[Cite as State v. Perry, 2012-Ohio-1354.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97154


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      DONNELL PERRY
                                                       DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                       Cuyahoga County Court of Common Pleas
        Case Nos. CR-537987, CR-538116, CR-538143, CR-538734, and CR-538735

        BEFORE:           Sweeney, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                      March 29, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein, Esq.
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Scott Zarzycki, Esq.
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

        {¶1} Defendant-appellant Donnell Perry (“defendant”) appeals the court’s denial

of his motion to withdraw guilty plea and his sentence of 39 years in prison. After

reviewing the facts of the case and pertinent law, we affirm.

        {¶2} In June 2010, defendant was indicted for 25 criminal offenses in six cases.

On November 4, 2010, a plea agreement was reached and the court started, but did not

conclude, accepting defendant’s guilty plea to eight of the counts.    The next day, the

court reconvened to continue the change of plea hearing.         At that time, defendant

requested to withdraw his plea, stating that he wanted copies of various discovery

documents, such as witness and victim statements. In considering defendant’s request, the

court made defendant aware that “[t]he maximum penalty that could be received at trial

with all these cases is 188 and a half years,” and “[t]he maximum penalty that could be

imposed with the plea agreement is 43 and a half years.”   Defendant stated that he wanted

to go to trial.

        {¶3} Defense counsel requested, and the court ordered, a competency evaluation.

On December 20, 2010, defendant was found incompetent to stand trial and ordered to

Northcoast Behavioral Health Care for restoration.     On March 30, 2011, the court held

another hearing and found that defendant had been restored to competency.        On June 1,

2011, defendant pled guilty to three counts of burglary and one count each of aggravated

burglary, gross sexual imposition, abduction, and carrying a concealed weapon.
       {¶4} The court held a sentencing hearing on July 15, 2011; however, defendant

again requested to withdraw his guilty plea, alleging that while in jail he “stopped

receiving some of the medication that he takes for his mental illnesses,” and as a result, he

“was not thinking clearly at the time of the plea.”

       {¶5} The court noted that the psychological reports regarding defendant’s

competency restoration concluded that defendant was not mentally ill.      Rather, he had a

“fractured family history, * * * polysubstance dependence and borderline intellectual

functioning.”   The reports also concluded that defendant was “feigning” any psychotic

symptoms and diagnosed defendant with “malingering.” Given this, the court denied

defendant’s motion to withdraw his guilty pleas.

       {¶6} The court proceeded with sentencing, imposing an aggregate prison term of

39 years for defendant’s various convictions, including ongoing probation violations.

Immediately after the sentence was announced, defendant became belligerent and was

removed from the courtroom.      The court reconvened three days later, on July 18, 2011, to

finish the sentencing hearing by notifying defendant of sexual offender registration

requirements and imposing     postrelease control.

       {¶7} Defendant appeals and raises two assignments of error for our review.

       {¶8} I. “The trial court erred in not allowing Appellant to withdraw his guilty

plea prior to sentencing.”

       {¶9} A motion to withdraw a guilty plea is governed by the standards set forth in

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.

       {¶10}   The general rule is that motions to withdraw guilty pleas before sentencing

are to be freely and liberally allowed. State v. Peterseim, 68 Ohio App.2d 211, 214, 428

N.E.2d 863 (8th Dist.1979), 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. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). 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. Id.

       It is not an abuse of discretion to deny a presentence motion to withdraw a
       guilty plea when a defendant: (1) is represented by competent counsel; (2) is
       given a full Crim.R. 11 hearing before entering a plea; and (3) is given a
       hearing on the motion to withdraw that plea during which the court considers
       the defendant’s arguments in support of the motion. [(citation omitted.)]
       State v. Bridges, 8th Dist. No. 87633, 2006-Ohio-6280, ¶5. See also
       Peterseim at 214.

       {¶11}   In the instant case, defendant argues that the court erred when it denied his

second request to withdraw his plea on July 15, 2011. In denying defendant’s request,

the court took into consideration defendant’s argument that he did not understand the plea

because he was not given his medication.      The court concluded, however, that this was

not a legitimate or reasonable basis to withdraw defendant’s plea.     The court noted that
defendant’s medical records indicated that he had been restored to competency and he had

“no evidence of mental illness.”

       {¶12}     Our review of the record shows that defendant was represented by

competent counsel throughout the proceedings. Additionally, defendant was given two

full Crim.R. 11 hearings, during which the court engaged in detailed discussions with

defendant about his rights and the charges he faced.      The court went to great lengths to

ensure that defendant’s plea was made knowingly, voluntarily, and intelligently. The

court also conducted a hearing on defendant’s motion to withdraw his plea and noted that

during the plea hearing, the court asked defendant if he understood his rights and the

penalties he faced 54 times, and in each instance, defendant replied, “Yes.”

       {¶13}     Accordingly, we cannot say that the court abused its discretion in denying

defendant’s motion to withdraw his guilty pleas under the circumstances of this case.

Defendant’s first assignment of error is overruled.

       {¶14}     In defendant’s second assignment of error, he argues as follows:

       {¶15}     II.   “Appellant is entitled to a de novo sentencing hearing as the court did

not properly impose a mandatory term or period of postrelease control at the sentencing

hearing.”

       {¶16}     Pursuant to the Ohio Supreme Court’s holding in State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶29, “the new sentencing hearing to

which an offender is entitled [for failure to properly include postrelease control] is limited

to proper imposition of postrelease control.”   See also R.C. 2929.191.
       {¶17}     In the instant case, defendant argues that the court failed to inform him

during his sentencing hearing that, upon his release from prison, postrelease control is

mandatory.     Our review of the record, however, shows otherwise.              At defendant’s

second sentencing hearing on July 18, 2011, the court stated the following to defendant: “I

would like to further advise you that upon release from prison, you would be placed on

post-release control supervision for five years.”

       {¶18}     The case at hand is similar to State v. Taylor, 8th Dist. No. 95339,

2011-Ohio-2150, ¶31, in which this court found that the word “‘[w]ill’ is mandatory

language and is not stated in permissive terms.”      In Taylor, the court’s statement that

defendant “will” face postrelease control “clearly informed [the defendant] that he would

be subject to a mandatory term of postrelease control.” Id. at ¶28. We find the same

analysis applies to the court’s use of the word “would” in the instant case.

       {¶19}     Accordingly, we find no error in the court’s imposition of postrelease

control and defendant’s second assignment of error is overruled.

       {¶20}     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.




JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
