[Cite as State v. Estes, 2013-Ohio-1408.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. W. Scott Gwin, J.
-vs-
                                                   Case No. 12 CA 54
GARY A. ESTES

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2012 CR 0116 D


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         April 8, 2013



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JAMES J. MAYER, JR.                             JEFFREY P. UHRICH
PROSECUTING ATTORNEY                            LAW OFFICE OF JEFFREY P. UHRICH
JOHN C. NIEFT                                   Post Office Box 1977
ASSISTANT PROSECUTOR                            Westerville, Ohio 43086
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12 CA 54                                                            2

Wise, J.

          {¶1}   Appellant Gary A. Estes appeals from the denial of his pre-sentence

    motion to vacate plea, subsequent to his conviction for burglary, in the Court of

    Common Pleas, Richland County. The relevant facts leading to this appeal are as

    follows.

          {¶2}   On March 9, 2012, the Richland County Grand Jury indicted appellant on

    one count of burglary, R.C. 2911.12(A)(2), a felony of the second degree. On May 14,

    2012, appellant, with the assistance of counsel, entered a plea of guilty to the aforesaid

    charge, and the matter was set for a sentencing hearing on June 25, 2012.

          {¶3}   However, on June 15, 2012, about ten days before sentencing, appellant

    filed a “motion to vacate plea.” Attached therewith was a handwritten statement from

    Jaclyn Bailey, the complaining witness, alleging in part that the item at issue, a

    computer, “didn’t get stolen.” See Appellant’s Exhibit B.

          {¶4}   The motion to vacate plea was set for hearing at the same date and time

    as the sentencing hearing.

          {¶5}   On   June    25,   2012,   the   court   proceeded    to   conduct   its   plea

    motion/sentencing hearing. Via a sentencing entry filed June 26, 2012, appellant was

    sentenced to, inter alia, community control and a $3,000.00 fine. The trial court never

    specifically addressed the motion to vacate plea in said entry.1



1
  The State’s response brief states that appellant did not obtain a transcript of the June
25, 2012 hearing. This assertion was correct at the time said brief was filed. The State’s
essential response is thus that we should apply the presumption of regularity to the trial
court’s decision under Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400
N.E.2d 384. However, appellant subsequently obtained leave from this Court to
supplement the record, and the May 14, 2012 and June 25, 2012 transcripts were filed
on January 2, 2013.
Richland County, Case No. 12 CA 54                                                       3


      {¶6}   On July 13, 2012, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

      {¶7}   “I.   THE TRIAL (SIC) ERRED WHEN IT DENIED DEFENDANT'S

MOTION TO VACATE PLEA, FILED PRIOR TO DEFENDANTS (SIC) SENTENCING

HEARING, WITHOUT CONDUCTING A FULL AND FAIR HEARING OR PROVIDING

APPELLANT/DEFENDANT AN OPPORTUNITY TO PRESENT EVIDENCE IN

SUPPORT OF THE MOTION TO VACATE PLEA.”

                                               I.

      {¶8}   In his sole Assignment of Error, appellant contends the trial court erred in

denying his pre-sentence motion to withdraw his guilty plea to the burglary offense. We

disagree.

      {¶9}   Unlike the “manifest injustice” standard governing a post-sentence motion,

Crim.R. 32.1 has no specific guidelines for granting a presentence motion to withdraw

a guilty plea. State v. Calloway, Hamilton App.No. C–040066, 2004–Ohio–5613, ¶ 11,

citing State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. A presentence

motion to withdraw a plea should be freely and liberally granted; however, the decision

is left to the trial court's sound discretion. Id., citing Xie at 526. Furthermore, a trial

court must conduct a hearing to determine whether there is a reasonable and

legitimate basis for the withdrawal of the plea. Xie, supra. The court should examine

whether the defendant was represented, whether the withdrawal will prejudice the

prosecution, the timing of the motion, the reasons given for the withdrawal, the

defendant's understanding of the charges and penalties, and the existence of a
Richland County, Case No. 12 CA 54                                                    4

meritorious defense. State v. Graham, Holmes App.No. 04–CA–001, 2004–Ohio–2556,

¶ 39 (additional citations omitted).

      {¶10} In the case sub judice, the record reveals the trial court heard arguments

of counsel pertaining to the motion to vacate plea, and was informed that the recanting

witness had not appeared at the hearing. The court then concluded as follows:

      {¶11} “I saw in the PSI that he was given an opportunity to demonstrate that he

actually purchased the computer but he was unable to do that. So at this point I don’t

have an actual reason to vacate his plea. The plea was knowing and voluntary, all the

facts were talked about and known by him at the time of his change of plea. This

authenticated letter is not sufficient for me to think there is any change in

circumstances.”

      {¶12} Tr., June 25, 2012, at 5.

      {¶13} Upon review, we are not inclined to determine that the trial court’s refusal

to allow a pre-sentence withdrawal of appellant’s plea under these circumstances

constituted an abuse of discretion. Accordingly, appellant's sole Assignment of Error is

overruled.

      {¶14} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.

By: Wise, J.
Delaney, P. J., and
Gwin, J., concur.
                                           ___________________________________

                                           ___________________________________

                                           ___________________________________
                                                          JUDGES
JWW/d 0305
Richland County, Case No. 12 CA 54                                             5


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
GARY A. ESTES                             :
                                          :
       Defendant-Appellant                :         Case No. 12 CA 54




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

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                                             JUDGES
