[Cite as State v. Taylor, 2011-Ohio-2150.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95339




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   TEVIN P. TAYLOR
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-531560

        BEFORE: Celebrezze, J., Blackmon, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                        May 5, 2011
ATTORNEY FOR APPELLANT

Bruce M. Courey
5546 Pearl Road
Parma, Ohio 44129


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Tevin Taylor, appeals the decision of the trial court

denying his request to withdraw his guilty plea. After a thorough review of

the record and relevant case law, we affirm.

      {¶ 2} On December 10, 2009, appellant was indicted by a Cuyahoga

County Grand Jury in a 13-count indictment.        He was charged with four

counts of aggravated burglary in violation of R.C. 2911.11(A)(2), felonies of

the first degree; four counts of kidnapping in violation of R.C. 2905.01(A)(2),

felonies of the first degree; four counts of aggravated robbery in violation of

R.C. 2911.01(A)(1), felonies of the first degree; and one count of felonious

assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. In
addition, each count included one- and three-year firearm specifications and a

forfeiture of a weapon specification.

      {¶ 3} The underlying criminal charges resulted from an incident where

appellant was accused of participating in a home invasion wherein males

wore masks and brandished guns upon the victims. Further, as part of the

incident, it was alleged that appellant held a gun to a victim’s head and

subsequently discharged the firearm in her proximity.

      {¶ 4} Prior to proceeding to trial, the state and appellant reached a plea

agreement. The trial court reviewed the plea agreement on the record on

May 6, 2010.     In particular, the contemplated plea agreement included

appellant’s plea to amended counts of burglary and robbery, with all four

victims listed. Additionally, the burglary and robbery charges each included a

three-year firearm specification; however, as part of the plea agreement, the

firearm specifications would merge for purposes of sentencing.        The trial

court advised appellant that if he accepted the plea agreement, the minimum

sentence that he would face would be five to 19 years. Further, the court

informed appellant that, based on the number of victims, he would probably

receive more than the minimum sentence, but that he would not receive the

maximum possible sentence. Appellant confirmed his understanding of the

plea agreement on the record.
      {¶ 5} On May 7, 2010, the trial court held a change of plea hearing.     At

the hearing, the state advised the court and appellant that there was a

pending DNA report that was undergoing peer review, but that the results

had been made known to appellant and that a report would be provided to

appellant once it became available. The trial court advised appellant that if

there was a variation in the results or dissatisfaction with the results of that

report, the court would allow appellant to withdraw his plea without penalty.

      {¶ 6} Subsequently, the trial court engaged appellant in a thorough

Crim.R. 11 colloquy regarding the knowing, voluntary, and intelligent nature

of his plea. The trial court instructed appellant on all of his constitutional

rights. Appellant repeatedly stated that he understood the rights he was

waiving and was prepared to enter a guilty plea. Additionally, the trial court

explained the degrees of the offenses and their respective penalties, including

the fact that there would be a mandatory period of postrelease control.

      {¶ 7} Following this colloquy, appellant withdrew his previously

entered plea of not guilty and entered a plea of guilty to the amended

indictment, which included amended Count 1, burglary in violation of R.C.

2911.12(A)(1), a felony of the second degree, with a three-year firearm

specification;   and   amended   Count   2,   robbery   in   violation   of   R.C.

2911.02(A)(1), a felony of the second degree, with a three-year firearm

specification.   As part of the plea agreement, the parties agreed that the
firearm specifications would merge for purposes of sentencing.          Appellant

confirmed that no threats or promises had been made in order to induce his

plea.      The trial court found that appellant understood his constitutional

rights and made a knowing, intelligent, and voluntary waiver and plea. At

the conclusion of the plea hearing, the trial court ordered a presentence

investigation and set the matter for sentencing.

          {¶ 8} On June 7, 2010, a sentencing hearing was held.      Prior to the

court imposing sentence, appellant made an oral motion to withdraw his plea

of guilty to amended Counts 1 and 2.          When explaining the basis of his

motion to the court, appellant stated, “* * * it was — I basically made my

decision — I didn’t base my decision correct. I only had a certain amount of

time to make that decision from May 6th to May 7th, and I felt I was, like, way

pressured to it from listening to how much time I will get and how much time

I will not get. And from being under the influence during that, I just — I

judged my decision wrong, and I want to take, refuse my plea and take it to

trial.”

          {¶ 9} Appellant further stated, “[d]uring that time, all my evidence — I

just now found that out that DNA samples came back, and I felt our side was

not prepared on going to trial. And we was supposed to start trial May 19th.

* * * And I feel I wasn’t — I was not ready — I was incompetent to stand trial

at that point.”
      {¶ 10} In response to this, the following colloquy took place between the

trial court and appellant:

      {¶ 11} “COURT:    * * * You’re using some words that sound like legal

terms, but you’re using them, with no disrespect to you, incorrectly. So you

said that you felt like you were incompetent. Do you have any mental health

history?

      {¶ 12} “APPELLANT:        No, ma’am.

      {¶ 13} “COURT:    * * * so you’re saying when I went through all these

series of questions with you and talked about the range and I said to you has

anyone made any threats or promises in order to get you to plead guilty other

than what I’ve stated on the record here today, and you said no, and then I

said, whose desire is it to plead guilty at this time, and I read the counts to

you and I asked you how you pled, and you said guilty for each of those times,

that you’re saying today, now, at this moment, you didn’t have enough time to

think about that? Or you were thinking about the possibility of being found

guilty at the trial and that — you pled guilty as a decision to — knowing that

the time was less, basically?

      {¶ 14} “APPELLANT:        Yes.”

      {¶ 15} In explaining what he meant by his statement that he was

incompetent to stand trial, appellant stated, “I mean, based — I feel I based

my decision off of I was not in my right state of mind at that point in time, off
of just — I was still hearing the time that I might get if I lose trial and what

you can give me from in between. * * * I wasn’t thinking right.”

      {¶ 16} Although no formal motion was made, the court agreed to hold a

hearing to determine whether appellant’s request to withdraw his plea had

merit. In addressing the issue, the trial court applied the standards of State

v. Weakley, Cuyahoga App. No. 93282, 2010-Ohio-2464. After hearing the

basis of appellant’s motion and applying the standards derived from Weakley,

the trial court denied appellant’s motion to withdraw, stating that appellant

was represented by competent counsel, was afforded a full hearing pursuant

to Crim.R. 11 before entering the plea, was given a complete hearing on the

motion to withdraw, and was given full and fair consideration of the request

to withdraw his plea.

      {¶ 17} Thereafter, the trial court proceeded to sentencing.    Appellant

was sentenced to a term of incarceration for a period of three years on the

firearm specifications, seven years on the burglary count, and five years on

the robbery count. The counts were to run consecutively for a total term of

incarceration of 15 years.

      {¶ 18} Appellant now raises two assignments of error for review.

                                Law and Analysis

                             Motion to Withdraw Plea
     {¶ 19} In his first assignment of error, appellant argues that the trial

court abused its discretion and committed reversible error by denying his

presentence motion to withdraw his plea of guilty. We disagree.

     {¶ 20} Crim.R. 32.1 governs motions to withdraw guilty pleas and states

that “[a] motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed * * *.”        Although “presentence motions to

withdraw guilty pleas should be freely granted, a defendant ‘does not have an

absolute right to withdraw a plea prior to sentencing.’” State v. McGregor,

Cuyahoga App. No. 86165, 2005-Ohio-5561, ¶3, quoting State v. Xie (1992), 62

Ohio St.3d 521, 527, 584 N.E.2d 715. “Instead, the trial court ‘must conduct

a hearing to determine whether there is a reasonable and legitimate basis for

the withdrawal of the plea.’”   Id.   A mere change of heart is insufficient

grounds for the withdrawal of a guilty plea prior to sentencing.     State v.

Benjamin, Cuyahoga App. No. 85071, 2005-Ohio-2322, ¶9.

     {¶ 21} The decision of a trial court to grant or deny a motion to

withdraw a guilty plea is reviewed using an abuse of discretion standard.

State v. Van Dyke, Lorain App. No. 02CA008204, 2003-Ohio-4788, ¶7, citing

State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, paragraph two

of the syllabus.     To constitute an abuse of discretion, it must be

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
      {¶ 22} In determining whether the trial court abused its discretion by

denying the appellant’s motion to withdraw a plea, we consider the following

factors:       (1) whether the accused was represented by highly competent

counsel; (2) whether the accused was afforded a full hearing pursuant to

Crim.R. 11 before he entered the plea; (3) whether, after the motion to

withdraw was filed, the accused was given a complete and impartial hearing

on the motion; and (4) whether the record reveals that the court gave full and

fair consideration to the plea withdrawal request. Weakley at ¶12, citing

Peterseim at paragraph three of the syllabus.

      {¶ 23} The first element in Weakley requires that highly competent

counsel represented the defendant.       Appellant argues that his attorney

should have requested a continuance from his May 7, 2010 plea hearing in

order to obtain lab reports relating to the state’s DNA evidence. Further,

appellant contends that he was not represented by competent counsel and

that he pled guilty based on his belief that his attorney was not prepared to

go to trial.

      {¶ 24} At the May 7, 2010 plea hearing, there were discussions of a DNA

report being prepared by the Bureau of Criminal Identification and

Investigation.      As of the date of the plea agreement, the DNA results

indicated that the items submitted for testing were unable to identify
appellant; however, they were also unable to exclude him. 1          The record

indicates that appellant’s counsel was aware of those results and advised

appellant of those results prior to his plea. Although a physical copy of the

DNA lab report was not released to appellant at the time he entered his plea

because it was still under peer review, there is no indication that the peer

review report contained results contrary to the results appellant was advised

of prior to his plea. If a variance in the report existed, appellant’s counsel

would have been able to request a withdrawal of plea, as instructed by the

court.

         {¶ 25} Further, appellant’s counsel routinely met with appellant and

fully advised him of all of his rights and the possible penalties associated with

his guilty plea.     The record indicates that appellant’s counsel specifically

stated on the record that he was prepared to proceed with a trial, and we find

no evidence to suggest otherwise.        Accordingly, we find that appellant’s

counsel was more than competent as it related to his assistance of appellant

in this case.

         {¶ 26} We also find that the trial court complied with Weakley’s second

element. The record demonstrates that the court conducted a full hearing

pursuant to Crim.R. 11 before accepting appellant’s plea.


        DNA testing was conducted on two guns and the interior of a mask left at
         1

the crime scene.
      {¶ 27} Pursuant to Crim.R. 11(C)(2), the trial court may not accept a

defendant’s guilty plea unless it (1) determines that the defendant is

voluntarily entering the plea and understands the nature of the charges and

the maximum penalty he faces, (2) informs the defendant of the effect of

accepting the plea and that the court may proceed with judgment and

sentencing once it is accepted, and (3) informs the defendant that he is

waiving his constitutional right to a jury trial, confrontation of witnesses,

compulsory process, and the state’s burden of proof beyond a reasonable

doubt. Id. at ¶27.

      {¶ 28} Appellant argues that he did not enter his plea knowingly,

intelligently, and voluntarily because the trial court failed to inform him

during the plea colloquy that his sentence included a mandatory term of

postrelease control. We find no merit to appellant’s assertion. In addition

to explaining the potential minimum and maximum penalties associated with

appellant’s plea and addressing each of appellant’s constitutional and

nonconstitutional rights, the trial court clearly informed appellant that he

would be subject to a mandatory term of postrelease control. Addressing the

issue of postrelease control, the trial court stated, in pertinent part:

      {¶ 29} “COURT:     I want to advise you as well that when you are

released from the penitentiary on this case that you will face three years of

postrelease control * * * do you understand?
      {¶ 30} “APPELLANT:    Yes.” (Emphasis added.)

      {¶ 31} “Will” is mandatory language and is not stated in permissive

terms.     As such, the trial court adequately advised appellant of the

postrelease control pertinent to his plea and afforded him a full Crim.R. 11

hearing.

      {¶ 32} Finally, we find that the trial court afforded appellant a full

hearing on his motion to withdraw his plea and gave the request full and fair

consideration.   Although no formal hearing was requested, the trial court

adequately considered the merits of appellant’s motion to withdraw his plea

and carefully outlined the basis for its denial of the motion. Throughout the

hearing on his request to withdraw, appellant stated that, at the time he

entered his plea, he fully understood the nature of the charges and the

minimum and maximum penalties associated with a plea of guilty to those

charges.

      {¶ 33} There is no evidence to conclude that appellant’s motion to

withdraw represented anything more than a change of heart. As this court

has previously explained, a mere change of heart is an insufficient basis to

withdraw a guilty plea. Benjamin, supra. Accordingly, the trial court did

not abuse its discretion when it denied appellant’s motion to withdraw his

guilty plea.

                               Manifest Injustice
      {¶ 34} In his second assignment of error, appellant argues that in order

to correct a manifest injustice, this court must set aside his conviction and

permit him to withdraw his guilty plea. We disagree.

      {¶ 35} Rule 32.1 of the Ohio Rules of Criminal Procedure states:         “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.”

      {¶ 36} Therefore, when a defendant seeks to withdraw a plea of guilty or

no contest after sentencing, he must prove the existence of “manifest

injustice.” State v. Peterseim (1980), 68 Ohio App. 2d 211, 428 N.E.2d 863.

      {¶ 37} A review of the docket in this case shows that appellant did not

make a post-sentence motion to withdraw his plea. As such, the “manifest

justice” analysis is irrelevant to our review of the trial court’s presentence

denial of appellant’s request to withdraw his guilty plea.         Accordingly,

appellant’s second assignment of error is overruled.

      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.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
