[Cite as State v. Harkins, 2012-Ohio-4746.]




                  IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :         C.A. CASE NO.        2012 CA 2

v.                                                   :         T.C. NO.    10CR384
                                                                           11CR64
SHANNON HARKINS                                      :          (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                              ..........

                                              OPINION

                         Rendered on the      12th   day of    October    , 2012.

                                              ..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
        Attorney for Plaintiff-Appellee

MARCY A. VONDERWELL-HULL, Atty. Reg. No. 0078311, 260 North Detroit Street, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Shannon Harkins appeals from his conviction and sentence in

Case No. 2010 CR 0384 (hereinafter referred to as “Case 1") for one count of pandering obscenity

involving a minor, in violation of R.C. 2907.321(A)(2), a felony of the second degree. Harkins also

appeals his conviction and sentence in Case No. 2011 CR 0064 (hereinafter referred to as “Case 2")
                                                                                                    2

for one count of pandering obscenities involving a minor, in violation of R.C. 2907.321(A)(5), a

felony of the fourth degree, and one count of pandering sexually oriented material involving a minor,

in violation of R.C. 2907.322(A)(5), also a felony of the fourth degree. Harkins filed a timely notice

of appeal on January 11, 2012.

        {¶ 2}      In Case I, Harkins was indicted on June 28, 2010, for four counts of pandering

obscenity involving a minor and five counts of pandering sexually oriented material involving a

minor. These charges stem from an incident which occurred between June 1 and 2, 2010, wherein

Harkins sent nine photographs of nude children to a woman who lives in Hamilton County, Ohio.

        {¶ 3}      In Case 2, Harkins was indicted on January 31, 2011, for thirty counts of pandering

obscenity involving a minor and thirty-two counts of pandering sexually oriented matter involving a

minor. These charges stem from an incident where, pursuant to a search warrant, police discovered

several obscene photographs on Harkins’ cell phone depicting children engaged in sexual activity.

On May 31, the State filed a motion to consolidate Cases 1 and 2. The trial court granted the motion

on June 1, 2011.

        {¶ 4}      On November 17, 2011, Harkins pled guilty to one count of pandering obscenity

involving a minor, in violation of R.C. 2907.321(A)(2) in Case 1. In Case 2, Harkins pled guilty to

one count of pandering obscenities involving a minor, in violation of R.C. 2907.321(A)(5), and one

count of pandering sexually oriented material involving a minor, in violation of R.C. 2907.322(A)(5).

In exchange for Harkins’ guilty pleas, the State agreed to dismiss all of the remaining counts in

Cases 1 and 2.      The trial court found Harkins guilty and scheduled a sentencing hearing for

December 1, 2011.

        {¶ 5}      On November 23, 2011, Harkins filed a motion to withdraw his guilty pleas,

claiming that he had been pressured into entering the pleas. After a hearing on December 1, 2011,

the trial court denied Harkins’ motion to withdraw. The trial court, however, did not journalize its
                                                                                                        3

decision. On December 13, 2011, the trial court sentenced Harkins to an aggregate prison term of

fourteen years. Harkins was also classified as a Tier II sex offender.1

        {¶ 6}     It is from this judgment that Harkins now appeals.

        {¶ 7}     Harkins’ first assignment of error is as follows:

        {¶ 8}     “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

ALLOW THE DEFENDANT-APPELLANT TO WITHDRAW HIS GUILTY PLEA PRIOR TO

SENTENCING.”

        {¶ 9}     In his first assignment, Harkins contends that the trial court erred when it overruled

his pre-sentence motion to withdraw his guilty pleas.

        {¶ 10} A motion to withdraw a plea of guilty or no contest is governed by Crim.R. 32.1,

which 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.

        {¶ 11} The Ohio Supreme Court has ruled that a trial court should “freely and liberally

grant” a pre-sentence motion to withdraw a guilty plea, provided that the defendant provides a

reasonable and legitimate basis for the withdrawal. State v. Xie, 62 Ohio St.3d 521, 526-27, 584

N.E.2d 715 (1992). However, “[a] defendant does not have an absolute right to withdraw a guilty

plea prior to sentencing.” Id. at paragraph one of the syllabus. A decision to allow the withdrawal of

a guilty plea before sentencing is within the sound discretion of the trial court. Id. at paragraph two of


           1
         During the plea colloquy, the trial court mistakenly informed Harkins that
   he would be classified as a Tier III sex offender. This mistake was corrected by
   agreement of the parties at the hearing on Harkins’ motion to withdraw.
                                                                                                    4

the syllabus.

         {¶ 12} In reviewing whether the trial court abused its discretion, we apply 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.” State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 1st Dist.2001), citing State v.

Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980).

         {¶ 13} Initially, we note that Harkins concedes that he was represented by highly competent

counsel who acted appropriately on his behalf. Moreover, Harkins concedes that he received a full

Crim. R. 11 hearing before entering his plea, and his plea was made knowingly, voluntarily, and

intelligently.    Upon review, we note that Harkins indicated that he was satisfied with the

representation afforded him, and he had sufficient time to discuss the matter with his lawyer. Harkins

stated that he had completed approximately eleven years of school. Harkins acknowledged that he

had not been threatened or promised anything other than the dismissal of the bulk of the charges

against him in return for his guilty pleas. Harkins stated he was not under the influence of drugs or

alcohol. Harkins did not indicate to the court that he was under any emotional stress. Harkins

indicated that his plea was voluntary and acknowledged that he understood the nature of the charges

against him. Harkins acknowledged all of his rights, indicated that he understood them, and signed

the plea forms.

         {¶ 14} On appeal, Harkins argues that he was not allowed by the trial court to adduce any

evidence in support of his motion to withdraw. Specifically, Harkins asserts that the trial court did

not personally address him during the hearing, “thus precluding the trial court from determining

whether it may have had cause to grant” his motion to withdraw. At the beginning of the hearing on

the motion to withdraw, however, the following exchange occurred:
                                                                                                     5

                          Trial Court: *** Subsequent to taking this plea,

                          the Defense filed a motion to withdraw the pleas.

                          Ms. Marlow, do you wish to put anything further

                          on record at this time regarding the motion?

                          Defense Counsel: Not at this time, Your Honor.

        {¶ 15} Towards the end of the hearing, the trial court, once again, asked defense counsel

whether she wanted to put anything further on the record regarding the arguments she made in the

motion to withdraw. Defense counsel again informed the trial court that she did not have any

additional evidence to present. In doing so, defense counsel waived the opportunity to present the

testimony of Harkins regarding his rationale for wanting to withdraw his guilty pleas.

        {¶ 16} Upon review, we conclude that the trial court did not err when it overruled Harkins’

motion to withdraw. Although brief, Harkins was given an opportunity to present evidence on his

request to withdraw his pleas. The trial court provided defense counsel the opportunity to present

additional evidence, including Harkins’ own testimony, in support of the motion to withdraw.

Defense counsel, however, waived the opportunity to adduce any evidence, essentially allowing the

written motion to speak for itself.

        {¶ 17} In his motion, Harkins stated that he did “not believe he had adequate time to

contemplate the offer” and felt “that he was pressured into entering into the plea.” We note that the

record reveals that the case was pending for one and one-half years. Additionally, the initial offer to

plead guilty on the morning of trial was initiated by Harkins, after which he accepted the counteroffer

of the State. Without more, Harkins’ basis for seeking the withdrawal of his guilty pleas amounts

only to a change of heart. There is no evidence in the record of the plea hearing or the oral hearing

on the motion to withdraw which establishes that Harkins was under duress of any kind. Even in

pre-sentence motions to withdraw a guilty plea, a change of heart is not sufficient grounds to allow
                                                                                                        6

withdrawal of the guilty plea. State v. Sylvester, 2d Dist. Montgomery No. 22289, 2008-Ohio-2901.

        {¶ 18} Simply put, there is no indication from the record that Harkins’ decision to file a

motion to withdraw his pleas was anything other than a mere “change of heart,” which is not a

sufficient basis upon which a defendant can rely in order to successfully withdraw his guilty pleas.

Under these circumstances, the trial court did not abuse its discretion in denying Harkins’ motion to

withdraw his guilty pleas.

        {¶ 19} Harkins’ first assignment of error is overruled.

        {¶ 20} Harkins’ final assignment of error is as follows:

        {¶ 21} “THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW.”

        {¶ 22} In his final assignment, Harkins argues that the trial court was without authority to

impose an additional two years and nine months to each of the counts to which he plead guilty.

Specifically, Harkins argues that the trial court’s imposition of any time over two years and nine

months for violation of his post-release control was contrary to law.

        {¶ 23} In its brief, the State concedes that Harkins should have only been sentenced to two

years and nine months total, rather than five years and six months, for the violation of his post-release

control. At the time of his sentencing in the instant case, two years and nine months was the

remaining time on his post-release control sentence for a previous conviction in 2006. The State

notes that the Ohio Department of Rehabilitations and Corrections has already addressed the issue and

corrected Harkins’ release date to reflect the correct prison term for the post-release control violation.

However, because the trial court erred when it sentenced Harkins to the two distinct two year and nine

month terms for the post-release control violations, this portion of his sentence is reversed. This

matter is remanded for the limited purpose of the trial court preparing a corrected sentencing entry.

        {¶ 24} Harkins’ second assignment is sustained.

        {¶ 25} Harkins’ second assignment of error having been sustained, his sentence is reversed,
                                                                                                  7

and this matter is remanded for proceedings consistent with this opinion. In all other respects, the

judgment of the trial court is affirmed.

                                            ..........

HALL, J. and VUKOVICH, J., concur.

(Hon. Joseph J. Vukovich, Seventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Lisa M. Fannin
Marcy A. Vonderwell-Hull
Hon. Richard J. O’Neill
