[Cite as State v. Barrett,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100047

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL J. BARRETT DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-570863

BEFORE: Keough, J., Boyle, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: March 27, 2014 ATTORNEY FOR APPELLANT

Christina Joliat P.O. Box 391531 Solon, Ohio 44139

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: John D. Kirkland Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Michael J. Barrett, appeals the trial court’s denial of his

presentence motion to withdraw his guilty plea. For the reasons that follow, we affirm

the trial court’s decision.

{¶2} In January 2013, Barrett was charged with burglary in violation of R.C.

2911.12(A)(1), a second-degree felony, and petty theft, a first-degree misdemeanor. The

charges stemmed from a home intrusion where it was alleged that Barrett entered the

victims’ home, was confronted by the victims, and then left after stealing beer from a

refrigerator located inside the garage. It was further alleged that Barrett then fled in his

car, led police on a chase, and was apprehended after he was found hiding in a garage.

{¶3} On the day of trial, Barrett appeared with counsel and pleaded guilty to an

amended charge of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony; the

petty theft charge was nolled.

{¶4} On the day of sentencing, Barrett orally moved to withdraw his guilty plea.

After the trial court conducted a hearing on Barrett’s oral motion, it denied the motion

and sentenced Barrett to 24 months in prison.

{¶5} Barrett appeals, contending in his sole assignment of error that the trial court

abused its discretion in denying his presentence motion to withdraw his guilty plea. He

argues that his claim of innocence and that the denial of effective assistance of counsel

require vacating his plea. {¶6} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.”

{¶7} In general, “a presentence motion to withdraw a guilty plea should be freely

and liberally granted.” State v. Xie,

,

(1992). It

is well established, however, that “[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 legitimate basis for the withdrawal of the plea.”

at paragraph one of the syllabus.

{¶8} The decision to grant or deny a presentence motion to withdraw is within the

trial court’s discretion.

at paragraph two of the syllabus. Absent an abuse of

discretion, the trial court’s decision must be affirmed.

. An abuse of

discretion requires a finding that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

,

(1983). A trial court does not abuse its discretion in denying a motion to withdraw the

plea where a defendant was (1) represented by competent counsel, (2) given a full

Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion

to withdraw, and (4) the record reflects that the court gave full and fair consideration to

the plea withdrawal request. State v. Peterseim,

,

(8th Dist. 1980), paragraph three of the syllabus. {¶9} When faced with a claim of innocence, “‘the trial judge must determine

whether the claim is anything more than the defendant’s change of heart about the plea

agreement.’” State v. Minifee, 8th Dist. Cuyahoga No. 99202,

,

quoting State v. Kramer, 7th Dist. Mahoning No. 01-CA-107,

, ¶ 58. 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. Westley, 8th Dist. Cuyahoga No.

97650,

, citing State v. Drake,

,

(8th Dist. 1991). Likewise, a defendant’s protestations of innocence are not sufficient

grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered.

Minifee, citing State v. Bloom, 8th Dist. Cuyahoga No. 97535,

.

{¶10} Barrett also contends his plea should be vacated because he was denied

effective assistance of counsel because he did not have a full understanding of his

potential for criminal liability under a theory of complicity. A plea will not be

considered voluntary if it is the result of ineffective assistance of counsel. State v.

Banks, 9th Dist. Lorain No. 01CA007958,

, ¶ 16. In order to prevail on

this claim, Barrett must meet the test for ineffective assistance of counsel. Xie,

,

. This requires a convicted defendant to prove two things

— counsel’s performance was deficient and the deficient performance prejudiced the

defense. Strickland v. Washington,

,

,

(1984). The claim fails if the defendant cannot satisfy either prong of the test. State v.

Bradley,

,

(1989). {¶11} In order to successfully attack a plea for a lawyer’s deficient performance,

the defendant must prove his lawyer “was not ‘a reasonably competent attorney’ and the

advice was not ‘within the range of competence demanded of attorneys in criminal

cases.’”

, quoting McMann v. Richardson,

,

,

(1970). All properly licensed Ohio lawyers are presumed

competent. Banks at ¶ 16. Furthermore, in evaluating a lawyer’s performance, a

reviewing court must “indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

, quoting

.

{¶12} On review, the record shows that Barrett was represented by competent

counsel and was not denied effective assistance of counsel. At the plea hearing, counsel

stated on the record that she had advised Barrett of his rights and “the evidence that [the

state] would present if we were to go to trial, under a theory of complicity.” Even after

so advising, defense counsel told the court that Barrett would be pleading to the plea

agreement previously set forth on the record. Additionally, counsel acknowledged that

“there is a factual basis for the plea under the theory of complicity to this crime.”

{¶13} The court questioned the parties about the evidence of complicity that would

have been presented in this case. The state briefly stated the facts of the case, indicating

that Barrett was involved, but also acknowledging that there may have been a second

party involved. The court further inquired as to what evidence existed proving that

Barrett aided and abetted someone else. The state then extensively set forth the facts of the case, implicating Barrett. Following the state’s presentation, the court further

inquired “where on those facts is the theory of complicity?” Defense counsel then

advised the court of the weaknesses in the state’s case, including that Barrett was not

identified by the victims as the home intruder. Following this extensive inquiry, the

court stated it was satisfied that there was a factual basis for the plea. All of these facts

were set forth on the record, in open court, in the presence of Barrett, and on the day of

trial. The trial court then engaged in a colloquy with Barrett where he affirmatively

stated that he “understood everything that has been said at the hearing so far.”

{¶14} Accordingly, the record shows that Barrett was represented by competent

counsel at the time of the plea. Barrett’s claim that he was denied effective assistance of

counsel is also without merit because he has failed to demonstrate on appeal how his trial

counsel’s performance was deficient, the first prong of the Strickland test. Rather, the

record shows that Barrett, after discussing his case with non-lawyer acquaintances,

merely had a change of heart.

{¶15} Considering the other Peterseim factors, the record shows that Barrett was

given a full hearing in compliance with Crim.R. 11 before entering his plea. At the plea

hearing, the trial court conducted an extensive inquiry of Barrett to ensure that he

understood the charges against him and the maximum penalties involved, the effect of his

guilty plea, and the rights he was waiving by pleading guilty. Barrett also denied being

threatened or promised anything in exchange for pleading guilty. {¶16} The record further demonstrates that the trial court gave Barrett a complete

and impartial hearing on his presentence motion to withdraw his guilty plea and gave full

and fair consideration to the arguments raised in support of his motion. At the hearing,

defense counsel stated that Barrett wanted to withdraw his plea because (1) he was not the

actual person who entered the victims’ home, (2) he subsequently learned that the trial

judge was a victim of a burglary, and (3) the car was not fingerprinted.

{¶17} After listening to the state’s response, the trial court reiterated what

occurred during the plea colloquy. It noted that the arguments Barrett made in support of

withdrawing his plea were raised at the time Barrett changed his plea to guilty, the same

day that Barrett’s case was set for trial. It noted that Barrett was represented by

competent counsel at the plea hearing. The court further noted that before taking

Barrett’s plea, the trial court had listened to the factual basis for the amended charge.

Specifically with respect to Barrett’s claim of innocence, the trial court noted that Barrett

had responded affirmatively when the court asked him whether he understood what had

been said during the plea hearing regarding the state’s theory of complicity in connection

with the burglary. Accordingly, the trial court concluded that Barrett had made a

knowing, voluntary, and intelligent guilty plea and had not demonstrated a basis for

withdrawing the plea.

{¶18} We find no abuse of discretion in the trial court’s ruling. Contrary to

Barrett’s argument on appeal, there is nothing in the record to suggest that the trial judge

exerted any bias towards Barrett or that the trial judge’s own personal experiences affected the court’s ability to be fair and impartial. Moreover, Barrett has failed to

demonstrate how his subsequent knowledge about the trial judge’s alleged personal

experiences rendered his plea unknowing, involuntary, or unintelligent. There is nothing

in the record to even remotely suggest that Barrett was induced into entering the guilty

plea based on the trial judge’s personal experiences.

{¶19} Furthermore, the factual basis for the plea was so extensively set forth at the

plea hearing that if Barrett did not understand his criminal liability under a theory of

complicity, he should have expressed his misunderstanding at the plea hearing, rather

than affirmatively responding to the court’s question of whether he “understood

everything that has been said at the hearing so far.”

{¶20} In fact, Barrett’s motion to withdraw seems to be predicated upon a change

of heart based on the fact that he received advice from non-lawyer acquaintances and

learned that the trial judge was a victim of a crime. These are insufficient justifications

for the withdrawal of the plea. Barrett’s arguments were not sufficient to warrant the

withdrawal of his knowing, voluntary, and intelligent guilty plea, and the trial court did

not abuse its discretion in denying Barrett’s presentence motion to withdraw his guilty

plea. Accordingly, the assignment of error is overruled.

{¶21} Judgment affirmed.

It is ordered that appellee recover from 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.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and MELODY J. STEWART, J., CONCUR