[Cite as State v. Keiner, 2016-Ohio-3294.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Sheila G. Farmer, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 15CA016
MICHAEL A. KEINER                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Holmes County
                                                   Court of Common Pleas, Case No.
                                                   14CR005

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            June 3, 2016



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant
STEPHEN D. KNOWLING                                LUKE T. BREWER
Prosecuting Attorney                               88 South Monroe Street
164 East Jackson                                   Millersburg, OH 44654
Millersburg, OH 44654
[Cite as State v. Keiner, 2016-Ohio-3294.]


Gwin, J.,

        {¶1}     Appellant appeals the October 8, 2015 judgment entry of the Holmes

County Court of Common Pleas denying his motions to withdraw plea. Appellee is the

State of Ohio.

                                             Facts & Procedural History

        {¶2}     On January 13, 2014, appellant was indicted with two counts of theft in

violation of R.C. 2913.02(A)(2) and R.C. 2913.02(B)(2). Appellant was arraigned on

January 16, 2014 and appeared with Attorney Knowlton, his retained counsel. Attorney

Knowlton represented appellant throughout the proceedings.

        {¶3}     Appellant entered a plea of guilty on April 17, 2014. In exchange for his

plea of guilty to one count of theft, appellee agreed to dismiss the second count of theft.

Appellant signed the “plea of guilty” form on the same day, which provided as follows: he

understood the maximum penalty was twelve (12) months in prison; he was satisfied with

his attorney’s advice and competence; he understood the nature of charges and the

possible defenses; no threats or promises were made to him in exchange for his plea; he

entered his plea knowingly, intelligently, and voluntarily; and there was no agreement as

to sentencing.

        {¶4}     The trial court entered a judgment entry on April 17, 2014. The judgment

entry provided that appellant entered a plea of guilty to one count of theft, a fifth degree

felony, and the trial court granted appellee’s motion to dismiss the second theft charge.

In the judgment entry, the trial court stated appellant was advised of all constitutional

rights and made a knowing, voluntarily, and intelligent waiver of his rights pursuant to

Criminal Rule 11.         The trial court accepted appellant’s plea, found appellant guilty,
Holmes County, Case No. 15CA016                                                          3


ordered a pre-sentence investigation (“PSI”) report, and set a sentencing date of June 9,

2014. The trial court continued appellant’s bond with the following conditions: he follows

the directions of the probation department; he report to adult probation; he complete the

PSI questionnaire and return it to the probation department; and he appear at his

sentencing hearing on June 9, 2014.

       {¶5}   On May 7, 2014, appellee filed a motion to revoke appellant’s bond for

failing to report to the probation department, failing to appear for his PSI interview, and

failing to complete his PSI questionnaire. The trial court granted appellee’s motion to

revoke bond on May 8, 2014 and found appellant violated the terms and conditions of his

bond. The trial court stated appellant’s bond was revoked and forfeited and ordered the

Clerk of Courts to issue a warrant for appellant’s arrest.

       {¶6}   Appellant failed to appear at the June 9, 2014 sentencing hearing. The trial

court issued a judgment entry and stated that while the prosecutor, appellant’s attorney,

and the representative from the probation department appeared at the sentencing

hearing, appellant did not. The trial court further stated the warrant issued on May 8,

2014 remained in full force and effect. Approximately one year later, appellant was

arrested in North Carolina and extradited to Ohio.

       {¶7}   The trial court set appellant’s sentencing hearing for October 8, 2015. On

September 24, 2015, appellant filed a pro se motion to withdraw plea. Appellant stated

he was promised local county jail time with work release and restitution and, if the trial

court would not honor this promise, he wanted to withdraw his plea. Appellant filed

another pro se letter on September 28, 2015. On October 5, 2015, appellee filed a motion

to strike appellant’s pro se motions because he was represented by counsel. On October
Holmes County, Case No. 15CA016                                                           4


6, 2015, the trial court issued a notice stating appellant’s pro se motions were set for

hearing on October 8, 2015.

       {¶8}     The trial court held a hearing on October 8, 2015. Prior to the sentencing

portion of the hearing, the trial court conducted a hearing on appellant’s motions. Attorney

Knowlton stated appellant wanted to withdraw his plea, discharge Attorney Knowlton as

his counsel, hire new counsel, and proceed with a trial.        Appellee argued the plea

agreement had no agreement as to sentencing and there was no cognizable ground for

appellant to withdraw his plea. Appellant agreed his plea agreement stated there was no

agreement on sentencing, but appellant stated he was promised by Attorney Knowlton

that he would be “looking at” ninety (90) days local county jail time with work release and

house arrest.

       {¶9}     Appellant stated he did not appear for his original sentencing hearing

because he was on a roofing job in Columbus. Roger Estill (“Estill”) from the probation

department testified appellant told the probation department he did not appear for the

previous sentencing hearing because his vehicle broke down and he had to have it towed

to Akron. Attorney Knowlton stated he had a discussion with appellant prior to the plea

agreement that the trial court would consider a sentence of work release and county jail

time if the PSI was not out of the ordinary. Attorney Knowlton also stated he told appellant

there was no guarantee of sentence, but did tell appellant what the trial court might likely

do if “everything came together.”

       {¶10} The trial court denied appellant’s motions to withdraw plea and proceeded

to appellant’s sentencing hearing. Estill stated appellant was located and arrested in

North Carolina. Further, appellant had other charges pending against him and had two
Holmes County, Case No. 15CA016                                                          5


outstanding warrants. The trial court found appellant had a substantial criminal record

and prior felony conviction. The trial court sentenced appellant to eleven (11) months in

prison.

       {¶11} On October 8, 2015, the trial court filed a judgment entry denying Attorney

Knowlton’s motion to withdraw as counsel and denying appellant’s motions to withdraw

plea. On the same day, the trial court also filed a judgment entry of sentencing. Appellant

filed another pro se motion to withdraw guilty plea on October 13, 2015 which the trial

court denied on October 14, 2015.

       {¶12} On November 3, 2015, the court reporter filed a statement regarding

transcripts. The court reporter stated the arraignment on January 16, 2014; pre-trial on

March 19, 2014; and plea hearing on April 17, 2014 were not on the computer or in the

archives due to equipment malfunctions with the recording system. Thus, no transcript

of these proceedings was available for transcription.

       {¶13} Appellant appeals the trial court’s denial of his motions to withdraw plea and

assigns the following as error:

       {¶14} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

FREELY GRANT MR. KEINER’S PRESENTENCE REQUEST TO WITHDRAW HIS

GUILTY PLEA.

       {¶15} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

HOLD A DESIGNATED HEARING TO DETERMINE WHETHER MR. KEINER’S

REQUESTS TO WITHDRAW HIS GUILTY PLEA SHOULD BE GRANTED.”
Holmes County, Case No. 15CA016                                                              6


                                               I. & II.

         {¶16} Appellant argues the trial court erred in failing to grant his motion to

withdraw. A motion to withdraw plea is governed by the standards set forth in Criminal

Rule 32.1 and 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.”

         {¶17} Although the general rule is that motions to withdraw guilty pleas before

sentence are to be freely given and treated with liberality, the right to withdraw a plea is

not absolute. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). After a hearing to

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

plea, the decision to grant or deny a pre-sentence motion to withdraw guilty plea is within

the sound discretion of the trial court. Id.

         {¶18} In determining whether to grant a motion to withdraw guilty plea, the trial

court should consider the circumstances surrounding the defendant’s plea, including

whether the defendant was represented by competent counsel at a full hearing and

voluntarily waived his right to trial. State v. Gilmore, 5th Dist. Perry No. 15-CA-00017,

2016-Ohio-2654. Some factors a trial court may consider when making a decision on a

motion to withdraw guilty plea are: (1) prejudice to the state; (2) counsel’s representation;

(3) adequacy of the Crim. R. 11 plea hearing; (4) extent of the plea withdrawal hearing;

(5) whether the trial court gave full and fair consideration to the motion; (6) timing; (7) the

reasons for the motion; (8) the defendant’s understanding of the nature of the charges

and the potential sentences; and (9) whether the defendant was perhaps not guilty or has
Holmes County, Case No. 15CA016                                                            7

a complete defense to the charge. State v. Pitts, 5th Dist. Stark No. 2012CA00234, 2014-

Ohio-17. No one factor is conclusive. Id. The good faith, credibility, and weight of a

defendant’s assertions in support of a motion to withdraw guilty plea are matters to be

resolved by the trial court, which is in a better position to evaluate the motivations behind

a guilty plea than is an appellate court in reviewing a record of a hearing. State v. Xie, 62

Ohio St.3d 521, 584 N.E.2d 715 (1992).

       {¶19} Appellant first argues that because the plea hearing colloquy between the

trial judge and appellant was lost due to equipment malfunction, this Court cannot

determine whether appellant understood the effect of his plea, or whether the plea was

made knowingly, voluntarily, and intelligently and should thus find the trial court abused

its discretion in denying appellant’s motions to withdraw plea. We disagree.

       {¶20} Pursuant to App.R. 9(B)(1), “it is the obligation of the appellant to ensure

that the proceedings the appellant considers necessary for inclusion in the record,

however those proceedings were recorded, are transcribed in a form that meets the

specifications of App.R. 9(B)(6). App.R. 9(B)(4) further provides that, “* * * when a

recording was made but is no longer available for transcription, App.R. 9(C) or 9(D) may

be utilized.” App.R. 9(C) provides “ * * * when a recording was made but is no longer

available for transcription, the appellant may prepare a statement of the evidence or

proceedings from the best available means, including appellant’s recollection.” App. R.

9(C) goes on to provide how and when the statement should be provided to the appellee

and how the trial court should settle any objections to the statement and approve the

statement. In this case, appellant did not file an App.R. 9(C) statement of proceedings of

the plea hearing. When portions of the statement of proceedings necessary for resolution
Holmes County, Case No. 15CA016                                                            8


of the assigned error are omitted from the record, the reviewing court has nothing to pass

on and thus, as to those assigned, errors, the court has no choice but to presume the

validity of the lower court’s proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 400 N.E.2d 384 (1980).

       {¶21} Further, appellant signed a plea of guilty form on April 17, 2014 stating he

understood the maximum penalty of twelve (12) months in prison, he was satisfied with

his attorney’s advice and competence, he understood the nature of the charges and

possible defenses, no threats were made to him in exchange for his plea, he entered his

plea knowingly, intelligently, voluntarily, and there was no agreement as to sentencing.

The trial court, in its judgment entry, stated appellant was advised of all constitutional

rights and made a knowing, voluntarily, and intelligent waiver of his rights pursuant to

Criminal Rule 11.

       {¶22} Appellant next contends his motion to withdraw plea should have been

granted because he “may have been” misled by his trial counsel regarding the likely

sentence he would receive. We disagree.

       {¶23} The right to competent counsel does not require a criminal defendant

develop a “meaningful relationship” with his attorney. Morris v. Slappy, 461 U.S. 1, 103

S.Ct. 1610, 75 L.Ed.2d 610 (1983). In the context of reviewing a claim by a defendant

that the trial court abused its discretion by overruling the defendant’s request to discharge

court-appointed counsel and substitute new counsel, courts have taken the approach that

the defendant must show a complete breakdown in communication in order to warrant a

reversal of the trial court’s decision. State v. Cowans, 87 Ohio St.3d 68, 1999-Ohio-250,

717 N.E.2d 298.
Holmes County, Case No. 15CA016                                                           9


       {¶24} Appellant has not established that such a breakdown occurred between him

and his counsel as to warrant the withdrawal of his negotiated plea. Appellant pled guilty

to one count of theft and, as part of the negotiated plea, appellee dismissed the second

count of theft. While appellant stated he was promised by Attorney Knowlton he would

be “looking at” ninety (90) days local county jail time with work release and house arrest,

appellant agreed his plea agreement stated there was no agreement on sentencing.

Further, appellant signed a plea of guilty form stating he was satisfied with his attorney’s

advice and competence.

       {¶25} Appellant finally argues he was never given a designated hearing on his

motion to withdraw plea separate from the sentencing hearing and the trial court never

gave him or his counsel the opportunity to explain why he wanted to withdraw his plea.

We disagree.

       {¶26} A defendant does not have an absolute right to withdraw a guilty plea before

sentencing.    State v. Gilmore, 5th Dist. Perry No. 15-CA-00017, 2016-Ohio-2654.

However, a trial court must conduct a hearing to determine whether there is a reasonable

and legitimate basis for the withdrawal of the plea. State v. Graham, 5th Dist. Holmes

No. 04-CA-001, 2004-Ohio-2556, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715

(1992).

       {¶27} In this case, appellant filed his motion to withdraw guilty plea on September

24, 2015. In an October 6, 2015 judgment entry, the trial court issued a notice stating

appellant’s motion was set for hearing on October 8, 2015.

       {¶28} Despite appellant’s contention that there was no meaningful colloquy

between the trial court and appellant regarding the merits of his requests to withdraw his
Holmes County, Case No. 15CA016                                                           10


plea, it is clear from the transcript of the hearing that the trial court held a hearing on

appellant’s requests to withdraw his plea prior to the sentencing hearing. The trial court

offered appellant and his counsel the opportunity to be heard on appellant’s motion to

withdraw plea. Appellant stated he was promised by Attorney Knowlton he would be

“looking at” ninety (90) days local county jail time with work release and house arrest, but

also agreed his plea agreement stated there was no agreement on sentencing.

       {¶29} At the hearing, Attorney Knowlton reiterated appellant’s desire to withdraw

his plea, discharge Attorney Knowlton, retain new counsel, and proceed with a trial

instead of going to prison. Attorney Knowlton stated he had a discussion with appellant

prior to the plea agreement that the trial court would consider a sentence of work release

and county jail time. However, Attorney Knowlton also stated he told appellant there was

no guarantee of sentence in the plea agreement. After hearing from appellant and

Attorney Knowlton, the trial court denied the motion to withdraw plea and proceeded to

conduct a sentencing hearing. The trial court gave a full hearing considering appellant’s

motion to withdraw plea. Accordingly, the trial court did not abuse its discretion in holding

the plea hearing. The trial court was in the best position to observe appellant’s actions

and evaluate his responses at the time of his change in plea. State v. Goodin, 5th Dist.

Perry No. 15-CA-00016, 2016-Ohio-2889.

       {¶30} Further, appellant’s motions to withdraw plea did not state a legally

cognizable defense to the theft charge, nor did appellant or his counsel assert any legally

cognizable defense to the charges at the hearing on the motion to withdraw plea. The

only basis appellant asserted for the withdrawal of his guilty plea was, essentially, that if

the trial court was going to sentence him to prison instead of community control sanctions,
Holmes County, Case No. 15CA016                                                              11


local county jail time, and work release as he discussed with his counsel at the time of his

plea, he wanted to withdraw his plea. However, appellant agreed that his plea did not

contain a guarantee as to sentencing. Appellant did not file his motions until after the trial

court twice issued a warrant for his arrest, initially for a bond violation and then for failing

to appear at his sentencing hearing, and until after he was arrested in North Carolina after

more than a year and extradited to Ohio. A change of heart or mistaken belief about

pleading guilty is not a reasonable basis requiring a trial court to permit a defendant to

withdraw his guilty plea. State v. Gilmore, 5th Dist. Perry No. 15-CA-00017, 2016-Ohio-

2654.
Holmes County, Case No. 15CA016                                                          12


       {¶31} Based on the foregoing, we find the trial court did not abuse its discretion in

denying appellant’s motions to withdraw plea. Appellant’s assignments of error are

overruled. The October 8, 2015 judgment entry of the Holmes County Court of Common

Pleas is affirmed.

By Gwin, J.,

Farmer, P.J.,

Wise, J., concur
