[Cite as State v. Campbell, 2018-Ohio-681.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105488
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEESHAWN T. CAMPBELL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-606590-A and CR-16-607843-A
BEFORE: Laster Mays, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: February 22, 2018 -i- ATTORNEY FOR APPELLANT
Britta M. Barthol P.O. Box 670218 Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Brian Radigan Kerry A. Sowul Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
ANITA LASTER MAYS, P.J.:
{¶1} Defendant-appellant, Deeshawn T. Campbell (“Campbell”), appeals his convictions
and sentence, and asks this court to vacate his convictions and remand to the trial court for
further proceedings. We affirm.
{¶2} Campbell was charged with committing criminal violations in two separate cases.
The state and Campbell entered into a plea agreement where Campbell pleaded guilty to various
counts in both cases for an aggregate sentence of 25 years. Campbell’s appeal of his guilty plea
only concerns the facts of one of the cases. For this reason, the facts recited here will focus only
on that case.1
{¶3} Campbell pleaded guilty to one count of involuntary manslaughter, a first-degree
felony, in violation of R.C. 2903.04, a three-year firearm specification on the involuntary
Cuyahoga C.P. No. CR-16-607843. 1 manslaughter count, and one count of felonious assault, a second-degree felony, in violation of
R.C. 2903.11(A)(1). He was sentenced to a total of 25 years in prison and received 180 days of
jail-time credit. He was also advised that he would be subject to a mandatory five-year period
of postrelease control upon his release from prison.
I. Facts
{¶4} On June 30, 2016, Campbell and the victim were inside a convenient store. The
store video monitor captured the confrontation between the two without sound. Campbell was
holding a bag, and the victim looked down into the bag. The victim reached for the bag and a
physical altercation ensued. Campbell ultimately shot the victim one time and he fled the store.
Campbell claimed that he asked the victim for change and the victim became aggressive with
him. Campbell stated that he thought the victim was trying to rob him, and Campbell shot him
because he was fearful for his life.
{¶5} Campbell entered into a plea agreement with the state. The trial court complied
with all of the Crim.R. 11 requirements. At the sentencing hearing, the trial court allowed the
victim’s mother and close friend to speak about the victim and the pain his death has caused
them. Campbell then informed his attorney that he wanted to withdraw his guilty plea because
he was upset with how the victim’s family recounted the facts in the case.
{¶6} The trial court asked Campbell if it was his intention to withdraw his guilty plea.
Campbell stated, “Yes, your Honor. I would like to withdraw my guilty plea. I would like to go
through with this. I would like the family — everyone to know the real situation that’s at hand.”
(Tr. 168.) The trial court responded, “Well, you can tell me that without withdrawing your
guilty plea.” (Tr. 168.) Then the trial court instructed Campbell to speak with his counsel.
After consulting with counsel, Campbell and his counsel stated that they were ready to proceed with the plea of guilty. However, Campbell wanted an opportunity to tell the court his version
of the events that led to the death of the victim. The court allowed Campbell to recite the facts
as he understood them. The court then proceeded with sentencing. Campbell filed this timely
appeal assigning one error for our review:
I. The trial court abused its discretion in denying appellant’s presentencing motion to withdraw his plea of guilty.
II. Withdrawal of Guilty Plea
A. Standard of Review
{¶7} “We review presentence motions to withdraw guilty pleas for an abuse of
discretion.” State v. McClain, 8th Dist. Cuyahoga No. 103089, 2016-Ohio-705, ¶ 13. To
constitute an abuse of discretion, the trial court’s decision must be unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
B. Law and Analysis
{¶8} Campbell argues that the trial court abused its discretion in denying appellant’s
presentence motion to withdraw his plea of guilty. Crim.R. 32.1 reads: “A motion to
withdraw a plea of guilty or no contest may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his plea.” “[A]
presentence motion to withdraw a guilty plea should be freely and liberally granted.
Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw
a plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
McClain, at ¶ 13. “A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a plea.” State v. Bloom, 8th Dist. Cuyahoga No.
97535, 2012-Ohio-3805, ¶ 13.
{¶9} However,
“[e]ven though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. * * *” (Citations omitted.)
State v. Peterseim, 68 Ohio App.2d 211, 213-214, 428 N.E.2d 863 (8th Dist.1980).
{¶10} In determining whether the trial court abused its discretion by denying a
defendant’s motion to withdraw a plea, we consider the following factors: (1) whether the
accused was represented by competent counsel; (2) whether the accused was afforded a full
hearing pursuant to Crim.R. 11 before he entered the plea; (3) whether, after the motion to
withdraw was filed, the accused was given a complete and impartial hearing on the motion; and
(4) whether the record reveals that the court gave full and fair consideration to the plea
withdrawal request. Peterseim at paragraph three of the syllabus.
{¶11} A review of the record reveals that Campbell was represented by highly competent
counsel and that he was afforded a full hearing pursuant to Crim.R. 11 before Campbell entered
into his plea. The motion to withdraw was an oral motion to the court. After the trial court
was informed of Campbell’s request to withdraw his guilty plea, the court recognized that this
mere change of heart was because he was angry. The trial court afforded Campbell an
opportunity to speak with his attorneys.
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[Cite as State v. Campbell, 2018-Ohio-681.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105488
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEESHAWN T. CAMPBELL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-606590-A and CR-16-607843-A
BEFORE: Laster Mays, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: February 22, 2018 -i- ATTORNEY FOR APPELLANT
Britta M. Barthol P.O. Box 670218 Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Brian Radigan Kerry A. Sowul Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
ANITA LASTER MAYS, P.J.:
{¶1} Defendant-appellant, Deeshawn T. Campbell (“Campbell”), appeals his convictions
and sentence, and asks this court to vacate his convictions and remand to the trial court for
further proceedings. We affirm.
{¶2} Campbell was charged with committing criminal violations in two separate cases.
The state and Campbell entered into a plea agreement where Campbell pleaded guilty to various
counts in both cases for an aggregate sentence of 25 years. Campbell’s appeal of his guilty plea
only concerns the facts of one of the cases. For this reason, the facts recited here will focus only
on that case.1
{¶3} Campbell pleaded guilty to one count of involuntary manslaughter, a first-degree
felony, in violation of R.C. 2903.04, a three-year firearm specification on the involuntary
Cuyahoga C.P. No. CR-16-607843. 1 manslaughter count, and one count of felonious assault, a second-degree felony, in violation of
R.C. 2903.11(A)(1). He was sentenced to a total of 25 years in prison and received 180 days of
jail-time credit. He was also advised that he would be subject to a mandatory five-year period
of postrelease control upon his release from prison.
I. Facts
{¶4} On June 30, 2016, Campbell and the victim were inside a convenient store. The
store video monitor captured the confrontation between the two without sound. Campbell was
holding a bag, and the victim looked down into the bag. The victim reached for the bag and a
physical altercation ensued. Campbell ultimately shot the victim one time and he fled the store.
Campbell claimed that he asked the victim for change and the victim became aggressive with
him. Campbell stated that he thought the victim was trying to rob him, and Campbell shot him
because he was fearful for his life.
{¶5} Campbell entered into a plea agreement with the state. The trial court complied
with all of the Crim.R. 11 requirements. At the sentencing hearing, the trial court allowed the
victim’s mother and close friend to speak about the victim and the pain his death has caused
them. Campbell then informed his attorney that he wanted to withdraw his guilty plea because
he was upset with how the victim’s family recounted the facts in the case.
{¶6} The trial court asked Campbell if it was his intention to withdraw his guilty plea.
Campbell stated, “Yes, your Honor. I would like to withdraw my guilty plea. I would like to go
through with this. I would like the family — everyone to know the real situation that’s at hand.”
(Tr. 168.) The trial court responded, “Well, you can tell me that without withdrawing your
guilty plea.” (Tr. 168.) Then the trial court instructed Campbell to speak with his counsel.
After consulting with counsel, Campbell and his counsel stated that they were ready to proceed with the plea of guilty. However, Campbell wanted an opportunity to tell the court his version
of the events that led to the death of the victim. The court allowed Campbell to recite the facts
as he understood them. The court then proceeded with sentencing. Campbell filed this timely
appeal assigning one error for our review:
I. The trial court abused its discretion in denying appellant’s presentencing motion to withdraw his plea of guilty.
II. Withdrawal of Guilty Plea
A. Standard of Review
{¶7} “We review presentence motions to withdraw guilty pleas for an abuse of
discretion.” State v. McClain, 8th Dist. Cuyahoga No. 103089, 2016-Ohio-705, ¶ 13. To
constitute an abuse of discretion, the trial court’s decision must be unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
B. Law and Analysis
{¶8} Campbell argues that the trial court abused its discretion in denying appellant’s
presentence motion to withdraw his plea of guilty. Crim.R. 32.1 reads: “A motion to
withdraw a plea of guilty or no contest may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his plea.” “[A]
presentence motion to withdraw a guilty plea should be freely and liberally granted.
Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw
a plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
McClain, at ¶ 13. “A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a plea.” State v. Bloom, 8th Dist. Cuyahoga No.
97535, 2012-Ohio-3805, ¶ 13.
{¶9} However,
“[e]ven though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. * * *” (Citations omitted.)
State v. Peterseim, 68 Ohio App.2d 211, 213-214, 428 N.E.2d 863 (8th Dist.1980).
{¶10} In determining whether the trial court abused its discretion by denying a
defendant’s motion to withdraw a plea, we consider the following factors: (1) whether the
accused was represented by competent counsel; (2) whether the accused was afforded a full
hearing pursuant to Crim.R. 11 before he entered the plea; (3) whether, after the motion to
withdraw was filed, the accused was given a complete and impartial hearing on the motion; and
(4) whether the record reveals that the court gave full and fair consideration to the plea
withdrawal request. Peterseim at paragraph three of the syllabus.
{¶11} A review of the record reveals that Campbell was represented by highly competent
counsel and that he was afforded a full hearing pursuant to Crim.R. 11 before Campbell entered
into his plea. The motion to withdraw was an oral motion to the court. After the trial court
was informed of Campbell’s request to withdraw his guilty plea, the court recognized that this
mere change of heart was because he was angry. The trial court afforded Campbell an
opportunity to speak with his attorneys.
DEFENDANT: Yes, your Honor. I would like to withdraw my guilty plea. I would like to go through with this. I would like the family — everyone to know the real situation that’s at hand. COURT: Well, you can tell me that without withdrawing your guilty plea.
DEFENDANT: Yes, it’s true —
COURT: Why don’t you talk to [Counsel] and [Counsel] before you talk to me.
{¶12} After Campbell consulted with his attorneys, Campbell withdrew his motion to
withdraw his guilty plea with the request to just tell the facts as he saw them. The exchange
between the trial court, Campbell, and counsel went as follows:
COURT: [Counsel,] [Counsel,] have you had a chance to talk to your client?
COUNSEL: We’re ready to proceed, your Honor.
COUNSEL: Yes, your Honor. We’re going to proceed. Just so the court is aware, Mr. Campbell was somewhat upset by the second — was a witness — the person who addressed the court, he felt that some of the comments were —
COURT: Here, I can hear from Mr. Campbell. Mr. Campbell, why don’t you stand up. What would you like to say to me?
Thereafter, the trial court heard the facts as Campbell recalled them. The trial court continued
to engage Campbell regarding the facts and Campbell’s reasoning. At the conclusion of the
verbal exchange between Campbell and the trial court, the trial court reviewed the video of the
incident. Campbell was subsequently sentenced.
{¶13} Although Campbell had already withdrawn his motion to withdraw his guilty plea
and therefore, a Peterseim analysis would not have been applicable, the record reveals that the
trial court afforded Campbell a complete and impartial hearing on his motion. The record also
reveals that the trial court gave full and fair consideration to the request to withdraw. We find
that Campbell has not demonstrated that the trial court abused its discretion. {¶14} Therefore, Campbell’s sole assignment of error is overruled.
{¶15} Judgment is affirmed.
It is ordered that the 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 conviction having been affirmed,
any bail pending appeal is terminated.
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
FRANK D. CELEBREZZE, JR., J., and KATHLEEN ANN KEOUGH, J., CONCUR