COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71136 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ZIAD ABDELHAG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 31, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-335838 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES LAURA T. PALINKAS, ESQ. Cuyahoga County Prosecutor 11701 Tonsing Drive RANDI MARIE OSTRY, Asst. Cleveland, Ohio 44125 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Ziad Abdelhag appeals from the trial court's order denying his pre-sentence motion to withdraw his guilty plea to aggravated assault (R.C. 2903.12) with two violence specifications and the conviction based thereon. Defendant contends the trial court abused its discretion by denying the motion without holding a full hearing on the motion to determine whether the plea was knowingly and voluntarily made. We find no error and affirm the order below. Defendant was indicted on two counts: attempted murder (R.C. 2923.02/2903.02) with a firearm specification; and felonious assault (R.C. 2903.11) with a firearm specification and two violence specifications. Defendant was on probation from a previous offense. Defendant pled not guilty at his arraignment. On June 14, 1996, defendant appeared with counsel for a plea hearing. Pursuant to an agreed plea bargain, the State moved to nolle the attempted murder count, and to amend the felonious assault count to the lesser offense of aggravated assault. The State further moved to delete the firearm specification from the indictment but to retain the language "by means of a deadly weapon or dangerous ordnance, to wit, a firearm," and to retain the two violence specifications. Defendant was invited to plead guilty to a nonprobationable, fourth degree felony, punishable by 1 1/2, 2, 2 1/2, 3-5 years. The negotiated plea contained an agreed upon sentence of a maximum term of 3-5 years. As further conditions of - 3 - the plea bargain, defendant was not to be eligible for shock probation and agreed to testify against two individuals in their juvenile bind over hearings as well as at their "adult" trials. (Tr. 4-5). The State also agreed that it would not object to the termination of probation on defendant's prior offense, meaning that he would not serve the sentence in the current case consecutive to any previous sentence. Pursuant to Crim.R. 11(C)(2), the trial court carefully advised the defendant of the constitutional rights he was waiving by his guilty plea to the amended charges and determined that the plea was knowingly and voluntarily made. (Tr. 6-9). When asked if he was guilty of the amended charges, the defendant replied: "Honestly, yes." (Tr. 9). Defendant was referred to the probation department for a presentence investigation report. On July 12, 1996, two days prior to his sentencing, defendant filed a motion to withdraw his guilty plea. The reason asserted was that defendant was allegedly under "severe pressure and at a time when this defendant was unable to fully appreciate the results of his actions" at the time he entered his plea. A hearing was had on the motion. The trial court, on the record and prior to sentencing, inquired of defendant, his counsel and the prosecutor, as to whether there was anything further in support of the motion. Prior to sentencing, the defendant added that "I feel like I was pressured into pleading guilty. I know I didn't -- I had thirty days to think about it. I feel I was not responsible for what - 4 - happened. I realize it, but I appreciate if you withdraw my plea." The Court responded: THE COURT: I went over everything in detail with you on the day of the plea. I asked you a series of questions. And I asked you if this plea was voluntarily made, of your own free will, and you indicated it was. This was, I might say, I think very appropriate. You know, it was something, in my opinion, favorable to you, sir, the negotiation that was done on this particular case. So it's the judgment of this Court that this Rule 11 was completely complied with, and I will sentence you to the Lorain Correctional Institution for a period of three to five years. (Tr. 13). Defendant timely appealed the denial of his motion to withdraw his guilty plea. Defendant's sole assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WITHOUT FIRST CONDUCTING A FULL, FAIR AND IMPARTIAL HEARING TO DETERMINE WHETHER APPELLANT ENTERED HIS PLEA KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY. Defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea. Specifically, he claims the trial court failed to seriously consider the motion to determine if it was knowingly, intelligently and voluntarily entered. We find no merit to this contention. Crim.R. 32.1, governing withdrawal of guilty pleas, 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; - 5 - but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. The general principles applicable to a motion to withdraw a guilty plea prior to sentencing were stated in State v. Xie (1992), 62 Ohio St.3d 521, paragraphs one and two of the syllabus, where the Supreme Court held: 1. 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 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 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 circumstances 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 ruling 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. - 6 - The abuse of discretion standard we must follow is well stated in State v. Peterseim (1980), 68 Ohio App.2d 211 at paragraph three of syllabus, where this Court held: A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where 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) where the record reveals that the court gave full and fair consideration to the plea withdrawal request. This Court in State v. Posta (1988), 37 Ohio App.3d 144, 145 stated that "Peterseim is not to be interpreted to mean that every motion to withdraw a guilty plea or a no contest plea should be granted as long as the motion is made prior to the sentencing." The Posta court reemphasized the mandatory utilization of the abuse of discretion standard in the appellate process, stating that the appellant must prove that the trial court's attitude was unreasonable, arbitrary or unconscionable. Id. In reviewing such a claim, this Court must look to the actual plea hearing to decide whether the trial court substantially complied with the mandates of Crim.R. 11. In this case, there is no evidence or indication that the trial court failed to substantially comply with Crim.R. 11 and that it subsequently abused its discretion in overruling the withdrawal motion. After fully advising the defendant of the rights he was giving up, the trial court pressed defendant on the voluntary and willing nature of his plea as follows: - 7 - THE COURT: You are giving up all these rights by pleading guilty, is that correct? MR. ABDELHAG: Yes, your Honor. THE COURT: Has anybody, including your attorney, the prosecutor or the Court made any promises or threats to induce you into the plea other than the agreement that's been explained so far? MR. ABDELHAG: No your Honor. THE COURT: You're pleading guilty to the second count of the indictment, which would be a felony of the fourth degree, punishable by, and it's non probationable and punishable by a 1 1/2, 2, 2 1/2, 3-5 years and it's been agreed that you would get the 3-5 years. Do you understand that? MR. ABDELHAG: Yes, your Honor. THE COURT: Are you satisfied with the representation by your lawyer? MR. ABDELHAG: Yes, your Honor. THE COURT: Is there anything about this case or these proceedings that you do not understand or that you would like more fully explained? MR. ABDELHAG: No, your Honor. THE COURT: How do you plead to the charge that you, Ziad Abdelhag, also known as Fred Abdelhag, on November 9, 1995, while under the influence of sudden passion, did knowingly cause serious physical harm to Richie Price and/or did knowingly cause or attempt to cause physical harm to Richie Price by means of a deadly weapon or dangerous ordinance, to wit, firearm as defined in 2923.11, with the specification two that the grand jurors find and specify that during the commission of the offense, you caused physical harm to Richie Price and the grand jurors find that you made an actual threat of physical harm to Richard Price with a deadly weapon. How do you plead to that charge? - 8 - MR. ABDELHAG: Guilty. THE COURT: And are you guilty of that? MR ABDELHAG: Honestly, yes. THE COURT: Is there a factual basis for this plea, counselor? MR. ABDELHAG: Yes, your Honor. THE COURT: This plea is voluntarily made of your own free will?: MR. ABDELHAG: Yes, your honor. The only explanation defendant offered in support of his motion to withdraw his plea indicated that he was under "severe pressure" and "was unable to fully appreciate the results of his actions" in entering the plea. At sentencing two days later, upon the court's inquiry, defendant merely repeated he was "pressured into pleading guilty; and [he] had thirty days to think about it. I feel I was not responsible for what happened." (Tr. 12). These statements are illustrative of a change of heart, or simple regret over the choice he made. They do not demonstrate that his plea was not voluntarily, intelligently or willingly made. "[T]he scope of the hearing to be held on the Crim.R. 32.1 motion should be reflective of the substantive merit of the motion itself." State v. Hall (April 27, 1989), Cuyahoga App. No. 55289, unreported at 3. It may be assumed that all defendants faced with a criminal trial, the risk of convictions on multiple counts and longer sentences are "under pressure" or feel the coercion of the justice system. But, that cannot be reason enough to allow withdrawal of the plea. - 9 - Further, defendant's protestations of innocence are not sufficient, however frequently repeated, to warrant grounds for vacating a plea knowingly entered. State v. McGowan (Oct. 3, 1996), Cuyahoga App. No. 68971, unreported; State v. Kandiko (Feb. 9, 1995), Cuyahoga App. No. 66888, unreported; State v. Frank (April 29, 1993), Cuyahoga App. No. 62201, unreported. By inference, all defendants who request a withdrawal of their guilty plea do so based upon some claim of innocence. A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for 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, 103. In this case, the trial judge conducted a textbook 11(C) hearing before accepting the plea. He gave defendant and his counsel an opportunity to explain the "coercion" or "pressure" which led to the plea. Considering the colloquy and admission of factual guilt and a full understanding of his plea, the trial court did not abuse its discretion by overruling the motion to withdraw the plea. Under all the circumstances, we cannot say that defendant has met his burden of demonstrating that the trial court acted unreasonably, arbitrarily or unconscionably. Defendant's sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. - 10 - 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. O'DONNELL, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .