[Cite as State v. Keys,
2012-Ohio-5169.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97353
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROY KEYS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549679
BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
BY: Stephen A. Goldmeier
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Carrie Heindrichs
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Roy Keys (“Keys”), appeals the trial court’s denial of
his presentence motion to withdraw his guilty plea. For the reasons that follow, we
affirm.
{¶3} In May 2011, Keys was charged in a three-count indictment. Counts 1 and
2 charged him with kidnapping, and Count 3 charged him with felonious assault. The
charges arose out of an incident in which Keys hit his girlfriend multiple times in the face
while they were driving in her car. The girlfriend attempted to exit her car, but Keys
climbed into the driver’s seat, grabbed her by her jacket, and drove the car with his
girlfriend being dragged along the side of the car.
{¶4} On July 12, 2011, Keys pled guilty to felonious assault as charged in Count
3, and the remaining counts were nolled. The matter was set for sentencing on July 26,
2011. On July 18, 2011, Keys filed a pro se motion to withdraw his guilty plea, alleging
that “I did not understand what was going on in court. I had other voices in my head
telling me to do one thing and I could not choose right from wrong.” As a result of this
motion, the trial court did not proceed with sentencing. Instead, the trial court referred
Keys to the court psychiatric clinic for a mental health evaluation. In the interim, Keys
requested new counsel, who represented Keys at the hearing on his presentence motion to
withdraw his guilty plea on August 29, 2011. At this hearing, the trial court noted the
psychological report regarding Keys concluded that Keys’s account of auditory
hallucinations was inconsistent with an account that is typically provided by psychotic
individuals and diagnosed Keys with malingering. The report also concluded that he
had polysubstance dependence and depressive disorder. In light of this report and the
trial court’s review of the guilty plea hearing, the court denied Keys’s motion and then
sentenced Keys to an aggregate of eight years in prison.
{¶5} Keys now appeals, raising the following single assignment of error
for review.
ASSIGNMENT OF ERROR
The trial court erred by denying [Keys’s] presentence motion to withdraw
his guilty plea[.]
{¶6} Keys argues that the trial court erred when it denied his presentence motion
to withdraw his guilty plea. A motion to withdraw a guilty plea is governed by the
standards set forth in Crim.R. 32.1, which provides that
[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.
{¶7} Generally, a presentence motion to withdraw a guilty plea should be freely
and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992).
However, a defendant does not have an absolute right to withdraw a plea prior to
sentencing, and it is within the sound discretion of the trial court to determine what
circumstances justify granting such a motion.
Id. 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.
{¶8} In State v. Peterseim, 68 Ohio App.2d 211, 214,
428 N.E.2d 863 (8th
Dist.1980), paragraph three of the syllabus, 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:
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.
{¶9} Keys’s argument does not specifically address the above factors. Rather, he
argues the trial court erred when it denied his presentence motion to withdraw his guilty
plea because he demonstrated that he was confused, and this confusion caused him to be
misled by defense counsel at his guilty plea hearing. We disagree.
{¶10} The trial court, in the instant case, fully complied with the Peterseim
criteria. First, Keys’s initial and subsequent assigned counsel are highly competent.
Second, Keys concedes that he was afforded that full hearing under Crim.R. 11 and that
his plea was knowingly and voluntarily made. Third, the record demonstrates that the
trial court gave Keys a complete and impartial hearing on his presentence motion to
withdraw his guilty plea. Fourth, the trial court afforded Keys an impartial hearing on
his motion to withdraw his guilty pleas and gave full and fair consideration to his request
as required by the last Peterseim criteria.
{¶11} A review of the record reveals that the trial court was prepared to sentence
Keys on July 26, 2001, but continued the matter for a mental health evaluation. After
the evaluation was completed, the trial court held a hearing on Keys’s presentence motion
to withdraw his guilty plea. At this hearing, the court first noted that the psychiatric
report concluded that Keys’s account of auditory hallucinations was inconsistent with an
account that is typically provided by psychotic individuals. The trial court then noted
that at the plea hearing defense counsel informed the court that he fully advised Keys, and
Keys understood the nature of the proceedings. The court stated:
I inquired of [Keys] directly, and if my math is correct, on 13 separate
occasions, I asked him if he understood exactly what I was explaining to
him. On two separate occasions I asked him if he had any questions
whatsoever. On a number of occasions I asked him about his satisfaction
with his counsel. He indicated that he was satisfied. He indicated no
threats of promises had been made to induce this plea, and that the plea that
he entered [into] … was completely voluntarily and knowingly made.
… [O]n the date of the plea, … I asked you if you were taking any
medication. You indicated that you were taking blood pressure medication
and you were not sure if it was helping your blood pressure. I asked you if
you were thinking clearly. You said yes. I asked you if you were feeling
well, and you said yes. I asked you if you were under the influence of any
illegal drugs or alcohol, and you said no.
{¶12} The record demonstrates that Keys did not suffer from auditory
hallucinations, and the trial court asked him on a number occasions if he understood the
nature of the proceedings and if he was satisfied with defense counsel. Therefore, we
find that the trial court did not abuse its discretion when it denied Keys’s presentence
motion to withdraw his guilty plea because all four prongs set forth in Peterseim were
satisfied.
{¶13} The sole assignment of error is overruled.
{¶14} Judgment is 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.
______________________________________
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
