State v. Barnes

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Barnes, Slip Opinion No. 2022-Ohio-4486.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4486THE STATE OF OHIO, APPELLEE, v. BARNES, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Barnes, Slip Opinion No. 2022-Ohio-4486.]
Criminal law—Crim.R. 32.1—A presentence motion to withdraw a guilty plea
should be freely and liberally granted—The determination whether there is
a reasonable and legitimate basis for a defendant’s request to withdraw his
or her plea is within the sound discretion of the trial court—Court of
appeals’ judgment reversed and cause remanded.
(No. 2021-0670—Submitted April 12, 2022—Decided December 15, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 109442, 2021-Ohio-842.
_______________________
STEWART, J.
{¶ 1} This discretionary appeal asks us to determine whether a defendant in
a criminal case has a reasonable and legitimate basis to withdraw his guilty plea
when, before sentencing, he discovers evidence that (1) his attorney withheld from
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him and (2) would have negated his decision to plead guilty had he known about it.
We hold that he does. Accordingly, we reverse the judgment of the Eighth District
Court of Appeals affirming the trial court’s judgment denying appellant Terry
Barnes Sr.’s motion to withdraw his guilty plea.
Facts and Procedural History
{¶ 2} The underlying facts of this case, according to the transcripts of
Barnes’s hearings and the documents in the record, show that on September 10,
2017, Leah McLaurin confronted Barnes at a gas station on the east side of
Cleveland, for unknown reasons. While at the gas pump in his vehicle, Barnes
engaged in conversation with Leah, but Leah became hostile, and Barnes left the
gas station after getting gas. Later that same day, Barnes returned to the gas station.
Leah was still there, and Barnes approached her to discuss the previous argument.
{¶ 3} Someone at the gas station called Leah’s brother, Jeffrey McLaurin,
and told Jeffrey that Barnes was arguing with Leah. Jeffrey arrived at the gas
station with a gun. Jeffrey struck Barnes in the face with the gun, Barnes drew his
gun in response, and the two men exchanged gunfire. Barnes was shot in his elbow
as he fled. Two bystanders and Leah also sustained gunshot wounds. Leah died
shortly after being shot.
{¶ 4} Authorities were unable to determine who fired the shot that killed
Leah. Although the gas station had interior and exterior surveillance cameras that
showed Barnes, Jeffrey, and an unidentified third person firing guns, the footage
did not show who was responsible for causing Leah’s death. The state provided
the video footage to Barnes’s defense counsel, but it was labeled “counsel only,”
as allowed by Crim.R. 16(C).1
1. Crim.R. 16(C) states: “Except as otherwise provided, ‘counsel only’ material may not be shown
to the defendant or any other person, but may be disclosed only to defense counsel, or the agent or
employees of defense counsel, and may not otherwise be reproduced, copied or disseminated in any
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{¶ 5} Almost two weeks after the shooting, Barnes was indicted in the
Cuyahoga County Court of Common Pleas for one count of murder, in violation of
R.C. 2903.02(B); one count of voluntary manslaughter, in violation of R.C.
2903.03(A); three counts of felonious assault, all violations of R.C. 2903.11(A)(2);
and two counts of discharging a firearm on or near prohibited premises, violations
of R.C. 2923.162(A)(3). All the charges carried one- and three-year firearm
specifications under R.C. 2941.141(A) and 2941.145(A), respectively. Barnes
pleaded not guilty during his arraignment.
{¶ 6} On September 19, 2019, Barnes accepted a plea deal from the state,
in which he pleaded guilty to involuntary manslaughter. In exchange for his guilty
plea, the state amended the voluntary-manslaughter charge to involuntary
manslaughter, a violation of R.C. 2903.04(B), and asked the trial court to nolle
prosequi the remaining counts and to dismiss the firearm specifications. The trial
court granted the state’s requests, accepted Barnes’s guilty plea, and scheduled
Barnes’s sentencing hearing for October 31, 2019.
{¶ 7} On the day that Barnes was supposed to be sentenced, he filed a
motion to withdraw his guilty plea. He asserted that he was not guilty and, citing
2018 Am.Sub.H.B. No. 228 (which amended R.C. 2901.05 and shifted the burden
of proof on self-defense to the state), that he had acted in self-defense.2 On
November 6, Barnes filed a supplement to the motion to withdraw his guilty plea.
He argued that his counsel never allowed him to view the video footage from the
gas station with audio. Because one of Barnes’s attorneys was unaware of the
counsel-only designation, Barnes was inadvertently given access to the footage the
night before his sentencing hearing. Barnes believed that the video footage with
way. Defense counsel may orally communicate the content of the ‘counsel only’ material to the
defendant.”
2. Barnes first alleged that he acted in self-defense at his bond hearing on January 31, 2018.
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audio would establish that Barnes did not shoot first, which would bolster Barnes’s
self-defense claim. The state filed a memorandum in opposition to Barnes’s
motion, asserting that the withdrawal of Barnes’s guilty plea would prejudice the
state and that Barnes had not offered a valid reason for the trial court to grant his
motion to withdraw.
{¶ 8} The trial court held a hearing on the motion, and Barnes asserted that
his attorneys did not review all the discovery with him, including a large portion of
the video footage. The trial court stated that although Barnes had “represented to
[the] Court that [he had] reviewed everything,” because his attorneys did not show
him all the discovery, the court would appoint new counsel for Barnes for the
purpose of representing him at a new plea-withdrawal hearing. The court
conducted a second hearing, at which Barnes called his former attorneys as
witnesses. None of the former attorneys recalled showing Barnes video footage of
the shooting with audio, and Barnes testified he believed that the audio offered
proof that he did not shoot first. Barnes also stated that he would not have pleaded
guilty had he seen the video footage with the audio prior to entering his plea.
{¶ 9} Before ruling on the motion, the trial court stated:
Before you proceed I do just want to remind you all that in
considering this motion that I have to consider whether the
prosecution would be prejudiced by a vacation of the plea, whether
the accused was represented by highly competent counsel. There is
no question about that. At all stages Mr. Barnes was represented by
highly competent counsel.
I also need to consider whether the accused was given a
Criminal Rule 11 hearing, which he was in this matter, and I have
provided a copy of the transcript, and reviewed that entire transcript
of this Rule 11 hearing.
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I also have to consider whether there are specific reasons
outlined for withdrawing the plea and I have to consider whether the
accused understood the nature of the charges and possible penalties,
and whether he has a complete defense to the crime or was not
guilty. Those are the factors that I have to consider here today.
{¶ 10} After hearing final arguments from counsel and reviewing the video
footage, the trial court ultimately determined that there was not a reasonable basis
for Barnes to withdraw his guilty plea and denied his motion. After finding Barnes
guilty, the court sentenced him to community-control sanctions for five years.
{¶ 11} Barnes appealed to the Eighth District Court of Appeals, arguing that
the trial court erred when it denied the motion to withdraw his guilty plea. The
court of appeals overruled Barnes’s assignment of error and affirmed the judgment
of the trial court, holding that Barnes had failed to demonstrate a reasonable basis
for withdrawing his guilty plea and that the trial court’s judgment denying Barnes’s
motion was not unreasonable, arbitrary, or unconscionable. The court also denied
Barnes’s application for reconsideration and en banc consideration.
{¶ 12} Barnes filed a discretionary appeal in this court, and we accepted his
sole proposition of law:
A defendant has a reasonable and legitimate basis to
withdraw a guilty plea before sentencing upon learning of evidence
that: (1) was previously withheld from the defendant; and (2) would
have changed the defendant’s decision to plead guilty. (Crim.R.
32.1 and State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),
construed and applied).
See 163 Ohio St.3d 1508, 2021-Ohio-2481, 170 N.E.3d 906.
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Law and Analysis
{¶ 13} “A presentence motion to withdraw a guilty plea should be freely
and liberally granted.” Xie at 527. A defendant does not, however, have an
“absolute right” to withdraw his or her plea, even when a motion to withdraw is
made before sentencing. Id. at paragraph one of the syllabus. Before ruling on a
defendant’s presentence motion to withdraw his plea, the trial court must conduct
a hearing to determine whether there is a reasonable and legitimate basis for
withdrawing the plea. Id. The determination whether there is a reasonable and
legitimate basis for the defendant’s request to withdraw his plea is “within the
sound discretion of the trial court.” Id. at paragraph two of the syllabus. Absent an
abuse of discretion on the part of the trial court in making its ruling, its decision
must be affirmed. Id. at 526.
{¶ 14} Crim.R. 32.1 states:
A motion to withdraw a plea of guilty or no contest may be
made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.
{¶ 15} “However, the rule itself gives no guidelines for a trial court to use
when ruling on a presentence motion to withdraw a guilty plea.” Xie, 62 Ohio St.3d
at 526, 584 N.E.2d 715. Crim.R. 11 governs guilty pleas and guilty-plea colloquies
and ensures that a defendant understands that by pleading guilty, he is waiving
numerous constitutional rights. See, e.g., State v. Ballard, 66 Ohio St.2d 473, 478,
423 N.E.2d 115 (1981) (“We hold that a guilty plea is constitutionally infirm when
the defendant is not informed in a reasonable manner at the time of entering his
guilty plea of his rights to a trial by jury and to confront his accusers, and his
privilege against self-incrimination, and his right of compulsory process for
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obtaining witnesses in his behalf”). Crim.R. 11(C) also ensures that when a
defendant pleads guilty, he is making that plea knowingly, intelligently, and
voluntarily. “Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States and the Ohio Constitution.” State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶ 16} When the Eighth District reviewed the trial court’s reasons for
denying Barnes’s motion to withdraw his plea, it applied a nonexhaustive list of
factors from State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th
Dist.1980), paragraph three of the syllabus (known as the “Peterseim factors”). The
court of appeals explained that a trial court does not abuse its discretion when it
denies a defendant’s motion to withdraw his guilty plea when:
(1) the defendant is represented by highly competent
counsel, (2) the defendant was afforded a full hearing
pursuant to Crim.R. 11 before he or she entered his plea, (3)
after the motion to withdraw is filed, the defendant is given
a complete and impartial hearing on the motion, and (4) the
record reveals that the court gave full and fair consideration
to the plea withdrawal request.
2021-Ohio-842, ¶ 22.
{¶ 17} In addition to the Peterseim factors, the Eighth District also
considered four additional factors from State v. Heisa, 8th Dist. Cuyahoga No.
101877, 2015-Ohio 2269 (known as the “Heisa factors”):
“(1) the motion was made in a reasonable time; (2) the motion stated
specific reasons for withdrawal; (3) the record shows that the
defendant understood the nature of the charges and the possible
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penalties; and (4) the defendant had evidence of a plausible
defense.”
2021-Ohio-842 at ¶ 30, quoting Heisa at ¶ 19. Using an analysis based on this
framework, the court of appeals held that the trial court’s judgment denying the
motion was not unreasonable, arbitrary, or unconscionable.
{¶ 18} Barnes asserts in this court that rather than apply this court’s plea-
withdrawal framework as given in Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, the
Eighth District instead applied “a test that focuses too narrowly on * * * procedural
protections—such as the rights explained to the defendant in the original plea
hearing—and on the trial court’s own view of the reasons for the requested plea
withdrawal.” Barnes argues that his assessment of the withheld evidence and how
that evidence would impact his case is the sole factor that matters in determining
whether he should be permitted to withdraw his guilty plea.
{¶ 19} Barnes also argues that to make a knowing and intelligent decision
about whether to enter a guilty plea, a defendant must know what evidence weighs
in his favor and what evidence does not. Barnes asserts that his decision to plead
guilty was neither knowing nor intelligent because he had not seen the video
footage with audio before pleading guilty. Barnes further asserts that had he seen
the video footage with audio, he never would have pleaded guilty.
{¶ 20} The state argues that when the Peterseim factors and the Heisa
factors are applied to this case, there is no support for permitting Barnes to
withdraw his guilty plea. The state also asserts that acceptance of Barnes’s
proposition of law would drastically limit a trial court’s discretion when ruling on
a presentence motion to withdraw a guilty plea, and that even if this court were to
adopt Barnes’s proposed rule, the evidence in this case demonstrates that the
withheld video footage with audio is not material evidence. We disagree.
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{¶ 21} We begin by repeating what this court established three decades ago
in Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715: a defendant’s presentence motion to
withdraw his guilty plea should be freely and liberally granted. This standard
makes clear that when a defendant pleads guilty to one or more crimes and later
wants to withdraw that plea before he has been sentenced, the trial court should
permit him to withdraw his plea. This is the presumption from which all other
considerations must start.
{¶ 22} As previously noted, a defendant does not have an absolute right to
withdraw his guilty plea, id., and denying a defendant’s motion to do so has been
upheld in various circumstances, id. at 524-525 (the trial court’s denial of the
defendant’s presentence motion to withdraw his guilty plea was upheld when the
defendant relied on his defense attorney’s erroneous advice regarding parole
eligibility). See also State v. Drake, 73 Ohio App.3d 640, 645-646, 598 N.E.2d 115(8th Dist.1991) (the trial court’s denial of the defendant’s presentence motion to
withdraw his guilty plea was upheld when the defendant pleaded guilty on a
mistaken belief that his aggravated-robbery charge would be reduced to robbery);
State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988) (the
trial court’s denial of the defendant’s presentence motion to withdraw his guilty
plea was upheld when the defendant pleaded guilty because he thought that in
exchange for pleading guilty, he would be sentenced to probation); State v.
Ganguly, 10th Dist. Franklin No. 14AP-383, 2015-Ohio-845, ¶ 15 (the trial court’s
denial of the defendant’s presentence motion to withdraw his guilty plea was upheld
when the defendant asserted that his antianxiety medication rendered his plea
unknowing, unintelligent, and involuntary).
{¶ 23} In the case before us, it is uncontroverted that (1) the person who
fired the lethal bullet is unknown, (2) Barnes has always claimed he acted in self-
defense, and (3) when Barnes agreed to plead guilty, he was unaware of the footage.
Barnes believes, based on his military training, that the video footage with audio
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supports his claim of self-defense and insists that he would not have pleaded guilty
had he viewed and heard the footage before entering his plea. This case, therefore,
is much different from the cases cited above, because here, the state cannot
overcome the presumption that Barnes’s motion to withdraw his guilty plea must
be freely and liberally granted.3
{¶ 24} We also agree with Barnes that the Peterseim factors and the Heisa
factors do not apply here. We therefore hold that when a defendant discovers
evidence that would have affected his decision to plead guilty, he has a reasonable
and legitimate basis to withdraw his guilty plea before sentencing. We further hold
that the trial court abused its discretion when it denied Barnes’s presentence motion
to withdraw his guilty plea.
{¶ 25} On a final note, the state and the dissenting opinion question whether
the video footage with audio actually substantiates Barnes’s self-defense claim.
The state and the dissent also assert that a defendant should not be the sole authority
for evaluating whether certain evidence is material to his decision to plead guilty.
This is true. And as previously noted, there have been many cases in which the
defendant’s presentence motion to withdraw his guilty plea was denied and the
denial was upheld on appeal. In this case, however, we are more persuaded by the
maxim that “such basic decisions as whether to plead guilty, waive a jury, or testify
in one’s own behalf are ultimately for the accused to make.” Wainwright v. Sykes,
433 U.S. 72, 93, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), fn. 1 (Burger, C.J.,
concurring); see also Martinez v. Court of Appeal of California, Fourth Appellate
Dist., 528 U.S. 152, 165, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (Scalia, J.,
concurring in the judgment) (“Our system of laws generally presumes that the
3. The state argued that it would be prejudiced if Barnes was allowed to withdraw his plea after so
much time had passed. But that passage of time may not be attributed to Barnes. Barnes found out
about the video footage with audio the night before his sentencing hearing and filed a motion to
withdraw his guilty plea the next day.
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criminal defendant, after being fully informed, knows his own best interests and
does not need them dictated by the State”).
{¶ 26} Barnes pleaded guilty to the offense of involuntary manslaughter,
but not because there was evidence that he actually committed the crime. This fact
appears to be lost on the dissent in this case.4 He pleaded guilty because he believed
there was no evidence that corroborated his self-defense claim. And when he
discovered the video footage with audio, there was then evidence that corroborated
his self-defense claim. At all times, he maintains that he would not have pleaded
guilty had he known about the footage with audio. Finally, Barnes moved to
withdraw his guilty plea in a timely manner. For these reasons, we hold that
(1) Barnes had a reasonable and legitimate basis for withdrawing his guilty plea,
4. The dissenting opinion declares, among other troubling statements, that this case does not involve
a matter of great public interest, that the majority substitutes its opinion for that of the trial court
without having viewed the video footage with audio merely to achieve a desired outcome, and that
Barnes’s motion to withdraw his guilty plea was simply due to a case of buyer’s remorse or having
a change of heart. To say that a case involving a criminal defendant’s ability to withdraw his or her
guilty plea is not a matter of great public interest is naïve at best and absurd at worst. Ohio law
recognizes a plea of guilty as an admission to committing the charge to which one makes such a
plea. Yet, for a host of reasons, defendants routinely plead guilty to having committed one or more
crimes even when they did not commit those offenses. See Dervan and Edkins, The Innocent
Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem,
103 J.Crim.L. & Criminology 1, 17 (2013) (explaining that numerous innocent defendants still enter
into plea bargains). And yet, the dissent believes this matter is not one of great public interest. The
serious considerations involved in whether to plead guilty in a criminal case, and subsequently
whether to seek to withdraw that guilty plea, should not be evaluated as a game of gotcha once a
defendant has entered a guilty plea. In other words, when a defendant in a criminal case must make
a decision whether to plead guilty to having committed one or more offenses, that decision does not
always simply turn on whether the defendant actually committed the offenses. Therefore, it is
crucial for a defendant to have all the information that is available about his or her case in order to
make an informed and intelligent decision before pleading guilty and ultimately being convicted.
In this case, Barnes’s evaluation of the newly discovered evidence changed the knowledge from
which he was operating when he decided to plead guilty. It was his evaluation of that evidence,
particularly with his background and training, that rendered the trial court’s denial of his motion to
withdraw unreasonable. Finally, Barnes received a five-year sentence of community control yet
appealed the inability to withdraw his guilty plea all the way to this court. And still the dissent
proclaims that Barnes’s pretrial motion to withdraw his guilty plea was nothing more than buyer’s
remorse to having pled guilty in the first place?
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(2) the trial court erred by not granting his motion, and (3) the court of appeals erred
by affirming the trial court’s judgment.
Conclusion
{¶ 27} We reverse the judgment of the court of appeals and vacate Barnes’s
conviction. We remand the matter to the trial court for further proceedings.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., concurs.
BRUNNER, J., concurs, with an opinion joined by GWIN, J.
FISCHER, J., dissents, with an opinion joined by KENNEDY and DEWINE, JJ.,
as to Parts II and III.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for
DONNELLY, J.
_________________
BRUNNER, J., concurring.
I. INTRODUCTION
{¶ 28} I join the majority opinion. I write separately, however, because I
would go further and would discard the nine-factor analysis that has been created
and adopted by Ohio’s courts of appeals in favor of a renewed focus on Crim.R.
32.1 and the guiding standards set forth by this court in State v. Xie, 62 Ohio St.3d
521, 584 N.E.2d 715 (1992).
II. ANALYSIS
{¶ 29} Crim.R. 32.1 states:
A motion to withdraw a plea of guilty or no contest may be
made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.
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Crim.R. 32.1 contemplates two circumstances: when a defendant moves to
withdraw before being sentenced and when a defendant having been convicted on
a guilty or no-contest plea moves to withdraw it after sentencing “to correct
manifest injustice.” Crim.R. 32.1. In this case, appellant, Terry Barnes Sr., filed a
presentence motion to withdraw before the court imposed its sentence.
{¶ 30} Crim.R. 32.1 does not specify a standard for judging a motion to
withdraw a guilty or no-contest plea before a court imposes its sentence. Under the
rules, additional requirements for this type of motion are contained in Crim.R. 47,
requiring that the motion “be in writing unless the court permits it to be made
orally,” to “state with particularity the grounds upon which it is made,” to “set forth
the relief or order sought,” and to “be supported by a memorandum containing
citations of authority.” Crim.R. 47. While a postsentence motion may be granted
to “correct manifest injustice,” for motions to withdraw a guilty or no-contest plea
made before sentencing, Crim.R. 32.1, along with Crim.R. 47, impose only
minimal procedural burdens. In recognition, this court has set forth the following
standard for granting a presentence motion to withdraw a guilty plea:
(1) A defendant does not have an absolute right to withdraw
a guilty plea prior to sentencing. A trial court must conduct a
hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea.
(2) The decision to grant or deny a presentence motion to
withdraw a guilty plea is within the sound discretion of the trial
court.
Xie at paragraphs one and two of the syllabus. In Xie, this court also stated that “a
presentence motion to withdraw a guilty plea should be freely and liberally
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granted.” Id. at 527. Thus, a defendant does not have an “absolute right” to have
his presentence motion to withdraw granted, id. at paragraph one of the syllabus,
but such motions should be “freely and liberally granted” when a defendant has “a
reasonable and legitimate basis for the withdrawal of the plea,” id. at 527.
{¶ 31} In the absence of further substantive decisions from this court over
the past 30 years, Ohio’s appellate courts have articulated a series of considerations
that they have held are potentially relevant to evaluating a trial court’s decision-
making in this area. Some find their origin in State v. Peterseim, 68 Ohio App.2d
211, 428 N.E.2d 863 (8th Dist.1980), which predates Xie, 62 Ohio St.3d 521, 584
N.E.2d 715; the Eighth District stated that a trial court does not abuse its discretion
in denying a motion to withdraw a guilty plea when (1) the accused is represented
by highly competent counsel, (2) the accused was afforded a full hearing, pursuant
to Crim.R. 11, before he entered the plea, (3) after the motion to withdraw is filed,
the accused is given a complete and impartial hearing on the motion, and (4) the
record reveals that the court gave full and fair consideration to the plea-withdrawal
request. Peterseim at 213-214.
{¶ 32} Three years after Xie, other factors were articulated by the First
District in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995),
overruled on other grounds by State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056,
¶ 15 (1st Dist.):
We would also add: (5) whether the motion was made within a
reasonable time, (6) whether the motion sets out specific reasons for
the withdrawal * * * , (7) whether the accused understood the nature
of the charges and possible penalties, and (8) whether the accused
was perhaps not guilty of or had a complete defense to the charge or
charges.
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Another factor—whether the state would be prejudiced if the defendant were
permitted to withdraw his guilty plea—has usually been added to the analysis, for
a total of nine factors. See, e.g., State v. Richter, 8th Dist. Cuyahoga Nos. 46122
and 46123, 1983 WL 4787, *2 (Sept. 29, 1983); State v. Dawson, 2d Dist. Greene
No. 97-CA-105, 1998 WL 135816, *3 (Mar. 27, 1998).
{¶ 33} Almost all of Ohio’s appellate districts apply the nine-factor analysis
that was used by the Eighth District in this case. See, e.g., State v. Couch, 1st Dist.
Hamilton No. C-060232, 2007-Ohio-654, ¶ 6 (referring to nine-factor analysis);
State v. Blankenship, 2d Dist. Montgomery No. 29068, 2021-Ohio-3612, ¶ 11-21
(applying nine-factor analysis); State v. Smith, 3d Dist. Hancock Nos. 5-21-05
through 5-21-08, 2022-Ohio-742, ¶ 22-32 (applying nine-factor analysis); State v.
Harmon, 4th Dist. Pickaway No. 20CA6, 2021-Ohio-2610, ¶ 12-35 (applying nine-
factor analysis); State v. Lewis, 5th Dist. Delaware No. 20 CAA 06 0025, 2021-
Ohio-530, ¶ 39-53 (applying nine-factor analysis); State v. Euler, 6th Dist. Wood
No. WD-17-058, 2019-Ohio-235, ¶ 7-24 (applying nine-factor analysis); State v.
Jackson, 7th Dist. Columbiana No. 19 CO 0037, 2021-Ohio-2497, ¶ 15-32
(applying nine-factor analysis); State v. Pames, 8th Dist. Cuyahoga No. 110647,
2022-Ohio-616, ¶ 29-42 (applying nine-factor analysis); State v. Van Dyke, 9th
Dist. Lorain No. 02CA008204, 2003-Ohio-4788, ¶ 11-21 (applying fewer and
different factors); State v. Sow, 10th Dist. Franklin No. 17AP-772, 2018-Ohio-
4186, ¶ 22-32 (applying nine-factor analysis); State v. Pudder, 11th Dist. Portage
No. 2013-P-0045, 2014-Ohio-68, ¶ 18-23 (applying nine-factor analysis); State v.
Owens, 12th Dist. Preble No. CA2021-07-007, 2022-Ohio-160, ¶ 30 (referring to
nine-factor analysis).
{¶ 34} According to the nine-factor analysis, an appellate court is more
likely to reverse a trial court’s judgment denying a motion to withdraw a guilty plea
if the defendant (1) was not represented by competent counsel, (2) was not given a
proper colloquy in accordance with Crim.R. 11, (3) was not afforded a complete
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and impartial hearing on the motion, and/or (4) was not given full and fair
consideration when asking to withdraw a plea. Similarly, an appellate court is more
likely to affirm a trial court’s judgment denying a motion to withdraw a guilty plea
if the defendant (5) did not make the motion within a reasonable amount of time,
(6) did not state specific reasons for withdrawal, (7) understood the nature of the
charges and the possible penalties, (8) was likely guilty or without a complete
defense, and/or (9) would have created prejudice to the state’s case by withdrawing
his guilty plea. We note that Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863, the
forebearer of a number of these factors, predates this court’s decision in Xie, 62
Ohio St.3d 521, 584 N.E.2d 715, by 12 years, and was cited in Xie, yet we did not
adopt the Peterseim factors in Xie, see Xie at 526. Nor, in the 30 years post-Xie
have we adopted the Peterseim/Fish factors that appear to be commonly (or nearly
uniformly) used by the intermediate appellate courts. Justice Donnelly commented
on this issue in dissenting from a decision to decline jurisdiction in State v. Harmon,
165 Ohio St.3d 1465, 2021-Ohio-4109, 177 N.E.3d 279. He advocated either
adopting the Peterseim/Fish factors or adopting our own factors. Id. at ¶ 4
(Donnelly, J., dissenting). The dissenting opinion in this case also remarks on the
need to take a position on the factors. Dissenting opinion, ¶ 47. I agree that clarity
is needed. However, I do not believe that the potential convenience of weighing
formulaic factors always lends itself to just results.
{¶ 35} If this case demonstrates anything, it is that a factor-weighing
approach can become a mechanistic exercise in which courts are in danger of losing
sight of why we do what we do. Justice has a lot to do with what is truth in very
human situations. As a result, judges and justices are often truth seekers in matters
that are complicated, messy, and convoluted. These matters often stretch judges to
envision and understand different ways of life than what they may have
experienced. They must nevertheless remain open-minded. And truth-seeking in
this context relates to the integrity of trial procedures, the fairness of the calls on
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the admission or exclusion of evidence, heeding the need to recuse to avoid conflict
or its appearance, ensuring the voir dire process enables the seating of a fair and
impartial jury, and in the context of a presentence motion to withdraw a guilty plea,
whether the motion, made orally or in writing, is based on a reasonable and
legitimate explanation.
{¶ 36} Here, Barnes had competent counsel. He was accurately informed
of and understood the consequences of his plea. He was provided with a full and
proper Crim.R. 11 colloquy. He filed the motion to withdraw his guilty plea the
day scheduled for his sentencing hearing. The trial court held hearings on the
matter, and no bias or partiality was evident concerning Barnes. But all that serves
to distract from the fact that it was Barnes’s decision alone to either plead guilty or
to exercise his right to a trial. See Prof.Cond.R. 1.2(a) (“In a criminal case, the
lawyer shall abide by the client’s decision as to a plea to be entered, whether to
waive a jury trial, and whether the client will testify”). When he learned that he
had made his decision based on incomplete information, and he reconsidered, he
sought to withdraw his plea—and this occurred before sentencing. Why was this
not a “reasonable and legitimate basis for the withdrawal of the plea”? Xie at
paragraph one of the syllabus. And even though Barnes did not “have an absolute
right to withdraw a guilty plea prior to sentencing,” Rule 32.1 contains no such
factors as have been developed by courts of appeals; rather, caselaw indicates that
such motions should be “freely and liberally granted,” Xie at 527. While the nine-
factor analysis is tempting to use, whether for consistency or for convenience and
speed, Crim.R. 32.1 does not indicate that any such factors or the weighing of them
is necessary. In fact, the nine-factor analysis actually distracts from Crim.R. 32.1
and Xie’s basic message: when a defendant files a presentence motion to withdraw
his plea and articulates a reasonable and legitimate basis as to why, the trial court
should grant the motion.
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{¶ 37} The state and its amicus curiae, Office of the Ohio Attorney General,
point out that Barnes did not, before appealing to this court, facially challenge the
propriety of the judge-made factors.5 Rather, Barnes argued in the court of appeals
that the trial court should have weighed some of those factors more heavily in his
favor. Moreover, the proposition of law that we accepted does not address the nine-
factor analysis (or the trial court’s five-factor analysis):
A defendant has a reasonable and legitimate basis to
withdraw a guilty plea before sentencing upon learning of evidence
that: (1) was previously withheld from the defendant; and (2) would
have changed the defendant’s decision to plead guilty. (Crim.R.
32.1 and State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),
construed and applied).
See 163 Ohio St.3d 1508, 2021-Ohio-2481, 170 N.E.3d 906. Yet, we have stated
that “if we must resolve a legal issue that was not raised below in order to reach a
legal issue that was raised, we will do so.” Belvedere Condominium Unit Owners’
Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993).
{¶ 38} This court decided Xie 30 years ago, and our silence is what has
allowed the various appellate courts to create and apply this nine-factor weighing
analysis to the point that this “test” has overshadowed the basic principles
established by Xie and Crim.R. 32.1. The nine-factor analysis should not
overshadow the exercise of judicial discretion that is needed to analyze a
presentence motion to withdraw a guilty plea in accordance with the basic
5. “As a general rule, this court will not consider arguments that were not raised in the courts
below.” Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274,
279, 617 N.E.2d 1075 (1993).
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principles established by Xie and Crim.R. 32.1. For these reasons, I would hold
that the nine-factor analysis should no longer be used.
{¶ 39} Applying the basic principles established by Xie, 62 Ohio St.3d 521,
584 N.E.2d 715, and Crim.R. 32.1 to this case without encumbering the decision
by weighing nine factors leads to the conclusion that Barnes should have been
permitted to withdraw his guilty plea.
III. CONCLUSION
{¶ 40} Ohio’s courts of appeals nearly uniformly use the nine-factor
analysis that has been developed over the last 30 years when reviewing a trial
court’s judgment granting or denying a presentence motion to withdraw a guilty
plea. The nine-factor analysis should not overshadow the exercise of judicial
discretion needed to analyze a presentence plea withdrawal in accordance with the
basic principles established by Xie and Crim.R. 32.1.
{¶ 41} In Xie, this court stated that presentence motions to withdraw a guilty
plea “should be freely and liberally granted.” Id. at 527. Accordingly, when a
defendant presents a reasonable and legitimate basis in a presentence motion to
withdraw his guilty plea, it is to be freely and liberally granted. Freely and liberally
granting the defendant’s presentence motion to withdraw his guilty plea requires
the trial court to exercise discretion in its judgment. And that judgment should not
be slighted by making a trial court essentially answer yes-and-no questions to come
up with a weighted score for a matter that requires the court to engage in human
observation, reflection on accumulated experience, and discretion that only a trial
court is in the position to exercise to reach a final judgment on the matter.
{¶ 42} Thus, I join the majority opinion and offer the above additional
suggestions for consideration.
GWIN, J., concurs in the foregoing opinion.
_________________
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FISCHER, J., dissenting.
{¶ 43} Appellant Terry Barnes Sr.’s discretionary appeal presents neither a
constitutional question nor a matter of great public interest and it certainly does not
clarify an unsettled area of the law. By resolving Barnes’s appeal, the majority
opinion engages in so-called error correction by finding that, despite the trial court’s
thoughtful and thorough consideration as to whether Barnes presented a reasonable
and legitimate basis to withdraw his guilty plea, it abused its discretion. Because
we should not have accepted jurisdiction over this discretionary appeal and because
we should not cast aside our appellate standard of review to reach the desired result
of allowing Barnes to withdraw his guilty plea, I must respectfully dissent.
I. This case should be dismissed as having been improvidently accepted
{¶ 44} Barnes’s discretionary appeal is all about whether the trial court
erred in denying his presentence motion to withdraw his guilty plea based on his
assertion that his defense counsel did not properly inform him of a surveillance
video with audio (“the gunshot video”) that possibly supported his self-defense
claim. This appeal does not present a constitutional question. This appeal does not
present a matter of great public interest. And this appeal does not resolve an
unsettled area of the law. Rather, this appeal is purely a plea for this court to engage
in “error correction.”
{¶ 45} The majority opinion criticizes this dissent in a lengthy footnote
claiming that it is naïve or absurd to maintain that this case does not present a matter
of great public interest simply because it deals with a guilty plea. Contrary to the
majority opinion, not every case that involves a guilty plea will present a matter of
great public interest. Rather, the majority opinion forgets this court’s role and
thrusts itself on a soapbox to speak about matters of innocence to deflect from the
fact that there are major flaws with this case that remove it from any category of
cases that we have the authority to resolve.
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{¶ 46} Here, Barnes claims that he would not have pleaded guilty had he
seen a piece of evidence that his defense counsel had failed to show him—a piece
of evidence that (1) does not exist in our record and (2) a description of which is
not even slightly more persuasive than the video evidence of the actual shooting
that Barnes saw numerous times, and had experienced first-hand—both of which
could have supported his self-defense claim. This case is about a defendant who
participated in a shootout that left two people injured and one dead and who had a
viable self-defense claim. But he also chose to plead guilty to a probational offense
to avoid the possibility of being convicted of murder and having to serve a life
sentence. It is about Barnes’s change of heart to plead guilty, not about the gunshot
video that allegedly changed his view of this case. That fact is made clear by
reviewing the procedural posture of this case, as outlined in the merits section
below. This case is about the trial court’s review of those facts and its decision.
And in making its decision to deny Barnes’s motion to withdraw his guilty plea,
the trial court conducted a thorough analysis and followed our decision in State v.
Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). This case, as resolved by the
majority opinion, is nothing more than alleged error correction: the majority merely
disagrees with the trial court’s judgment denying Barnes’s motion to withdraw his
guilty plea.
{¶ 47} This conclusion is clearly evidenced by the majority opinion’s
analysis. The majority opinion neither clarifies (1) our decision in Xie, nor (2) the
balancing test that is consistently applied by the appellate courts, see State v.
Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980) (the court
should consider whether the defendant was represented by highly competent
counsel; whether the defendant was afforded a full Crim.R. 11 hearing before
entering his plea; after the motion to withdraw was filed, whether the defendant
was given a complete and impartial hearing on the motion; and whether the trial
court gave full and fair consideration to the plea-withdrawal request), State v.
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Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio 2269, ¶ 19, (along with the
Peterseim factors, the court added that the court should consider whether the motion
was made within a reasonable time, set out specific reasons for the withdrawal, and
whether the accused was perhaps not guilty of or had a complete defense to the
charge or charges). Without taking the opportunity to provide guidance to our
appellate courts, either by adopting or rejecting the Peterseim and Heisa factors or
explaining what factors should be considered in deciding a motion to dismiss, the
majority opinion acquiesces to Barnes’s request for error correction.
{¶ 48} Error correction is not a valid reason for this court to accept
jurisdiction. See State v. Azeen, 163 Ohio St.3d 447, 2021-Ohio-1735, 170 N.E.3d
864, ¶ 53 (Stewart, J., dissenting) (deciding an appeal serves no real purpose when
the majority opinion does not announce or clarify a rule of law). Thus, if this court
is not going to provide clarity to a well-settled area of the law or guide the lower
courts on how to conduct an analysis, then the case should be dismissed as having
been improvidently accepted.
II. The trial court did not abuse its discretion in denying Barnes’s motion to
withdraw his guilty plea
{¶ 49} But even assuming arguendo only that error correction was a good
enough reason to accept jurisdiction in this case, there is no error to correct. After
a thorough review of the record, it is clear that the trial court acted within its
discretion when it denied Barnes’s motion to withdraw his guilty plea. And the
Eighth District Court of Appeals used a multifactored test that has been used by
Ohio’s appellate courts and found that the trial court had not abused its discretion.
2021-Ohio-842, ¶ 23-54. In reversing the trial court’s decision and granting
Barnes’s motion to withdraw his guilty plea, the majority opinion substitutes its
assessment of the importance of the gunshot video for that of the trial court’s and
then disregards the standard of review set forth by this court in Xie, 62 Ohio St.3d
521, 584 N.E.2d 715, all without having viewed the gunshot video at issue.
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{¶ 50} There is no doubt that a presentence motion to withdraw a guilty plea
should be freely and liberally granted. Id. at 526. But those decisions are within
the sound discretion of a trial court. Id. at paragraph two of the syllabus. Reversal
of the trial court’s decision is appropriate only when the trial court’s decision is
unreasonable, unconscionable, or arbitrary, not simply when the reviewing court
disagrees with the trial court’s resolution of an issue. Id. at 526, 527; see also
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Barker
v. United States, 579 F.2d 1219, 1223 (10th Cir.1978) (unless the record
demonstrates that a trial court acted unfairly or unjustly in denying the defendant’s
motion to withdraw, the court did not abuse its discretion). In Xie, we held that the
trial court did not abuse its discretion when it denied the defendant’s presentence
motion to withdraw his guilty plea because it held a hearing on the motion at which
it carefully considered “all the circumstances surrounding the entering of the plea.”
Id. at 527.
{¶ 51} Here, the trial court followed this court’s holding in Xie: it held a
hearing at which it carefully considered all the circumstances surrounding Barnes’s
plea. Actually, the trial court held two hearings on Barnes’s motion to withdraw
his guilty plea. And the court considered Barnes’s reasons for moving to withdraw
his plea, the timeliness of his motion, the procedural history of his plea discussions,
whether his plea was made consistently with Crim.R. 11, the competency of
Barnes’s counsel, and the possible prejudice to the state if his motion was granted.
The trial court also fully considered the importance of the gunshot video to Barnes’s
self-defense claim by listening to testimony from Barnes and his four former
attorneys and then viewing the gunshot video. The trial court not only followed
this court’s guidance in Xie, but it also considered the factors from Peterseim, 68
Ohio App.2d at 214, 428 N.E.2d 863, and Heisa, 2015-Ohio 2269, at ¶ 19, in
making its decision. From the record, it is apparent that the trial court did
everything in its power to fairly evaluate Barnes’s motion to withdraw his guilty
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plea. It simply determined that the circumstances weighed in favor of denying
Barnes’s motion.
{¶ 52} Contrary to Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, the majority
opinion disregards the trial court’s careful consideration of all the facts and
circumstances in this case and instead focuses on the trial court’s alleged failure to
adequately consider Barnes’s evaluation of the gunshot video. The majority
opinion concludes that the trial court’s decision to deny Barnes’s motion was
unreasonable and an abuse of discretion because Barnes believes that the gunshot
video substantiates his self-defense claim. The majority opinion abandons the
abuse-of-discretion standard of review that this court established in Xie and reviews
the trial court’s decision de novo. While certain evidence may have an impact on
a defendant’s decision to plead guilty, it is baffling to me how the majority opinion
in this case has determined that the gunshot video significantly affected Barnes’s
guilty plea, especially since no member of this court has reviewed that video.
{¶ 53} This court has access to a total of 139 videos from this case, but none
of those videos contain audio. So, the record in this case does not contain the
gunshot video—i.e., the very piece of evidence upon which Barnes’s entire
argument relies. Indeed, it is impossible for this court to determine whether the
gunshot video would have been material to Barnes’s defense because we do not
have access to it. For that reason alone, we should reject Barnes’s argument that
the trial court abused its discretion in denying his motion to withdraw his guilty
plea.
{¶ 54} Furthermore, Barnes—as the appellant—has the burden to ensure
that all the evidence that is needed to resolve his appeal is before the court. See
App.R.10(A); S.Ct.Prac.R. 15.01(A). Barnes failed to include the gunshot video
when he filed his motion to withdraw his guilty plea. And no one in this case has
asked to supplement the record with the gunshot video. So, since we cannot review
the gunshot video, we cannot evaluate Barnes’s claim. Consequently, regularity of
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January Term, 2022
the trial court’s proceedings is presumed, Natl. City Bank v. Beyer, 89 Ohio St.3d
152, 160, 729 N.E.2d 711 (2000), and we must affirm the judgment of the Eighth
District Court of Appeals.
{¶ 55} Because the gunshot video is not contained within this record, the
majority opinion’s resolution of Barnes’s proposition of law is problematic. The
majority opinion takes Barnes’s assertion that the gunshot video is material to his
case and serves as the only evidence to substantiate his self-defense claim at face
value to justify finding that Barnes’s decision to file the motion to withdraw his
guilty plea was more than just a change of heart and that the trial court abused its
discretion in denying the motion. But when a trial court’s judgment is supported
by some competent, credible evidence, that judgment must be upheld. Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Here,
the only videos we have in the record support the trial court’s rejection of Barnes’s
argument that the gunshot video would have made a difference to his decision to
enter a plea of guilty. The majority opinion, through its lack of review, opens the
door for defendants to successfully move to withdraw their guilty pleas based on
their assertions that had they seen a particular piece of evidence held by their
defense counsel, regardless of the materiality of that evidence, that they would not
have pleaded guilty.
{¶ 56} The record before us demands that we find that the trial court did not
abuse its discretion in denying Barnes’s motion to withdraw his guilty plea. It is
not our role as “an appellate court to conduct a de novo review of a trial court’s
decision in these circumstances,” Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715,
especially when we do not even have the most crucial piece of evidence before us.
III. The gunshot video would not have supported Barnes’s self-defense claim
{¶ 57} It is bad enough that the majority opinion engages in judicial
activism to right what it perceives to be a wrong. It is even more unfortunate that
it does so when the record does not even support this perceived wrong. As
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discussed earlier, we do not have access to the gunshot video that Barnes claims his
counsel withheld from him and that was material to his case. But even if we
considered Barnes’s description of the gunshot video to conduct our analysis, the
existence of the gunshot video does not change any of the circumstances that were
already known to Barnes at the time that he pleaded guilty. The trial court properly
rejected his argument that the gunshot video mattered to his self-defense claim and
to his decision to plead guilty. Therefore, the trial court’s decision was not
arbitrary, unreasonable, or unconscionable and does not constitute an abuse of
discretion.
A. Barnes pleads guilty to involuntary manslaughter with the knowledge that the
incident was caught on camera
{¶ 58} Barnes was originally charged with one count of murder, one count
of voluntary manslaughter, three counts of felonious assault, and two counts of
discharging a firearm on or near a prohibited premises—all with firearm
specifications—due to his participation in a shootout at a gas station that left two
people injured and one person dead. Barnes faced the possibility of serving a
lifetime prison term.
{¶ 59} But from the beginning of his case, starting at his bail hearing,
Barnes claimed that he had acted in self-defense. One of his defense attorneys even
asserted on the record that Barnes was approached and confronted by Jeffrey
McLaurin while McLaurin had a gun in his hand—a claim that seems to have been
caught by one of the surveillance cameras at the gas station.
{¶ 60} However, eight months after his bail hearing and despite having a
self-defense claim, Barnes chose to plead guilty to one count of involuntary
manslaughter in exchange for the dismissal of all other counts and specifications.
This meant that Barnes exchanged his opportunity to present his self-defense claim
and the uncertainty of possibly being convicted of seven felony offenses, one of
which carried a lifetime prison term, for the certainty of being convicted of only
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one felony offense that carried no mandatory prison or jail time. And Barnes did
so with the knowledge that he had participated in the shootout and that the shootout
had been caught on camera.
B. Barnes moves to withdraw his guilty plea, but alters his reasoning throughout
the proceedings
{¶ 61} Within one month after pleading guilty to involuntary manslaughter,
Barnes moved to withdraw his guilty plea. He claimed that his decision to withdraw
his guilty plea was not simply a “change of heart.” Rather, Barnes maintained that
because the surveillance footage showed McLaurin running at Barnes with
McLaurin’s gun drawn, Barnes acted in self-defense.
{¶ 62} In his motion, Barnes does not mention that his attorneys had failed
to provide him with the gunshot video—rather, he claims that the evidence showed
that he was not the aggressor and that he had acted in response to McLaurin
escalating an argument with a gun. It was only in his supplemental motion filed a
week later that Barnes then claimed that he had “never viewed” the gunshot video
prior to pleading guilty. However, Barnes’s claim pertaining to the gunshot video
does not hold up.
{¶ 63} Not only did Barnes know that he had a self-defense claim when he
pleaded guilty, but he had seen the relevant videos that showed his interactions with
the deceased victim and with McLaurin. At Barnes’s November 15 hearing, Barnes
stated that he “didn’t get a chance to review all of the discovery.” He stated that
there “was a large portion of the videotapes that had not been disclosed to [him]
until after the plea deal.” But then, at Barnes’s December 18 hearing, he admitted
that he had viewed these videos. And this fact was confirmed by his previous
counsel, two experienced public defenders.
{¶ 64} Barnes pivoted and asserted that he had not seen the gunshot video
prior to entering his plea. Barnes maintained that because the gunshot video
“changed the fact who shot first,” had he seen that video, he never would have
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pleaded guilty. Barnes believed that the gunshot video proved that McLaurin shot
first, thereby solidifying his self-defense claim.
{¶ 65} This transition from focusing on the Heisa motion-to-withdraw
factors and not even mentioning the gunshot video in his initial motion to withdraw
his guilty plea to asserting that defense counsel did not show him “a large portion
of the videotapes,” then to defense counsel not showing him the gunshot video,
demonstrates that Barnes merely had buyer’s remorse or a change of heart. The
transition is indicative that the gunshot video was likely not the true reason that
Barnes moved to withdraw his plea. The gunshot-video argument mattered only
after his main arguments had been rejected by the trial court and his broad
evidentiary argument had been debunked. The trial court was well within its
discretion to deny a motion to withdraw a guilty plea on those grounds.
C. The gunshot video does not legitimize Barnes’s self-defense claim
{¶ 66} But even if the gunshot video as described in the record was the main
reason Barnes moved to withdraw his plea, which it was not, the gunshot video
does not legitimize Barnes’s self-defense claim. Especially not when considering
that Barnes had watched relevant surveillance footage prior to pleading guilty.
{¶ 67} To evaluate whether the gunshot video serves as a reasonable and
legitimate reason for Barnes to withdraw his guilty plea, it is necessary for us to
review what constitutes self-defense in Ohio. At the time that Barnes proffered his
guilty plea, a defendant was required to establish (1) that he was not at fault in
creating the situation, (2) that he believed that he was in imminent danger or great
bodily harm and that the only way to escape danger was the use of deadly force,
and (3) that he did not violate a duty to retreat. State v. Jackson, 22 Ohio St.3d 281,
283, 490 N.E.2d 893 (1986).
{¶ 68} Contrary to the majority opinion that “there was no evidence that
corroborated [Barnes’s] self-defense claim,” prior to pleading guilty, Barnes and
his counsel believed that surveillance footage showed that (1) McLaurin was the
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aggressor and (2) McLaurin approached Barnes and struck him with a gun, giving
Barnes a reasonable belief that he was in danger. Barnes watched the surveillance
footage with his attorneys. This evidence could corroborate his self-defense claim.
The gunshot video, which arguably indicated that McLaurin shot first would be
relevant only if Barnes believed that he was in danger after the initial shot was fired;
but Barnes claims that he believed he was in danger once McLaurin struck him with
a gun. Indeed, it is doubtful that the audio of a gun firing is more persuasive than
the surveillance video of the incident itself, especially since the audio was allegedly
caught by an inside camera.
{¶ 69} Thus, the trial court was not unreasonable in its belief that the
gunshot video did not legitimize Barnes’s self-defense claim. The trial court also
was not unreasonable in deciding that the gunshot video could not have changed
Barnes’s evaluation of his entire case. Especially because self-defense is about
escalation, not necessarily about who pulled the trigger first. State v. Thomas, 77
Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). Even one of Barnes’s former
attorneys would have still recommended that Barnes plead guilty to involuntary
manslaughter, a probational offense, rather than take a chance on his self-defense
claim at trial for murder. A review of the record in this case shows that the majority
opinion is wrong for determining that the gunshot video is enough by itself for
Barnes to be able to withdraw his guilty plea. Because the trial court did not abuse
its discretion, we should affirm the judgment of the Eighth District Court of
Appeals.
IV. Conclusion
{¶ 70} The majority opinion (1) oversteps its bounds, (2) ignores the
standard of review that this court developed 30 years ago, and (3) engages in
perceived error correction just to allow Barnes to withdraw his guilty plea. Because
this discretionary appeal resolves no conflict in the law, is not a matter of great
public interest, and does not resolve a constitutional question, it should have been
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deemed as improvidently accepted. And from the record on appeal, it is apparent
that the trial court did not abuse its discretion. Therefore, I must respectfully
dissent.
KENNEDY and DEWINE, JJ., concur in Parts II and III of the foregoing
opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank
Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Milton & Charlotte Kramer Law Clinic, Case Western Reserve University
School of Law, Andrew S. Pollis, and Joseph Shell, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Mathura J. Sridharan, Deputy Solicitor General, urging dismissal of the appeal as
having been improvidently accepted for amicus curiae, Ohio Attorney General
Dave Yost.
_________________
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