COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71419 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION NORENE WALKER, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-322862 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Steve W. Canfil Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Norene Walker ("Walker"), appeals from the trial court's denial of her motion to withdraw her guilty plea. For the following reason, we affirm the court's judgment. In January, 1996, appellee faced a seven count indictment which alleged, inter alia, felonious assault and improperly discharging a firearm at or into a habitation or school. In order to reduce the potential sentence, appellant pled guilty to three counts of attempted felonious assault. The trial court accepted her plea after satisfying the procedural safeguards mandated by Crim.R. 11. The remaining counts were dismissed nolle prosequi and the case was continued for sentencing. At the sentencing hearing, appellant moved to withdraw her guilty plea. Walker based her motion on alleged representations of a federal law enforcement officer and a profession of innocence. According to Walker, after she had entered her plea, a federal law enforcement officer requested her cooperation in another matter. Allegedly, in return for her cooperation, he indicated that he would intervene on her behalf in this case. The officer's testimony was not offered at the hearing and nothing in the record indicates the veracity of appellant's claim. The trial court denied her motion to vacate her plea and sentenced her. On appeal, appellant assigns one error for review which states: THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO VACATE HER PLEA. -3- Appellant contends that the alleged repudiation of government intervention coupled with her proclamations of innocence established a reasonable and legitimate basis upon which to withdraw her plea. As stated by the Ohio Supreme Court in State v. Xie, "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing." 62 Ohio St.3d 521, 584 N.E.2d 715 (paragraph one of the syllabus); State v. Wilson (Nov. 27, 1996), Cuyahoga App. Nos. 70328, 70329, unreported. While pre-sentence motions to vacate pleas should be granted freely and liberally, a mere change of heart is not a sufficient basis upon which to vacate a plea. State v. Drake (1991), 73 Ohio App.3d 640, 645, 598 N.E.2d 115; State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632. Rather, the movant must demonstrate a "reasonable and legitimate basis for the withdrawal of the plea." Xie, supra. The withdrawal of a guilty plea is committed to the sound discretion of the trial court. City of Parma v. Annotico (Jan. 30, 1997), Cuyahoga App. No. 69655, unreported, citing, State v. Smith (1977), 49 Ohio St.2d 261; State v. Sabatino (1995), 102 Ohio App.3d 483, 487, 657 N.E.2d 527. Accordingly, we review for an abuse of discretion. Annotico, supra. An abuse of discretion amounts to conduct which is arbitrary, unreasonable or unconscionable. State v. McGowan (Oct. 3, 1996), Cuyahoga App. No. 68971, unreported, dismissed, 77 Ohio St.3d 269, 673 N.E.2d 1299 (1997). -4- In this case, the trial court did not abuse its discretion by denying appellant's motion to withdraw her guilty plea. Appellant failed to articulate a reasonable and legitimate basis to withdraw her plea. While appellant attempts to establish a consistent profession of innocence, at no time prior to the sentencing hearing did appellant claim that she was innocent. Indeed, appellant's only proclamation of innocence occurred at the motion hearing. The trial court does not abuse its discretion by denying a motion to withdraw a guilty plea based upon such a belated assertion of innocence. See, e.g., State v. Murphy (Aug. 31, 1995), Cuyahoga App. No. 68129, unreported (defendant's claim of innocence reflects merely a change of heart with respect to the previously entered plea). Further, appellant incorrectly relies on the allegedly repudiated promises of the federal law enforcement officer. First, the alleged representations were made after the plea was entered and accepted. The record indicates that at the plea hearing, and upon specific inquiry from the trial court, appellant indicated that no promises or threats induced her plea. Accordingly, such representations did not induce or otherwise affect the plea and cannot be used to establish grounds for withdrawal. Second, assuming arguendo, that the claimed representations occurred, it is well established that a law enforcement officer is not authorized to negotiate a plea. State v. Fulton (1990), 66 Ohio App.3d 215, 583 N.E.2d 1088; State v. Mathews (1982), 8 Ohio -5- App.3d 145, 8 OBR 202, 456 N.E.2d 539. Any such negotiations have no legal effect on the plea. Fulton, 66 Ohio App.3d at 216; Mathews, 8 Ohio App.3d 146. Similarly, a federal law enforcement officer has no authority to negotiate on the state's behalf or affect a criminal defendant's plea or sentence. Any representation to the contrary has no legal effect. The sole case cited by appellant in support of her position, State v. Hughes (C.A.2, 1964), 325 F.2d 789, is clearly distinguishable on its facts. Therein, the accused claimed that the government induced him to enter a guilty plea by promising [in return] to make a statement to the sentencing judge which would be favorable to him and by promising that he would be permitted to by-pass judges whom he believed to be severe in imposing sentences. 325 F.2d at 790. This passage demonstrates the critical fact absent from appellant's position. In Hughes, the alleged government representations occurred before and induced Hughes' plea. In this case, appellant admitted that her plea was not induced by any such promise or representation and the alleged representations occurred after her plea. Of additional significance, the Second Circuit upheld the trial court's denial of Hughes' withdrawal motion because Hughes both denied that any promises were made to him to secure his guilty plea and failed to indicate his innocence prior to his withdrawal motion. Id. 791- 92. Ultimately, a careful reading of Hughes supports our conclusion that the trial court did not abuse its discretion. Appellant's assignment of error is overruled. Judgment affirmed. -6- 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. MATIA, DAVID T., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .