Youngstown Daily Legal News

Appeals Court: Change of heart is not ground for plea withdrawal

ANNIE YAMSON
Special to the Legal News
Published: July 17, 2013

The 2nd District Court of Appeals recently affirmed a man’s sentence after the Montgomery County Court of Common Pleas denied a motion to withdraw his guilty plea.

After entering a guilty plea, the defendant, Devon Cohen, was convicted of felonious assault with a deadly weapon, a second degree felony. Upon appeal, he argued that the trial court erred in denying his motion to withdraw that plea.

A grand jury indicted Cohen on May 17, 2012. Attorney Shawn Hooks was appointed to represent Cohen and the case proceeded to discovery and other pretrial matters.

On June 26, 2012, Cohen appeared in court before Judge Mary Huffman for scheduling.

According to case summary, prior to the scheduling hearing, Hooks informed Cohen that, although it was not guaranteed, the court would likely sentence him to probation. This would mean Cohen would be released from custody immediately following his sentencing hearing.

Hooks proceeded to advise the court that Cohen was going to plead guilty as charged in the indictment and noted that there was no agreement with the state as to the potential sentence.

The court set the case for sentencing on July 17. Judge Huffman also advised Cohen that she would make the sentencing decision, but that Judge Barbara Gorman would impose the sentence at the hearing.

Prior to sentencing, Gorman disclosed to Hooks that Cohen’s sanction would be two years of imprisonment.

Sitting by assignment, Judge Gene Donofrio of the Seventh District Court of Appeals wrote the opinion on behalf of the Second District’s three-judge appellate panel. In it, he indicated that, after learning of his two-year prison sentence, Cohen “was unhappy.”

Hooks proceeded to move for a one-week continuance in order to speak with Huffman and learn the reasoning behind the prison sentence.

After granting the continuance, the court informed Hooks that the sentence was primarily based on Cohen’s conduct in the pre-sentence investigation. The court of appeals did not disclose what that behavior was.

According to Hooks, the court was willing to consider Cohen for judicial release if he stayed out of trouble and took “reasonable steps to improve himself.”

Nevertheless, Cohen responded that he wanted to withdraw his guilty plea.

Hooks subsequently notified the court of this motion to withdraw and then requested that it appoint new counsel. Attorney Christopher Thompson took over as Cohen’s counsel prior to the hearing on his motion to withdraw on Aug. 29, 2012.

At that hearing, Cohen testified that Hooks advised him to plead guilty because he would be out of jail in two weeks.

Conversely, Hooks testified that he told Cohen he would likely be sentenced to probation, but cautioned that the sentence was not guaranteed.

The trial court subsequently denied Cohen’s motion to withdraw, finding that his motion was based on nothing more than a change of heart after learning of his two-year sentence.

After reviewing the case, the court of appeals agreed.

In his opinion, Donofrio cited Crim.R. 32.1, which provides, “A motion to withdraw a plea of guilty 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 plea.”

The rule, according to Donofrio, distinguishes between motions filed before sentence and those filed after sentence, principally for policy reasons.

“If a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment and withdraw the plea if the sentence were unexpectedly severe,” wrote Donofrio.

Cohen’s contention hinged on the fact that he filed his motion prior to his sentencing hearing and that the trial court should have analyzed his motion under the pre-sentencing standard.

The state, however, held that the court applied the correct standard because Cohen knew of his sentence before the hearing took place.

Citing similar cases, Donofrio stated that a defendant does not have an absolute right to withdraw a plea, even if the motion is made prior to sentencing.

“A change of heart or mistaken belief about his plea is not a reasonable basis requiring a trial court to permit the defendant to withdraw his plea,” wrote Donofrio. “Moreover, a defendant generally is not allowed to withdraw his plea prior to sentencing just because he is made aware that a subjectively unexpected sentence is going to be imposed.”

Additionally, the appellate panel found that the trial court went to great lengths to ensure that Cohen understood he was entering a guilty plea without the benefit of a plea agreement.

Transcripts of the plea colloquy indicate that Huffman asked, “Did anybody, including your attorney, promise that you will receive community control sanctions and will not receive a prison sentence as a result of this plea?”

Cohen answered, “No.” He also signed a plea form which specifically stated, “No promises were made to me to induce my plea.”

“In similar cases, this court has found that a defendant’s testimony and signed plea form at the plea hearing that his plea was not induced by promises counters he defendant’s allegation that the plea was induced,” wrote Donofrio.

After reviewing transcripts of a similar exchange from the hearing on the motion to withdraw, the court of appeals supported the trial court’s finding that Cohen lacked credibility.

The panel also concluded that Cohen was never promised probation by his trial counsel.

“The record supports the trial court’s assessment that Cohen simply had a change of heart after learning of the anticipated sentence,” wrote Donofrio. “The judgment of the trial court is hereby affirmed.”

Judges Mary Donovan and Jeffrey Froelich concurred.

The case is cited State v. Cohen, 2013-Ohio-2928.

[Back]