STATE OF OHIO v. JURLUS R. LESTER
Case No. 12CA689
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY
RELEASED 6/12/13
2013-Ohio-2485
Harsha, J.
DECISION AND JUDGMENT ENTRY
Benjamin E. Fickel, Logan, Ohio, for appellant.
Harsha, J.
{1} Following his guilty pleas, Jurlus Lester appeals his convictions for theft and breaking and entering. His appointed counsel advised us that he reviewed the record and can discern no meritorious claims for appeal. Counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After independently reviewing the record, we agree with counsel‘s assessment. We find this appeal wholly frivolous, grant the request to withdraw, and affirm the judgment below.
I. Facts
{2} A Vinton County grand jury indicted Lester on one count each of breaking and entering, theft, and criminal damaging. He pleaded guilty to breaking and entering and theft, both fifth-degree felonies, and the court dismissed the remaining charge. During the sentencing hearing, Lester made an oral motion to withdraw his guilty pleas. The court denied the motion and sentenced him. This appeal followed.
II. Potential Assignment of Error
{4} Here, appointed counsel satisfied the requirements set forth in Anders. Lester has not filed a pro se brief. Thus, we will examine appointed counsel‘s potential assignment of error and the entire record to determine if this appeal is wholly frivolous. Appointed counsel proposes the following potential assignment of error:
- Appellant may assert, as an assignment of error, that the trial court abused its discretion when it denied his pre-sentencing motion to withdraw his guilty plea.
* * *
III. Motion to Withdraw Guilty Pleas
{5} Appointed counsel suggests the court might have erred when it denied Lester‘s oral presentence motion to withdraw his guilty pleas.
{6} A trial court possesses discretion to grant or deny a presentence motion to withdraw a plea, and we will not reverse the court‘s decision absent an abuse of that discretion. See id. at paragraph two of the syllabus and at 527. The phrase “abuse of discretion” implies the court‘s attitude is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{7} We have set previously forth factors we consider in determining whether a court abused its discretion by denying a presentence motion to withdraw a plea. State v. Campbell, 4th Dist. No. 08CA31, 2009-Ohio-4992, ¶ 7. However, we need not analyze them because the only reason Lester‘s attorney gave for the motion was his client “now desires to go to trial with a jury.” A change of heart is not a reasonable basis requiring a trial court to permit the defendant to withdraw the plea. Id., citing State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988). Thus, the court did not abuse its discretion when it denied the motion, and the potential assignment of error lacks merit. And having independently discovered no meritorious issues for appeal, we find this appeal wholly frivolous, grant counsel‘s motion to withdraw, and affirm the judgment below.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J., & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.