COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68129 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINion STEVEN MURPHY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : AUGUST 31, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-307832(B) JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: DENISE R. CAMERON, ESQ. REGINALD N. MAXTON, ESQ. Assistant County Prosecutor 400 Lincoln Building 8th Floor, Justice Center 1367 East Sixth Street 1200 Ontario Street Cleveland, OH 44114 Cleveland, OH 44113 - 2 - PATTON, C.J. The grand jury indicted defendant Steven Murphy on one count of aggravated robbery, in violation of R.C. 2911.01, with a prior felony specification. At arraignment, defendant pleaded not guilty. The court found defendant indigent and appointed Oliver Hassenflue as defense counsel. Two days before the scheduled trial date, James C. Young filed a notice of appearance on defendant's behalf as retained counsel. When the parties convened in court for trial, attorney Hassenflue informed the court defendant wished to plead guilty to an amended count of robbery, with the prior felony specification deleted. Before accepting defendant's guilty plea, the court informed defendant his retained counsel, James Young, could not represent him because he had been suspended from the practice of law by the Supreme Court of Ohio. See Cleveland Bar Assn. v. Young (1993), 67 Ohio St.3d 226. Despite this suspension, the court assured defendant he had been continuously represented throughout the proceedings by attorney Hassenflue, who had not been removed from the case. After advising defendant of his constitutional rights, the court accepted the guilty plea and set a date for sentencing. Prior to sentencing, attorney James Maxton filed a notice of appearance stating he had been retained by defendant. In addition, he filed a Crim.R. 32.1 motion to withdraw defendant's guilty plea on grounds defendant only agreed to change his plea at the instruction of attorney Hassenflue and "his abject fear under the - 3 - circumstances of his Counsel being removed suddenly and without explanation to him ***." The court conducted a hearing on the motion to withdraw the guilty plea. Defendant testified he had been prepared to proceed to trial with Young representing him, but became scared and confused when informed Young could not represent him. He believed without his retained counsel he would be walking into court without a defense, so he choose to plead guilty, despite his innocence. At the close of testimony, the trial court denied the motion to withdraw the guilty plea. The court recalled defendant did not display any shock or fear at the time of Young's removal, nor did the circumstances indicate any coercion or hesitation to enter the guilty plea. Instead, the court believed defendant had a "change of heart" which would not justify granting the motion to withdraw the guilty plea. I The first assignment of error complains the trial court erred by refusing to grant defendant's motion to withdraw his guilty plea. He maintains his retained attorney's disqualification on the scheduled day of trial left him unsettled, believing he had no choice but to plead guilty. In State v. Xie (1992), 62 Ohio St.3d 521, paragraph one of the syllabus states: "A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine - 4 - whether there is a reasonable and legitimate basis for the withdrawal of the plea." The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Id. at paragraph two of the syllabus; State v. Peterseim (1989), 68 Ohio App.2d 211. An abuse of discretion is more than an error in judgment; it connotes action by the trial court that is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. The trial court did not abuse its discretion by denying the motion to withdraw the guilty plea because the record fails to support defendant's stated claim that his retained counsel's disqualification left him with no choice but to plead guilty. Fully aware of the circumstances attendant to the disqualification of retained counsel, the trial judge stated: "*** [J]ust so that we're clear, and you understand what's happening, I should spread something else on the record. *** Mr. Hassenflue is appointed for you out of the arraignment room and proceed to appear in this case and work with the Court and the prosecutor, then a few days ago we received some paperwork filed by a gentleman claiming to be an attorney, Mr. James C. Young. He advised the Court this morning that he was mistaken. He was not authorized to practice law yet by the Ohio State Supreme Court. The circumstances of that are not relevant, but I just wanted you to be clear that the Court was clear, you had a lawyer at all points in time. I never released Mr. Hassenflue from the case ***. Mr. Hassenflue, as I say, has continuously been your lawyer in this case." - 5 - There is no question defendant had been represented throughout the proceedings, even after the abortive attempt to retain counsel. Attorney Hassenflue actively represented defendant, having filed several pretrial motions and engaged in plea bargains. Hence, at no time was defendant denied the assistance of counsel. Contrast State v. Newcome (1989), 62 Ohio App.3d 619 (defendant whose counsel was under suspension at the time he entered his guilty plea was denied his constitutional right to assistance of counsel and entitled to withdraw his plea). Under the circumstances, the trial court did not abuse its discretion by denying the motion to withdraw the guilty plea. The first assignment of error is overruled. II The second assignment of error complains the trial court abused its discretion by denying defendant's motion to withdraw his guilty plea based on purported protestations of innocence without first determining whether the state presented a sufficient factual basis to sustain the plea. As a general proposition of law, a trial court has no duty to determine whether a factual basis supports a defendant's guilty plea. See State v. Post (1987), 32 Ohio St.3d 380, 386-387; State v. Ricks (1976), 48 Ohio App.2d 128, 131. An exception to the rule may exist if a defendant makes a guilty plea coupled with a claim of innocence. Under those circumstances, a defendant's right to due process may require the court to determine whether there is a - 6 - factual basis for the plea. See North Carolina v. Alford (1970), 400 U.S. 25, 38 fn.10; State v. Padgett (1990), 67 Ohio App.3d 332. In State v. Casale (1986), 34 Ohio App.3d 339, we relied on Alford to hold that when a defendant enters a guilty plea despite maintaining her innocence, a trial court may abuse its discretion by denying a presentence motion to withdraw the plea unless the record reflects basic facts supporting the charge. We find the trial court did not abuse its discretion by denying the presentence motion to withdraw based upon defendant's purported Alford plea. Implicit in any Alford plea is the requirement a defendant actually state his innocence on the record when entering a guilty plea. See State v. Morgan (Aug. 4, 1994), Cuyahoga App. No. 65973, unreported; State v. Ogletree (Oct. 14, 1993), Cuyahoga App. No. 62943, unreported. Presumably, every defendant who seeks to withdraw a guilty plea does so based upon a claim of innocence. Recognizing this, we have repeatedly held that "a mere change of heart" is insufficient justification for allowing the withdrawal of a guilty plea. State v. Drake (1991), 73 Ohio App.3d 640, 645; State v. Lambros (1988), 44 Ohio App.3d 102; State v. Grigsby (1992), 80 Ohio App.3d 291. The record discloses no protestations of innocence at the time the court accepted defendant's guilty plea. Instead, defendant waited to proclaim his innocence until he had filed his motion to withdraw the guilty plea. On these facts, it appears defendant's claim of innocence reflects a change of heart. Consequently, - 7 - Alford and Casale do not apply, and the trial court had no duty to determine whether a factual basis supported the guilty plea. The second assignment of error is overruled. III The third assignment of error complains the trial court abused its discretion by refusing to grant disqualified counsel's motion for a continuance, filed just one day prior to trial. Defendant argues the trial judge's comments reflect her predisposition to deny the motion solely because of her past experience with retained counsel. The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. State v. Unger (1981), 67 Ohio St.2d 65, syllabus. An appellate court will not reverse the denial of a continuance unless there has been an abuse of discretion. Id. at 67; Griffin v. Lamberjack (1994), 96 Ohio App.3d 257, 264. Undeniably, retained counsel's motion for a continuance, along with all other motions he filed, were a nullity in light of his suspension. As a result, the trial court could not have abused its discretion by denying a motion that had no legal effect. Cf. Williams v. Global Constr. Co., Ltd. (1985), 26 Ohio App.3d 119 (when a non-attorney files a complaint in a court in violation of R.C. 4705.01, the court should dismiss the complaint without prejudice). - 8 - As to the judge's remarks about retained counsel, we find those remarks, taken in context, more than justify her denial of a continuance. Under normal circumstances, the trial judge indicated she would have discharged appointed counsel once a defendant had retained counsel, but her prior dealings with retained counsel caused her some concern. She recounted her experience with defendants asking for new counsel on the eve of scheduled trials, stating, "[s]o I simply take the position in all cases; come in with any lawyer you want at any time you want, but I'm not continuing the trial on account of it, because that's just too often a ploy to get a continuance." Even were we to assume the validity of the motion to continue trial, the record indicates the trial court did not abuse its discretion by denying the motion since a continuance was unnecessary under the circumstances. The motion did not set forth any reason for the continuance, nor did it contain an affidavit. It simply stated, "Now comes Defendant Steven Murphy through counsel and respectfully requests that the court issue an order granting a continuance of the trial date in the above captioned matter set for August 4, 1994 until August 31, 1994." On its face, this motion gives insufficient grounds to establish reasonable grounds justifying a continuance. Moreover, even had counsel set forth reasonable grounds for a continuance, it is apparent those grounds were pretextual. At the hearing on the motion to withdraw the guilty plea, retained counsel - 9 - admitted there was "no question" he was prepared to proceed to trial on the scheduled trial date. This admission validated the trial judge's initial inclination to deny the motion to continue trial. Certainly, retained counsel's admission he had been prepared to proceed with trial confirmed the trial judge's suspicions that a continuance in this case was simply a pretext. Under the circumstances, we see no facts demonstrating the trial court abused its discretion. The third assignment of error is overruled. IV The fourth assignment of error complains defendant's guilty plea is against the manifest weight of the evidence. To support this claim, defendant attaches a transcript of testimony from various witnesses who testified at the trial of his co-defendant. He maintains their testimony effectively exonerated him of any culpability in the charged offense; therefore, the trial court erred by finding him guilty. As we noted previously, a guilty plea constitutes a complete admission of a defendant's guilt. See Crim.R. 11(B)(1); State v. Ricks, supra; State v. Guyton (1984), 18 Ohio App.3d 101. Hence, defendant cannot be heard to complain his conviction is against the manifest weight of the evidence. In addition, even if the rule of law were different and defendant could somehow challenge the weight of the evidence supporting his guilty plea, the record fails to show he submitted - 10 - his contrary evidence in a timely fashion. The exculpatory testimony took place in the co-defendant's October 1994 trial, well after the court accepted defendant's plea in August 1994. Although it may have been marginally relevant to support a withdrawal of the guilty plea, this exculpatory evidence had not been heard at the time the trial court considered the motion to withdraw the guilty plea. Accordingly, we find the trial court did not abuse its discretion. The fourth assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas 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. SPELLACY, J. O'DONNELL, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .