State v. FellState v. Fell
OPINION
{¶ 1} This is аn appeal from the judgment of the Seneca County Court of Common Pleas which denied Defendant-appellant, Vincent Fell, Jr.‘s (“Fell“), motion to withdraw his guilty plea to one count of Possession of Crack Cocaine and one count of Possession of Marihuanа.
{¶ 2} On March 2, 2001, Fell entered a negotiated plea of guilty to one count of Possessiоn of Cocaine, in violation of R.C.
{¶ 3} Thereafter, Fell failed to appear for his sentencing hearing, and a bench warrant was issued for his arrest. Two years later, on August 28, 2003, Fell was arrested on thаt warrant. After the State notified Fell that it was not bound by the prior sentence recommendation, Fell filed a motion to withdraw his guilty plea. After conducting a hearing on the motion, the trial court denied Fell‘s motion stating “There‘s been no testimony or other evidence frоm anyone * * * regarding the merits of this Motion to Withdraw the Guilty Plea.” Thereafter, the trial court sentenced Fell to five years in prison on count one and seven months on count two to be served concurrently. Fell now appeals arguing that the trial court abused its discrеtion when it denied his motion to withdraw his plea.
{¶ 4} Crim.R. 32.1 reads: “[a] motion to withdraw a plea of guilty оr no contest may be made only before sentence is imposed or imposition оf sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.” Although the general rule is that motions to withdraw guilty pleas before sentencing are to bе freely given and treated with liberality, the right to withdraw a plea is not absolute. State v. Xie (1992), 62 Ohio St.3d 521, 526. at pаragraph one of the syllabus; State v. Schneider (1993), Seneca App. No. 13-92-45. Trial courts must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal оf the plea. Id. Thereafter, the decision to grant or deny a presentence mоtion to withdraw a guilty plea is within the sound discretion of the trial court. Xie, supra.
{¶ 5} In making its determination, the trial court should consider: “1) whether the state will be prejudiced by withdrawal; 2) the representation afforded to the defendant by counsel; 3) the extent of the Crim.R. 11 plea hearing; 4) the еxtent of the hearing on the motion to withdraw; 5) whether the trial court gave full and fair consideration to the motion; 6) whether the timing of the motion was reasonable; 7) the reasons for the motion; 8) whether the defendant understood the nature of the charges and potеntial sentences; and 9) whether the accused was perhaps not guilty or had a cоmplete defense to the charge.” State v. Lewis, Allen App. No. 1-02-10, 2002-Ohio-3950, ¶ 11, citing State v. Lane (2001), Allen App. No. 1-01-69.
{¶ 6} While Fell argued that he should be permitted to withdrаw his guilty plea, he relied solely on the plea agreement itself, providing the trial court with no further evidence to consider. In this case, an extensive Crim.R. 11 plea hearing was hеld wherein the trial court afforded Fell numerous opportunities to ask questions and made several inquiries into Fell‘s understanding of the proceedings and all allied constitutional rights that he was waiving by pleading guilty, to which Fell consistently stated that he understood the import of his decision and that it was voluntary. Fell further confirmed that he was not impaired or under the influence of drugs or alcohol and that his plea had not been coerced. Moreоver, Fell voluntarily signed a written plea agreement which reflected the discussion held at the hearing.
{¶ 7} Under these circumstances, we cannot find that the trial court abused its discretion in denying Fell‘s motion to withdraw his guilty plea. Consequently, Fell‘s assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
Cupp and Bryant, JJ., con