[Cite as State v. Perry, 2012-Ohio-1354.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97154
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DONNELL PERRY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-537987, CR-538116, CR-538143, CR-538734, and CR-538735
BEFORE: Sweeney, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: March 29, 2012 ATTORNEY FOR APPELLANT
Thomas A. Rein, Esq. Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Scott Zarzycki, Esq. Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Donnell Perry (“defendant”) appeals the court’s denial
of his motion to withdraw guilty plea and his sentence of 39 years in prison. After
reviewing the facts of the case and pertinent law, we affirm.
{¶2} In June 2010, defendant was indicted for 25 criminal offenses in six cases.
On November 4, 2010, a plea agreement was reached and the court started, but did not
conclude, accepting defendant’s guilty plea to eight of the counts. The next day, the
court reconvened to continue the change of plea hearing. At that time, defendant
requested to withdraw his plea, stating that he wanted copies of various discovery
documents, such as witness and victim statements. In considering defendant’s request, the
court made defendant aware that “[t]he maximum penalty that could be received at trial
with all these cases is 188 and a half years,” and “[t]he maximum penalty that could be
imposed with the plea agreement is 43 and a half years.” Defendant stated that he wanted
to go to trial.
{¶3} Defense counsel requested, and the court ordered, a competency evaluation.
On December 20, 2010, defendant was found incompetent to stand trial and ordered to
Northcoast Behavioral Health Care for restoration. On March 30, 2011, the court held
another hearing and found that defendant had been restored to competency. On June 1,
2011, defendant pled guilty to three counts of burglary and one count each of aggravated
burglary, gross sexual imposition, abduction, and carrying a concealed weapon. {¶4} The court held a sentencing hearing on July 15, 2011; however, defendant
again requested to withdraw his guilty plea, alleging that while in jail he “stopped
receiving some of the medication that he takes for his mental illnesses,” and as a result, he
“was not thinking clearly at the time of the plea.”
{¶5} The court noted that the psychological reports regarding defendant’s
competency restoration concluded that defendant was not mentally ill. Rather, he had a
“fractured family history, * * * polysubstance dependence and borderline intellectual
functioning.” The reports also concluded that defendant was “feigning” any psychotic
symptoms and diagnosed defendant with “malingering.” Given this, the court denied
defendant’s motion to withdraw his guilty pleas.
{¶6} The court proceeded with sentencing, imposing an aggregate prison term of
39 years for defendant’s various convictions, including ongoing probation violations.
Immediately after the sentence was announced, defendant became belligerent and was
removed from the courtroom. The court reconvened three days later, on July 18, 2011, to
finish the sentencing hearing by notifying defendant of sexual offender registration
requirements and imposing postrelease control.
{¶7} Defendant appeals and raises two assignments of error for our review.
{¶8} I. “The trial court erred in not allowing Appellant to withdraw his guilty
plea prior to sentencing.”
{¶9} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1: 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.
{¶10} The general rule is that motions to withdraw guilty pleas before sentencing
are to be freely and liberally allowed. State v. Peterseim, 68 Ohio App.2d 211, 214, 428
N.E.2d 863 (8th Dist.1979), citing Barker v. United States, 579 F.2d 1219, 1223 (10th
Cir.1978). However, a defendant does not have an absolute right to withdraw a guilty plea
prior to sentencing. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). In ruling on a
presentence motion to withdraw a plea, the court must conduct a hearing and decide
whether there is a reasonable and legitimate basis for withdrawal of the plea. Id. at 527.
The decision to grant or deny such a motion is within the sound discretion of the trial
court. Id.
It is not an abuse of discretion to deny a presentence motion to withdraw a guilty plea when a defendant: (1) is represented by competent counsel; (2) is given a full Crim.R. 11 hearing before entering a plea; and (3) is given a hearing on the motion to withdraw that plea during which the court considers the defendant’s arguments in support of the motion. [(citation omitted.)] State v. Bridges, 8th Dist. No. 87633, 2006-Ohio-6280, ¶5. See also Peterseim at 214.
{¶11} In the instant case, defendant argues that the court erred when it denied his
second request to withdraw his plea on July 15, 2011. In denying defendant’s request,
the court took into consideration defendant’s argument that he did not understand the plea
because he was not given his medication. The court concluded, however, that this was
not a legitimate or reasonable basis to withdraw defendant’s plea. The court noted that defendant’s medical records indicated that he had been restored to competency and he had
“no evidence of mental illness.”
{¶12} Our review of the record shows that defendant was represented by
competent counsel throughout the proceedings. Additionally, defendant was given two
full Crim.R. 11 hearings, during which the court engaged in detailed discussions with
defendant about his rights and the charges he faced. The court went to great lengths to
ensure that defendant’s plea was made knowingly, voluntarily, and intelligently. The
court also conducted a hearing on defendant’s motion to withdraw his plea and noted that
during the plea hearing, the court asked defendant if he understood his rights and the
penalties he faced 54 times, and in each instance, defendant replied, “Yes.”
{¶13} Accordingly, we cannot say that the court abused its discretion in denying
defendant’s motion to withdraw his guilty pleas under the circumstances of this case.
Defendant’s first assignment of error is overruled.
{¶14} In defendant’s second assignment of error, he argues as follows:
{¶15} II. “Appellant is entitled to a de novo sentencing hearing as the court did
not properly impose a mandatory term or period of postrelease control at the sentencing
hearing.”
{¶16} Pursuant to the Ohio Supreme Court’s holding in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶29, “the new sentencing hearing to
which an offender is entitled [for failure to properly include postrelease control] is limited
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[Cite as State v. Perry, 2012-Ohio-1354.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97154
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DONNELL PERRY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-537987, CR-538116, CR-538143, CR-538734, and CR-538735
BEFORE: Sweeney, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: March 29, 2012 ATTORNEY FOR APPELLANT
Thomas A. Rein, Esq. Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Scott Zarzycki, Esq. Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Donnell Perry (“defendant”) appeals the court’s denial
of his motion to withdraw guilty plea and his sentence of 39 years in prison. After
reviewing the facts of the case and pertinent law, we affirm.
{¶2} In June 2010, defendant was indicted for 25 criminal offenses in six cases.
On November 4, 2010, a plea agreement was reached and the court started, but did not
conclude, accepting defendant’s guilty plea to eight of the counts. The next day, the
court reconvened to continue the change of plea hearing. At that time, defendant
requested to withdraw his plea, stating that he wanted copies of various discovery
documents, such as witness and victim statements. In considering defendant’s request, the
court made defendant aware that “[t]he maximum penalty that could be received at trial
with all these cases is 188 and a half years,” and “[t]he maximum penalty that could be
imposed with the plea agreement is 43 and a half years.” Defendant stated that he wanted
to go to trial.
{¶3} Defense counsel requested, and the court ordered, a competency evaluation.
On December 20, 2010, defendant was found incompetent to stand trial and ordered to
Northcoast Behavioral Health Care for restoration. On March 30, 2011, the court held
another hearing and found that defendant had been restored to competency. On June 1,
2011, defendant pled guilty to three counts of burglary and one count each of aggravated
burglary, gross sexual imposition, abduction, and carrying a concealed weapon. {¶4} The court held a sentencing hearing on July 15, 2011; however, defendant
again requested to withdraw his guilty plea, alleging that while in jail he “stopped
receiving some of the medication that he takes for his mental illnesses,” and as a result, he
“was not thinking clearly at the time of the plea.”
{¶5} The court noted that the psychological reports regarding defendant’s
competency restoration concluded that defendant was not mentally ill. Rather, he had a
“fractured family history, * * * polysubstance dependence and borderline intellectual
functioning.” The reports also concluded that defendant was “feigning” any psychotic
symptoms and diagnosed defendant with “malingering.” Given this, the court denied
defendant’s motion to withdraw his guilty pleas.
{¶6} The court proceeded with sentencing, imposing an aggregate prison term of
39 years for defendant’s various convictions, including ongoing probation violations.
Immediately after the sentence was announced, defendant became belligerent and was
removed from the courtroom. The court reconvened three days later, on July 18, 2011, to
finish the sentencing hearing by notifying defendant of sexual offender registration
requirements and imposing postrelease control.
{¶7} Defendant appeals and raises two assignments of error for our review.
{¶8} I. “The trial court erred in not allowing Appellant to withdraw his guilty
plea prior to sentencing.”
{¶9} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1: 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.
{¶10} The general rule is that motions to withdraw guilty pleas before sentencing
are to be freely and liberally allowed. State v. Peterseim, 68 Ohio App.2d 211, 214, 428
N.E.2d 863 (8th Dist.1979), citing Barker v. United States, 579 F.2d 1219, 1223 (10th
Cir.1978). However, a defendant does not have an absolute right to withdraw a guilty plea
prior to sentencing. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). In ruling on a
presentence motion to withdraw a plea, the court must conduct a hearing and decide
whether there is a reasonable and legitimate basis for withdrawal of the plea. Id. at 527.
The decision to grant or deny such a motion is within the sound discretion of the trial
court. Id.
It is not an abuse of discretion to deny a presentence motion to withdraw a guilty plea when a defendant: (1) is represented by competent counsel; (2) is given a full Crim.R. 11 hearing before entering a plea; and (3) is given a hearing on the motion to withdraw that plea during which the court considers the defendant’s arguments in support of the motion. [(citation omitted.)] State v. Bridges, 8th Dist. No. 87633, 2006-Ohio-6280, ¶5. See also Peterseim at 214.
{¶11} In the instant case, defendant argues that the court erred when it denied his
second request to withdraw his plea on July 15, 2011. In denying defendant’s request,
the court took into consideration defendant’s argument that he did not understand the plea
because he was not given his medication. The court concluded, however, that this was
not a legitimate or reasonable basis to withdraw defendant’s plea. The court noted that defendant’s medical records indicated that he had been restored to competency and he had
“no evidence of mental illness.”
{¶12} Our review of the record shows that defendant was represented by
competent counsel throughout the proceedings. Additionally, defendant was given two
full Crim.R. 11 hearings, during which the court engaged in detailed discussions with
defendant about his rights and the charges he faced. The court went to great lengths to
ensure that defendant’s plea was made knowingly, voluntarily, and intelligently. The
court also conducted a hearing on defendant’s motion to withdraw his plea and noted that
during the plea hearing, the court asked defendant if he understood his rights and the
penalties he faced 54 times, and in each instance, defendant replied, “Yes.”
{¶13} Accordingly, we cannot say that the court abused its discretion in denying
defendant’s motion to withdraw his guilty pleas under the circumstances of this case.
Defendant’s first assignment of error is overruled.
{¶14} In defendant’s second assignment of error, he argues as follows:
{¶15} II. “Appellant is entitled to a de novo sentencing hearing as the court did
not properly impose a mandatory term or period of postrelease control at the sentencing
hearing.”
{¶16} Pursuant to the Ohio Supreme Court’s holding in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶29, “the new sentencing hearing to
which an offender is entitled [for failure to properly include postrelease control] is limited
to proper imposition of postrelease control.” See also R.C. 2929.191. {¶17} In the instant case, defendant argues that the court failed to inform him
during his sentencing hearing that, upon his release from prison, postrelease control is
mandatory. Our review of the record, however, shows otherwise. At defendant’s
second sentencing hearing on July 18, 2011, the court stated the following to defendant: “I
would like to further advise you that upon release from prison, you would be placed on
post-release control supervision for five years.”
{¶18} The case at hand is similar to State v. Taylor, 8th Dist. No. 95339,
2011-Ohio-2150, ¶31, in which this court found that the word “‘[w]ill’ is mandatory
language and is not stated in permissive terms.” In Taylor, the court’s statement that
defendant “will” face postrelease control “clearly informed [the defendant] that he would
be subject to a mandatory term of postrelease control.” Id. at ¶28. We find the same
analysis applies to the court’s use of the word “would” in the instant case.
{¶19} Accordingly, we find no error in the court’s imposition of postrelease
control and defendant’s second assignment of error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s 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.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and COLLEEN CONWAY COONEY, J., CONCUR