COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72356 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MICHAEL SUBER : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-343449. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard Bombik Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Harvey B. Bruner, Esq. Bret Jordan, Esq. Harvey B. Bruner & Associates 1600 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Michael Suber ( Suber ) appeals from the denial of his motion to withdraw his plea of guilty made prior to sentencing. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Suber was indicted in 1996 for the following: (1) one count of Kidnapping [R.C. 2905.01]; (2) three counts of Rape [R.C. 2907.02]; and, (3) one count of Attempted Murder [R.C. 2923.02 and 2903.02]1. At his arraignment, Suber pled not guilty. On February 10, 1997, the date originally scheduled for trial, the defense rejected a plea bargain offer to one count of Rape and one count of Attempted Murder, which offer carried a potential minimum term of imprisonment of three years and a maximum term of imprisonment of eighteen years if the sentences were run consecutively, or three to ten years if the sentences were run concurrently. The trial date was rescheduled to February 19, 1997. On February 19, 1997, the prosecution reiterated its plea bargain offer, which was again refused by the defense. The trial court then rescheduled the trial date to February 25, 1997. On the day of his rescheduled trial, February 25, 1997, during jury selection, Suber accepted the prior plea bargain and changed his plea of not guilty, to guilty to one count of Rape and one count of Attempted Murder2. The court then immediately conducted a plea hearing 1The potential maximum term of imprisonment for these offenses is forty-eight years. 2Up to this point, Suber was represented by assigned counsel Mr. Thomas E. Shaugnessey. -3- pursuant to Crim.R. 11, accepted the plea, and referred the matter for the preparation of a presentence investigation report. On March 17, 1997, Suber filed a pro se motion to withdraw his plea of guilty, alleging that he was coerced by counsel to plead guilty even though he was innocent. On March 19, 1997, Suber's new counsel3 filed a similar motion to withdraw the plea of guilty, again alleging coercion by the prior counsel and that Suber's sole purpose for pleading guilty was to obtain a lesser sentence. On March 21, 1997, at the scheduled sentencing hearing, the court heard arguments on the motions, denied same, and then sentenced Suber to ten years on each count with sentences to be served concurrently. This timely appeal from the denial of the motions followed. The lone assignment of error presented by Suber provides: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING DEFENDANT- APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS PLEA. This court had an opportunity to discuss the denial of a presentence motion to withdraw a guilty plea in the case of State v. Sabatino (Cuyahoga, 1995), 102 Ohio App.3d 483, 487, in which was stated the following: Crim.R. 32.1 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 3This new counsel is attorney Harvey B. Bruner, who now represents Suber on the appeal sub judice. -4- judgment of conviction and permit the defendant to withdraw his plea." Prior to sentencing, a properly made motion to withdraw a guilty plea should be freely allowed and treated liberally. Eastlake v. DeNiro (1984), 21 Ohio App.3d 102, 21 OBR 109, 487 N.E.2d 324; State v. Peterseim (1980), 68 Ohio App.2d 211, 22 O.O.3d 341, 428 N.E.2d 863. However, a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraph one of the syllabus. A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. Id. Moreover, the decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Id., paragraph two of the syllabus. Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. Id. at 526, 584 N.E.2d at 719, quoting Peterseim, supra, 68 Ohio App.2d at 213-214, 22 O.O.3d at 343, 428 N.E.2d at 865. Accord State v. Rosemark (Lorain, 1996), 116 Ohio App.3d 306; State v. Abdelhag (July 31, 1997), Cuyahoga App. No. 71136, unreported, 1997 WL 428647; State v. Hurney (July 31, 1997), Cuyahoga App. No. 71053, unreported, 1997 WL 428651; State v. Gravely (February 20, 1997), Cuyahoga App. No. 70837, unreported, 1997 WL 72137; State v. Wilson (November 27, 1996), Cuyahoga App. Nos. 70328-70329, unreported, 1996 WL 684342; State v. McGowan (October 3, 1996), Cuyahoga App. No. 68971, unreported, 1996 WL 563618; State v. Frank (April 29, 1993), Cuyahoga App. No. 62201, unreported, 1993 WL 135831. In reviewing the record of February 25th, it is true that Suber was hesitant at first in considering whether to accept the -5- proposed plea bargain. The following colloquy, which occurred prior to the commencement of the trial and after the plea offer was put on the record and defense counsel had lengthy comments about it on the record, demonstrates Suber's weak protestation of innocence and the court's response to any threat to the voluntariness of any proposed plea: THE COURT: Well, Mr. Shaughnessey has indicated that he has made you aware of the offer that is on the table and his own professional evaluation of what you might expect and, obviously, there are no promises or guarantees once a case gets to a jury either way, but have you reached a decision as to how you want to proceed? The jury is waiting there. If you want, we will bring them out. If not, we can proceed to handle it otherwise. It's up to you though. You are the one who has to face the consequences. It is your decision either way. I just want to know where you stand. THE DEFENDANT: I don't know where I stand right now, your Honor. Part of me wants to plead guilty so that I wouldn't have to face the possibilities (sic) of spending the rest of my life in prison but the better parts of me wants to plead not guilty because I am innocent of the charges. THE COURT: I do not want you to plead to something that you did not do just to make your lawyer happy or the Prosecutor happy or me happy. We are all here to do our jobs. The only reason that we do a plea is if you feel that it is in your best interest, based on how the evidence will come down and what a jury might reasonably do, but, as I say, it is ultimately your decision. *** (Plea Hrg. R. 5- 6.) Thereafter, Suber decided to accept the plea offer after consulting with counsel off the record. The court then conducted a plea hearing in strict conformity with Crim.R. 11. In -6- particular, the two offenses were detailed and the plea, the consequences of the plea and the possible sentences were explained. Also, the waiver of constitutional rights was explained, as was the fact that the offenses were nonprobationable and that under new sentencing guidelines Suber would have to register as a sex offender upon release from prison. Suber, when addressed by the trial court, stated affirmatively: (1) that he heard and understood what had been said at the hearing (Plea Hrg. R. at 11); (2) that he was a high school graduate and was not under the influence of any drugs or alcohol (Plea Hrg. R. at 11); (3) that he understood the constitutional rights he was waiving by pleading guilty (Plea Hrg. R. 12); (4) that he understood the potential penalties for the two offenses which formed the plea bargain (Plea Hrg. R. at 13); (5) that he was guilty of the two offenses which formed the plea bargain (Plea Hrg. R. at 16); (6) that no one had made any threats or promises to him in order to get him to plead guilty (Plea Hrg. R. at 16); and, (7) that it was his own decision to plead guilty at that time (Plea Hrg. R. at 16-17). Based on the foregoing, the trial court determined that Suber understood his constitutional rights, that he knowingly and voluntarily waived those rights, and that he willingly entered the plea of guilty. The trial court then accepted the guilty plea and referred the matter for the preparation of a presentence investigation report. At the time of sentencing, the trial court, armed with knowledge of the presentence report and the medical reports of the attack on the victim, conducted a hearing on the motions to -7- withdraw. At that time, attorney Bruner abandoned the motion argument that attorney Shaugnessey had coerced Suber into pleading guilty. See Sentencing Hrg. R. at 33 ( ..., we are not suggesting Mr. Shaughnessey coerced Mr. Suber in any way. ) Instead, attorney Bruner argued that Suber had maintained his innocence on the date of his plea as part of an Alford4 plea and that the subsequent motions to withdraw the guilty plea did not reflect simply a change of heart on Suber's part. Despite the protestation of innocence relied upon above, which incidentally was not raised at the time the defendant entered the guilty plea, but was voiced prior to the entry of the guilty plea, thereby negating the guilty plea being characterized as an Alford plea, we conclude that the statements of the defendant made during the plea hearing in response to questions put forth by the trial court refute the claim of innocence and does not constitute a valid Alfordplea. State v. Shell, supra; State v. Hurney, supra. Even if we were to assume that the plea was a valid Alford plea, the record demonstrates that the guilty plea was voluntarily and intelligentlyentered in accordance with State v. Piacella (1971), 27 Ohio St.2d 92, 271 N.E.2d 852, syllabus, which states: 4See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, which recognized that a plea of guilty may be accepted despite protestations of innocence at the time the guilty plea is entered provided that voluntariness of the plea is established in the record. In order to constitute an Alford plea, it is necessary that the protestation of innocence accompany the defendant's guilty plea. State v. Shell (October 7, 1997), Cuyahoga App. No. 71736, unreported, 1997 WL 675448, at 5, citing State v. Hurney, supra, and State v. Najeeullah (October 3, 1996), Cuyahoga App. No. 70126, unreported, at 3. -8- Where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made. Also see State v. Williams (September 25, 1997), Cuyahoga App. Nos. 70998-71000, unreported, 1997 WL 599378. Having demonstrated full compliance with Piacella, there are no grounds for reversing the trial court's acceptance of the guilty plea or the denial of its withdrawal. Assignment overruled. Judgment affirmed. -9- 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. PATRICIA A. BLACKMON, A.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .