Court denies motion to withdraw plea in 2006 case

Highland County Common Pleas Court Judge Rocky Coss has denied a request for an evidentiary hearing following a defendant's motion to withdraw a guilty plea from a 2006 sexual assault case, after a victim allegedly recanted a statement made to investigators. 

In August 2006, Loren Hakes was indicted on a charge of first-degree felony rape; attempted rape, a felony of the second degree; sexual battery, a felony of the third degree; and attempted sexual battery. 

Coss said in court Tuesday that "recanted testimony is often unreliable" and the courts are to put it to the "highest scrutiny." 

In June 2007, the day he was scheduled to stand trial before a jury, he entered into an Alford plea, according to court documents. An Alford plea allows a defendant to maintain an assertion of innocence, while saying that there is enough evidence for prosecution to gain a guilty conviction. 

Hakes pleaded guilty to the charges of sexual battery and attempted sexual battery, and the remaining charges were dismissed. He was sentenced to four years and nine months in prison by visiting Highland County Common Pleas Court Judge Thomas Crush. Hakes was granted judicial release in March 2008 but was found to be in violation of his community control in February 2009, and he remains in prison. 

The defendant was not present for Tuesday's hearing, according to Coss, because the issue was a matter of law and not testimony. Typically, according to Coss, he would hear the argument by memorandum, but he felt this motion needed an oral hearing. 

Defense attorney Eric Allen said that the alleged rape victim in the case gave a deposition in December 2011 during which the statement that she had been raped by the defendant was "recanted," and an additional witness in the case supported that testimony. 

Because the new statements were only given in December, "we couldn't have brought the motion to withdraw at a prior time," Allen said. 

"(The new statements) repudiate what the witness said (at the time of the trial) and repudiates there was any crime," Allen said. "(For Hakes to) stay in prison for a crime he didn't commit is a manifest injustice."

    Highland County Prosecutor Anneka Collins said that in accordance with the law there is no "manifest injustice" and that "it is very telling that when (the defendant) was getting what he wanted, he had no problem. It was only after he was sent back to prison did (the defense file) a motion to withdraw the plea." 

Collins said that in the new deposition, the victim "does not recant the facts that were the basis of the crime. There was a witness who saw Hakes (performing the alleged crime). No injustice was served here, and there is no grounds to reopen the case." 

Coss asked Allen to argue on the merits of law, saying, "Assuming the victim recanted the testimony, how does that entitle a defendant who pleaded guilty to withdraw a plea?" 

Allen alleged that the additional witness was encouraging false testimony from the victim at the time of the trial, and that Hakes "now has information that he didn't' do this. That is information that was not available when he made the plea." 

Because he maintained his innocence with an Alford Plea, Allen said, and "since it took five years" for the alleged new testimony to come to light, "he has every right to at least have a hearing. Does that answer your question?" 

"I understand your argument," Coss said. "But Alford plea or regular plea, isn't every defendant's decision to plea to not take a chance at the time in favor of an unknown entity? What you're asking the court to do is allow subsequent events to weigh back on whether or not the plea should be vacated."

Coss hypothetically asked if during the trial, "What if the state didn't put (the victim on the stand to testify)?"

"That's all (the state) had," Allen said. 

Collins said that was not true, that outside the victim's testimony, they had eyewitness testimony, that law enforcement was called within hours of the alleged incident and that it was reported Hakes held the victim and witness hostage in the hours after the alleged incident, reportedly threatening to kill himself and them if it was reported. 

"As soon as they got away, they reported it to law enforcement," Collins said. 

Coss said, "Putting the victim's testimony aside, we had an eyewitness. That is very unusual in my experience." 

Allen alleged that the other witness "concocted this whole story." 

He also noted that there was no DNA evidence in the case. 

Coss asked if that witness had been contacted since the new statements had been brought to court. Allen said that it was his belief that she was living out of state. 

"There has been no attempt by the defense to contact her?" Coss asked. Allen said there had been no attempt. 

"Isn't that a common defense in this type of case?" Coss said. 

Allen said it was but "very rarely do you have a victim come forward." 

Coss said the defendant had a chance to question the credibility of that witness's testimony at trial, but he "blinked and folded his hand, so to speak. We never know how good the case is until we prosecute it. He got what he bargained for and gave up his right to challenge the testimony. He has what I call 'buyer's remorse.'"

Allen disagreed with the buyer's remorse analogy and said, "At the very least, an evidentiary hearing is necessary to question and answer (the new testimony). Should he languish in jail because he 'blinked' on the day of the trial?"

Collins said, "The facts don't change. The fact are the same as the day he entered the plea, (and a hearing should not be granted) just because he changed his mind. He did not ask to withdraw the plea until after he was sent back to prison." 

Coss denied the evidentiary hearing on the motion to withdraw the plea, saying that, "if not ... every case would be opened and nothing wold be finite. There is not a lawful basis for continuing on with an evidentiary hearing."

Coss noted that Hakes has less than a year left in prison to serve.