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Date: 07-08-2020
Case Style:
STATE OF OHIO vs. MARK A. MCCOY
Case Number: 19CA4
Judge: Jason P. Smith
Court: IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
Plaintiff's Attorney: Jason D. Holdren, Gallia County Prosecuting Attorney, Jeremy J. Fisher,
Assistant Prosecuting Attorney
Defendant's Attorney:
Need help finding a lawyer for representation for arguing the trial court erred by failing to freely and liberally grant his pre-sentence request to withdraw his guilty plea in Ohio?
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Description:
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{¶2} On January 30, 2019, Mark A. McCoy, (“Appellant”), was
indicted on two counts of endangering children. The alleged victim was his
two-year-old grandson (“B.T.”), and the date of the alleged incident was
December 24, 2018. Specifically, Appellant was charged with Count 1,
endangering children, in violation of R.C. 2919.22(B)(1), a felony of the
second degree; and Count 2, endangering children, in violation of R.C.
2919.22(A), a felony of the third degree.
{¶3} Appellant pled not guilty at arraignment. The trial court
appointed counsel and established bail at $1,000,000.00 (one million
dollars), with 10% posting allowed. Appellant remained in jail in lieu of
posting bail.
{¶4} The parties exchanged discovery, the trial court conducted
pretrial status conferences, and trial was scheduled for March 6, 2019. On
the morning of trial, defense counsel filed a motion in limine. The motion
requested the trial court rule that ten brief audio recordings made by
Appellant’s girlfriend Kelly Bainter, which consisted of Appellant yelling at
his grandson, be found inadmissible for purposes of trial.
Gallia App. No. 19CA4 3
{¶5} Prior to seating the jury, the trial court, attorneys, and Appellant
listened to the recordings. On Recording #5, the male speaker is heard
cursing and a child is whimpering in the background. The speaker
repeatedly curses and berates the child, at one point yelling, “Mother
fucker...I will goddamn snap your goddamn little neck.” The court made a
partial ruling on the motion in limine, ruling that Recording #5 would be
admissible. The trial court reserved ruling on the remaining recordings until
witness testimony on the issue could be presented. The necessary witness,
Kelly Bainter, was not present at court so the trial court proceeded with jury
selection and seated a jury.
{¶6} After a lunch break, the trial court allowed Appellant to present
evidence on the motion in limine outside the presence of the jury. Appellant
testified that his relationship with Kelly Bainter was “pretty rocky” at the
time of the incident. Regarding the verbal statements on the recordings,
Appellant testified: “No, not everything was addressed towards the child,
no.” However, on cross-examination, Appellant testified: “I don’t know if
that’s actually me or not.” The trial court recessed without making a further
ruling on the motion. After the recess, the parties reported that they had
reached a plea agreement.
Gallia App. No. 19CA4 4
{¶7} Pursuant to the agreement, Appellant would plead guilty to the
first count of endangering children, the second-degree felony. In
consideration of the plea, the State would refrain from making a specific
sentencing recommendation to the trial court. The State also agreed to
dismiss the second count.
{¶8} The matter was scheduled for sentencing on March 13, 2019.1
At the beginning of the sentencing hearing, defense counsel requested a
continuance to investigate a claim that the recordings of Appellant allegedly
verbally and physically abusing his grandson were fabricated. The trial
court granted this request. Appellant posted bail and was released from jail.
As a condition of release, Appellant was ordered to have no contact with
B.T., J.T. (B.T.’s mother), and Kelly Bainter. Sentencing was rescheduled
for March 28, 2019.
{¶9} On March 22, 2019, a warrant was issued for Appellant’s arrest
after he allegedly violated a condition of his bond. Appellant had been
found hiding in a box spring inside a mattress in a residence where Kelly
Bainter was also present. On March 27, 2019, Appellant filed a motion to
withdraw his plea and a motion for mistrial.
1
The transcript of the sentencing hearing is dated February 13, 2019, but the record reflects a March 7,
2019 “Journal Entry-Plea with Presentence Investigation Ordered,” which sets the sentencing date for
March 13, 2019.
Gallia App. No. 19CA4 5
{¶10} On March 28, 2019, the trial conducted a hearing on
Appellant’s motion to withdraw his plea. The trial court concluded that no
reasonable or legitimate basis existed to grant Appellant’s request. On April
12, 2019, the trial court filed a judgment entry denying the motion. On April
16, 2019, the trial court conducted the sentencing hearing and imposed a
maximum prison sentence of a stated term of eight years.
{¶11} This timely appeal followed. Where pertinent, additional facts
are set forth below.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY DECLINING TO FREELY AND LIBERALLY
GRANT MCCOY’S PETITION TO WITHDRAW HIS
GUILTY PLEA.”
A. STANDARD OF REVIEW
{¶12} Crim.R. 32.1 states: “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.” See
State v. Burke, 4th Dist. Lawrence Nos. 19CA1 and 19CA2, 2019-Ohio4744, at ¶ 12. “[A] presentence motion to withdraw a guilty plea should be
freely and liberally granted.” State v. Hoke, 4th Dist. Lawrence No.
10CA32, 2011-Ohio-1221, ¶ 12 (internal quotations omitted), quoting State
Gallia App. No. 19CA4 6
v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, at ¶ 57,
quoting 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 guilty
plea prior to sentencing.” Xie at paragraph one of the syllabus; see also
State v. Spivey, 81 Ohio St.3d 405, 415, 161, 1998-Ohio-437, 692 N.E.2d
151. “The decision to grant or deny a presentence motion to withdraw a
guilty plea is within the sound discretion of the trial court” and will not be
reversed absent an abuse of that discretion. Xie at paragraph two of the
syllabus. See also State v. Brown, 4th Dist. Ross No. 16CA3544, 2017-
Ohio-2647, ¶ 11. “A trial court abuses its discretion when it makes a
decision that is unreasonable, unconscionable, or arbitrary.” State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, citing
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
Furthermore, “[w]hen applying the abuse of discretion standard, a reviewing
court is not free to merely substitute its judgment for that of the trial court.”
In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
{¶13} When determining whether a trial court abused its
discretion by denying a presentence motion to withdraw a plea, we consider
the following factors: “ ‘ “ ‘(1) whether the accused was represented by
highly competent counsel; (2) whether the accused was given a full Crim.R.
Gallia App. No. 19CA4 7
11 hearing before entering the plea; (3) whether a full hearing was held on
the withdrawal motion; and (4) whether the trial court gave full and fair
consideration to the motion.’ ” ’ ” Burke, supra, at ¶ 13, quoting Hoke at
¶ 13, quoting State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio4992, at ¶ 7, quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765
N.E.2d 884 (1st Dist.2001); see also State v. Gibbs, 4th Dist. Ross Nos.
10CA3137 and 10CA3138, 2010-Ohio-2246, at ¶ 9. Other considerations
include: “ ‘(1) whether the motion was made within a reasonable time; (2)
whether the motion set out specific reasons for the withdrawal; (3) whether
the accused understood the nature of the charges and the possible penalties;
and (4) whether the accused was perhaps not guilty or had a complete
defense to the charges.’ ” Campbell at ¶ 7, quoting McNeil, 146 Ohio
App.3d at 176. A change of heart or mistaken belief about the plea is not a
reasonable basis requiring a trial court to permit the defendant to withdraw
the plea. Campbell at ¶ 7; citing State v. Lambros, 44 Ohio App.3d 102,
103, 541 N.E.2d 632 (8th Dist. 1988).
LEGAL ANALYSIS
{¶14} In this case, Appellant concedes that the trial court
recognized the correct framework for analysis of his motion to withdraw his
guilty plea. However, Appellant asserts the trial court’s findings are not
Gallia App. No. 19CA4 8
supported by the record. Appellant asserts that (1) the trial court assigned
much weight to the plea settlement terms in considering whether Appellant
was represented by highly competent counsel; (2) the trial court made
findings upon facts not properly before the court or in the record at the time
of the hearing on his motion to withdraw his plea by relying upon the presentence investigation report (PSI), which was not offered into evidence; (3)
that he is innocent and did not abuse his grandson; and (4) that he entered a
plea based on his emotional state after hearing “doctored” recordings.
Appellant argues that he did not recall yelling at his grandson as was
indicated in the recordings and only after learning that the recordings were
“doctored” did he seek to withdraw his plea.
{¶15} Appellant concludes that due process requires that he be
allowed the opportunity to fully develop and present his defense. The issue
of the authenticity of the recordings can be determined by forensic analysis.
Appellant requests this court reverse his conviction and find that the trial
court should have allowed him to withdraw his guilty plea. We first observe
the record indicates the trial court delayed sentencing for two weeks at
Appellant’s request in order to give him time to investigate the authenticity
of the recordings.
Gallia App. No. 19CA4 9
{¶16} In the trial court’s judgment entry denying the motion to
withdraw guilty plea, the trial court discussed the relevant factors and made
the following findings:
1) Highly competent counsel represented Appellant.
2) The trial court afforded Appellant a full Criminal Rule 11
hearing before entering his plea by engaging in discussion with
Appellant and covering all necessary subjects set forth in the
rule.
3) The trial court held a full hearing on Appellant’s motion
wherein Appellant presented evidence.
4) The trial court gave full and fair consideration to Appellant’s
motion by considering the evidence and the law as applied to
the evidence and detailed its reasoning in the court’s ruling.
5) Appellant did not file his motion within a reasonable time.
6) Appellant gave three reasons for requesting withdrawal of his
plea.
7) Appellant understood the charges against him, the nature of the
charges, the possible penalties and consequences of his plea.
8) The trial court discussed whether Appellant was “perhaps not
guilty or had a complete defense to the charges.”
Gallia App. No. 19CA4 10
9) The State would suffer prejudice.
{¶17} Our review of the entire record reflects that the trial court’s
findings are supported. The record indicates that Appellant’s trial counsel
held 20-plus years of legal experience, had been a public defender, and had
tried felony and murder cases. While Appellant belittles the plea agreement
in that the lesser felony was dismissed, his counsel achieved substantial
success in that his client also received the State’s promise to remain silent as
to any sentencing recommendation. This benefit alone is substantial.
{¶18} Highly important is the fact that the record demonstrates that
Appellant received a full Criminal Rule 11 hearing before entering his plea.
The record demonstrates Appellant was 45 years old and a high school
graduate with two years of vocational training. He testified he could read
and write English, had various certificates of training, and had worked as a
union painter and for the Shelly Company.
{¶19} The trial court engaged in a detailed colloquy with Appellant.
Appellant testified that although he was on prescription medication for a
chemical imbalance, he was “of sound mind,” and his medications did not
interfere with his ability to understand the proceedings. Appellant also
testified that he did not have any mental illness or condition that would
interfere with his understanding. Trial counsel further assured the court that
Gallia App. No. 19CA4 11
Appellant appeared to be competent and not impaired by his medications.
The trial court specifically found that Appellant was “alert and responsive,
* * * providing detailed information.”
{¶20} The trial court also inquired as to whether Appellant
understood the nature of the charges and whether he had been threatened,
forced or coerced into entering his plea. Appellant replied “Yes ma’am” to
his understanding the allegations and “No ma’am” as to whether he had been
forced or coerced to plead guilty. Trial counsel acknowledged that he had
discussed the elements of the charged offenses, talked extensively about
defenses available to Appellant, and advised him of his state and federal
constitutional rights. Appellant verified that his counsel had engaged in
these discussions and also expressed satisfaction with his counsel’s
representation. Appellant acknowledged his counsel had explained the plea
agreement and they had read through it together.
{¶21} The trial court iterated that Appellant would be making a complete
admission to the allegations if he entered a plea and Appellant
acknowledged his understanding. He also expressed understanding that he
was waving his right to have further action on his motion in limine. The
trial court also explained the maximum penalties.
Gallia App. No. 19CA4 12
{¶22} The trial court also went over Appellant’s federal constitutional
rights and explained that by entering a plea, Appellant was specifically
waiving them. The trial court specifically asked Appellant, “Have you had
enough time to think about this decision?” and, “Are you certain this is what
you want to do?” Appellant replied affirmatively to both questions.
{¶23} The State of Ohio recited the facts as follows:
Um, going on to the date of December 23, 2018 continuing into
the 24th, * * * in Gallia County at Mr. McCoy’s home, his
residence there uh, he did have a live-in girlfriend I believe. * *
* Uh, [B.C.], his two-year-old grandson um, had been in his
custody and care and responsible for him about December 18th
until that uh, 24th when [B.C.] had been taken to the hospital.
Mr. McCoy also acknowledged at one of the motion hearings as
well as uh, through the jail calls various other things, that he
had taken some drugs uh, going into the evening, early hours of
the morning or sometime prior to that but it had affected him
and he, I think he even acknowledged he’d gotten some bad
stuff, * * * whether it was Flakka or bath salts. * * * [W]asn’t
in his right mind. Um, obviously under Ohio and its been
explained voluntary intoxication is not a defense to things. Um,
Gallia App. No. 19CA4 13
this isn’t an intentional act or purposeful act uh, it’s a reckless
standard in this charge. Um, there’s audio clips uh,
circumstantial that go and show the verbal abuse that uh, even
out of character as Mr. McCoy had put it. Um, I don’t think
there’s any dispute that he recognizes that’s his voice in, on
there and you can hear [B.T.] in the background uh, pertaining
to the events that happened throughout the night there. Dr.
Huber, who was present today out in the hall who was ready to
give her expert opinion um, that ultimately the extensive
workup where [B.T.] had been taken to Holzer Hospital, sent to
Children’s Hospital due to the nature of the injuries uh, the
excessive bruising and swelling uh, in the genital area
specifically. * * * He was hospitalized several days uh, elevated
liver enzymes, extensive bruising as mentioned. There was a
trauma team that was assigned and she is a specialized
pediatrician. And then at the conclusion, conclusion of that her
expert opinion was that it was non-accidental trauma.
{¶24} At this point, the trial court asked Appellant if he concurred in
the statement of the facts presented by the State and he first stated “We
agreed upon it,” then “Oh, yeah.” At that point the trial court inquired
Gallia App. No. 19CA4 14
whether everything Appellant had said was of his own freewill and he
replied, “Yes ma’am.” Thereafter, he entered a plea of guilty. The trial
court also went over the waiver in writing with Appellant, who affirmed the
authenticity of his signature and the date. He also affirmed that he
understood everything in the document and that he had signed it voluntarily.
{¶25} The transcript further reflects the trial court also went over the
guilty plea form with Appellant paragraph by paragraph. He again
acknowledged his ability to understand and testified again, “And I’ve of
sound mind, body and soul [sic.]” At the conclusion of the colloquy, the
trial court accepted the waiver and guilty plea forms and made a finding on
the record that they were executed “knowingly, voluntarily, and
intelligently.” She further found that Appellant understood the nature of the
charge, the effects of the guilty plea, the possible penalties, and was afforded
all rights pursuant to Criminal Rule 11.
{¶26} Our review of the record demonstrates that every other additional
finding the trial court made in denying Appellant’s motion to withdraw his
plea is supported by the record and we decline to reiterate them. The trial
court held a full hearing on Appellant’s motion to withdraw his plea; the trial
court’s ruling was detailed and indicated she gave full and fair consideration
to the motion; the motion was not filed at a reasonable time—Appellant filed
Gallia App. No. 19CA4 15
the motion on the morning of sentencing and only after he had violated a
condition of bond and after a jury had been seated and dismissed. In
addition, the trial court considered Appellant’s reasons and whether or not
he was “perhaps not guilty or had a complete defense to the charges.”
{¶27} Next, we will review Appellant’s reasons for filing to withdraw
his plea:
(1)The trial court assigned much weight to the plea agreement
in finding Appellant was represented by highly competent
counsel;
(2)The trial court made findings of facts not properly before the
court by relying, as referenced in the court’s entry denying
the motion to withdraw, upon the PSI;
(3)Appellant’s innocence; and,
(4)Appellant entered the plea based upon his emotional state
after hearing “doctored” recordings.
{¶28} First, we find no merit to his assertion that his counsel
was not highly competent. We have discussed that sufficiently in Paragraph
17 above.
{¶29} Second, Appellant argues that the trial court made findings
upon facts not properly before the court or in the record at the time of the
Gallia App. No. 19CA4 16
hearing on his motion to withdraw. This is based on the court’s references
to the PSI in the entry denying the motion to withdraw. The trial court
referenced the PSI in finding that Appellant had highly competent counsel.
The trial court referenced the PSI again when it discussed whether Appellant
was not guilty or had a complete defense. Upon review, we are not
convinced the trial court abused its discretion by referencing the PSI report
or by relying upon it.
{¶30} The record reflects at the close of the motion to withdraw
hearing, which was held on Appellant’s second sentencing date, the trial
court stated she wished to give full and fair consideration to the arguments
made and rescheduled the sentencing and her decision on the motion for two
weeks later. The trial court apparently had the PSI ready at hand. And,
given that the trial court did not rule on the motion to withdraw from the
bench, Appellant’s counsel did not have opportunity to object to the PSI
information being considered with regard to the motion to withdraw
Appellant’s plea.
{¶31} However, even if Appellant had interposed an objection, the
trial court likely would have overruled it. It is well-settled that the Rules of
Evidence do not apply at miscellaneous criminal proceedings. See Evid. R.
101(C)(3). State v. Strong, 4th Dist. Ross No. 18CA3663, 2019-Ohio-2888,
Gallia App. No. 19CA4 17
at ¶ 31, (Rules of Evidence do not apply to suppression hearings); State v.
Newsome, 4th Dist. Hocking No. 17CA2, 2017-Ohio-7488, at ¶ 21, (Rules of
Evidence do not apply to community control revocation hearings); State v.
Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-1275, at ¶ 92; (Sexual
predator determination hearing is similar to sentencing or probation hearings
where it is well-settled that the Rules of Evidence do not apply); State v.
Patton, 4th Dist. Highland No. 18CA9, 2019-Ohio-2769 at ¶ 25 (Court is not
restricted by the Rules of Evidence when determining the amount of a
restitution order.)
{¶32} The trial court referenced the PSI when considering whether
Appellant was represented by highly competent counsel. We have discussed
above at Paragraphs 16-26 that the trial court’s findings are supported by the
record. And, the trial court referenced the PSI when discussing whether
Appellant was not guilty or had a complete defense to the charges. As will
be discussed below, evidence of Appellant’s guilt or defenses interposed was
brought to the trial court’s attention during the hearings on Appellant’s
motion in limine and motion to withdraw his plea. Therefore, we find no
merit to Appellant’s assertion that the trial court abused its discretion and
based its findings on evidence not properly before the court.
Gallia App. No. 19CA4 18
{¶33} Third, we are skeptical of Appellant’s claim of innocence.
Appellant was afforded a full Criminal Rule 11 hearing. As set forth above
in Paragraph 24, Appellant agreed to the statement of facts set forth by the
State and acknowledged his guilt. Later, the transcript of the motion to
withdraw hearing indicates the State of Ohio called Detective Justin Rice, a
13-year veteran of the Gallipolis Police Department. Detective Rice testified
that he had monitored the jail records and phone call records of Appellant
throughout the pendency of the case. On the date Appellant entered his plea,
after returning to the jail, Appellant spoke to a person named Jean.
Detective Rice testified:
He told Jean that he had uh, entered a guilty plea and that he
had uh, done wrong. He was cussing and yelling at little man
and uh, he shouldn’t have been doing that.
{¶34} On redirect examination, Detective Rice testified he had
heard hundreds of phone calls of Mr. McCoy through the jail system and the
voice on the recording sounded the same as the jail calls. He further testified
that during one of the phone calls after the guilty plea, Appellant expressed
that he was “hoping for probation or community control.”
{¶35} Furthermore, Appellant has changed his story several times at
the preliminary hearing. Appellant first testified his grandson’s injuries
Gallia App. No. 19CA4 19
came from two 50-60 pound dogs who knocked the child down some steps
and caused him to hit concrete. He next testified he was working in his
garage and the child was sitting nearby. Appellant was about to drop a
ratchet so he “slung it” and it ended up hitting the child across the leg, on the
groin area, and “knocked [B.T.] on his rear end.” Finally, Appellant vaguely
alluded to letting the child go with someone named Zach Taylor for an hour
or so. And, no evidence presented at the preliminary hearing indicated that
Appellant did anything to help the child once he “noticed” injuries derived
from these other alleged incidents of injury.
{¶36} Additionally, Appellant is no stranger to the criminal justice
system. The transcript reveals Appellant alluded to “verbal” domestics
when questioned at his preliminary hearing about his prior record. Verbal
abuse was the precursor to B.T.’s injuries, as admitted by Appellant when he
testified at the motion in limine hearing, “No, not everything was addressed
toward the child, no.” For all the above reasons, Appellant’s credibility is
lacking, and his innocence is not debatable given he entered a valid plea.
{¶37} Fourth, we find no merit to Appellant’s argument about his
emotional state upon hearing the recordings or the claim that the evidence
was fabricated. Appellant testified at the motion to withdraw hearing that he
became emotionally distraught at the motion in limine hearing when he
Gallia App. No. 19CA4 20
heard the recordings. However, that was not the first time he heard the
recordings. The recordings were played at his preliminary hearing in the
Gallipolis Municipal Court. The preliminary hearing is where Appellant
testified that “not everything on the recordings” was addressed to the child.
Furthermore, as set forth fully above, the transcript of Appellant’s full
Criminal Rule 11 hearing demonstrates his clear state of mind when he
entered his plea.
{¶38} As to Appellant’s claim regarding the authenticity of the
recordings, Appellant testified at the motion to withdraw hearing that he
learned the recordings were “doctored” from a friend, Sam Maggard. Jerry
Powers, who dated Appellant’s daughter, also had information. Appellant
testified the voice on the recording sounded like him, but he was not sure it
was him because he and his father’s voice sound very similar.
{¶39} However, when cross-examined, Appellant admitted that Sam
Maggard and Jerry Powers are not experts in computer science and that he is
not even sure if Sam Maggard was present on the date of the incident.
Similarly, Appellant admitted he’s only seen his father twice in the last few
years and to his knowledge, his father was not nearby on the date of the
incident. Again, this testimony occurred after the trial court had already
given Appellant a two-week delay in sentencing to investigate the issue and
Gallia App. No. 19CA4 21
he failed to produce Sam Maggard, Jerry Powers, or any other witness or
other evidence at the motion to withdraw hearing.
{¶40} At the motion to withdraw hearing, Detective Rice also testified
he is a certified Cellebrite operator and physical analyst.2
He testified he
had worked numerous cases involving cell phone extractions. He testified
that to his knowledge it is not possible to manipulate someone’s voice on a
recording or change words in a recording. Detective Rice specifically
testified that the recordings at issue in this case came into his possession at
approximately 11:00 a.m. on Christmas Eve, immediately after all the
bruising and injuries to B.T. had been discovered. In his opinion, none of
the recordings appeared to have been fabricated.
{¶41} We find Appellant’s arguments to be self-serving and his
reasons for filing a motion to withdraw his plea not plausible. We construe
his true reason as a “change of heart,” possibly occurring after he was
released from jail for a time prior to sentencing, or when he realized the trial
court’s sentence was not going to be probation or community control as
requested. Based upon the foregoing, we find the trial court did not abuse its
discretion in denying Appellant’s motion to withdraw his guilty plea. As
.
Outcome: The judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: