[Cite as State v. Peacock, 2014-Ohio-1571.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-42
v.
RENELL R. PEACOCK, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0080
Judgment Affirmed
Date of Decision: April 14, 2014
APPEARANCES:
James W. Fruth for Appellant
Angela M. Boes for Appellee Case No. 13-13-42
SHAW, J.
{¶1} Defendant-appellant Renell R. Peacock (“Peacock”) appeals the
September 10, 2013 judgment entry of the Seneca County Common Pleas Court
sentencing Peacock to serve eleven months in prison after Peacock pled guilty to
Trafficking in Cocaine in violation of R.C. 2925.03(A)(1)/(C)(4)(b), a felony of
the fifth degree, Trafficking in Cocaine with the specifications that the offense
occurred within the vicinity of a juvenile and the amount of cocaine involved
equaled or exceeded five grams in violation of R.C. 2925.03(A)(1)/(C)(4)(b), a
felony of the third degree, and Possessing Criminal Tools in violation of R.C.
2923.24(A)/(C), a felony of the fifth degree. On appeal, Peacock challenges the
trial court’s denial of Peacock’s presentence motion to withdraw his guilty plea.
For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On April 19, 2012, Peacock was indicted for (Count 1) Trafficking in
Cocaine with the specification that the offense occurred within the vicinity of a
juvenile in violation of R.C. 2925.03(A)(1)/(C)(4)(b), a felony of the fourth
degree, (Count 2) Trafficking in Cocaine with the specification that the offense
occurred within the vicinity of a juvenile, and the specification that the amount of
cocaine involved equaled or exceeded five grams in violation of R.C.
2925.03(A)(1)/(C)(4)(b), a felony of the third degree, and (Count 3) Possessing
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Criminal Tools in violation of R.C. 2923.24(A)/(C), a felony of the fifth degree.
(Doc. 1).
{¶3} On April 25, 2012, Peacock was arraigned and pled not guilty to the
charges.
{¶4} On July 19, 2012, the case came on for a scheduled plea negotiation
hearing and no issues were resolved so the case was set for trial. (Doc. 20).
{¶5} Trial was scheduled to commence on September 6, 2012; however,
Peacock’s attorney filed a motion for continuance on August 6, 2012. (Doc. 21).
That motion was granted, and the trial was continued until November 8, 2012.
(Doc. 22).
{¶6} On October 31, 2012, Peacock entered a written waiver of his right to
a jury trial, electing to proceed with a bench trial. (Doc. 30).
{¶7} On November 8, 2012, the case came on for trial but had to be
continued by the court due to a scheduling conflict. (Doc. 38). Trial was
rescheduled for December 17, 2012. (Doc. 38).
{¶8} On December 4, 2012, Peacock’s counsel filed a motion to withdraw
as counsel, citing Peacock’s dissatisfaction with his representation in support.
(Doc. 46).
{¶9} On December 11, 2012, a hearing was held on Peacock’s counsel’s
motion to withdraw, and the motion was ultimately granted. Due to Peacock
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requiring new counsel and that counsel needing time to prepare, the December 17,
2012 trial date was continued.
{¶10} On April 11, 2013, the case came on for trial. Prior to the
commencement of the trial, Peacock expressed to the court that he wanted another
new attorney. The trial court denied Peacock’s request as the court had already
granted Peacock new counsel once, the State had all of its witnesses present and
the trial had been continued multiple times before. The court then took a recess
with the trial to begin immediately following the recess.
{¶11} During that recess, the State and Peacock negotiated a plea
agreement. When court resumed, Peacock withdrew his previously tendered pleas
of not guilty and pled guilty to the amended charge of (Count 1) Trafficking in
Cocaine without a specification in violation of R.C. 2925.03(A)(1)/(C)(4)(b), a
felony of the fifth degree, the charge as indicted in Count 2, Trafficking in
Cocaine with two specifications in violation of R.C. 2925.03(A)(1)/(C)(4)(b), a
felony of the third degree, and the charge as indicted in Count 3, Possessing
Criminal Tools in violation of R.C. 2923.24(A)/(C), a felony of the fifth degree.
{¶12} In exchange for Peacock’s guilty plea, the state agreed to jointly
recommend that Peacock serve nine months in prison on each conviction, to be
served concurrently with each other. The plea negotiations were all oral and put
on the record. There was no written plea agreement.
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{¶13} After hearing the plea negotiations, the court conducted a Criminal
Rule 11 plea colloquy with Peacock. At that time Peacock stated affirmatively,
inter alia, that he was entering the pleas voluntarily, and that he was satisfied with
his counsel. When the dialogue was completed and the court was satisfied that
Peacock entered his guilty pleas knowingly, intelligently and voluntarily, the court
accepted Peacock’s guilty pleas and entered findings of guilt. A presentence
investigation was ordered and sentencing was set for April 30, 2013.
{¶14} On April 30, 2013, the case came before the trial court for a
sentencing hearing at 2:00 p.m.; however, Peacock failed to appear. Peacock’s
attorney stated that he had spoken with Peacock on the morning of the hearing at
approximately 10 a.m., informing Peacock of his need to attend. (Apr. 30, 2013,
Tr. at 2). According to Peacock’s attorney, Peacock claimed he had not been
previously notified of the date of the sentencing hearing. (Id.) Peacock’s counsel
corroborated Peacock’s claim about potentially not being notified prior to counsel
calling Peacock on the morning of the sentencing hearing, as Peacock’s counsel
stated that the letter that he sent Peacock informing Peacock of the date of the
hearing was returned as having not been delivered. (Id. at 2-3).
{¶15} Peacock’s attorney stated that Peacock called him back at
approximately 10:30 a.m. on the date of the sentencing hearing and acknowledged
that he needed to be present, but stated he was having difficulty finding
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transportation. (Id.) Peacock’s attorney stated to the court that he told Peacock a
bench warrant would be issued if he did not appear for sentencing. (Id. at 3).
Peacock’s attorney stated that he had no further communication with Peacock.
(Id.)
{¶16} The court noted on the record that Peacock had failed to appear on
multiple occasions to complete his presentence investigation in this case. (Id. at
3). After Peacock ultimately failed to appear, a bench warrant was issued for
Peacock’s arrest. (Id.)
{¶17} On June 25, 2013, Peacock resurfaced after being arrested on the
bench warrant. At his bond hearing, Peacock told the court that he was not
notified of his sentencing hearing until the day of the hearing, and that he wanted
another attorney as Peacock claimed he was forced to negotiate his own plea deal.
Peacock was subsequently assigned a new attorney. Peacock’s sentencing hearing
was scheduled for July 16, 2013. (Doc. 70).
{¶18} On July 11, 2013, Peacock filed a motion to withdraw his guilty plea.
Peacock contended that he entered his plea under duress after his previous counsel
told him he was an “idiot” for not taking a deal offered by the State on the day of
trial. (Doc. 71). On July 15, 2013, the State filed a response. (Doc. 73).
{¶19} On July 16, 2013, the court converted Peacock’s previously
scheduled sentencing hearing to a hearing on Peacock’s motion to withdraw his
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guilty plea. At the hearing, Peacock took the stand and testified that he went into
court on April 11, 2013, expecting to go to trial. Peacock testified that prior to the
day of trial his attorney told him that he could “get [his charges] acquitted on
trial.” (Tr. at 6). According to Peacock, on the day of trial, his attorney told him
to “take a two year deal.” (Id.) Peacock testified that when he informed his
attorney that he did not feel comfortable taking the deal, his attorney called him an
“idiot for not taking it.” (Id.) Peacock testified that at that point, he did not trust
his attorney to represent him. (Id.) Peacock testified he was “forced to make a
plea bargain by [him]self basically.” (Id.)
{¶20} Peacock further testified that he then felt like he negotiated the plea
on his own, without counsel. (Tr. at 8-9). In addition, Peacock testified that he
told his counsel he would “do six months under duress. And [his counsel] came
back and said nine months, that is completely under duress.” (Tr. at 10). Peacock
testified that he “thought [he] had no other choice or had no other option.” (Id.)
{¶21} Following the State’s cross-examination of Peacock at the hearing,
the State called Detective Charles Boyer, who gave testimony regarding the
investigation that led to the charges against Peacock. This included the
introduction of video recordings of Peacock’s drug sales to a confidential
informant on two separate occasions. When the State finished its examination of
Detective Boyer, Peacock’s counsel asked for a continuance to allow more time to
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prepare a cross-examination of the detective. The hearing was continued until
August 20, 2013, where Peacock elected to represent himself, with his previous
counsel as stand-by counsel. Peacock then began cross-examining Detective
Boyer. Due to scheduling conflicts, the hearing did not conclude and was
continued into the next day, August 21, 2013, where Peacock’s cross-examination
of Detective Boyer was completed. After closing arguments by both parties, the
hearing concluded.
{¶22} On August 26, 2013, the court filed an entry denying Peacock’s
motion to withdraw his guilty plea. (Doc. 80). The trial court’s seven-page
judgment entry analyzed the appropriate factors to consider when deciding a
presentence motion to withdraw a guilty plea as explained by this Court in State v.
Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21. (Id.) In analyzing the
factors, the trial court was persuaded by the fact that there would be some
prejudice to the State as the lead investigator no longer worked in the area, and the
confidential informant was no longer being used. (Id.) The court also found
persuasive that it had held a full Criminal Rule 11 hearing with Peacock wherein
Peacock stated he was acting voluntarily and was satisfied with his attorney at that
time. (Id.) In addition, the court was persuaded by the “overwhelming” evidence
of Peacock’s guilt presented at the hearing on Peacock’s motion to withdraw his
pleas. (Id.)
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{¶23} On September 10, 2013, a sentencing hearing was held. At the
hearing, Peacock disputed the nature of the offenses of which he had pled guilty
to, so the court replayed the audio recording from the Criminal Rule 11 dialogue
the court held with Peacock previously. The State then recommended, contrary to
its earlier sentencing agreement, that the court impose an 11 month prison
sentence on Counts 1 and 3, and 24 months on Count 2, with all prison terms to be
served concurrently for an aggregate prison term of 24 months. The court did not
follow the State’s recommendation, however, and sentenced Peacock to 11 months
in prison as to Counts 1 and 3, and nine months in prison as to count 2, with all
terms to be served concurrently for an aggregate prison term of 11 months. In
deviating from the previously agreed sentencing recommendation, the court cited
Peacock’s failure to appear at sentencing and failure to contact the court in the
months that followed.
{¶24} A judgment entry memorializing Peacock’s sentence was filed that
same date, September 10, 2013. (Doc. 82). It is from this judgment that Peacock
appeals, asserting the following assignment of error for our review.
ASSIGNMENT OF ERROR THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA.
{¶25} In his assignment of error, Peacock contends that the trial court
abused its discretion in denying his motion to withdraw his guilty plea.
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Specifically, Peacock argues that when analyzing the nine factors a court is to
consider in determining whether to grant a motion to withdraw a guilty plea under
State v. Lane, supra, the factors weighed in favor of granting Peacock’s motion to
withdraw.
{¶26} Crim.R. 32.1 provides in pertinent part 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.” While the
general rule is that motions to withdraw guilty pleas, made before sentencing, are
to be freely granted, the right to withdraw a guilty plea is not absolute. State v.
Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. The trial court
must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea. Id. The decision to grant or deny a motion to
withdraw a guilty plea is within the sound discretion of the trial and will not be
disturbed on appeal, absent an abuse of discretion. Id. at paragraph two of the
syllabus. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶¶ 16-18
(2d Dist.).
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{¶27} There are several factors that have been delineated by this and other
courts to assist in our review of the trial court’s determination to grant or deny a
motion to withdraw a guilty plea, including: (1) whether the State will be
prejudiced by withdrawal; (2) the representation afforded to the defendant by
counsel; (3) the extent of the Crim.R. 11 hearing; (4) the extent of the hearing on
the motion to withdraw; (5) whether the trial court gave full and fair consideration
of the motion; (6) whether the timing of the motion was reasonable; (7) the
reasons for the motion; (8) whether the defendant understood the nature of the
charges and potential sentences; and (9) whether the accused was perhaps not
guilty or had a complete defense to the charge. State v. Lane, 3d Dist. No. 1-10-
10, 2010-Ohio-4819, ¶ 21, citing State v. Griffin, 7th Dist. Mahoning No. 00CA17,
2001-Ohio-3203; State v. Prince, 3d Dist. Auglaize No. 2-12-07, 2012-Ohio-4111,
¶ 22.
{¶28} In this case, Peacock entered his guilty pleas on April 11, 2013, the
day his case was scheduled for a bench trial. On that date, Peacock and his
attorney negotiated a plea wherein Peacock would plead guilty to an amended
version of the first count of the indictment and the remaining counts as indicted, in
exchange for a joint sentencing recommendation wherein Peacock would be
sentenced to a total of nine months in prison. The State explained those
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negotiations to the court and the court then engaged in a Criminal Rule 11
colloquy with Peacock, which contained the following dialogue.
THE COURT: I assume you can read and write the English language?
PEACOCK: Yes, sir.
THE COURT: More importantly, do you have any problems understanding what you read or hear?
PEACOCK: No, sir.
THE COURT: Are you now under the influence of any medication, drugs or alcohol?
THE COURT: Do you believe you can think clearly?
THE COURT: Now, think about the answer to this question. Are you satisfied with Mr. Stevens [Peacock’s attorney] representation?
***
[The court recites the various counts to which Peacock is pleading guilty to, and the maximum penalties. The court also recites the proposed joint sentencing recommendation.]
THE COURT: Is that your understanding of the proposed plea and the sentence recommendation in this case, Mr. Peacock?
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THE COURT: Do you understand that prison terms for multiple charges, even if consecutive sentences are not mandatory, may be imposed consecutively by the Court? * * *
[The court discusses potential fines, post release control, and community control].
THE COURT: Do you understand the nature of each of these charges and the possible defenses you may have?
PEACOCK: Yes.
THE COURT: Are you entering this plea, these pleas voluntarily and of your own free will?
THE COURT: Has anybody threatened you?
THE COURT: Any promises other than the sentence recommendation which we have already discussed?
THE COURT: Do you understand that by pleading guilty you’re giving up your right to a jury trial or a court trial which of course was scheduled for today?
THE COURT: At that trial, you have [the] right to be present, to be represented by counsel. And, if you could not afford counsel one would be appointed at state expense. Do you understand that?
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THE COURT: Do you understand that you’re giving up your right to confront and have your attorney question witnesses against you?
THE COURT: Do you understand that you do not have to call witnesses; however, if you need to call witnesses you are entitled to summon and have witnesses present to testify on your behalf? Do you understand this?
THE COURT: Do you understand that at that trial you would not have to take the witness stand, could not be forced to testify against yourself and that no one could comment if you chose not to testify?
THE COURT: Do you understand that you’re waiving your right to have the State of Ohio prove your guilt beyond a reasonable doubt on every element of each of the charges?
THE COURT: Do you understand that by pleading guilty you admit committing these offenses?
THE COURT: Do you understand your right to appeal a maximum sentence or sentences, your other limited appellate rights and that any appeal must be filed within 30 days of my sentence?
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THE COURT: And, again, are you entering these pleas voluntarily?
THE COURT: You’ve had enough time to think about it, speak with Mr. Stevens, family, friends, whomever?
THE COURT: And you’re sure this is the way that you want to go?
(Apr. 11, 2013 Tr. at 14-24). Following this dialogue, the court accepted
Peacock’s pleas and entered findings of guilt on all three counts.
{¶29} Looking at the factors we have outlined in Lane (and other similar
cases) in the past on the issue of whether a presentence motion to withdraw a
guilty plea should be granted, several factors weigh heavily against granting
Peacock’s motion. First and foremost, it is clear from the record that there was a
thorough Criminal Rule 11 hearing conducted on the date Peacock was originally
scheduled to have a trial. The trial court asked if Peacock was satisfied with his
representation, and asked multiple times if he was certain that he wanted to plead
guilty pursuant to the plea negotiations. Peacock also stated he understood the
charges to which he was pleading guilty and the accompanying maximum
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penalties. At no time during the Crim.R. 11 dialogue did Peacock express
reservations to the court about his decision or about his attorney.
{¶30} Second, the court held an extensive hearing on Peacock’s motion to
withdraw. The court held a hearing on three separate dates wherein Peacock gave
testimony and the State presented the testimony of Detective Charles Boyer who
was involved in the investigation of Peacock. In addition, the State entered
multiple exhibits into evidence including video recordings of the drug transactions
between Peacock and the confidential informant.
{¶31} Moreover, because of the extent of the hearing held on Peacock’s
motion to withdraw, Detective Boyer’s testimony and the exhibits presented
provided the court with overwhelming evidence of Peacock’s guilt. Peacock’s
claim of innocence (relevant for the ninth factor of Lane) seems to rely on
attacking one of the specifications to the Trafficking charges, namely that one of
the offenses did not occur in the vicinity of a juvenile. However, the State
removed that specification from the first count, and Detective Boyer specifically
testified on direct examination that there were children within a hundred feet of
the second recorded transaction, which correlated to the second count in the
indictment. (Jul. 16, 2013 Tr. at 29-30). Peacock’s only remaining claim at the
hearing toward his innocence seemed to be that he was not in the habit of selling
cocaine and just did it this time as a favor. However, the statute only requires a
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single instance. Thus Peacock was patently unable to establish that he had a
complete defense to the charges, and the record contained overwhelming evidence
of his guilt, including Peacock’s tacit admission that he sold the cocaine to the
confidential informant.
{¶32} The State was also able to demonstrate some prejudice to its case if
the plea was allowed to be withdrawn. Detective Boyer testified at the hearing on
the motion to withdraw that the lead detective in Peacock’s case no longer worked
in the area and that the confidential informant was that Detective’s informant.1
{¶33} Another factor weighing against Peacock’s motion is the “timing”
factor. Peacock contends his motion was timely because it was filed over a month
prior to when the sentencing hearing was ultimately held. However, in reality, the
motion was filed over two and a half months after the original sentencing date for
which Peacock failed to appear.2 In addition, the motion was only five days
before Peacock’s second sentencing hearing was scheduled to take place and that
sentencing hearing was converted into the beginning of Peacock’s hearing on his
motion to withdraw his guilty pleas.
1 The State also contended that it was prejudiced because the confidential informant no longer worked with law enforcement, having fulfilled his obligation, and that his name had been revealed. However, there was no testimony to support the State’s claims on this issue. 2 We understand that Peacock may not have been notified of his sentencing hearing until the morning of that actual hearing. However, Peacock acknowledged that morning his need to be present at the hearing and did not contact the court. He stayed out of contact with the court until he was ultimately arrested on the bench warrant that had been issued almost two months later.
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{¶34} On appeal, Peacock contends that the entire plea proceedings were
affected by Peacock’s counsel calling him an “idiot” prior to trial. Peacock argues
that his representation was thus deficient and that he only pled guilty because he
was under “duress” and felt like he had no other options. Despite all these claims
that were made after the fact, the court gave Peacock multiple chances to speak up
at his plea hearing and Peacock declined to do so. Peacock had admittedly entered
guilty pleas in the past and thus was familiar with the process. The only evidence
supporting Peacock’s claims are his self-serving statements, which directly
contradict the statements he made at the time he entered his plea. Peacock also
argues that he did not understand the nature of the charges and the potential
sentences, which is again contrary to his expressed language at the plea hearing.
{¶35} After having a full hearing on Peacock’s motion, the trial court filed
a thorough judgment entry denying Peacock’s motion, illustrating that the court
had given full and fair consideration to Peacock’s motion. Peacock’s contention
that the trial court did not give “full and fair” consideration is based on the fact
that Peacock disagrees with the trial court’s decision.
{¶36} Upon reviewing the record, there were clearly several factors that
weighed strongly against granting Peacock’s motion, and several others that
weighed against his motion as well. Under the facts and circumstances of this
case, we cannot find that the trial court abused its discretion in denying Peacock’s
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motion to withdraw his guilty plea. Accordingly, Peacock’s assignment of error is
overruled.
{¶37} For the foregoing reasons Peacock’s assignment of error is overruled
and the judgment of the Seneca County Common Pleas Court is affirmed.
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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