State v. Askew

[Cite as State v. Askew, 2022-Ohio-1182.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 21AP-200
(C.P.C. No. 18CR-0806)
v. :
(REGULAR CALENDAR)
Antyone Askew, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on April 7, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Jeremy A. Roth, for appellant.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Defendant-appellant, Antyone Askew, Jr., appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
the court's denial of appellant's presentence motion to withdraw his guilty plea to one count
of burglary.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 16, 2018, appellant was indicted on one count of burglary, in
violation of R.C. 2911.12, a felony of the second degree, and one count of theft, in violation
of R.C. 2913.02, a felony of the fifth degree. Appellant entered a plea of not guilty to the
charges, and an attorney with the Franklin County Public Defender's Office was appointed
to represent him.
No. 21AP-200 2
{¶ 3} Following several continuances, a trial date was set for October 21, 2019. On
the scheduled date, appellant informed the court of his desire to obtain new counsel. The
trial court, noting "the age of these cases," indicated it would set the matter for trial "two
weeks from today. You have that time to go and hire new counsel." (Oct. 21, 2019 Tr. at 3.)
Appellant then inquired about obtaining new appointed counsel. The trial court declined
appellant's request, stating in part: "I know that she [current appointed counsel] has
worked very hard for you during the time that she's been on this case. We've met several
times * * * and tried to get it to trial. I know that she has fought for certain discovery items
for you during the pendency of the case. At this point, I don't think that there's good cause
to replace [appointed counsel] on your case." (Tr. at 4.)
{¶ 4} The trial court afforded counsel for appellant the opportunity to "address
anything on the record" at that time. (Tr. at 4.) In response, counsel stated she had met in
jail with appellant "at least five times," and that "we've sat there and gone through videos
at length for several hours * * * in order to adequately prepare his case." (Tr. at 5.) Counsel
further stated: "I think where we disagree is my evaluation of the case versus his." (Tr. at
5.) The trial court reiterated: "I don't think that there is cause at this time to replace
[appointed counsel]." (Tr. at 5.)
{¶ 5} The trial was continued several more times, and appellant was released on
bond in September 2020. A new trial date was set for November 16, 2020. On that date,
the parties indicated a plea agreement had been reached, whereby appellant agreed to plead
guilty to count one (burglary, a felony of the second degree).
{¶ 6} At the plea hearing, the state recited the following facts regarding the offense:
On December 8, 2017, the victim in this case, Ricky Truesdale,
who is a retired man, went to run a quick errand. While he was
gone, the defendant forcibly entered through a side window
and stole jewelry, watches, and an air compressor.
Mr. Truesdale had an alarm system with video cameras that
captured the defendant's picture both at his front door and
when he entered the home. A short time later, on December 27,
the air compressor that he stole was found to have been pawned
that day by the defendant at Lev's Pawn Shop on East Main
Street. The defendant used his State ID to pawn that air
compressor.
No. 21AP-200 3
The video was recovered by the detectives, and it clearly
showed the defendant was the perpetrator of this crime.
In January the detective showed stills from that video to the
defendant's grandma. She also identified her grandson as the
defendant who was breaking into the home.
The defendant was arrested in February of 2018. When
interviewed, he said that wasn't him and he didn't know what
they were talking about.
(Nov. 16, 2020 Tr. at 10-11.)
{¶ 7} After conducting a Crim.R. 11 plea colloquy, the trial court accepted
appellant's guilty plea. The prosecutor, noting "there is no joint recommendation," then
requested a presentence investigation. (Tr. at 13.) The court indicated "we can order a
presentence investigation report, and we won't move forward with sentencing at this time."
(Tr. at 13.) The court set a sentencing date for January 29, 2021. The prosecutor also
requested the trial court to revoke appellant's bond, but the court denied the state's request.
{¶ 8} On January 28, 2021, the state filed a sentencing memorandum in which it
argued appellant "should receive a sentence of seven to eight years." (Jan. 28, 2021
Sentencing Memo at 1.) In addressing the issue of recidivism factors, the state argued that
appellant "has a criminal conviction for assault in 2013, and a separate conviction in 2013
for robbery as a felony of the second degree." Id. at 2. The state further noted that, while
the current case was pending, appellant had been acquitted of attempted murder in an
unrelated case. Finally, the state argued that appellant, following his release on bond in the
underlying burglary case, was arrested on January 1, 2021, and now faced a federal
indictment for drug and weapons charges.
{¶ 9} A new sentencing date was scheduled for April 9, 2021. On March 25, 2021,
appellant filed a motion to withdraw his guilty plea. In the accompanying memorandum
in support, appellant argued that, while trial counsel "believed Mr. Askew would receive a
sentence commensurate with a third degree burglary," the state had "made a specific filing
requesting a near maximum sentence." (Mar. 25, 2021 Mot. to Withdraw Guilty Plea at 3.)
Appellant further argued that "because of federal sentencing guidelines and a pending
federal case, a conviction on this case could substantially increase the time of incarceration
he would receive in any possible plea or conviction on the case." Id. at 4. Finally, appellant
No. 21AP-200 4
argued he "has indicated that he is '[n]ot [g]uilty' " (i.e., asserting that, during a presentence
investigation interview, appellant "told the interviewer that he did not commit the offense
and that his conviction was based on hearsay"). Id.
{¶ 10} On March 26, 2021, the state filed a memorandum contra the motion to
withdraw guilty plea. In its memorandum in support, the state argued that the sole reason
appellant wanted to withdraw his plea is because, "while out on bond, awaiting sentencing
on a felony of the second degree, [he] was arrested and then charged in Federal Court for
committing various firearm and drug offenses." (Mar. 26, 2021 State's Memo Contra at 2.)
{¶ 11} On April 9, 2021 (the rescheduled sentencing date), the trial court conducted
a hearing on the motion to withdraw guilty plea. During the hearing, counsel for appellant
argued in support of the motion to withdraw, stating in part:
The first reasonable and legitimate basis is that Mr. Askew,
during his presentence investigation, asserted his innocence.
The wisdom of that assertion, notwithstanding, that is a factor
in his favor for being allowed to withdraw the guilty plea.
And though the State disagrees, because Mr. Askew now has
pending federal charges, a second conviction could have a
substantial impact on those charges. * * *
Also having this conviction would make him a career offender
under the statute which automatically places his criminal
history category at 6. * * *
Whether the State thinks that's sour grapes or not, that's a
substantial future impact on Mr. Askew and, I would argue,
provides that reasonable and legitimate basis to freely
withdraw his guilty plea prior to sentencing.
Additionally, the State cannot demonstrate prejudice. They are
in good contact with prosecuting witnesses, according to their
sentencing memorandum, and they believe they have evidence
necessary to proceed to trial and will not be prejudiced by
resetting this case for trial.
(Apr. 9, 2021 Tr. at 4-5.)
{¶ 12} In response, the prosecutor argued the "only reason that the defendant has
filed this motion is because of his own freewill and of his own volition, he went out and
allegedly committed a new offense while awaiting sentencing to this Court on a felony of
No. 21AP-200 5
the second degree. That's it." (Tr. at 6.) The prosecutor further argued appellant "just had
a change of heart because on January 1, he was arrested with a loaded and chambered
firearm in his vehicle along with drugs and guns; and that case has gone federal. That's the
only reason he wants this do-over." (Tr. at 8.)
{¶ 13} Following argument by the parties, the trial court announced from the bench
it would deny the motion to withdraw. After denying the motion, the trial court proceeded
to sentencing. On April 9, 2021, the trial court filed a judgment entry sentencing appellant
to six years imprisonment, with 965 days of jail-time credit.
II. ASSIGNMENT OF ERROR
{¶ 14} Appellant assigns the following as trial court error:
The trial court erred in denying Appellant's Motion to
Withdraw his Guilty Plea pursuant to Criminal Rule 32.1.
{¶ 15} Under his single assignment of error, appellant asserts the trial court erred in
denying his presentence motion to withdraw guilty plea. Appellant maintains the motion
set forth reasonable, articulable, and legitimate reasons as to why he sought to withdraw
his plea.
III. STANDARD OF REVIEW
{¶ 16} Crim.R. 32.1 governs the withdrawal of a guilty plea and states: "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." Under Ohio law, "a
presentence motion to withdraw a guilty plea should be freely and liberally granted." State
v. Xie, 62 Ohio St.3d 521, 527 (1992). However, "a defendant does not have an absolute
right to withdraw a plea prior to sentencing." Id. Rather, "the trial court must conduct a
hearing to determine whether there is a reasonable and legitimate basis for the withdrawal
of the plea." Id. A trial court's "decision to grant or deny a presentence motion to withdraw
a guilty plea is within the sound discretion of the trial court." Id. at paragraph two of the
syllabus. Thus, "[a]bsent an abuse of discretion on the part of the trial court in making the
ruling, its decision must be affirmed." Id. at 527.
{¶ 17} This court has previously noted that "[a]ppellate review of a decision on a
presentence motion to withdraw a guilty plea necessarily depends upon the particular facts
No. 21AP-200 6
and circumstances presented." State v. Zimmerman, 10th Dist. No. 09AP-866, 2010-Ohio-
4087, ¶ 13, citing State v. Walton, 2 Ohio App.3d 117, 119 (10th Dist.1981). See also State
v. Sydnor, 1oth Dist. No. 20AP-224, 2021-Ohio-2596, ¶ 18.
{¶ 18} In analyzing whether the trial court abused its discretion in denying a
presentence motion to withdraw a guilty plea, a reviewing court may consider the following
list of non-exhaustive factors:
(1) whether the prosecution would be prejudiced if the plea
were vacated; (2) whether the offender was represented by
highly competent counsel; (3) the extent of the Crim.R. 11
hearing; (4) whether there was full hearing on the motion to
withdraw the offender's guilty plea; (5) whether the trial court
gave full and fair consideration to the motion; (6) whether the
motion was made within a reasonable time; (7) whether the
motion set forth specific reasons for the withdrawal; (8)
whether the accused understood the nature of the charges and
possible penalties; and (9) whether the accused was perhaps
not guilty or had a complete defense to the crime.
Zimmerman at ¶ 13, citing State v. Jones, 10th Dist. No. 09AP-700, 2010-Ohio-903, ¶ 10,
citing State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995). Further, consideration of
the above factors "is a balancing test, and no one factor is conclusive." Id.IV. LEGAL ANALYSIS
{¶ 19} In the present case, appellant argues his presentence motion to withdraw
guilty plea was timely, that he provided a reasonable, legitimate basis for wishing to
withdraw his plea, and that he made assertions during the hearing that the prosecution
would not be prejudiced by withdrawal of the plea. Appellant further contends the issue of
his counsel's competence at the time of the plea is "at least at question." (Appellant's Brief
at 6.) Finally, appellant maintains the trial court failed to give full and fair consideration to
the motion, focusing "solely * * * on the subsequent charging of Appellant in a federal case,"
and "seemingly" failing to consider other reasons, "including his assertion of innocence."
(Appellant's Brief at 7.)
{¶ 20} In denying the motion to withdraw guilty plea, the trial court stated the
following during the motion hearing:
It's the Court's finding that the only reason the defendant filed
this motion was that because while he was out on bond
awaiting sentencing on this felony of the second degree, he was
arrested and then charged in federal court for committing
No. 21AP-200 7
various firearm and drug offenses and that, in effect, all that
has happened here is that the defendant has had a change of
heart because he's concerned about the effect of the sentencing
of this case on his new federal charges.
The Court further finds that even looking at the Fish factors
that the Court can and is going to deny the request. The Court
finds that with respect to those factors, the defendant was
represented by highly competent counsel at the time of the
plea. That's evidenced by the fact that the defendant was
acquitted after a jury trial of attempted murder in a separate
case.
The defendant was given a full Criminal Rule 11 hearing. We've
had a hearing here today on this matter. The Court is giving
full and fair consideration to the defendant's motion.
While the defendant's motion was made timely, it was made
only after he was charged with the new federal charges and that
the only reason the defendant is seeking this is because of the
effect that this sentencing will have on his federal charges, that
the defendant clearly understood the nature of the charges and
the possible penalties. Again, we went over those in detail
during the Criminal Rule 11 hearing. As far as what's been
provided to this Court, it does appear the defendant is on video
burglarizing the home at issue.
(Apr. 9, 2021 Tr. at 10-11.)
{¶ 21} As noted, appellant argues the issue of his counsel's competence at the time of
the plea was "at least" in question based on the fact he attempted to have new counsel
appointed "due to their disagreements about the cases and how to proceed." (Appellant's
Brief at 6.) In general, "[a]n attorney who is properly licensed in Ohio is presumed
competent." State v. Brown, 9th Dist. No. 23759, 2007-Ohio-7028, ¶ 17, citing State v.
Lott, 51 Ohio St.3d 160, 174 (1990).
{¶ 22} While appellant maintains he was dissatisfied with his appointed counsel, the
trial court addressed this concern at a pre-trial hearing on October 21, 2019, during which
counsel indicated she had met with appellant "at least five times," and that she and her
client had reviewed "videos at length for several hours * * * in order to adequately
prepare his case." (Oct. 21, 2019 Tr. at 5.) In response to an inquiry by the trial court,
counsel represented her view that "where we disagree is my evaluation of the case versus
No. 21AP-200 8
his." (Tr. at 5.) The trial court, in considering appellant's request, did not find cause to
replace counsel at that time, and the record does not suggest counsel was unprepared to go
to trial. Further, the fact appellant requested a new attorney is not dispositive of the issue
of whether he was represented by highly competent counsel. See State v. Motley, 1st Dist.
No. C-040430, 2005-Ohio-2450, ¶ 12 (affirming denial of presentence motion to withdraw
plea and noting that, although appellant "requested a new attorney, * * * there is nothing
in the record suggesting that his attorney was less than highly competent").
{¶ 23} As cited above, the trial court, during the subsequent hearing on the motion
to withdraw, concluded appellant "was represented by highly competent counsel at the time
of the plea." (Apr. 9, 2021 Tr. at 10.) In support, the trial court noted appellant "was
acquitted after a jury trial of attempted murder in a separate case." Id. On that issue, we
take notice of the fact appellant was acquitted of attempted murder (as well as counts of
aggravated burglary, felonious assault, and aggravated robbery) in Franklin County
Common Pleas case No. 18CR-1227 while represented by the same public defender attorney
who represented him in the instant plea proceeding. We also note that appellant, in
response to an inquiry by the trial court during the plea hearing, stated he was satisfied with
his attorney's representation. Upon review, the record in this case supports the trial court's
finding that appellant was represented by highly competent counsel at the time of the plea.
{¶ 24} The record also supports the trial court's finding that appellant was given "a
full Criminal Rule 11 hearing" before entering his plea. (Tr. at 10.) During the plea hearing,
appellant stated that he understood the charges against him, that he was satisfied with his
attorney's representation, and that he understood his guilty plea was an admission that
he committed the offense at issue. The Crim.R. 11 plea colloquy was extensive, during
which the trial court informed appellant that "[t]his felony of the second degree carries with
it a mandatory prison term," and that "[i]t could be for a period of up to eight years." (Nov.
16, 2020 Tr. at 7.) Appellant acknowledged his understanding of the maximum potential
penalty, and also acknowledged he was entering into the plea freely and voluntarily. The
guilty plea form signed by appellant indicated he faced a maximum prison term of eight
years and that a prison sentence was mandatory.
{¶ 25} The record indicates the trial court provided appellant a full hearing on the
motion to withdraw his guilty plea, and appellant does not specifically challenge the
No. 21AP-200 9
manner in which the court conducted the hearing. Moreover, and contrary to appellant's
contention, the record reflects the trial court fully considered the reasons given to withdraw
the guilty plea. During the hearing on the motion to withdraw guilty plea, counsel for
appellant argued the "first reasonable and legitimate basis is that [appellant], during his
presentence investigation, asserted his innocence." (Apr. 9, 2021 Tr. at 4.) As a further
basis for the motion, counsel argued that, because appellant "now has pending federal
charges, a second conviction could have a substantial impact on those charges." Id.{¶ 26} With respect to claims of innocence or a complete defense, the trial court,
after reviewing video capturing the events at issue, stated during the hearing on the motion
to withdraw that "it does appear the defendant is on video burglarizing the home at issue."
(Tr. at 11.) During the plea hearing, appellant raised no objection to the state's recitation of
the facts (including the statement that appellant's grandmother, after being shown still
photographs taken from the video, "identified her grandson as the defendant who was
breaking into the home"). (Nov. 16, 2020 Tr. at 11.) Further, we agree with the state's
contention that appellant's claim of innocence, which he raised in his motion to
withdraw and at the hearing on the motion, is contradicted by statements he made at a
subsequent restitution hearing in which he acknowledged: "I did break into that man's
house."1 (May 7, 2021 Tr. at 13.) Here, the record does not indicate the trial court failed to
fully consider whether appellant was "perhaps not guilty or had a complete defense to the
crime." Zimmerman at ¶ 13.
{¶ 27} While appellant contends the trial court placed undue focus on the federal
charges he incurred while out on bond, the record indicates a primary issue raised by
appellant's counsel during the hearing on the motion to withdraw involved counsel's
argument (as cited above) that his client "now has pending federal charges," and that "a
second conviction could have a substantial impact on those charges." (Apr. 9, 2021 Tr. at
4.) The trial court appropriately considered that reason (as well as the other reasons offered
by counsel) in addressing the motion to withdraw. In assessing the validity of that reason,
the trial court noted that appellant, while "out on bond awaiting sentencing on this felony
1On May 7, 2021, the trial court conducted a restitution hearing at which time appellant spoke on his own
behalf (despite advisement by his counsel against doing so) and acknowledged breaking into the house.
Appellant stated that he "came in through a side window." (May 7, 2021 Tr. at 13.) Appellant further stated:
"I grabbed the air compressor * * * [and] went straight to the pawn shop and pawned if for $40." Id. at 14.
No. 21AP-200 10
of the second degree, * * * was arrested and then charged in federal court for committing
various firearm and drug offenses." (Tr. at 10.) The court, citing the fact the motion to
withdraw "was made only after he was charged with the new federal charges," deemed the
real reason for the motion to be "a change of heart because he's concerned about the effect
of the sentencing of this case on his new federal charges." Id.
{¶ 28} Based on the facts and circumstances presented here, the trial court could
have reasonably concluded appellant lacked a reasonable and legitimate reason to
withdraw his plea but, rather, merely had a change of heart due to the new circumstances
he faced arising out of his own conduct while on bond awaiting sentencing. See State v.
Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161, ¶ 28 (where appellant, who had been
released on bond pending sentencing, was arrested for possessing chemicals used in the
manufacture of methamphetamine, trial court "could have drawn the reasonable inference"
his decision to seek withdrawal of the plea was based upon "a simple change of heart due
to the unfavorable position in which he eventually found himself after his release on the PR
bond"); State v. Keiner, 5th Dist. No. 15CA016, 2016-Ohio-3294, ¶ 30 (appellant, who did
not file motion to withdraw plea until after trial court issued warrant for arrest following
bond violation and failure to appear at sentencing hearing, had mere change of heart which
was "not a reasonable basis requiring * * * trial court to permit [him] to withdraw his guilty
plea"); State v. Feller, 1st Dist. No. C-110775, 2012-Ohio-6016, ¶ 30 (appellant's motion to
withdraw his plea "was based on nothing more than a change of heart" as he "failed to
cooperate with the state after being released on bond and he incurred multiple serious new
charges").
{¶ 29} Appellant's motion to withdraw guilty plea also cited concern that the state
had filed a sentencing memorandum requesting a prison term of seven or eight years.
However, "[a] defendant's change of heart or mistaken belief about the * * * expected
sentence does not constitute a legitimate basis that requires the trial court to permit the
defendant to withdraw the guilty plea." State v. Brooks, 10th Dist. No. 02AP-44, 2002-
Ohio-5794, ¶ 51, citing State v. Sabatino, 102 Ohio App.3d 483, 486 (8th Dist.1995). See
also State v. Harmon, 4th Dist. No. 20CA6, 2021-Ohio-2610, ¶ 36 ("a change of heart, after
becoming aware of an imminent, harsh sentence, does not entitle a defendant to withdraw
his guilty plea"); State v. Guy, 12th Dist. No. CA2020-03-004, 2020-Ohio-6908, ¶ 15
No. 21AP-200 11
(characterizing appellant's "disappointment at the sentence that could be imposed upon
him" as "premised on a change of heart," and holding that such disappointment "may not
serve as a basis for withdrawal of his guilty plea"); State v. Howard, 4th Dist. No.
16CA3762, 2017-Ohio-9392, ¶ 44 (balancing of factors "strongly suggest that appellant's
plea withdrawal motion was a last-ditch attempt to avoid the harsher prison sentence he
faced for violating the conditions of his bond").
{¶ 30} Upon review, we agree with the trial court's determination that appellant's
arguments and reasons in support of the motion demonstrated a mere change of heart
rather than a reasonable and legitimate basis for setting aside the plea. Accordingly, the
trial court did not abuse its discretion in denying appellant's motion to withdraw his guilty
plea. Appellant's sole assignment of error is not well-taken and is overruled.
V. CONCLUSION
{¶ 31} Based upon the foregoing, and having overruled appellant's sole assignment
of error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
LUPER SCHUSTER, P.J., and DORRIAN, J., concur.
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