State v. Zachary ( 2024 )

[Cite as State v. Zachary, 2024-Ohio-422.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230435
TRIAL NO. B-2205240
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
WILLIAM ZACHARY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 7, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A prior juvenile offense and a traffic stop led to a four-count indictment
on firearm and drug charges. Defendant-appellant William Zachary pleaded guilty to
having weapons while under disability in exchange for the dismissal of the other three
counts. But he subsequently moved to withdraw his guilty plea, which the trial court
denied. He now appeals, maintaining that the trial court abused its discretion when it
denied his motion to withdraw his guilty plea because changes in Second Amendment
jurisprudence provided him with a complete defense. Because he was afforded the
proper procedural protections, and the law and facts giving rise to his alleged defense
existed at the time he pleaded guilty, we reject his argument and affirm the trial court’s
judgment.
I.
{¶2} In 2014, Mr. Zachary was adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been aggravated
robbery. Because of this offense, he was under a disability. In 2022, Cincinnati police
officers stopped Mr. Zachary as part of a traffic stop. During the encounter, he
disclosed to an officer that he had a firearm. The firearm was on his body (and
accessible to him from the driver’s seat). But he had not yet been relieved of the 2014
disability.
{¶3} He was indicted on four counts: having weapons while under disability,
in violation of R.C. 2923.13(A)(2), carrying concealed weapons, in violation of R.C.
2923.12(A)(2), improper handling of firearms in a motor vehicle, in violation of R.C.
2923.16(B), and aggravated possession of drugs, in violation of R.C. 2925.11(A). He
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pleaded guilty to having weapons while under disability in exchange for the dismissal
of the three remaining counts.
{¶4} Prior to sentencing, Mr. Zachary filed a motion to withdraw his guilty
plea, insisting that changes in Second Amendment jurisprudence provided him with a
complete defense. After a full hearing, the trial court denied his request and
subsequently sentenced him to two years of community control, imposed a fine of
$100, and ordered him to complete a cognitive thinking class and to perform 100
hours of community service. He now appeals.
II.
{¶5} In Mr. Zachary’s sole assignment of error, he maintains that the trial
court abused its discretion by denying his presentence motion to withdraw his guilty
plea. “[A] presentence motion to withdraw a guilty plea should be freely and liberally
granted,” but the right to withdraw a guilty plea is not absolute. State v. Xie, 62 Ohio
St.3d 521, 527, 584 N.E.2d 715 (1992); see State v. Howell, 1st Dist. Hamilton No. C-
200360, 2021-Ohio-2957, ¶ 9. Ohio appellate courts review a denial of a motion to
withdraw a guilty plea for an abuse of discretion. Howell at ¶ 9, citing State v.
Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 16. An abuse of
discretion occurs when “a court exercis[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,
166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶6} This court considers the 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.), when reviewing a trial court’s
denial of a motion to withdraw a guilty plea. The factors include:
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OHIO FIRST DISTRICT COURT OF APPEALS
(1) whether the defendant was represented by highly competent
counsel; (2) whether the defendant was afforded a complete Crim.R. 11
hearing before entering the plea; (3) whether the trial court conducted
a full and impartial hearing on the motion to withdraw the plea; (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 set out specific reasons for the withdrawal; (7) whether the
defendant understood the nature of charges and the possible penalties;
(8) whether the defendant was possibly not guilty of the changes or had
a complete defense to the charges; and (9) whether the state would have
been prejudiced by the withdrawal of the plea.
State v. McCoy, 1st Dist. Hamilton Nos. C-220279 and C-220281, 2023-Ohio-361, ¶
11, quoting Howell at ¶ 10.
{¶7} The Fish factors are non-exhaustive—trial and appellate courts may
consider other factors as dictated by the circumstances of the particular case. Fish at
240. And no single factor controls the inquiry; “the trial court employs a balancing
test.” State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, citing State
v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, ¶ 20.
{¶8} Mr. Zachary concedes that he was represented by highly competent
counsel, that he received a proper Crim.R. 11 hearing before entering his plea, and that
he was given a hearing on his motion to withdraw his guilty plea. He contends,
however, that the remaining factors weigh heavily in favor of permitting him to
withdraw his guilty plea.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} But he fails to adequately contest that the trial court gave full and fair
consideration to the motion or that he understood the nature of the charges and the
possible penalties. While he does not concede these factors, he does not discuss them
in his brief. And, as evidenced by the record, he acknowledged his understanding of
the charges against him and the possible penalties at the time of his guilty plea.
Further, the trial court analyzed each of the Fish factors when denying the motion,
demonstrating a full and fair consideration. Therefore, both factors weigh in favor of
the denying his motion to withdraw.
{¶10} The state, on the other hand, acknowledges that the timeliness and
prejudice factors may be resolved in favor of Mr. Zachary. The trial court found the
motion to be timely and the state would have suffered little, if any, prejudice had the
trial court granted the motion to withdraw the guilty plea.
{¶11} Thus, the two disputed factors—reasons for withdrawal and lack of guilt
or complete defense—are the focus of the appeal (and of our analysis). Because Mr.
Zachary’s sole reason for withdrawal is his alleged complete defense, we address these
factors together. He maintains that recent changes in Second Amendment
jurisprudence provide him with a complete defense that gives rise to his innocence,
specifically citing a United States Supreme Court case (issued before he entered his
guilty plea), New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111,
213 L.Ed.2d 387 (2022), and a trial court decision (issued after he entered his guilty
plea), State v. Moore, Hamilton C.P. No. B-2202520 (June 30, 2023). Seizing on this
pair of cases, he maintains that a firearms disability conviction predicated on a
juvenile adjudication can no longer pass constitutional muster.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} This argument runs headlong into a threshold problem: the Ohio
Supreme Court, prior to Bruen, determined that a juvenile adjudication for a felony
offense of violence may serve as the basis for a firearms disability. See, e.g., State v.
Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 21.
{¶13} But Mr. Zachary assures us that we can safely ignore Carnes now,
pointing to Moore and Bruen. In Moore, the trial court, applying the Bruen standard,
dismissed an indictment for having weapons while under disability when the disability
was predicated upon a pending pre-conviction indictment. See R.C. 2923.13(A)(2).
However, as emphasized by the trial court in the case before us, Moore is not
controlling and is factually distinguishable—unlike the defendant in Moore, Mr.
Zachary had been adjudicated of an offense, not merely indicted. And Moore did not
involve any interplay with the juvenile system.
{¶14} Because Moore does not provide a basis for his defense, he must
necessarily retreat to Bruen. The United States Supreme Court’s decision shifted the
burden in firearm regulation challenges to the government to demonstrate that the
regulation at issue is “consistent with the Nation’s historical tradition of firearm
regulation.” Bruen, 597 U.S. at 24, 142 S.Ct. 2111, 213 L.Ed.2d 387. Mr. Zachary,
wielding the Bruen rationale, posits that the statutory disability imposed because of
his juvenile adjudication is incompatible with the rationale of the juvenile justice
system. Further, he emphasizes the alleged lack of a long-standing national tradition
that precludes adults who were adjudicated delinquent as juveniles from exercising
their Second Amendment rights.
{¶15} We need not ponder the intricacies of this Second Amendment claim,
however, to decide this appeal. Bruen was decided nearly a year before Mr. Zachary
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entered his guilty plea, and, although he had ample opportunity, he never filed a
motion to dismiss the indictment against him based on a Second Amendment defense
or otherwise raised the defense in any fashion. And “[w]here a defendant is aware of
the factual basis for an alleged defense at the time of the plea, he or she is ‘presumed
to have taken this defense into consideration’ when deciding to enter a plea and to
have ‘conclud[ed] that the possibility of succeeding with that defense was not worth
the risk of a greater sentence if the defense would fail, resulting in a conviction and a
greater sentence.’ ” State v. Sain, 2d Dist. Montgomery No. 28720, 2020-Ohio-5542,
¶ 37, quoting Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, at ¶ 36.
{¶16} Mr. Zachary does not explain why he failed to raise this defense prior to
entering his guilty plea. And generally, “ ‘[a] change of heart or mistaken belief about
pleading guilty is not a reasonable basis for withdrawal of a guilty plea.’ ” State v.
Reed, 3d Dist. Seneca No. 13-22-02, 2022-Ohio-2538, ¶ 19, quoting State v. Jones, 7th
Dist. Mahoning No. 09 MA 50, 2011-Ohio-2903, ¶ 20.
{¶17} The trial court fully considered the Fish factors, finding nearly all of the
factors weighed in favor of denying the plea withdrawal, and reasonably concluded, on
these facts, that Mr. Zachary did not have a sufficient reason to withdraw his plea. We
accordingly find the trial court’s decision was not an abuse of discretion and overrule
the sole assignment of error.
* * *
{¶18} In light of the foregoing analysis, we overrule Mr. Zachary’s sole
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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