State v. Rance

[Cite as State v. Rance, 2017-Ohio-1446.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104619
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM A. RANCE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589511-A
BEFORE: Laster Mays, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: April 20, 2017
-i-
ATTORNEY FOR APPELLANT
Jeffrey S. Richardson
1200 W. 3rd Street, Suite 190
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Carl Sullivan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, William A. Rance (“Rance”), appeals his guilty plea,
asks this court to reverse the trial court’s ruling denying his motion to withdraw guilty
plea, and remand this case for trial. Finding no merit to his argument, we affirm.
{¶2} Rance pleaded guilty to Counts 1 and 2, gross sexual imposition,
third-degree felonies in violation of R.C. 2907.05(A)(4); Count 3, an amended rape,
deleting the life sentence, a first-degree felony in violation of R.C. 2907.02(A)(2); and
Count 4, illegal use of minor in nudity oriented material or performance, a fifth-degree
felony in violation of R.C. 2907.323(A)(3). The trial court sentenced him to a total of
seven years imprisonment that included five years imprisonment for Counts 1 and 2,
seven years imprisonment for Count 3, and 12 months imprisonment for Count 4, to be
served concurrently.
I. Facts
{¶3} On August 19, 2014, H.L. and her parents reported to the Richmond Heights
Police Department that H.L.’s cell phone contained several sexually explicit messages
from Rance. H.L. also reported to the police that on three separate occasions, she and
Rance engaged in sexual activity. The first two occasions, Rance and H.L. engaged in
groping, but on the third occasion Rance and H.L. engaged in vaginal intercourse. H.L.
admitted that she told Rance she was 16 years old, when in fact she was 11 years old
when they first met, and then she turned 12 by the time they engaged in vaginal
intercourse.
{¶4} Rance was arrested. Through the investigation of H.L.’s allegations, the
police found several naked pictures of the victim on Rance’s phone and the text messages
that corresponded to the dates of the sexual activity. Rance told the police that H.L. told
him she was 18 years old. He then changed his story and said that H.L. told him she was
17 years old.
{¶5} Rance was indicted on four counts and had 31 pretrials. Rance hired and
fired four attorneys and had a total of five attorneys represent him throughout the
proceedings. On March 1, 2016, Rance pleaded guilty to all four counts. The trial
transcript states,
COURT: So Count 3, the rape charge, is a mandatory prison
sentence, so there won’t be a possibility of community
control sanctions. Do you understand that?
RANCE: Yes.
COURT: Does that change your mind about entering a plea for
Count 3? Do you understand that sir?
RANCE: I understand that.
COURT: Does that change your position as far as accepting
responsibility with the plea today?
RANCE: The rape would automatically take me straight to jail?
COURT: No I’ll order a presentence investigative report, we’ll
come back for sentencing. I believe [your counsel] is
going to ask for some psychological examination as well
too, so I have all the information that would be pertinent to
make the right decision as far as a prison sentence, so that
will be about 30 days.
RANCE: I understand.
COURT: Do you have any questions about that?
RANCE: I don’t want to go to prison, honestly.
COURT: I don’t think anybody wants to go to prison. That would
be the consequence if you accepted this plea, so the
minimum on the Count 3 is 3 and the maximum would be
11. State of Ohio is indicating that they are requesting
that any term of incarceration be concurrent. Is that
correct?
STATE: That is correct, [y]our Honor. The initial count that we
amended was life in prison, we still amended it down to a
prison term.
COURT: So they’re reducing Count 3 from a life, mandatory life
term to that F1.
RANCE: 3 to 11.
COURT: And I will follow that recommendation of running the
prison term concurrent to all these charges.
RANCE: Prison couldn’t be changed to probation?
COUNSEL: Carl and I have talked, [y]our Honor, and actually we had
discussed the possibility of probation, but I guess it’s —
STATE: Some of the counts are probationable, but particular[ly]
rape —
COUNSEL: When we discussed that, we discussed that too.
STATE: I understand that. That’s the way the law is written, I can’t —
COUNSEL: I didn’t think it was. I didn’t really explain it to my
client, but the court is explaining it now.
COURT: Do you want more time to explain it to him?
RANCE: Yes.
COURT: So it’s amended down to the defendant purposely compels
another to submit by force or threat of force. Do you
want to talk to him and come back?
COUNSEL: Give me a minute, [y]our Honor, please.
COURT: [Counsel], have you had an opportunity to talk to your
client?
COUNSEL: I have, [y]our Honor.
COURT: And what would you like to do?
COUNSEL: It’s my understanding he wants to go forward with the
plea.
COURT: Mr. Rance, do you understand all the consequences now
of each of these counts?
RANCE: Yes.
COURT: Do you have any questions at all?
RANCE: No I don’t have any questions.
COURT: Now that you know that Count 3 is a mandatory prison
term, are you willing to enter your plea to that count; is
that correct?
RANCE: Yes.
COURT: How do you plead sir, in Count 3, now that you know the
consequences is mandatory 3 to 11?
RANCE: Guilty.
(Tr. 16-20.)
{¶6} Rance pleaded guilty to all counts, and the trial court complied with Crim.R.
11. On April 29, 2016, Rance filed a motion to withdraw his guilty plea stating that his
plea was entered into unintelligently and involuntary. The trial court denied Rance’s
motion. On May 16, 2016, at sentencing, Rance addressed the court and stated, “I take
full responsibility in the plea that I pled to on March 1st. I just have hope in getting
probation, but I do understand the plea to my guilt, and I follow it through with this
proceeding.” (Tr. 59.) Rance was sentenced to a total of seven years imprisonment,
and filed this timely appeal asserting two assignments of error for our review.
I. The trial court abused its discretion when it denied appellant’s
motion to withdraw guilty plea, thereby depriving appellant of his right to
trial by jury, as the evidence demonstrates appellant’s plea was entered into
unintelligently and involuntarily; and
II. Appellant was deprived of effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution when his
attorney failed to consider mitigation or exculpatory evidence when
advising appellant to plead guilty.
II. Motion to Withdraw Guilty Plea
A. Standard of Review
{¶7} We review the trial court’s denial of a motion to withdraw a guilty plea for
an abuse of discretion. State v. Xie, 62 Ohio St. 3d 521, 584 N.E.2d 715 (1992).
“Absent an abuse of discretion on the part of the trial court in making the ruling, its
decision must be affirmed. For us to find an abuse of discretion in this case, we must
find more than an error of judgment. We must find that the trial court’s ruling was
unreasonable, arbitrary or unconscionable.” Id.
B. Law and Analysis
{¶8} In Rance’s first assignment of error, he argues that the trial court abused its
discretion by denying his motion to withdraw guilty plea.
Generally, motions to withdraw guilty pleas before sentencing are to be
freely and liberally allowed. State v. Ketterer, 126 Ohio St. 3d 448,
2010-Ohio-3831, 935 N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St. 3d 521,
584 N.E.2d 715 (1992); State v. Peterseim, 68 Ohio App. 2d 211, 214, 428
N.E.2d 863 (8th Dist.1980), citing Barker v. United States, 579 F.2d 1219,
1223 (10th Cir.1978). However, a defendant does not have an absolute
right to withdraw a guilty plea prior to sentencing. Xie at paragraph one of
the syllabus. 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
and will not be reversed absent an abuse of discretion. Id.
State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 16.
{¶9} In Peterseim, 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.
It stated,
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.
Peterseim at paragraph three of the syllabus.
{¶10} First, Rance was represented by highly competent counsel. There is
nothing in the record that supports or demonstrates that Rance’s attorney was
incompetent. Rance argues that because his counsel did not inform him that Count 3 of
rape was not an offense for which he could be sentenced to probation, his counsel was
incompetent. However, according to the record, his counsel did discuss possible
probation with the state, but because of the statute, probation was not an option. The
trial court explained this to Rance, and granted a recess to give his counsel the
opportunity to explain this to Rance as well. Rance stated on the record that he
understood the consequences and still pleaded guilty.
{¶11} Second, Rance was afforded a full hearing pursuant to Crim.R. 11 before he
entered the plea. The record demonstrates that the trial court first addressed Rance
personally and determined that Rance was making the plea voluntarily, with an
understanding of the nature of the charges and of the maximum penalty involved. (Tr.
10-14.) The trial court also informed Rance of and determined that he understood the
effect of the plea of guilty. (Tr. 14-22.) The trial court informed Rance and
determined that he understood that by pleading guilty, Rance was waiving the rights to a
jury trial, to confront witnesses against him, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt
beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself. (Tr. 7-9.)
{¶12} Third, on April 29, 2016, Rance was given a complete and impartial hearing
on the motion. Fourth, the record reveals that the court gave full and fair consideration
to the plea withdrawal request. However, Rance claims that he was under pressure and
could not recall what the judge was saying to him during his plea. Rance also claims
that his counsel was tapping him on the shoulder telling him to say “yes” or “no” at the
appropriate time in response to the judge’s questions. The trial court, stated,
COURT: Let’s do this. And this is the other part of my analysis, just
so it is clear, is that we are talking about the defendant who
stood in front of me, acknowledged my questions to him,
answered affirmatively, and I don’t recall that [his counsel]
was talking for him. And I asked him if you are in fact
guilty and he told me yes.
(Tr. 49.)
COURT: And the Court has to weigh several things with respect to this
motion. And I have given careful consideration to what I
have heard here today. And I haven’t heard is that Mr.
Rance did not do it, that he wasn’t — he didn’t understand
what he was doing, that it wasn’t an intelligent decision to
accept the plea, and that it wasn’t in any way involuntary,
although the word pressure has been used. And obviously a
rape charge with an alleged victim under 13 naturally has
some pressure with respect to the consequences of life
without parole. And so I understand that, and that’s exactly
what I saw at the plea. Mr. Rance realizing that it was now
or never. And he accepted the advice of his attorney, which
the Court has not reason to think is unsound advice. And
that I don’t find that there has been any coercion or that there
is a strong likelihood of his actual innocence. So at this
point, based on all these factors, based on the case law, I am
going to deny the motion to withdraw the plea.
(Tr. 41.)
{¶13} Therefore, based on the record, it has been demonstrated that the trial court
did not abuse its discretion in denying Rance’s motion to withdraw guilty plea. This
assignment of error is overruled.
III. Ineffective Assistance of Counsel
A. Standard of Review
{¶14} In evaluating a claim of ineffective assistance of counsel,
“[A] court must give great deference to counsel’s performance. A
reviewing court will strongly presume that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.”
State v. Jones, 8th Dist. Cuyahoga No. 102260, 2016-Ohio-688, ¶ 16, quoting State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
B. Law and Analysis
{¶15} In Rance’s second assignment of error, he contends that he was deprived of
effective assistance of counsel because his attorney failed to consider mitigating or
exculpatory evidence when advising Rance to plead guilty.
To establish a claim for ineffective assistance of counsel, a defendant must
show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense. State v. Smith, 89 Ohio St. 3d 323,
327, 2000-Ohio-166, 731 N.E.2d 645 (2000), citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Defense counsel’s performance must fall below an objective standard of
reasonableness to be deficient in terms of ineffective assistance of counsel.
See State v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989).
Moreover, the defendant must show that there exists a reasonable
probability that, were it not for counsel’s errors, the results of the
proceeding would have been different. State v. White, 82 Ohio St. 3d 16,
23, 1998-Ohio-363, 693 N.E.2d 772 (1998).
Jones at ¶ 14.
{¶16} Rance does not detail what mitigation or exculpatory evidence was not
considered. Instead, he argues that he was not able to enter into his plea knowingly and
voluntarily. He also argues that his counsel pressured and coerced him into pleading
guilty. However, on the record, during the plea hearing, he told the court that he was not
coerced or forced. (Tr. 14.) He also stated that he “was satisfied with the
representation” he received from his attorney. (Tr. 8.) This court finds that Rance’s
plea was made knowingly and voluntarily. We also find that Rance’s attorney did not
provide ineffective assistance. Therefore, Rance’s second assignment of error is
overruled.
{¶17} Judgment is affirmed.
It is ordered that the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR