State v. Hyche

[Cite as State v. Hyche, 2022-Ohio-1587.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110709
v. :
DERRICK L. HYCHE, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 12, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643564-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Morgan Austin, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Derrick Hyche, Jr., appeals from a judgment of
the trial court that sentenced him to a 24-month term of community control after he
pleaded guilty to the offenses of attempted felonious assault and attempted
abduction. On appeal, Hyche raises the following two assignments of error for our
review:
1. The Trial Court abused its discretion when it failed to grant the
Appellant’s Motion to Continue.
2. The Trial Court abused its discretion when it failed to grant the
Appellant’s pre-sentence Motion to Withdraw Plea.
After a thorough review of the record and applicable law, we conclude
the trial court did not abuse its discretion and affirm the judgment of the trial court.
Procedural Background
On September 6, 2019, Hyche was indicted for felonious assault
(Count 1), a second-degree felony, abduction (Count 2), a third-degree felony, and
aggravated menacing (Count 3), a first-degree misdemeanor. The indictment
stemmed from a physical altercation between Hyche and his girlfriend in his
apartment. She was taken by an ambulance to a hospital afterwards. An officer
observed injuries all over her body: marks and swelling on her throat; a swollen lip;
a blacken and swollen left eye; and bruise marks on her left side, both arms, and
wrist areas. Hyche told the police the two got into a physical alteration and her
bruises were a result of him pushing her off him and trying to protect himself.
On July 20, 2020, the case was scheduled for a plea hearing. At the
hearing, the state described the plea deal offered to Hyche: in exchange for a guilty
plea, the state would amend Count 1 to attempted felonious assault, a third-degree
felony, and Count 2 to attempted abduction, a fourth-degree felony, and the state
would dismiss Count 3. However, Hyche stated at the hearing he was not interested
in entering a guilty plea.
Almost a year later, on June 24, 2021, the day the matter was
scheduled for trial, Hyche accepted the plea agreement offered by the state and
pleaded guilty to attempted felonious assault and attempted abduction. Pertinent
to this appeal, the transcript of the plea hearing reflects the following exchange prior
to Hyche’s plea:
THE COURT [ADDRESSING DEFENSE COUNSEL]: And I note that
you have filed discovery requests, and the State has responded in
writing. This matter has been pending a while because of the
Coronavirus issue, * * * have you gotten all the information you sought
on behalf of your client?
[DEFENSE COUNSEL]: Yes, Your honor.
THE COURT: Have you had a chance to talk to Mr. Hyche about the
evidence the State would offer against him if this matter went to trial,
the defenses he might have, and the evidence that’s favorable to him?
[DEFENSE COUNSEL]: Yes, Your Honor.
[THE COURT]: Do you feel he’ll be making a knowing, intelligent,
and voluntary change of plea?
[DEFENSE COUNSEL]: Yes, I advised him of all his rights, went over
all the facts. Yes, Your Honor.
(Emphasis added.) (Tr. 9.)
After the exchange, the trial court addressed Hyche directly. The
court asked him if he had discussed the evidence and various aspects of the case with
his counsel. Hyche answered affirmatively. He also answered affirmatively when
asked if he was satisfied with the representation he received from his counsel. After
the trial court engaged him in a thorough Crim.R. 11 colloquy, Hyche pleaded guilty
to the amended charges of attempted felonious assault and attempted abduction.
The court then ordered a presentence investigation report (“PSI”) and scheduled the
sentencing hearing for July 26, 2021.
Soon after the plea hearing, however, Hyche retained new counsel.
On July 7, 2021, his new counsel filed a notice of appearance and also a discovery
request.1 Apparently, due to some clerical error, the prosecutor’s office was not
aware of the discovery request until July 26, 2021, the day the case was scheduled
for sentencing. Once made aware of the request, the prosecutor’s office promptly
provided the discovery materials to Hyche’s new counsel on that day, prior to the
sentencing hearing.
The docket reflects that on the day of the scheduled sentencing
hearing, Hyche’s new counsel filed a motion to withdraw the guilty plea and a
motion to continue the sentencing hearing.
Hyche’s motion to withdraw the guilty plea filed by his new counsel
alleged that “[b]ased on [counsel’s] conversations with the Defendant, there are
plausible defenses to this case, and the Defendant would like to potentially avail
[himself] to those defenses.” The motion alleged that counsel “would have liked to
1According to Hyche’s new counsel, she attempted to contact his prior counsel regarding
discovery but received no response from the prior counsel.
outline potential defenses in this motion [but] without tendered discovery she is
unable to outline those defenses.”
At the hearing, the trial court acknowledged Hyche’s pending motions
and requested Hyche’s counsel to address the motions. Hyche’s counsel reported
that she had just received the documents from the state in response to her discovery
request and did not have adequate time to review them. She asked the court to
continue the sentencing hearing should it deny the motion to withdraw the guilty
plea, so that she can review the discovery materials and be better prepared for the
sentencing hearing.
The assistant prosecutor objected to both motions, reporting that she
was unaware of the request for discovery until the morning of the sentencing
hearing. The assistant prosecutor also pointed out that the discovery request was
not filed by the new counsel until July 7, 2021, less than three weeks before the
scheduled sentencing hearing, and she was unaware of any communication from
Hyche’s new defense counsel indicating that she was waiting on the discovery in
order to proceed.
Acknowledging that a presentence motion to withdraw should be
freely granted, the trial court applied the multiple factors set forth by this court in
State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), for a
consideration of such a motion.
Regarding counsel’s competence, the trial court enumerated the
qualification of Hyche’s prior counsel, noting counsel has been admitted to the bar
since 1974 and is certified for aggravated murder cases as well as for serving as lead
counsel in capital cases.2 The trial court determined counsel to be “highly
competent” for purposes of the plea procedure.
Hyche’s counsel conceded the validity of the Crim.R. 11 colloquy at
the plea hearing but argued that Hyche was not represented by “highly competent”
counsel in his plea, citing the fact that Hyche pleaded guilty on the day of the
scheduled trial, which counsel argued indicated that his prior counsel simply
“managed to get a plea deal at the 11th hour.” While defense counsel acknowledged
Mr. Bruner’s reputation and competence, she argued Mr. Bruner was not “highly
competent” in this case.
In response, the court engaged in a discussion with Hyche’s counsel
regarding the propriety of the practice of accepting a guilty plea on the day of the
trial. Counsel also alleged that Hyche’s prior counsel had advised Hyche that there
could not be an acquittal in this case given the statement he made to the police but,
based on her review of the PSI, she believed Hyche had a potential claim of self-
defense. She argued Hyche should be permitted to withdraw the guilty plea based
on the potential self-defense claim.
2The dissent references a disciplinary action against Harvey B. Bruner as an indication of
his lack of competence. We note, however, at no point was any pending disciplinary
action involving Bruner brought to the trial court’s attention to enable it to assess its
relevance, if any, to Hyche’s plea. Bruner’s disciplinary matter is not part of the record on
appeal and was not raised on appeal as a basis of his lack of competence in his
representation of Hyche in his plea.
The trial court observed that the case had been pending since
September 2019, prior counsel had requested discovery, and the court’s review of
the PSI indicated that the victim and Hyche gave different accounts of what occurred
in the incident, yet only the victim went to the hospital for serious injuries, which
were shown in the photographs taken by the police.
Based on its review of the motion to withdraw and the record, the
court found Hyche merely appeared to have a change of heart and the motion to
withdraw the guilty plea was no more than a “fishing expedition.” The court
concluded that Hyche had not advanced a sufficient basis for his motion to
withdraw.
The court also denied the motion to continue the sentencing hearing,
explaining that the victim and her family had appeared at the plea hearing and were
now also present to make the victim impact statements, the PSI had been prepared,
and the court was ready to proceed to sentencing.
The matter then proceeded to sentencing. The state read the letter
from the victim and her mother, who were present at the hearing. The victim stated
she was still haunted by the day Hyche attacked her and would panic whenever she
saw a vehicle that resembled Hyche’s vehicle. She still had vivid memories of being
beaten, kicked, and strangled on the day of the incident, and being sent to the
hospital with a fractured nose and bruises all over her body. She suffered PTSD from
the assault. The victim’s mother stated in her letter that she had welcomed Hyche
into the family’s life but the family’s life was shattered after Hyche viciously attacked
her daughter. Hyche’s mother also spoke at the hearing, stating he was not the
monster as portrayed in those letters.
The trial court observed that Hyche was compliant while on court-
supervised release, never tested positive on his urine screens, and has adjusted well
to the pretrial supervision. For his offenses of attempted felonious assault and
attempted abduction, the court imposed a 24-month term of community-control
sanctions on each count and advised Hyche that a violation of the terms and
conditions of the community-control sanctions may result in a prison term of 30
months for his offenses.
Appeal
On appeal, Hyche argues the trial court abused its discretion in failing
to grant his motion to continue the sentencing hearing and motion to withdraw the
guilty plea. For ease of discussion, we first review his second assignment of error
regarding the motion to withdraw.
A. Motion to Withdraw the Guilty Plea
Crim.R. 32.1 governs withdrawals of guilty pleas. It 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.”
Regarding a presentence motion to withdraw a guilty plea, while
generally such a motion should be freely and liberally granted, the Supreme Court
of Ohio has instructed that “[t]he decision to grant or deny a presentence motion to
withdraw a guilty plea is within the sound discretion of the trial court.” State v. Xie,
62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992), paragraph two of the syllabus. “A
defendant does not have an absolute right to withdraw a guilty plea prior to
sentencing. A trial court must conduct a hearing in order to determine whether
there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. at
paragraph one of the syllabus.
This court has determined that 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, 68 Ohio App.2d 211, 428 N.E.2d 863, paragraph three of the syllabus.
Additional factors this court has considered include whether the motion was made
in a reasonable time; whether the motion states specific reasons for withdrawal;
whether the accused understood the nature of the charges and the possible
penalties; and whether the accused was perhaps not guilty or had a complete
defense. State v. King, 8th Dist. Cuyahoga No. 106709, 2018-Ohio-4780, ¶ 14, citing
State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
The gist of Hyche’s written motion to withdraw the guilty plea and
counsel’s argument at the July 26, 2021 hearing appears to be that he was not well
advised by his prior counsel and his new counsel believed he had a potential
plausible claim of self-defense but was unable to particularize the defense without
access to discovery. On appeal, Hyche argues the trial court abused its discretion in
denying his motion to withdraw because his prior counsel was not “highly
competent” in the plea proceeding, he “may have had plausible defenses in this
matter,” and he was not afforded a fair, full, and impartial hearing on the motion to
withdraw. We address these claims in turn.
Regarding counsel’s competence, the trial court specifically made a
finding that his prior counsel was “highly competent” for purposes of his
representation of Hyche for the plea. Hyche argues on appeal that his counsel was
not “highly competent” because his plea ensured that he could no longer be
employed in his profession of nursing.
Hyche fails to point to any part of the record substantiating this claim.
Our review of the transcript of the plea hearing reflects that at the outset of the plea
hearing, the trial court ensured that Hyche, who had a nursing degree, wished to
take advantage of the plea bargain, and the transcript of the plea hearing reveals the
following exchange:
THE COURT [addressing defense counsel]: And [Counsel], did you
go over with [Mr. Hyche] the fact that he may not be able to continue
working in the nursing field because of this conviction?
[COUNSEL]: He understands.
(Tr. 11.)
When addressing the motion to withdraw the guilty plea, the trial
court specifically noted that Hyche had been advised that he could not continue his
employment in nursing by virtue of his plea. Hyche’s claim on appeal regarding
counsel’s competence is not supported by the record.
Hyche next argues in a conclusory manner that he “may have
plausible defenses” in this matter but the trial court did not afford his new counsel
additional time to review the discovery and outline specific plausible defenses. We
recognize that this court has provided an additional factor for the trial court to
consider in a motion to withdraw: whether “‘the defendant had evidence of a
plausible defense.’” State v. Banks, 8th Dist. Cuyahoga No. 107346, 2019-Ohio-
1770, quoting State v. Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶ 19.
However, merely alleging a potential defense without pointing to “evidence of a
plausible defense” does not satisfy Banks. While his new counsel claimed an
inability to fully set forth the defense(s) on July 26, 2021, without discovery, there
is, notably, no demonstration on appeal regarding the particulars of the potential
defense(s). Xie’s requirement that there is a “reasonable and legitimate basis” for
the withdrawal of the plea is not met in this case.
Finally, Hyche argues he was not afforded a fair, full, and impartial
hearing on his motion to withdraw the guilty plea, claiming that the trial court
decided to deny the motion without counsel’s argument. Our review of the
transcript reflects that, while the trial court made an initial statement regarding the
lack of the merit of the motion based on its review of the record and the motion to
withdraw, it afforded his counsel ample opportunity to present arguments on the
motion, and counsel spoke at length on the circumstances underlying Hyche’s
request for a withdrawal of his guilty plea. The transcript also reflects the trial court
engaged in a thorough analysis of the factors set forth in Peterseim, 68 Ohio App.2d
211, 428 N.E.2d 863, but concluded that Hyche simply had a change of heart and he
failed to allege a sufficient ground for vacating the plea. Having reviewed the
transcript, we find Hyche’s claim that he was not afforded a complete and impartial
hearing on the motion to withdraw is not borne out by the record.
While a presentence motion to withdraw the guilty plea is to be
treated liberally, it is within the sound discretion of the trial court to determine the
circumstances justifying such a motion. Peterseim at 213-214. Our review of the
record does not indicate the trial court abused its discretion in denying Hyche’s
motion to withdraw the guilty plea. The second assignment of error is without merit.
B. Motion to Continue Sentencing Hearing
On the day of the scheduled sentencing hearing, Hyche’s counsel also
filed a motion to continue the sentencing hearing. His counsel stated in the motion
that she was retained after the plea was entered and could not address the mitigation
issues without discovery. On appeal, Hyche claims his new counsel was forced to go
forward on sentencing and the trial court abused its discretion in denying the motion
to continue.
“The grant[ing] or denial of a continuance is a matter which is
entrusted to the broad, sound discretion of the trial judge. An appellate court must
not reverse the denial of a continuance unless there has been an abuse of discretion.”
State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). The court considers
the following objective factors when ruling on a motion for a continuance:
[T]he length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants,
witnesses, opposing counsel and the court; whether the requested
delay is for legitimate reasons or whether it is dilatory, purposeful, or
contrived; whether the [requesting party] contributed to the
circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case.
Unger at 67-68.
Here, this matter was pending since 2019. While Hyche’s new
counsel was not retained until after he pleaded guilty and she only appeared in the
case on July 7, 2021, there was no allegation counsel was unaware that the matter
was scheduled for sentencing on July 22, 2021. Yet, the motion to continue — based
on a lack of discovery provided by the state and a need for additional time to review
it — was not filed until the day of the scheduled sentencing hearing, when the victim
and her family were present to make the victim impact statements and the trial court
was ready to proceed to sentencing based on its review of the PSI.
While the court in Unger enumerated several factors for a review of a
motion to continue, “‘[t]here are no mechanical tests for deciding when a denial of
a continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.’” Unger at 67, quoting Ungar v.
Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).
Here, counsel stated in the motion to continue that she was unable to
address mitigation factors without access to discovery. A review of the transcript
indicates Hyche’s counsel spoke at length on his behalf on various mitigation factors
as reflected in the PSI. The court imposed community-control sanctions rather than
prison terms for his third- and fourth-degree felonies. Hyche fails to substantiate
on appeal what counsel would have added if in possession of discovery or how
counsel’s representation regarding sentencing was otherwise impacted. Having
reviewed the record, we are unable to find an abuse of discretion by the trial court
in denying the motion to continue the sentencing hearing. The first assignment is
without merit.
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.
___________________________________
MICHELLE J. SHEEHAN, JUDGE
JAMES A. BROGAN, J.,* CONCURS (WITH SEPARATE CONCURRING OPINION
ATTACHED);
EILEEN A. GALLAGHER, P.J., DISSENTS (WITH SEPARATE DISSENTING
OPINION ATTACHED).
(*Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)
JAMES A. BROGAN, J., CONCURRING:
I concur in the opinion of Judge Sheehan. This criminal matter had
been pending for nearly two years. On the day of trial, Hyche accepted a plea bargain
and pled guilty to two reduced charges. As Judge Sheehan noted, the trial court
engaged in an extensive plea colloquy with Hyche and his counsel, Harvey Bruner.
Hyche acknowledged that he discussed the evidence against him with his counsel.
Bruner acknowledged that he had received all the information he requested from
the State. After the pleas were made and accepted by the trial court, the court set
sentencing for a month later.
Hyche hired new counsel who attempted to get the State’s discovery
material from Mr. Bruner and then the assistant prosecuting attorney. Although
counsel knew that time was of the essence, she waited until the day of sentencing to
inform the assistant prosecutor and the court that she had not received the discovery
material.
It is not clear when new counsel reviewed the presentence
investigation and saw the serious injuries of the victim depicted in police
photographs. Counsel had to know that the victim would likely appear in court and
give her victim statement on the day of sentencing. In fact, on that date, both the
victim and her mother were present in court to inform the court how both their lives
were affected by the defendant’s conduct. It would not have been easy for the court
to send them away to come back at some later occasion.
It is well established that denial of a motion to withdraw a guilty plea
will not be overturned absent an abuse of the trial court’s discretion. I see no abuse
of that discretion present in the record.
EILEEN A. GALLAGHER, P.J., DISSENTING:
I respectfully dissent. The appellant sought to withdraw his guilty
pleas after retaining new counsel and prior to the scheduled sentencing. In counsel’s
motion to withdraw the plea, it was stated that there were “plausible defenses” to
which the appellant could avail himself, but that a review of discovery was necessary
to identify them.
Through no fault of appellant, or his counsel, the state failed to
respond to a request for discovery until 19 days after said request was filed and only
on the day of sentencing. The assistant prosecuting attorney, at the sentencing
hearing, somewhat disingenuously, stated, “While it is true that [d]efense [c]ounsel
did file a notice of appearance and demand for discovery on July 7th, I was not made
aware of either of those filings until this morning. I don’t have any indication that
our office ever received them * * *.”
The majority references the trial court’s comments finding that prior
counsel, Harvey B. Bruner, was “highly competent.” I acknowledge Mr. Bruner’s
experience and longevity as an attorney. It is interesting to note, however, that on
May 11, 2021, two months prior to the sentencing hearing, the Supreme Court of
Ohio heard arguments in the matter of Ohio State Bar Assn. v. Bruner, Slip Opinion
No. 2021-Ohio-4048, which resulted in Bruner’s two-year suspension from the
practice of law. In that disciplinary action, attorney Bruner was cited with multiple
violations of the Rules of Professional Conduct including “failing to communicate
with clients regarding the scope and nature of the representation.”
In my opinion, the trial court abused its discretion in denying the
motion to withdraw the guilty pleas in this case.
A trial court obviously has the discretion to deny a pretrial motion to
withdraw pleas but those requests should be freely and liberally granted. In this
particular case, new counsel had been retained and she attempted to contact prior
counsel. Those attempts were unsuccessful. Counsel then filed for discovery from
the state, but did not receive it prior to the scheduled sentencing hearing. Counsel
suggested that, after consultation with her client, there were potential defenses to
the charges levied against him. However, without discovery, she was unable to state
with specificity what defenses could, or would, be raised. This is not a case wherein
the plea is infirm. It is a matter of fundamental justice.