to deny a defendant‘s postsentence motion to withdraw a guilty plea under an abuse of discretion standard. See, e.g., Vinson at ¶ 42, citing Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph two of the syllabus.
{¶ 20} We likewise review a trial court‘s decision whether to hold a hearing on a postsentence motion to withdraw a guilty plea for an abuse of discretion. See,
{¶ 21} We find no abuse of discretion by the trial court in denying Simmons’ motion to withdraw his guilty pleas without a hearing because a trial court has no jurisdiction to consider a defendant‘s motion to withdraw his or her guilty pleas under
Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal and an affirmance by the appellate court. WhileCrim.R. 32.1 apparently enlarges the power of the trial court over its judgments without respect to the running of the court term, it does not confer upon the trial court the power to vacate a judgment which has been affirmed by the appellate court, for this action would affect the decisionof the reviewing court, which is not within the power of the trial court to do.
Id.; see also State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 61-62 (trial court lacked authority to consider motion to withdraw guilty plea where convictions were affirmed but case was remanded for limited purpose of resentencing on noncapital offenses); State v. Mitchell, 8th Dist. Cuyahoga No. 109178, 2020-Ohio-3726, ¶ 7-9; State v. Jones, 8th Dist. Cuyahoga No. 108226, 2019-Ohio-4892, ¶ 4-5; Grant at ¶ 14.
{¶ 22} In this case, Simmons appealed the trial court‘s judgment, and this court affirmed his convictions. Simmons, 2019-Ohio-459, ¶ at 23-24. Thus, after this court affirmed Simmons’ convictions, the trial court had no jurisdiction to consider his subsequent motion to withdraw his guilty pleas. Accordingly, the trial court did not abuse its discretion in denying Simmons’ motion to withdraw his guilty pleas. Simmons’ assignment of error is overruled.
{¶ 23} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR