[Cite as State v. Peak, 2019-Ohio-2569.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107479 v. :
JAMES A. PEAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 27, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-613638-A and CR-17-619586-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee.
The Law Offices of Eric L. Foster, Eric L. Foster, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant James Peak appeals from the trial court’s
judgment denying his motion to withdraw his guilty plea and the imposition of consecutive sentences. For the following reasons, we affirm the trial court’s denial
of the motion to withdraw Peak’s guilty plea and affirm the consecutive sentences.
Procedural History and Substantive Facts
In 2007, Peak pleaded guilty to two counts of sexual battery and one
count of abduction in Cuyahoga C.P. No. CR-04-458380-A. After accepting his
guilty plea and finding Peak guilty, the court determined that Peak was a sexual
predator, which subjected him to certain reporting requirements, and sentenced
Peak to a total of two years’ incarceration.1
In February 2017, Peak was charged with failure to provide notice of
change of address in violation of R.C. 2950.05(E)(1), a felony of the third degree, as
a result of his registration requirement from his conviction in 2007. In July 2017,
Peak was charged with “failure to verify address” in violation of R.C. 2950.06(F), a
felony of the third degree, also alleging a registration requirement from his 2007
conviction. Both indictments contained a furthermore specification that Peak had
previously pleaded guilty to or been convicted of a similar crime in September 2014
(in Cuyahoga C.P. No. CR-14-584726-A).
In February 2018, the court held a plea hearing during which the state
offered to amend the two charges to felonies of the fourth degree: “attempted failure
to provide notice of change of address” and “failure to verify address.” Following the
1 Peak was sentenced under former R.C. Chapter 2950.01, et seq., codified under H.B. 180 and known as “Megan’s Law.” See State v. Peak, 8th Dist. Cuyahoga No. 90255, ¶ 13. Megan’s Law required a sexual predator to register and verify his or her residential address every 90 days for life. Former R.C. 2950.07(B)(1) and 2950.06(B)(1). hearing, Peak pleaded guilty to the amended indictments, and the court scheduled
the matter for sentencing.
In March 2018, the trial court held the sentencing hearing. Prior to
sentencing, however, Peak requested to withdraw his guilty plea. After engaging in
a dialogue with Peak and his counsel regarding Peak’s oral request to withdraw his
plea, the trial court denied the motion and imposed sentence. The court sentenced
Peak to 18 months in prison on each count. The counts were to be served
concurrently. After additional dialogue with Peak, the trial court ordered the
sentence to be served consecutively and it made consecutive-sentence findings.
Peak now appeals, assigning the following errors for our review:
I. The trial court erred by refusing to allow James Peak to withdraw his guilty plea prior to sentencing. II. The trial court erred by imposing consecutive sentences where the record fails to support them.
Motion to Withdraw Guilty Plea
In his first assignment of error, Peak contends that the trial court
erred when it denied his motion to withdraw his presentence guilty plea. In support,
he argues that the trial court failed to provide a full hearing on his motion to
withdraw and failed to give full and fair consideration to his request.
Crim.R. 32.1 governs withdrawals of guilty pleas and provides 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.” Generally, a presentence motion to withdraw a guilty plea should be freely
and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
It is well established, however, that a “defendant does not have an absolute right to
withdraw a guilty plea prior to sentencing. Therefore, a trial court must conduct a
hearing in order to determine whether there is a reasonable and legitimate basis for
the withdrawal of the plea.” Id.
The decision whether to grant or deny a motion to withdraw a guilty
plea is entirely within the sound discretion of the trial court, and we will not alter
the trial court’s decision absent a showing of an abuse of that discretion. Xie at
paragraph two of the syllabus; State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d
863 (8th Dist.1980), paragraph two of the syllabus. “‘[U]nless it is shown that the
trial court acted unjustly or unfairly, there is no abuse of discretion.’” Peterseim at
213-214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).
A trial court does not abuse its discretion in denying a motion to
withdraw a guilty plea where the following occurs: (1) the accused is represented by
competent counsel; (2) 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) the record
reflects that the court gave full and fair consideration to the plea-withdrawal
request. Peterseim at paragraph three of the syllabus; State v. King, 8th Dist.
Cuyahoga No. 106709, 2018-Ohio-4780, ¶ 13. Additional factors this court has
considered include whether the motion was made in a reasonable time; whether the motion states specific reasons for withdrawal; whether the accused understood the
nature of the charges and the possible penalties; and whether the accused was
perhaps not guilty or had a complete defense. King at ¶ 14, citing State v. Benson,
8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
Here, Peak concedes that he was represented by competent counsel.
He also concedes that he was afforded a full Crim.R. 11 hearing. Indeed, the record
reflects that the court engaged in a full Crim.R. 11 plea colloquy before Peak entered
his plea. During the plea hearing, the court advised Peak of the effect of his plea, the
nature of the charges, the potential penalties he faced, and the constitutional rights
he was waiving by pleading guilty. Peak repeatedly indicated that he understood the
court’s advisements and he was in fact guilty. Additionally, Peak confirmed that no
threats or promises were made in exchange for his guilty plea, and at no time did
Peak express confusion during the hearing or that he misunderstood the court’s
advisements. A trial court’s adherence to Crim.R. 11 raises a presumption that a plea
is voluntarily entered. State v. McKissick, 8th Dist. Cuyahoga No. 105607, 2018-
Ohio-282, ¶ 23.
Peak contends, however, that the trial court failed to provide him a
complete hearing on his motion to withdraw and failed to fully consider his request.
Specifically, Peak argues that the court routinely interrupted him and did not
consider his claim of innocence. He also argues that rather than addressing his
concerns, the court “continued to defend its compliance with Crim.R. 11.” The scope of a hearing on a motion to withdraw should reflect the
substantive merits of the motion. State v. Robinson, 8th Dist. Cuyahoga No. 89651,
2008-Ohio-4866, ¶ 25, 26. “‘[B]old assertions without evidentiary support simply
should not merit the type of scrutiny that substantiated allegations would merit.’”
Id., quoting State v. Smith, 8th Dist. Cuyahoga No. 61464, 1992 Ohio App. LEXIS
6259, 14 (Dec. 10, 1992). Therefore, where a defendant fails to make a prima facie
showing of merit, the trial court need not “devote considerable time to” his or her
request to withdraw. Smith at 14. Further, the scope of the hearing is within the
sound discretion of the trial court, subject to this court’s review for an abuse of
discretion. State v. Farkosh, 8th Dist. Cuyahoga No. 102393, 2015-Ohio-3588, ¶ 9,
citing Xie, 62 Ohio St.3d at 526, 584 N.E.2d 715 (1992). “This approach strikes a fair
balance between fairness for an accused and preservation of judicial resources.”
Smith at 15.
Importantly, where an individual claims he or she is innocent, “‘the
trial judge must determine whether the claim is anything more than the defendant’s
change of heart about the plea agreement.’” State v. Minifee, 8th Dist. Cuyahoga
No. 99202, 2013-Ohio-3146, ¶ 27, quoting State v. Kramer, 7th Dist. Mahoning No.
01-CA-107, 2002-Ohio-4176, ¶ 58. And this court has repeatedly held that a change
of heart regarding a guilty plea and the possible sentence is insufficient justification
for withdrawal of a guilty plea. State v. Norman, 8th Dist. Cuyahoga No. 105218,
2018-Ohio-2929, ¶ 20; McKissick, 8th Dist. Cuyahoga No. 105607, 2018-Ohio-282, at ¶ 22; State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 7; State
v. Drake, 73 Ohio App.3d 640, 645, 598 N.E.2d 115 (8th Dist.1991).
Similarly, an individual’s claim of innocence is insufficient grounds
for vacating a plea that was voluntarily, knowingly, and intelligently entered.
Norman; McKissick; State v. Bloom, 8th Dist. Cuyahoga No. 97535, 2012-Ohio-
3805, ¶ 13; State v. Abdelhag, 8th Dist. Cuyahoga No. 71136, 1997 Ohio App. LEXIS
3394, 11 (July 31, 1997). “By inference, all defendants who request a withdrawal of
their guilty plea do so based upon some claim of innocence.” Abdelhag at 11.
Here, at the onset of the sentencing hearing, Peak requested a
moment to speak to his attorney. Shortly thereafter, through counsel, Peak
requested to withdraw his guilty plea. Defense counsel informed the court that Peak
“is claiming that he didn’t understand the penalties for this particular charge as well
as the fact that he would be found guilty and may be sentenced with an F-4.” Counsel
further stated that Peak “believes he is innocent and does not wish to enter a guilty
plea.”
The record reflects that in response to Peak’s oral motion to withdraw
his plea, the court engaged in a fairly extensive dialogue with Peak, where, contrary
to the defendant’s contention of continued interruptions, the court purportedly
interrupted Peak only twice, thus allowing him to explain his present position.
During the exchange, the court reminded Peak that it reviewed with him his rights
and penalties before accepting his guilty plea, and the court then permitted Peak to
explain his reasons for wishing to withdraw. Peak replied that he had been “copping out” on the failures to register, and he told the court that “there is nowhere for me
to go out there in society * * * I’m trying to make an effort to go forward in life and
here it is —.”
At this point, the court advised Peak that “that doesn’t have anything
to do with you pleading guilty” and it reminded Peak that he has eight prior
convictions for failing to register and the court reviewed with him the constitutional
and trial rights he was waiving. Thereafter, Peak stated that he “didn’t even know it
was that many and that’s my point.” The court then stated once again that at the
time of the plea, Peak indicated that he understood his rights and he did not indicate
that he was confused:
You understood it when I reviewed with you your constitutional rights. You understood. You never said to me that you didn’t understand. You never said to me you were confused. You never stated that you had a question. I asked you do you understand and you said yes.
***
You never expressed one time not even minutely that you didn’t understand. You said to me I understand what you said.
In response, Peak conceded that he did in fact understand his rights
as advised in the plea hearing. He then stated, “So I mean I’m not disputing that
when I copped out about the laws, okay? I’m just saying that I had a change of
heart.”
Peak then explained to the court that “maybe if I go to trial, * * * then
there would maybe be a difference * * * of me being possibly innocent.” The court
reminded Peak that he already said he was not innocent, and Peak conceded this fact. At this point, defense counsel proceeded to explain the “facts of the case,”
stating that “[a]t the time * * * [Peak] was staying for a period of time at Lakeside
homeless shelter until he was kicked out of that particular location.” Peak stated
that he tried to return to the shelter but “they wouldn’t take me * * * because of the
sex offense.” The court noted that he was not kicked out of the shelter because of
his prior sex offense, as evidenced by the shelter accepting him in the first instance.
Defense counsel explained that “there was an argument.” The court then denied
Peak’s motion.
On this record, we find that the trial court gave Peak’s motion the
consideration it merited. The trial court gave Peak an opportunity to elaborate on
the basis for his motion. Peak’s motion, however, was based upon unsupported
claims of innocence, where Peak in fact acknowledged that he had a change of heart.
Moreover, Peak conceded on appeal that the court engaged in a full Crim.R. 11
hearing. Additionally, he acknowledged at the hearing on his motion to withdraw
that he understood the court’s advisements made at the plea hearing and he did in
fact inform the court during the plea hearing that he was guilty of the offenses with
which he was charged. The trial court, therefore, did not abuse its discretion in
denying Peak’s motion to withdraw his guilty plea.
Peak’s first assignment of error is overruled. Consecutive Sentences
In Peak’s second assignment of error, he challenges the imposition of
consecutive sentences, arguing that the record does not support consecutive
sentences.
Standard of Review
In reviewing felony sentences, we apply the standard of review set
forth in R.C. 2953.08(G)(2). State v. Wright, 8th Dist. Cuyahoga No. 106175, 2018-
Ohio-965, ¶ 9; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or
otherwise modify a sentence, or vacate a sentence and remand for resentencing, if it
“clearly and convincingly finds” that the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4) or the sentence is contrary to law. A
sentence is “contrary to law” if (1) the sentence falls outside the statutory range for
the particular degree of offense, or (2) the trial court failed to consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors in R.C. 2929.12. State v. Morgan, 8th Dist. Cuyahoga No. 105682, 2018-
Ohio-1834, ¶ 14; State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926,
¶ 58.
The appellate review of consecutive sentences set forth in
R.C. 2953.08(G)(2) is an “extremely deferential” standard of review. State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453 ¶ 21 (8th Dist.). An “‘appellate court’s standard for
review is not whether the sentencing court abused its discretion.’ As a practical consideration, this means that appellate courts are prohibited from substituting
their judgment for that of the trial judge.” Id. at ¶ 20, quoting R.C. 2953.08(G)(2).
Thus, the court of appeals “must clearly and convincingly find that the record does
not support the court’s findings.” Id. at ¶ 21.
When examining whether the “record” supports the trial court’s
finding, R.C. 2953.08(G)(2) is broadly worded to “encompass all of the proceedings
before the court, not just the sentencing” and support for consecutive findings “may
appear anywhere in the ‘record’ and not just at the time the court imposes
consecutive sentences.” Id. at ¶ 22.
R.C. 2929.14(C)(4) provides that the trial court must find that
consecutive sentences are necessary to protect the public from future crime or to
punish the offender, that such sentences would not be disproportionate to the
seriousness of the conduct and to the danger the offender poses to the public, and
that one of the following applies:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Compliance with R.C. 2929.14(C)(4) requires the trial court to make
the statutory findings prior to imposing consecutive sentences, meaning that “‘the
[trial] court must note that it engaged in the analysis’ and that it ‘has considered the
statutory criteria and specifie[d] which of the given bases warrants its decision.’”
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting
State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). However, a trial
court is not required “to give reasons supporting its decision to impose consecutive
sentences.” Id. at ¶ 27. In fact, a trial court is not required to give a verbatim
recitation of the language of R.C. 2929.14(C), provided that “the reviewing court can
discern that the trial court engaged in the correct analysis and can determine that
the record contains evidence to support the findings.” Id. at ¶ 29; State v. Wilson,
8th Dist. Cuyahoga No. 107313, 2019-Ohio-1245, ¶ 17.
Here, the trial court sentenced Peak to 18 months in prison on each
count. After advising Peak of his sentence, the court informed Peak of the possibility
of postrelease control and the consequences of violating community control
sanctions. When the court asked Peak if he understood, Peak, stated, “I’m so tired
of this, man.” The court inquired again if Peak understood, to which he replied
again, “I’m so tired of this, man.” At this point, the following exchange occurred:
Court: Do you understand what I just read to you? Peak: I am tired. Court: Okay. That’s good. Maybe you won’t commit no more crimes, but do you understand that? Peak: What crime am I committing? What crime am I committing? Court: Do you understand that? Peak: I go to church out there and everything. Court [presumably to the deputies]: Take him back. Peak: What crime am I committing? Court: Go. Peak: No. I’m being convicted over and over again for being a sex offender. Court: Um-hum. Peak: Um-hum. What do you mean? What crime have I committed?
The court then ordered Peak’s sentence to be imposed consecutively
and had him brought back before the court stating, “Make his sentence consecutive.”
At this point, the trial court made consecutive sentence findings, including that
consecutive sentences are necessary to punish the offender, they are not
disproportionate to the danger the offenses pose to the public, and Peak’s history of
criminal conduct demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender. When the court had finished, Peak
asked, “Does that make you proud?” The court responded with “Good-bye” and
“Um-hum.”
Peak argues that the court’s imposition of consecutive sentences was
a “penalty” for expressing his frustration when he questioned the trial court’s
sentence. He also argues that the record, including his conduct after imposition of
the initial sentence, does not support consecutive sentences.
The state contends, however, that the trial court was within its
discretion to impose consecutive sentences. In support, the state asserts that the
underlying convictions are Peak’s seventh and eighth time committing this same kind of offense and, based upon Peak’s lengthy history of recidivism, the trial court
reasonably concluded that consecutive sentences were necessary to protect the
public from future crime and they were not disproportionate to the seriousness of
the offense and the danger Peak poses to the public. Additionally, the state argues
that the trial court could have reasonably determined that Peak’s “disrespectful”
conduct after the court’s initial imposition of sentence demonstrated lack of genuine
remorse, which is a sentencing factor under R.C. 2929.12. Finally, the state contends
that the trial court’s modification of its original sentence was proper because the
concurrent sentence had not yet been journalized.
It is well-settled that a trial court cannot reconsider its own final
determinations. State v. Wright, 8th Dist. Cuyahoga No. 107213, 2019-Ohio-1361,
¶ 16, citing State v. Wilson, 8th Dist. Cuyahoga No. 105535, 2017-Ohio-8068, ¶ 24,
citing State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671. In a
criminal case, a sentence is final upon issuance of a final order. Carlisle at ¶ 11. And
a journal entry is a final order of sentence where the judgment entry of conviction
includes “‘(1) the fact of the conviction, (2) the sentence, (3) the judge’s signature,
and (4) the time stamp indicating the entry upon the journal by the clerk.’” State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14; Crim.R. 32.
Therefore, if a sentence has not been journalized, a trial court may modify an orally
pronounced sentence. State v. Wright at ¶ 16; State v. Mathis, 8th Dist. Cuyahoga
No. 100342, 2014-Ohio-1841 (increased penalty after outburst with court during
sentencing); Brook Park v. Necak, 30 Ohio App.3d 118, 119, 506 N.E.2d 936 (8th Dist.1986), citing Columbus v. Messer, 7 Ohio App.3d 266, 455 N.E.2d 519 (10th
Dist. 1982) (“The courts can increase sentences when they do not purport to be
final.”); see also Beatty v. Alston, 43 Ohio St.2d 126, 330 N.E.2d 921 (1975) (trial
court could increase sentence). “Ordinarily, appellate courts defer to trial courts’
broad discretion in making sentencing decisions.” State v. Rahab, 150 Ohio St.3d
152, 2017-Ohio-1401, 80 N.E.2d 431, ¶ 10, citing Wasman v. United States, 468 U.S.
559, 563-564, 104 S. Ct. 3217, 82 L.Ed.2d 424 (1984). The issue on appeal is whether
the record does not “clearly and convincingly” support the court’s findings pursuant
to R.C. 2929.14(C).
Here, the trial court appears to initially impose two 18-month prison
terms concurrently, and after Peak’s additional comments, it ordered the sentences
to be served consecutively. As previously noted, when imposing a consecutive
sentence, trial courts must make the statutorily mandated findings.
R.C. 2929.14(C)(4); Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
at ¶ 26. And “as long as the reviewing court can discern that the trial court engaged
in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
Peak does not argue that the trial court failed to make the
R.C. 2929.14(C) findings. Indeed, the record reflects that the court stated that
“consecutive sentences are necessary to punish the offender * * * [, they] are not
disproportionate to the danger the offenses pose to the public, [and] the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime by the offender.”
Peak argues, however, that the record does not clearly and
convincingly support the trial court’s imposition of consecutive sentences. We do
not agree.
The trial court did not state reasons to support the court’s decision to
impose consecutive sentences, nor is the court required to per Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. However, after a complete review of the
record, we cannot “clearly and convincingly” find that the record does not support
consecutive-sentence findings. Peak has a history of criminal conduct. He is a
sexual predator required to comply with Ohio statutory reporting requirements.
The presentence investigation report (“PSI”) revealed convictions for sexual battery
and abduction, child endangering, grand theft of a motor vehicle, domestic violence,
and failing to comply with the sexual-predatory-reporting requirements on at least
six prior occasions. His history of criminal conduct combined with his conduct
toward the court at the sentencing hearing arguably support the court findings that
consecutive sentences are necessary to punish the offender, the consecutive 18-
month sentences are not disproportionate to the danger the offender poses to the
public, and are necessary to protect the public from future crime. The trial court did
not provide reasons for her initial sentence implying concurrent sentences, and we
cannot speculate whether the court was initially inclined to issue a more lenient
sentence and changed her mind. However, the law is well settled that a criminal sentence is not final until it is journalized. Until then, it is within a trial court’s
discretion to modify consecutive-sentence findings supported by the record.
In light of the above, we clearly and convincingly find that the record
supports the sentencing court’s findings under R.C. 2929.14(C)(4). We, therefore,
affirm Peak’s consecutive sentences.
Peak’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of 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. 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.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and RAYMOND C. HEADEN, J., CONCUR