STATE OF OHIO v. CLIFFORD D. TAYLOR
CASE NO. 2014-L-115
Court of Appeals, Eleventh Appellate District, Lake County, Ohio
Cite as State v. Taylor, 2015-Ohio-2080.
DIANE V. GRENDELL, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR 000715. Judgment: Affirmed.
Aaron T. Baker, 38109 Euclid Avenue, Willoughby, OH 44094 (For DefendantAppellant).
O P I N I O N
{¶1} Defendant-appellant, Clifford D. Taylor, appeals the decision of the Lake County Court of Common Pleas to deny his motion to withdraw guilty plea, made orally prior to sentencing. The issues before this court are whether a defendant is denied effective assistance of counsel when he seeks, pro se, to withdraw a plea on the grounds that trial counsel advised him to lie when entering the plea and whether a court may deny a motion to withdraw guilty plea on such grounds. For the following reasons, we affirm the decision of the court below.
{¶3} On the same date, Taylor executed a Waiver of Indictment and Written Plea of Guilty.
{¶4} At the change of plea hearing, Clifford affirmed that he “wish[ed] to give up the right to indictment in this case, plead guilty as charged, in return for the Court at the request of the prosecuting attorney to dismiss case 14CR000019.” In Case No. 14CR000019, Clifford was charged with Rape, a felony of the first degree in violation of R.C. 2907.02(A)(1)(b), and Gross Sexual Imposition, a felony of the third degree in violation of R.C. 2907.05(A)(4). Unlike Rape in violation of R.C. 2907.02(A)(2), Rape in violation of R.C. 2907.02(A)(1)(b) carries a potential “term of life imprisonment.” R.C. 2907.02(B). As part of the plea agreement, there would be a jointly recommended prison sentence of twenty years.
PROSECUTOR: * * * We believe that the evidence [will] show beyond a reasonable doubt that under the circumstances in
this case, the victim’s will was overcome by fear or duress. This Defendant at the time was a grown man in his 40’s, the victim was somewhere between the ages of 5 and 8. This Defendant lived with the victim. He was an authority figure in that when the victim’s mother was not in the home he was in charge of the victim. The victim would testify she felt she had no choice but to engage in this activity.
JUDGE LUCCI: Mr. Taylor * * *, is it true?
CLIFFORD TAYLOR: Yes.
JUDGE LUCCI: And just tell me briefly what you did?
CLIFFORD TAYLOR: The part that the prosecutor will get me on is the fact that I turned around and did nothing to stop the child from doing what she was doing to me. And that’s the part that they will get me on. That’s the whole thing right there. I did not stop the child when she was trying to get a snack, from touching me or doing anything that she wasn’t supposed to do. I just didn’t stop her. I foolishly did not do anything. That’s the part that they’ll get me on.
JUDGE LUCCI: Well they’re saying that you used force or threat of force. What would give a five-year-old to seven-year-old girl the idea that if she did not perform fellatio on you that she would be subject to force?
CLIFFORD TAYLOR: I figured that she was encouraged. Didn’t know I was doing it, but she got, I got her encouraged to perform that. And I guess that scared her.
JUDGE LUCCI: Okay. So you encouraged her to perform fellatio?
CLIFFORD TAYLOR: I believe so, sir.
JUDGE LUCCI: Okay. And how did you do this?
CLIFFORD TAYLOR: I guess by just being -- I guess just that she just doesn’t understand. I don’t know how to explain that, sir. I really don’t.
JUDGE LUCCI: Well see, I have to establish the element of compelling her purposely. Compelling her to submit by force or threat of force. That is an element of the crime. So I’m * * * looking for your mental state, and I’m looking for what conduct you did in order to make the girl feel like she had to do this. * * *
CLIFFORD TAYLOR: I was drinking at the time, sir. And because I was drinking I was not thinking properly. This child was probably intimidated on the fact of, I probably pulled out my genitalia and turned around and told her if you want this you’re gonna have to put your mouth on that. But I know damn well I was drinking, sir. Excuse my language.
JUDGE LUCCI: If you want what?
CLIFFORD TAYLOR: A pudding pop. A pudding snack.
JUDGE LUCCI: A pudding pop? Alright. So you told her if you want a pudding pop, you have to put your mouth on your penis?
CLIFFORD TAYLOR: Yes, sir.
* * *
JUDGE LUCCI: Alright. And you were a father-figure in her home? Were you dating her mother?
CLIFFORD TAYLOR: I was dating her mother.
JUDGE LUCCI: Alright. You lived there, correct?
CLIFFORD TAYLOR: Yes, sir.
* * *
JUDGE LUCCI: So you were a father-figure in her home, correct?
CLIFFORD TAYLOR: I guess so, sir. Yes, sir.
JUDGE LUCCI: And how were you coerced?
CLIFFORD TAYLOR: I was threatened with mental incompetence to stand trial. That I was going to have to take a
psychiatric evaluation to show that I was mentally incompetent to stand trial.
* * *
JUDGE LUCCI: Okay. How can you be threatened with mental incompetence?
CLIFFORD TAYLOR: He threatened me, saying that there was some reason I was not mentally thinking properly.
* * *
JUDGE LUCCI: You’re competent. So if your attorney told you that he was going -- that he would like to suggest incompetency to the Court, or a competency evaluation, that’s not a threat at all. What other reason do you have for wanting to withdraw your plea?
CLIFFORD TAYLOR: I was told to lie to you.
JUDGE LUCCI: Who told you to lie to me, and what was the lie?
CLIFFORD TAYLOR: The man right next to me here turned around and told me twice -- in fact you witnessed it. He was whispering in my ear to turn around and tell me how to lie to you.
JUDGE LUCCI: Give me an example.
CLIFFORD TAYLOR: This is where we get over the, how he put it -- this is the hump that we have to get over. This is what I was trying to tell you downstairs in the holding cells. This is --
JUDGE LUCCI: What hump that you have to get over?
CLIFFORD TAYLOR: That we have to turn around and present that it was forced conditions to cause the charges of rape.
* * *
JUDGE LUCCI: So what was the lie that you told me?
CLIFFORD TAYLOR: I told you a lie that she -- think I said what, something about pudding pops. What did I say about pudding pops? I don’t even remember what I turned around and told you. It wasn’t even true, I know that. All I know is that I had to turn around and tell you a lie so I could make a deal with the prosecutor.
JUDGE LUCCI: Tell me exactly what the lie was.
CLIFFORD TAYLOR: The lie was that I put my penis in her mouth for pudding pops. I think that’s what I told you.
* * *
CLIFFORD TAYLOR: I didn’t put it in there. The penis got into her mouth, but I did not put it in there. Okay?
* * *
JUDGE LUCCI: Then who put it there?
CLIFFORD TAYLOR: She was experimenting. * * * Unfortunately, I was preoccupied when I was trying to take of -- she spilled a drink on me. I’m trying to move the drink out of the way, and the next thing I know she’s grabbing me.
* * *
JUDGE LUCCI: Okay. What else did you lie to me about?
CLIFFORD TAYLOR: That was it.
{¶10} On November 14, 2014, a written Judgment Entry of Sentence was issued.
{¶11} On November 21, 2014, Taylor filed a Notice of Appeal. On appeal, he raises the following assignments of error:
{¶12} “[1.] Appellant was denied effective assistance of counsel during the hearing on his motion to withdraw guilty plea.”
{¶13} “[2.] The trial court abused its discretion when it denied Appellant’s motion to withdraw his guilty plea before sentencing.”
{¶15} “The Sixth Amendment right to counsel applies to critical stages of criminal proceedings.” State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 13; Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (“[t]he Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process”). “[I]n addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” (Footnote omitted.) United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
Reversal of a conviction for ineffective assistance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defendant.” Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.
State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 147.
{¶17} With regard to the claim that trial counsel should have withdrawn from representation upon Taylor’s accusation, we find no deficiency in counsel’s performance.
or her client, including giving due notice to his or her client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules”).
{¶20} Another aspect of Taylor’s argument is that he was effectively without representation for the purpose of seeking to withdraw his guilty plea. Taylor asserts that the present case falls within the class of ineffective assistance cases for which prejudice is presumed. We disagree. Although a plea withdrawal hearing has been held to be a “critical stage” of a criminal prosecution, the need for demonstrating prejudice, at least under the present circumstances, is not obviated.
upon the outcome * * * where assistance of counsel has been denied entirely or during a critical stage of the proceeding [since] * * * the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
{¶23} Rather than arguing how he was prejudiced, Taylor relies upon a presumption of prejudice where defense counsel’s representation is compromised by an actual conflict of interest. Taylor’s reliance on this presumption is misplaced since trial counsel did not participate in the prosecution of the motion to withdraw guilty plea. As the United States Supreme Court has noted, “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland at 692, citing Cuyler, 446 U.S. at 348, 100 S.Ct. 1708, 64 L.Ed.2d 333. In the present
{¶24} The fact that trial counsel did not advocate for or against Taylor with respect to the motion distinguishes the present case from State v. Strickland, 2d Dist. Montgomery No. 25673, 2014-Ohio-5451, upon which Taylor relies. In Strickland, as in the present case, the defendant orally sought to withdraw a guilty plea prior to sentencing based on trial counsel’s performance during plea negotiations. Id. at ¶ 4 and 18. In considering the motion, the trial court placed counsel under oath and questioned him “to obtain additional information about defense counsel’s experience and the plea communications in order to thoroughly and expeditiously address Strickland’s motion to withdraw his plea.” Id. at ¶ 22 and 24. The court of appeals found that “calling defense counsel as a witness placed counsel in the difficult and unexpected position of having to testify against his client, rather than act as Strickland’s advocate.” Id. at ¶ 25. Thus, the court “denied Strickland the right to counsel when it called defense counsel to testify * * * without affording new counsel to Strickland to protect his interests while defense counsel testified.” Id. at ¶ 30.
{¶26} Finally we emphasize the uniqueness of the particular circumstances before this court. Among the federal courts, it has been recognized that the United States Supreme Court “has never specifically addressed such a claim * * *, nor has it stated how such a claim should be analyzed, i.e., as a claim that petitioner was denied his right to counsel because he was effectively unrepresented on his motion to withdraw his plea * * *, or as a claim that petitioner was denied the effective assistance of counsel because an actual conflict of interest adversely affected counsel’s performance.” Hines v. Miller, 318 F.3d 157, 163 (2d Cir.2003). The federal courts have addressed the issue from a variety of different approaches. Id. at 163-164 (cases cited). Yet, “irrespective of the analysis employed, [numerous reviewing courts] have affirmed the denial of a withdrawal motion despite the failure to appoint new counsel.” Id. at 164.
{¶28} Under the second assignment of error, Taylor argues that the trial court erred by denying his presentence motion to withdraw his guilty plea.
{¶29} Criminal Rule 32.1 provides that “[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her guilty plea.”
{¶31} “The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” (Citation omitted.) State v. Kornet, 11th Dist. Portage No. 2013-P-0001, 2013-Ohio-3480, ¶ 28; State v. Bisson, 11th Dist. Portage No. 2012-P-0050, 2013-Ohio-2141, ¶ 23 (“since the determination of a motion to withdraw lies within the trial court’s sound discretion, the scope of our appellate review is limited to an ‘abuse-of-discretion’ analysis”).
{¶34} We find no abuse of discretion in the trial court’s denial of the motion to withdraw guilty plea. As an initial matter, Taylor’s credibility was compromised by the fact that he lied to the trial court – either at the plea hearing when he affirmed the truth of the prosecutor’s statement of what the evidence would show and admitted compelling the victim or at the sentencing hearing when he denied the truth of his prior statements. Several other factors support the trial court’s denial of the motion. Taylor entered his plea after a hearing fully in accord with the dictates of Criminal Rule 11. Although Taylor was clearly reluctant to admit responsibility for the rape, the only evidence of actual coercion was Taylor’s self-serving testimony regarding the “threat of mental incompetence.” Assuming, arguendo, that Taylor was counseled to lie, the record suggests that Taylor consented to follow this advice. Taylor did not move the court to withdraw his plea until sentencing. The day after entering the plea, Taylor wrote the trial court complaining that the police had tampered with a written statement he had produced during the investigation. Taylor did not deny the truth of his statement and did
{¶35} The second assignment of error is without merit.
{¶36} For the foregoing reasons, the denial of Taylor’s motion to withdraw guilty plea by the Lake County Court of Common Pleas is affirmed. Costs to be taxed against the appellant.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
TIMOTHY P. CANNON, P.J., concurring.
{¶38} Taylor initially faced a four-count indictment in case no. 14CR000019, including three counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b), which states: “No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person.”
{¶39} Apparently in order to spare the minor victim from testifying, Taylor agreed to a plea bargain with the state. In exchange for the state dismissing case no. 14CR000019, Taylor agreed to plead guilty to two counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2), which states: “No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.” Simply put, the element of “less than thirteen years of age” was substituted with the element of “force or threat of force.”