[Cite as State v. Rance, 2017-Ohio-1446.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104619




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  WILLIAM A. RANCE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-589511-A

        BEFORE: Laster Mays, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 20, 2017
                               -i-
ATTORNEY FOR APPELLANT

Jeffrey S. Richardson
1200 W. 3rd Street, Suite 190
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Carl Sullivan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1} Defendant-appellant, William A. Rance (“Rance”), appeals his guilty plea,

asks this court to reverse the trial court’s ruling denying his motion to withdraw guilty

plea, and remand this case for trial. Finding no merit to his argument, we affirm.

      {¶2} Rance pleaded guilty to Counts 1 and 2, gross sexual imposition,

third-degree felonies in violation of R.C. 2907.05(A)(4); Count 3, an amended rape,

deleting the life sentence, a first-degree felony in violation of R.C. 2907.02(A)(2); and

Count 4, illegal use of minor in nudity oriented material or performance, a fifth-degree

felony in violation of R.C. 2907.323(A)(3). The trial court sentenced him to a total of

seven years imprisonment that included five years imprisonment for Counts 1 and 2,

seven years imprisonment for Count 3, and 12 months imprisonment for Count 4, to be

served concurrently.

I.    Facts

      {¶3} On August 19, 2014, H.L. and her parents reported to the Richmond Heights

Police Department that H.L.’s cell phone contained several sexually explicit messages

from Rance.    H.L. also reported to the police that on three separate occasions, she and

Rance engaged in sexual activity.   The first two occasions, Rance and H.L. engaged in

groping, but on the third occasion Rance and H.L. engaged in vaginal intercourse.    H.L.

admitted that she told Rance she was 16 years old, when in fact she was 11 years old
when they first met, and then she turned 12 by the time they engaged in vaginal

intercourse.

       {¶4} Rance was arrested.       Through the investigation of H.L.’s allegations, the

police found several naked pictures of the victim on Rance’s phone and the text messages

that corresponded to the dates of the sexual activity.   Rance told the police that H.L. told

him she was 18 years old. He then changed his story and said that H.L. told him she was

17 years old.

       {¶5} Rance was indicted on four counts and had 31 pretrials.        Rance hired and

fired four attorneys and had a total of five attorneys represent him throughout the

proceedings.    On March 1, 2016, Rance pleaded guilty to all four counts.         The trial

transcript states,

       COURT:            So Count 3, the rape charge, is a mandatory prison
                         sentence, so there won’t be a possibility of community
                         control sanctions. Do you understand that?

       RANCE:            Yes.

       COURT:            Does that change your mind about entering a plea for
                         Count 3? Do you understand that sir?

       RANCE:            I understand that.

       COURT:            Does that change your position as far as accepting
                         responsibility with the plea today?

       RANCE:            The rape would automatically take me straight to jail?

       COURT:            No I’ll order a presentence investigative report, we’ll
                         come back for sentencing. I believe [your counsel] is
                         going to ask for some psychological examination as well
                         too, so I have all the information that would be pertinent to
           make the right decision as far as a prison sentence, so that
           will be about 30 days.

RANCE:     I understand.

COURT:     Do you have any questions about that?

RANCE:     I don’t want to go to prison, honestly.

COURT:     I don’t think anybody wants to go to prison. That would
           be the consequence if you accepted this plea, so the
           minimum on the Count 3 is 3 and the maximum would be
           11. State of Ohio is indicating that they are requesting
           that any term of incarceration be concurrent. Is that
           correct?

STATE:     That is correct, [y]our Honor. The initial count that we
           amended was life in prison, we still amended it down to a
           prison term.

COURT:     So they’re reducing Count 3 from a life, mandatory life
           term to that F1.

RANCE:     3 to 11.

COURT:     And I will follow that recommendation of running the
           prison term concurrent to all these charges.

RANCE:     Prison couldn’t be changed to probation?

COUNSEL:   Carl and I have talked, [y]our Honor, and actually we had
           discussed the possibility of probation, but I guess it’s —

STATE:     Some of the counts are probationable, but particular[ly]
           rape —

COUNSEL:   When we discussed that, we discussed that too.

STATE:     I understand that.   That’s the way the law is written, I can’t —

COUNSEL:   I didn’t think it was. I didn’t really explain it to my
           client, but the court is explaining it now.
       COURT:     Do you want more time to explain it to him?

       RANCE:     Yes.

       COURT:     So it’s amended down to the defendant purposely compels
                  another to submit by force or threat of force. Do you
                  want to talk to him and come back?

       COUNSEL:   Give me a minute, [y]our Honor, please.

       COURT:     [Counsel], have you had an opportunity to talk to your
                  client?

       COUNSEL:   I have, [y]our Honor.

       COURT:     And what would you like to do?

       COUNSEL:   It’s my understanding he wants to go forward with the
                  plea.

       COURT:     Mr. Rance, do you understand all the consequences now
                  of each of these counts?

       RANCE:     Yes.

       COURT:     Do you have any questions at all?

       RANCE:     No I don’t have any questions.

       COURT:     Now that you know that Count 3 is a mandatory prison
                  term, are you willing to enter your plea to that count; is
                  that correct?

       RANCE:     Yes.

       COURT:     How do you plead sir, in Count 3, now that you know the
                  consequences is mandatory 3 to 11?

       RANCE:     Guilty.

(Tr. 16-20.)
       {¶6} Rance pleaded guilty to all counts, and the trial court complied with Crim.R.

11. On April 29, 2016, Rance filed a motion to withdraw his guilty plea stating that his

plea was entered into unintelligently and involuntary.     The trial court denied Rance’s

motion.   On May 16, 2016, at sentencing, Rance addressed the court and stated, “I take

full responsibility in the plea that I pled to on March 1st. I just have hope in getting

probation, but I do understand the plea to my guilt, and I follow it through with this

proceeding.”   (Tr. 59.)   Rance was sentenced to a total of seven years imprisonment,

and filed this timely appeal asserting two assignments of error for our review.

       I.      The trial court abused its discretion when it denied appellant’s
       motion to withdraw guilty plea, thereby depriving appellant of his right to
       trial by jury, as the evidence demonstrates appellant’s plea was entered into
       unintelligently and involuntarily; and

       II.    Appellant was deprived of effective assistance of counsel as
       guaranteed by the Sixth and Fourteenth Amendments to the United States
       Constitution and Article I, Section 10 of the Ohio Constitution when his
       attorney failed to consider mitigation or exculpatory evidence when
       advising appellant to plead guilty.
II.     Motion to Withdraw Guilty Plea

        A.     Standard of Review

        {¶7}   We review the trial court’s denial of a motion to withdraw a guilty plea for

an abuse of discretion.     State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992).

“Absent an abuse of discretion on the part of the trial court in making the ruling, its

decision must be affirmed. For us to find an abuse of discretion in this case, we must

find more than an error of judgment. We must find that the trial court’s ruling was

unreasonable, arbitrary or unconscionable.” Id.

        B.     Law and Analysis

        {¶8} In Rance’s first assignment of error, he argues that the trial court abused its

discretion by denying his motion to withdraw guilty plea.

        Generally, motions to withdraw guilty pleas before sentencing are to be
        freely and liberally allowed. State v. Ketterer, 126 Ohio St.3d 448,
        2010-Ohio-3831, 935 N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St.3d 521,
        584 N.E.2d 715 (1992); State v. Peterseim, 68 Ohio App.2d 211, 214, 428
        N.E.2d 863 (8th Dist.1980), citing Barker v. United States, 579 F.2d 1219,
        1223 (10th Cir.1978). However, a defendant does not have an absolute
        right to withdraw a guilty plea prior to sentencing. Xie at paragraph one of
        the syllabus. In ruling on a presentence motion to withdraw a plea, the
        court must conduct a hearing and decide whether there is a reasonable and
        legitimate basis for withdrawal of the plea. Id. at 527. The decision to
        grant or deny such a motion is within the sound discretion of the trial court
        and will not be reversed absent an abuse of discretion. Id.

State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 16.

        {¶9} In Peterseim, this court set forth the standard for determining whether the

trial court has abused its discretion in denying a presentence motion to withdraw a plea.

It stated,
       A trial court does not abuse its discretion in overruling a motion to
       withdraw: (1) where the accused is represented by highly competent
       counsel, (2) where the accused was afforded a full hearing, pursuant to
       Crim.R. 11, before he entered the plea, (3) when, after the motion to
       withdraw is filed, the accused is given a complete and impartial hearing on
       the motion, and (4) where the record reveals that the court gave full and fair
       consideration to the plea withdrawal request.

Peterseim at paragraph three of the syllabus.

       {¶10} First, Rance was represented by highly competent counsel.            There is

nothing in the record that supports or demonstrates that Rance’s attorney was

incompetent. Rance argues that because his counsel did not inform him that Count 3 of

rape was not an offense for which he could be sentenced to probation, his counsel was

incompetent.    However, according to the record, his counsel did discuss possible

probation with the state, but because of the statute, probation was not an option. The

trial court explained this to Rance, and granted a recess to give his counsel the

opportunity to explain this to Rance as well.        Rance stated on the record that he

understood the consequences and still pleaded guilty.

       {¶11} Second, Rance was afforded a full hearing pursuant to Crim.R. 11 before he

entered the plea.   The record demonstrates that the trial court first addressed Rance

personally and determined that Rance was making the plea voluntarily, with an

understanding of the nature of the charges and of the maximum penalty involved. (Tr.

10-14.)   The trial court also informed Rance of and determined that he understood the

effect of the plea of guilty.      (Tr. 14-22.)    The trial court informed Rance and

determined that he understood that by pleading guilty, Rance was waiving the rights to a
jury trial, to confront witnesses against him, to have compulsory process for obtaining

witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt

beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify

against himself.    (Tr. 7-9.)

       {¶12} Third, on April 29, 2016, Rance was given a complete and impartial hearing

on the motion.     Fourth, the record reveals that the court gave full and fair consideration

to the plea withdrawal request.    However, Rance claims that he was under pressure and

could not recall what the judge was saying to him during his plea. Rance also claims

that his counsel was tapping him on the shoulder telling him to say “yes” or “no” at the

appropriate time in response to the judge’s questions.    The trial court, stated,

       COURT:         Let’s do this. And this is the other part of my analysis, just
                      so it is clear, is that we are talking about the defendant who
                      stood in front of me, acknowledged my questions to him,
                      answered affirmatively, and I don’t recall that [his counsel]
                      was talking for him. And I asked him if you are in fact
                      guilty and he told me yes.

(Tr. 49.)

       COURT:         And the Court has to weigh several things with respect to this
                      motion. And I have given careful consideration to what I
                      have heard here today. And I haven’t heard is that Mr.
                      Rance did not do it, that he wasn’t — he didn’t understand
                      what he was doing, that it wasn’t an intelligent decision to
                      accept the plea, and that it wasn’t in any way involuntary,
                      although the word pressure has been used. And obviously a
                      rape charge with an alleged victim under 13 naturally has
                      some pressure with respect to the consequences of life
                      without parole. And so I understand that, and that’s exactly
                      what I saw at the plea. Mr. Rance realizing that it was now
                      or never. And he accepted the advice of his attorney, which
                      the Court has not reason to think is unsound advice. And
                     that I don’t find that there has been any coercion or that there
                     is a strong likelihood of his actual innocence. So at this
                     point, based on all these factors, based on the case law, I am
                     going to deny the motion to withdraw the plea.

(Tr. 41.)

       {¶13} Therefore, based on the record, it has been demonstrated that the trial court

did not abuse its discretion in denying Rance’s motion to withdraw guilty plea. This

assignment of error is overruled.

III.   Ineffective Assistance of Counsel

       A.      Standard of Review

       {¶14}    In evaluating a claim of ineffective assistance of counsel,

       “[A] court must give great deference to counsel’s performance. A
       reviewing court will strongly presume that counsel rendered adequate
       assistance and made all significant decisions in the exercise of reasonable
       professional judgment.”

State v. Jones, 8th Dist. Cuyahoga No. 102260, 2016-Ohio-688, ¶ 16, quoting State v.

Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

       B.      Law and Analysis

       {¶15} In Rance’s second assignment of error, he contends that he was deprived of

effective assistance of counsel because his attorney failed to consider mitigating or

exculpatory evidence when advising Rance to plead guilty.

       To establish a claim for ineffective assistance of counsel, a defendant must
       show that (1) counsel’s performance was deficient, and (2) the deficient
       performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323,
       327, 2000-Ohio-166, 731 N.E.2d 645 (2000), citing Strickland v.
       Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
       Defense counsel’s performance must fall below an objective standard of
          reasonableness to be deficient in terms of ineffective assistance of counsel.
          See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
          Moreover, the defendant must show that there exists a reasonable
          probability that, were it not for counsel’s errors, the results of the
          proceeding would have been different. State v. White, 82 Ohio St.3d 16,
          23, 1998-Ohio-363, 693 N.E.2d 772 (1998).

Jones at ¶ 14.

          {¶16} Rance does not detail what mitigation or exculpatory evidence was not

considered.      Instead, he argues that he was not able to enter into his plea knowingly and

voluntarily. He also argues that his counsel pressured and coerced him into pleading

guilty.     However, on the record, during the plea hearing, he told the court that he was not

coerced or forced.        (Tr. 14.)      He also stated that he “was satisfied with the

representation” he received from his attorney. (Tr. 8.)         This court finds that Rance’s

plea was made knowingly and voluntarily. We also find that Rance’s attorney did not

provide ineffective assistance.         Therefore, Rance’s second assignment of error is

overruled.

          {¶17} Judgment is affirmed.

          It is ordered that the 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.

          A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
________________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
