State v. Johnson

• Court: Ohio Court of Appeals
• Writing for the Court: DORRIAN, P.J.
• Citation: State v. Johnson, 2016 Ohio 8494, 79 N.E.3d 1202 (Ohio App. 2016)
• Decision Date: 29 December 2016
• Docket Number: No. 15AP–946.,15AP–946.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Trevelyn S. JOHNSON, Defendant–Appellant.

79 N.E.3d 1202

2016 Ohio 8494

STATE of Ohio, Plaintiff–Appellee,

v.Trevelyn S. JOHNSON, Defendant–Appellant.

No. 15AP–946.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 29, 2016.

On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Argued: Laura R. Swisher.

On brief: Moore & Yaklevich, and W. Jeffrey Moore, for appellant. Argued: W. Jeffrey Moore.

DORRIAN, P.J.

{¶ 1} Defendant-appellant, Trevelyn S. Johnson, appeals from a judgment of the Franklin County Court of Common Pleas sentencing him to a six-year prison term pursuant to a guilty plea entered by appellant. Because we conclude the trial court did not abuse its discretion by denying appellant's presentence motion to withdraw his plea and that the sentence is supported by the record and not clearly and convincingly contrary to law, we affirm.

I. Facts and Procedural History

{¶ 2} Appellant was indicted on one count of felonious assault, a second-degree felony, in violation of R.C. 2903.11, and one count of domestic violence, a first-degree misdemeanor, in violation of R.C. 2919.25. Appellant initially pled not guilty and gave notice of his intention to assert various affirmative defenses, including self-defense, duress, and necessity. A trial was ultimately set for July 13, 2015. On the day that trial was set to begin, appellant entered into a plea agreement whereby he entered an Alford¹ plea of guilty to one count of felonious assault, a second-degree felony, in violation of R.C. 2903.11, and plaintiff-appellee, State of Ohio, dismissed the misdemeanor domestic violence charge. Pursuant to the guilty plea, the trial court ordered a sentencing hearing for September 16, 2015.

{¶ 3} At the beginning of the sentencing hearing, appellant moved to withdraw his guilty plea. In support of the motion, appellant's counsel expressed concern about the victim's supporters filling the courtroom and the court's ability to be fair and impartial in imposing a sentence. Appellant's counsel also asserted that appellant had defenses to the charges against him. The prosecutor opposed the motion to withdraw, arguing it was a delay tactic. After hearing arguments from appellant's counsel and the prosecutor, the trial court denied the motion to withdraw the plea and proceeded with the sentencing hearing. The trial court took statements from the prosecutor, the victim, the victim's daughter, appellant's counsel, and appellant, before imposing a sentence of six years of imprisonment and a mandatory period of three years of postrelease control.²

II. Assignments of Error

{¶ 4} Appellant appeals and assigns the following two assignments of error for our review:

[I.] The trial court committed error by refusing to allow Mr. Johnson to withdraw his plea without a hearing.

[II.] The trial court erred in sentencing Mr. Johnson to six (6) years in prison.

III. Discussion

{¶ 5} In his first assignment of error, appellant asserts the trial court erred by denying his presentence motion to withdraw his guilty plea. Under Crim.R. 32.1, a criminal defendant may move to withdraw a guilty or no contest plea before sentence is imposed. 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). See also State v. Zimmerman, 10th Dist. No. 09AP–866, 2010-Ohio-4087, 2010 WL 3405746, ¶ 11. However, a defendant "does not have an absolute right to withdraw a plea prior to sentencing." Xie at 527, 584 N.E.2d 715. "[T]he trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id.

{¶ 6} A trial court's decision on a presentence motion to withdraw a plea is subject to review for abuse of discretion. Xie at paragraph two of the syllabus; Zimmerman at ¶ 12. An abuse of discretion occurs where a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We consider a number of non-exhaustive factors in determining whether a trial court abused its discretion by denying a presentence motion to withdraw, including: " ‘(1) whether the prosecution would be prejudiced if the plea were vacated; (2) whether the offender was represented by highly competent counsel; (3) the extent of the Crim.R. 11 hearing; (4) whether there was a full hearing on the motion to withdraw the offender's guilty plea; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the motion was made within a reasonable time; (7) whether the motion set forth specific reasons for the withdrawal; (8) whether the accused understood the nature of the charges and possible penalties; and (9) whether the accused was perhaps not guilty or had a complete defense to the crime.’ " Zimmerman at ¶ 13, quoting State v. Jones, 10th Dist. No. 09AP–700, 2010-Ohio-903, 2010 WL 866126, ¶ 10, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). Consideration of these factors is a balancing test, and no single factor is conclusive. Zimmerman at ¶ 13, citing Fish at 240, 661 N.E.2d 788.

{¶ 7} Appellant's primary argument addresses the fourth factor set forth under the case law—i.e., whether he received a "full hearing on the motion to withdraw" his plea. Id. Accordingly, we begin our evaluation of the balancing test with this factor. On the morning of the sentencing hearing, the following exchange occurred between appellant's counsel, the prosecutor, and the trial court:

The Court: We are on the record in 13CR–6671, State of Ohio versus Trevelyn Johnson.

[Appellant's counsel]: Okay. My client—

The Court: At the bench are counsel for the State, Ms. Chappelear, and defense counsel, Mr. Moore.

[Appellant's counsel]: Your Honor, for the record, my client has just—and I have not talked to him, spoken to him about this withdraw—stated he wishes to withdraw his plea. It was not my idea. I will tell this court in no uncertain terms I was—that's just what he told me. I'm not trying to delay anything.

I know that—I will put on the record that I have deep concerns about the victim drumming up a support group that's filled the courtroom and—but the Court has assured me that the Court will be fair and impartial in this case. I've told my client that, but he feels evidently he wishes to withdraw his plea. I don't know what to tell you.

The Court: Any response?

[Prosecutor]: I don't think there's any basis for him withdrawing his plea. He was fully informed of his rights and the consequences of entering his Alford plea at the time of the plea colloquy.

[Appellant's counsel]: I believe—

[Prosecutor]: It would seem to me that a last-minute change of heart in the face of his sentencing is disingenuous and merely a delay tactic.

[Appellant's counsel]: Your Honor, I believe my client does have a right to withdraw his plea previous to sentencing and I guess on his behalf I know I have to advocate that. It wasn't what I intended to do today, so I'm getting surprised more than once.

The Court: What—what basis are you advancing for the withdraw?

[Appellant's counsel]: He believes he has got—he as got defenses to this case, which he does. He also believes that he—at the very worst, he would get an aggravated assault in this case versus a felonious assault. That would change the amount of time he would get. Initially, his idea was that he was going to try to save Ms. Phipps and the Court a headache here because he believed he would get a fair shake, but he does not believe he's getting a fair shake. He doesn't believe what he's being—his side is being heard. He believes only one side is being heard and I guess I can understand that to an extent. I'm not accusing the Court of not taking this serious or hearing our side. I thought I pretty much laid our side out to you. As I say, this is coming as a shock to me, but that's his reasoning. I had not planned on this obviously because I threw a tantrum in your office about the sentencing.

[Prosecutor]: I—I don't think that Mr. Moore has articulated a valid reason for Mr. Johnson to withdraw his plea.

[Appellant's counsel]: Your Honor, I think he has valid defenses and he—

[Prosecutor]: He had those same defenses available to him when he entered his plea. Nothing has changed between when he entered his plea—

The Court: And at the plea hearing you stood by his side and noted that he knowingly, intelligently and voluntarily waived the rights that he had and entered into a guilty plea.

[Appellant's counsel]: I did, but he's had—

The Court: I have not heard a reasonable and legitimate basis to withdraw the plea presentencing. Under State v. Xio [sic], I'm going to deny the request and move forward with the sentencing hearing.

[Appellant's counsel]: Can you please note our objection for the record?

The Court: Sure. It's all on the record.

(Sept. 16, 2015 Tr. at 2–5.)

{¶ 8} Appellant argues the conference at the bench did not constitute a hearing, and, therefore, the trial court abused its discretion by denying the motion to withdraw without a hearing. This court has previously noted that a trial court inviting and hearing oral arguments on a motion to withdraw a guilty plea at a sentencing hearing may constitute a full and fair hearing. State v. Hairston, 10th Dist. No. 07AP–160, 2007-Ohio-5928, 2007 WL 3257331, ¶ 27. In Hairston, the defendant stated at sentencing that he wished to withdraw his plea. The trial court initially responded "[y]eah, the answer to that is no." Id. at ¶ 9. After the trial court's initial response, the defendant's counsel explained that defendant had expressed a desire to withdraw his plea after discussing the sentencing possibilities. Id. at ¶ 10. Although the defendant had not yet been sentenced, he had discussed the potential sentencing range with his counsel and asserted that he felt he should not receive that much jail time. Id. at ¶ 9–12. The trial court noted that an extensive discussion occurred at the plea...