State v. Murg ( 2024 )

[Cite as State v. Murg, 2024-Ohio-666.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112895
v. :
JAYSON MURG, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 22, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-674032-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
John H. Lawson, for appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant Jayson Murg (“Murg”) appeals from the trial
court’s order denying his motion to withdraw his guilty plea. For the reasons that
follow, we affirm.
Factual and Procedural History
On September 27, 2022, a Cuyahoga County Grand Jury indicted
Murg on two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4);
14 counts of pandering sexually oriented matter involving a minor in violation of
R.C. 2907.332(A)(5); four counts of illegal use of a minor in nudity-oriented
material or performance in violation of R.C. 2907.323(A)(3); and one count of
possessing criminal tools in violation of R.C. 2923.24(A). The gross sexual
imposition counts carried sexually violent predator specifications pursuant to R.C.
2941.148(A); the possessing criminal tools count carried a forfeiture specification
relating to a cell phone and computers. The gross sexual imposition counts named
Murg’s seven-year-old niece as a victim; one count referred to touching her vagina
and the other referred to touching her breasts.
Murg initially pleaded not guilty to the indictment. On October 20,
2022, the court referred Murg for a competency evaluation and an evaluation to
determine his eligibility for transfer to the mental health docket. On November 22,
2022, both parties stipulated to the report finding Murg competent to stand trial
and ineligible for transfer to the mental health docket.
On January 11, 2023, the court held a change-of-plea hearing. At this
hearing, the assistant prosecuting attorney placed the plea offer on the record as
follows: in exchange for pleading guilty to one count of gross sexual imposition, eight
counts of pandering sexually oriented matter involving a minor, one count of illegal
use of a minor in nudity-oriented material or performance, and one count of
possessing criminal tools with a forfeiture specification, the state would delete the
sexually violent predator specification and the remaining counts. Additionally, the
plea required Murg to agree to the following conditions: that the offenses are not
allied offenses of similar import and that he would be classified as a Tier III sex
offender.
Defense counsel confirmed that that was her understanding of the
plea agreement, and the court proceeded to engage Murg in a Crim.R. 11 plea
colloquy. The court ultimately accepted Murg’s guilty plea to the offenses outlined
above. The court ordered a presentence-investigation report (“PSI”) from the court
psychiatric clinic.
On February 28, 2023, the case proceeded to sentencing. Defense
counsel addressed the court, confirming that she had reviewed the PSI and stating
that Murg was extremely remorseful and has significant mental health issues,
including several suicide attempts. Defense counsel also referred to a previous sex
offense from the state of Maryland in 2016. Defense counsel requested a sentence
on the low end of the applicable range. Murg also addressed the court and expressed
regret and remorse for his actions.
Murg’s sister, and the mother of the named victim of Murg’s gross
sexual imposition offenses, addressed the court. She shared with the court the
trauma her young daughter suffered, telling Murg that he “took advantage of [her]
baby girl” and robbed her of her innocence. The assistant prosecuting attorney also
addressed the court, stating:
And these are the types of cases that the [Internet Crimes Against
Children] task force was created for because it’s not — it’s not just
somebody looking at imaging that the rest of us deem to be wholly
disgusting, but it’s looking at that and then becoming somebody who
touches a small child and that is the fear we have in all of these cases
that we investigate.
The assistant prosecuting attorney further referred to Murg’s pandering offenses,
stating that she would not show the images to the court, but that the case involved
two separate devices where images were discovered. According to the state, the
images involved toddlers or young children; some of the images involved a child
being restrained with handcuffs, and one of the images involved bestiality. The
assistant prosecuting attorney also stated that none of the images related to the
pandering charges were images of Murg’s niece.
At that point, defense counsel informed the court that Murg wished
to withdraw his guilty plea. The following exchange occurred between the court and
Murg:
THE COURT: What is the basis for you wishing to withdraw your plea
today?
MURG: The basis is —
THE COURT: Make sure you speak loudly so I can hear you.
MURG: The basis is as such: As my sister made her accusation today
that I took advantage of her daughter. And I will go ahead and notify
the Court that my sister has failed her own daughter in the sense, and
from the information I’ve gained from her daughter and the behavior
that she’s presented that she has failed to not only notice but to rectify
any issues prior to my arrival in Ohio.
I’m not blaming her daughter. With the actions that have occurred
after my arrival, her daughter has only done what she has been taught.
I understand the Internet Crimes Task Force is designed to stop crimes
against children on the internet. And I do acknowledge that I do have
an issue in that area with child pornography. However, I want to
withdraw my plea because I wonder — the decision to take the plea was
based upon — based upon what my public defender had expressed what
the law stated which was that the child is assumed innocent which does
not allow for two parties to be innocent in that aspect as well, and the
frustration with me wanting a jury trial and her expressing that it’s her
obligation to subpoena people.
I’m not — I do not — as I specified before, I regret horribly the events
that have occurred and I regret horribly that have occurred prior to my
arrival. I did not desire or foresee any of these things occurring or
happening. And as I stated and I believe at this moment as well that
my suicide was justified. Why? Because these things are
incomprehensible to me. It never should have happened, never even
should have been a thing to possibly occur. And I have — I have tried
to breach the topic with my sister on a few occasions asking her to take
certain precautions. And — well, that is the reasoning. There is more
to the story than just what is being stated. That’s all I have.
If you find it necessary to maximize my punishment, feel free. It does
not change my revised goals. I apologize for any inconvenience I’ve
given anyone. I apologize to my niece for not having the appropriate
proper answers to rectify the situation. I sincerely hope that my sister
takes better precautions in the future with individuals besides myself
in her own life.
The court then allowed the state to respond, and the assistant
prosecuting attorney stated that based on Murg’s statements, he did not have a
reasonable or legitimate basis for withdrawing his plea. Defense counsel then
addressed the court, stating:
Your Honor, obviously I was here also for the plea. At that point in time
I did advise my client of his constitutional rights and the pertinent law
with regards to what he was charged with in the indictment. Obviously
I am not here to go against what he took from those conversations, and
if he feels that he was led astray in some way I would back him in asking
for a — asking the Court to grant a motion to withdraw his plea at this
time, Your Honor.
The court then addressed Murg again and asked if there was anything
further he would like to say with regard to withdrawing his plea. Murg stated:
If I could only turn back time. I mean, I cannot do that. I can only do
my best to speak in a way that’s honest and understandable to those
who need to know.
From the onset of these events I knew this unfortunately was going to
be the end result because I had no solutions for the issues at hand. And,
unfortunately, Your Honor, you personally have not heard or
understood what circumstances that these things, these horrible
things, have occurred.
I don’t make an excuse for my anxiety-related behaviors I should have
gotten better taken care of earlier. Unfortunately, there’s no way —
there’s no way I could have predicted the circumstances I found myself
under, and I certainly wish that it never ever happened because this
was supposed to be a time of — a time of recovery for myself and
rebuilding and I never expected the things that happened.
I feel horrible for my niece and the things that she’s gone through, and
my other niece and nephew, and can’t necessarily speak for my oldest
nephew. I don’t know. I wish I could give you my memories. I wish I
could give you them all and then you can make your judgment from
there. And that’s all I have.
The court then stated that it presided over Murg’s plea hearing and
did not recall any hesitation from Murg. The court stated that it did not have the
transcript from Murg’s plea hearing in front of it at the time. Further, the court
stated that there has been no indication that from the time of Murg’s plea on January
11, 2023, until the present that Murg had been contemplating withdrawing his plea.
The court referred to Crim.R. 32.1. Following a brief disruption in the courtroom,
Murg again began to speak. Ultimately, the state objected, and the court had a
discussion with counsel for both parties off the record.
The court then stated:
So after hearing from you, hearing from your lawyer, hearing from the
State, reviewing the law in the case that I did review regarding vacating
a plea prior to sentencing, State v. Sandridge * * *. In this case the trial
court did not permit the defendant to withdraw his plea. It was a rape
case. And again, I’m making the finding that while I don’t have a copy
of the transcript; one, you have a competent attorney representing you;
two, while I don’t have a copy of the transcript you were afforded a full
Crim.R. 11 hearing before you entered your plea. I don’t recall you ever
being hesitant about it as well.
Since the time of your plea on January 11th there have been no motions
filed to withdraw your plea. There’s no indication in your Presentence
Investigation Report that you wish to withdraw your plea as well. The
Court provided you will a full hearing. You were permitted to speak at
length as to any comments you wish to say. And also it appears that
you didn’t even indicate when you first came out and the Court inquired
whether or not if there was any reason we shouldn’t go forward with
sentencing, there was no indication that you wished to withdraw your
plea.
So I have fully and fairly considered your request, and your request is
denied.
The court then proceeded with sentencing. The court informed Murg
of the registration requirements as a Tier III sex offender. The court imposed a
prison term of five years on the gross sexual imposition count, 12 months on each
count of pandering sexually oriented matter involving a minor, 12 months on the
illegal use of a minor in nudity count, and 12 months on the possessing criminal
tools count. The court ordered the sentences on gross sexual imposition, illegal use
of a minor in nudity, possessing criminal tools, and one of the pandering counts to
run consecutively to one another. The remaining sentences were ordered to be
served concurrently for a total sentence of eight years.
Murg filed a delayed notice of appeal and presents one assignment of
error for our review:
The trial court erred and abused its discretion in denying appellant’s
oral motion to withdraw his guilty pleas prior to sentencing without
testimony regarding defense counsel’s background and without an
engaged defense counsel to represent him.
Law and Analysis
In his sole assignment of error, Murg argues that the trial court erred
and abused its discretion by denying his oral presentence motion to withdraw his
guilty plea. Specifically, Murg asserts that the trial court failed to properly inquire
of defense counsel whether they were “highly competent counsel.” Murg further
argues that his defense counsel was minimally involved in the hearing on his oral
motion to withdraw his plea.
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.
The decision to grant or deny a presentence motion to withdraw a
guilty plea 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.
The term abuse of discretion implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187
N.E.3d 463.
Courts have traditionally considered nine factors when reviewing a
trial court’s decision denying a defendant’s presentence motion to withdraw a guilty
plea. State v. Hopkins, 8th Dist. Cuyahoga Nos. 112430 and 112704, 2023-Ohio-
4311, ¶ 13. Those factors include whether a defendant was (1) represented by
competent counsel, (2) given a full Crim.R. 11 hearing before he entered the 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. Id., citing
State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), paragraph
three of the syllabus.
Additionally, consideration is given to whether (5) the motion was
made in a reasonable time, (6) the motion stated specific reasons for withdrawal, (7)
the defendant understood the nature of the charges and the possible penalties, and
(8) the defendant had evidence of a plausible defense. Id., citing State v. Fish, 104
Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995), see also State v. Heisa, 8th Dist.
Cuyahoga No. 101877, 2015-Ohio-2269. Finally, courts have considered (9)
“‘whether the state would be prejudiced if the defendant were permitted to withdraw
his guilty plea.’” Id., quoting State v. Barnes, 172 Ohio St.3d 63, 2022-Ohio-4486,
222 N.E.3d 537, ¶ 32 (Brunner, J., concurring), citing State v. Richter, 8th Dist.
Cuyahoga Nos. 46122 and 46123, 1983 Ohio App. LEXIS 15476, 2 (Sept. 29, 1983).
Because Murg does not make any arguments relating to any factor
except whether he was represented by competent counsel, and because our review
of the record indicates that each of those factors weighs in favor of denying Murg’s
motion to withdraw his plea, we will limit our analysis to the first factor.
In support of his argument, Murg cites numerous cases, including the
case cited by the trial court at the hearing, in which the court apparently engaged
defense counsel in a discussion as to their qualifications. For example, in State v.
Sandridge, the trial court asked defense counsel how long he had been an attorney,
and defense counsel responded that he had been an attorney for 12 to 13 years,
“handling ‘these types of cases.’” State v. Sandridge, 8th Dist. Cuyahoga No. 101653,
2015-Ohio-1541, ¶ 20. Similar exchanges occur in the other cases cited by Murg. In
the instant case, although the trial court referred to defense counsel as “highly
competent counsel,” no such exchange took place. While Murg points to no case law
requiring a court to explicitly inquire as to defense counsel’s experience or
competence, he appears to be arguing that the failure to do so somehow renders the
trial court’s denial of his motion to withdraw his plea an abuse of discretion. We are
not persuaded.
Nothing in the record indicates that Murg was not represented by
highly competent counsel, and the trial counsel’s decision not to inquire as to
defense counsel’s experience does not change this fact. Further, Murg offers nothing
in support of his implicit argument that a trial court cannot or should not determine
the competency of attorneys practicing before them.
With respect to Murg’s argument that his counsel was not permitted
to participate in the hearing on his motion to withdraw his plea, we note that this
assertion is unsupported by the record. The trial court conducted a full hearing and
offered all parties involved, including defense counsel, the opportunity to address
the court. The court began by asking if there was any reason the court should not
proceed with sentencing; defense counsel said there was not. Both defense counsel
and Murg then had the opportunity to independently address the court in advance
of sentencing. Based on our thorough review of the record, this appears to be “‘a
classic change of heart case.’” State v. Howard, 2017-Ohio-9392, 103 N.E.3d 108,
¶ 44 (4th Dist.), quoting State v. Frye, 4th Dist. Scioto No. 14CA3604, 2014-Ohio-
5016, ¶ 18. Both Murg and his counsel confirmed that Murg was ready for
sentencing; Murg only attempted to withdraw his plea after hearing the heartfelt
reflection from the mother of the victim on the harm he caused her daughter. Regret
does not merit a grant of a motion to withdraw a guilty plea.
For these reasons, the trial court properly denied Murg’s motion to
withdraw his guilty plea. Murg’s 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. 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.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR