[Cite as State v. Goodin, 2016-Ohio-2889.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 15-CA-00016
TAYVA J. GOODIN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Perry County Common
                                               Pleas Court, Case No. 14-CR-0070


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        May 4, 2016


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOSEPH A. FLAUTT                               VALERIE K. WIGGINS
Perry County Prosecuting Attorney              107 S. High Street
                                               New Lexington, Ohio 43764
DAVID L. ROWLAND
Assistant Prosecuting Attorney
111 N. High Street
P.O. Box 569
New Lexington, Ohio 43764
Perry County, Case No. 15-CA-00016                                                           2

Hoffman, J.


         {¶1}   Defendant-appellant Tayva J. Goodin appeals the June 23, 2015 Judgment

Entry entered by the Perry County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On May 20, 2015, Appellant entered a plea of guilty to one count of

complicity to illegal manufacture of drugs or cultivation of marijuana, a felony of the

second degree, in violation of R.C. 2923.03(A)(2) and 2925.04(A) and (C)(3)(a); and one

count of complicity to aggravated trafficking in drugs, a felony of the fourth degree, in

violation of R.C. 2923.03(A)(2) and 2925.03(A)(1) and (C)(1)(a). As a result of Appellant’s

plea, the state of Ohio agreed to nolle prosequi the remaining two counts in the indictment.

The trial court accepted Appellant’s plea of guilty, ordered a presentence investigation

and revoked Appellant’s bail.

         {¶3}   On June 16, 2015, Appellant appeared at a sentencing hearing and moved

the trial court to withdraw her plea of guilty.

         {¶4}   On June 19, 2015, the trial court conducted a hearing on Appellant’s motion

to withdraw plea. At the hearing, the trial court denied the motion and proceeded to

sentence Appellant.

         {¶5}   The trial court entered judgment of sentence via Termination Judgment

Entry on June 23, 2015.




1   A full rendition of the underlying facts is unnecessary for resolution of this appeal.
Perry County, Case No. 15-CA-00016                                                           3


       {¶6}   Appellant filed a delayed notice of appeal on September 2, 2015. This Court

granted the motion for delayed appeal via Judgment Entry of September 30, 2015.

       {¶7}   Appellant assigns as error,

       {¶8}   “I. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-

APPELLANT’S MOTION TO WITHDRAW HER PLEA OF GUILTY.

       {¶9}   “II. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.”

                                                  I.

       {¶10} In the first assigned error, Appellant argues the trial court erred in denying

her motion to withdraw plea.

       {¶11} Crim.R. 32.1 governs withdrawal of guilty pleas 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.

       {¶12} “A defendant does not have an absolute right to withdraw a guilty plea prior

to sentencing. 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. Xie, 62 Ohio St.3d

521, 584 N.E.2d 715 (1992), paragraph one of the syllabus. “The 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. In order to find an abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary or unconscionable
Perry County, Case No. 15-CA-00016                                                         4

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

       {¶13} In State v. McNeil, 146 Ohio App.3d 173, 175–176, 765 N.E.2d 884, the

First District held,

               It is well established that, even though a defendant does not have an

       absolute right to withdraw a plea prior to sentencing, a presentence motion

       to withdraw a guilty plea should be “freely and liberally granted.” * *

       *Although such a motion is to be treated liberally, the trial court's decision

       is still ultimately one of discretion. In determining whether the trial court has

       properly exercised its discretion, this court is aided by the following factors:

       (1) whether the accused was 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 withdrawal motion, and

       (4) whether the trial court gave full and fair consideration to the motion.* *

       *In addition to these factors, there are other considerations, including (1)

       whether the motion was made within a reasonable time; (2) whether the

       motion set out specific reasons for the withdrawal; (3) whether the accused

       understood the nature of the charges and the possible penalties; and (4)

       whether the accused was perhaps not guilty or had a complete defense to

       the charges. (Footnotes omitted.)

       {¶14} At the May 20, 2015 Plea Hearing, the following exchange occurred on the

record,
Perry County, Case No. 15-CA-00016                                                        5


                THE COURT: All right. Thank you. Ms. Goodin, are you under the

         influence of any intoxicants, drugs, or other mind-affecting substances?

                THE DEFENDANT: Not other than my medication, no.

                THE COURT: And that was prescribed medication from you doctor?

                THE DEFENDANT: Yes.

                THE COURT: Okay. Is that affecting your ability to change your plea

         today?

                THE DEFENDANT: No.

                THE COURT: Okay. It is my understanding that you wish to withdraw

         your former plea of not guilty for the crimes which you stand charged.

         Having discussed this matter with your attorney, are you satisfied with her

         advice and representation of you?

                THE DEFENDANT: Yes.



         May 20, 2015 Plea Hearing Tr. at 4.



         {¶15} On June 16, 2015, Appellant appeared before the trial court for sentencing

and indicated she wished to withdraw her plea of guilty. The following exchange took

place:

                THE COURT: Why do you want to waive your—or withdraw your

         former plea?

                THE DEFENDANT: I don’t believe that I should have pled guilty to

         that. I felt I was more pressured in to [sic] that under -- sorry -- under not
Perry County, Case No. 15-CA-00016                                                     6


      knowing my rights, and I’ve done a little more research into the case, and I

      don’t feel that I need to plead guilty to that.

             THE COURT: Well, then, why didn’t you go to trial that day? I mean,

      we had the jury here that day.

             THE DEFENDANT: I apologize. I wasn’t’ – I don’t know. I just wasn’t

      ready for that. I was –

             THE COURT: Are you prepared to go forward on that - - on that

      motion today Ms. Fries?

             MS. FRIES: No, I’m not, Your Honor.

             ***

             THE COURT: * * * Since Ms. Goodin has not been sentenced yet I

      do have to do a - - a hearing on this motion. * * *



      June 16, 2015 Hearing Tr. at 3-4.



      {¶16} Appellant’s motion to withdraw was made presentence. The trial court

conducted a hearing on the plea withdrawal motion on June 19, 2015. At the hearing,

Appellant’s counsel argued,

             MS. FRIES: Thank you, Your Honor. May it please the Court, Ms.

      Goodin suffers from congenital spinal stenosis, degenerative disc disease,

      and she has scoliosis. Two days before the scheduled trial on May 20th of

      2015 she developed excruciating back pain and loss of movement and

      feeling in her right leg. Day before trial she went to the hospital. She was –
Perry County, Case No. 15-CA-00016                                                      7


      to Good Samaritan Hospital. She was there for the entire day. She’s not

      exactly sure what time she left, but it was late at night.

              She was prescribed medication and was taking all her prescribed

      medications prior to trial, being Norco, Flexeril, Naproxen, Prozac, and

      Xanax. She was groggy and tired on the date of her trial. She arrived on

      crutches and late.

              We hurriedly went over the plea form. She didn’t understand the

      nature of the charges against her, and she did not understand that she

      would have to serve a mandatory prison sentence. When she left here, she

      slept the entire way to jail, and she slept the entire first day and beyond at

      jail.

              She currently wishes to withdraw her guilty plea and stand trial for

      this matter in which she believes she has a complete defense of duress.



June 19, 2015 Tr. at 3-4.



      {¶17} At the June 19, 2015, the trial court did not hear the testimony of witnesses;

rather, only the arguments of counsel. The trial court noted Appellant was advised at the

time of the plea hearing she faced a mandatory prison term. Further, Appellant indicated

during the presentence investigation she had not been under the influence of drugs,

despite being involved with drugs previously during her life. June 19, 2015 at 7-8.

      {¶18} The trial court gave a full hearing considering Appellant’s motion to withdraw

plea. Appellant moved the trial court to withdraw her plea arguing she had time to
Perry County, Case No. 15-CA-00016                                                          8


research her case, and reconsidered her decision. Her counsel argued she was not

aware she was entering a plea to a mandatory prison sentence, as she was under the

influence of her medication at the time of the plea hearing. However, Appellant stated in

open court she understood the terms of her plea, and the trial court advised Appellant

she was subject to a mandatory term of imprisonment. The trial court was in the best

position to observe Appellant’s actions and evaluate her responses at the time of her

change of plea.

       {¶19} We cannot say the trial court abused its discretion in denying the motion to

withdraw plea under these circumstances.

       {¶20} The first assignment of error is overruled.

                                                 II.

       {¶21} In the second assignment of error, Appellant maintains she was denied the

effective assistance of trial counsel. Specifically, Appellant maintains trial counsel was

ineffective herein in failing to cultivate and develop Appellant’s defense of duress at trial.

       {¶22} Appellant asserts her competency and sanity evaluation along with the

presentence investigation report indicate she acted under duress when committing the

offenses herein. Further, Appellant maintains trial counsel failed to ensure Appellant was

fully aware of the ramifications and consequences of her plea.

       {¶23} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant
Perry County, Case No. 15-CA-00016                                                        9


must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052, citing Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

        {¶24} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct.

2052.

        {¶25} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

        {¶26} Here, trial counsel properly weighed the evidence and the likelihood of

success on the merits, making a tactical decision to enter a plea to the charges.

Appellant’s change of heart or mistaken belief about the guilty plea does not constitute a

legitimate basis to withdraw the plea. State v. Powell, 10th Dist. 01-AP-891, 2002 Ohio

1725.

        {¶27} The evidence demonstrates Appellant admitted to manufacturing and

selling methamphetamine outside the presence of her spouse.            She further told a

confidential informant “more drugs were available” during the investigation. The evidence

does not demonstrate the defense of duress would have been such a strong tactical

advantage at trial to assure a verdict in Appellant’s favor. Accordingly, trial counsel made
Perry County, Case No. 15-CA-00016                                                     10


a tactical decision to weigh the likelihood of success of any possible defense in advising

Appellant to accept the terms of the plea offered herein.

      {¶28} The second assignment of error is overruled.

      {¶29} The judgment of the Perry County Court of Common Pleas is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Baldwin, J. concur
