[Cite as State v. Barkley, 2020-Ohio-2830.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :        No. 108869

                 v.                                 :

CHARLES F. BARKLEY,                                 :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 7, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-637725-C


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Sean M. Kilbane, Assistant Prosecuting
                 Attorney, for appellee.

                 Christopher M. Kelley, for appellant.
SEAN C. GALLAGHER, P.J.:

               Defendant-appellant Charles F. Barkley (“Barkley”) appeals the trial

court’s decision to deny his presentence motion to withdraw his guilty plea. After

reviewing the record, we affirm the trial court’s decision.

      Background

               Barkley was indicted under an eight-count indictment with four

counts of first-degree felony aggravated robbery and four counts of second-degree

felony robbery. All counts included one- and three-year firearm specifications along

with a notice of prior conviction and a repeat violent offender specification. The

offenses allegedly occurred at a Game Stop and involved the use of a deadly weapon.

There were four victims identified in the indictment.

               Barkley’s trial counsel negotiated a favorable plea agreement

pursuant to which Barkley entered a plea of guilty to two counts of aggravated

robbery, first-degree felonies in violation of R.C. 2911.01(A)(1), as amended by

deletion of the firearm specification, notice of prior conviction, and repeat violent

offender specification on each count. The remaining six counts were nolled.

               The transcript reflects that prior to taking the guilty plea, the trial

court complied with Crim.R. 11 and engaged in a thorough colloquy with Barkley.

Barkley acknowledged that he understood what was happening, that he was not

threatened or forced to enter his plea of guilty, that no promises had been made, and

that he was satisfied with his attorney’s representation. Barkley also acknowledged

that he understood the rights he was waiving by entering his plea and that a plea of
guilty was an admission to the truth of the facts and his full guilt. At no point did he

express any concern, and the trial court found that his plea was knowingly,

intelligently, and voluntarily entered.

               Prior to the sentencing hearing, Barkley’s counsel informed the court

that Barkley wished to withdraw his plea and Barkley filed a motion to withdraw his

guilty plea. In Barkley’s motion, he argued that he accepted the plea offer and

entered his guilty plea “primarily on the basis that he did not believe his counsel was

confident in trying his case.” After a hearing, the trial court denied the motion. The

trial court proceeded to sentence Barkley to four years on each of the first-degree

felony counts with the terms run concurrent to each other. Barkley timely filed this

appeal.

      Law and Analysis

               Under his sole assignment of error, Barkley claims that the trial court

erred by denying his presentence motion to withdraw his guilty plea. He claims that

he was not represented by competent counsel and that his guilty plea was the

product of duress.

               We review a trial court’s ruling on a presentence motion to withdraw

a guilty plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 526, 584

N.E.2d 715 (1992). A defendant has no right to withdraw a guilty plea and although

there is a general rule that a presentence motion to withdraw a guilty plea is “‘to be

freely allowed and treated with liberality,’” the decision remains “‘within the sound

discretion of the trial court to determine what circumstances justify granting such a
motion.’” Id., quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).

As this court held in State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th

Dist.1980), paragraph three of the syllabus:

      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 his 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.

               The record in this case reflects that the trial court conducted a

complete and impartial hearing on Barkley’s motion to withdraw his guilty plea and

gave full and fair consideration to the motion. Barkley claimed that he perceived an

unwillingness of his trial counsel to try the case, that his trial counsel was not

prepared for trial, and that he felt pressure to take the plea deal. However, the trial

court noted that Barkley did not express this during the plea hearing, rather he had

acknowledged his satisfaction with counsel. Barkley does not dispute that the trial

court complied with Crim.R. 11 at the plea hearing. Further, at the hearing on

Barkley’s motion, his trial counsel expressed that she was not reluctant to try the

case and that her role was to advocate for Barkley’s best interest. The trial court

noted that counsel did an “outstanding job” in advocating for her client.

               Although Barkley complained that his trial counsel did not subpoena

two witnesses at Barkley’s request, counsel indicated that “those attempts to request

the individuals that he’s indicated were futile,” and Barkley did not provide the court

with any information as to whether those individuals would have testified on his
behalf or as to what testimony those individuals may have offered in support of his

defense. “Where nothing in the record supports a defendant’s ineffective assistance

of counsel claim other than his own self-serving statements, the record is insufficient

to overcome the presumption that the plea was voluntary.” State v. Armstrong, 2d

Dist. Montgomery No. 27138, 2017-Ohio-474, ¶ 17, citing State v. Laster, 2d Dist.

Montgomery No. 19387, 2003-Ohio-1564, ¶ 8. Further, a “change of heart” does not

justify a withdrawal of a guilty plea. State v. Parker, 8th Dist. Cuyahoga No. 108133,

2019-Ohio-5118, ¶ 44, citing State v. Sylvester, 2d Dist. Montgomery No. 22289,

2008-Ohio-2901, ¶ 19. The record demonstrates that Barkley was represented by

highly competent counsel and that he voluntarily chose to accept a favorable plea

deal.

                Ultimately, the trial court determined that the circumstances of this

case did not justify granting Barkley’s motion. We find no abuse of discretion by

the trial court and overrule Barkley’s assignment of error.

                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 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.




SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
ANITA LASTER MAYS, J., DISSENTS
WITH SEPARATE OPINION



ANITA LASTER MAYS, J., DISSENTING:

               I respectfully dissent from the majority opinion and would reverse the

trial court’s decision, vacate Barkley’s convictions and sentence, and remand to the

trial court.

               The trial court’s decision to deny Barkley’s presentence motion to

withdraw his guilty plea is not an abuse of discretion if the record reflects that

Barkley was represented by highly, competent counsel; he was given a hearing in

accordance with Crim.R. 11 before the trial court took his plea; he was given a

complete and impartial hearing on the motion; and the court gives full and fair

consideration to the plea withdrawal request. State v. Hines, 8th Dist. Cuyahoga

No. 108326, 2020-Ohio-663, ¶ 9.

               In addition, there are other factors that this court has recognized the

trial court should consider when making its determination. These factors include

whether Barkley’s motion was timely; whether his motion states specific reasons
for withdrawal; whether Barkley understood the nature of the charges and the

possible penalties; whether Barkley was perhaps not guilty or had a complete

defense; and whether the state would suffer prejudice if Barkley is allowed to

withdraw the plea. Hines at ¶ 10.

               A review of the record reflects that Barkley was represented by

competent counsel and was afforded a hearing in accordance with Crim.R. 11

before the trial court took his plea. However, I find that Barkley was not given a

complete and impartial hearing on the motion, nor full and fair consideration to

the plea withdrawal request regarding a few of the remaining factors of Barkley’s

specific reasons for withdrawal. A review of the record revealed that at the motion

to withdraw hearing, the trial court heard from the state and defense counsel, then

denied Barkley’s motion. The trial court stated, “After reviewing the transcript and

everything that’s been said here today, I am denying your motion to withdraw your

plea.” (Tr. 19.) After the trial court’s denial, the trial court asked Barkley if he

wanted to address the court. (Tr. 20.)

               When Barkley addressed the trial court, he communicated that he

was unsatisfied with his trial counsel’s representation because he believed that she

was reluctant to have his case go to trial and would not advocate on his behalf.

Barkley also proclaimed his innocence and asked his counsel to contact potential

witnesses for his case. Barkley expressed that he felt pressured by the state to make

a plea deal, because the state stated that if Barkley did not take the plea deal before

the plea hearing, the terms would expire by the end of the hearing. Barkley
explained that he told his trial counsel that he never wanted to accept a plea deal,

and that he wanted to go to trial. The trial court stated that after its review of the

transcript, Barkley stated that he was satisfied with his counsel’s representation.

Barkley then stated that he was upset and distraught and that he “was not even

thinking about that.” (Tr. 20.) The trial court then allowed trial counsel to address

Barkley’s concerns. (Tr. 20-21.)

              Barkley’s trial counsel then stated, on the record, that Barkley did

supply her with phone numbers of potential witnesses, but she did not call them

because she “simply don’t have time for that.” Instead, she paid someone to call

and their attempts to reach the witnesses were futile. Barkley’s trial counsel also

stated, “no lawyer is going to subpoena people to come down that you have never

spoken to, nor do you know what they will or will not say.” (Tr. 21.) The trial court

asked was there anything further, and Barkley reiterated that defense counsel

never contacted the people he requested her to subpoena. (Tr. 22.) Without final

comment regarding Barkley’s concerns, the trial court stated that it was moving

forward with sentencing. Id.

              I find that the trial court denied Barkley’s motion before it heard

from him. In addition, Barkley was denied the right to have witnesses subpoenaed

on his behalf. Witnesses could have been subpoenaed and if they appeared the

result may have been different. If the witnesses did not appear, at least that right

would not have been denied. The record is void of any inquiry regarding his

statements to his trial counsel of being not guilty and adamantly wanting to go to
trial. I also find that this is not a mere change of heart. In contrast to the facts in

a recent decision by this court, this court affirmed the trial court’s denial of a

presentence motion to withdraw based on the defendant’s “mere change of heart.”

State v. Bradley, 8th Dist. Cuyahoga No. 108294, 2020-Ohio-30, ¶ 8. I find that

the trial court did not demonstrate that it considered other factors in making its

decision, but rather continued referring to the plea colloquy. A plea colloquy “is

not dispositive, however, where other factors indicate that it would be appropriate

to withdraw a plea, as this court has previously held. See State v. Davner, 2017-

Ohio-8862, 100 N.E.3d 1247, ¶ 45 (8th Dist.).”          Hines, 8th Dist. Cuyahoga

No. 108326, 2020-Ohio-663, at ¶ 16.

               “Presentence withdrawal of pleas are meant to be provided liberally

* * *.” Id. at ¶ 17. Barkley has shown sufficient cause as to why his situation merits

relief. I previously acknowledged that Barkley was given a hearing in compliance

with Crim.R. 11 before the trial court took his plea and that he had highly,

competent counsel. However, in my review of the record, I find that the trial court

did not consider all of the necessary factors. Additionally, the record reveals that

the trial court made its decision before it heard from Barkley. I find that the trial

court abused its discretion. Although I acknowledge that Barkley received an

excellent plea deal, I would reverse the trial court’s decision to deny Barkley’s

motion to withdraw his guilty plea and remand to the trial court.
