State v. Ferdinandsen ( 2016 )

[Cite as State v. Ferdinandsen, 2016-Ohio-7172.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-16-08
v.
ROBERT C. FERDINANDSEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2014CR307
Judgment Affirmed
Date of Decision: October 3, 2016
APPEARANCES:
William T. Cramer for Appellant
Alex K. Treece for Appellee
Case No. 5-16-08
PRESTON, J.
{¶1} Defendant-appellant, Robert C. Ferdinandsen (“Ferdinandsen”),
appeals the February 23, 2016 judgment entry of sentence of the Hancock County
Court of Common Pleas. We affirm.
{¶2} On December 30, 2014, the Hancock County Grand Jury indicted
Ferdinandsen on one count of felonious assault in violation of R.C. 2903.11(A)(1),
a second-degree felony. (Doc. No. 1). On January 7, 2015, Ferdinandsen appeared
for arraignment and entered a plea of not guilty. (Doc. No. 5).
{¶3} On April 20, 2015, a change-of-plea hearing was held. (Apr. 20, 2015
Tr. at 3). Pursuant to a negotiated plea agreement, Ferdinandsen pled guilty to the
count of the indictment, and the parties jointly recommended that Ferdinandsen be
sentenced to five years of community control with a three-year reserved prison term.
(Id. at 4-5); (Doc. Nos. 21, 23). The trial court conducted a Crim.R. 11 colloquy,
accepted Ferdinandsen’s guilty plea, and ordered a presentence investigation. (Id.
at 5-18); (Id.).
{¶4} On July 28, 2015, Ferdinandsen filed a motion to withdraw his guilty
plea. (Doc. No. 37). After a hearing on September 16, 2015, the trial court, on
December 14, 2015, denied Ferdinandsen’s motion to withdraw his guilty plea.
(Doc. No. 55).
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{¶5} On February 10, 2016, the trial court sentenced Ferdinandsen to four
years in prison. (Feb. 10, 2016 Tr. at 65). The trial court filed its judgment entry
of sentence on February 23, 2016. (Doc. No. 66).
{¶6} Ferdinandsen filed his notice of appeal on March 22, 2016. (Doc. No.
87). He raises one assignment of error for our review.
Assignment of Error
The trial court abused its discretion in denying appellant’s pre-
sentence motion to withdraw his guilty plea.
{¶7} In his assignment of error, Ferdinandsen argues that the trial court
abused its discretion by denying his presentence motion to withdraw his guilty plea.
In particular, he argues that the trial court abused its discretion by denying his
motion because there was no evidence that the State would have been prejudiced
and because he presented an arguable claim of actual innocence.
{¶8} A defendant may file a presentence motion to withdraw a guilty plea.
Crim.R. 32.1. Although a trial court should freely grant such a motion, a defendant
does not maintain an absolute right to withdraw his plea prior to sentencing. State
v. Xie, 62 Ohio St. 3d 521, 526 (1992). Instead, a trial court must hold a hearing to
determine whether a “reasonable and legitimate basis” exists for the withdrawal. Id.
at paragraph one of the syllabus.
{¶9} We consider several factors when reviewing a trial court’s decision to
grant or deny a defendant’s presentence motion to withdraw a plea, including: (1)
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whether the withdrawal will prejudice the prosecution; (2) the representation
afforded to the defendant by counsel; (3) the extent of the hearing held pursuant to
Crim.R. 11; (4) the extent of the hearing on the motion to withdraw the plea; (5)
whether the trial court gave full and fair consideration of the motion; (6) whether
the timing of the motion was reasonable; (7) the stated reasons for the motion; (8)
whether the defendant understood the nature of the charges and potential sentences;
and (9) whether the accused was perhaps not guilty or had a complete defense to the
charges. State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21, citing
State v. Griffin, 141 Ohio App. 3d 551, 554 (7th Dist.2001). See also State v. Fish,
104 Ohio App. 3d 236, 240 (1st Dist.1995). “None of the factors is determinative
on its own and there may be numerous additional aspects ‘weighed’ in each case.”
State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 16, citing Griffin at
554 and Fish at 240.
{¶10} Ultimately, it is within the sound discretion of the trial court to
determine what circumstances justify granting a presentence motion to withdraw a
guilty plea. Xie at paragraph two of the syllabus. Therefore, appellate review of a
trial court’s decision to deny a presentence motion to withdraw a guilty plea is
limited to whether the trial court abused its discretion. State v. Nathan, 99 Ohio
App.3d 722, 725 (3d Dist.1995), citing State v. Smith, 49 Ohio St. 2d 261, 361
(1977). An abuse of discretion implies that the trial court acted unreasonably,
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arbitrarily, or unconscionably. State v. Adams, 62 Ohio St. 2d 151, 157-158 (1980).
When applying this standard, a reviewing court may not simply substitute its
judgment for that of the trial court. State v. Adams, 3d Dist. Defiance No. 4-09-16,
2009-Ohio-6863, ¶ 33.
{¶11} An examination of the reasonable-and-legitimate-basis factors
supports that the trial court’s decision to deny Ferdinandsen’s presentence motion
to withdraw his guilty plea was not unreasonable, arbitrary, or unconscionable. That
is, the trial court did not abuse its discretion by concluding that Ferdinandsen’s
motion to withdraw his guilty plea was nothing more than a change of heart.
{¶12} First, Ferdinandsen argues that the first factor weighs in his favor—
that is, that the State did not articulate any reasons that it would be prejudiced if
Ferdinandsen’s motion were to be granted. In response, the State acknowledges that
it conceded at the September 16, 2015 hearing that it would not be prejudiced
because all of the witnesses would be available to testify; however, the State argues
on appeal that allowing Ferdinandsen to withdraw his guilty plea “could have
potentially prejudiced the prosecution due to the continued delay of the case.”
(Appellee’s Brief at 5). “Prejudice will not be presumed when it is not articulated.”
State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 23,
citing Griffin at 554. The State conceded that all of the witnesses would be available
for trial, and did not articulate to the trial court any other prejudice. Likewise, as in
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Zimmerman, the prejudice argued by the State on appeal appears to relate “only to
the inconvenience of having to prosecute its case, rather than relating to actual,
articulated prejudice.” Id. at ¶ 24. Thus, we agree that the first factor weighs in
Ferdinandsen’s favor.
{¶13} Although “the prejudice to the State is often classified as the most
important factor in the balancing test,” the remaining factors weigh against granting
Ferdinandsen’s motion to withdraw his guilty plea. See id. at ¶ 23, citing State v.
Cuthbertson, 139 Ohio App. 3d 895, 899 (7th Dist.2000), citing Fish, 104 Ohio
App.3d at 240. See also North, 2015-Ohio-720, at ¶ 27 (concluding that the trial
court did not abuse its discretion by overruling North’s presentence motion to
withdraw his guilty plea even though there was a lack of prejudice to the
prosecution).
{¶14} As Ferdinandsen concedes, the third, fourth, fifth, and eighth factors
do not weigh in his favor. The trial court conducted an extensive Crim.R. 11 hearing
and an extensive hearing on Ferdinandsen’s motion to withdraw his guilty plea.
(Apr. 20, 2015 Tr.); (Sept. 16, 2015 Tr.). At Ferdinandsen’s change-of-plea hearing,
the trial court conducted a thorough colloquy with Ferdinandsen, as required by
Crim.R. 11, and informed him of all of the rights he was waiving by pleading guilty
to the charges. (Apr. 20, 2015 Tr. at 6-16). The trial court informed Ferdinandsen
that he was waiving his right to a jury trial, the right to confront witnesses against
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him, the right to subpoena witnesses to appear on his behalf, the privilege against
self-incrimination, and the right to have the prosecutor prove all elements of the
offense beyond a reasonable doubt. (Id. at 14-16). However, Ferdinandsen
contends that the trial court’s plea colloquy was deficient because the trial court
failed “to explore the elements of the offense or applicable defenses.” (Appellant’s
Brief at 9). More specifically, Ferdinandsen argues that “the problems in this case
could have been avoid [sic] with a slightly more involved discussion about potential
defenses, including the obvious self-defense claim.” (Id.).
{¶15} “It is well-settled that there is no requirement under Crim.R. 11(C)(2)
that trial courts apprise defendants of available defenses when accepting a change
of plea.” State v. Phillips, 3d Dist. Van Wert No. 15-12-02, 2012-Ohio-5950, ¶ 31,
citing State v. Reynolds, 40 Ohio St. 3d 334 (1988), syllabus and State v. Ingram,
7th Dist. Mahoning No. 09 MA 98, 2010-Ohio-1093, ¶ 22. See also State v.
Gardner, 3d Dist. Union Nos. 14-02-18 and 14-02-19, 2003-Ohio-1580, ¶ 1
(rejecting Gardner’s argument that his plea colloquy was inadequate because “he
was not informed that a guilty plea would waive any self-defense claim”).
Moreover, Ferdinandsen did not indicate to the trial court at the change-of-plea
hearing that he had a self-defense claim. See State v. Schlegel, 3d Dist. Defiance
Nos. 4-14-12 and 4-14-13, 2015-Ohio-1183, ¶ 22 (“Moreover, Schlegel made no
argument at the plea hearing, at the sentencing hearing, or on appeal that he had a
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complete defense to the charge.”). Accordingly, Ferdinandsen’s argument that his
Crim.R. 11 hearing was inadequate because the trial court did not advise him that
he was waiving his self-defense claim is erroneous.
{¶16} The record also illustrates that Ferdinandsen understood the nature of
the charge and potential sentence. Indeed, the following exchanges took place at
the change-of-plea hearing:
[Trial Court]: I read the indictment when we came into court.
Did you receive or were you served a copy of that
indictment some time earlier?
[Ferdinandsen]: Yes, I was.
[Trial Court]: Have you read that over?
[Ferdinandsen]: Yes, I did.
[Trial Court]: Do you understand the charge?
[Ferdinandsen]: Yes, I do.
[Trial Court]: Do you understand that a plea of guilty to the
charge today here in court by you is a complete
admission that you committed this offense?
[Ferdinandsen]: Yes, I do, Your Honor.
(Apr. 20, 2015 Tr. at 9-10). Further, Ferdinandsen indicated that he understood the
trial court’s explanation of the potential sentence for the crime to which he was
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pleading guilty. (See id. at 10-14). As such, the eighth factor does not weigh in
Ferdinandsen’s favor.
{¶17} Likewise, the record illustrates that the hearing on Ferdinandsen’s
motion to withdraw his guilty plea was extensive. Indeed, Ferdinandsen concedes
that “the motion to withdraw turned into a mini trial with all three of the main
witnesses testifying.” (Appellant’s Brief at 9). Ferdinandsen further concedes that
“the trial court gave ample consideration to the motion.” (Id.). As such, the fourth
and fifth factors do not weigh in Ferdinandsen’s favor.
{¶18} Further, we conclude that the second, sixth, seventh, and ninth factors
do not weigh in Ferdinandsen’s favor. As to the sixth factor, the timing of
Ferdinandsen’s motion to withdraw his plea was not reasonable. In this case,
Ferdinandsen pled guilty to the charge in the indictment. Prior to sentencing, the
trial court ordered a presentence investigation to be completed by the trial court’s
probation department. As part of its presentence investigation, the trial court
requires defendants to provide to the probation department a urine sample for
testing. At the time Ferdinandsen was providing his urine sample, it was discovered
that he was using a “whizzinator,” “which is a device designed to hold urine in a
bag around the waist that could be released through a fake penis attachment.”
(Appellant’s Brief at 1). The trial court ordered Ferdinandsen to remain at the
probation department until he could provide his own urine sample. Ferdinandsen
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eventually complied, and his sample “proved to be negative for the presence of
illegal drugs.” (Doc. No. 55). Regarding his use of the whizzinator in light of his
negative urine-sample results, Ferdinandsen explained to the trial court “that he has
a difficult time urinating in the presence of others.” (Id.). Before the trial court
could sentence him, Ferdinandsen filed his motion to withdraw his guilty plea.
{¶19} The timing of Ferdinandsen’s motion is suspect because it was only
after the whizzinator incident, and the State’s subsequent indication that it intended
to pursue a sentencing recommendation different than that in the negotiated plea
agreement, that Ferdinandsen wanted to withdraw his plea.1 As such, we conclude
that the timing of Ferdinandsen’s motion is unreasonable. See Schlegel, 2015-Ohio-
1183, at ¶ 21 (concluding that the timing of Schlegel’s presentence motion to
withdraw his guilty plea was unreasonable because “[i]t was only at the sentencing
hearing, after Schlegel had been removed from [his rehabilitation program for
failing to participate in the program], that he attempted to withdraw his plea”).
{¶20} Notwithstanding the suspect timing of Ferdinandsen’s motion,
Ferdinandsen states that the reasons for his motion are that he is actually innocent
and that his trial counsel at the change-of-plea hearing “pressured and coerced [him]
1
At a hearing on November 20, 2015, the State acknowledged that it did not reserve at the Crim.R. 11 hearing
the right to amend the sentencing recommendation to which it agreed to in the negotiated plea agreement.
(Nov. 20, 2015 Tr. at 5). Assuming that it was bound to the original sentencing recommendation because it
did not make that reservation, the State agreed to adhere to the original sentencing recommendation. (Id.).
However, the State asserted that it would not abide by that sentencing recommendation if the trial court
granted Ferdinandsen’s motion to withdraw his guilty plea and the case proceeded to trial. (Id.).
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to enter a plea and that he was left with no other viable option.” (Doc. No. 37).
Based on that argument, to determine whether the seventh factor—the stated reasons
for the motion—weighs in his favor, we must examine it in conjunction with his
arguments as to the second and ninth factors.
{¶21} We will first address the ninth factor—Ferdinandsen’s claim of
innocence. “In weighing the ninth factor, ‘the trial judge must determine whether
the claim of innocence is anything more than the defendant’s change of heart about
the plea agreement.’” State v. Davis, 5th Dist. Richland No. 15CA6, 2015-Ohio-
5196, ¶ 19, quoting State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 2008-
Ohio-7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01-CA-107, 2002-
Ohio-4176, ¶ 58. “‘A change of heart or mistaken belief about pleading guilty is
not a reasonable basis for withdrawal of a guilty plea.’” State v. Jones, 7th Dist.
Mahoning No. 09 MA 50, 2011-Ohio-2903, ¶ 20, quoting State v. Smith, 8th Dist.
Cuyahoga No. 94419, 2010-Ohio-5784, ¶ 9. Claims of innocence must be
substantiated. North, 2015-Ohio-720, at ¶ 27.
{¶22} Ferdinandsen argues that he is innocent because he acted in self-
defense. To establish a self-defense claim for the use of non-deadly force, the
defendant must (1) not be “‘“at fault in creating the situation giving rise to the
affray,”’” and (2) have an “‘“objectively reasonable and subjectively honest”’” bona
fide belief, even if that belief is mistaken, “‘“that he was in imminent danger of any
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bodily harm.”’” State v. Wagner, 3d Dist. Seneca No. 13-15-18, 2015-Ohio-5183,
¶ 10, quoting State v. Kimmel, 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶
19, quoting Struthers v. Williams, 7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-
6637, ¶ 15, and citing State v. Vielma, 3d Dist. Paulding No. 11-11-03, 2012-Ohio-
875, ¶ 37. As an affirmative defense, the defendant must prove by a preponderance
of the evidence the elements of self-defense. State v. Reed, 9th Dist. Summit No.
27755, 2016-Ohio-5123, ¶ 15, citing State v. Cornwell, 9th Dist. Wayne No.
14AP0017, 2015-Ohio-4617, ¶ 19, citing R.C. 2901.05(A).
{¶23} As we noted above, the trial court provided Ferdinandsen great
latitude in allowing him to present evidence of his self-defense claim. Indeed,
Ferdinandsen and his then-girlfriend, Kristen Hoffman (“Hoffman”), testified to the
version of events that led to Ferdinandsen assaulting the victim. The testimony at
the hearing on Ferdinandsen’s motion revealed that he was involved in an
altercation with Hoffman, which caused the victim to intervene to come to
Hoffman’s aid. (See Sept. 16, 2015 Tr. at 11-12, 20). When the victim did so,
Ferdinandsen feloniously assaulted the victim. (Id. at 32-33). Notwithstanding that,
Ferdinandsen and Hoffman testified that Ferdinandsen acted in self-defense because
(1) it appeared that the victim had an object in his hand, (2) Ferdinandsen was pinned
against his garage, and (3) Ferdinandsen warned the victim to “stay back” two to
three times as the victim was coming toward him. (Id. at 12-13, 31-32). After
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hearing that testimony, the trial court rejected Ferdinandsen’s self-defense claim
after concluding that Ferdinandsen “created the situation giving rise to his assault
of [the victim].” (Doc. No. 55). Thus, because the trial court concluded that
Ferdinandsen’s self-defense claim is unsubstantiated, it further concluded that
Ferdinandsen’s motion to withdraw his guilty plea was nothing more than a change
of heart.
{¶24} Nonetheless, in an effort to combat the conclusion that his wish to
change his plea was anything more than a change of heart, Ferdinandsen points to
the second factor and argues that his prior counsel was ineffective and coerced him
into pleading guilty. With respect to his claim that he was denied the effective
assistance of counsel, we note that a defendant asserting a claim of ineffective
assistance of counsel must establish: (1) the counsel’s performance was deficient or
unreasonable under the circumstances; and (2) the deficient performance prejudiced
the defendant. State v. Kole, 92 Ohio St. 3d 303, 306 (2001), citing Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice when ineffective
assistance of counsel relates to a guilty plea, a defendant must show there is a
reasonable probability that but for counsel’s deficient or unreasonable performance,
the defendant would not have pled guilty. Xie, 62 Ohio St. 3d at 524, citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985) and Strickland at 687.
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{¶25} Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance. State v. Frazier, 61 Ohio St. 3d 247, 255
(1991). Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. State v. Bradley, 42 Ohio St. 3d 136, 141-
142 (1989), citing State v. Lytle, 48 Ohio St. 2d 391, 396 (1976). When asserting
that counsel failed to introduce evidence, the defendant must show that “such
evidence was available or that it would have corroborated [the defendant’s]
assertions.” State v. Dunn, 3d Dist. Allen No. 1-02-98, 2003-Ohio-4353, ¶ 19.
{¶26} On appeal, Ferdinandsen argues that his prior counsel was ineffective
because he “ignored [his] protestations of innocence and guaranteed he would lose
at trial based on his prior record.” (Appellant’s Brief at 8). In particular,
Ferdinandsen argues that his prior
counsel never explained that Ferdinandsen’s record would not be
admissible if he avoided testifying. And Hoffman could have
provided all the facts relevant to self-defense without Ferdinandsen
taking the stand * * * [b]ut counsel would not have known any of that
because he never interviewed Hoffman.
(Id. at 9). Ferdinandsen cannot sustain his burden of proving that his prior counsel’s
performance was deficient or unreasonable under the circumstances or that there is
a reasonable probability that he would not have pled guilty.
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{¶27} Ferdinandsen cannot show that his prior counsel’s advice was
deficient or unreasonable under the circumstances for two reasons. First,
Ferdinandsen cannot show that his prior counsel’s advice was anything more than
trial strategy. As we noted above, Ferdinandsen argues that his prior counsel
advised him to accept the negotiated plea agreement as opposed to taking the case
to trial. According to Ferdinandsen, his prior counsel “guaranteed [Ferdinandsen]
would lose at trial based on his prior record” because his prior record would be used
against him since he would have to testify to assert his self-defense claim.
(Appellant’s Brief at 8). “‘[A]n attorney’s advice to take a plea deal is not
ineffective assistance of counsel.’” State v. Robinson, 12th Dist. Butler No.
CA2013-05-085, 2013-Ohio-5672, ¶ 23, quoting State v. Shugart, 7th Dist.
Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37. Rather, Ferdinandsen’s prior
counsel’s advice “constitute[s] nothing more than counsel’s attempts to provide
[Ferdinandsen] with informed advice, to relay worst case scenarios to him, and to
make recommendations to him on how to proceed.” Id., citing State v. Eberle, 12th
Dist. Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 57.
{¶28} Furthermore, Ferdinandsen argues that his prior counsel’s advice to
accept the negotiated plea agreement amounted to ineffective assistance of counsel
because his prior counsel failed to interview Hoffman and failed to explain to
Ferdinandsen that Hoffman’s testimony could have established Ferdinandsen’s self-
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defense claim thereby avoiding any prejudice from Ferdinandsen’s criminal record
being raised. Ferdinandsen’s argument is meritless. Although we do not know what
underscored Ferdinandsen’s prior counsel’s advice, Ferdinandsen fails to
acknowledge that Hoffman provided a written statement to law enforcement
detailing what she witnessed during the altercation, which would have been
available for review. Even if we assume that Ferdinandsen’s prior counsel’s actions
concerning Hoffman are deficient or unreasonable under the circumstances,
Ferdinandsen cannot show that Hoffman’s testimony would have corroborated his
self-defense claim—that is, that he would have been entitled to a self-defense
instruction based on Hoffman’s testimony. Jury instructions are within the
discretion of the trial court. See State v. Gripper, 10th Dist. Franklin No. 12AP-
396, 2013-Ohio-2740, ¶ 17. As we discussed above, Hoffman testified as to what
she witnessed the night of the altercation and the trial court rejected Ferdinandsen’s
self-defense claim after concluding that Ferdinandsen “created the situation giving
rise to his assault of [the victim].” (Doc. No. 55). Compare Reed, 2016-Ohio-5123,
at ¶ 16 (concluding, in part that, that the trial court did not abuse its discretion by
denying Reed’s self-defense jury instruction because “Reed failed to offer sufficient
evidence that he was not at fault for creating the violent situation”), citing State v.
Nichols, 4th Dist. Scioto No. 01CA2775, 2002 WL 126973, *3 (Jan. 22, 2002). For
these reasons, Ferdinandsen cannot show that his prior counsel’s advice was
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deficient or unreasonable under the circumstances. See State v. Strong, 6th Dist.
Wood No. WD-08-009, 2009-Ohio-1528, ¶ 34 (rejecting Strong’s argument that his
counsel was ineffective for failing to explain to Strong all of his possible defenses
and explore issues raised by Strong).
{¶29} Ferdinandsen also did not demonstrate that he was prejudiced by his
prior counsel’s advice—that is, that he would not have pled guilty to the charge. As
in State v. Ganguly, Ferdinandsen’s argument that he was pressured to accept the
negotiated plea agreement “taken on its face would make the second factor weigh
heavily in [his] favor.” 10th Dist. Franklin No. 14AP-383, 2015-Ohio-845, ¶ 17.
However, as in Ganguly, the trial court weighed Ferdinandsen’s credibility when
considering this factor, and did not find him to be credible. See id. First, at
Ferdinandsen’s change-of-plea hearing, there was no indication of any issues
between Ferdinandsen and his then-counsel. At that hearing, Ferdinandsen
represented to the trial court that he was satisfied with his then-counsel’s legal
advice and that he and his then-counsel had enough time to review the negotiated
plea agreement prior to Ferdinandsen entering his guilty plea. (Apr. 20, 2015 Tr. at
7-8). Yet, Ferdinandsen’s motion to withdraw his guilty plea represents that those
statements were untrue.
{¶30} Ferdinandsen’s prior attorney did not testify at the hearing on
Ferdinandsen’s motion to withdraw his guilty plea. As such, the only evidence
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presented regarding Ferdinandsen’s prior counsel’s “bad advice” was
Ferdinandsen’s and Hoffman’s testimony. The trial court was in the best position
to evaluate the credibly of witnesses. Ganguly at ¶ 17, citing State v. Burris, 10th
Dist. Franklin No. 13AP-238, 2013-Ohio-5108, ¶ 18 and State v. Watkins, 10th Dist.
Franklin No. 13AP-133, 2013-Ohio-5544, ¶ 11. More specifically, the trial court
was in the best position to determine Ferdinandsen’s motivation to enter his plea
initially and his credibility at the subsequent plea-withdrawal hearing because it had
the opportunity to observe him at both hearings. Id. In concluding that it did not
find Ferdinandsen credible, the trial court acknowledged that Ferdinandsen’s (1)
“deceitful conduct” with respect to the whizzinator incident; (2) admission “that he
prepared a false letter of apology to [the victim] in an effort to gain favor with the
court;” and (3) “demeanor and appearance was highly suggestive of deception
[because] he was extremely nervous and jittery while he was on the witness stand”
weighed against his credibility. (Doc. No. 55). Because the trial court was in the
best position to assess credibility, the trial court did not abuse its discretion by
concluding that the second factor does not weigh in Ferdinandsen’s favor after
concluding that Ferdinandsen’s and Hoffman’s testimony was not credible.
{¶31} Moreover, Ferdinandsen was offered a very favorable negotiated plea
agreement in which the State agreed to jointly recommend to the trial court that
Ferdinandsen be sentenced to five years of community control with a three-year
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reserved prison term. That sentence recommendation is favorable to
Ferdinandsen—the charge in the indictment carries a presumption in favor of prison
of two to eight years. (See id. at 10, 13). Thus, Ferdinandsen did not show that he
was prejudiced by his prior counsel. Accordingly, the trial court did not abuse its
discretion by concluding that the second factor does not weigh in Ferdinandsen’s
favor.
{¶32} Although we concluded that the prosecution would not be prejudiced
if the trial court allowed Ferdinandsen to withdraw his guilty plea, the indications
that Ferdinandsen’s motion is nothing more than a change of heart demonstrate that
the trial court’s denial of his motion was not unreasonable, arbitrary, or
unconscionable. See North, 2015-Ohio-720, at ¶ 27 (“‘[It] is not an abuse of
discretion for the trial court to find that a reasonable and legitimate basis did not
exist on which to grant a motion to withdraw the plea even though the state would
not be prejudiced if the motion were granted.’”), quoting State v. Littlefield, 4th Dist.
Ross No. 03CA2747, 2004-Ohio-5996, ¶ 12; Jones, 2011-Ohio-2903, at ¶ 20
(“‘When none of the [] factors weigh heavily in the defendant’s favor regarding the
presentence withdrawal of a guilty plea, a strong inference arises that the plea is
being withdrawn merely because of a change of heart about entering the plea.’”),
quoting State v. Moore, 7th Dist. Columbiana No. 06 CO 74, 2008-Ohio-1039, ¶ 13.
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Accordingly, we conclude that the trial court did not abuse its discretion by denying
Ferdinandsen’s motion to withdraw his guilty plea.
{¶33} Ferdinandsen’s assignment of error is overruled.
{¶34} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
ROGERS, J. dissenting.
{¶35} I respectfully dissent from the opinion of the majority.
{¶36} First, the state conceded at the hearing on the motion to withdraw that
it would suffer no prejudice by allowing the Appellant to withdraw his plea. This
factor should be given great weight. The majority acknowledges that presentence
motions to withdraw a plea should be freely granted, but then searches for reasons
to deny the motion.
{¶37} Second, the Appellant stated the basis for withdrawing his plea. The
Appellant stated that believes he may have a defense in the form of self-defense. In
my opinion, the trial court proceeded to weigh the evidence of that potential defense
and determined that the evidence of that defense was inadequate. However, it was
not the role of the trial court to become the trier of fact on the issue of self-defense.
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Case No. 5-16-08
{¶38} The majority argues that the defense would not be available because
the Appellant was at fault in creating the situation. However, while the Appellant
may have had fault in creating a situation with the girlfriend, Hoffman, there is a
substantial question of fact as to whether a jury would find that he created the
situation with the neighbor. The neighbor volunteered to get involved, crossed a
fence to get to Appellant, and had a Maglite in his hand. There is even a question
whether Hoffman was still outside the house when the neighbor confronted
Appellant.
{¶39} These are all questions which should be presented to the trier of fact
and not weighed by the judge.
{¶40} Accordingly, I would sustain the assignment of error and remand the
matter for trial.
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