COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71745 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION PROMISE STEWART : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MAY 8, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-339914 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES GARY W. EISNER Cuyahoga County Prosecutor 12021 Edgewater Drive #309 SEAN C. GALLAGHER Lakewood, Ohio 44107 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal by Promise Stewart, in which he alleges the trial court abused its discretion by denying a motion to withdraw his plea of guilty to trafficking in marijuana, one to three times bulk, filed four days after he entered an Alford plea to that charge, has been assigned to the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25. The record in the case before us reveals that on March 15, 1996, members of the Cleveland Police Department arrested Stewart and a female named Morriah McKennan for trafficking in marijuana, evidence of which they found in McKennan's automobile while conducting a theft and criminal damaging investigation; both Stewart and McKennan were present at the time police found the fifteen packets of marijuana in the trunk of her car, and both denied ownership of it. The grand jury returned indictments against both Stewart and McKennan for possession and preparing marijuana for shipment, and on July 10, 1996, the court arraigned Stewart who was at that time represented by his retained counsel, Timothy Potts. On October 21, 1996, both Stewart and McKennan appeared for trial. After McKennan pled guilty to one count of drug trafficking and agreed to testify against Stewart, he entered an "Alford" plea to an amended first count, deleting the reference to his prior drug trafficking conviction. At that time the - 3 - prosecutor stated, "We believe there is a factual basis". Thereafter, the record reflects the court patiently questioned the defendant in accordance with Crim. R. 11 and found he knowingly, intelligently and voluntarily entered his plea and further determined that Stewart's retained counsel was satisfied with the court's inquiry. The record next reflects that four days after this plea, Gary W. Eisner as newly retained counsel for Stewart filed a Notice of Appearance and Motion to Withdraw Guilty Plea in which he alleged Stewart's plea had been entered out of fear from pressure placed on him by his former counsel. On November 7, 1996, the court overruled the motion to withdraw the plea. However, on December 5, 1996, prior to sentencing Stewart, the court conducted a hearing on that motion on the issue as framed by Stewart's newly retained counsel. The following colloquy highlights this issue: MR. EISNER: Well, I guess his position is that he was forced. THE COURT: By whom? MR. EISNER: By -- he says by his attorney. THE COURT: Well, who was his lawyer? MR. EISNER: Timothy Potts THE COURT: And Timothy Potts forced him to enter a plea? MR. EISNER: That is his position. (Tr. 17.) At the hearing, Timothy Potts testified about his legal experience as a criminal defense attorney, and Stewart testified - 4 - about a tape recording of a telephone conversation he had with McKennan in which he alleged she admitted lying about Stewart's involvement in the case. Because that tape was neither played in court nor proffered for our review on this appeal, it is not part of the record before us, and we cannot consider it. Following the hearing, the court denied the motion to withdraw the plea and sentenced Stewart to a term of incarceration. Stewart now appeals and raises one assignment of error for our review. It states: I. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED APPELLANT HIS RIGHTS TO DUE PROCESS AND TO A TRIAL BY REFUSING TO PERMIT APPELLANT TO WITHDRAW HIS PLEA OF GUILTY WHEN SAID ATTEMPT TO WITHDRAW WAS MADE JUST FOUR DAYS AFTER THE PLEA AND ONE MONTH PRIOR TO HIS SENTENCING. Citing State v. Peterseim (1980), 68 Ohio App.2d 211, Stewart asserts the trial court abused its discretion in denying his motion to withdraw his guilty plea. The state argues that the trial court met the four-part Peterseim test, that Stewart entered a knowing, intelligent and voluntary plea, but suggests that if the co-defendant McKennan lied to prosecutors regarding Stewart's involvement in this case, a basis may exist to withdraw the plea. The single issue presented for our review on this appeal however, is whether the trial court abused its discretion by denying Stewart the opportunity to withdraw his plea of guilty. - 5 - The parties agree that the headnote in State v. Peterseim, supra, establishes a standard of review for cases involving withdrawal of a guilty plea. It states: 3. 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. In our sequential analysis of these four elements, we note regarding the competence of defense counsel Timothy Potts, the record contains a transcript in which defense counsel Potts testified he has been a criminal defense lawyer for about twenty- five years, and in which defense counsel Eisner asked him for a professional opinion regarding the voluntariness of Stewart's plea. Because his reputation for excellence is known to the court, no serious allegation of incompetence of counsel can be leveled against Timothy Potts, and our conclusion is supported by a thorough review of the entire record in this case and his professional representation of the appellant at the time the plea was entered. Accordingly, the first element of the Peterseim test has been satisfied. Next, we must consider the nature of the hearing held pursuant to Crim. R. 11. We note the record contains a complete transcript of the proceeding at the time Stewart entered an - 6 - Alford plea to the charge of possession of marijuana, one to three times bulk, which, as amended, is a felony of the fourth degree. At that time, the transcript reflects the prosecutor detailed the two charges contained in the indictment: count one, possession of marijuana, one to three times the bulk amount with a specification of a prior drug trafficking conviction; and count two, a drug trafficking offense with a specification of a prior conviction; thereafter the prosecutor set forth the nature of the Alford plea, entirely deleting reference to count two and removing the prior conviction specification from count one, thereby rendering that count a felony of the fourth degree punishable by terms of 6, 12, or 18 months and a possible $2,500 fine. That transcript also reflects the court determined Stewart to be a twenty-eight-year-old graduate of East High School able to read and write and able to follow the proceedings as they occurred in the courtroom; furthermore, at that time, Stewart denied that anyone promised him anything or threatened him in any way in order to induce his plea. He also admitted to the court that he wanted to cut down possible exposure and to enter his plea because of the circumstances of the case but to still be able to maintain his innocence. This is the essence of an Alford plea. As defense counsel Potts explained during his testimony, *** we pretried this case at least a half dozen times. The Prosecution made full disclosure to us about what the evidence was, and I certainly was aware of his prior criminal record. I - 7 - realized that what specifically happened here was that a co-defendant had on the day that this plea was entered -- agreed at that 11th hour to testify for the State of Ohio at the request of the Prosecution and involved my client. And I explained to him that it would be necessary for him to get on the stand and tell the jury what she was saying was not true. I further advised him this based upon his prior drug conviction that the odds of him being disbelieved in that disclaimer were remote. That he was at great peril in this case. That there was an opportunity to enter a plea to a reduced charge and avoid harsher sanctions. And that he was not in good shape on this case. (Tr. 37.) Hence, the record before our court contains a basis for the actions of the appellant at the time he entered the Alford plea to the amended indictment. In North Carolina v. Alford (1970), 400 U.S. 25, the Supreme Court of the United States determined that a trial court may accept a guilty plea, despite protestations of innocence, where "***a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." We therefore conclude the appellant was afforded a full hearing pursuant to Crim. R. 11 before he entered his plea. Thirdly, we consider whether the court conducted a hearing on the motion to withdraw the plea. The record before us contains a complete transcript of that hearing during which former defense attorney Timothy Potts and Stewart both testified for the defense, and although newly retained defense counsel maintained that a tape recorded statement of the co-defendant - 8 - McKennan established his innocence, that tape was neither made an exhibit nor is a part of the record and, therefore, it is not subject to our review. We are satisfied, however, the trial court complied with the third part of the Peterseim test in that the court conducted a full hearing on this matter. Finally, regarding the issue of whether the court gave fair consideration to the plea withdrawal request, we note that the record reflects the court initially denied the motion without affording the appellant a hearing; this constitutes error, because the motion had been made prior to sentencing, four days after the time of the plea. However, at the time of sentencing, Stewart's newly retained defense counsel advised the court that Stewart's former counsel had forced his client to plead guilty. Upon hearing that argument, the trial court conducted a full hearing on the motion to withdraw the plea, and then denied it. This hearing cured the error and demonstrates the court's compliance with the fourth Peterseim requirement. Accordingly, based on this record, we cannot conclude the court abused its discretion in denying the motion to withdraw the plea. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO A. SPELLACY, 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 .