[Cite as State v. Benson, 2012-Ohio-230.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO

        Plaintiff-Appellee

-vs-

SEAN BENSON

        Defendant-Appellant


JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.


Case No. 11 CA 10


OPINION


CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. CRB 1100291



JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         January 23, 2012


APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

                                               J. MATTHEW DAWSON
                                               35 South Park Place, Suite 10
                                               Newark, Ohio 43055
Wise, J.

        {¶1}   Appellant Sean Benson appeals the decision of the Municipal Court of

Perry County, which denied his pre-sentence request to withdraw a no contest plea.

The relevant facts leading to this appeal are as follows.

        {¶2}   On or about May 27, 2011, following an altercation with his mother-in-law,

appellant was charged with assault, R.C. 2903.13(A), a misdemeanor of the first

degree. On May 31, 2011, appellant appeared pro se for arraignment at the Perry

County Municipal Court. After some colloquy with the trial court, appellant entered a

plea of no contest to the assault charge. The court accepted appellant’s plea and set

the matter for a sentencing hearing.

        {¶3}   After leaving the courthouse, appellant met with counsel and ultimately

decided to withdraw his plea prior to the time set for sentencing. On June 2, 2011,

appellant, with the assistance of counsel, filed a motion to withdraw his no contest plea,

including therein a request for a hearing. The trial court denied said motion on June 13,

2011.

        {¶4}   On June 16, 2011, appellant appeared for sentencing. The court ordered

that appellant pay a fine of $200.00 plus costs and serve sixty days in jail, suspended

on condition of a Mound Builders assessment, twenty hours of community service, and

one year of probation. A sentencing entry was issued on July 19, 2011.

        {¶5}   Appellant timely filed a notice of appeal, and he herein raises the following

sole Assignment of Error:

        {¶6}   “I.   THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S

MOTION TO WITHDRAW NO CONTEST PLEA PRIOR TO SENTENCING.”
                                               I.

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

denying his pre-sentence motion to withdraw his no contest plea to misdemeanor

assault. We agree, to the extent that a hearing is required.

       {¶8}   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. The holdings in Xie as to

withdrawals of guilty pleas are applicable to situations involving pleas of no contest. See

State v. Spivey (1998), 81 Ohio St.3d 405, 415.

       {¶9}   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 meritorious defense. State v. Graham, Holmes App.No. 04-CA-001,

2004-Ohio-2556, ¶ 39, citing State v. Kimbrough (March 28, 1988), Stark App. No. CA-

7363, and State v. Fish (1995), 104 Ohio App.3d 236, 240, 661 N.E.2d 788.

       {¶10} In the case sub judice, we note the State did not file an appellee’s brief.

Accordingly, we refer to App.R. 18(C), which states in pertinent part: “If an appellee fails

to file the appellee's brief within the time provided by this rule, or within the time as
extended, * * * in determining the appeal, the court may accept the appellant's

statement of the facts and issues as correct and reverse the judgment if appellant's brief

reasonably appears to sustain such action.”

      {¶11} Appellant herein asserts that he may have been able to raise a defense of

self-defense, and he further points out that the victim’s comments at the sentencing

hearing suggest she is recanting parts of what she told law enforcement officials

originally. See Sentencing Tr. at 5-10. In light of Xie, supra, and App.R. 18(C), we hold

reversal and remand for a hearing on the motion to withdraw no contest plea is

warranted under the circumstances of this case.

      {¶12} Appellant's sole Assignment of Error is sustained.

      {¶13} For the reasons stated in the foregoing opinion, the judgment of the

Municipal Court of Perry County, Ohio, is hereby reversed and remanded.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



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                                                                 JUDGES
JWW/d 1230

               IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT
STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
SEAN BENSON                                  :
                                             :
       Defendant-Appellant                   :       Case No. 11 CA 10




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

judgment of the Municipal Court of Perry County, Ohio, is reversed and remanded for

further proceedings consistent with this opinion.

       Costs assessed to appellee.




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                                                             JUDGES
