STATE OF OHIO v. STEVEN BLANKENSHIP
Appellate Case No. 29068
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 8, 2021
[Cite as State v. Blankenship, 2021-Ohio-3612.]
EPLEY, J.
Triаl Court Case No. 2019-CR-2703 (Criminal Appeal from Common Pleas Court)
MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45422
Attorney for Defendant-Appellant
OPINION
I. Facts and Procedural History
{¶ 2} On August 14, 2019, Thomas Jones was mowing the lawn of Carole Crow, his elderly, wheelсhair-bound neighbor, when Crow‘s son, Blankenship, came outside and confronted him. Blankenship demanded that Jones stop mowing and, when he did not immediately stop, Blankenship threw a punch. The swing missed Jones, who hurled a punсh of his own at Blankenship. Blankenship then pulled a knife on Jones and threatened to “gut” him. Jones retreated to his residence.
{¶ 3} Blankenship stormed into his mother‘s house and stated that he was going to get his Aryan Nation brоthers to kill both her and Jones. He then went into Crow‘s bedroom and took a revolver from her nightstand. As she attempted to take the firearm away from her son, Blankenship grabbed Crow by the wrists and twisted her arms until she relented. Blankenship then left the house with the gun.
{¶ 4} Less than two weeks later, Blankenship was indicted on four counts: robbery, a second-degree felony; theft of a firearm, a third-degree felony; first-degree misdemeanor assault; and first-degree misdemeanor domestic violence. Crow was identified as the victim of the robbery, theft, and domestic violence counts, while Jones was listed as the victim of the assault. According to the record, a suppression hearing was held, but not finished, on September 27, 2019. Before the hearing could be
{¶ 5} A pre-sentence investigation was ordered by the court, and a sentencing hearing was scheduled for January 27, 2020. Before the case reached its disposition, however, Crow passed away. Resultantly, on January 21, 2020, Blankenship filed a motion to withdraw his guilty plea, but only as to the robbery and domestic violence charges - the counts of which Crow was the victim. The stated reason: “the рassing of the complaining witness/mother and the consequential lack of evidence.” Appellant‘s January 21, 2020 Motion to Withdraw Plea. He remained willing to plead guilty to the assault charge of which Jones was the victim.
{¶ 6} On May 29, 2020, the parties returned to court for a hearing on Blankenship‘s motion. Blankenship, however, waived his presence at the hearing. The State and defense counsel agreed that there was no need for evidentiary presentations. Rather, in lieu of a full hearing on the matter, the sides agreed to submit written memoranda. The State also conceded, after questioning by the court, that it would be very difficult to meet its burden at trial without Crow, the now-deceased witness/alleged victim.
{¶ 7} As agreed, the parties submitted memoranda, and on October 21, 2020, the trial court made its decision to overrule Blankenship‘s motion to withdraw his guilty pleа. He now appeals from his conviction, challenging the denial of the motion to withdraw his guilty plea.
II. Motion to Withdraw Guilty Plea
{¶ 8} In his lone assignment of error, Blankenship asserts that the trial court
{¶ 9}
{¶ 10} To constitute an abuse of discretion, a trial court‘s decision must be arbitrary, unreasonable, or unconscionablе. Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). When applying the abuse of discretion standard, an appellate court must not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). “The mere fact that a reviewing court would have reached a different result is not enоugh, without more, to find error.” State v. Beechler, 2d Dist. Clark No. 99-CA-54, 2010-Ohio-1900, 67.
{¶ 11} In evaluating whether a trial court has abused its discretion in overruling a pre-sentence motion to withdraw a plea, we have adopted the nine factors set forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E. 2d 788 (1st Dist.1995), overruled on other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.): (1) whether
{¶ 12} Consideration of the factors involves a balancing test and no single factor is dispositive. State v. Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, 11.
{¶ 13} At the outset, it should be noted that Blankenship concedes that several factors weigh against him. He admits that he was represented by competent counsel (factor 1), that he was given a full
{¶ 14} Blankenship, however, believes that he was not given a full hearing on the motion, and thus that factor 3 weighed in his favor. Wе disagree. The trial court set May 29, 2020 as the hearing date for Blankenship‘s motion to withdraw his guilty plea. Counsel for the State and Blankenship were present, but Blankenship himself waived appearance. The court gave both parties opportunities to submit relevant evidence, but Blankenship, through counsel, declined. Instead, because both parties agreed that this was purely a legal issue, the court orderеd briefing in lieu of a hearing on the matter. Based on the
{¶ 15} To the extent that Blankenship argues he should have been afforded a рhysical hearing on his motion, he waived that opportunity on May 29, 2020. Even without him in attendance, Blankenship‘s counsel could have presented evidence had he wanted to. Instead, he chose to submit his arguments viа a written memorandum. Blankenship cannot take advantage of an alleged error he invited the court to make. See State v. Jones, 2d Dist. Montgomery No. 28977, 2021-Ohio-3050, ¶ 83. In addition, the three rounds of briefing afforded to the parties was the functional equivalent in this case of a full hearing. This factor weighed against Blankenship.
{¶ 16} The trial court also gave the motion full and fair consideration, satisfying factor 4. The record reflects that the court fully considered the arguments of the parties presented in the briefs. It issued a five-page decision on the motion, making findings of fact and conclusions of law and weighing all nine factors. This factor weighed against finding that the trial court abusеd its discretion.
{¶ 17} The fifth factor, whether the motion was made within a reasonable time, weighed in favor of Blankenship. The record indicates that Blankenship entered his guilty plea on December 19, 2019 and then moved tо withdraw the plea on January 21, 2020, six days before the scheduled final disposition. The motion was timely.
{¶ 18} The sixth factor to consider is whether the motion set out specific reasons for the withdrawal of the plea. Blankenship‘s motion did give at least one reason for wanting to withdraw the plea – the death of his mother, the sole witness to the robbery and domestic violence charges. His motion argued that because the сomplaining witness was deceased, there was, consequentially, a lack of evidence. The trial court found that
{¶ 19} The next factor to consider is the eighth – whether the accused was perhaps not guilty or had a complete defense to the charge or charges. To support this factor, Blankenship argues that “innocent individuals plead guilty to crimes they did not commit on a daily basis for a multitude of reasons. As such, Defendant-Appellant mаy have not been guilty of the criminal charges against him[.]” Appellant‘s brief at 11. There was, however, no evidence in the record that Blankenship was not guilty or had a complete defense to the chargеs. He never argued that he was not guilty; rather, he asserted that he wished to withdraw the plea because, due to his mother‘s dying, there was a “lack of evidence.” This factor militated against finding an abuse of discretion.
{¶ 20} The final factor to consider is whether the withdrawal of the guilty plea would result in prejudice to the prosecution. For obvious reasons, we conclude that it would. The charges for which Blankenship wished to withdrаw his guilty plea were the crimes allegedly perpetrated against his mother – in her house – without any other witnesses. He correctly reasoned that without testimony from the only witness in the case, the State would havе a difficult time obtaining a conviction. We have previously held that, due to the death of the only witness of a crime who would have testified against the defendant, “the State would be prejudiced if [the defendant‘s] guilty рlea was withdrawn and the matter went to trial.” State v. Rozell, 2018-Ohio-1722, 111 N.E.3d 861, ¶ 31 (2d Dist.).
{¶ 21} Having considered all the Fish factors, we conclude that the trial court did not abuse its discretion when it overruled Blankenship‘s motion to withdraw his guilty plea. The assignment of error is overruled.
III. Conclusion
{¶ 22} The judgment of the trial court will be affirmed.
TUCKER, P. J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Kristin L. Arnold
Hon. Michael W. Krumholtz