State v. Purnell

[Cite as State v. Purnell, 2018-Ohio-1036.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-298
(C.P.C. No. 16CR-3969)
v. :
(REGULAR CALENDAR)
Michael R. Purnell, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 20, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Yeura R. Venters, Public Defender, and
George M. Schumann, for appellant. Argued: George M.
Schumann.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Michael R. Purnell, appeals from a judgment entry of the
Franklin County Court of Common Pleas finding him guilty, pursuant to guilty plea, of
one count of robbery. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed July 22, 2016, defendant-appellee, State of Ohio,
charged Purnell with one count of robbery in violation of R.C. 2911.02, a second-degree
felony, with an accompanying repeat violent offender ("RVO") specification pursuant to
R.C. 2941.149(A); and one count of robbery in violation of R.C. 2911.02, a third-degree
felony. Purnell initially entered a plea of not guilty.
No. 17AP-298 2
{¶ 3} On November 28, 2016, the scheduled trial start date, the trial court asked
the parties to explain the current state of any plea negotiations. The state noted that it
had previously offered Purnell a plea agreement to enter a guilty plea to the second-
degree robbery count with no RVO specification along with a joint sentencing
recommendation of four years but that Purnell had turned down that offer. The state
indicated that any plea agreement would include the second-degree robbery count. When
asked by the trial court, Purnell stated he understood the plea offer from the state and had
discussed it with his counsel, and he also stated he understood the state was under no
obligation to make the same offer later should he change his mind about going to trial.
Specifically, Purnell stated "[t]here is no change of heart, Your Honor. We just going to
take it to trial." (Nov. 28, 2016 Tr. at 5.)
{¶ 4} The trial court asked Purnell whether he understood that if he went to trial
he could be found guilty of the offenses, and Purnell stated he understood. The trial court
then explained the maximum possible penalties for the offenses, including the additional
penalty associated with the RVO specification, asking Purnell whether he had any
questions about the possible sentences. At that point, counsel for Purnell stated
"Mr. Purnell has had a chance to think about this a little bit longer and is inclined to take
the deal that has been placed in front of the Court with the conversations that we have had
in the back about sentencing." (Nov. 28, 2016 Tr. at 6.) The trial court asked Purnell
directly whether he wanted to take the plea agreement and enter a guilty plea, and Purnell
responded "[y]es, sir." (Nov. 28, 2016 Tr. at 6.) The trial court then recessed for Purnell's
counsel to "go over everything with him." (Nov. 28, 2016 Tr. at 6.)
{¶ 5} Following the recess, the trial court engaged in an extensive Crim.R. 11 plea
colloquy with Purnell, explaining the offer from the state, informing Purnell of the
maximum possible sentences he could face for each offense if he went to trial, and
informing Purnell of the rights he was giving up by agreeing to plead guilty. The state
recited the facts of the case, stating Purnell, along with two codefendants, attempted to
steal merchandise from the Walmart located on 3900 Morse Road. A loss prevention
officer attempted to stop Purnell from leaving the store with the stolen items at which
time a struggle ensued, Purnell pinned the loss prevention officer to the ground and
struck him in the face multiple times. When the trial court asked Purnell's counsel
No. 17AP-298 3
whether he agreed with the facts, Purnell's counsel stated "there are certain facts that we
do disagree with, however, we do believe that there is enough for this plea; so we would
stipulate as far as our plea would go." (Nov. 28, 2016 Tr. at 17.) Following the recitation
of facts, the trial court asked Purnell whether he wanted the court to accept his plea of
guilty and whether he was voluntarily changing his plea to guilty, both of which Purnell
answered affirmatively. The trial court found Purnell's plea to be knowing, intelligent,
and voluntary and accepted Purnell's guilty plea.
{¶ 6} At the conclusion of the plea hearing, the trial court scheduled a sentencing
hearing for January 6, 2017. Additionally, pursuant to some off-the-record discussions
regarding the health of Purnell's father, the trial court modified Purnell's $10,000 bond to
reporting recognizance with house arrest and drug screens to allow Purnell to spend time
with his ailing father before the sentencing hearing.
{¶ 7} On December 12, 2016, Purnell filed a motion to modify the bond. At a
December 19, 2016 hearing on the motion, defense counsel stated Purnell's house arrest
"fell through," causing the bond to revert back to a $75,000 surety and $10,000 reporting
recognizance. (Dec. 19, 2016 Tr. at 2.) Thus, Purnell sought to change the bond back to
reporting recognizance without the house arrest requirement. Additionally, Purnell orally
moved to withdraw his guilty plea, arguing the charge was "not factually correct" and that
there were "other factors here that would be a defense on the robbery." (Dec. 19, 2016 Tr.
at 3.)
{¶ 8} The state objected to both the requested bond relief and the motion to
withdraw the guilty plea. The state argued there had been no change in circumstances to
justify allowing Purnell to withdraw his plea. Additionally, the state argued it would be
prejudiced if Purnell were allowed to withdraw his plea because one of Purnell's
codefendants who had agreed to testify against Purnell had already been sentenced, and
thus the state "doesn't have any leverage over that individual any more." (Dec. 19, 2016
Tr. at 4.)
{¶ 9} At the conclusion of the hearing, the trial court denied Purnell's motion to
modify his bond, instead maintaining the $75,000 surety and $10,000 reporting
recognizance. With respect to the motion to withdraw the plea, the trial court asked
defense counsel to file a written motion and to allow the state to file a written response.
No. 17AP-298 4
The trial court scheduled a hearing on the motion to withdraw the guilty plea for
January 18, 2017.
{¶ 10} Thereafter, on January 3, 2017, Purnell filed a written motion to withdraw
his guilty plea. Purnell stated he entered the plea "against his better judgment and in
spite of the defenses he has against the charges." (Motion to Withdraw Plea.) The state
responded with a January 18, 2017 motion contra, arguing that a change of heart does not
constitute a legitimate basis to withdraw a plea.
{¶ 11} At the January 18, 2017 hearing on Purnell's motion to withdraw his guilty
plea, defense counsel stated Purnell had always intended to take the case to trial and only
decided to enter a guilty plea when he heard the trial court explain the maximum possible
sentences, including the potential for the additional time from the RVO specification.
Defense counsel further argued the state would not suffer any prejudice, arguing all of the
witnesses on the state's original witness list were still available to testify. The state argued
that Purnell's plea had been knowing, intelligent and voluntary, and that the only real
reason he wanted to change his plea is because Purnell's hope for house arrest pending
sentencing fell through. The state reiterated it would suffer prejudice from allowing
Purnell to withdraw his plea because it had lost its leverage against one of the
codefendants who had already accepted a plea and been sentenced. In response, defense
counsel argued Purnell did have a legitimate possible defense, namely that the state
cannot prove all the elements of the offense, partly because the state admitted it did not
have surveillance footage of Purnell punching the victim.
{¶ 12} The trial court allowed Purnell to address the court directly, and he stated
his "sole purpose" for agreeing to take the plea agreement was his desire to spend time
with his ill father. When he realized he would not be released on house arrest, Purnell
said he wanted to withdraw his plea because he was innocent. (Jan. 18, 2017 Tr. at 18.)
{¶ 13} Following the hearing, the trial court denied Purnell's motion to withdraw
his guilty plea in a March 9, 2017 written entry. That same day, the trial court conducted
a sentencing hearing and sentenced Purnell to the jointly recommended sentence of four
years in prison. The trial court journalized Purnell's conviction and sentence in a
March 30, 2017 judgment entry. Purnell timely appeals.
No. 17AP-298 5
II. Assignment of Error
{¶ 14} Purnell assigns the following error for our review:
The trial court abused its discretion when it denied the
defendant's pre-sentence motion to withdraw his guilty plea.
III. Analysis
{¶ 15} In his sole assignment of error, Purnell argues the trial court abused its
discretion when it denied his pre-sentence motion to withdraw his guilty plea.
{¶ 16} A criminal defendant may file a pre-sentence motion to withdraw his guilty
plea pursuant to Crim.R. 32.1. This court has repeatedly noted that such motions should
be " 'freely and liberally granted.' " State v. Zimmerman, 10th Dist. No. 09AP-866, 2010-
Ohio-4087, ¶ 11, quoting State v. Xie, 62 Ohio St.3d 521, 527 (1992); State v. Davis, 10th
Dist. No. 07AP-356, 2008-Ohio-107, ¶ 15. Even before the trial court imposes a sentence,
however, there is no absolute right to withdraw a plea. Zimmerman at ¶ 11. A defendant
who seeks to withdraw a guilty plea prior to sentencing must establish a reasonable and
legitimate basis for the withdrawal of the plea. Id. The trial court must then hold a
hearing to allow the defendant to make that showing. State v. West, 10th Dist. No. 11AP-
548, 2012-Ohio-2078, ¶ 15. The decision to grant or deny a pre-sentence motion to
withdraw rests in the sound discretion of the trial court, and we will not disturb that
decision on appeal absent an abuse of discretion. Id.; State v. Porter, 10th Dist. No. 11AP-
514, 2012-Ohio-940, ¶ 20. An abuse of discretion connotes a decision that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶ 17} A trial court is not required to grant a pre-sentence motion to withdraw a
guilty plea. To determine whether a trial court abused its discretion in denying a pre-
sentence motion to withdraw a guilty plea, we look to a number of non-exhaustive factors,
including: (1) any potential prejudice to the prosecution if the trial court vacated the plea;
(2) whether highly competent counsel represented the defendant; (3) the extent of the
Crim.R. 11 hearing before the defendant entered his plea; (4) whether the defendant
received a full hearing on his motion to withdraw his plea; (5) whether the trial court fully
and fairly considered the motion to withdraw the plea; (6) whether the defendant made
the motion within a reasonable time; (7) whether the motion set forth specific reasons for
No. 17AP-298 6
the withdrawal; (8) whether the defendant understood the nature of the charges and
possible penalties; and (9) whether the defendant may not have been guilty or had a
complete defense to the crime. State v. Harris, 10th Dist. No. 09AP-1111, 2010-Ohio-
4127, ¶ 25, 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). "Consideration of the factors is a
balancing test, and no one factor is conclusive." Zimmerman at ¶ 13, citing Fish at 240.
{¶ 18} Purnell presented the trial court with three main reasons for wanting to
withdraw his guilty plea: (1) he had a change of heart and had entered the plea against his
better judgment; (2) he did not get released on house arrest before sentencing as he
anticipated; and (3) he did not agree with the facts as charged and believed he had a
defense to the charges. The trial court conducted a full hearing on Purnell's motion to
withdraw his guilty plea. At the conclusion of the hearing, the trial court denied Purnell's
motion, concluding Purnell did not present a reasonable and legitimate basis to withdraw
his plea. We must use the balancing test outlined above to determine whether the trial
court abused its discretion in denying Purnell's motion to withdraw his plea in light of his
stated reasons.
1. Potential Prejudice to the Prosecution
{¶ 19} First, the state argued it would suffer prejudice if Purnell were allowed to
withdraw his plea because of the potential unavailability of one of its witnesses. By the
time Purnell filed his motion to withdraw, the trial court had already sentenced one of
Purnell's codefendants who had agreed, as part of his plea agreement, to testify against
Purnell at trial. The state asserted that once that codefendant's sentence had been
entered, the state lacked any leverage to compel that codefendant to testify on the state's
behalf. Purnell responded to this argument that the state still had another codefendant
yet to be sentenced and available to testify and that the state did not demonstrate it had
attempted to contact the first codefendant about his continued availability to testify.
Although the state did not present definitive information about the first codefendant's
unavailability or unwillingness to testify, we nonetheless conclude the state has set forth
some evidence of prejudice "beyond the ordinary impact of any defendant's subsequent
withdrawal of a guilty plea." Harris at ¶ 26. Thus, the first factor weighs against Purnell's
motion.
No. 17AP-298 7
2. Highly Competent Counsel
{¶ 20} The second factor looks to whether highly competent counsel represented
Purnell. Purnell was represented by highly competent counsel throughout the
proceedings, especially when he agreed to enter his guilty plea. Purnell repeatedly
expressed satisfaction with his counsel on the record. Thus, the second factor weighs
against Purnell's motion.
3. Crim.R. 11 Hearing
{¶ 21} The third factor examines the extent of the Crim.R. 11 hearing before
Purnell entered his plea. The record reflects the trial court conducted a comprehensive
Crim.R. 11 hearing on November 28, 2016. Purnell does not contest the thoroughness or
adequacy of his plea hearing. Because the trial court fully and properly conducted the
Crim.R. 11 hearing, the third factor also weighs against Purnell's motion.
4. Receipt of a Full Hearing on the Motion to Withdraw
{¶ 22} The fourth factor in the balancing test asks whether Purnell received a full
hearing on his motion to withdraw his guilty plea. The record indicates that Purnell orally
moved to withdraw his guilty plea at the December 19, 2016 hearing and that the trial
court ordered defense counsel to file a written motion for the express purpose of
considering the motion at its own hearing. The trial court subsequently conducted a
hearing on Purnell's motion to withdraw on January 18, 2017, giving both parties ample
opportunity to argue the motion. Thus, because the trial court gave Purnell a full
opportunity to be heard on his motion, the fourth factor weighs against Purnell's motion.
5. Full and Fair Consideration of the Motion
{¶ 23} The fifth factor looks to whether the trial court fully and fairly considered
Purnell's motion to withdraw his guilty plea. After providing Purnell with a full hearing,
the trial court issued a written decision explaining its reasons for denying Purnell's
motion. The trial court noted Purnell's primary reasons for wanting to withdraw his plea
were that he did not get released on house arrest as anticipated and that he now argued he
had possible defenses to the charges. After duly considering Purnell's motion and
conducting the appropriate balancing test, the trial court concluded Purnell did not
present a reasonable and legitimate basis for the withdrawal of his plea. Thus, the fifth
factor weighs against Purnell's motion.
No. 17AP-298 8
6. Reasonable Time
{¶ 24} The sixth factor asks us to consider whether Purnell made his motion within
a reasonable time. Purnell orally moved to withdraw his plea on December 19, 2016, less
than one month after he had entered the plea on November 28, 2016. We find this to be a
reasonable time. Thus, the sixth factor weighs in favor of Purnell's motion.
7. Specific Reasons for Withdrawal
{¶ 25} The seventh factor asks whether Purnell set forth in his motion specific
reasons for the withdrawal. In his written motion to withdraw, Purnell gave a very
succinct reason for wanting to withdraw his plea: he entered the plea against his better
judgment and in spite of having defenses to the charges. Purnell also made clear at the
hearing that a major motivation for wanting to withdraw his plea was that he was not
released on house arrest prior to sentencing as anticipated. We conclude Purnell did
provide specific reasons for seeking withdrawal of his plea, and, even if his specific
reasons ultimately lack merit, the seventh factor nonetheless weighs in favor of Purnell's
motion.
8. Whether Purnell Understood the Charges and Possible Penalties
{¶ 26} The eighth factor asks whether Purnell understood the nature of the charges
and the possible penalties. At the Crim.R. 11 hearing, the trial court explained all the
charges and possible penalties, and Purnell expressly stated he understood. The trial
court also explained the jointly recommended sentence accompanying the plea
agreement, and Purnell stated he understood. Having reviewed the record, we find that
Purnell understood the charges and possible penalties against him, and we conclude the
eighth factor weighs against Purnell's motion.
9. Possible Defenses to the Charges
{¶ 27} Under the ninth and final factor, we look to whether Purnell had possible
defenses to the charges against him. Purnell stated he did not agree with the facts as
charged, and his counsel stated its belief that the state would be unable to prove the
elements of the offenses against Purnell. Defense counsel would not elaborate on its
specific reasons, instead arguing the burden was not on defense counsel to point out the
holes in the state's case. This court has previously noted that "the balancing test does not
require the defendant seeking to withdraw his plea be able to uncontrovertibly prove his
No. 17AP-298 9
defense at the motion hearing. Instead, the balancing test asks only whether the
defendant had possible defenses." State v. Jones, 10th Dist. No. 15AP-530, 2016-Ohio-
951, ¶ 29. Here, however, Purnell did not assert an actual defense, instead maintaining
his belief that the state could not prove he was guilty. Thus, we conclude the ninth factor
weighs against Purnell's motion.
{¶ 28} In summation, the majority of the nine factors weigh against Purnell's
motion. Moreover, a trial court appropriately assesses a defendant's credibility in
considering the defendant's asserted reasons for wanting to withdraw his plea. State v.
Ganguly, 10th Dist. No. 14AP-383, 2015-Ohio-845, ¶ 23. Here, the trial court determined
Purnell's primary reason for wanting to withdraw his plea was that he was not released on
house arrest prior to sentencing as he anticipated. We are mindful that the trial court is in
the best position to consider the credibility of Purnell's arguments, and the trial court
concluded Purnell's apparent "change of heart" did not present a reasonable and
legitimate basis for the withdrawal of his plea. State v. Burris, 10th Dist. No. 13AP-238,
2013-Ohio-5108, ¶ 18. Having reviewed the record and weighed the nine factors in the
balancing test, we conclude the trial court did not abuse its discretion in denying Purnell's
motion to withdraw his guilty plea. Accordingly, we overrule Purnell's sole assignment of
error.
IV. Disposition
{¶ 29} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying Purnell's pre-sentence motion to withdraw his guilty plea. Having overruled
Purnell's sole assignment of error, we affirm the judgment of the Franklin County Court of
Common Pleas.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.