State v. Resto

[Cite as State v. Resto, 2020-Ohio-4299.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109109
v. :
JONATHAN MARTINEZ RESTO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 3, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-637652-A and CR-19-639843-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carson Strang, Assistant Prosecuting
Attorney, for appellee.
Michael B. Telep, for appellant.
RAYMOND C. HEADEN, J.:
Defendant-appellant Jonathan Martinez Resto (“Resto”) brings this
appeal challenging the trial court’s denial of his motion to withdraw his presentence
guilty pleas. For the reasons that follow, we affirm.
I. Factual and Procedural History
In Cuyahoga C.P. No. CR-19-637652-A, Resto was charged in a three-
count indictment on March 8, 2019, with (1) robbery, a third-degree felony in
violation of R.C. 2911.02(A)(3); (2) theft, a fifth-degree felony in violation of
R.C. 2913.02(A)(1); and (3) menacing by stalking, a fourth-degree felony in violation
of R.C. 2903.211(A)(1). Resto was arraigned on April 16, 2019, and pleaded not
guilty to the indictment. Resto was required to comply with court-supervised
release that included GPS electronic home monitoring.
During the pendency of the above criminal action, Resto was indicted
in Cuyahoga C.P. No. CR-19-639843-A on May 22, 2019, for (1) menacing by
stalking, a fourth-degree felony in violation of R.C. 2903.211(A)(1), with a one-year
firearm specification in violation of R.C. 2941.141(A) and a forfeiture of a weapon
specification in violation of R.C. 2941.1417(A); (2) menacing by stalking, a fourth-
degree felony in violation of R.C. 2903.211(A)(1), with a one-year firearm
specification in violation of R.C. 2941.141(A) and a forfeiture of a weapon
specification in violation of R.C. 2941.1417(A); (3) menacing by stalking, a fourth-
degree felony in violation of R.C. 2903.211(A)(1), with a one-year firearm
specification in violation of R.C. 2941.141(A) and a forfeiture of a weapon
specification in violation of R.C. 2941.1417(A); (4) violating a protection order, a
third-degree felony in violation of R.C. 2919.27(A)(1); and (5) having weapons while
under disability, a third-degree felony in violation of R.C. 2923.13(A)(2), with a
forfeiture of a weapon specification while under disability in violation of
R.C. 2941.1417(A). Resto was arraigned on June 6, 2019, and pleaded not guilty to
the indictment.
The indictments, which arose from two separate incidents between
Resto and his former girlfriend, were assigned to the same trial judge. On July 29,
2019, the prosecutor presented a plea offer that Resto rejected. Resto’s counsel then
presented an oral motion that requested the appropriation of funds to obtain a
Spanish translator to interpret video footage of the police interviews. The trial court
granted the motion.
The trial court scheduled trial on August 26, 2019. In lieu of
proceeding to trial, Resto accepted the prosecutor’s plea offer, which was presented
that same day. Resto withdrew his not guilty pleas and entered pleas of guilty. In
CR-19-637652-A, Resto pleaded guilty to Count 3, menacing by stalking, a fourth-
degree felony in violation of R.C. 2903.211(A)(1), and Counts 1 and 2 were nolled.
In CR-19-639843-A, Resto pleaded guilty to an amended Count 1, menacing by
stalking, a fourth-degree felony in violation of R.C. 2903.211(A)(1), with forfeiture
of a weapon specification in violation of R.C. 2941.1417(A), with Counts 2 through 5
being nolled. The trial court referred Resto to the County Probation Department for
a presentence investigation (“PSI”). The plea agreement required Resto to forfeit
his handgun and to have no contact with the victim.
The trial court conducted a sentencing hearing on September 16,
2019. At the start of the sentencing hearing, scheduled on a Monday morning,
defense counsel stated that Resto contacted her at 4:30 p.m. the prior Friday and
indicated that he wanted to withdraw his guilty pleas. Defense counsel also stated
that she and her client experienced a breakdown in communication and, as a result,
she orally moved to withdraw as counsel.
The trial judge directed questions to Resto and ascertained his
reasoning to withdraw his guilty pleas. Resto asserted he was not a violent person
and he wished to have the facts presented at trial. Resto also claimed that his
attorney threatened not to represent him if he did not accept the second plea offer.
This allegation was denied by defense counsel who admitted that she advised Resto
at the time of the second plea offer but she was always prepared to try the case, if
necessary. The trial judge averred that when Resto entered guilty pleas, he was
represented by competent counsel and he never voiced displeasure with his counsel,
or his guilty pleas, or verbalized a desire to proceed to trial. After conducting a
hearing on Resto’s motion to withdraw his pleas, the trial judge determined that
Resto experienced a change of heart with regard to his guilty pleas. The trial judge
denied Resto’s presentence motion to withdraw his guilty pleas and sentenced him
to two years of community control, on each count, to be served concurrently.
Resto timely appealed raising, verbatim, one assignment of error:
The trial court abused its discretion when it denied defendant’s motion
to withdraw guilty plea prior to sentencing, where defendant’s attorney
moved to withdraw representation, and where defendant met
standards permitting withdrawal.
Upon a review of the record, we find Resto’s appeal has no merit.
II. Law and Argument
A. Withdrawal of Guilty Pleas
Resto contends that the trial court abused its discretion in denying his
presentence motion to withdraw his guilty plea.
A motion to withdraw a guilty plea is governed by Crim.R. 32.1, which
reads:
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.
Crim.R. 32.1. “A defendant does not have an absolute right to withdraw a plea prior
to sentencing, and it is within the sound discretion of the trial court to determine
what circumstances justify granting such a motion.” State v. Westley, 8th Dist.
Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 6, citing State v. Xie, 62 Ohio St.3d 521,
527, 584 N.E.2d 715 (1992). Prior to ruling on a presentence motion to withdraw a
plea, the trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for withdrawal of the plea. Xie at paragraph one of
the syllabus.
The abuse-of-discretion standard that a reviewing court must follow
is stated in State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980),
paragraph three of the syllabus:
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.
Applying these factors to the present case, we find the trial court’s denial of Resto’s
presentence motion to withdraw his pleas was not an abuse of discretion.
The record demonstrates that Resto was represented by competent
counsel during the plea hearing. Counsel successfully negotiated a plea agreement
that included considerably better terms than those presented in the prosecution’s
initial plea offer. The trial judge attested to the competency of Resto’s counsel
stating that she has practiced longer than Resto has been alive and has handled
many cases comparable to the case sub judice as well as more serious matters.
(Tr. 32.) At his plea hearing, Resto confirmed his satisfaction with his appointed
counsel.
A review of the record indicates Resto was afforded a full Crim.R. 11
hearing before he entered his guilty pleas. A group plea was taken by Resto and one
other, unrelated accused. Resto, via counsel, consented to the group plea. (Tr. 3-4.)
The prosecutor detailed the two pending indictments against Resto and the
proposed amended indictments. (Tr. 5-8.) The court addressed Resto’s prior
request for a translator to interpret police interviews and Resto’s waiver of that
request. (Tr. 8-9.) Resto answered the court’s questions and indicated he was a high
school graduate who could read and write. (Tr. 10.) Resto stated he was neither
threatened nor induced to enter a plea of guilty and he was satisfied with his
attorney. (Tr. 12-13.) Resto’s constitutional rights were explained by the trial judge
and waived by the accused. (Tr. 14-16.) The trial judge explained the nature of the
offenses and specifications as well as the potential prison sentences, fines, and
postrelease control. (Tr. 17-21.) The trial court found Resto entered his guilty pleas
knowingly, intelligently, and voluntarily. (Tr. 22.)
Upon Resto’s oral motion to withdraw his guilty pleas, the trial court
provided a complete and impartial hearing on the motion and the trial court gave
full and fair consideration to Resto’s request. Resto’s motion to withdraw his pleas
countered that he entered his guilty pleas under the threat of his appointed counsel
to sever their attorney-client relationship if he did not accept the plea deal offered
on August 26, 2019:
Resto: The second time she — * * * my attorney, said if I didn’t take
this deal, that she was not going to represent me, so right there is more
stress. More worrying.
(Tr. 31-32.) The plea offer was presented on the date of trial and Resto claimed he
wanted to refuse the offer and proceed to trial:
Resto: That same day I told her I want to go to trial. I wanted to go to
trial. She was like, take it, take it, or I won’t represent you. Like it’s
more stress, more stress to me. It’s not a change of heart. I wanted to
go to trial.
(Tr. 41.) Resto’s attorney conceded that she counseled and advised Resto, but never
coerced or threatened him. (Tr. 32.) She instructed Resto that it was his choice
whether he accepted the plea agreement, and she was willing to proceed to trial, if
needed. (Tr. 32.)
Further, Resto claimed he asked his attorney to continue the plea
hearing because he needed time to consider the offer: “This would all be avoided if
she would have put a motion to give me an extra day to think about it.” (Tr. 36.) In
response, the trial judge detailed this case’s timeline starting with the indictment in
CR-19-637652-A on March 8, 2019, and arraignment on April 16, 2019. The court
held numerous pretrials from April 18, 2019, through May 28, 2019. The initial trial
date of June 3, 2019, was continued at the accused’s request since he was charged in
another stalking case, CR-19-639843-A. The court conducted additional pretrials,
on both pending criminal cases, on June 27, 2019, July 11, 2019, July 17, 2019,
July 25, 2019, and July 29, 2019. The trial date was continued from August 7, 2019,
until August 26, 2019, at Resto’s request, to provide time to translate video footage.
On August 26, 2019, a “substantially reduced” plea offer was presented to and
accepted by Resto. (Tr. 38.) On that same date, Resto withdrew his prior not guilty
pleas and entered guilty pleas in both pending cases.
The trial court acknowledged that from Resto’s arraignment on
April 16, 2019, until the plea hearing on August 26, 2019, Resto never voiced
dissatisfaction with his counsel or indicated her use of threats. At the plea hearing,
Resto indicated satisfaction with his counsel and denied that any threats or promises
had been made to induce his pleas. (Tr. 13; tr. 22.)
Resto’s alleged request for one additional day before responding to
the second plea offer did not justify a withdrawal of Resto’s guilty pleas. Resto had
months to consider his charges and the potential consequences and Resto previously
considered a plea offer and rejected it on the day of its presentment.
Resto also argued that because he is not a violent individual, he
wanted to proceed to trial where the facts of the case would be presented:
The Court: Okay. So what’s the basis to withdraw your plea? That’s
what I’m asking you.
Resto: That I want the people to hear the facts, because I’m not a
violent person. This is just not who I am. And I know I’m risking a lot.
(Tr. 34.)
Resto claimed to experience significant stress from his pending cases
and knew when he entered the guilty pleas that he made the wrong choice:
Resto: Like I was — I’m in so much stress. Never have I ever had in my
life this much stress in my life. Never been in depression. Since all this
started — I know when I made my choice, I was not satisfied the
moment I did it. I didn’t want it.
(Tr. 40.) Yet, Resto did not indicate during the plea hearing that he was under any
emotional stress.
In support of withdrawal of his plea, Resto testified that he wanted to
“get [the plea hearing] over with,” but by the time he arrived home from the plea
hearing, he knew he had made the wrong choice. (Tr. 33; tr. 39.) Resto conceded
that he pleaded guilty because he wanted to put his criminal cases behind him and
move on with his life:
Resto: Yes, Your Honor. At the time, I was just thinking let’s get this
over with. I just want to be — I’m probably not — maybe get probation
or jail time. I just want[ed] it to be over with so I [could] see my family,
see my nieces anytime I wanted.
(Tr. 33.)
Resto’s arguments with regard to his nonviolent nature and the stress
he endured from the pending cases did not evidence his innocence or support a
reasonable or legitimate basis for withdrawal. As explained by the trial judge,
Resto’s motion for withdrawal was predicated on a change of heart:
The Court: All right. Well, in looking at the factors to consider, one,
you have competent counsel. We’ve already placed that on the record.
As I said, I believe your lawyer has been practicing law longer than
you’ve been born and has handled numerous cases. Numerous.
And as I said, has had many, many, many trials as well. And has
handled cases of charges that are of a higher level degree than the ones
that are present or that you’re facing as well. So that factor doesn’t
apply.
Then the Court followed Criminal Rule 11 as well and during that
hearing you never one time indicated that you didn’t want to take a
plea, that I can recall. I don’t have the transcript in front of me, but I
don’t recall you hesitating or being dissatisfied with your lawyer. As I
said, I don’t recall that.
So, I find that this is more or less a change of heart. Here it is the day
of sentencing and — so I’m going to have the sentencing go forward and
I believe it can go forward with [your attorney.] All right?
(Tr. 40-41.)
A trial judge must determine whether a claim of innocence is simply
an accused’s change of heart about the plea agreement. State v. Elliott, 8th Dist.
Cuyahoga No. 103472, 2016-Ohio-2637, ¶ 30, citing State v. Hoyle, 8th Dist.
Cuyahoga No. 102791, 2016-Ohio-586, ¶ 31. “A mere change of heart regarding a
guilty plea and the possible sentence is insufficient justification for the withdrawal
of a guilty plea.” Elliott at ¶ 30, quoting Hoyle at ¶ 31. Resto’s claim that he wanted
to introduce the facts and demonstrate his nonviolence was indicative of a change of
heart and did not support a withdrawal of his guilty plea.
In addition to the four factors evaluated above, this court has set forth
these factors that may be considered upon the review of a trial court’s judgment on
a motion to withdraw a guilty plea: “(1) the motion was made in a reasonable time;
(2) the motion stated specific reasons for withdrawal; (3) the record shows that the
defendant understood the nature of the charges and possible penalties; and (4) the
defendant had evidence of a plausible defense.” State v. Heisa, 8th Dist. Cuyahoga
No. 101877, 2015-Ohio-2269, ¶ 19, citing State v. Pannell, 8th Dist. Cuyahoga
No. 89352, 2008-Ohio-956, ¶ 13, citing State v. Benson, 8th Dist. Cuyahoga
No. 83178, 2004-Ohio-1677.
We review the application of these additional factors. An oral motion
to withdraw a presentence guilty plea made at the sentencing hearing is not
considered timely filed. State v. Porch, 2017-Ohio-8885, 100 N.E.3d 1134, ¶ 19 (8th
Dist.). Hence, Resto’s oral motion to withdraw his plea made at the start of the
sentencing hearing was untimely.
Resto provided specific reasoning for his withdrawal, yet the
proposed rationales — that Resto’s counsel threatened to sever the attorney-client
relationship and that he wanted to introduce the facts to show he was not violent —
were not found reasonable and legitimate but were rejected by the trial judge.
The record demonstrates Resto understood the nature of the charges
and the possible penalties as these were specified in the plea hearing and Resto
acknowledged his understanding of the same. Resto contends he was unaware that
(1) a menacing while stalking charge represented a violent crime, and (2) there may
be negative implications for being sentenced to a violent crime. However, a trial
court is not required to inform an accused about collateral consequences to a plea,
including potential outcomes that do not have an effect on the sentence when the
judge accepts the plea. State v. Moore, 8th Dist. Cuyahoga No. 73899, 1998 Ohio
App. LEXIS 3293, 4 (Aug. 27, 1998); State v. Beatty, 8th Dist. Cuyahoga No. 75926,
2000 Ohio App. LEXIS 5821, 10 (Dec. 14, 2000). Thus, the trial court was not
obligated, in the course of the plea hearing, to inform Resto whether he could
subsequently expunge the charges to which he pled guilty and Resto’s lack of
knowledge on this topic did not justify granting his motion to withdraw.
While Resto stated introduction of the facts would show he was
nonviolent, Resto failed to present any evidence or argument supporting a plausible
defense. Mere assertions without evidentiary support do not merit the same
scrutiny that is required for substantiated allegations. State v. Alexander, 8th Dist.
Cuyahoga No. 103754, 2016-Ohio-5707, ¶ 11, citing State v. Hall, 8th Dist. Cuyahoga
No. 55289, 1989 Ohio App. LEXIS 1602, 2-3 (Apr. 27, 1989).
“It is within the trial court's discretion to determine whether [Resto]’s
arguments in support of his motion were reasonable and legitimate.” State v. Shaw,
8th Dist. Cuyahoga No. 102802, 2016-Ohio-923, ¶ 12. A reviewing court “must defer
to the trial court’s judgment in evaluating the ‘good faith, credibility and weight’ of
[a defendant’s] motivation and assertions in entering and attempting to withdraw
his plea.” Id. at ¶ 12, quoting Xie, 62 Ohio St.3d at 525, 584 N.E.2d 715.
Nothing in the transcript demonstrates that Resto’s decision to
withdraw his guilty pleas was based on anything other than a mere change of heart
which is not a sufficient basis upon which a defendant can rely in order to
successfully withdraw his guilty pleas. Under the totality of the circumstances, we
cannot say the trial court abused its discretion when it found there was no
reasonable and legitimate basis for Resto’s motion to withdraw his guilty pleas.
B. Withdrawal of Counsel
Resto asserts that his attorney withdrew as counsel and he was
unrepresented when the trial court ruled on his motion to withdraw his guilty pleas.
We disagree.
At the start of the sentencing hearing, Resto’s appointed counsel
informed the court that Resto wished to withdraw his pleas. Counsel further stated
there was “a complete over-the-weekend failure and breakdown of communication”
and made an oral request to withdraw as counsel. (Tr. 30.) The trial court did not
immediately rule on defense counsel’s motion to withdraw.
After the trial judge conducted a hearing on Resto’s motion to
withdraw his guilty pleas, and prior to rendering a decision on that matter, defense
counsel again requested that the court appoint separate counsel if the court chose to
go forward with sentencing during the scheduled hearing. (Tr. 36-37.) Although it
was a half-hearted request, defense counsel also asked the court to grant Resto’s
motion to withdraw his guilty plea: “As defense attorney, my ethics require me to
ask the court that if my client has a change of heart and wants to go to trial, then the
Court oblige that. I’m only asking. It’s up to the Court’s decision. If he wants to go
to trial, it’s his case, or his cases. That’s his right. I have to say that, Your Honor.”
(Tr. 42.)
The trial judge denied Resto’s motion to withdraw his guilty pleas and
stated (1) she would proceed with sentencing, and (2) Resto’s attorney would
represent him during the sentencing portion of the hearing. (Tr. 41.) Defense
counsel acted in accordance with the trial judge’s ruling. During the sentencing
phase of the hearing, defense counsel confirmed her review of the PSI report and the
fact that no corrections or omissions were necessary. (Tr. 42.) To protect his rights,
defense counsel instructed Resto that he had the right to stay silent. (Tr. 51.)
Defense counsel also clarified for Resto the trial court’s comments and requested
that the trial court advise Resto on his right to an appeal. (Tr. 61; tr. 64.) The trial
court did not grant defense counsel’s motion to withdraw and Resto was represented
by counsel throughout the entirety of the September 16, 2019 hearing.
Resto’s assignment of error is overruled.
Judgment affirmed.
It is ordered that 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
convictions 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.
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR