State v. Tucker

[Cite as State v. Tucker, 2012-Ohio-5067.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97981
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JVYN T. TUCKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554946
BEFORE: Jones, J., Blackmon, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Holly Welsh
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Jvyn Tucker (“Tucker”), appeals the trial court’s denial
of his presentence motion to withdraw his guilty plea. For the reasons that follow, we
affirm.
{¶2} In October 2011, Tucker was charged in an eight-count indictment. Count
1 charged him with kidnapping, Count 2 charged him with attempted murder, Counts 3
and 4 charged him with felonious assault, Counts 5 and 6 charged him with aggravated
robbery, Count 7 charged him with discharge of a firearm on or near prohibited premises,
and Count 8 charged him with having a weapon while under disability.1 The charges
arose out of an incident in which Tucker robbed the victim at gunpoint, while the victim
waited at a bus stop. As the victim tried to run away from Tucker, Tucker shot at him,
striking the victim in his leg. The victim knew Tucker because they went to school
together and, therefore, the victim was able to immediately identify Tucker as the
assailant.
{¶3} Pursuant to a plea agreement, Tucker pled guilty to felonious assault as
charged in Count 3 and having a weapon while under disability as charged in Count 8.
The remaining counts were nolled. The matter proceeded to sentencing in January 2012.
At the hearing, Tucker made an oral motion to withdraw his guilty plea. The trial court
held a hearing and subsequently denied the motion. The trial court then sentenced
Tucker to a total of ten years in prison.
Each of Counts 1-7 carried one- and three-year firearm specifications.
1
{¶4} Tucker now appeals, raising the following single assignment of error for our
review, as quoted:
I. The trial court abused its discretion in denying [Tucker’s] pre-sentence
motion to withdraw his plea of guilty.
{¶5} Tucker argues that the trial court erred when it denied his presentence motion
to withdraw his guilty pleas. A motion to withdraw a guilty plea is governed by the
standards set forth in Crim.R. 32.1, which 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.
{¶6} 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).
However, a defendant does not have an absolute right to withdraw a plea prior to
sentencing, and it is within the sound discretion of the trial court to determine what
circumstances justify granting such a motion. Id. In ruling on a presentence motion to
withdraw a plea, the court must conduct a hearing and decide whether there is a
reasonable and legitimate basis for withdrawal of the plea. Id. at 527. The decision to
grant or deny such a motion is within the sound discretion of the trial court. Id.
{¶7} In State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863, paragraph
three of the syllabus (8th Dist.1980), this court set forth the standard for determining
whether the trial court has abused its discretion in 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.
{¶8} Tucker contends that: (1) he was not represented by competent counsel
because he was allegedly told that he would receive a three-year sentence in exchange for
his guilty plea, (2) his plea was not knowingly and voluntarily made, (3) his hearing was
unfair because he represented himself at the hearing, and (4) the trial court did not give
him full and fair consideration of his request. A review of the record, however,
demonstrates otherwise.
{¶9} In the instant case, the trial court fully complied with the Peterseim criteria.
Tucker argues that he was not represented by competent counsel because he was allegedly
told that he would receive a three-year sentence in exchange for his guilty plea. For this
same reason, he argues his plea was not knowingly and voluntarily made. During the
hearing on the motion to withdraw Tucker’s guilty plea, the trial court noted that Tucker
was represented by “one of the best attorneys in the building.” The trial court further
noted that no such promise was made to him and Tucker acknowledged that he was not
promised anything in exchange for his plea. Additionally, defense counsel stated that he
“would never promise [Tucker] any particular sentence in this courtroom.” Defense
counsel further stated that “[a]ll I told him was what the minimum was, and I would try to
get that, and if he showed * * * that he was rehabilitating himself, * * * there was a
possibility that he could file for early release [from prison] after six months, after the
three years was up for the gun[.]” Thus, the record supports the trial court’s finding that
he entered his plea voluntarily and knowingly.
{¶10} Furthermore, the record reflects that the trial court afforded Tucker an
impartial hearing on his motion to withdraw his guilty pleas and gave full and fair
consideration to his request. Thus, because all four prongs set forth in Peterseim were
satisfied, we find that the trial court did not abuse its discretion in denying Tucker’s
presentence motion to withdraw his guilty pleas.
{¶11} The sole assignment of error is overruled.
{¶12} Judgment is 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.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR