[Cite as State v. Walcot, 2013-Ohio-4041.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99477



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ROBERT WALCOT
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-564462

        BEFORE: Boyle, P.J., S. Gallagher, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEY FOR APPELLANT

Bruce M. Courey
5546 Pearl Road
Parma, Ohio 44129

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Robert Walcot, appeals his conviction, raising a single

assignment of error:

       The trial court erred in denying appellant’s motion to withdraw his guilty
       plea prior to sentencing.

       {¶2} Finding no merit to the appeal, we affirm.

                                Procedural History and Facts

       {¶3} In July 2012, Walcot was charged in a 15-count indictment: five counts of

rape, violations of R.C. 2907.02(A)(1)(b); four counts of gross sexual imposition,

violations of R.C. 2907.05(A)(4); four counts of kidnapping, violations of R.C.

2905.01(A)(4); one count of importuning, a violation of R.C. 2907.07(A); and one count

of disseminating matter harmful to juveniles, a violation of R.C. 2907.31(A)(3). The

rape and kidnapping counts all carried sexually violent predator specifications, notice of

prior conviction, and repeat violent offender specifications. The gross sexual imposition

counts carried a sexually violent predator specification.       The date of the offenses

covered a span of time from July 1, 2002, through July 31, 2005. The victims of the

alleged rape, gross sexual imposition, and kidnapping offenses were two of Walcot’s

stepdaughters, both under the age of 13 at the time of the offenses.

       {¶4} Walcot initially pleaded not guilty to the charges, and the matter proceeded

to a jury trial on November 27, 2012, on the base charges.      Walcot elected to have the

specifications tried to the bench.
       {¶5} Prior to the trial commencing, the prosecutor formally placed a plea deal on

the record, indicating that the deal would remain open until the first witness was called.

Defense counsel also addressed the court, indicating that he discussed the plea deal with

Walcot and his family, informed him of the range of the sentence under the plea, and

provided a recommendation.       The trial court further addressed Walcot and indicated that

he “would consider a range in the sentence of 8 to 15 years without any promises as to

whether the three-year sentence [that Walcot’s] doing now would be concurrent.”1 At

that time, Walcot still desired to go ahead with a trial.

       {¶6} The court commenced the trial, and a jury was selected.                  Following

opening statements, however, Walcot asked to take the plea deal offered by the

prosecutor. After fully complying with Crim.R. 11 and advising Walcot of his statutory

and constitutional rights, the trial court accepted Walcot’s guilty plea to two amended

counts of rape, violations of R.C. 2907.02(A)(2), without any specifications attached.

The remainder of the counts were nolled.

       {¶7} After accepting Walcot’s plea, the trial court ordered a presentence

investigation report on the record, at which time Walcot expressed his desire to withdraw

his guilty plea that he had recently entered in the separate firearm case (Case No.

CR-554876). Based on Walcot’s statement, the trial judge asked Walcot whether he was



       1
          On November 7, 2012, Walcot was sentenced to three years in prison in Cuyahoga C.P.
No. CR-554876 after being convicted of one count of carrying a concealed weapon and one count of
having a weapon while under disability.
“contemplating withdrawing” his plea in the rape case.        Walcot stated: “No. No, I am

not.”

        {¶8} On December 14, 2012, two weeks before the scheduled sentencing date,

Walcot filed a pro se motion to withdraw his guilty plea, arguing that he was “not guilty

of the allegations that [he] was arraigned on and coerced into pleading guilty.”          He

indicated that the prosecutor, judge, and his own attorney were against him.              He

expressed his concern that his attorney shared confidential information with the

prosecutor from the onset resulting in his re-indictment with additional counts and

questioned the integrity of the judge.

        {¶9} On December 28, 2012, the trial court held a hearing on Walcot’s motion to

withdraw his guilty plea.   Walcot addressed the court, stating that he was “coerced” into

entering the plea and under duress.      He explained that his trial counsel told him that he

would end up going to prison for life because he would lose at trial. Walcot further

stated that his defense counsel used Walcot’s mother to pressure him to take the plea too

and that he did not have enough time to consider the plea.     Walcot additionally reiterated

the same arguments raised in his motion, i.e., questioning the integrity and competency of

his attorney, contending that the state’s case was weak, and pleading his innocence.

Walcot’s criticisms of his defense counsel also included his defense counsel’s selection of

the jury.

        {¶10}   The trial judge addressed each of Walcot’s stated concerns on record.
      {¶11} Both the prosecutor and defense counsel confirmed that no privileged

confidential information was shared that led to the second indictment with additional

charges.   This claim is no longer an issue as Walcot has abandoned it on appeal.

      {¶12} With respect to Walcot’s duress claim and attack on his attorney, the trial

court turned to defense counsel and engaged in the following colloquy:

      The Court:                  So you’re giving him your best advice in
                                  applying the strategy you felt was best to protect
                                  his rights?

      [Defense counsel]: Judge, I looked at the indictment. There was — And
                                I don’t have it in front of me. There [were] 14,
                                15 counts. A vast majority of them had life
                                tails if not life without. Based upon my
                                professional opinion and everything, I thought it
                                was in his best interest to do a plea. We talked
                                about it. Part of my job is to tell them
                                sometimes things that they don’t want to hear.
                                Sometimes when we’re in the back the
                                conversation is a little bit raw. But we’ve had
                                conversations and I certainly gave him my
                                opinion as to what likely would occur should we
                                go to trial.

                                  And as the court is aware, you know, we were
                                  — we picked a jury, did opening statement, and
                                  at that point my client pled. But even during
                                  that time I was consistently talking to Mr.
                                  Cleary trying to get a better deal for my client.
                                  As the court may recall, we were in chambers.
                                  We narrowed it down. With the plea and the
                                  three years he was already sentenced to, with
                                  the plea bargain, he was looking from 3 to 23
                                  years.     We kept on going away.                And
                                  certainly the floor, the bottom of it, is a little bit
                                  higher than the minimum, but we were able to
                                  back the exposure to 18 years from 23 years.
                                   We were fighting all along as this process was
                                   going on.

       {¶13} The trial court also heard from Walcot’s mother, who stated that she “did

not at any time encourage [Robert] to take a plea or go to trial.”   According to Walcot’s

mother, she told her son that she would support any decision he made.

       {¶14} The trial judge then heard from the prosecutor who summarized the

evidence of the state’s case, which included, among other things: (1) the testimony of the

three victims; (2) a journal from one of the victim’s recounting the “nightmares” and

“demons” caused by Walcot; and (3) a school psychologist to one of the victims. The

prosecutor then addressed the court as to the merits of Walcot’s arguments, refuting each

argument.

       {¶15} After a full hearing, the trial court denied Walcot’s motion, providing

detailed reasons as to why he believed that the motion was simply a delay tactic:

               I specifically asked you about these allegations, that I would not
       accept your plea if you were just going to come back and ask to withdraw it
       later, because I wanted to make sure that you are doing this freely of your
       own free will, intelligently, with an understanding of all your rights which I
       asked you about and that you said yes. You absolutely agreed every time
       that you were not forced, that you were not threatened, that you did have the
       opportunity to hear the State’s compelling opening statement, that there was
       an abundance of evidence that points to your being held responsible, that
       jurors could find you guilty beyond a reasonable doubt of these allegations,
       and that I took painstaking efforts to give you as much time as necessary to
       understand those possibilities and to do what you needed to do to
       understand and have sink in the consequences of your plea versus having a
       trial.

              And [defense counsel] is an outstanding attorney. He was giving
       you his best advice based on all of his many years of experience, based on
       the evidence that was provided by the State of Ohio, and you clearly
          understood the nature of charges and the effect of a plea and potential
          consequences, you had a full understanding of your rights. You told me
          that and I asked you that.

                 And it just makes me feel like you’re not being truthful with me
          when I ask you specifically do you want to withdraw your plea as I’m
          taking your plea and you say no, that that was the opportunity for you to say
          no, I want my trial. You specifically told me the opposite. And so I can
          only conclude that you didn’t like the look of that jury, you didn’t like the
          sound of the opening statements, you knew a witness was coming in and
          your opportunity to mitigate your consequences was walking up to the stand
          and it would be forever closed at that point.

                It was clear you delayed it to the very end.      And now I believe

          you’re just trying to delay the inevitable again.    And so I don’t see any

          reasonable reason to allow you to withdraw your plea. It’s just not fair to

          the State of Ohio, it’s just not fair to these victims to drag them back down

          here and begin this process all over again, and that you haven’t presented

          any plausible defense, and that the State had strong evidence in its favor.

          So I’m going to deny your motion to withdraw the plea at this time.

          {¶16} The trial court then proceeded to sentencing, imposing a total of 18 years in

prison.

                                   Withdrawal of Guilty Plea

          {¶17} In his sole assignment of error, Walcot argues that the trial court erred in

denying his motion to withdraw his guilty plea prior to sentencing. He contends that

there would have been no prejudice to the state if the trial court would have allowed him

to withdraw his plea and that his plea of innocence warranted the granting of his motion.
       {¶18} Generally, a motion to withdraw a guilty plea made before sentencing

should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715 (1992). A defendant does not, however, have an absolute right to withdraw his plea

before sentencing. Id. at paragraph one of the syllabus.      The trial court is required to

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

withdrawal of the plea.” Id. Following the hearing, the trial court’s decision to grant or

deny a motion to withdraw a plea will be upheld absent an abuse of discretion. Id. at

527.

       No abuse of discretion is demonstrated where: (1) the accused is

       represented by highly competent counsel, (2) the accused was afforded a

       full hearing, pursuant to Crim.R. 11, before entering the plea, (3) after the

       motion to withdraw is filed the accused is given a complete and impartial

       hearing on the motion, and (4) the record reveals that the trial court gave

       full and fair consideration to the plea withdrawal request.

State v. Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.), citing

State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).

       {¶19} In addition to these factors, Ohio courts have recognized a non-exhaustive

list of additional factors for the trial court to consider when deciding a presentence

motion to withdraw a plea, which include the following: (5) whether the state will be

prejudiced by the withdrawal, (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, and (9) whether the accused was perhaps not guilty or had a

complete defense to the charge. See, e.g., State v. Fish, 104 Ohio App.3d 236, 240, 661

N.E.2d 788 (1st Dist.1995); State v. Moore, 8th Dist. Cuyahoga No. 98132,

2012-Ohio-5734, ¶ 13.

         {¶20} Notably, Walcot does not deny that he was represented by highly competent

counsel; indeed, his defense counsel had over 20 years of experience handling criminal

cases.    Nor does he dispute that he was afforded a full hearing under Crim.R. 11 and a

complete and impartial hearing on his motion to withdraw. Instead, he contends that the

latter factors (5-9) listed above weigh heavily in favor of granting his presentence motion

to withdraw and that these circumstances belie the conclusion that the trial judge gave full

and fair consideration to his motion.      He argues that the motion should have been

granted because (1) there would have been no prejudice to the state, (2) the motion was

filed in a reasonable time period, (3) he provided sufficient reasons to support the motion,

e.g., that he was innocent and that the plea was induced by pressure from his attorney and

mother, and (4) that he “referenced” possible defenses.     We find Walcot’s arguments,

however, unpersuasive.

         Prejudice to the State

         {¶21} Here, Walcot maintains that there would have been no prejudice to the state

by the granting of his motion. We disagree. At the time that Walcot asked to take the

plea deal, a jury had already been selected and the state had completed its opening

statement. Based on Walcot’s own statements at his hearing on the motion, he was not
satisfied with the final composition of the jury at trial. To have allowed a subsequent

withdrawal of the plea would not only have delayed a resolution and closure of the case

for the victims, it would have required the victims to appear a second time for a trial.

Further, the granting of Walcot’s motion would have improperly awarded Walcot with a

second bite at picking a different jury. Under these facts, we find clear prejudice to the

state; therefore, this factor does not weigh in Walcot’s favor.

       Timeliness of the Motion

       {¶22} While Walcot’s motion was arguably timely, i.e., two weeks before

sentencing, this alone is insufficient to warrant granting the motion. Indeed, no one

factor is conclusive in a trial court’s determination on a presentence motion to withdraw a

guilty plea.   Fish at 240.     Given the overwhelming factors weighing against the

granting of Walcot’s motion, we find this factor insignificant.

       Stated Reasons for the Motion To Withdraw

       {¶23} While a claim of innocence is a factor to be weighed in considering a

motion to withdraw a plea, it alone does not mandate the granting of such a motion. See

State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571. Indeed, “[w]hen

faced with this claim, ‘the trial judge must determine whether the claim of innocence is

anything more than the defendant’s change of heart about the plea agreement.” Id. at ¶

7, quoting State v. Kramer, 7th Dist. Mahoning No. 01-C.A.-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. Drake, 73 Ohio App.3d 640,

645, 598 N.E. 2d 115 (8th Dist.1991).

       {¶24} Walcot’s coercion claim has no support in the record. Walcot’s mother

expressly denied ever pressuring Walcot one way or another; she merely expressed her

support for whatever decision he chose to make.             Likewise, Walcot’s attorney

expressing his opinion of the strength of the state’s case and giving a recommendation as

to the plea deal does not amount to coercion; rather, it is merely evidence of his defense

counsel doing his job.   And here, where it is clear that no threats or false promises were

made to induce the plea and that Walcot understood the charges and the potential

sentences, we find no merit to Walcot’s coercion claim.

       Defense to the Charges

       {¶25} Walcot asserts that he referenced defenses at the hearing on the motion

relating to the time frame of the offenses, the motivation of the victims’ testimony, and

“potential witness testimony that there’s no evidence supporting the allegations.” The

record reveals that Walcot’s defense counsel fully explored these potential defenses prior

to the taking of any plea.      The trial court found these alleged defenses not to be

plausible.   We cannot say such a determination amounts to an abuse of discretion.

       {¶26} Applying the factors relied on by Walcot, we find that they overwhelmingly

weighed in favor of the state and that the trial court did, in fact, give full and fair

consideration to Walcot’s motion. Aside from the lengthy hearing that it conducted, the

trial judge specifically pointed to the evidence in the record that weighed strongly in
denying Walcot’s motion. We find no abuse of discretion and overrule Walcot’s sole

assignment of error.

      {¶27} Judgment affirmed.

      It is ordered that appellee recover of 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.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR
