[Cite as State v. Ellis, 2011-Ohio-5216.]


                                         COURT OF APPEALS
                                        PERRY COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :    JUDGES:
                                              :    Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :    Hon. Julie A. Edwards, J.
                                              :    Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
TOMMA M. ELLIS                                :    Case No. 11-CA-9
                                              :
        Defendant-Appellant                   :    OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 10-CR-0070



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  October 7, 2011




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOSEPH A. FLAUTT                                   JASON A. SARVER
111 North High Street                              123 South Broad
P.O. Box 569                                       Suite 314
New Lexington, OH 43764                            Lancaster, OH 43130
Perry County, Case No. 11-CA-9                                                          2

Farmer, J.

      {¶1}    On October 1, 2010, the Perry County Grand Jury indicted appellant,

Tomma Ellis, on three counts of aggravated trafficking in drugs with forfeiture

specifications in violation of R.C. 2925.03(A)(1)(a) and (b). On February 16, 2011,

appellant pled guilty as charged. The trial court accepted the pleas and ordered a

presentence investigation.

      {¶2}    On March 24, 2011, appellant filed a motion to withdraw her guilty pleas.

A hearing was held on March 29, 2011. By judgment entry filed April 11, 2011, the trial

court denied the motion.

      {¶3}    A sentencing hearing was held on April 21, 2011.            By termination

judgment entry filed April 27, 2011, the trial court sentenced appellant to eighteen

months in prison.

      {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}    "THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION IN

DENYING TOMMA ELLIS' PRE-SENTENCE MOTION TO VACATE HER PLEA

THEREBY DEPRIVING HER OF DUE PROCESS OF LAW AS GUARANTEED BY THE

FOURTH       AMENDMENT       OF    THE    UNITED      STATES     CONSTITUTION        AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION."

                                            I

      {¶6}    Appellant claims the trial court erred in denying her motion to withdraw her

guilty pleas pursuant to Crim.R. 32.1. We disagree.
Perry County, Case No. 11-CA-9                                                         3


      {¶7}   Crim.R. 32.1 governs withdrawal of guilty plea 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." The right to withdraw

a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217.

      {¶8}   "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
Perry County, Case No. 11-CA-9                                                           4

complete defense to the charges." State v. McNeil (2001), 146 Ohio App.3d 173, 175-

176. (Footnotes omitted.)

       {¶9}   Appellant pled guilty pursuant to a plea agreement:

       {¶10} "MR. FLAUTT: Yes, Your Honor.              The defendant is charged with two

felonies of the third degree and one felony of the fourth degree. It's my understanding

that she's going to enter a plea to the three counts.

       {¶11} "In return for her doing that, on the Felony 3's, I'd recommend a sentence

of one year in a state penal institution, a thousand dollar fine, and a six month license

suspension. Those periods of imprisonment would be served concurrently.

       {¶12} "On the Felony 4, I'd recommend a six month period of imprisonment, a

thousand dollar fine, and a six month driver's license suspension, with that period of

imprisonment to be served consecutively. I would also ask that the license suspensions

be consecutive.

       {¶13} "It's also my understanding that the forfeiture specification will be granted,

and I have agreed to remain neutral in the event there should be an application for

judicial release." February 16, 2011 T. at 3-4.

       {¶14} The trial court's Crim.R. 11 colloquy with appellant complied with the

mandates of the rule, and appellant answered affirmatively that she understood her

rights. Id. at 4-11. We note the trial court sentenced appellant pursuant to the state's

recommendations, although it was not bound to do so.

       {¶15} Appellant's March 24, 2011 motion to withdraw her guilty pleas set forth

the following reason for her request:
Perry County, Case No. 11-CA-9                                                          5


      {¶16} "After discussing this matter with Ms. Ellis, it now appears that she did not

properly understand the advice counsel provided regarding the admission of potential

evidence had this matter proceeded to trial.        Therefore, Ms. Ellis had determined,

having giving it considerable thought, that she would like to withdraw her plea on the

basis that she was confused at her plea hearing."

      {¶17} A hearing on the motion was held on March 29, 2011. In its April 11, 2011

entry denying the motion, the trial court summarized the testimony as follows:

      {¶18} "The Defendant was scheduled for sentencing on March 29, 2011.

However, the sentencing hearing was changed to a hearing on the Motion to Withdraw

Guilty Plea. There was no evidence presented that the State would be prejudiced by

the withdrawal of the guilty plea. The Defendant testified that her attorney advised her

to take the plea due to a felony conviction, which occurred 17 years ago. However, she

testified other people have told her that should not be taken into account. Pursuant to

Ohio Evidence Rule 609, the Court has discretion to admit a conviction that is more

than 10 years old. The Defendant also testified that she has not seen the discovery.

However, she admitted that her attorney told her the evidence the prosecution has

against her. At the Plea Hearing on February 16, 2011, the Defendant told the Court

that she discussed the matter with her attorney and that she was satisfied with the

advice of her attorney and with his representation of her. She indicated that she wanted

to enter a plea of guilty to two counts of Aggravated Trafficking in Drugs with Forfeiture

Specifications, which are felonies of the third degree and one count of Aggravated

Trafficking in Drugs, with a Forfeiture Specification, which is a felony of the fourth

degree. She testified her attorney told her to just say yes at the plea hearing. The
Perry County, Case No. 11-CA-9                                                           6


Defendant's attorney at the withdrawal of guilty plea hearing indicated that he disagreed

with the representations she was making.         The defendant was afforded sufficient

representation by counsel."

       {¶19} During the hearing in her sworn testimony, appellant claimed she had

never seen any of the evidence, there was a lack of communication between her and

defense counsel, and she was confused about defense counsel's advice to her

concerning her previous felony conviction. March 29, 2011 T. at 3-4. Although not

under oath, defense counsel stated, "I strongly disagree with that characterization as to

how--things, how we have gotten to this point and I do feel that I have fully represented

her***." Id. at 5. Defense counsel disagreed with appellant withdrawing her guilty pleas

"based on the evidence that that there is." Id. When questioned on why she did not tell

the trial court during the plea hearing that she had not seen the evidence against her,

appellant stated "[b]ecause he just told me to come in and answer yes Ma'am." Id. at 5-

6. When asked if she had lied to the trial court about being satisfied with her attorney

and understanding the possible penalties, appellant answered in the affirmative

because she really did not understand what was going on. Id. at 6-7. Appellant stated

her defense to the charges was that she had witnesses, including her daughter, that

would say she did not sell drugs to an undercover cop. Id. at 9-10.

       {¶20} The trial court was faced with deciding on which day appellant was telling

the truth, at her plea hearing or the motion to withdraw hearing. This credibility issue is

best resolved by the trial court.    In addition, defense counsel disputed appellant's

claims.
Perry County, Case No. 11-CA-9                                                     7


      {¶21} Given the facts presented, we are hard pressed to conclude that appellant

did not understand her guilty pleas as opposed to having a change of heart.

      {¶22} Upon review, we find the trial court did not err in denying appellant's

motion to withdraw her guilty pleas.

      {¶23} The sole assignment of error is denied.

      {¶24} The judgment of the Court of Common Pleas of Perry County, Ohio is

hereby affirmed.

By Farmer, P.J.

Edwards, J. and

Delaney, J. concur.



                                           __s/ Sheila G. Farmer_________________



                                           __s/ Julie A. Edwards_________________



                                           __s/ Patricia A. Delaney_______________

                                                         JUDGES

SGF/sg 908
[Cite as State v. Ellis, 2011-Ohio-5216.]


                     IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
TOMMA M. ELLIS                                  :
                                                :
        Defendant-Appellant                     :        CASE NO. 11-CA-9




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio is affirmed. Costs to

appellant.




                                                __s/ Sheila G. Farmer_________________



                                                __s/ Julie A. Edwards_________________



                                                __s/ Patricia A. Delaney_______________

                                                            JUDGES
