 [Cite as State v. Kennedy, 2013-Ohio-4243.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 PATRICK L. KENNEDY

         Defendant-Appellant


 Appellate Case No.       25283

 Trial Court Case No. 2011-CR-231

 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                              Rendered on the 27th day of September, 2013.

                                               ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                               .............
                                                                                              2



WELBAUM, J.



                                           I. Introduction

        {¶ 1}     Appellant, Patrick Kennedy, seeks reversal of his convictions and prison

 sentence of 15 years to life for convictions for two counts of Rape of a child less than ten years of

 age and three counts of Gross Sexual Imposition involving children less than 13 years of age.

 Kennedy claims that the trial court erred when it overruled his second motion to suppress his

 confession and his motion to withdraw his pleas of no contest.             We overrule Kennedy's

 assignments of error and affirm the trial court judgment.



                                II. Facts and Course of Proceedings

                                    A. The Suppression Hearing

        {¶ 2}     Officer John Garrison arrived at Children's Medical Center on January 17, 2011,

 at around 6:00 p.m., on report of a sexual assault. After arriving, Garrison learned that a

 nine-year-old child, “J.,” had told her mother and hospital personnel words to the effect that

 Patrick Kennedy had sexually assaulted her. Kennedy was a family friend and babysitter who

 had accompanied J. and her mother to the hospital. While Kennedy sat in the waiting room,

 Officer Garrison and his supervisor, Sergeant Clark, told Kennedy that although he was not under

 arrest, he was going to be detained in connection with a complaint of sexual assault. The officers

 then handcuffed Kennedy and placed him in a police car.

        {¶ 3}     When Detective Jerome Dix arrived, he learned that J. had told social worker,

 Monica Ascar, that Kennedy babysat J. and her female cousins at his apartment. J. also said that
                                                                                           3


several times over the past couple of years, Kennedy had placed his hands on the bare skin

surrounding her vaginal area and on her bare chest. J. had seen Kennedy do the same thing to

her cousins.

        {¶ 4}       In addition, J's mother, “W.,” told Dix that she found out about the abuse from

her sister after one of J's cousins told her mother about what Kennedy had done. Upon hearing

this, W. asked J. if this was true, and J. said that it was.

        {¶ 5}       Kennedy was placed under arrest at around 8:30 p.m., and was taken to an

interview room at the police department. After concluding his interview of J., Detective Dix

then met with Kennedy at 10:00 p.m. Detective Bill Swisher was also present.

        {¶ 6}       The interview room was slightly more than six by nine feet, with a desk and

three chairs to comfortably accommodate three people. Detective Dix was told that Kennedy

had been offered something to drink and a restroom break before and during the interview. Both

officers were also in plain clothes and neither was armed. Dix began the interview by informing

Kennedy that he had been accused of a crime and stated that accusations and the truth can be

different things.

        {¶ 7}       Detective Dix advised Kennedy of each of his Miranda rights verbatim, using a

pre-interview form that listed the crime under investigation as Rape. When Dix asked Kenney

whether he understood each right, Kennedy verbally acknowledged that he understood and placed

his initials next to each right. Kennedy said he was a high school graduate and college student.

He denied being under the influence of drugs or alcohol and spoke coherently and appropriately,

having no apparent difficulty understanding or answering questions. When Kennedy was asked

to read the waiver out loud, he stumbled only on the word “coercion,” which Detective Dix
                                                                                            4


explained to him as pressure. Dix told Kennedy that he intended to have a friendly, voluntary

conversation to discuss the situation and wanted to give Kennedy an opportunity to tell his side of

the story.

        {¶ 8}      After acknowledging his understanding of the waiver portion of the form,

Kennedy agreed to speak with the detectives and signed the form. The interview lasted one hour

and fifteen minutes. Kennedy eventually admitted performing repeated oral sexual acts upon J.

and her cousin, “P.,” over the course of about a year. Kennedy first made the admissions

verbally. Then, the detectives left Kennedy in the room alone while he hand-wrote a confession.



        {¶ 9}      After the detectives returned to the room, the tone of the conversation escalated

briefly. Kennedy became upset and asked the detectives to stop the interview.

        {¶ 10}     Following the interview, Kennedy was indicted on two counts of Rape of a child

under the age of ten. Subsequently, he was re-indicted, with the addition of seven counts of

Rape under the age of ten and fourteen counts of Gross Sexual Imposition of a person under the

age of thirteen.



                               B. Motion to Withdraw Pleas Hearing

        {¶ 11}     Attorney David Stenson, who was appointed, negotiated a plea bargain.

Kennedy entered a plea of no contest to two counts of Rape and three counts of Gross Sexual

Imposition. In exchange, the State dismissed seven counts of Rape and 11 counts of Gross

Sexual Imposition. The State and Kennedy agreed to an aggregate prison sentence of 15 years to

life. The trial court then ordered a pre-sentence investigation.
                                                                                             5


       {¶ 12}     Prior to sentencing, Kennedy filed a motion to withdraw his plea with

newly-appointed counsel. In his affidavit in support of the motion, Kennedy stated that he: (1)

felt pressured by his attorney to accept the plea offer; (2) felt that counsel believed he was guilty;

(3) did not believe that counsel had his best interest at heart; and (4) felt like he had been scared

into taking the deal.

       {¶ 13}     At the hearing on the motion to withdraw, Kennedy testified about the claims

contained in his affidavit. According to Kennedy, Detective Dix had lied to him and had

pressured him into confessing to numerous crimes that he had not committed.                        On

cross-examination, however, Kennedy admitted that Mr. Stenson was concerned with his chances

of success at trial and the very real possibility that if he were convicted, he would spend the rest

of his life in prison. Kennedy agreed that Mr. Stenson had reviewed the plea form with him

before they came into court, and that Kennedy had informed the court that his pleas were

voluntary.

       {¶ 14} Attorney Stenson testified that he did not pressure Kennedy into entering a plea.

Stenson stated that he had encouraged Kennedy to enter a plea based on the likelihood of a

conviction, but left the decision to Kennedy. Stenson further said that he was comfortable going

to trial, after having spent more than 20 years practicing criminal law.

       {¶ 15}     Stenson also testified that he had been actively preparing for trial prior to

Kennedy's decision to change his plea. Stenson described his five to seven meetings with

Kennedy, his personal review of discovery, and Kennedy's additional knowledge of the discovery

from working with his prior attorneys. Stenson met with prosecutors, examined exhibits, and

was negotiating possible stipulations.
                                                                                             6


       {¶ 16}     Stenson additionally met with Kennedy for 25-30 minutes at the courthouse and

reviewed the plea form. Attorney Stenson told Kennedy that he thought it was in his best

interest to accept the plea offer, but also said that if Kennedy wanted a trial, he was prepared.

       {¶ 17}     Furthermore, Attorney Stenson told Kennedy that he thought Kennedy’s defense

was weak. Without additional facts or witnesses, the only defense remaining was to advocate

that the victims and their mothers were lying, that Kennedy, himself, had lied when he confessed,

and that, while some of the victims had contracted chlamydia, the same sexually transmitted

disease as Kennedy had, that someone else had given the disease to the victims.

       {¶ 18}     Deputy Elizabeth Jerome also testified at the hearing. Jerome was the deputy

who had transported Kennedy to court on the day of the plea.              Jerome testified that she

overheard Mr. Stenson tell Kennedy that he would take the case to trial. She heard Kennedy

answer that he did not want a trial. In addition, Jerome heard Kennedy admit to sexual activity

with the girls consistent with what J. had accused him of doing.

       {¶ 19}     After hearing the evidence, the trial court overruled Kennedy’s motion to

withdraw his pleas. Kennedy appeals from his convictions and sentences for two counts of Rape

and three counts of Gross Sexual Imposition.



                III. Did the Trial Court Err in Overruling the Motion to Suppress?

       {¶ 20}     Kennedy’s First Assignment of Error is as follows:

                The trial court erred in overruling Kennedy's motion to suppress.

       {¶ 21}     Under this assignment of error, Kennedy claims that his statements are the

product of coercive police conduct in the form of overreaching, promises of leniency, and flattery
                                                                                         7


of hope. Kennedy cites the following examples, paraphrasing in part:

                You don't want to be presented as a monster. These kids aren't liars. Do

       you wanna hurt these kids? Six kids have the same story. Motion to Suppress

       Interview Video, 19:06.

                Don't hurt the victims more. Let them have peace. Id. at 21:08.

                Why would they lie? They love you. They don't want you to continue to

       lie. A jury will bury you. Id. at 24:00.

                Don't you want help? Id. at 27:40.

                Give the victims peace. Id. at 28:05.

                What happened in your childhood to make you do this?          Maybe you

       should have got counseling. Let them be free. Let them heal. Don't make us go

       back to them and tell them they have to get on the stand. Let them know you are

       sorry. You don't want them acting out. Id. at 43:00-46:00.

                (Mr. Kennedy): Can I get counseling? (Detective Dix): Yes, there are

       plenty of systems to get help. Id. at 45:00-46:00.

       {¶ 22}    We recently summarized the law governing Miranda waivers and voluntariness

in State v. Strickland, 2d Dist. Montgomery No. 25545, 2013-Ohio-2768, as follows:

                “The Fifth Amendment to the United States Constitution and Article I,

       Section 10 of the Ohio Constitution guarantee that no person in any criminal case

       shall be compelled to be a witness against himself.” State v. Jackson, 2d Dist.

       Greene No. 02CA0001, 2002-Ohio-4680, ¶ 19.           “A suspect may waive his

       constitutional right against self-incrimination, provided that waiver is voluntary.
                                                                                  8


A suspect's decision to waive his privilege against self-incrimination is made

voluntarily absent evidence that his will was overborne and his capacity for

self-determination was critically impaired because of coercive police conduct.”

(Citations omitted). Id. at ¶ 20.

       “The issues of whether a confession is voluntary, and whether a suspect

has been subjected to custodial interrogation so as to require Miranda warnings,

are analytically separate issues.”     (Citations omitted). Id. at ¶ 21. “The due

process clause continues to require an inquiry, separate from custody

considerations, concerning whether a defendant's will was overborne by the

circumstances surrounding the giving of his confession.” (Citations omitted). Id.

“This due process test takes into consideration the totality of all the surrounding

facts and circumstances, including the characteristics of the accused and the

details of the interrogation.”      Id. “Factors to be considered include the age,

mentality, and prior criminal experience of the accused; the length, intensity and

frequency of the interrogation; the existence of physical deprivation or

mistreatment; and the existence of threats or inducements.” (Citation omitted).

Id.

       “[A] confession may be involuntary and subject to exclusion if on the

totality of the circumstances the defendant's will was overborne by the

circumstances surrounding the giving of that confession.” (Citation omitted). Id.

at ¶ 22. “If all of the attendant circumstances indicate that the confession was

coerced or compelled, it cannot be used to convict the defendant.             That
                                                                                           9


       determination depends upon a weighing of the pressure to confess against the

       power of resistance of the person confessing.” Id. Strickland at ¶ 9-11.



                                           A. Miranda

       {¶ 23}    The trial court concluded that Kennedy voluntarily, knowingly, and intelligently

waived his Miranda rights after the detectives explained the rights and Kennedy acknowledged

that he understood his rights. We agree.

       {¶ 24}    The tone of the conversations between the detectives and Kennedy was cordial

until shortly before Kennedy terminated the interview. Kennedy told the detectives he was a

college student. He also had prior experience with the criminal justice system and was familiar

with Miranda rights. Kennedy was not under the influence of drugs or alcohol. In addition,

Kennedy was informed by Detective Dix that he had been accused of rape prior to waiving his

rights, and this accusation was written on the form. Furthermore, after Dix read Kennedy each

of the rights, Kennedy verbally indicated that he understood, and he then initialed the form after

each right as another indication of his understanding. Kennedy read the waiver portion aloud,

indicated he understood his rights, and expressed his willingness to waive his rights and speak

with the detectives.

       {¶ 25}    There is no indication of coercion, or that Kennedy's will was overborne, or that

his capacity for self-determination was critically impaired because of coercive police conduct.

                                        B. Voluntariness

       {¶ 26}    Kennedy claims that his confessions were involuntary due to coercion in the

form of promises of “leniency or benefit.” State v. Arrington, 14 Ohio App.3d 111, 470 N.E.2d
                                                                                          10


211 (6th Dist.1984), paragraph two of the syllabus. Kennedy notes that this court has recognized

that “[p]romises or suggestions of leniency in exchange for waiving the Fifth Amendment

privilege create a flattery of hope, which is made even more powerful by the torture of fear that

accompany threats of punishment induced in the mind of the accused.” (Emphasis sic.) State v.

Petitjean, 140 Ohio App. 3d 517, 528, 748 N.E.2d 133 (2d Dist.2000).

       {¶ 27}    Although there are cases where false promises of leniency can be coercive when

leveraged against the possible punishment, such facts are not present here. The detectives told

Kennedy twice that his case was going to end up in court, and they made no misrepresentations of

law or offers constituting a reduction in sentence or charges. After Kennedy confessed verbally,

he asked Detective Dix if he could get counseling. Detective Dix answered that there were

“plenty of systems to get help”.      Kennedy's written confession which followed, added no

substantial incrimination beyond the prior confession.

       {¶ 28}    Although the detectives misrepresented to Kennedy that they had spoken with

the other girls, the use of deception does not make an interview coercive and does not necessarily

violate due process. State v. Steele, Slip Op. No. 2013-Ohio-2470, ___ N.E.2d ___, ¶ 22, citing

State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E. 2d 97 (1991).

       {¶ 29}    In considering motions to suppress we defer to the trial court's findings of fact.

When a trial court rules on motions to suppress, it “assumes the role of the trier of fact, and, as

such, is in the best position to resolve questions of fact and evaluate the credibility of the

witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994),

citing State v. Clay, 34 Ohio St.2d 250, 298 N.E.2d 137 (1973). As a result, when we review

suppression decisions, “we are bound to accept the trial court's findings of fact if they are
                                                                                         11


supported by competent, credible evidence.          Accepting those facts as true, we must

independently determine as a matter of law, without deference to the trial court's conclusion,

whether they meet the applicable legal standard.” Id. at 592-593.

       {¶ 30}    The facts of this case, as determined by the trial court, do not include threats,

improper promises, or inducements as alleged by Kennedy.            Furthermore, we have viewed

Kennedy's interview and conclude that the factual findings of the trial court are supported by the

record. We agree with the trial court that Kennedy's Miranda waiver was valid, and the totality

of the circumstances support the voluntariness of Kennedy's statements to the police.

       {¶ 31}    For the foregoing reasons, we overrule the First Assignment of Error.



                          IV. Did the Trial Court Abuse its Discretion

                     in Overruling Kennedy’s Motion to Withdraw his Plea?

       {¶ 32}    Kennedy’s Second Assignment of Error states that:

                The Trial Court Abused Its Discretion in Overruling Kennedy's Motion to

       Withdraw His Plea.

       {¶ 33}    Under this assignment of error, Kennedy contends that the trial court erred and

abused its discretion in refusing to allow Kennedy to withdraw his plea. In this regard, we note

that Kennedy asked for a continuance of the sentencing and his attorney, David Stenson, asked to

withdraw as counsel.     The trial court appointed new counsel, and held a hearing prior to

sentencing. Both Kennedy and Attorney David Stenson testified at the hearing.

       {¶ 34}    Kennedy testified that he wanted to withdraw his plea because he felt that

Attorney Stenson had pressured him into entering a plea. In addition, Kennedy stated that he
                                                                                            12


believed Stenson did not have his best interests in mind, was not willing to go to trial, was not

willing to present a defense, and was not willing to fight for Kennedy’s case. Attorney Stenson's

testimony contradicted Kennedy's in every material respect.          Stenson's testimony was also

corroborated by Deputy Elizabeth Jerome. After hearing the testimony, the trial court found

Stenson and Jerome's testimony more credible.

       {¶ 35}      The general rule is that motions to withdraw a plea of guilty or no contest should

be freely and liberally granted. However, “a defendant does not have an absolute right to

withdraw a plea before sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715

(1992). A defendant has the burden of demonstrating that “there is a reasonable and legitimate

basis for the withdrawal of the plea.” Id.     “A mere change of heart” does not provide adequate

justification. (Citation omitted.) State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632

(8th Dist.1988).

       {¶ 36}      In State v. Peterson, 7th Dist. Mahoning No. 06-MA-70, 2007-Ohio-6917, the

Seventh District Court of Appeals outlined the following factors that are weighed in considering

presentence motions to withdraw a plea:

                “(1) whether the state will be prejudiced by withdrawal, (2) the

       representation afforded to the defendant by counsel, (3) the extent of the Crim.R.

       11 plea hearing, (4) the extent of the hearing on the motion to withdraw, (5)

       whether the trial court gave full and fair consideration to the motion, (6) whether

       the timing of the motion was reasonable, (7) the reasons for the motion, (8)

       whether the defendant understood the nature of the charges and potential

       sentences, (9) whether the accused was perhaps not guilty or had a complete
                                                                                         13


       defense to the charge.” State v. Cuthbertson, 139 Ohio App.3d 895, 898-899,

       2000-Ohio-2638. Peterson at ¶ 7.

       {¶ 37} The Seventh District Court of Appeals further noted that:

                 No one of these factors is conclusive. When looking at the ninth factor,

       “the trial judge must determine whether the claim of innocence is anything more

       than the defendant's change of heart about the plea agreement.” State v. Kramer,

       7th Dist. No. 01-C.A.-107, 2002-Ohio-4176, ¶ 58. (Citation omitted.) Peterson

       at ¶ 7.

       {¶ 38}     In the case before us, the trial court considered the Cuthbertson factors in its

order overruling the motion to withdraw Kennedy's plea. The trial court found that the State

would be prejudiced because a number of witnesses, including five very young children, had been

released from their subpoenas and had attempted to put the incident behind them.

       {¶ 39}     The trial court further determined that Attorney Stenson was well-respected and

had provided the Defendant with excellent representation. In addition, the court found that

Kennedy had been well-represented at the Rule 11 change of plea hearing and motion to

withdraw pleas hearings, that both procedures were thorough, and that Kennedy's rights had been

protected. The court also found that Kennedy knew and understood the nature of the charges

and the sentence that would be imposed.

       {¶ 40} According to the trial court's findings, there is no evidence to corroborate

Kennedy's claims of innocence compared to evidence that includes his written confession,

Jerome's corroboration of Stenson's testimony, and the fact that Kennedy shares the same

sexually-transmitted disease as two of the minor victims. The trial court found that Kennedy
                                                                                              14


simply had a change of heart.

        {¶ 41}    In addition to these trial court findings in the State's favor, we find that the trial

court gave full and fair consideration to the motion. In Kennedy's favor, we find that the timing

of the motion was reasonable and the prejudice to the State was minimal. However, the trial court

did not abuse its discretion in determining that the majority of the factors and their relative values

weighed against granting the motion.

        {¶ 42}    “The decision to grant or deny a presentence motion to withdraw a guilty plea is

within the sound discretion of the trial court.” Xie, 62 Ohio St.3d at 521,584 N.E.2d 715,

paragraph two of the syllabus.        The trial court abuses that discretion when its ruling is

“ ‘unreasonable, arbitrary or unconscionable,’ which is ‘more than an error of judgment.’ ”

Peterson, 7th Dist. Mahoning No. 06-MA-70, 2007-Ohio-6917, at ¶ 8, quoting Xie at 527.

        {¶ 43}    After reviewing the evidence, we conclude that the trial court did not abuse its

discretion in overruling Kennedy's motion to withdraw his pleas of no contest. Accordingly,

Kennedy's Second Assignment of Error is overruled.



                                           V. Conclusion

        {¶ 44}    All of Kennedy’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                           .............

DONOVAN and FROELICH, JJ., concur.
                         15


Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Lucas W. Wilder
Hon. Barbara P. Gorman
