State v. Barrett , 2014 Ohio 1234 ( 2014 )

[Cite as State v. Barrett, 2014-Ohio-1234.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100047
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL J. BARRETT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-570863
BEFORE: Keough, J., Boyle, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: March 27, 2014
ATTORNEY FOR APPELLANT
Christina Joliat
P.O. Box 391531
Solon, Ohio 44139
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Michael J. Barrett, appeals the trial court’s denial of his
presentence motion to withdraw his guilty plea. For the reasons that follow, we affirm
the trial court’s decision.
{¶2} In January 2013, Barrett was charged with burglary in violation of R.C.
2911.12(A)(1), a second-degree felony, and petty theft, a first-degree misdemeanor. The
charges stemmed from a home intrusion where it was alleged that Barrett entered the
victims’ home, was confronted by the victims, and then left after stealing beer from a
refrigerator located inside the garage. It was further alleged that Barrett then fled in his
car, led police on a chase, and was apprehended after he was found hiding in a garage.
{¶3} On the day of trial, Barrett appeared with counsel and pleaded guilty to an
amended charge of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony; the
petty theft charge was nolled.
{¶4} On the day of sentencing, Barrett orally moved to withdraw his guilty plea.
After the trial court conducted a hearing on Barrett’s oral motion, it denied the motion
and sentenced Barrett to 24 months in prison.
{¶5} Barrett appeals, contending in his sole assignment of error that the trial court
abused its discretion in denying his presentence motion to withdraw his guilty plea. He
argues that his claim of innocence and that the denial of effective assistance of counsel
require vacating his plea.
{¶6} Under 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.”
{¶7} In general, “a presentence motion to withdraw a guilty plea should be freely
and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). It
is well established, however, 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 legitimate basis for the withdrawal of the plea.”
Id. at paragraph one of the syllabus.
{¶8} The decision to grant or deny a presentence motion to withdraw is within the
trial court’s discretion. Id. at paragraph two of the syllabus. Absent an abuse of
discretion, the trial court’s decision must be affirmed. Id. at 527. An abuse of
discretion requires a finding that the trial court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). A trial court does not abuse its discretion in denying a motion to withdraw the
plea where a defendant was (1) represented by competent counsel, (2) given a full
Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion
to withdraw, and (4) the record reflects that the court gave full and fair consideration to
the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863(8th Dist.1980), paragraph three of the syllabus.
{¶9} When faced with a claim of innocence, “‘the trial judge must determine
whether the claim is anything more than the defendant’s change of heart about the plea
agreement.’” State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 27,
quoting State v. Kramer, 7th Dist. Mahoning No. 01-CA-107, 2002-Ohio-4176, ¶ 58. 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. Westley, 8th Dist. Cuyahoga No.
97650, 2012-Ohio-3571, citing State v. Drake, 73 Ohio App.3d 640, 645, 598 N.E.2d 115(8th Dist.1991). Likewise, a defendant’s protestations of innocence are not sufficient
grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered.
Minifee, citing State v. Bloom, 8th Dist. Cuyahoga No. 97535, 2012-Ohio-3805, ¶ 13.
{¶10} Barrett also contends his plea should be vacated because he was denied
effective assistance of counsel because he did not have a full understanding of his
potential for criminal liability under a theory of complicity. A plea will not be
considered voluntary if it is the result of ineffective assistance of counsel. State v.
Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. In order to prevail on
this claim, Barrett must meet the test for ineffective assistance of counsel. Xie, 62 Ohio
St.3d at 524, 584 N.E.2d 715. This requires a convicted defendant to prove two things
— counsel’s performance was deficient and the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The claim fails if the defendant cannot satisfy either prong of the test. State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{¶11} In order to successfully attack a plea for a lawyer’s deficient performance,
the defendant must prove his lawyer “was not ‘a reasonably competent attorney’ and the
advice was not ‘within the range of competence demanded of attorneys in criminal
cases.’” Strickland at 687, quoting McMann v. Richardson, 397 U.S. 759, 770-771, 90
S.Ct. 1441, 25 L.Ed.2d 763 (1970). All properly licensed Ohio lawyers are presumed
competent. Banks at ¶ 16. Furthermore, in evaluating a lawyer’s performance, a
reviewing court must “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Bradley at 142, quoting
Strickland at 689.
{¶12} On review, the record shows that Barrett was represented by competent
counsel and was not denied effective assistance of counsel. At the plea hearing, counsel
stated on the record that she had advised Barrett of his rights and “the evidence that [the
state] would present if we were to go to trial, under a theory of complicity.” Even after
so advising, defense counsel told the court that Barrett would be pleading to the plea
agreement previously set forth on the record. Additionally, counsel acknowledged that
“there is a factual basis for the plea under the theory of complicity to this crime.”
{¶13} The court questioned the parties about the evidence of complicity that would
have been presented in this case. The state briefly stated the facts of the case, indicating
that Barrett was involved, but also acknowledging that there may have been a second
party involved. The court further inquired as to what evidence existed proving that
Barrett aided and abetted someone else. The state then extensively set forth the facts of
the case, implicating Barrett. Following the state’s presentation, the court further
inquired “where on those facts is the theory of complicity?” Defense counsel then
advised the court of the weaknesses in the state’s case, including that Barrett was not
identified by the victims as the home intruder. Following this extensive inquiry, the
court stated it was satisfied that there was a factual basis for the plea. All of these facts
were set forth on the record, in open court, in the presence of Barrett, and on the day of
trial. The trial court then engaged in a colloquy with Barrett where he affirmatively
stated that he “understood everything that has been said at the hearing so far.”
{¶14} Accordingly, the record shows that Barrett was represented by competent
counsel at the time of the plea. Barrett’s claim that he was denied effective assistance of
counsel is also without merit because he has failed to demonstrate on appeal how his trial
counsel’s performance was deficient, the first prong of the Strickland test. Rather, the
record shows that Barrett, after discussing his case with non-lawyer acquaintances,
merely had a change of heart.
{¶15} Considering the other Peterseim factors, the record shows that Barrett was
given a full hearing in compliance with Crim.R. 11 before entering his plea. At the plea
hearing, the trial court conducted an extensive inquiry of Barrett to ensure that he
understood the charges against him and the maximum penalties involved, the effect of his
guilty plea, and the rights he was waiving by pleading guilty. Barrett also denied being
threatened or promised anything in exchange for pleading guilty.
{¶16} The record further demonstrates that the trial court gave Barrett a complete
and impartial hearing on his presentence motion to withdraw his guilty plea and gave full
and fair consideration to the arguments raised in support of his motion. At the hearing,
defense counsel stated that Barrett wanted to withdraw his plea because (1) he was not the
actual person who entered the victims’ home, (2) he subsequently learned that the trial
judge was a victim of a burglary, and (3) the car was not fingerprinted.
{¶17} After listening to the state’s response, the trial court reiterated what
occurred during the plea colloquy. It noted that the arguments Barrett made in support of
withdrawing his plea were raised at the time Barrett changed his plea to guilty, the same
day that Barrett’s case was set for trial. It noted that Barrett was represented by
competent counsel at the plea hearing. The court further noted that before taking
Barrett’s plea, the trial court had listened to the factual basis for the amended charge.
Specifically with respect to Barrett’s claim of innocence, the trial court noted that Barrett
had responded affirmatively when the court asked him whether he understood what had
been said during the plea hearing regarding the state’s theory of complicity in connection
with the burglary. Accordingly, the trial court concluded that Barrett had made a
knowing, voluntary, and intelligent guilty plea and had not demonstrated a basis for
withdrawing the plea.
{¶18} We find no abuse of discretion in the trial court’s ruling. Contrary to
Barrett’s argument on appeal, there is nothing in the record to suggest that the trial judge
exerted any bias towards Barrett or that the trial judge’s own personal experiences
affected the court’s ability to be fair and impartial. Moreover, Barrett has failed to
demonstrate how his subsequent knowledge about the trial judge’s alleged personal
experiences rendered his plea unknowing, involuntary, or unintelligent. There is nothing
in the record to even remotely suggest that Barrett was induced into entering the guilty
plea based on the trial judge’s personal experiences.
{¶19} Furthermore, the factual basis for the plea was so extensively set forth at the
plea hearing that if Barrett did not understand his criminal liability under a theory of
complicity, he should have expressed his misunderstanding at the plea hearing, rather
than affirmatively responding to the court’s question of whether he “understood
everything that has been said at the hearing so far.”
{¶20} In fact, Barrett’s motion to withdraw seems to be predicated upon a change
of heart based on the fact that he received advice from non-lawyer acquaintances and
learned that the trial judge was a victim of a crime. These are insufficient justifications
for the withdrawal of the plea. Barrett’s arguments were not sufficient to warrant the
withdrawal of his knowing, voluntary, and intelligent guilty plea, and the trial court did
not abuse its discretion in denying Barrett’s presentence motion to withdraw his guilty
plea. Accordingly, the assignment of error is overruled.
{¶21} 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. 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 Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR