State v. Abercrombie ( 2019 )

[Cite as State v. Abercrombie, 2019-Ohio-4786.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108147
v. :
JAMES ABERCROMBIE, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 21, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-631763-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marcus A. Henry, Assistant Prosecuting
Attorney, for appellee.
Eric L. Foster, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant James Abercrombie III (“Abercrombie”) appeals
from the trial court’s judgment denying his motion to withdraw his guilty plea.
Upon a review of the record, we find the trial court did not abuse its discretion in
denying Abercrombie’s motion and we therefore affirm the judgment.
Procedural History and Substantive Facts
On September 10, 2018, Abercrombie was charged in a multiple-count
indictment including charges of gross sexual imposition, sexual battery, rape,
kidnapping, and endangering children. Several counts included sexually violent
predator specifications. The indictment stems from numerous incidents involving
the two young daughters of Abercrombie’s girlfriend.
On January 9, 2019, Abercrombie entered a guilty plea to an amended
indictment. He pleaded guilty to Counts 1, 4, 6, and 8, gross sexual imposition in
violation of R.C. 2907.05(A)(4); Count 11, rape in violation of R.C. 2907.02(A)(2);
and Counts 17 and 18, endangering children in violation of R.C. 2919.22(B)(1). In
exchange for his plea, all sexually violent predator specifications were removed and
the state dismissed the remaining charges.
On January 14, 2019, the court held a sentencing hearing, during which
both victims spoke about the abuse they suffered at the hands of Abercrombie, a
father-figure, over a span of four years. The abuse began when one victim was 9
years old and the other victim was 13 years old.
After also hearing from defense counsel, the court asked Abercrombie
if he wished to speak, and the following discourse transpired:
Abercrombie: From day one, your Honor, I want * * * I was told to
waive my rights, and I should never have waived my
rights.
Court: Well, I went through that with you at the time of the
change of plea.
Abercrombie: You never explained it to me. You never explained it.
I know you explained it, but I didn’t know what was
going on. I am not a lawyer, so I didn’t know the real
rights.
Court: Okay. Right. I went through them with you on
actually more than one occasion on the record. Would
you like to say anything with respect to sentencing
other than what [your attorneys] have said today?
Abercrombie: I wanted to take it to the box.
Court: To what?
Abercrombie: To trial.
Court: Okay. Well, we’re past that right now. You entered a guilty
plea. Part of what [defense counsel] was arguing
during —
Abercrombie: I want to change my plea. I can’t change my plea?
Court: Correct. I am not accepting — if you are moving me right now
to change your plea or vacate your guilty plea, the
answer is no. Would you like to say anything with
respect to sentencing?
Abercrombie: I just want to go lay down then because I don’t have
anything to say, your Honor.
Court: Okay. Thank you.
Abercrombie: I ain’t signing no waiver or nothing.
Court: I didn’t hear you, sir. If you wish to say something, * *
* come on up. * * * I’ll just ask one more time, sir, to
make sure that I give you every opportunity to address
the court. [Your attorneys] did. Each of them on your
behalf. You have heard from the victims in this case.
I am giving you one last opportunity in the event that
you would like to say anything right now before I pass
judgment.
Abercrombie: I don’t want to say anything that would be used
against me.
Court: I guess that depends on what you say, but that’s fine.
You don’t have to say anything.
The court then proceeded to sentencing. After considering the
principles and purposes of felony sentencing and the sentencing factors, the court
imposed an aggregate sentence of 20 years in prison.
Abercrombie now appeals.
Motion to Withdraw Guilty Plea
In his sole assignment of error, Abercrombie contends the trial court
erred when it denied his presentence motion to withdraw his guilty plea. In support,
he argues that the trial court failed to provide a full hearing on his motion to
withdraw and failed to give full and fair consideration to his request.
Crim.R. 32.1 governs withdrawals of guilty pleas and provides that
“[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.” Generally, 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. Therefore, a trial court must conduct a
hearing in order to determine whether there is a reasonable and legitimate basis for
the withdrawal of the plea.” Id.
The decision whether to grant or deny a motion to withdraw a guilty
plea is entirely within the sound discretion of the trial court, and we will not alter
the trial court’s decision absent a showing of an abuse of that discretion. Xie at
paragraph two of the syllabus; State v. Peterseim, 68 Ohio App. 2d 211, 428 N.E.2d
863 (8th Dist.1980), paragraph two of the syllabus. “‘[U]nless it is shown that the
trial court acted unjustly or unfairly, there is no abuse of discretion.’” Peterseim at
213-214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).
A trial court does not abuse its discretion in denying a motion to
withdraw a guilty plea where the following occurs: (1) the accused is represented by
competent counsel; (2) 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) the record
reflects that the court gave full and fair consideration to the plea-withdrawal
request. Peterseim at paragraph three of the syllabus; State v. King, 8th Dist.
Cuyahoga No. 106709, 2018-Ohio-4780, ¶ 13. Additional factors this court has
considered include whether the motion was made in a reasonable time; whether the
motion states specific reasons for withdrawal; whether the accused understood the
nature of the charges and the possible penalties; and whether the accused was
perhaps not guilty or had a complete defense. King at ¶ 14, citing State v. Benson,
8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
A trial court’s adherence to Crim.R. 11 raises a presumption that a
plea is voluntarily entered. State v. McKissick, 8th Dist. Cuyahoga No. 105607,
2018-Ohio-282, ¶ 23. And a defendant moving to withdraw the plea bears the
burden “of rebutting that presumption by demonstrating that the plea was infirm.”
State v. Robinson, 8th Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 26.
Here, Abercrombie concedes on appeal that he was represented by
competent counsel and was given a full Crim.R. 11 hearing prior to entering his guilty
plea. Indeed, the record reflects that the court engaged in a full Crim.R. 11 colloquy.
During the plea hearing, the court advised Abercrombie of the effect of his plea, the
nature of the charges, the potential penalties he faced, and the constitutional rights
he was waiving by pleading guilty. Abercrombie repeatedly indicated that he
understood the court’s advisements and he was in fact guilty. He also confirmed
that no promises were made in exchange for his guilty plea. And at no time did
Abercrombie express any confusion during the hearing or that he misunderstood
the nature of the charges or the possible penalties.
Abercrombie contends, however, that the trial court failed to provide
him a complete hearing on his oral motion to withdraw and failed to fully consider
his request.
To the extent that the trial court did not have a full evidentiary
hearing, one is not required in all cases. Robinson, 8th Dist. Cuyahoga No. 89651,
2008-Ohio-4866, at ¶ 24. The scope of a hearing on a motion to withdraw should
reflect the substantive merits of the motion. Id. at ¶ 25. “‘[B]old assertions without
evidentiary support simply should not merit the type of scrutiny that substantiated
allegations would merit.’” Id. at ¶ 26, quoting State v. Smith, 8th Dist. Cuyahoga
No. 61464, 1992 Ohio App. LEXIS 6259, 14-15 (Dec. 10, 1992); State v. Wittine, 8th
Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 8 (“The scope of a hearing on a
motion to withdraw a guilty plea is dependent upon the facial validity of the motion
itself.”).
Therefore, where a defendant fails to make a prima facie showing of
merit, the trial court need not “devote considerable time to” his or her request to
withdraw. Smith at 14. Further, the scope of the hearing is within the sound
discretion of the trial court, subject to this court’s review for an abuse of discretion.
State v. Farkosh, 8th Dist. Cuyahoga No. 102393, 2015-Ohio-3588, ¶ 9, citing Xie,
62 Ohio St.3d at 526, 584 N.E.2d 715. “This approach strikes a fair balance between
fairness for an accused and preservation of judicial resources.” Smith at 15.
Here, although the court’s discussion with Abercrombie regarding his
desire to withdraw his plea was brief, we find the trial court gave Abercrombie’s
request the consideration it merited. The record demonstrates that Abercrombie
had the opportunity to state his reasons for his motion. He told the court that he
should never have waived his rights and that the court never explained his rights.
Backtracking from that statement, he then stated that he “didn’t know what was
going on” and “didn’t know the real rights.” The record, however, contradicts
Abercrombie’s assertion. The record reflects that the court engaged in a full Crim.R.
11 colloquy and Abercrombie repeatedly indicated he understood his rights and he
knowingly, intelligently, and voluntarily waived those rights. When the court
reminded Abercrombie that it did in fact advise him of his rights “on actually more
than one occasion,” Abercrombie simply stated, without reasons or support, “I
wanted to take it to the box.”
On this record, we find Abercrombie’s last-minute pro se request to
go to trial to be merely a change of heart after hearing the statements of the victims.
And this court has repeatedly held that a change of heart regarding a guilty plea and
the possible sentence is insufficient justification for withdrawal of a guilty plea.
State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-Ohio-2929, ¶ 20; McKissick,
8th Dist. Cuyahoga No. 105607, 2018-Ohio-282, at ¶ 22; State v. Bosby, 8th Dist.
Cuyahoga No. 94466, 2011-Ohio-599, ¶ 11. Consequently, the court’s consideration
of Abercrombie’s desire to “take it to the box” was sufficient. The fact that the court
found Abercrombie’s assertion unpersuasive does not mean it did not adequately
consider the request.
In light of the foregoing, we cannot find the trial court abused its
discretion in denying Abercrombie’s motion to withdraw his guilty plea.
Judgment affirmed.
It is ordered that appellee recover of 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.
_____________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR