State v. Silver , 2023 Ohio 451 ( 2023 )

[Cite as State v. Silver, 2023-Ohio-451.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111578
v. :
TERRELL SILVER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-662895-A and CR-21-663017-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary Grace Tokmenko, Assistant
Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
LISA B. FORBES, J.:
Terrell Silver (“Silver”) appeals the trial court’s journal entry denying
his presentence motion to withdraw his guilty plea. After reviewing the facts of the
case and pertinent law, we affirm the trial court’s decision.
I. Facts and Procedural History
On April 7, 2022, Silver pled guilty to attempted robbery with a one-
year firearm specification and having weapons while under disability in Cuyahoga
C.P. No. CR-21-662895-A. That same day, Silver also pled guilty to attempted
robbery in Cuyahoga C.P. No. CR-21-663017-A. The court scheduled a sentencing
hearing in both cases for May 9, 2022. That morning, Silver filed a motion to
withdraw his plea in both cases. The court held a hearing on Silver’s motion,
discussing the motion with him at length. Ultimately, the court denied Silver’s
motion and sentenced him to an aggregate term of 36 months in prison. Silver now
appeals, raising one assignment of error for our review:
I. The trial court erred when it denied Mr. Silver’s presentence
motion to withdraw his guilty plea.
II. Motion to Withdraw Guilty Plea
Pursuant to Crim.R. 32.1, a “motion to withdraw a plea of guilty or no
contest 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.” Presentence motions to withdraw
guilty pleas “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521,
527, 584 N.E.2d 715 (1992). However, “a defendant does not have an absolute right
to withdraw a plea prior to sentencing.” Id. We review a trial court’s ruling on a
motion to withdraw a guilty plea for an abuse of discretion. Id.In State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th
Dist.1980), paragraph three of the syllabus, this court set forth a four-part test to
determine whether a trial court abuses its discretion by denying a presentence
motion to withdraw a plea:
A trial court does not abuse its discretion in overruling a motion to
withdraw: (1) where the accused is represented 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.
Additionally, this court noted the following factors that a trial court
may consider when ruling on a presentence motion to withdraw a guilty plea: (1)
prejudice to the prosecution; (2) “whether the motion was made in a reasonable
time”; (3) “whether the motion states specific reasons for withdrawal”; and
(4) “whether the accused was perhaps not guilty or had a complete defense.” State
v. Pinkerton, 8th Dist. Cuyahoga Nos. 75906 and 75907, 1999 Ohio App. LEXIS
4453, 5 (Sept. 23, 1999).
Furthermore, this court has held that, although presentence motions
to withdraw guilty pleas should be liberally allowed, a “mere change of heart
regarding a guilty plea and the possible sentence is insufficient justification for the
withdrawal of a guilty plea.” State v. Johnson, 8th Dist. Cuyahoga No. 83350, 2004-
Ohio-2012, ¶ 38.
III. Analysis
Starting with the Peterseim factors, we find that the court held a full
Crim.R. 11 hearing when Silver pled guilty, at which Silver asked “a lot of questions”
that the court answered. Furthermore, the court explained at his plea hearing “what
the maximum penalty could be under the plea and if [Silver was] to be found guilty
at trial,” the constitutional rights Silver would be waiving should he enter a guilty
plea, and the effect of a guilty plea. Additionally, at the Crim.R. 11 hearing, Silver
stated that he was satisfied with the services his counsel provided, and nothing in
the record reflects that the competency of Silver’s counsel was questioned.
The court held a “complete and impartial hearing” on Silver’s motion
to withdraw his guilty plea on May 9, 2020. The court reviewed with Silver the
colloquy that occurred at his plea hearing, reminded him all parties agreed that the
court complied with Crim.R. 11, and concluded that his plea was made voluntarily
and knowingly. The court also listened to Silver’s stated reasons for wanting to
withdraw his plea, which will be discussed in detail under the Pinkerton factors
below. In other words, the trial court gave “full and fair consideration” to Silver’s
request to withdraw his plea.
Upon review, we find that the Peterseim factors weigh in favor of
denying Silver’s motion to withdraw his guilty plea.
Turning to the Pinkerton factors, we find that Silver filed his motion
on the same day that his sentencing hearing was scheduled, which was one month
and two days after pleading guilty. Although this motion was filed prior to
sentencing, the state was not afforded an opportunity to respond before the hearing
commenced. Compare State v. Porch, 2017-Ohio-8885, 100 N.E.3d 1134, ¶ 19 (8th
Dist.) (finding that an oral motion to withdraw plea made at a sentencing hearing
“was not timely filed”).
The trial court noted on the record that “one of the reasons [Silver]
listed as a basis for withdrawing the plea is that he pled guilty out of fear, panic, and
uncertainty that he could be sentenced to mandatory consecutive terms of
incarceration if he proceeded to trial and lost and that it clouded his judgment, and
now he’s had time to reflect on his decisions.” The court concluded that this reason
is “the same as any other Defendant” and that “there’s going to be a fear of a bad
sentence or a sentence that they would not prefer * * *.”
The trial court asked Silver if there were any other reasons why he
wanted to withdraw his guilty plea. Silver answered as follows: “After further
inspection of my discovery, I discovered that the detective procured a warrant for
my arrest.” The court, Silver, and Silver’s attorney engaged in a lengthy discussion
regarding the probable cause affidavit filed in the Cleveland Municipal Court on
August 27, 2021. This affidavit, which is a preprinted form with various blanks to
be filled in, lists the “Date/time of arrest” as “08/21/2021.” Silver argued that the
date of one of the offenses at issue was August 21, 2021, but he was not arrested until
August 27, 2021.
The court concluded that this alleged discrepancy was not a proper
basis for Silver to withdraw his plea. Silver next stated that he wanted to “exercise
my constitutional rights to go to trial and face my accusers.” Turning to the final
Pinkerton factor, Silver offered no argument at the hearing on his motion
concerning “whether he was perhaps not guilty or had a complete defense.”
In denying Silver’s motion, the court found as follows:
This is what we call a change of heart, okay?
So again, I explained to you that this would be a knowing, intelligent,
and voluntary plea. I asked if you understood that by pleading guilty,
you’re admitting to the truth of the facts and your full guilt, okay?
Your complaints about the way the form is created [are] not sufficient,
and then you also had complaints about — it kind of seems like you’re
trying any avenue here, and once one breaks down, you find another
one.
Upon review, we find that the Pinkerton factors weigh in favor of
denying Silver’s motion. The trial court acted within its discretion when it denied
Silver’s motion to withdraw his guilty plea. See State v. Resto, 8th Dist. Cuyahoga
No. 109109, 2020-Ohio-4299, ¶ 29 (“[W]e cannot say the trial court abused its
discretion when it found there was no reasonable and legitimate basis for Resto’s
motion to withdraw his guilty plea.”).
Accordingly, Silver’s sole assignment of error is overruled.
Judgment affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR