State v. WeakleyState v. Weakley
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-504666, CR-511574, and CR-516933
RELEASED: June 3, 2010
ATTORNEY FOR APPELLANT
Thomas E. Conway
75 Public Square, Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John Hanley
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, George Weakley, appeals the trial court‘s denial of his motion to withdraw his guilty pleas. Apрellant argues that the trial court abused its discretion when it denied his motion without giving full and fair consideration to the underlying circumstances that led to the motion. For the reasons stated below, we affirm.
{¶ 2} Appellant was indicted in three separate criminal cases. In case number CR-504666, appellant was charged with drug trafficking and tampering with evidence. In case number CR-511574, appellant was charged with escape. In case number CR-516933, appellant was charged with three counts of aggravated robbery, two counts of kidnapping, two counts of felonious assault, aggravated burglary, two counts of carrying a concealed weapon, and two counts of having a weapon while under disability. The robbery, kidnapping, assault, and burglаry charges carried firearm specifications. Appellant entered pleas of not guilty and was appointed counsel. The cases proceeded to discovery and other pretrial matters. A trial schedule was set with each of the cases to be tried serially, beginning with CR-516933.
{¶ 3} One week before the first jury trial was to commence, appellant filed a pro se motion to disqualify appointed counsel. Before commencing trial, the court held a hearing on appellant‘s motion. After listening to
{¶ 4} The trial commenced on March 4, 2009. The state‘s first witness, Najja Johnson, testified that on August 27, 2008, he and a friend, Jarrell Erwin, went to a store near East 28th Street and Cedar Avenue in Cleveland to cash their paychecks. When they came out of the store and got into Johnson‘s car, an unknown male walked up to the car and pointed a gun at Erwin‘s head and demanded that they give him everything they had. As the assailant pulled Erwin out of the car, appellant rode up to the driver‘s side of the car on a bicycle. He pointed a knife at Johnson, told him to get out of the car, and ordered Johnson to give him everything he had. Johnson gave appellant some of the cash from his pocket. Appellant reached into Johnson‘s pocket and grabbed the rest of the cash. Appellant then demanded Johnson‘s earrings. While Johnson was removing the first earring, appellant told the other assailant, “He‘s taking all day. Shoot him.” The unknown male shot Johnson in the аnkle.
{¶ 5} The entire incident was captured on the store‘s video camera and played for the jury. Johnson identified appellant in court as the second assailant, the one on the bicycle. The first assailant was not identified.
{¶ 7} On April 16, 2009, the trial court held a hearing on appellant‘s oral motion to withdraw his pleas, made on March 26, 2009. The court also heard appellant‘s motion to disqualify counsel, filed March 31, 2009. Appellant argued that trial counsel neglected his legal problems, wаs abusive and disrespectful toward him, lied to him about how many years he was going to receive at sentencing, and pressured him into accepting the plea agreement. He argued that he was not guilty of aggravated burglary and that his counsel told him that charge would be dismissed.
{¶ 8} Trial counsel informed the court that prior to trial, he went over all of the anticipated evidence and advised appellant that a plea agreement
{¶ 9} The trial court denied both motions and procеeded to sentence appellant to an aggregate term of 11 years on all three cases. The court imposed court costs and costs of supervision, but did not order restitution, as the state presented no evidence on that issue.
{¶ 10} Appellant timely appeals raising as a single error for review that the court committed reversible error when it denied his motion to withdraw his pleas made prior to sentencing.
{¶ 11} Although a presentence motion to withdraw a guilty pleа should be freely and liberally granted, it is well established that “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and legitimatе basis for the withdrawal of the plea. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.” State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraphs one and two of the syllabus. A mere change of heart is insufficiеnt grounds for the withdrawal of a guilty plea prior to sentencing. State v. Benjamin, 8th Dist. No. 85071, 2005-Ohio-2322.
{¶ 13} The first element in Peterseim requires that highly competent counsel represented the defendant. Appellant argues that he was extrеmely dissatisfied with appointed counsel and twice moved to have him removed. The Ohio Supreme Court has held that before a defendant is entitled to discharge appointed counsel, “the defendant must show ‘a breakdown in the attorney-сlient relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.‘” State v. Coleman (1988), 37 Ohio St.3d 286, 292, 525 N.E.2d 792, quoting People v. Robles (1970), 2 Cal.3d 205, 215, 466 P.2d 710. Appellant concedes that there is nothing in the record to support a claim of ineffective assistance of counsel. Additionally, the trial court observed counsel‘s behavior throughout the proceeding and found that defense counsel zealously defended appellant in a
{¶ 14} We find no merit to appellant‘s argument that, by refusing to grant appellant‘s request to remove appointed counsel, the trial court “forced Appellant to ultimately plead the case, becausе of his lack of trust in trial counsel.” Counsel did not force appellant to plead. In fact, counsel acquiesced to appellant‘s request to proceed to trial against counsel‘s advice. It was the state‘s evidence presented in the first day of trial that led to appellant changing his plea to guilty. Only after the victim identified appellant as the man who robbed him at knifepoint and ordered the gunman to shoot him, and the jury saw the videotape of the robbery and аssault, did appellant decided to change his plea.
{¶ 15} We also find that the trial court complied with Peterseim‘s second element. The record demonstrates that the court conducted a full hearing pursuant to
{¶ 16} After each individual explanation, the court asked appellant if he understood and appellant said he did. When asked if he was satisfied with his appointed counsel‘s work, appellant replied: “It‘s all right.” When asked if any threats or promises were made to get him to chаnge his plea, appellant told the court that he was promised that he would be sentenced to 11 years. The judge explained that the court had not made any promises regarding sentencing and that only the court can determine the sеntence to be imposed. Appellant was advised that before he pleaded guilty he needed to understand that he could be sentenced to anywhere from the minimum to the maximum. Appellant concedes that the trial court complied with
{¶ 17} The third and fourth elements of the test requires the court grant appellant a full and impartial hearing on his motion to withdraw his pleas and give full and fair consideration to his request. Appellant concedes that the court held a full hearing оn his motion to withdraw his pleas; therefore, the third element is satisfied. However, appellant argues that the court‘s failure to grant his request for new counsel demonstrates that the court did not give full and fair consideration to his request to withdraw the рleas. We disagree. The court considered appellant‘s testimony at the hearing on the
{¶ 18} After consideration of the Peterseim factors, we find that the trial court did not abuse its discretiоn when it denied appellant‘s motion to withdraw his pleas. The record reflects that appellant‘s pleas were knowingly, intelligently, and voluntarily made. Accordingly, appellant‘s single assignment of error is overruled.
Judgment affirmed.
It is ordered that appеllee recover of appellant its 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 Cuyahoga County Court of Common Plеas 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
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, J., CONCUR