State v. Smith

[Cite as State v. Smith, 2022-Ohio-742.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-05
v.
RODNEY D. SMITH, JR., OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-06
v.
RODNEY D. SMITH, JR., OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-07
v.
RODNEY D. SMITH, JR., OPINION
DEFENDANT-APPELLANT.
Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-08
v.
RODNEY D. SMITH, JR., OPINION
DEFENDANT-APPELLANT.
Appeals from Hancock County Common Pleas Court
Trial Court Nos. 2018 CR 55, 2020 CR 16, 2017 CR 349 and 2015 CR 349
Appeals Dismissed in Part and Judgments Affirmed in Part
Date of Decision: March 14, 2022
APPEARANCES:
Michael H. Stahl for Appellant
Phillip A. Riegle for Appellee
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Rodney D. Smith, Jr. (“Smith”), appeals the
December 30, 2020 judgment entry of the Hancock County Court of Common Pleas
denying his motion to withdraw his guilty plea. For the reasons set forth below, we
dismiss in part and affirm in part.
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{¶2} On December 29, 2015, in case number 2015-CR-349 (hereinafter
“2015 case”), Smith was indicted by the Hancock County Grand Jury on two
criminal counts of aggravated possession of controlled substances in violation of
R.C. 2925.11(A), both fifth-degree felonies. (Case No. 2015-CR-349, Doc. No. 1).
On April 21, 2016, Smith entered guilty pleas to both counts in the indictment, and
the trial court found him eligible for intervention in lieu of conviction (“ILC”).
(Case No. 2015-CR-349, Doc. Nos. 16, 18). (See Case No. 2015-CR-349, Doc.
Nos. 8, 10, 11, 13, 14, 15). The trial court held Smith’s guilty pleas in abeyance,
and granted his request for ILC placing Smith as if under community control
sanctions. (Id.).
{¶3} Nevertheless, Smith had a series of probation violations from June 2,
2017 through October 3, 2017 in the 2015 case. (Case No. 2015-CR-349, Doc. Nos.
33, 34, 36, 40, 41, 42, 47). Smith admitted to the violations and requested a
presentence investigation report to be prepared in anticipation of his sentencing
hearing.1 (Doc. No. 47).
{¶4} However, prior to being sentenced in his 2015 case, Smith was indicted
on November 14, 2017, in case number 2017-CR-349 (“2017 case”, hereafter), for
failing to appear (“FTA”) for a court hearing (in his 2015 case) in violation of R.C.
1
The judgment entry of conviction was filed on November 14, 2017. (Case No. 2015-CR-349, Doc. No.
47).
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2937.29 and R.C. 2937.99(A), a fourth-degree felony.2 (Case No. 2017-CR-349,
Doc. No. 1). On January 11, 2018, Smith entered a guilty plea to the FTA.3 (Case
No. 2017-CR-349, Doc. Nos. 11, 13).
{¶5} Thereafter, and prior to being sentenced on the 2015 and 2017 cases,
Smith was indicted by the Hancock Grand Jury in case number 2018-CR-55 (“2018
case”, hereafter) on February 27, 2018 on one count of aggravated possession of a
controlled substance in violation of R.C. 2925.11(A), a fifth-degree felony.4 (Case
No. 2018-CR-55, Doc. No. 1). On March 8, 2018, Smith withdrew his plea of not
guilty and entered a guilty plea in his 2018 case. (Mar. 8, 2018 Tr. at 10-11); (Case
No. 2018-CR-55, Doc. No. 10). That same day, Smith and the State presented a
joint sentencing recommendation to the trial court in his 2015, 2017, and 2018 cases.
Smith was sentenced to a five-year term of community control sanctions with
reserved prison terms in his sentences in his 2015, 2017, and 2018 cases,
respectively. (Id.); (Case No. 2015-CR-349, Doc. No. 57); (Case No. 2017-CR-
349, Doc. No. 17); (Case No. 2018-CR-55, Doc. No. 15).
2
The facts supporting the State’s indictment against Smith (in his 2017 case) are his failure to appear before
the Hancock County Common Pleas Court for an ILC hearing scheduled on September 28, 2017 after his
release from jail on an own recognizance bond. (Case No. 2017-CR-349, Doc. No. 1). (See 2015-CR-349,
Doc. Nos. 41, 47).
3
The judgment entry of conviction was filed on February 6, 2018. (Case No. 2017-CR-349, Doc. No. 13).
4
The facts supporting the State’s indictment against Smith (in his 2018 case) for Smith’s Aggravated
Possession of controlled substances are that an offense was committed on or around June 2, 2017 and while
Smith was under supervision in his 2015 case. (Case No. 2018-CR-55, Doc. No. 1). (See 2015-CR-349,
Doc. No. 33).
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{¶6} On January 21, 2020, Smith was indicted in case number 2020-CR-16
(hereinafter “2020 case”) on Count One for aggravated trafficking in drugs in
violation of R.C. 2925.03(A), a third-degree felony, and Count Two of aggravated
trafficking in drugs in violation of R.C. 2925.03(A), a fourth-degree felony. (Case
No. 2020-CR-16, Doc. No. 1).
{¶7} On October 5, 2020, pursuant to a negotiated plea agreement, Smith
withdrew his pleas of not guilty and entered guilty pleas to an amended Count One
and Count Two (as indicted) for aggravated trafficking in drugs in violation of R.C.
2925.03(A), now both fourth-degree felonies. (Case No. 2020-CR-16, Doc. Nos.
46, 48). The trial court accepted his pleas and continued Smith’s case for
sentencing.
{¶8} On November 5, 2020, the State filed a notice requesting a hearing on
the basis that Smith had violated the terms and conditions of his community control
sanctions in his 2015, 2017, and 2018 cases. (Case No. 2015-CR-349, Doc. Nos.
84, 85, 86); (Case No. 2017-CR-349, Doc. Nos. 44, 46, 47); (Case No. 2018-CR-
55, Doc. Nos. 44, 46, 47). At the hearing scheduled on November 9, 2020, Smith
entered admissions to community control violations in his 2015, 2017, and 2018
cases. (Case No. 2015-CR-349, Doc. No. 88); (Case No. 2017-CR-349, Doc. No.
49); (Case No. 2018-CR-55, Doc. No. 49); (Nov. 9, 2020 Tr. at 3-12). (See Case
No. 2020-CR-16, Doc. No. 61).
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{¶9} Following the trial court’s acceptance of Smith’s admissions in those
cases, the trial court proceeded to a sentencing hearing (as to all four cases). At that
hearing and prior to being sentenced by the trial court, Smith made an oral motion
to withdraw his guilty plea in his 2020 case. (Nov. 9, 2020 Tr. at 25-30); (Case No.
2020-CR-16, Doc. No. 51). The State did not oppose Smith’s oral motion. (Nov.
9, 2020 Tr. at 26, 34). Nevertheless, the trial court immediately entertained the
arguments of the parties as to the reasons for the withdrawal. At the conclusion of
arguments, Smith’s attorney requested to supplement the record with a written
presentence motion to withdraw his guilty plea. The trial court granted his request.
(Case No. 2020-CR-16, Doc. No. 51); (Nov. 9, 2020 Tr. at 45, 47). (See also Case
No. 2015-CR-349, Doc. No. 88); (Case No. 2017-CR-349, Doc. No. 49); (Case No.
2018-CR-55, Doc. No. 49). Smith submitted his written motion to withdraw his
guilty pleas to the trial court on November 12, 2020. (Case No. 2020-CR-16, Doc.
No. 53). On December 30, 2020, the trial court denied Smith’s oral and written
motions to withdraw his guilty pleas in his 2020 case. (Case No. 2020-CR-16, Doc.
No. 61).
{¶10} On February 8, 2021, the trial court proceeded to sentencing on all
four cases. (Feb. 8, 2021 Tr. at 3); (Case No. 2015-CR-349, Doc. No. 100); (Case
No. 2017-CR-349, Doc. No. 59); (Case No. 2018-CR-55, Doc. No. 59); (Case No.
2020-CR-16, Doc. No. 67). First, the trial court revoked Smith’s community control
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sanctions, terminated him unsuccessfully, and sentenced him to an 11-month prison
term on both counts in his 2015 case to be served concurrent to one another and
concurrent to the prison term imposed in case number 2018-CR-55. (Id. at 25-26);
(Case No. 2015-CR-349, Doc. No. 100). (See also Case No. 2018-CR-55, Doc. No.
59). Next, the trial court sentenced Smith in his 2018 case to an 11-month prison
term to be served concurrently to the sentence imposed in case number 2015-CR-
349. (Id.); (Case No. 2018-CR-55, Doc. No. 59). (See also Case No. 2015-CR-349,
Doc. No. 100). Then, the trial court sentenced Smith to a 17-month prison term in
his 2017 case to be served consecutively to the prison terms imposed in case number
2020-CR-16. (Id. at 26); (Case No. 2017-CR-349, Doc. No. 59). (See also Case
No. 2020-CR-16, Doc. No. 67). Finally, in his 2020 case, the trial court sentenced
Smith to serve (two) 17-month prison terms as to amended Count One and indicted
Count Two to be served consecutively to one another and consecutively to the prison
term imposed in case number 2017-CR-349 for a total aggregate prison term (in all
cases) of 51-months. (Id. at 26-27); (Case No. 2020-CR-16, Doc. No. 67). (See
also Case No. 2017-CR-349, Doc. No. 59).
{¶11} Smith filed timely notices of appeal in his 2015, 2017, 2018, and 2020
cases, which we have consolidated. Smith raises one assignment of error for our
review.
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Appeals 5-21-05, 5-21-07, and 5-21-08
{¶12} Before we address the merits of Smith’s appeals, we note that Smith
(in his brief) does not present any arguments challenging the voluntariness of his
pleas or admissions in his 2015, 2017, and 2018 cases. Rather, his assignment of
error only challenges the scope of his negotiated plea agreement and the
voluntariness of his guilty pleas in his 2020 case. Since there are no issues raised
or error assigned below in the 2015, 2017, and 2018 cases, those appeals are
dismissed. See State v. Taylor, 3d Dist. Seneca Nos. 13-19-21 and 13-19-22, 2019-
Ohio-4719, ¶ 8. Therefore, we will only consider Smith’s appeal as it pertains to
his 2020 case in appellate case number 05-21-06.
Appeal 5-21-06
Assignment of Error
The trial court erred in not granting Mr. Smith’s unopposed pre-
sentence motion to withdraw his plea because he misunderstood
the terms of the agreement with the prosecution.
{¶13} In his first assignment of error, Smith argues that the trial court erred
by denying his presentence motion to withdraw his guilty plea in his 2020 case. In
particular, Smith argues that the trial court should have granted his request to
withdraw his guilty pleas since he misunderstood the scope of the negotiated plea
agreement, and because his motion was unopposed.
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Standard of Review
{¶14} Appellate review of the trial court’s denial of a Crim.R. 32.1 motion
to withdraw a guilty plea is limited to whether the trial court abused its discretion.
State v. Artis, 3d Dist. Logan Nos. 8-19-52 and 8-19-53, 2020-Ohio-4018, ¶ 10; see
State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. An abuse
of discretion suggests the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Artis at ¶ 10, citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Analysis
{¶15} Recently, the Supreme Court of Ohio emphasized the “necessity of
placing” an underlying plea agreement on the record. See State v. Azeen, 163 Ohio
St.3d 447, 2021-Ohio-1735, ¶ 36, citing Crim.R. 11(F). Here, Smith’s argument
relates to the scope of the negotiated plea agreement in his 2020 case.
{¶16} The record reveals the terms of the agreement that was placed on the
record (in open court) at Smith’s change-of-plea hearing are as follows:
[Trial Court] It’s my understanding then, from talking
with counsel, that the parties have today
reached agreements. They wish to
proceed with a change of plea.
Mr. Kelley, is that still your client’s
intention?
[Smith’s Trial Counsel] May it please the Court, it is Your Honor.
I went back over with him the plea
documents. The, essentially, slightly new
deal, understanding that before the Court
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was -- that the Prosecutor was going to
defer, but now they’re going to be free to
recommend, based on the PSI, which we
understand that slight difference, and my
client is prepared to proceed with the
plea, based upon that recommendation.
[Trial Court] All right. Ms. Limerick, you have the
11(F) negotiations as you understand
them?
[State] Yes, Your Honor. Please the Court: At
this time, I would ask for leave of Court
to amend count one in the indictment
from a charge of aggravated trafficking in
drugs, a felony of the third degree, to that
of aggravated trafficking in drugs, a
felony of the fourth degree, in violation of
the same code section, 2925.03(A), but by
striking reference to this happening in the
vicinity of a juvenile.
It is my understanding the Defendant
would consent to that amendment, waive
any defects in the amendment process and
all allied rights, and will be tendering a
guilty plea to the amended count one, as
well as a guilty plea to count two, a charge
of aggravated trafficking in drugs, a
felony of the fourth degree.
As already stated, the parties will be
requesting a PSI, and the parties are free
to argue in the appropriate sentence.
The Defendant also agrees to admit to any
related probation violations and make
$100 in reimbursement to the METRICH
Drug Task Force.
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[Trial Court] $100, Ms. Limerick?
[State] Yes, sir.
[Trial Court] Okay, Mr. Kelley?
[Smith’s Trial Counsel] Yes, Your Honor. That is our
understanding of the agreement, and we
are ready to proceed.
[Trial Court] All right. Mr. Smith was that your
understanding about how you were going
to proceed today?
[Smith] Yes.
(Emphasis added.) (Oct. 5, 2020 Tr. at 3-6).
{¶17} At Smith’s sentencing hearing on November 9, 2020 (following his
admissions to his community-control-sanction violations and the State’s and
defense counsel’s arguments as to sentencing in all four cases), Smith made an oral
motion to withdraw his guilty pleas. (Nov. 9, 2020 Tr. at 44-45). He told the trial
court that he misunderstood that the State was going to “argue” for prison terms
rather than probation. (Id.). In response, the trial court stopped the sentencing
hearing and entertained arguments giving the parties an opportunity to present
evidence in support of their respective positions. Thereafter, Smith’s counsel
submitted a supplemental written motion to withdraw his guilty pleas specifically
asserting that the first factor (i.e., as to prejudice) and the seventh factor (i.e., his
basis for the motions) favored his request. (Case No. 2020-CR-16, Doc. No. 53).
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{¶18} Here, the trial court construed Smith’s oral and written motions as
post-sentence motions to withdraw his guilty pleas. (Case No. 2020-CR-16, Doc.
No. 61). The trial court based this determination upon the timing of the motions
being that they were made at the sentencing hearing and after the State and defense
counsel asserted their positions as to sentence. (Id.). However, when ultimately
considering the motion in its judgment entry, the trial court evaluated the motion
through the lense of State v. Ferdinandsen, 3d Dist. Hancock No. 5-16-08, 2016-
Ohio-7172, a presentence-motion-to-withdraw-a-guilty-plea case. Nevertheless,
the trial court denied Smith’s motions both as presentence and post-sentence
motions to withdraw his guilty pleas. (Case No. 2020-CR-16, Doc. No. 61).
{¶19} Moreover, on appeal, Smith acknowledges and raises no error with
respect to the trial court’s construction of his motions as post-sentence motions to
withdraw. Rather, he directs our attention to the trial court’s analysis of those
reasonable-and-legitimate-basis factors. (See Appellant’s Brief at 4). Thus, in our
view, Smith has waived any potential error under Crim.R. 52(B) relating to the trial
court’s construction of his motion as a post-sentence motion to withdraw. See State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23.
Presentence and Post-sentence Motions to Withdraw Guilty Pleas
{¶20} Crim.R. 32.1 provides that a defendant is permitted to file a
presentence motion to withdraw a guilty plea. The general rule is that a trial court
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should freely grant such a motion. State v. Xie, 62 Ohio St.3d 521, 526 (1992); State
v. Spivey, 81 Ohio St.3d 405, 415 (1998). However, defendants do not have an
absolute right to withdrawal of a guilty plea prior to sentencing. Xie, paragraph one
of syllabus; Spivey at 415. Instead, a trial court must hold a hearing to determine
whether a “reasonable and legitimate basis” exists to allow a defendant to withdraw
that plea. Id.; Id.{¶21} A post-sentence motion to withdraw a guilty plea, in contrast, occurs
after sentence is imposed, and the defendant bears burden of demonstrating a
“manifest injustice”. State v. James, 3d Dist. Hancock No. 5-19-30, 2020-Ohio-
720, ¶ 11, citing State v. Smith, 49 Ohio St.3d 261 (1977), paragraph one of the
syllabus. “[A] post[-]sentence withdrawal motion is allowable only in extraordinary
cases.” Smith at 264. “‘A “manifest injustice” comprehends a fundamental flaw in
the path of justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably
available to him or her.’” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010-
Ohio-1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999
WL 957746, *2 (Aug. 20, 1999). “A hearing on a post-sentence motion to withdraw
guilty plea is not mandatory. It is required only ‘if the facts alleged by the defendant
and accepted as true would require the court to permit that plea to be withdrawn.’”
State v. Moore, 3d Dist. Allen No. 1-11-29, 2012-Ohio-657, ¶ 13, quoting State v.
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Hamed, 63 Ohio App.3d 5, 7 (8th Dist.1989). Put more plainly, before a defendant
is entitled to a hearing on a post-sentence motion to withdraw guilty plea, the trial
court must conclude that the allegations raised by the defendant, if taken as true,
demonstrates a “manifest injustice”. Moore at ¶ 13.
{¶22} Based on our review of the record, we conclude that Smith’s motions
are presentence motions to withdraw his guilty pleas. Hence, we consider the
following factors when reviewing a trial court’s decision to grant or deny a
presentence motion to withdraw a plea. Those factors are: (1) whether the
withdrawal will prejudice the prosecution; (2) the representation afforded 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 sentence; and (9)
whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Maney, 3d Dist. Defiance Nos. 4-12-16 and 4-12-17, 2013-Ohio-2261, ¶ 18,
citing State v. Griffin, 141 Ohio App.3d 551, 554 (7th Dist.2001) and State v. Fish,
104 Ohio App.3d 236, 240 (1st Dist.1995), overruled on other grounds, State v.
Sims, 1st Dist. Hamilton No. C-160856, 2017-Ohio-8379, ¶ 10. No one factor is
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determinative and each factor must be weighed by the trial court. Griffin at 554;
Fish at 240.
{¶23} With these factors in mind, we are cognizant that Ohio Courts have
consistently held that a “change of heart” is not sufficient justification to withdraw
a plea. State v. Davis, 2d Dist. Montgomery No. 18172, 2001 WL 10037, ¶ 2 (Jan.
5, 2001), citing State v. Drake, 73 Ohio app.3d 640, 645, 598 N.E.2d 115 (8th
Dist.1991). See also State v. Mooty, 2d Dist. Greene No. 2000 CA 72, 2001-Ohio-
1464, *4 (defendant’s motion to withdraw his guilty plea “was based solely on an
unexpected incarceration sentence, a mere change of heart,” and as such was an
insufficient rationale to withdraw a guilty plea). State v. Griffin, 8th Dist. Cuyahoga
No. 82832, 2004-Ohio-1246, ¶ 18, citing State v. Holloman, 2d Dist. Greene No.
2000CA82, *3 (June 22, 2001) and Mooty at *4.
{¶24} In our review of the factors, we note Smith raised reasonable-and-
legitimate-basis factors one and seven in his written motion. However, the trial
court considered all of the factors in reaching its determination. Indeed, our
examination of the reasonable-and-legitimate-basis factors supports the trial court’s
denial of Smith’s presentence motions to withdraw his guilty pleas. Therefore, for
the reasons that follow, we conclude that the decision of the trial court was not
unreasonable, arbitrary, or unconscionable.
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Factor One: Prejudice to the State
{¶25} Prejudice to the State is not presumed, and this factor, “is often
classified as the most important factor in the balancing test.” State v. Cuthbertson,
139 Ohio App. 3d 895, 899 (7th Dist.2000), citing Fish, 104 Ohio App.3d at 240.
Here, Smith argues that there was no prejudice to the State because no material
witnesses were unavailable, and there were no speedy-trial issues. Undeniably, the
State did not argue that it has suffered any prejudice as a result of Smith’s request.
Hence, we conclude the first factor weighs in favor of Smith.
Factor Two: Representation afforded to Defendant
{¶26} Smith argues that factor two weighs in his favor. We disagree. Smith
alludes that his trial counsel’s performance was deficient by characterizing the
change in Smith’s plea agreement as a “slight difference”. Smith attempts to bolster
his argument by highlighting that there had been tension in the attorney-client
relationship. Indeed, the trial court addressed Smith’s concerns and his desire to
privately retain counsel at his change-of-plea hearing and prior to his Crim.R. 11
colloquy. (Oct. 5, 2020 Tr. at 5-7). Smith stated that he had met with two different
attorneys, but decided not to hire them. (Id. at 7). Thereafter, the trial court inquired
as to Smith and his court-appointed counsel’s relationship as follows:
[Trial Court] Okay. So it was your intention then to proceed
with Mr. Kelley today?
[Smith] Yes.
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[Trial Court] Okay. Understanding that, again, has that left
you with enough time to discuss the issues
related to this case which [sic] Mr. Kelley?
[Smith] Yes. We discussed everything.
[Trial Court] Okay. So, and I know you had some additional
time this morning to discuss the proposed plea,
the changes in the -- in the offer from the State
of Ohio, you had time to go over all of that with
him?
[Smith] Yes, sir.
[Trial Court] Okay. And again, has he answered all of your
questions to your satisfaction?
[Smith] Yes, sir.
[Trial Court] Anything else you need time to discuss with him,
before I go any further?
[Smith] No, sir. I don’t think so.
(Id. at 7-8). Then, the trial court addressed Smith regarding the nature of Smith’s
charges and the maximum penalties involved for each offense, which Smith
acknowledged he understood. (Id. at 25-27, 31-32). We conclude that this factor
weighs against withdrawal of Smith’s guilty pleas.
Factors Three & Eight: Extent of the hearing held pursuant to Crim.R. 11 &
Defendant’s understanding of the nature of the charges and potential sentences
{¶27} Smith argues that the third and eighth factors weigh in his favor. He
asserts that these factors go to the core of his understanding of the plea agreement
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(i.e., his mistake of fact) that did not become apparent until the execution of the
agreement at his sentencing hearing. Thus, his request was not a “change of heart”.
For ease of discussion, we will address the third and eighth factors together, since,
they relate to the change-of-plea hearing and Crim.R. 11 colloquy.
{¶28} The trial court conducted an appropriate change-of-plea hearing. (Id.
at 1-53). At that hearing, the trial court engaged in a thorough Crim.R. 11 colloquy
with Smith informing him of all the rights he was waiving in pleading guilty to the
charges. (Id. at 22-42). Further, the trial court gave Smith a detailed explanation of
the charges against him, the consequences of his plea to those charges, and ample
opportunities to ask questions. (Id. at 22-42). Lastly, the trial court informed Smith
that he was giving up his right to a jury trial, his right to confront witnesses, his right
to subpoena witnesses to appear on his behalf, his privilege against self-
incrimination, and the right to have the State prove all the elements of each offense
beyond a reasonable doubt. (Id. at 42-47). Indeed, the trial court provided Smith
with a proper change-of-plea hearing making no error in its Crim.R. 11 colloquy or
in assessing Smith’s understanding of the nature of his charges and potential
sentences. Upon our review, we conclude that factors three and eight weigh against
Smith’s withdrawal request.
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Factor Four: Extent of motion to withdraw hearing
{¶29} Smith presents no argument regarding the fourth factor. Certainly,
both Smith and the State were given the opportunity to address the trial court and
present evidence. What’s more, the trial court permitted Smith’s counsel to submit
a supplemental written motion at a later date–deferring imposition of sentence.
Consequently, we conclude this factor also weighs against withdrawal.
Factors Five & Seven: Trial court’s full and fair consideration of the motion &
stated reasons for the motion
{¶30} Smith raises no arguments relating to the fifth and seventh factors in
his brief. However, he did assert arguments related to factor seven to the trial court
by arguing that he (Smith) is a lay person untrained in legalese. Indeed, in our view
of the record and based upon our conclusion as to the fourth factor, the trial court
gave full and fair consideration to Smith’s oral and written motions.
Notwithstanding Smith’s argument that he is a lay person, Smith was (at all times)
represented by counsel with whom he discussed “everything” and with whom he
was satisfied. (Id. at 7-8). Thus, we conclude that both factors five and seven weigh
against withdrawal.
Factor Six: Reasonableness of timing of the motion
{¶31} Smith did not specifically address the sixth factor in his brief. He did,
however, address aspects of the sixth factor in his arguments made relative to factors
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three and eight. Given the premise of Smith’s argument, he would appear to have
raised his motion to withdraw his guilty plea at the earliest available time. We
conclude that this factor weighs in favor of the Smith.
Factor Nine: Whether the accused was perhaps not guilty or had a complete defense
to the charges
{¶32} It is important to note that Smith never promoted his actual innocence
or that he had a complete defense to his case. Instead, he raises a mistake-of-fact
argument. This factor weighs against withdrawal of Smith’s guilty pleas.
Conclusion
{¶33} Upon our review of the reasonable-and-legitimate-basis factors as to
whether the trial court erred by denying Smith’s motions to withdraw his pleas, we
conclude that the trial court did not abuse its discretion in denying such requests.
{¶34} Accordingly, Smith’s sole assignment of error is overruled.
{¶35} For the reasons stated above, we dismiss appellant’s appeals related to
appellate case numbers 05-21-05, 05-21-07, and 05-21-08 and having found no error
prejudicial to the appellant herein in the particulars assigned and argued in appellate
case number 05-21-06, affirm the judgment of the trial court in appellate case
number 5-21-06.
Appeals Dismissed in Part, and
Judgments Affirmed in Part
SHAW and WILLAMOWSKI, J.J., concur.
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