State v. Glenn ( 2021 )

[Cite as State v. Glenn, 2021-Ohio-1587.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 109769, 109796 and 109858
v. :
RUFUS GLENN, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 6, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-636987-A, CR-19-640725-A and CR-19-635995-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ayoub Dakdouk, Assistant Prosecuting
Attorney, for appellee.
Patrick S. Lavelle, for appellant.
EILEEN A. GALLAGHER, P.J.:
Appellant, Rufus Glenn, Jr. (“Glenn”) appeals the judgment of the
trial court in denying his presentence request to withdraw his guilty plea and asserts
that the lower court denied him the right to be represented by counsel at his
sentencing hearing. We affirm.
Glenn was indicted by a Cuyahoga County Grand Jury in Cuyahoga
C.P. No. CR-19-635995-A (“635995”) for two counts of escape; in Cuyahoga C.P. No.
CR-19-640725-A (“640725”) for two counts of illegal “possess” of firearm in liquor
permit premises and two counts of having weapons while under disability and, in
Cuyahoga C.P. No. CR-19-636987-A (“636987”), he was charged with one count of
aggravated burglary with notice of prior conviction, a repeat violent offender
specification and a forfeiture clause; one count of aggravated burglary with one- and
three-year firearm specifications, a notice of prior conviction, a repeat violent
offender specification and a forfeiture clause; one count of felonious assault with
one- and three-year firearm specifications, a notice of prior conviction, a repeat
violent offender specification and a forfeiture clause; one count of domestic violence
with a forfeiture clause; improperly handling firearm in a motor vehicle with a
forfeiture clause; carrying a concealed weapon with a forfeiture clause; receiving
stolen property with a forfeiture clause and two counts of having a weapon while
under disability with one- and three-year firearm specifications and a forfeiture
clause.
Case number 636987 did proceed to trial by a jury and, in the midst
of said trial, Glenn entered a plea of guilty to a charge of burglary under Count 1 with
the notice of prior conviction and repeat violent offender specification deleted; a
charge of felonious assault with the deletion of the three-year firearm specification,
notice of prior conviction and repeat violent offender specification under Count 3
and having weapons while under disability with the deletion of the three-year
firearm specification.
On that same date, Glenn entered a plea of guilty to the charges as
indicted in both 640725 and 635995.
He was referred for a presentence investigation report and advised
that the agreed recommended sentencing range of four to six years was merely a
recommendation to the court by the state and defense counsel.
On March 19, 2020, Glenn was sentenced to an aggregate term of
eight years for the three cases and was advised of mandatory postrelease control for
a period of five years in 636987 and three years of discretionary postrelease control
in 635995 and 640725.
Prior to sentencing, the trial court did acknowledge and address
Glenn’s pro se filing of “Motion to Vacate for lack of knowing and intellagent [sic]
plea.” Defense counsel was given an opportunity to be heard on Glenn’s pro se
motion as it alleged that counsel was not effective. Glenn then addressed the court
and stated that after he spoke to counsel and his family, who were present, that he
“was under a lot of pressure. Like I ain’t want to go forward with that plea… They
[his family] basically want me to take this plea, begging me to take this plea. It was
just too much pressure.”
The trial court then reviewed the history of the case including
conversations with Glenn’s two prior attorneys and the fact that during the lunch
recess on the first day of trial, the trial judge was advised of Glenn’s desire to enter
pleas which was then effectuated.
Glenn appealed, raising two assignments of error for review.
First Assignment of Error
In his first assignment of error, Glenn argues that the lower court
abused its discretion when it denied appellant’s presentence request to withdraw his
guilty plea.
A motion to withdraw a guilty plea is governed by Crim.R. 32.1 which
reads:
A motion to withdraw a plea of guilty or no contest may be made only
before sentencing is imposed; but to correct manifest injustice the court
after sentencing may set aside the judgment of conviction and permit
the defendant to withdraw his or her plea.
A defendant, however, does not have an absolute right to withdraw
his plea prior to sentencing and it is within the sound discretion of the trial court to
determine what circumstances justify the granting of any such motion. State v.
Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 7, citing State v. Xie, 62
Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
Prior to ruling on any such motion, the trial court must conduct a
hearing to determine whether there is a reasonable and legitimate basis for
withdrawal of the plea. Xie at paragraph one of the syllabus.
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 if 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. State
v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).
After reviewing the record, we find that the trial court did not abuse
its discretion in denying Glenn’s motion to withdraw his pleas.
Glenn was represented by highly competent counsel during the plea
hearing which did comport completely with Crim.R. 11. Glenn indicated during that
plea colloquy that he was satisfied with counsel and the following exchange was had:
THE COURT: Other than what we talked about now, before, whenever
it was the last time we were on the record in the last week or two, has
anybody made any threats to you or promises to you in order to get you
to change your plea?
THE DEFENDANT: No, sir.
THE COURT: And whose decision is it to plea here today?
THE DEFENDANT: Mines [sic].
Counsel successfully negotiated a plea with the state of Ohio that
included the dismissal of a variety of specifications and the reduction of a charge.
Prior to sentencing, the trial court did provide an opportunity for
Glenn to be fully heard, on the record, during which time he claims to have been
pressured by his family to accept the plea which, again, was entered mid-trial.
There is nothing in the record before us that demonstrates that
Glenn’s motion to withdraw his guilty pleas was based on anything more than a
change of heart. We cannot say that the trial court abused its discretion when it
denied Glenn’s motion.
The first assignment of error is overruled.
Second Assignment of Error
In his second assignment of error, Glenn argues that the lower court
denied him the right to be represented by counsel at the sentencing hearing.
Appellant states in his brief that “the lower court did not have the time or inclination
to allow Defense counsel much of an opportunity to speak in mitigation at the
sentencing hearing. When defense counsel requested permission to speak, the lower
court simply told him ‘no.’” That is not the case. Defense counsel spoke fully and
eloquently to the court on behalf of his client. He objected to the use of “jailhouse”
phone calls by the state of Ohio which they sought to offer at the sentencing hearing,
he reminded the court that there was an agreed recommended sentence and, in fact,
interjected and asked to be heard for a second time prior to Glenn addressing the
court.
The Sixth Amendment to the United States Constitution provides that
“in all criminal prosecutions, the accused shall… have the assistance of counsel for
his defense.” In this case, Glenn was represented by counsel at his sentencing
hearing who was afforded the opportunity to speak on behalf of his client without
limitation.
The second 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 out this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending 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.
____
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR