[Cite as State v. Hill, 2014-Ohio-26.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 99564




                                         STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                          VIRGIL HILL
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-560942

        BEFORE: Keough, J., Stewart, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: January 9, 2014
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, OH 44119

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Marcus A. Henry
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

          {¶1} Defendant-appellant, Virgil Hill, appeals from the trial court’s denial of his

presentence motion to withdraw his guilty pleas. We affirm the trial court’s decision and

Hill’s conviction.

                                        I. Background

          {¶2} Hill was charged in a seven-count indictment with two counts of

kidnapping (one that included a sexual motivation specification), aggravated robbery,

felonious assault, disrupting public services, and two counts of rape. The alleged victim

was Hill’s on-again/off-again girlfriend.

          {¶3} Hill was referred to the court psychiatric clinic, that found him sane at the

time of the offenses and competent to stand trial, although the reports noted that Hill has

only an eighth-grade education, cannot read or write, and takes medications for anxiety

and depression. The reports also indicated that Hill sometimes “hears voices” but is not

psychotic.

          {¶4} On the day of trial, Hill appeared with counsel and pleaded guilty to

assault, a first-degree misdemeanor, and sexual battery, a felony of the third degree and

Tier III sex offense that requires Hill to register every 90 days for life.

          {¶5} Before sentencing, Hill filed a motion to withdraw his guilty plea. The

trial court denied Hill’s motion and sentenced him to an aggregate term of 42 months in

prison.
                                        II. Analysis

       {¶6} In his single assignment of error, Hill contends that the trial court abused its

discretion in denying his presentence motion to withdraw his guilty plea. He argues that

his claim of innocence, his mental health, and other issues required vacating his plea.

       {¶7} 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.”

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

and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (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 reasonable legitimate basis for the withdrawal of the plea.”

Id. at paragraph one of the syllabus.

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

the trial court’s discretion. Id. at paragraph two of the syllabus. Absent an abuse of

discretion, the trial court’s decision must be affirmed.       Id. at 527.    An abuse of

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

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(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, 68 Ohio App.2d 211, 428 N.E.2d 863

(8th Dist.1980), paragraph three of the syllabus.

       {¶10} 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, 2013-Ohio-3146, ¶ 27,

quoting State v. Kramer, 7th Dist. Mahoning No. 01-CA-107, 2002-Ohio-4176, ¶ 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, 2012-Ohio-3571, citing State v. Drake, 73 Ohio App.3d 640, 645, 598 N.E.2d 115

(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.

Minifree, supra, citing State v. Bloom, 8th Dist. Cuyahoga No. 97535, 2012-Ohio-3805, ¶

13.

       {¶11} On review, we find the trial court did not abuse its discretion in denying

Hill’s motion to withdraw his guilty plea. The record shows that Hill was represented by

competent counsel and that he 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 Hill to ensure that he understood the charges against him and the maximum

penalties involved (including the lifetime reporting requirements and possible penalties
for not following the reporting requirements), the effect of his guilty plea, and the rights

he was waiving by pleading guilty. Hill denied being threatened or promised anything in

exchange for pleading guilty, indicated his satisfaction with counsel’s advice, and stated

that he understood what was happening and what his choices were. After the trial judge

told Hill that “this is your decision, not your attorney’s decision, not your family’s

decision,” and that Hill’s sentence would not be affected by whether he pled guilty or

went to trial, Hill unequivocally stated that he wanted to waive his right to a jury trial and

plead guilty.

       {¶12} The record also demonstrates that the trial court gave Hill 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,

counsel told the trial court that Hill wanted to withdraw his plea because he had pled

under fear and duress, even though he was innocent. The court listened to the state’s

response to Hill’s motion and to argument from counsel for Hill, and then gave Hill an

opportunity to speak. Hill told the judge that he was nervous when he pled guilty and he

did not want to be “labelled” because although he was “not saying I’m innocent,” he did

not rape the victim.

       {¶13} The trial court then reviewed the plea colloquy. It noted that Hill was

represented by competent counsel at the plea hearing. It further noted that before taking

Hill’s plea, the trial court had explored any mental health or other issues that might

prevent Hill from making a valid plea and had told him that it would not sentence him any
differently whether he pleaded guilty or went to trial, and that the decision was his alone

to make if it was the best thing for him. Specifically with respect to Hill’s claim of

innocence, the trial court noted that Hill had responded affirmatively when the court

asked him whether there was a legitimate basis in fact and law for the charges to which he

would be pleading guilty. Accordingly, the trial court concluded that Hill had made a

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

withdrawing the plea.

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

argument on appeal, he was not forced to plead guilty nor was his plea given reluctantly

and only at the prodding of the court. Moreover, Hill’s claim of innocence fails based on

Hill’s admission to the trial court that he was “not completely innocent.” In fact, his

motion to withdraw seems to be predicated upon a change of heart based on the reporting

requirements associated with Tier III sex offenses, an insufficient justification for the

withdrawal of the plea. Thus, Hill’s claimed innocence was 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 Hill’s presentence motion to withdraw his guilty plea.

Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, at ¶ 28.

       {¶15} 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. 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

EILEEN T. GALLAGHER, J., CONCURS;
MELODY J. STEWART, P.J., CONCURS WITH
SEPARATE OPINION



MELODY J. STEWART, P.J., CONCURRING:

       {¶16} I concur with the decision in this case, but write separately to question

whether the trial court adequately inquired about the guilty plea to sexual battery.   There

is no question that Hill entered his guilty pleas reluctantly, and all along he maintained his

innocence regarding the sex offenses.      Because of this, the trial court was required to

conduct a factual inquiry into the basis for the guilty plea to sexual battery.

       {¶17}    There are instances where a court will allow a defendant to plead guilty to

an offense despite his insistence that he is innocent. See North Carolina v. Alford, 400

U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). However, because there are significant

due process concerns involved with allowing a person who maintains his innocence to

plead guilty, the United States Supreme Court stated that defendants may knowingly and
voluntarily plead guilty even while protesting their innocence if the judge finds “strong

evidence of [the defendant’s] actual guilt.” Id. at 37-38. Ohio courts have insisted that

there be a factual basis for a guilty plea made at the same time the defendant is

maintaining his innocence. See State v. Parham, 11th Dist. Portage No. 2011-P-0017,

2012-Ohio-2833, ¶ 33.

       {¶18}   Before entering his plea, Hill told the court that “I’m not saying I’m not —

I’m not guilty, but I’m not saying — I’m not guilty of that rape, but she put her hands on

me; and, yes, I did retaliate[.]”   Admittedly, this statement gave the court some factual

basis for the guilty plea to assault, but not the sexual battery. Although Hill specifically

maintained that he did not “rape” the victim as opposed to committing any kind of sexual

offense against her, the distinction is a legal one that Hill obviously did not, or could not

appreciate because, at that point the state had agreed to dismiss the rape count.

       {¶19}   Hill pleaded guilty to sexual battery under R.C. 2907.03(A)(1), which

states that “no person shall engage in sexual conduct with another, not the spouse of the

offender, when * * * [t]he offender knowingly coerces the other person to submit by any

means that would prevent resistance by a person of ordinary resolution.”             During

sentencing, the state recounted the events of the offenses as follows:

       Your Honor, the facts of this case grow out of the fact that the victim and
       the Defendant knew one another, they had a prior romantic relationship.
       On the day of this occurrence there was a conversation between the two of
       them. The victim in this case, * * *, went to see Mr. Hill. Mr. Hill had
       promised [her] that he would pay for her cab fee to come over there.

       When she arrived, he refused to pay the cab fee and they essentially stiffed
       the cab and embarrassed [the victim]. It was yet another disappointment,
       she had stated, from Mr. Hill. She decided to get out of the cab and walk
       away from Mr. Hill. Then he proceeded to assault her. He punched her
       in both of her eyes, he punched her in the mouth, split both her upper and
       her lower lip, chipped her tooth which, to this day, is still not fixed.

       And then he took her to his uncle and aunt’s house. Both of them were
       kicked out of there by his relatives. They both went over to a friend’s
       house. And at that point Mr. Hill had made some sexual advances on [the
       victim]. At the time [the victim] decided to have sex with Mr. Hill, but she
       did so and she told the hospital staff, she told the State, she told the police
       that she did so because she was afraid that if she didn’t have sex with him
       that he would assault her again.

(Emphasis added.)

       {¶20} Given the victim’s submission to Hill’s advances, it can be understood why

Hill insisted that he did not rape or sexually assault the victim. Admittedly, there was an

element of coercion in light of his earlier assault on her, but there was such a significant

break in time between the assault and the sexual conduct that the assault could be too

remote to coerce the victim to submit to the sexual conduct. In other words, it is highly

unlikely that any court would find the assault and the sexual conduct to be allied offenses

because of the lapse in time between the two events.        Had the court made a further

inquiry, it may have found that there was no factual basis for accepting Hill’s guilty plea

to sexual battery in the first place — or, that the lack of a factual basis was reason enough

to allow the withdrawal of his plea.
