[Cite as State v. Barnes, 2021-Ohio-842.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109442 v. :
TERRY BARNES, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 18, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-621345-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brian Radigan, Assistant Prosecuting Attorney, for appellee.
Milton A. Kramer Law Clinic, Case Western Reserve University School of Law, and Andrew S. Pollis, Supervising Attorney, Joseph Shell, Practice Pending Admission, Paul M. M. Willison, Chelsea R. Fletcher, Vito R. Giannola, Renee Monzon, Emily M. Peterson, and Geneva Ramirez, Certified Legal Interns, for appellant. ANITA LASTER MAYS, P.J.:
Defendant-appellant Terry Barnes, Sr., brings this appeal challenging
the trial court’s judgment denying his motion to withdraw his guilty plea. Appellant
argues that the trial court failed to properly weigh the applicable factors in ruling on
his motion to withdraw and the trial court abused its discretion by denying the
motion. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
The instant appeal pertains to a shootout that occurred at a Marathon
gas station at the intersection of East 140th Street and St. Clair Avenue on
September 10, 2017. The gas station was a popular gathering place.
As appellant was filling his gas tank, an argument ensued between him
and the victim, Leah McLaurin (“victim”). Appellant left the gas station and
returned later on. When he returned, the victim was still at the gas station.
Appellant approached the victim to discuss the previous argument.
After the initial argument between appellant and the victim, someone
contacted the victim’s brother, codefendant Jeffrey McLaurin, and informed him
that appellant and the victim had been arguing. As appellant and the victim were
conversing, Jeffrey, who was armed, confronted appellant who was also armed. In
response to Jeffrey’s confrontation, appellant drew his weapon.
Both appellant and Jeffrey fired their weapons. A third individual fired
shots from behind a gas pump. The third individual was not identified at the time
of the shooting, and this individual’s identity remains unknown. The victim sustained a gunshot wound to her thigh from which she
died. Appellant sustained a gunshot wound to the elbow during the exchange of fire.
Two other bystanders sustained gunshot wounds during the shootout.
There were three shooters that exchanged shots at the gas station:
appellant, codefendant Jeffrey McLaurin, and a third shooter that was not identified
and remains unknown. Ballistic evidence was unable to determine who fired the
shot that killed the victim.
Appellant was charged for his involvement in the shooting. On
September 20, 2017, a Cuyahoga County Grand Jury returned a seven-count
indictment charging appellant with (1) murder, in violation of R.C. 2903.02(B), (2)
voluntary manslaughter, in violation of R.C. 2903.03(A), (3)-(5) felonious assault,
in violation of R.C. 2903.11(A)(2), and (6)-(7) discharge of firearm on or near
prohibited premises, in violation of R.C. 2923.162(A)(3).1 All seven counts
contained one- and three-year firearm specifications. Appellant pled not guilty to
the indictment during his arraignment on September 25, 2017.
The parties reached a plea agreement during pretrial proceedings. On
September 18, 2019, appellant pled guilty to an amended Count 2, involuntary
manslaughter, a third-degree felony in violation of R.C. 2903.04(B), without the
underlying firearm specifications. The remaining counts and specifications charged
1 Appellant’s codefendant Jeffrey McLaurin was charged in Cuyahoga C.P. No. CR- 17-621345-A, with the same seven counts and an additional count of having weapons while under disability. in the indictment were nolled. The trial court referred appellant to the probation
department for a presentence investigation report and set the matter for sentencing.
On October 31, 2019, appellant filed a presentence motion to
withdraw his guilty plea. Therein, appellant requested to withdraw his guilty plea
because he is innocent and acted in self-defense, and that he is entitled to the benefit
of the self-defense burden-shifting law under H.B. 228 (effective March 28, 2019).
Appellant filed a supplement to his motion to withdraw on
November 6, 2019. Therein, appellant argued that he did not see one particular
video from inside the gas station and the accompanying audio footage until after he
pled guilty. Defense counsel “assumed [appellant] had viewed the footage with his
prior counsel when the Public Defender’s Office was handling the case.” After
viewing the video and audio footage, appellant purportedly “pointed out to defense
counsel a number of very useful pieces of potentially exculpatory evidence.” Counsel
asserted that the video “will establish that co-defendant, Jeffrey McLaurin, fired the
first shots in this case,” which would bolster appellant’s self-defense claim.
The state filed a brief in opposition to appellant’s motion to withdraw
on November 12, 2019. Therein, the state argued that appellant’s motion should be
denied because (1) the trial court complied with Crim.R. 11 during the change-of-
plea hearing, (2) appellant did not express at any time during the change-of-plea
hearing that he did not understand one of the court’s advisements, (3) appellant did
not indicate he had been threatened or forced to enter the guilty plea, nor that any
promises had been made to him to induce him to enter the plea, (4) appellant had sufficient understanding of the nature of the charges and potential punishments,
and he never expressed confusion or asked for clarification, (5) appellant is a “well-
educated, intelligent, college graduate with a master’s degree in Business
Administration,” (6) appellant works in the legal field as a paralegal, and as a result,
he was familiar with the legal process and had a clear understanding of the nature
of the charges, (7) the state, appellant’s codefendant, and the victim’s family would
be prejudiced by permitting appellant to withdraw his guilty plea, (8) appellant was
represented by competent counsel, (9) appellant’s last-minute motion to withdraw,
filed on the morning of the sentencing hearing, was nothing more than a change of
heart, and (10) the issues that appellant identified in his motion to withdraw and
supplement were not new — they existed in September 2017 and did not come to
light after appellant pled guilty.
On November 15, 2019, the trial court held a hearing on appellant’s
motion to withdraw his guilty plea. The trial court entertained arguments from
defense counsel and the state and gave appellant an opportunity to explain why he
wanted to withdraw his guilty plea. With the exception of the ineffective assistance
of counsel argument, the trial court rejected the arguments based upon which
appellant requested to withdraw his guilty plea. The trial court appointed a new
attorney to represent appellant and scheduled a hearing on appellant’s motion to
withdraw.
The trial court held a second hearing on appellant’s motion to
withdraw on December 18, 2019. During the hearing, the trial court entertained oral arguments from the state and appellant’s new defense attorney. The trial court also
heard testimony from appellant and the four attorneys that had represented him in
the case. The public defenders that represented appellant between September 2017
and June 2018 testified. The two attorneys that were assigned to represent appellant
in July 2018, after the public defender’s office withdrew based on a conflict of
interest, also testified at the hearing. The trial court continued the hearing for the
purpose of reviewing the evidence that appellant purportedly had not reviewed until
after pleading guilty.
On December 23, 2019, the trial court reconvened the hearing on
appellant’s motion to withdraw. The trial court indicated that it reviewed the video
footage at issue and the transcript from the previous hearing on the motion to
withdraw. The trial court denied appellant’s motion to withdraw his guilty plea,
concluding that there was not a reasonable basis for appellant to withdraw his guilty
plea.
The trial court proceeded immediately to sentencing. The trial court
sentenced appellant to community control sanctions for a period of five years. The
trial court’s sentencing entry was journalized on December 30, 2019.
On January 29, 2020, appellant filed the instant appeal challenging
the trial court’s judgment. Appellant filed a motion for court-appointed appellate
counsel, which this court granted on February 7, 2020.
Appellant assigns one error for review: I. The trial court erred in denying [appellant’s] motion to withdraw his guilty plea.
II. Law and Analysis
In his sole assignment of error, appellant argues the trial court erred
in denying his motion to withdraw his guilty plea. Appellant contends that the
relevant factors weighed heavily in favor of granting his motion to withdraw because
(1) appellant had a legitimate reason to withdraw his guilty plea — his defense
attorneys did not make the potentially exculpatory evidence available to him before
he pled guilty, (2) the state would not be prejudiced by permitting appellant to
withdraw his guilty plea, and (3) appellant’s motion to withdraw was filed within a
reasonable time after learning about the potentially exculpatory evidence.
This court reviews a trial court’s ruling on a presentence motion to
withdraw a guilty plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521,
526, 584 N.E.2d 715 (1992). The trial court’s judgment must be affirmed unless it is
shown that the trial court acted unreasonably, arbitrarily, or unconscionably in
denying the defendant’s motion to withdraw his or her plea. See, e.g., State v.
Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 36, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), and Xie at 527.
Generally, “a presentence motion to withdraw a guilty plea should be
freely and liberally granted.” Xie at 527. A defendant does not, however, have an
“absolute right” to withdraw his or her plea, even before the imposition of sentence.
Id. at paragraph one of the syllabus. Before ruling on a defendant’s presentence motion to withdraw a plea, the trial court must conduct a hearing to determine
whether there is a reasonable and legitimate basis for withdrawing the plea. Id. At
the hearing, the defendant is entitled to “‘full and fair consideration’” of his or her
motion to withdraw. State v. Hines, 8th Dist. Cuyahoga No. 108326, 2020-Ohio-
663, ¶ 8, quoting State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th
Dist.1980). The determination of whether circumstances warranting withdrawal of
the guilty plea exist is “‘within the sound discretion of the trial court[.]’” Xie at 526,
quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978). A defendant’s
mere “change of heart” is not sufficient to justify withdrawing his or her guilty plea.
See, e.g., Musleh at ¶ 35; State v. Shaw, 8th Dist. Cuyahoga No. 102802, 2016-Ohio-
923, ¶ 6.
Ohio courts have identified a list of nonexhaustive factors for trial courts to consider when deciding a presentence motion to withdraw a plea. See, e.g., State v. Walcot, 8th Dist. Cuyahoga No. 99477, 2013- Ohio-4041, ¶ 19. Those factors include (1) whether the motion was made in a reasonable time, (2) whether the motion states specific reasons for withdrawal, (3) whether the defendant understood the nature of the charges and the possible penalties, (4) whether the defendant was perhaps not guilty or had a complete defense, and (5) whether the state would be prejudiced by the withdrawal of the plea. Hines at ¶ 10; State v. Bradley, 8th Dist. Cuyahoga No. 108294, 2020- Ohio-30, ¶ 4; State v. Heisa, 8th Dist. Cuyahoga No. 101877, 2015- Ohio-2269, ¶ 19.
State v. Bogarty, 8th Dist. Cuyahoga No. 109143, 2020-Ohio-4996, ¶ 22.
A trial court does not abuse its discretion in denying a defendant’s
presentence motion to withdraw a guilty plea where (1) the defendant is represented
by highly competent counsel, (2) the defendant was afforded a full hearing pursuant to Crim.R. 11 before he or she entered his plea, (3) after the motion to withdraw is
filed, the defendant is given a complete and impartial hearing on the motion, and
(4) the record reveals that the court gave full and fair consideration to the plea
withdrawal request (the “Peterseim factors”). Peterseim at paragraph three of the
syllabus; see also State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-
2627, ¶ 17. “[T]he good faith, credibility and weight of the movant’s assertions in
support of the motion are matters to be resolved by that court.” State v. Smith, 49
Ohio St.2d 261, 263, 361 N.E.2d 1324 (1977), paragraph two of the syllabus.
In the instant matter, the record reflects that the trial court referenced
the various factors that it would consider in ruling on appellant’s motion to
withdraw during the December 18, 2019 hearing. The trial court indicated that it
would consider the following factors in ruling upon appellant’s motion: (1) whether
the state would be prejudiced by permitting appellant to withdraw his plea, (2)
whether appellant was represented by highly competent counsel, (3) whether
appellant had a full Crim.R. 11 hearing before pleading guilty, (4) whether there were
specific reasons outlined in appellant’s motion to withdraw, (5) whether appellant
understood the nature of the charges and the possible penalties under the guilty
plea, and (6) whether appellant has a complete defense to the crime or was not
guilty. (Tr. 109-110.)
Regarding the first Peterseim factor, the record reflects that appellant
was represented by highly competent counsel in the trial court. During the change-
of-plea hearing, appellant confirmed that he was satisfied with the representation provided by his lead attorney and co-counsel. Appellant agreed with the trial court’s
statement that appellant had “two excellent attorneys[.]” (Tr. 34.)
During the November 15, 2019 hearing on appellant’s motion to
withdraw, the trial court explained that the only basis upon which appellant could
pursue withdrawing his guilty plea was ineffective assistance of counsel. The trial
court concluded that “none of these other reasons outlined in [appellant’s] motion
are well taken.” (Tr. 47.) Appellant alleged, for the first time, that he had “ineffective
counsel.” (Tr. 54.) In support of his ineffective assistance claim, appellant asserted,
“You can tell from the late motions. You’ve got my previous lawyer, about his
tardiness in filing motions and responding to the Court’s orders.[2] So I guess it kind
of — I had ineffective counsel, with all due respect, your Honor.” (Tr. 54.)
During the December 18, 2019 hearing on appellant’s motion to
withdraw, all four of the attorneys that represented appellant detailed their
credentials and extensive experience working on murder cases. The trial court
concluded that there was no question that appellant was represented by highly
competent counsel at all stages during the trial court’s proceedings. (Tr. 109.)
Regarding the second Peterseim factor, the record reflects that the
trial court afforded a full Crim.R. 11 hearing before appellant pled guilty. Defense
counsel conceded during closing arguments that the trial court’s Crim.R. 11 colloquy
during the change-of-plea hearing was “impeccable” and “absolutely complied with
2 Appellant appeared to be referencing the sentencing memorandum filed by defense counsel on October 30, 2019, when the trial court ordered the parties to submit sentencing memorandum by October 9, 2019. the law.” (Tr. 112.) During the December 18, 2019 hearing, the trial court explained
that it reviewed the entire transcript of the change-of-plea hearing, and concluded
that appellant had a full Crim.R. 11 hearing before pleading guilty.
Regarding the third and fourth Peterseim factors, the record reflects
that appellant was given a complete and impartial hearing on his motion to
withdraw, and the trial court gave full and fair consideration to appellant’s plea
withdrawal request. The trial court continued the sentencing hearing set for
October 31, 2019, to allow appellant to supplement the motion to withdraw and to
allow the state to respond to the motion. The trial court held an initial hearing on
appellant’s motion to withdraw on November 25, 2019. When it became apparent
that appellant was requesting to withdraw his guilty plea based, in part, on an
ineffective assistance of counsel claim, the trial court appointed a new attorney to
represent appellant and scheduled another hearing on appellant’s motion. The trial
court held a second hearing on appellant’s motion to withdraw on December 18,
2019, during which the court entertained oral arguments from the parties. Defense
counsel presented the testimony of appellant and the four attorneys that
represented him in the trial court during the hearing. Finally, the trial court
reviewed the evidence that appellant alleged he had not seen at the time he pled
guilty.
Based on the foregoing analysis regarding the Peterseim factors, we
are unable to conclude that the trial court’s judgment denying appellant’s motion to
withdraw was unreasonable, arbitrary, or unconscionable. The record supports the trial court’s conclusion that appellant failed to demonstrate a reasonable basis for
withdrawing his guilty plea.
In addition to the aforementioned Peterseim factors, this court has set
forth the following factors that may be considered in reviewing a trial court’s
judgment on a defendant’s presentence 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.” Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, at ¶ 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.
As an initial matter, we find no merit to appellant’s argument that the
trial court “failed to indicate that it considered these [additional] factors weighing in
[his] favor.” Appellant’s brief at 14. As noted above, the trial court specifically
referenced these additional factors during the December 18, 2019 hearing, and
indicated that it would consider these factors in ruling on appellant’s motion to
Regarding the first Heisa factor, appellant pled guilty on
September 18, 2019. The sentencing hearing was originally set for October 16, 2019;
the trial court reset the sentencing hearing for 1:00 p.m. on October 31, 2019, due to
the court’s involvement in an unrelated trial. Appellant’s motion to withdraw was
filed on October 31, 2019, at 12:47 p.m. The trial court’s October 31, 2019 journal entry provides, in relevant part, “[d]efense counsel notified the court that a motion
to withdraw guilty plea was filed this morning.”
Appellant contends that his motion to withdraw was filed “within a
reasonable time after learning about the new evidence.” Appellant’s brief at 12. In
support of his argument, appellant asserts that he learned about the existence of an
audio recording and heard the audio footage on October 30, 2019, the day before
the matter was set for sentencing.
Neither the motion to withdraw nor supplement thereto specifies
when appellant viewed the video and accompanying evidence for the first time. In
fact, the original motion to withdraw, filed on October 31, 2019, made no mention
of any video or audio evidence that appellant did not see until after he pled guilty.
This argument was raised for the first time in appellant’s supplement to his motion
to withdraw, filed on November 6, 2019.
Regarding the second Heisa factor, the record reflects that appellant’s
motion and supplement thereto stated specific reasons for withdrawing his guilty
plea. Appellant argued that he did not review a potentially exculpatory video of the
shooting and an accompanying audio recording at the time he pled guilty. After
reviewing this evidence for the first time after pleading guilty, appellant “pointed out
to defense counsel a number of very useful pieces of potentially exculpatory
evidence. * * * [T]he undersigned represents to the Court that it will establish that
co-defendant, Jeffrey McLaurin, fired the first shots in this case. Obviously, this will go along [sic] way to solidifying [appellant’s] self-defense claim.” Supplement at 1-
2.
Regarding the third Heisa factor, the record reflects that appellant
understood the nature of the charges against him and the possible penalties he
faced. As noted above, the trial court held a full and thorough Crim.R. 11 hearing
before appellant pled guilty. Appellant did not express confusion or ask for
clarification at any point during the change-of-plea hearing. Nor did appellant
indicate that he did not understand one of the trial court’s advisements.
Regarding the fourth Heisa factor, the record reflects that appellant
had evidence of a plausible defense, specifically self-defense. However, appellant
had evidence of this plausible defense at the time he pled guilty, and had discussed
the issue of self-defense with the attorneys that represented him. Appellant testified
during the December 18, 2019 hearing on his motion to withdraw that he discussed
the issue of self-defense with the public defenders that represented him between
September 2017 and July 2018. Appellant discussed the issue of self-defense with
the two new attorneys that were assigned to represent him in July 2018.
Appellant testified during the December 18, 2019 hearing that it was
his desire to go to trial from the very beginning but his attorneys advised him that
certain aspects of the case would be an uphill battle. After seeing the video and
accompanying audio footage in his entirety, however, appellant asserted, “I don’t
think I’s [sic] going to be that hard to win in trial to be honest.” (Tr. 64.) In his brief, appellant argues that the “new” video and audio footage
that he did not see until after he pled guilty “substantiates his claim that he shot in
self-defense.” Appellant’s brief at 3. Appellant’s claim is contradicted by other
evidence in the record.
The trial court continued the matter to review the “new” video and
audio footage that appellant did not see until after he pled guilty. After reviewing
this evidence, the trial court did not find appellant had a reasonable basis for
Appellant’s lead counsel testified that based on the video and audio
footage at issue, he would still recommend that appellant accept the state’s plea
agreement:
[appellant’s] exposure is so great here with a life sentence that the evidence that’s been discussed as being exculpatory is [appellant’s] interpretation of which firearms made a specific noise outside the gas station. * * * I think then we have got to be able to distinguish that a gun of a certain caliber made a different noise or what order they were in, and I don’t think that dictates an automatic self-defense even if you had an expert to say that and I don’t think you can.
I will give you an example. Just because one gun was louder than another I don’t believe in any respect dictates or mandates it has to be of a higher or lower caliber. I think it’s the construction of the guns, the proximity to whatever device is picking up the noise. I think many other factors go into that.
(Tr. 87.)
The state argued during closing arguments that the third-degree
felony involuntary manslaughter offense to which appellant pled guilty, and the
amendment from the originally charged offenses of murder and voluntary manslaughter, were supported by the video footage of the shootout that appellant
reviewed before pleading guilty. The state asserted that you would not be able to
determine from the audio footage which sound came from which gun, or which
shooter opened fire first. The state maintained that the audio footage at issue would
not have been consequential because it “has two gunshots going off almost
simultaneously[.]” (Tr. 119.)
Appellant’s ineffective assistance of counsel claim in the trial court
was based on counsel’s purported failure to provide him with all of the evidence,
including the video and audio footage at issue, so that appellant had an opportunity
to review all of the footage before pleading guilty. In this appeal, appellant argues,
for the first time, that trial counsel was ineffective for (1) failing to hire an expert
witness to review the audio footage, and (2) failing to challenge the “counsel only”
designation of all the video and audio footage obtained from the gas station. Because
appellant failed to raise either of these grounds for withdrawing his guilty plea in the
trial court, these grounds cannot support reversal of the trial court’s decision in this
appeal. See State v. Moore, 8th Dist. Cuyahoga Nos. 108962, 108963, and 108964,
2020-Ohio-3459, ¶ 58. “‘[A] party cannot present new arguments for the first time
on appeal that were not raised below, and a trial court cannot be said to have abused
its discretion by failing to consider arguments that were never presented to it.’”
State v. Luton, 8th Dist. Cuyahoga No. 106754, 2018-Ohio-4708, ¶ 65, quoting State
v. D.K., 8th Dist. Cuyahoga No. 106539, 2018-Ohio-2522, ¶ 17; see also State v. Pratts, 8th Dist. Cuyahoga No. 104235, 2016-Ohio-8053, ¶ 43 (“A party may not
raise for the first time on appeal an argument that could have been raised below.”).
Nevertheless, we find appellant’s argument about defense counsel’s
failure to hire an expert witness to be entirely speculative. Appellant appears to
suggest that had defense counsel hired an expert, the expert could have determined
whether (1) the audio footage was relevant to appellant’s guilt or innocence, or (2)
appellant or codefendant McLaurin fired the first shot.
As noted above, appellant’s lead attorney, who had been handling
murder cases for 25 years, opined that an expert would not have been able to discern
from the audio recording which gunshot noise was attributable each of the three
guns that were fired during the shootout, and which order the guns were fired in.
Furthermore, even if the expert witness could make these determinations, counsel
opined that it would not automatically establish that appellant acted in self-defense.
To the extent that appellant challenges the weight the trial court
afforded to the relevant factors, appellant’s argument is misplaced. Like the
determination of whether circumstances exist that warrant withdrawing a plea, the
determination of how much weight to afford to the applicable factors is within the
trial court’s sound discretion. Although appellant argues that the trial court failed
to explain how it weighed the relevant factors, appellant fails to identify any
authority that requires a trial court to make specific findings regarding its
consideration of the applicable factors. Based on the foregoing analysis regarding the Heisa factors, we are
unable to conclude that the trial court’s judgment denying appellant’s motion to
withdraw was unreasonable, arbitrary, or unconscionable.
Finally, the trial court considered whether the state would be
prejudiced by permitting appellant to withdraw his plea. In its brief in opposition
to appellant’s motion to withdraw, the state argued that it would be prejudiced by
permitting appellant to withdraw the guilty plea. In support of its argument, the
state asserted that the case had been pending since September 2017; the more time
that elapses, the more likely that witnesses will move, change phone numbers, or
become less willing to participate.
The state also explained that appellant’s plea withdrawal request
would prejudice codefendant Jeffrey McLaurin because Jeffrey and appellant
entered a “joint” or “package” plea agreement under which appellant pled guilty to
third-degree felony involuntary manslaughter and Jeffrey pled guilty to third-degree
felony involuntary manslaughter and third-degree felony having weapons while
under disability. The state emphasized that the parties’ plea negotiations occurred
over approximately one and one-half years. The state argued that withdrawing
appellant’s plea and further delaying the matter would adversely impact the victim’s
family who believed the matter had been resolved and that they had some type of
closure. During the first hearing on appellant’s motion to withdraw, the state
detailed how the state would be prejudiced by permitting appellant to withdraw his
plea:
Now, as you know, Judge, people move. People change phone numbers. Witnesses leave. We tell witnesses when a case is pled out that they are no longer needed. You know what happens, Judge, after telling witnesses they’re no longer needed? Do you think they continue to answer the phone calls or respond to subpoenas? Judge, they do not. These are the types of things that, when a case is resolved and it is put forward and everybody can move on with their lives[.]
(Tr. 51.)
The state emphasized these concerns during closing arguments at the
second hearing on appellant’s motion, stating that withdrawing appellant’s plea
would result in consequences to the state, witnesses, appellant’s codefendant, and
the victim’s family members. The state confirmed that if appellant’s motion to
withdraw was granted, the state would also withdraw the codefendant’s plea. The
state explained that the matter would have to be further delayed for approximately
six months, until “sometime in the summer,” because the court would have to
appoint new attorneys to represent appellant and his codefendant at trial.
Accordingly, the trial would not commence until nearly three years after the
shooting occurred.
In this appeal, appellant argues that the state made no showing of
actual prejudice and that the state’s argument that it would be prejudiced by
permitting appellant to withdraw his guilty plea was “nothing more than
speculation[.]” Appellant’s brief at 27. Appellant’s argument is misplaced. Whether the state would be prejudiced by a defendant withdrawing
his or her plea is one factor in a nonexhaustive list of factors for a trial court to
consider in ruling on a defendant’s motion to withdraw a guilty plea. Appellant has
failed to identify any authority or case law that requires the state to conclusively
establish that it would suffer actual prejudice from a defendant withdrawing a plea.
After reviewing the record, and for all of the foregoing reasons, we find
no basis upon which to conclude that the trial court’s judgment denying appellant’s
motion to withdraw his guilty plea was unreasonable, arbitrary, or unconscionable.
Appellant’s sole 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR