State v. BensonState v. Benson
APPEARANCES:
For Plaintiff-Appellee
For Defendant-Appellant
J. MATTHEW DAWSON
35 South Park Place, Suite 10
Newark, Ohio 43055
{¶1} Appellant Sean Benson appeals the decision of the Municipal Court of Perry County, which denied his pre-sentence request to withdraw a no contest plea. The relevant facts leading to this appeal are as follows.
{¶2} On or about May 27, 2011, following an altercation with his mother-in-law, appellant was charged with assault,
{¶3} After leaving the courthouse, appellant met with counsel and ultimately decided to withdraw his plea prior to the time set for sentencing. On June 2, 2011, appellant, with the assistance of counsel, filed a motion to withdraw his no contest plea, including therein a request for a hearing. The trial court denied said motion on June 13, 2011.
{¶4} On June 16, 2011, appellant appeared for sentencing. The court ordered that appellant pay a fine of $200.00 plus costs and serve sixty days in jail, suspended on condition of a Mound Builders assessment, twenty hours of community service, and one year of probation. A sentencing entry was issued on July 19, 2011.
{¶5} Appellant timely filed a notice of appeal, and he herein raises the following sole Assignment of Error:
{¶6} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT‘S MOTION TO WITHDRAW NO CONTEST PLEA PRIOR TO SENTENCING.”
{¶7} In his sole Assignment of Error, appellant contends the trial court erred in denying his pre-sentence motion to withdraw his no contest plea to misdemeanor assault. We agree, to the extent that a hearing is required.
{¶8} Unlike the “manifest injustice” standard governing a post-sentence motion,
{¶9} Furthermore, a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. Xie, supra. The court should examine whether the defendant was represented, whether the withdrawal will prejudice the prosecution, the timing of the motion, the reasons given for the withdrawal, the defendant‘s understanding of the charges and penalties, and the existence of a meritorious defense. State v. Graham, Holmes App.No. 04-CA-001, 2004-Ohio-2556, ¶ 39, citing State v. Kimbrough (March 28, 1988), Stark App. No. CA-7363, and State v. Fish (1995), 104 Ohio App.3d 236, 240, 661 N.E.2d 788.
{¶10} In the case sub judice, we note the State did not file an appellee‘s brief. Accordingly, we refer to
{¶11} Appellant herein asserts that he may have been able to raise a defense of self-defense, and he further points out that the victim‘s comments at the sentencing hearing suggest she is recanting parts of what she told law enforcement officials originally. See Sentencing Tr. at 5-10. In light of Xie, supra, and
{¶12} Appellant‘s sole Assignment of Error is sustained.
{¶13} For the reasons stated in the foregoing opinion, the judgment of the Municipal Court of Perry County, Ohio, is hereby reversed and remanded.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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JUDGES
JWW/d 1230
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Municipal Court of Perry County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
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JUDGES