[Cite as State v. Pudder, 2014-Ohio-68.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-P-0045
        - vs -                                  :

TRENTON D. PUDDER,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
0873.

Judgment: Sentence vacated, and judgment reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Neil P. Agarwal, 3766 Fishcreek Road, #289, Stow, OH           44224   (For Defendant-
Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Trenton D. Pudder appeals from the judgment entry of the Portage County

Court of Common Pleas sentencing him to prison for gross sexual imposition.

Principally, Mr. Pudder asserts the trial court erred by not granting his presentence

motion to withdraw a plea of guilty to that crime. We vacate his sentence, and reverse

and remand.
       {¶2}   December 21, 2012, a secret indictment from the Portage County Grand

Jury was filed against Mr. Pudder, charging him with one count of rape, a felony of the

first degree, in violation of R.C. 2907.02(A)(2). The rape allegedly occurred November

20, 2012, or November 21, 2012. Mr. Pudder was arraigned December 24, 2012, and

entered a plea of not guilty.     Being indigent, the trial court appointed Mr. Pudder

counsel. February 13, 2013, a change of plea hearing was held before the trial court.

The state amended the indictment to a single count of gross sexual imposition, a felony

of the third degree, in violation of R.C. 2907.05(A)(2), to which Mr. Pudder entered a

guilty plea. The trial court accepted the plea, and ordered preparation of a presentence

report. The judgment entry on the change of plea was filed the next day.

       {¶3}   April 10, 2013, Mr. Pudder moved the trial court to withdraw his plea,

pursuant to Crim.R. 32.1, alleging he had discovered exculpatory witnesses, who could

not be found previously. Hearing was held April 22, 2013. Mr. Pudder testified on his

own behalf. It appears that the charge against him stemmed from an incident at a party.

Mr. Pudder testified he did not even know the name of the complainant until meeting

with his attorney before the change of plea hearing. He testified that, since that hearing,

two other girls at the party had contacted him, offering to testify in his favor, Desiree and

Katie. He testified that, at the time of the change of plea hearing, he thought one of

these girls, Desiree, was in Florida.     Mr. Pudder admitted he could not detail the

testimony these girls would give, but was emphatic it would support his contention he

had not committed any sexual assault. He admitted that he changed his plea because

he was scared, and tired of being in jail, and hoped for community control sanctions.

Nevertheless, he denied that his motion to withdraw stemmed from a change in heart,




                                             2
but was premised on the belief that, before the change of plea hearing, he had nobody

to testify on his behalf, whereas now, he knew he did.

        {¶4}    The state noted that Desiree’s full name was contained in the police

report, submitted to Mr. Pudder’s counsel in discovery.

        {¶5}    The trial court denied the motion to withdraw. Sentencing hearing went

forward April 29, 2013. By a judgment entry filed the next day, the trial court sentenced

Mr. Pudder to 30 months imprisonment; imposed a $500 fine, court costs, and other

fees; and designated him a Tier I sex offender.1 This appeal timely ensued, Mr. Pudder

assigning six errors:

        {¶6}    “[1.] The Trial Court committed reversible and plain error in denying

Pudder’s pre-sentence motion to withdraw his guilty plea.

        {¶7}    “[2.] The Trial Court committed reversible and plain error in imposing court

costs against Pudder without complying with R.C. 2947.23(A)(1)(a).

        {¶8}    “[3.] The Trial Court committed reversible and plain error by ordering

Pudder to pay an ‘assessment and recoupment fee.

        {¶9}    “[4.] The Trial Court committed reversible error in assessing fines,

assessment and recoupment fee, and court costs without any regard to Pudder’s ability

to pay said fines and costs.

        {¶10} “[5.] The Trial Court committed reversible and plain error when it ordered

Pudder to have ‘no contact’ with the complaining witness.

        {¶11} “[6.] Pudder was denied his constitutional right to effective assistance of

counsel at trial when his trial counsel failed to argue that the Trial Court’s order of

having ‘no contact’ with the complaining witness was unlawful.”

1. The trial court filed a nunc pro tunc judgment entry of sentence May 14, 2013.


                                                    3
       {¶12} “Crim.R. 32.1 governs the withdrawal of a guilty plea prior to sentencing

and 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.’ ‘However, the rule itself gives no guidelines for a trial court to use when ruling

on a presentence motion to withdraw a guilty plea.’ State v. Xie, 62 Ohio St.3d 521,

526, * * * (1992).’

       {¶13} “A motion to withdraw a guilty plea filed before sentencing should be freely

and liberally granted. Xie at 526. However, there is no absolute right to withdraw a

guilty plea. Id. ‘Appellate review of a trial court’s denial of a motion to withdraw is

limited to a determination of abuse of discretion, regardless whether the motion to

withdraw is filed before or after sentencing.’ State v. Peterseim, 68 Ohio App.2d 211, *

* *, paragraph two of the syllabus (8th Dist. 1980).” (Parallel citations omitted.) State v.

Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶9-10.

       {¶14} The term “abuse of discretion” is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record. State v. Ferranto, 112

Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court

“applies the wrong legal standard, misapplies the correct legal standard, or relies on

clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-

Ohio-1720, ¶15 (8th Dist.2008).




                                             4
       {¶15} When evaluating motions to withdraw guilty pleas, this court has

traditionally applied the four part test formulated by the Eighth District Court of Appeals

in Peterseim, at paragraph three of the syllabus:

       {¶16} “A trial court does not abuse its discretion in overruling a motion to

withdraw: (1) where the accused is represented by highly competent counsel, (2) where

the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the

plea, (3) when, after the motion to withdraw is filed, the accused is given a complete

and impartial hearing on the motion, and (4) where the record reveals that the court

gave full and fair consideration to the plea withdrawal request.”

       {¶17} Peterseim does not provide the exclusive test whereby appellate courts

evaluate presentence motions to withdraw guilty pleas. The Third Appellate District

recently summarized the other test current in Ohio:

       {¶18} “We consider several factors when reviewing a trial court’s decision to

grant or deny a defendant’s pre-sentence motion to withdraw a plea. Those factors

include: (1) whether the withdrawal will prejudice the prosecution; (2) the representation

afforded to 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 sentences; and (9) whether the

accused was perhaps not guilty or had a complete defense to the charges. State v.

Griffin, 141 Ohio App.3d 551, 554, * * * (7th Dist.2001); State v. Fish, 104 Ohio App.3d




                                             5
236, 240, * * * (1st Dist.1995).” State v. Maney, 3d Dist. Defiance Nos. 4-12-16 and 4-

12-17, 2013-Ohio-2261, ¶18. (Parallel citations omitted.)

       {¶19} In support of his first assignment of error, Mr. Pudder only argues the

Peterseim test in his brief, in deference to our precedent, but urges us to adopt the

Maney test. We shall analyze his case under each standard.

       {¶20} Mr. Pudder does not argue the first and second Peterseim factors.

Rather, he contends that under the third and fourth factors, he presented evidence that

his decision to withdraw his plea of guilty was premised on the newly discovered

witnesses, who gave him hope of maintaining a defense, and that the trial court abused

its discretion in failing to account for this evidence.

       {¶21} In Field, 2012-Ohio-5221, at ¶20, this court held that failure by a

defendant to present evidence of an alleged defense supports a trial court’s denial of a

motion to withdraw a guilty plea under the third and fourth Peterseim factors. The

converse is true, as well: presentation of evidence supporting a defense inclines the

analysis in favor of withdrawal. The factors in this case indicate the trial court abused

its discretion in failing to grant Mr. Pudder’s motion to withdraw his plea. Such motions,

made presentencing, are to be granted freely and liberally. Xie, 62 Ohio St.3d at 526.

Further, “it is a fundamental tenet of judicial review in Ohio that courts should decide

cases on the merits.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192 (1982).

The rule announced in DeHart is fully applicable in criminal cases, as well. See, e.g.,

State v. Davis, 5th Dist. Stark No. 2005CA00061, 2005-Ohio-4845, ¶8; State v. Young,

6th Dist. Erie No. E-95-026, 1995 Ohio App. LEXIS 4216, *5 (Sept. 29, 1995).




                                               6
      {¶22} Thus, under Peterseim, the motion to withdraw should have been granted.

      {¶23} Application of the Maney factors leads to the same conclusion. We also

note that Maney appears to be a more detailed and specific list of factors that could also

be incorporated under the third and fourth Peterseim factors and are therefore not

inconsistent with the Peterseim test. Factors militating against grant of the motion

include the able representation of counsel; the fullness of the Crim.R. 11 hearing, and

that on the motion to withdraw; and the fact Mr. Pudder appears to have understood the

nature of the charge to which he was pleading, and the potential sentence, at the time

he entered his plea of guilty. All of the other Maney factors support a grant of the

motion. Nothing in the record indicates the prosecution would be prejudiced if the plea

was withdrawn. The motion was made within a reasonable time. The testimony of the

two young women who contacted Mr. Pudder might convince a jury he was not guilty of

any sexual assault.    The trial court’s summary conclusion from the bench that Mr.

Pudder could have informed his counsel at any time of the existence of these

witnesses, and that the motion would be denied, does not indicate that full and fair

consideration was given to the motion.

      {¶24} The first assignment of error has merit.

      {¶25} We decline to reach the remaining assignments of error, finding them

moot. App.R. 12(A)(1)(c).




                                            7
      {¶26} Mr. Pudder’s sentence is vacated, and the judgment of the Portage

County Court of Common Pleas is reversed, this matter being remanded for further

proceedings not inconsistent with this opinion. It is the further order of this court that

appellee is assessed costs herein taxed.        The court finds there were reasonable

grounds for this appeal.



THOMAS R. WRIGHT, J., concurs,

CYNTHIA WESTCOTT RICE, J., concurs in judgment only.




                                            8
