2013 Ohio 3587
Ohio Ct. App.2013Background
- Perez pled guilty to felonious assault on a peace officer and two counts of harassment with a bodily substance; sentencing contemplated eight years.
- At sentencing, after the state recommended eight years, Perez moved to withdraw his plea and fire counsel, asserting fear, innocence, and discovery/evidence concerns.
- The court conducted a colloquy to ensure the plea was knowingly, voluntarily, and intelligently made, and ultimately denied the oral motion to withdraw.
- Perez was shown to have a history of violent offenses and prior noncompliance in jail; a video of the incident and recorded calls were introduced.
- The court sentenced Perez to eight years on felonious assault and five years on each harassment count, to be served concurrently.
- Perez appealed, challenging the pre-sentence withdrawal ruling as an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pre-sentence withdrawal of plea was abused | Perez argues Cuthbertson factors require liberal withdrawal | State argues no single factor controls; timing and evidence weigh against withdrawal | No abuse of discretion; denial affirmed |
Key Cases Cited
- State v. Xie, 62 Ohio St.3d 521 (1992) (pre-sentence withdrawal lacks strict guidelines; review for abuse of discretion)
- State v. Cuthbertson, 139 Ohio App.3d 895 (7th Dist. 2000) (non-exclusive Fish factors for pre-sentence withdrawal)
- State v. Fish, 104 Ohio App.3d 236 (1st Dist. 1995) (factors to consider in withdrawal motions)
- State v. Williams, 2012-Ohio-6277 (7th Dist. 2012) (oral withdrawal motion not required to delay sentencing)
- State v. Kramer, 2002-Ohio-4176 (7th Dist. 2002) (mere change of heart insufficient for withdrawal)