[Cite as State v. Bush, 2016-Ohio-5536.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :   Appellate Case Nos. 2015-CA-39 /
         Plaintiff-Appellee                      :   2015-CA-40 / 2015-CA-41 / 2015-CA-
                                                 :   42
 v.                                              :
                                                 :   Trial Court Case Nos. 13-CR-718 /
 ARIEL BUSH                                      :   14-CR-19 / 14-CR-12 / 14-CR-152
                                                 :
         Defendant-Appellant                     :   (Criminal Appeal from
                                                 :    Common Pleas Court)

                                            ...........

                                           OPINION

                            Rendered on the 26th day of August, 2016.

                                            ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

ROBERT K. HENDRIX, Atty. Reg. No. 0037351, Peterson and Peterson, 87 South
Progress Drive, Xenia, Ohio 45385
      Attorney for Defendant-Appellant

                                           .............

FAIN, J.

        {¶ 1} Defendant-appellant Ariel Bush appeals from his conviction and sentence for

three counts of Violating a Protection Order, one count of Domestic Violence, one count
                                                                                           -2-


of Possession of Cocaine and one count of misdemeanor Assault. Bush contends that

the trial court abused its discretion by failing to hold a hearing on his pre-sentence request

to withdraw his guilty plea. The State contends that Bush was given an immediate hearing

at the time he made the request to withdraw his plea during the sentencing hearing.

       {¶ 2} We agree that under the facts presented in this case, Bush was entitled to

a hearing on the request to withdraw his plea, and we conclude that the sentencing

hearing did not meet the requirements of due process required for consideration of his

request.   Therefore, the judgment of the trial court is Reversed, and this cause is

Remanded for the trial court to conduct a hearing on Bush’s motion to withdraw his plea.



                              I. The Course of Proceedings

       {¶ 3} In Case No. 13-CR-718, Bush was indicted on one count of Domestic

Violence, a felony of the fourth degree, in violation of R.C. 2919.25(A). In Case No. 14-

CR-12, Bush was indicted on one count of Felonious Assault, a felony of the second

degree, in violation of R.C. 2903.11(A), one count of Domestic Violence, a felony of the

fourth degree, in violation of R.C. 2919.25(A), one count of Trafficking in Cocaine, in

violation of R.C. 2925.03(A)(2), one count of Possession of Cocaine, a felony of the fourth

degree, in violation of R.C. 2925.11(A), two counts of Violating a Protection Order,

felonies of the fifth degree, in violation of R.C. 2919.27(A)(1), and one count of Menacing

by Stalking, a felony of the fourth degree, in violation of R.C. 2903.211(A)(1). In Case

No. 14-CR-19, Bush was indicted on one count of Violating a Protection Order, a felony

of the fifth degree, in violation of R.C. 2919.27(A)(1). In Case No. 14-CR-83, Bush was

indicted on one count of Violating a Protection Order, a felony of the fifth degree, in
                                                                                          -3-


violation of R.C. 2919.27(A)(1). In Case No. 14-CR-152, Bush was indicted on one count

of Violating a Protection Order, a felony of the fifth degree, in violation of R.C.

2919.27(A)(1). All cases were consolidated for trial.

       {¶ 4} Pursuant to a plea agreement, the charge in 13-CR-718 was reduced to

misdemeanor Assault, counts one, three, six and seven in 14-CR-12 were dismissed, and

the one count in Case No. 14-CR-83 was dismissed. Bush entered a plea of guilty to the

remaining three counts in Case No. 14-CR-12, and to the counts in 14-CR-19 and 14-

CR-152. At the plea hearing, the trial court accepted the plea, found Bush guilty of each

offense to which the guilty plea was entered, and set the matter for sentencing.

       {¶ 5} Bush did not appear for the sentencing hearing, and a capias was issued

for his arrest. Five months later, Bush was apprehended in the State of Maryland and

returned to Ohio for sentencing. At the sentencing hearing, defense counsel advised the

court that his client wanted to discharge him and have a public defender appointed to

pursue a motion to withdraw his plea in three of the four cases. Before Bush was given

an opportunity to testify or speak, the trial court denied the request. T. at pg. 9. When the

court asked Bush if he had anything to say before sentencing, Bush explained that the

reason for his desire to withdraw the plea was his belief that the victim of some of the

offenses had changed her story and that he had other information about the offense that

would provide a defense. He also stated that he had paperwork to prove everything, but

no documents were entered into evidence, and no witnesses were called. The trial court

stated that the request to withdraw his plea was not well-taken. T. at pg. 11.

       {¶ 6} Bush was sentenced to serve six months in prison for the misdemeanor

Assault charge in Case No. 13-CR-718, to be served concurrently with all other
                                                                                        -4-


sentences.    In Case No. 14-CR-12, Bush was sentenced to eighteen months in prison

for count two (Domestic Violence), eighteen months for count four (Possession of

Cocaine), and twelve months for count five (Violating a Protection Order). In Case No.

14-CR-19, Bush was sentenced to serve 12 months in prison for one count of Violating a

Protection Order, and 12 months for another charge of Violating a Protection Order in

Case No. 14-CR-152. The prison sentences imposed in 14-CR-12, 14-CR-19 and 14-

CR-152 were ordered to be served consecutively, for a total prison term of six years.

      {¶ 7} From the judgment of the trial court, Bush appeals.



                                 II. Standard of Review

      {¶ 8} The only issue raised by Bush involves the trial court’s decision to overrule

a motion to withdraw his guilty plea, without a hearing. We review the trial court's ruling

on a pre-sentence motion to withdraw a plea for an abuse of discretion. State v. Warrix,

2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 28, citing State v. Massey, 2d Dist.

Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 10; State v. DeJesus, 2d Dist. Greene

No. 2015-CA-4, 2015-Ohio-4111, ¶ 16.

      {¶ 9} We have held that a trial court abuses its discretion when the court exercises

its discretion in a manner that is grossly unsound, unreasonable, illegal, or unsupported

by the evidence. State v. Woods, 2d Dist. Clark No. 2015-CA-75, 2016-Ohio-1103, ¶ 10.

“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248

(1985). A decision is unreasonable if there is no sound reasoning process that would

support that decision. AAAA Enterprises, Inc. v. River Place Community Urban
                                                                                       -5-

Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).



   III. Trial Court Abused its Discretion by Failing to Conduct a Hearing on the

                              Motion to Withdraw a Plea

      {¶ 10} For his sole assignment of error, Bush raises the following issue for review:

             WHERE A DEFENDANT, PRIOR TO SENTENCING INDICATES

      TO THE TRIAL COURT, THROUGH COUNSEL, A DESIRE TO

      WITHDRAW HIS GUILTY PLEA, IS THE TRIAL COURT REQUIRED TO

      HOLD A HEARING TO DETERMINE WHETHER THERE IS A

      LEGITIMATE BASIS FOR THE MOTION TO WITHDRAW?

      {¶ 11} In evaluating whether a trial court has abused its discretion in overruling a

motion to withdraw a plea, we have reviewed the following nine factors set forth in State

v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995):

             (1) whether the accused is represented by highly competent counsel,

      (2) whether the accused was given a full Crim.R. 11 hearing before entering

      the plea, (3) whether a full hearing was held on the motion, (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 sets out

      specific reasons for the withdrawal, (7) whether the accused understood the

      nature of the charges and possible penalties, (8) whether the accused was

      perhaps not guilty of or had a complete defense to the charge or charges,

      and (9) whether the state is prejudiced by withdrawal of the plea. Massey

      at ¶ 11; State v. Young, 2d Dist. Greene No. 2003 CA 89, 2004-Ohio-5794,
                                                                                          -6-


       ¶ 11

              In considering these factors, the trial court employs a balancing test;

       no single factor is dispositive. State v. Preston, 2d Dist. Montgomery No.

       25393, 2013-Ohio-4404, ¶ 20. The ultimate question for the trial court is

       whether there is a “reasonable and legitimate basis for the withdrawal of the

       plea.” [State v.] Xie, 62 Ohio St.3d [521, 527, 584 N.E.2d 715 (1992)]. We

       have repeatedly stated that a “change of heart” is an insufficient justification

       for the withdrawal of a plea. E.g., Massey at ¶ 10; DeJesus at ¶ 16; State v.

       Oglesby, 2d Dist. Montgomery No. 26251, 2015-Ohio-2557, ¶ 14; State v.

       Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849.

State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶¶ 29-30.

       {¶ 12} Bush argues that the trial court abused its discretion by failing to conduct

a hearing on his motion to withdraw his plea. The State argues that a hearing was

conducted at the time the motion was made, prior to sentencing. Since the ultimate

question is whether Bush has a “reasonable and legitimate basis” to withdraw his plea,

other than a change of heart, we examine the record made at the sentencing hearing to

determine if Bush was given an adequate opportunity to establish the factual basis for his

motion. Although Bush was given an opportunity to explain the basis for his motion, he

was not provided the opportunity to give sworn testimony, and neither defense counsel

nor the prosecutor was given any opportunity to present evidence. Bush referred to

documents as evidence for his position, but he was not given the opportunity to present

any documentary evidence. “It is axiomatic that such hearing must comport with the

minimum standards of due process, i.e., meaningful notice and an opportunity to be
                                                                                         -7-

heard.” State v. Robinson, 8th Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 24, citing

Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

       {¶ 13} Bush’s factual assertions focused on one of the victim’s alleged recantation

of certain facts she had alleged concerning the domestic dispute, but Bush was not given

any opportunity to call any witnesses to develop or verify his factual allegations. Although

it is not clear whether his factual allegations would provide Bush with a valid defense to

the charges, this lack of clarity is the very reason why a full evidentiary hearing was

necessary. On this record, it is not possible for us to determine whether the reason for

Bush’s desire to withdraw his plea was merely a change of heart, or based on a

reevaluation of available valid defenses because of a change in witness testimony.

       {¶ 14} Accordingly, we find that the trial court abused its discretion by failing to

postpone the sentencing hearing and to set the request to withdraw the plea for an

evidentiary hearing prior to sentencing. Bush’s sole assignment of error is sustained.



                                     IV. Conclusion

       {¶ 15} Bush’s sole assignment of error having been sustained, the judgment of the

trial court is Reversed, and this cause is Remanded for an evidentiary hearing on Bush’s

motion to withdraw his plea.

                                     .............

DONOVAN, P.J., and FROELICH, J., concur.

Copies mailed to:

Megan M. Farley
Robert K. Hendrix
Hon. Richard J. O’Neill
