State of Ohio v. Christopher Posey
Court of Appeals No. OT-12-028
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
May 9, 2014
[Cite as State v. Posey, 2014-Ohio-1994.]
Trial Court Nos. CRB 1000942 A, CRB 1000942 C
Decided: May 9, 2014
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Mark E. Mulligan, Ottawa County Prosecuting Attorney, and Emily M. Gerber, Assistant Prosecuting Attorney, for appellee.
Ron Nisch, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a judgment of the Ottawa County Municipal Court, which resentenced defendant-appellant, Christopher Posey, following its denial of appellant’s motion to withdraw his no contest plea. Appellant now challenges that judgment through the following assignment of error:
The trial court abused its discretion in denying appellant’s motion to withdraw his plea, by not properly applying the permissive pre-sentence standards of State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992) for withdrawal of a plea.
{¶ 2} The relevant facts of this case are as follows. On July 12, 2010, appellant was charged with three counts of misdemeanor assault in violation of
{¶ 3} Appellant appealed that judgment to this court on the ground that the trial court erred in sentencing him without providing him or his attorney access to the PSI report. We agreed, and in a decision of March 16, 2012, we reversed the trial court’s judgment and remanded the case for re-sentencing consistent with our decision. State v. Posey, 6th Dist. Ottawa No. OT-10-044, 2012-Ohio-1108.
{¶ 5} On July 5, 2012, the lower court issued a decision and judgment denying appellant’s motion for leave to withdraw his plea. The court applied the standards applicable to presentence motions, as set forth in Xie, supra, and concluded that appellant had failed to show a reasonable and legitimate basis for withdrawal of the plea.
{¶ 6} In his sole assignment of error, appellant asserts that the lower court erred in denying his motion to withdraw his plea by failing to properly apply the permissive presentence standards set forth in Xie, supra.
{¶ 7} Generally, a
(1) whether the prosecutor would be prejudiced if the plea was vacated; (2) whether the accused was represented by highly competent counsel; (3) whether the accused was given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the motion was made within a reasonable time; (7) whether the motion set forth specific reasons for the withdrawal; (8) whether the accused understood the nature of the charges and possible penalties; and (9) whether the accused was perhaps not guilty or had a complete defense to the crime. State v. Eversole, 6th Dist. Erie Nos. E-05-073, E-05-074, E-05-075, and E-05-076, 2006-Ohio-3988, ¶ 13, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995).
{¶ 9} Finally, a change of heart or mistaken belief about pleading guilty or no contest is not a reasonable basis that requires a trial court to permit the defendant to withdraw his plea. State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).
{¶ 10} Appellant asserts that because he was not provided with adequate representation with regard to his plea of no contest and because he had a defense to the
{¶ 11} Reviewing the record in its entirety, however, we cannot say that the lower court abused its discretion in denying appellant’s motion to withdraw his plea. The motion was filed nearly two years after appellant was first charged with the assaults and approximately one year after appellant entered his plea. As the state asserted at the full hearing on appellant’s motion, and as the court acknowledged, over that time period, witnesses’ memories have likely faded, thereby prejudicing the state’s case. While appellant did set forth specific reasons for the withdrawal, he did not make his request until after his case was remanded back to the trial court from this court, despite the fact that he learned on November 22, 2010, that his sentence included jail time. That delay in filing the motion does not weigh in his favor.
{¶ 12} Appellant focuses primarily on the second factor, that he was not represented by competent counsel in the negotiations that led him to enter the no contest plea. The crux of his ineffective assistance argument, however, is that his counsel misrepresented the nature of the plea agreement and did not adequately investigate appellant’s defense of self-defense. Regardless of what appellant’s counsel may have told him, the record reveals that the lower court twice informed appellant of the possible penalties he was facing and that by entering a no contest plea, he was waiving his right to a trial and all that entailed. Indeed, appellant does not assert that he was not provided with a full
{¶ 14} In the present case, appellant did not provide the lower court with evidence or information that it did not have prior to its initial sentencing of appellant. As such, the court was left with evaluating the credibility of one witness, appellant. The court found that because appellant was either mistaken or willfully not forthcoming on matters which were a matter of record, his testimony was “none too reliable.” We cannot say that the
{¶ 15} Contrary to appellant’s assertion, the lower court treated his motion as a presentence motion to withdraw pursuant to Xie, and gave full and fair consideration to that motion. Having reviewed the record in this case in light of the nine factors set forth in Fish, 104 Ohio App.3d 236, 661 N.E.2d 788, we conclude that the lower court did not abuse its discretion in denying appellant’s motion to withdraw his no contest plea. The sole assignment of error is not well-taken.
{¶ 16} On consideration whereof, the court finds that the judgment of the Ottawa County Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
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JUDGE
Stephen A. Yarbrough, P.J.
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James D. Jensen, J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.