[Cite as State v. Parker,
2025-Ohio-457.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113945
v. :
DA’VEON PARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 13, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-679818-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Rick Ferrara, Assistant Public Defender, for appellant.
DEENA R. CALABRESE, J.:
Defendant-appellant, Da’Veon Parker (“Parker”), appeals the denial of
his presentence oral motions to withdraw his guilty plea and for a continuance of
the sentencing hearing. Finding no abuse of discretion, we affirm the trial court’s
decision.
I. Facts and Procedural History
On March 28, 2023, the Cuyahoga County Grand Jury indicted Parker
on one count of attempted rape in violation of R.C. 2907.02(A)(2)/R.C. 2923.02,
two counts of rape in violation of R.C. 2907.02(A)(2), one count of gross sexual
imposition in violation of R.C. 2907.05(A)(1), and one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4). The indictment followed Parker’s
minor cousin (“victim”) coming forward to report years of sexual abuse by Parker.
She reported Parker had been sexually assaulting her from the time she was five
years old until she was fifteen years old and stated he forced her to perform oral sex
on him, he performed oral sex on her, and he attempted to insert his penis into her
vagina. (Tr. 53-54.)
Between July 10, 2023, and March 25, 2024, the State and defense
counsel had numerous pretrials. Additionally, three trial dates were scheduled
during the pendency of the case. The morning of the third trial date, the parties
reached a plea agreement.
After reaching a plea agreement, Parker pled guilty to an amended
indictment on March 25, 2024. Parker pled guilty to two counts of sexual battery,
felonies of the third degree pursuant to R.C. 2907.03(A)(1), and one count of gross
sexual imposition pursuant to R.C. 2907.05(A)(4), also a felony of the third degree.
During the Crim.R. 11 colloquy, the trial court stated, “[Y]ou are pleading guilty to
three counts of felonies of the third degree . . . [t]hat’s one to five years on each count
. . . [d]o you understand that?” Parker responded, “Yes, your honor.” (Tr. 8.) At the
end of the plea hearing, the trial court stated that a presentence investigation had
been requested. (Tr. 14.)
Sentencing was held on April 24, 2024, a month after the plea hearing.
The victim and family members were present in the courtroom and the presentence-
investigation report was available. Parker made an oral motion to withdraw his
guilty plea or for a continuance of the sentencing hearing. The court immediately
conducted a hearing on the motions.
During the hearing, Parker argued he wanted to withdraw his guilty
plea because he was innocent, because of “deficiency of advisement of counsel,” and
because “he did not fully understand what he was engaging in.” (Tr. 19-20.) He
stated he had thought the potential sentence was “like one to three. [He] didn’t
know it was three and it could range from one to five for each.” (Tr. 25.) He also
stated he wanted to withdraw his plea because he wanted to “be a great fitness
trainer, and . . . that’s being jeopardized.” (Tr. 24.) Parker did not allege any
violations or failure to comply with Crim.R. 11. (Tr. 20.)
Both parties discussed the multiple pretrials that took place so Parker
and his attorney could meet to go over discovery and discuss the case. (Tr. 21, 23,
and 30.) The State argued they had prepared for trial multiple times, only to have
Parker’s motions for a continuance granted. (Tr. 35.) The court pointed out the
presentence investigation showed Parker graduated from high school and college.
(Tr. 23-24.)
In addition, Parker made an oral motion for a continuance of the
sentencing hearing. Counsel for Parker stated, “[O]r in the alternative . . . we would
be making a motion and a request of the Court so as to further discuss and/or, if
need be, to supplement these requests of Mr. Parker with a formal motion relative
to his request to withdraw the plea.” (Emphasis added.) (Tr. 18.)
The trial court held a hearing discussing both the motion for a
withdrawal of the guilty plea and the motion for a continuance of the sentencing
hearing. Both motions were denied, and the trial court proceeded to hold the
sentencing hearing. Parker was sentenced to a term of nine years in prison, three
years on each count to run consecutive to each other. Parker filed this appeal on the
denial of his motions to withdraw his guilty plea and for a continuance of the
sentencing hearing.
Parker raises the following assignments of error:
I. The trial court abused its discretion in declining to grant appellant’s
motion to withdraw his guilty plea prior to sentencing.
II. The trial court abused its discretion in declining to grant appellant’s
motion to continue to fully brief his motion to withdraw his plea,
denying Parker due process of law.
II. Law and Analysis
A. First Assignment of Error
In his first assignment of error, Parker asserts the trial court abused
its discretion in declining to grant his motion to withdraw his guilty plea prior to
sentencing.
Crim.R. 32.1 governs withdrawals of guilty pleas, stating that “[a]
motion to withdraw a plea of guilty or no contest may be made only before sentence
is imposed.” Usually,
“the general rule is that motions to withdraw guilty pleas before
sentencing are to be freely allowed and treated with liberality, . . . still
the decision thereon is within the sound discretion of the trial court. . . .
Thus, unless it is shown that the trial court acted unjustly or unfairly,
there is no abuse of discretion. . . . One who enters a guilty plea has no
right to withdraw it. It is within the sound discretion of the trial court
to determine what circumstances justify granting such a motion.”
(Citations omitted.) State v. Peterseim, 68 Ohio App.2d 211, 213-214 (8th Dist.
1980), quoting Barker v. United States,
579 F.2d 1219, 1223 (10th Cir. 1978). “[A]
defendant does not have an absolute right to withdraw a plea prior to sentencing.
. . . [T]he trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.” State v. Xie,
62 Ohio
St.3d 521, 527 (1992).
This court has held that a trial court’s denial of a presentence motion
to withdraw is not an abuse of discretion when the record reflects (1) the defendant
is represented by highly competent counsel; (2) the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he or she entered 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 court gives full and fair consideration to the plea-
withdrawal request. Peterseim at 866.
Ohio courts have also recognized additional factors that trial courts
should consider when deciding a presentence motion to withdraw a plea. State v.
Walcot, 2013-Ohio-4041, ¶ 19 (8th Dist.). These factors include “(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 [possible penalties]; and (9) whether the [defendant]
was perhaps not guilty or had a complete defense[.]”
Id. See also State v. Fish,
104
Ohio App.3d 236, 240 (1st Dist. 1995); State v. Moore,
2012-Ohio-5734, ¶ 13 (8th
Dist.).
When presented with a claim of innocence, “‘the trial judge must
determine whether the claim is anything more than the defendant’s change of heart
about the plea agreement.’” State v. Hoyle, 2016-Ohio-586, ¶ 31 (8th Dist.), quoting
State v. Minifee,
2013-Ohio-3146, ¶ 27 (8th Dist.). It is well-established that a mere
change of heart is an insufficient basis for withdrawing a guilty plea. State v. Elliott,
2016-Ohio-2637, ¶ 30 (8th Dist.); State v. Heisa,
2015-Ohio-2269, ¶ 23 (8th Dist.);
State v. Barrett,
2014-Ohio-1234, ¶ 9 (8th Dist.). Additionally, a defendant’s claim
of innocence alone is insufficient grounds for vacating a plea that was knowingly,
voluntarily, and intelligently entered.
Elliott at ¶ 30, citing Minifee at ¶ 27 and State
v. Bloom,
2012-Ohio-3805, ¶ 13 (8th Dist.); State v. Small,
2017-Ohio-110, ¶ 19 (8th
Dist.).
“For us to find an abuse of discretion in this case, we must find more
than an error of judgment. We must find that the trial court’s ruling was
‘unreasonable, arbitrary or unconscionable.’” Xie, 62 Ohio St.3d at 527, quoting
State v. Adams,
62 Ohio St.2d 151, 157 (1980).
Applying the Peterseim factors to this case, the record reflects that
although counsel alleged “deficiency of advisement of counsel,” there was no dispute
that Parker was represented by highly competent counsel. (Tr. 19-20.) Parker did
not allege any Crim.R. 11 deficiencies in the plea hearing. (Tr. 20.) The trial court
held a full hearing on the motion to withdraw the guilty plea, giving Parker ample
time and opportunity to put forth the reasons for the motion, and the trial court
asked numerous questions to clarify the basis for the motion.
Applying the additional factors used by Ohio courts, the State
prepared for trial multiple times in this case, only to have the trials continued at the
defense’s request. The oral motion was made the day of the sentencing hearing,
despite Parker having a month between the plea hearing and the sentencing hearing
to file a motion. At the plea hearing, the trial court stated the penalty, explaining
“[t]hat’s one to five years on each count[,] . . . [d]o you understand that?” Parker
responded, “Yes, your honor.” (Tr. 8.) Additionally, there were many pretrials and
trial dates at the request of the defense prior to his plea so that Parker and his
attorney could discuss the case and discovery. This provided ample time for Parker
and his counsel to explore trial or plea-negotiation strategies tailored to a theory that
Parker was innocent. It is hard to believe that Parker, with a college education, did
not understand the charges against him or the possible penalties. Parker did not
allege any new evidence or defense. The trial court questioned Parker extensively
and concluded that his motion for a withdrawal of his guilty plea was due to a change
of heart. (Tr. 41.)
Therefore, we find no abuse of discretion on the part of the trial court
in making its ruling and affirm the denial of Parker’s motion to vacate his guilty plea.
Parker’s first assignment of error is overruled.
B. Second Assignment of Error
In his second assignment of error, Parker asserts that the trial court
abused its discretion in declining to grant his motion to continue the sentencing
hearing to fully brief his motion to withdraw his plea, denying him due process of
law.
‘“The grant[ing] or denial of a continuance is a matter which is
entrusted to the broad, sound discretion of the trial judge. An appellate court must
not reverse the denial of a continuance unless there has been an abuse of
discretion.’” State v. Chaney, 2024-Ohio-248, ¶ 11 (8th Dist.), quoting State v.
Unger,
67 Ohio St.2d 65, 67 (1981). An abuse of discretion occurs when a court
exercises ‘“its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.’”
Chaney at ¶ 11, quoting Johnson v. Abdullah, 2021-
Ohio-3304, ¶ 35.
The following factors are to be considered when ruling on a motion for
continuance:
[T]he length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the [requesting party] contributed to the circumstance which
gives rise to the request for a continuance; and other relevant factors,
depending on the unique facts of each case.
Unger at 67-68. However, ““‘[t]here are no mechanical tests for deciding when a
denial of a continuance is so arbitrary as to violate due process. The answer must
be found in the circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.”’”
Chaney at ¶ 12,
quoting
Unger at 67, quoting Ungar v. Sarafite,
376 U.S. 575, 589 (1964).
Parker compares his case to State v. Nicholson, 2004-Ohio-2394 (8th
Dist.). In Nicholson, the defendant made an oral motion to withdraw his guilty plea.
The trial court denied the motion prior to hearing defendant’s arguments, and only
after denying the motion allowed limited discussion on the basis of the motion to
withdraw the guilty plea. We found that there was no adequate hearing on the
motion, stating that “there is no guarantee that the defense had a reasonable
opportunity to present the case for withdrawing a plea when that opportunity was a
brief discussion wedged between the victim speaking and immediately before
sentencing, but not before his motion was denied.”
Nicholson at ¶ 10.
Parker argues that under Nicholson, the trial court should have
granted his motion for a continuance so he could fully brief his motion to withdraw
his guilty plea. However, there was no mention of a motion for a continuance in
Nicholson. We reversed and remanded Nicholson because the trial court did not
hold any hearing prior to denying the defendant’s motion to withdraw his guilty
plea. In this case, Parker was afforded a full hearing prior to the denial of his oral
motions and prior to the victim speaking. The hearing gave Parker ample
opportunity to present his case for his motions for a continuance of the sentencing
hearing and for withdrawing his guilty plea.
In this case, Parker made an oral motion for a continuance the
morning of the sentencing hearing, despite having a month between the plea hearing
and the sentencing hearing to file a motion. Counsel requested a continuance “so as
to further discuss and/or, if need be, to supplement these requests of Mr. Parker
with a formal motion,” meaning it was not definitive that a filed motion for a
withdrawal of the guilty plea was forthcoming. (Emphasis added.) (Tr. 18.) A
continuance would have inconvenienced the victim and the State, who were present
and prepared for the sentencing hearing. Also, nothing in the record suggests the
trial court did not give Parker’s oral motion for a continuance full and fair
consideration.
Therefore, we find the trial court did not abuse its discretion in
denying Parker’s motion for a continuance of the sentencing hearing. Parker’s
second assignment of error is overruled.
We find the trial court did not abuse its discretion and affirm the
denial of Parker’s motions to withdraw his guilty plea and for a continuance of the
sentencing hearing.
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.
DEENA R. CALABRESE, JUDGE
MICHAEL JOHN RYAN, P.J., and
ANITA LASTER MAYS, J., CONCUR
