State v. Walcot

[Cite as State v. Walcot, 2013-Ohio-4041.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99477
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT WALCOT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-564462
BEFORE: Boyle, P.J., S. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEY FOR APPELLANT
Bruce M. Courey
5546 Pearl Road
Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Robert Walcot, appeals his conviction, raising a single
assignment of error:
The trial court erred in denying appellant’s motion to withdraw his guilty
plea prior to sentencing.
{¶2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} In July 2012, Walcot was charged in a 15-count indictment: five counts of
rape, violations of R.C. 2907.02(A)(1)(b); four counts of gross sexual imposition,
violations of R.C. 2907.05(A)(4); four counts of kidnapping, violations of R.C.
2905.01(A)(4); one count of importuning, a violation of R.C. 2907.07(A); and one count
of disseminating matter harmful to juveniles, a violation of R.C. 2907.31(A)(3). The
rape and kidnapping counts all carried sexually violent predator specifications, notice of
prior conviction, and repeat violent offender specifications. The gross sexual imposition
counts carried a sexually violent predator specification. The date of the offenses
covered a span of time from July 1, 2002, through July 31, 2005. The victims of the
alleged rape, gross sexual imposition, and kidnapping offenses were two of Walcot’s
stepdaughters, both under the age of 13 at the time of the offenses.
{¶4} Walcot initially pleaded not guilty to the charges, and the matter proceeded
to a jury trial on November 27, 2012, on the base charges. Walcot elected to have the
specifications tried to the bench.
{¶5} Prior to the trial commencing, the prosecutor formally placed a plea deal on
the record, indicating that the deal would remain open until the first witness was called.
Defense counsel also addressed the court, indicating that he discussed the plea deal with
Walcot and his family, informed him of the range of the sentence under the plea, and
provided a recommendation. The trial court further addressed Walcot and indicated that
he “would consider a range in the sentence of 8 to 15 years without any promises as to
whether the three-year sentence [that Walcot’s] doing now would be concurrent.”1 At
that time, Walcot still desired to go ahead with a trial.
{¶6} The court commenced the trial, and a jury was selected. Following
opening statements, however, Walcot asked to take the plea deal offered by the
prosecutor. After fully complying with Crim.R. 11 and advising Walcot of his statutory
and constitutional rights, the trial court accepted Walcot’s guilty plea to two amended
counts of rape, violations of R.C. 2907.02(A)(2), without any specifications attached.
The remainder of the counts were nolled.
{¶7} After accepting Walcot’s plea, the trial court ordered a presentence
investigation report on the record, at which time Walcot expressed his desire to withdraw
his guilty plea that he had recently entered in the separate firearm case (Case No.
CR-554876). Based on Walcot’s statement, the trial judge asked Walcot whether he was
1
On November 7, 2012, Walcot was sentenced to three years in prison in Cuyahoga C.P.
No. CR-554876 after being convicted of one count of carrying a concealed weapon and one count of
having a weapon while under disability.
“contemplating withdrawing” his plea in the rape case. Walcot stated: “No. No, I am
not.”
{¶8} On December 14, 2012, two weeks before the scheduled sentencing date,
Walcot filed a pro se motion to withdraw his guilty plea, arguing that he was “not guilty
of the allegations that [he] was arraigned on and coerced into pleading guilty.” He
indicated that the prosecutor, judge, and his own attorney were against him. He
expressed his concern that his attorney shared confidential information with the
prosecutor from the onset resulting in his re-indictment with additional counts and
questioned the integrity of the judge.
{¶9} On December 28, 2012, the trial court held a hearing on Walcot’s motion to
withdraw his guilty plea. Walcot addressed the court, stating that he was “coerced” into
entering the plea and under duress. He explained that his trial counsel told him that he
would end up going to prison for life because he would lose at trial. Walcot further
stated that his defense counsel used Walcot’s mother to pressure him to take the plea too
and that he did not have enough time to consider the plea. Walcot additionally reiterated
the same arguments raised in his motion, i.e., questioning the integrity and competency of
his attorney, contending that the state’s case was weak, and pleading his innocence.
Walcot’s criticisms of his defense counsel also included his defense counsel’s selection of
the jury.
{¶10} The trial judge addressed each of Walcot’s stated concerns on record.
{¶11} Both the prosecutor and defense counsel confirmed that no privileged
confidential information was shared that led to the second indictment with additional
charges. This claim is no longer an issue as Walcot has abandoned it on appeal.
{¶12} With respect to Walcot’s duress claim and attack on his attorney, the trial
court turned to defense counsel and engaged in the following colloquy:
The Court: So you’re giving him your best advice in
applying the strategy you felt was best to protect
his rights?
[Defense counsel]: Judge, I looked at the indictment. There was — And
I don’t have it in front of me. There [were] 14,
15 counts. A vast majority of them had life
tails if not life without. Based upon my
professional opinion and everything, I thought it
was in his best interest to do a plea. We talked
about it. Part of my job is to tell them
sometimes things that they don’t want to hear.
Sometimes when we’re in the back the
conversation is a little bit raw. But we’ve had
conversations and I certainly gave him my
opinion as to what likely would occur should we
go to trial.
And as the court is aware, you know, we were
— we picked a jury, did opening statement, and
at that point my client pled. But even during
that time I was consistently talking to Mr.
Cleary trying to get a better deal for my client.
As the court may recall, we were in chambers.
We narrowed it down. With the plea and the
three years he was already sentenced to, with
the plea bargain, he was looking from 3 to 23
years. We kept on going away. And
certainly the floor, the bottom of it, is a little bit
higher than the minimum, but we were able to
back the exposure to 18 years from 23 years.
We were fighting all along as this process was
going on.
{¶13} The trial court also heard from Walcot’s mother, who stated that she “did
not at any time encourage [Robert] to take a plea or go to trial.” According to Walcot’s
mother, she told her son that she would support any decision he made.
{¶14} The trial judge then heard from the prosecutor who summarized the
evidence of the state’s case, which included, among other things: (1) the testimony of the
three victims; (2) a journal from one of the victim’s recounting the “nightmares” and
“demons” caused by Walcot; and (3) a school psychologist to one of the victims. The
prosecutor then addressed the court as to the merits of Walcot’s arguments, refuting each
argument.
{¶15} After a full hearing, the trial court denied Walcot’s motion, providing
detailed reasons as to why he believed that the motion was simply a delay tactic:
I specifically asked you about these allegations, that I would not
accept your plea if you were just going to come back and ask to withdraw it
later, because I wanted to make sure that you are doing this freely of your
own free will, intelligently, with an understanding of all your rights which I
asked you about and that you said yes. You absolutely agreed every time
that you were not forced, that you were not threatened, that you did have the
opportunity to hear the State’s compelling opening statement, that there was
an abundance of evidence that points to your being held responsible, that
jurors could find you guilty beyond a reasonable doubt of these allegations,
and that I took painstaking efforts to give you as much time as necessary to
understand those possibilities and to do what you needed to do to
understand and have sink in the consequences of your plea versus having a
trial.
And [defense counsel] is an outstanding attorney. He was giving
you his best advice based on all of his many years of experience, based on
the evidence that was provided by the State of Ohio, and you clearly
understood the nature of charges and the effect of a plea and potential
consequences, you had a full understanding of your rights. You told me
that and I asked you that.
And it just makes me feel like you’re not being truthful with me
when I ask you specifically do you want to withdraw your plea as I’m
taking your plea and you say no, that that was the opportunity for you to say
no, I want my trial. You specifically told me the opposite. And so I can
only conclude that you didn’t like the look of that jury, you didn’t like the
sound of the opening statements, you knew a witness was coming in and
your opportunity to mitigate your consequences was walking up to the stand
and it would be forever closed at that point.
It was clear you delayed it to the very end. And now I believe
you’re just trying to delay the inevitable again. And so I don’t see any
reasonable reason to allow you to withdraw your plea. It’s just not fair to
the State of Ohio, it’s just not fair to these victims to drag them back down
here and begin this process all over again, and that you haven’t presented
any plausible defense, and that the State had strong evidence in its favor.
So I’m going to deny your motion to withdraw the plea at this time.
{¶16} The trial court then proceeded to sentencing, imposing a total of 18 years in
prison.
Withdrawal of Guilty Plea
{¶17} In his sole assignment of error, Walcot argues that the trial court erred in
denying his motion to withdraw his guilty plea prior to sentencing. He contends that
there would have been no prejudice to the state if the trial court would have allowed him
to withdraw his plea and that his plea of innocence warranted the granting of his motion.
{¶18} Generally, a motion to withdraw a guilty plea made before sentencing
should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d
715 (1992). A defendant does not, however, have an absolute right to withdraw his plea
before sentencing. Id. at paragraph one of the syllabus. The trial court is required to
“conduct a hearing to determine whether there is a reasonable and legitimate basis for the
withdrawal of the plea.” Id. Following the hearing, the trial court’s decision to grant or
deny a motion to withdraw a plea will be upheld absent an abuse of discretion. Id. at
527.
No abuse of discretion is demonstrated where: (1) the accused is
represented by highly competent counsel, (2) the accused was afforded a
full hearing, pursuant to Crim.R. 11, before entering the plea, (3) after the
motion to withdraw is filed the accused is given a complete and impartial
hearing on the motion, and (4) the record reveals that the trial court gave
full and fair consideration to the plea withdrawal request.
State v. Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.), citing
State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).
{¶19} In addition to these factors, Ohio courts have recognized a non-exhaustive
list of additional factors for the trial court to consider when deciding a presentence
motion to withdraw a plea, which include the following: (5) whether the state will be
prejudiced by the withdrawal, (6) whether the timing of the motion was reasonable, (7)
the reasons for the motion, (8) whether the defendant understood the nature of the charges
and potential sentences, and (9) whether the accused was perhaps not guilty or had a
complete defense to the charge. See, e.g., State v. Fish, 104 Ohio App.3d 236, 240, 661
N.E.2d 788 (1st Dist.1995); State v. Moore, 8th Dist. Cuyahoga No. 98132,
2012-Ohio-5734, ¶ 13.
{¶20} Notably, Walcot does not deny that he was represented by highly competent
counsel; indeed, his defense counsel had over 20 years of experience handling criminal
cases. Nor does he dispute that he was afforded a full hearing under Crim.R. 11 and a
complete and impartial hearing on his motion to withdraw. Instead, he contends that the
latter factors (5-9) listed above weigh heavily in favor of granting his presentence motion
to withdraw and that these circumstances belie the conclusion that the trial judge gave full
and fair consideration to his motion. He argues that the motion should have been
granted because (1) there would have been no prejudice to the state, (2) the motion was
filed in a reasonable time period, (3) he provided sufficient reasons to support the motion,
e.g., that he was innocent and that the plea was induced by pressure from his attorney and
mother, and (4) that he “referenced” possible defenses. We find Walcot’s arguments,
however, unpersuasive.
Prejudice to the State
{¶21} Here, Walcot maintains that there would have been no prejudice to the state
by the granting of his motion. We disagree. At the time that Walcot asked to take the
plea deal, a jury had already been selected and the state had completed its opening
statement. Based on Walcot’s own statements at his hearing on the motion, he was not
satisfied with the final composition of the jury at trial. To have allowed a subsequent
withdrawal of the plea would not only have delayed a resolution and closure of the case
for the victims, it would have required the victims to appear a second time for a trial.
Further, the granting of Walcot’s motion would have improperly awarded Walcot with a
second bite at picking a different jury. Under these facts, we find clear prejudice to the
state; therefore, this factor does not weigh in Walcot’s favor.
Timeliness of the Motion
{¶22} While Walcot’s motion was arguably timely, i.e., two weeks before
sentencing, this alone is insufficient to warrant granting the motion. Indeed, no one
factor is conclusive in a trial court’s determination on a presentence motion to withdraw a
guilty plea. Fish at 240. Given the overwhelming factors weighing against the
granting of Walcot’s motion, we find this factor insignificant.
Stated Reasons for the Motion To Withdraw
{¶23} While a claim of innocence is a factor to be weighed in considering a
motion to withdraw a plea, it alone does not mandate the granting of such a motion. See
State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571. Indeed, “[w]hen
faced with this claim, ‘the trial judge must determine whether the claim of innocence is
anything more than the defendant’s change of heart about the plea agreement.” Id. at ¶
7, quoting State v. Kramer, 7th Dist. Mahoning No. 01-C.A.-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. Drake, 73 Ohio App.3d 640,
645, 598 N.E. 2d 115 (8th Dist.1991).
{¶24} Walcot’s coercion claim has no support in the record. Walcot’s mother
expressly denied ever pressuring Walcot one way or another; she merely expressed her
support for whatever decision he chose to make. Likewise, Walcot’s attorney
expressing his opinion of the strength of the state’s case and giving a recommendation as
to the plea deal does not amount to coercion; rather, it is merely evidence of his defense
counsel doing his job. And here, where it is clear that no threats or false promises were
made to induce the plea and that Walcot understood the charges and the potential
sentences, we find no merit to Walcot’s coercion claim.
Defense to the Charges
{¶25} Walcot asserts that he referenced defenses at the hearing on the motion
relating to the time frame of the offenses, the motivation of the victims’ testimony, and
“potential witness testimony that there’s no evidence supporting the allegations.” The
record reveals that Walcot’s defense counsel fully explored these potential defenses prior
to the taking of any plea. The trial court found these alleged defenses not to be
plausible. We cannot say such a determination amounts to an abuse of discretion.
{¶26} Applying the factors relied on by Walcot, we find that they overwhelmingly
weighed in favor of the state and that the trial court did, in fact, give full and fair
consideration to Walcot’s motion. Aside from the lengthy hearing that it conducted, the
trial judge specifically pointed to the evidence in the record that weighed strongly in
denying Walcot’s motion. We find no abuse of discretion and overrule Walcot’s sole
assignment of error.
{¶27} 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.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR