State v. CarterState v. Carter
Rendered on the 25th day of February, 2022.
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 2} On June 17, 2019, Carter was indicted for one count of possession of cocaine, a felony of the fifth degree, in Clark C.P. No. 2019-CR-350. The record establishes that Carter had previously pled guilty to possession of cocaine in Clark C.P. No. 2017-CR-702 and to receiving stolen property in Clark C.P. No. 2018-CR-355, for which he was serving three years of community control at the time of his indictment in this case. On October 29, 2019, Carter pled guilty to possession of cocaine in Case No. 2019-CR-350. Carter failed to appear at his sentencing hearing on December 11, 2019, and the trial court issued a capias for his arrest. Carter was eventually arrested and taken into custody on January 8, 2021.
{¶ 3} On February 11, 2021, Carter filed a pro se motion to withdraw his guilty plea in each of the three cases.1 The State filed its response to Carter‘s motion on February 23, 2021. On March 10, 2021, the trial court held a hearing on Carter‘s motion to withdraw his guilty plea. On May 4, 2021, the trial court overruled Carter‘s motion to withdraw his guilty plea, finding that Carter had suffered a mere change of heart.
{¶ 4} Also on May 4, 2021, Carter filed a motion to “Enter Not Guilty Plea,” which the trial court denied. The trial court then proceeded to sentencing later in the afternoon on the same day. After Carter admitted to violating the terms of his community control
{¶ 5} Carter now appeals from his conviction in Case No. 2019-CR-350.
{¶ 6} Carter‘s first assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT COMPLYING WITH THE PURPOSES OF FELONY SENTENCING.
In his first assignment, Carter contends that the trial court erred in its analysis of the sentencing factors set forth in
{¶ 7} To the extent that Carter seeks to have this Court modify his sentence, we emphasize that the Supreme Court of Ohio clarified an appellate court‘s review of a felony sentence under
{¶ 8} In Jones, the Supreme Court also confirmed that
{¶ 9} The record demonstrates that the prison terms imposed by the trial court in this case were within the statutory range and that the trial court specifically considered the statutory factors in
{¶ 10} Carter‘s first assignment of error is overruled.
{¶ 11} Carter‘s second assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT ALLOWING CARTER TO WITHDRAW HIS PLEA BEFORE SENTENCING.
In his second assignment, Carter argues that the trial court erred when it overruled his presentence motion to withdraw his guilty plea. Specifically, Carter contends that his counsel was ineffective for waiving time without his consent, for not filing a motion to get the drug evidence retested, and for not filing a motion for a new bond arrangement for Carter. Carter also argues that he was coerced by his attorney to enter guilty pleas to the charged offenses.
{¶ 12} As this Court has previously noted:
* * *
Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” Under the foregoing rule, a pre-sentence motion to vacate a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Nevertheless, even under the pre-sentence standard, the right to withdraw a plea is not absolute and a trial court retains discretionto overrule a pre-sentence plea-withdrawal motion. Id. The pre-sentence standard, however, is far more lenient than the “manifest injustice” standard applicable to post-sentence motions. State v. Fugate, 2d Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 10. * * * But even under the more lenient pre-sentence standard, “a defendant must show a reasonable and legitimate basis for the withdrawal of the plea.” * * * “A change of heart is not enough,” and a trial court‘s finding regarding a defendant‘s true motivation is entitled to deference. * * * Likewise, a trial court‘s ultimate decision to grant or deny a pre-sentence motion to withdraw a guilty plea is subject to review for an abuse of discretion. Fugate at ¶ 10.
State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7, 10.
{¶ 13} “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). A decision is unreasonable if there is no sound reasoning process that would support that decision. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990); Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.
{¶ 14} In evaluating whether a trial court has abused its discretion in overruling a pre-sentence motion to withdraw a plea, this court considers the following 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 the accused is represented by highly competent counsel, (2) whether the accused was given a full
Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial court gave full and fair consideration to the motion, (5) whether the motion was made within a reasonable time, (6) whether the motion sets out specific reasons for the withdrawal, (7) whether the accused understood the nature of the charges and possible penalties, (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the plea.”
State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29, quoting State v. Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 11.
{¶ 15} Under the more lenient pre-sentence standard, a defendant must show “there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraph one of the syllabus. A trial court that denies a pre-sentence motion to withdraw a guilty plea does not abuse its discretion where the only reason given by the defendant is a change of heart. State v. Cohen, 2d Dist. Montgomery No. 25376, 2013-Ohio-2928, ¶ 15; State v. Thomas, 2d Dist. Greene No. 2006-CA-57, 2007-Ohio-443, ¶ 11.
{¶ 16} Here, the trial court thoroughly complied with the provisions of
{¶ 17} Upon review of the record, we find no error in the trial court‘s ruling. Carter was given a complete and impartial hearing regarding the withdrawal of his plea, and he was given ample opportunity to explain his reasons for seeking withdrawal. Carter‘s testimony, however, revealed only a change of heart, as the trial court found. The trial court provided Carter a hearing on his motion to withdraw his plea and listened to his testimony regarding his state of mind during and after the plea hearing. The record also reflects that Carter was represented by highly competent counsel at the plea hearing. There is no evidence in the record to support Carter‘s argument that he was misled by his attorney at the plea hearing. Significantly, the record also establishes that, contrary to his assertions, Carter‘s trial counsel did file motions with the trial court regarding revoking the time waiver, having the drug evidence retested, and changing Carter‘s bond arrangement. Accordingly, Carter‘s claims regarding his trial counsel‘s alleged ineffectiveness are without merit.
{¶ 18} Simply put, there is no indication from the record that Carter‘s decision to file a motion to withdraw his pleas was anything other than a mere “change of heart,”
{¶ 19} Carter‘s second assignment of error is overruled.
{¶ 20} The judgment of the trial court is affirmed.
WELBAUM, J. and EPLEY, J., concur.
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Ian A. Richardson
Glenda A. Smith
Hon. Richard J. O‘Neill