State v. McNeil , 146 Ohio App. 3d 173 ( 2001 )

DECISION. Maintaining that the trial court abused its discretion, defendant-appellant, Donelle McNeil, challenges the denial of his presentence motion to withdraw his plea of guilty to a charge of aggravated robbery, which included a firearm specification. Concluding that the court properly exercised its discretion, we overrule McNeil's assignment of error.

McNeil was indicted for aggravated robbery, with a firearm specification, in violation of R.C. 2911.01(A)(1), and robbery, in violation of R.C. 2911.02(A)(2). McNeil entered a plea of not guilty to both counts and filed a notice of alibi with the trial court. One month later, after plea negotiations, McNeil entered a plea of guilty to the aggravated-robbery charge, including the firearm specification, and the state, in exchange, dismissed the robbery count and agreed to a three-year sentence for the aggravated robbery, with an additional three-year sentence for the specification. After the November 1, 2000, plea hearing, where McNeil acknowledged that he was voluntarily entering his guilty plea, the trial court found McNeil guilty and continued the case for sentencing on November 15, 2000.

Two days before sentencing, McNeil filed a motion to withdraw his guilty plea, asserting that he was innocent of the underlying charges. On the day of sentencing, a brief hearing ensued with the trial court considering comments from McNeil's counsel. Upon reviewing McNeil's responses to the Crim.R. 11 colloquy, the trial court asked McNeil's attorney if McNeil had experienced any "outside forces" compelling him to plead guilty and to sign the plea agreement. McNeil's counsel explained that McNeil had struggled with the fact that there was an "attractive plea agreement in place, and at the same time he also felt that he had a good case," but that he had decided to sign the plea agreement voluntarily. At the completion of this line of questioning, the trial court denied the motion to withdraw the plea and sentenced McNeil to a total of six years in prison. During sentencing, McNeil told the trial court that he was innocent but that he had signed the plea agreement because he "was just scared to take it to trial and get 13 years." The trial court told McNeil that it had found that McNeil had intelligently and voluntarily entered a guilty plea, "knowing all of the circumstances," and that his motion was overruled. This timely appeal followed.

It is well established that, even though a defendant does not have an absolute right to withdraw a plea prior to sentencing, a presentence motion to withdraw a guilty plea should be "freely and liberally granted."¹ Although such a motion is to be treated liberally, the trial court's decision is still ultimately one of discretion. In determining whether the trial court has properly exercised its discretion, this court is aided by the following factors: (1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the withdrawal motion, and (4) whether the trial court gave full and fair consideration to the motion.² In addition to these factors, there are other considerations, including (1) whether the motion was made within a reasonable time; (2) whether the motion set out specific reasons for the withdrawal; (3) whether the accused understood the nature of the charges and the possible penalties; and (4) whether the accused was perhaps not guilty or had a complete defense to the charges.³

Although an extensive hearing was not held on McNeil's motion to withdraw his plea, we cannot say that the trial court abused its discretion.⁴ The scope of the hearing to be held on a motion to withdraw a plea should reflect the substantive merit of the motion itself.⁵ "Bold assertions without evidentiary support simply should not merit the type of scrutiny that substantiated allegations would merit."⁶ Here, McNeil's motion to withdraw his plea of guilty merely stated that he was innocent but did not offer any evidentiary material to support this "bold assertion." Prior to signing the plea agreement, McNeil had filed a notice of alibi, indicating that he was at his sister's home "or in the [surrounding] neighborhood" on the date and time that the aggravated robbery occurred. But, at the hearing on the motion to withdraw the guilty plea, McNeil did not indicate that he had any possible defense to the underlying charges. Further, McNeil did not attempt to call any witness or present any evidence in support of his innocence. Thus, we conclude that the trial court gave appropriate consideration to McNeil's motion to withdraw his plea in light of the lack of any evidentiary support offered for the assertion that he was innocent.

McNeil also told the trial court that he had signed the plea agreement because he was scared that if he went to trial he would possibly receive a longer sentence than the one that was offered by the state in the plea agreement. Though, as the trial court noted, this was an understandable fear, this was exactly what McNeil was considering when deciding whether to sign the plea agreement. The record demonstrates that he spent a considerable amount of time weighing his options before voluntarily entering a plea of guilty and that, prior to entering that plea, he was given a full Crim.R. 11 hearing. Further, the record shows that McNeil clearly understood the nature of the charges and the possible penalties.

Because McNeil voluntarily entered his guilty plea, clearly understanding the nature of the charges and the possible penalties, and because the trial court gave McNeil's motion to withdraw his plea the consideration it merited, in light of the lack of evidence offered to support the claim that McNeil was innocent, we hold that the trial court did not abuse its discretion in denying McNeil's motion to withdraw his plea of guilty. Accordingly, the judgment of the trial court is affirmed.

Shannon, J., concurs.

Painter, J., dissents.

Raymond E. Shannon, retired from the First Appellate District, sitting by assignment.

¹ State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715,719.

² State v. Peterseim, (1980), 68 Ohio App.2d 211, 214, 428 N.E.2d 863,865.

³ State v. Fish (1995), 104 Ohio App.3d 236, 240, 661 N.E.2d 788,790.

⁴ See State v. Taylor (Dec. 26, 1997), Hamilton App. No. C-961141, unreported.

⁵ State v. Abdelhag (July 31, 1997), Cuyahoga App. No. 71136, unreported; State v. Hall (Apr. 27, 1989), Cuyahoga App. No. 55289, unreported.

⁶ State v. Hall, supra.