[Cite as State v. Gregory, 2020-Ohio-1155.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-19-1063

        Appellee                                  Trial Court No. CR0201802500

v.

Laron Gregory                                     DECISION AND JUDGMENT

        Appellant                                 Decided: March 27, 2020

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Laron Gregory, appeals the March 22, 2019 judgment

of the Lucas County Court of Common Pleas which, following no contest pleas to

procuring prostitution and receiving stolen property, sentenced appellant to terms of
probation and community control. Because we find that the trial court did not abuse its

discretion when it denied appellant’s motion to withdraw his no contest pleas, we affirm.

       {¶ 2} Appellant was indicted on August 15, 2018, on one count of promoting

prostitution, a fourth-degree felony, and one count of receiving stolen property, a fifth-

degree felony. The charges stemmed from the June 21, 2018 operation in Holland, Lucas

County, Ohio, where an undercover officer arranged a purchase of a prostitute. She

arrived at the hotel in a vehicle driven by appellant which had a stolen license plate. A

search of appellant revealed nine hotel key cards, four cell phones, a fake pistol, and $743

in cash. On September 26, 2018, appellant entered not guilty pleas.

       {¶ 3} Pursuant to an agreement with the state, on March 13, 2019, appellant

withdrew his not guilty pleas and entered pleas of no contest to an amended charge of

procurement of a prostitute for another, a first-degree misdemeanor, and as indicted, the

receiving stolen property charge.

       {¶ 4} At appellant’s March 20, 2019 sentencing hearing, appellant’s counsel orally

moved to withdraw appellant’s plea. Counsel indicated that appellant was in possession

of text messages from the victim which expressed her love and affection for him and

appeared to be favorable to his case. Following argument by the parties, the trial court

denied the motion and proceeded to sentencing. This appeal followed with appellant

raising one assignment of error for our review:

              I. The trial court abused its discretion when it denied appellant’s

       motion to withdraw his guilty plea.




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       {¶ 5} Crim.R. 32.1 provides:

              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.

       {¶ 6} Generally, a motion to withdraw a guilty plea is to be freely and liberally

granted. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). However, the Xie

court indicated that a defendant does not have an absolute right to withdraw a guilty plea

prior to sentencing. Id. at paragraph one of the syllabus. Rather, “[a] trial court must

conduct a hearing to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea.” Id. The court further held that “[t]he decision to grant or deny a

presentence motion to withdraw a guilty plea is within the sound discretion of the trial

court.” Id. at paragraph two of the syllabus. Accordingly, in order to find that the trial

court abused its discretion, a reviewing court must find that the court’s ruling was

“unreasonable, arbitrary or unconscionable.” Id. at 527.

       {¶ 7} In reviewing whether a presentence motion to withdraw a plea should have

been granted, an appellate court should consider:

              (1) [W]hether the prosecution would be prejudiced if the plea was

       vacated; (2) whether the accused was represented by highly competent

       counsel; (3) whether the accused was given a full Crim.R. 11 hearing;

       (4) whether a full hearing was held on the motion; (5) whether the trial




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      court gave full and fair consideration to the motion; (6) whether the motion

      was made within a reasonable time; (7) whether the motion set forth

      specific reasons for the withdrawal; (8) whether the accused understood the

      nature of the charges and possible penalties; and (9) whether the accused

      was perhaps not guilty or had a complete defense to the crime.

State v. Eversole, 6th Dist. Erie Nos. E-05-073, E-05-076, E-05-074, E-05-075, 2006-

Ohio-3988, ¶ 13, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st.

Dist.1995).

      {¶ 8} As set forth above, on the day of sentencing appellant’s counsel made an

oral motion to withdraw appellant’s pleas indicating that the motion was based on “newly

discovered evidence.” Counsel stated that appellant informed him on the morning of

sentencing that he had received “numerous text messages” from the victim/witness

expressing her love for him. Counsel stated:

              [T]his is the victim the State relied upon to testify at a trial in this

      matter regarding the promoting prostitution.

              And I believe the evidence is favorable to Mr. Gregory. I will say

      that I did not find in my cursory review of the text messages any statements

      indicating that she had lied to the police or Prosecutor.

              However, there is still evidence that would be favorable to the

      Defendant, and I think it would be appropriate, if he wishes to have a jury




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         decide this matter and present that to the jury and let them decide whether

         this witness is indeed credible or not.1

         {¶ 9} The state countered that the fact that the victim may love appellant had no

bearing on its ability to prove the charge of procuring prostitution, that the messages were

provided 175 days after appellant’s arraignment, and that appellant had failed to show

that either he was not guilty of the offense or that he had a complete defense to the

charge.

         {¶ 10} Addressing the relevant factors, the court first noted that appellant’s

positon was contra to his desire to proceed directly with sentencing following the plea

hearing just one week prior. The court also ascertained from counsel that the text

messages at issue were in appellant’s possession late June 2018. The court further noted

that the messages did not appear to be exculpatory or even related to the crimes; further,

appellant did not have a defense or claim of innocence.

         {¶ 11} Next, the court stated that appellant was provided a full Crim.R. 11 plea

hearing and he understood the nature of the charges and penalties, he was given a fair

hearing on the motion to withdraw including the opportunity to prepare for argument and

the court’s ability to research the relevant case law, that the court gave full and fair

consideration to the motion, and that the timing of the motion was not reasonable because

appellant had possession of the texts throughout the course of the proceedings.



1
    We note that appellant presented no argument as to the receiving stolen property charge.



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       {¶ 12} Reviewing appellant’s arguments and the record below, we find that the

trial court did not abuse its discretion when it denied appellant’s motion to withdraw his

no contest pleas. Appellant’s assignment of error is not well-taken.

       {¶ 13} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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