COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69726 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KENNETH HUNT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 8, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-322321 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL SCULLY, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: SEAN GALLAGHER, ESQ. 100 Lakeside Place ASSISTANT COUNTY PROSECUTOR 1200 West Third Street The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Kenneth Hunt appeals the trial court's denial of his motion to allow his trial counsel to withdraw from the matter and its denial of his motion to vacate his no contest plea. For the reasons set forth below, we affirm. On April 19, 1995, defendant was indicted for robbery with a violence specification, possession of criminal tools, and aggravated theft with a violence specification. He pleaded not guilty at his arraignment and the matter was assigned to Judge Michael Gallagher. At this time, defendant was declared indigent and counsel was assigned to represent him. On May 18, 1995, defendant moved the court for drug treatment in lieu of conviction pursuant to R.C 2951.041. On July 27, 1995, the trial court held a hearing on this motion and the following transpired: THE COURT: * * * I think he's technically eligible for treatment in lieu of conviction. However, you could be eligible for probation, still not receive it in this case. Although the Defendant's eligible for treatment in lieu of conviction, I don't feel that I have a conscience -- and based on the facts and circumstances of this case -- I don't think the Court's -- and based on the Defendant's prior record -- I don't think the Court's discretion would be wisely exercised in granting this motion. * * * MR. RESNICK: * * * my client, after being advised of his constitutional rights to a trial, either before the Court or to a jury, and other constitutional rights, he has [sic] as a Defendant in this matter, wishes to withdraw his previously-entered plea of not guilty and plead no contest to the Indictment, the three count Indictment and will consent to a finding of guilt. - 3 - * * * THE COURT: Okay. You thought this case over, and after discussing this case with your attorney, do you feel that it is in your best interest to enter pleas of no contest to all three counts of this Indictment, rather than to take this case to trial? THE DEFENDANT: Yes, I do, Your Honor. THE COURT: All right. Are you satisfied with the services your fine attorney has performed for you? THE DEFENDANT: For the most part, Your Honor. THE COURT: Has he done everything in your defense in this case you have asked him to? THE DEFENDANT: As far as I know, Your Honor. THE COURT: Any threats or promises been made to you in order to get you to enter this plea? THE DEFENDANT: In regards to any threats, no, Your Honor. THE COURT: Okay. Any promises been made to you in order to get you to enter this plea? THE DEFENDANT: No promises. We just discussed my willingness to take the drug program. * * * THE COURT: You understand if I place you -- or if in fact you enter pleas here, these are technically probationable offenses, you understand that if you violate any of the terms or conditions of probation, which one of them would be in-patient treatment for at least 30 days, you would be on probation for at least two years, you understand if you just violate any of the terms and conditions, you understand you're going to go to the penitentiary, understand that? THE DEFENDANT: I understand it immensely, Your - 4 - Honor. THE COURT: All right. Very well. (Tr. 4-8). The court then stated the possible prison terms which defendant could receive for each count. Defendant then pleaded no contest to the charges, and Judge Gallagher subsequently convicted defendant of all three counts of the indictment. He then ordered a presentence investigation and set the matter for sentencing on August 24, 1995. Thereafter, Judge William Mahon took over Judge Gallagher's docket and defense counsel moved to withdraw from the matter and to vacate the plea. Counsel asserted that he was needed as a witness in support of the motion to vacate the plea to establish that the plea was "based on representation of [defense counsel] as to what his sentence would be at the time of sentencing, namely that he would receive conditional probation contingent upon entering a thirty (30) day in-patient drug treatment facility." The court had a hearing on the motion to vacate the plea on September 21, 1995. At this time, it reviewed the transcript from the plea proceedings and determined that defendant denied relying upon any promises in entering his no contest plea. The court then denied the motion and sentenced defendant to concurrent terms of three to fifteen years incarceration on counts one and three, and one year incarceration on count two. Defendant now appeals and assigns two errors for our review. - 5 - I. Defendant's first assignment of error states: THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY DENYING THE APPELLANT'S MOTION TO WITHDRAW AS COUNSEL. Within this assignment of error, defendant maintains that the trial court erred in denying defense counsel's motion to withdraw from the matter without holding a hearing. In State v. Marinchek (1983), 9 Ohio App.3d 22, the court held that the trial court abused its discretion when it denied without a hearing retained counsel's motion to withdraw, filed after the client discharged him. The court stated: The right to counsel guaranteed by the Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution does not always mean counsel of one's own choosing. The right to counsel must be tempered by the public's right to a prompt, orderly and efficient administration of justice. Attorneys cannot be shed at every stage of the proceeding so as to impede that orderly administration. On the other hand, there is a right to discharge counsel because of the personal nature of the services being performed. Thus, it is the trial court's duty to balance the defendant's right to counsel of his preferential choosing against the public interest in the administration of justice. Id. at 23-24. In State v. Haberek (1988), 47 Ohio App.3d 35, 41, this court considered the holding in Marinchek, supra, and noted: A review of the cases in this area reveals the courts tip the balance in favor of the defendant when there existed a total lack of cooperation and trust between counsel and defendant. State v. Dukes (1986), 34 Ohio App.3d 263, 518 N.E. 2d 28, State v. Pruitt (1984), 18 Ohio App.3d 50, 18 OBR 163, 480 N.E. 2d 499. - 6 - Conversely, the balance is tipped in favor of the orderly and efficient administration of justice when defendant's request for new counsel is for purposes of delay or made in bad faith. Dukes; Pruitt. The record in the case sub judice fails to reveal any lack of cooperation, trust or communication between defense counsel and defendant serving to impair the attorney-client relationship. The trial court acted within the bounds of its discretion in denying defendant's motion to substitute. Defendant was afforded his Sixth Amendment right to counsel. (Emphasis added.) In this instance, the record does not reveal any lack of cooperation, trust or communication. Further, as to counsel's stated motive, to testify to establish that the plea was based upon his representation that defendant would receive conditional pro- bation, the record again fails to support this representation as defendant specifically indicated that the plea was not induced by any threats or promises and Judge Gallagher at no time stated that he would give defendant contingent probation. Moreover, we note that in this matter, unlike the circumstances presented in State v. Marinchek, supra, defendant did not discharge his trial counsel and the trial court did not advance the matter for sentencing, but rather delayed sentencing in order for defense counsel to review the transcript from the plea proceedings. We therefore are unable to conclude that the trial court incorrectly weighed defendant's interests in obtaining new counsel against its regard for the orderly and efficient administration of justice. The first assignment of error is overruled. - 7 - II. Defendant's second assignment of error states: THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY DENYING APPELLANT'S MOTION TO VACATE HIS NO CONTEST PLEA. Defendant next maintains that the trial court erred in denying his motion to vacate his no contest plea because he had an implicit agreement with Judge Gallagher, which was off the record, that he would receive probation contingent upon entering a thirty (30) day in-patient drug treatment facility. The withdrawal of guilty pleas is governed by Crim. R. 32.1 which provides: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. In State v. Xie (1992), 62 Ohio St.3d 521, paragraphs one and two of the syllabus, the supreme court held: 1. A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. The trial court must hold a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. 2. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court. The court explained: *** We agree that a presentence motion to withdraw a guilty plea should be freely and liberally granted. Nevertheless it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing. Therefore the trial court must conduct a hearing to determine whether there is a reasonable and - 8 - legitimate basis for the withdrawal of the plea. In this case, the trial court held such a hearing, at which it carefully considered Xie's motion and all the circum- stances surrounding the entering of the plea. Absent an abuse of discretion on the part of the trial court in making the ruling, its decision must be affirmed. For us to find an abuse of discretion in this case, we must find more than an error of judgment. We must find that the trial court's decision was "unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. Accord State v. Posta (1988), 37 Ohio App.3d 144 (Although a motion to withdraw a guilty plea or a no contest plea which is filed before sentencing should be freely allowed, this rule is not to be interpreted to mean that every such motion should be granted if made prior to sentencing). Moreover, it is well-established that a mistaken belief as to the consequences of the plea is insufficient to withdraw such plea. State v. Sabatino (1995), 102 Ohio App.3d 483, 487; State v. Grigsby (1992), 80 Ohio App.3d 291, 300. From the foregoing, our inquiry in this matter is limited to a determination of whether the trial court abused its discretion. We find no abuse of discretion herein. At the hearing before Judge Gallagher on July 27, 1995, the court informed defendant of each of his rights and the potential consequences of his plea. The court questioned defendant at length regarding his understanding of those rights and potential consequences and defendant stated that the plea was not induced by any promises. The record therefore fully supports Judge Mahon's conclusion that it was neither reasonable nor legitimate for defendant to maintain that his plea was induced - 9 - by such representation. In short, there is nothing in the record which supports defendant's assertion, in light of the trial court's previous rejection of defendant's motion for treatment in lieu of conviction, its careful adherence to Crim. R. 11, and its elicitation from defendant that his plea was not induced by any threats or promises. The court reached a similar result in State v. Thomas (1992), 80 Ohio App.3d 452, 459-460, and stated: We are unable to speculate on any possible agree- ments or the substance of the attorney-client relation- ship Thomas may have had with his trial counsel, including an agreement and/or strategy concerning Thomas's proffering of his guilty pleas. Such relation- ship is privileged and personal to the attorney and client and is beyond our scope of inquiry. (In passing, we further note that Thomas does not assert he was denied effective assistance of counsel.) However, the record is unequivocally clear that the trial court instructed Thomas of his rights, elicited Thomas's response that he understood his rights and his effective waiver of such upon the acceptance of his guilty plea, and Thomas still maintained his willingness to enter his pleas of guilty. The record is completely devoid of any circumstances that would allow one to conclude that Thomas entered his guilty pleas in an unknowing, unintelligent and involuntary manner. See, also, State v. Lambros (1988) 44 Ohio App.3d 102, 103: *** a defendant who has a change of heart regarding his guilty plea should not be permitted to withdraw that plea just because he is made aware that an unexpected sentence is going to be imposed. Peterseim, supra, at 213, 22 O.O. 3d at 342, 428 N.E.2d at 865. Otherwise, defense counsel merely has to allege that the defendant's plea was induced by some underlying "mistaken belief" that the defendant would receive probation and the plea would be vacated. Cf. State v. Longo (1982), 4 Ohio App.3d 136, 140, 4 OBR 228, 232, 446 N.E. 2d 1145, 1149. In this case, the trial court was satisfied that no representations had been made regarding appellant's - 10 - sentence. Coupled with appellant's admitted understand- ing of the possible sentence and his express denial of any promises or threats at the time he entered his plea, there was no basis for appellant's "mistaken belief" that his plea was conditioned on receiving probation. The trial court did not abuse its discretion in refusing appellant's presentence motion to withdraw his guilty plea. Finally, with regard to defendant's reliance upon an "implicit agreement" with Judge Gallagher regarding the imposition of probation, we note that defendant has offered no explanation for the record's silence with respect to such a representation. To the contrary, the record suggests that defendant simply had a subjective expectation of receiving a less harsh sentence if the matter had been retained by Judge Gallagher to its conclusion. Accordingly, we are unable to conclude that the trial court abused its discretion in denying the motion to vacate. State v. Grigsby, supra; State v. Legree (1988), 61 Ohio App.3d 568, 575. The second assignment of error is overruled. 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 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. HARPER, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE 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, .