[Cite as State v. Moore, 2012-Ohio-5734.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98132

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

MICHAEL P. MOORE

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-548885 

BEFORE: Boyle, P.J., Jones, J., and Keough, J. 

RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT 

Michael H. Murphy 

20325 Center Ridge Road 

Suite 512 

Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: William Leland 

Assistant County Prosecutor 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Michael Moore, appeals his conviction for attempted 

felonious assault, raising two assignments of error: 

I. Appellant was not afforded effectiv e assistance of counsel. 

II. The trial court erred and abused its discretion in denying the appellant’s 

pre-sentencing motion to withdraw his plea. 

{¶2} Finding no merit to the appeal, we affirm. 
Procedural History and Facts

{¶3} Moore was indicted on one count of felonious assault, in violation of R.C. 

2903.11(A)(1), a felony of the second degree. In April 2011, he pleaded not guilty to the 

charge. On July 12, 2011 — the day of trial — and following several pretrials and the 

exchange of discovery, Moore ultimately withdrew his not guilty plea and pleaded guilty to an 

amended count of attempted felonious assault, a felony of the third degree. The trial court 

accepted his guilty plea and set sentencing for August 17, 2011. The sentencing hearing was 

then continued until August 21, 2011. Moore, however, failed to appear for sentencing, and 

a warrant was subsequently issued for his arrest. 

{¶4} Nearly six months later, Moore was apprehended and then subsequently brought 

to court for sentencing on February 24, 2012. At sentencing, Moore was represented by new 

counsel that Moore had retained the day before sentencing. At the sentencing hearing, 

Moore’s new counsel indicated that he had filed a motion to withdraw the previously entered 

guilty plea. The basis for the motion was that he was recently retained and needed more time 

to review the transcript of the guilty plea and the state’s discovery. The trial court denied the 

motion and proceeded to sentencing. 

{¶5} The trial court ultimately imposed a three-year prison term and informed Moore 

that he was subject to three years mandatory postrelease control. 

Ineffective Assistance of Counsel
{¶6} In his first assignment of error, Moore argues that his original trial counsel was 

ineffective for failing to respond to his telephone calls and to file a motion to withdraw his 

guilty plea on his behalf. We find that this argument has no merit. 

{¶7} To establish ineffective assistance of counsel, a defendant must 

show (1) deficient performance by counsel, i.e., performance falling below an 

objective standard of reasonable representation, and (2) prejudice, i.e., a 

reasonable probability that but for counsel’s errors, the proceeding’s result 

would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 

136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. There 

is a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance, and that strategy and tactical decisions 

exercised by defense counsel are well within the range of professionally 

reasonable judgment. Strickland at 699.

{¶8} Aside from the fact that the record contains no evidence to support Moore’s 

allegations, the allegations alone fail to satisfy either prong of the Strickland test. The 

gravamen of Moore’s allegation is that his trial counsel was deficient for not filing a motion to 

withdraw his guilty plea earlier. But the record reveals that Moore failed to appear for his 

scheduled hearing and was capias for nearly six months. Thus, the alleged untimeliness of 

any motion to withdraw is directly related to Moore’s actions and cannot be blamed on his 
original trial counsel. 

{¶9} Further, the record clearly supports that Moore’s plea was knowingly, 

voluntarily, and intelligently made. The trial court fully complied with Crim.R. 11 prior to 

accepting Moore’s guilty plea. And Moore expressly acknowledged that he was not induced 

to enter his plea by any promises or threats. Notably, Moore fails to assert a single ground as 

to why the trial court should have granted his motion even if it was timely filed. Instead, his 

only argument appears to be that he had a change of heart — such an argument is not a 

sufficient basis to grant a motion to withdraw a guilty plea. We, therefore, cannot say that 

his original trial counsel was deficient in failing to file a futile motion. See State v. 

Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996) (trial counsel is not 

deficient in choosing not to file a futile motion). 

{¶10} The first assignment of error is overruled. 

Withdrawal of Guilty Plea

{¶11} In his second assignment of error, Moore argues that the trial court abused its 

discretion in denying his presentence motion to withdraw his guilty plea. We disagree. 

{¶12} Generally, a motion to withdraw a guilty plea made before sentencing should be 

freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). 

A defendant does not, however, have an absolute right to withdraw his plea before sentencing. 
Id. at paragraph one of the syllabus. The trial court is required to “conduct a hearing to 

determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” 

Id. Following the hearing, the trial court’s decision to grant or deny a motion to withdraw a 

plea will be upheld absent an abuse of discretion. Id. at 527. 

No abuse of discretion is demonstrated where: (1) the accused is 

represented by highly competent counsel, (2) the accused was afforded a full 

hearing, pursuant to Crim.R. 11, before entering 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 record reveals that the trial court gave full and fair 

consideration to the plea withdrawal request.

State v. Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.), citing 

State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980). 

{¶13} This court has further recognized that these factors have been expanded to 

include: 

(5) whether the court gave full and fair consideration to the motion; (6) whether 

the motion was made in a reasonable time; (7) whether the motion states 

specific reasons for withdrawal; (8) whether the accused understood the nature 

of the charges and the possible penalties; and (9) whether the accused was 

perhaps not guilty or had a complete defense. 

(Citation and quotation omitted.) State v. Robinson, 8th Dist. No. 89651, 2008-Ohio-4866, 

¶ 23. 

{¶14} Applying these standards, we cannot say that the trial court abused its discretion 

in denying Moore’s motion to withdraw his guilty plea. At the hearing, Moore’s new 

counsel did not raise any issues regarding the competency of Moore’s original counsel or any 
other valid ground to vacate the guilty plea. The only basis identified in his motion was that 

he had obtained new counsel and that the new counsel wanted more time to review Moore’s 

plea. This, however, is not a sufficient basis to vacate the plea. Moreover, to the extent that 

Moore’s new counsel wanted additional time to obtain discovery, the record reveals that the 

original counsel received full discovery prior to negotiating the plea. Here, Moore’s motion 

to vacate was nothing more than a delay tactic or a change of heart. Given that Moore had 

already delayed the proceedings considerably by fleeing the court’s jurisdiction, we find that 

the trial court reasonably denied his motion. 

{¶15} The second assignment of error is overruled. 

{¶16} Judgment affirmed. 

It is ordered that appellee recover of 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 J. BOYLE, PRESIDING JUDGE 

LARRY A. JONES, SR., J., and 

KATHLEEN ANN KEOUGH, J., CONCUR