[Cite as State v. Baker, 2012-Ohio-853.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO,                             :       JUDGES:
                                           :       Hon. William B Hoffman, P.J.
        Plaintiff-Appellee                 :       Hon. Sheila G. Farmer, J.
                                           :       Hon. John W. Wise, J.
-vs-                                       :
                                           :
JESSE JAMES BAKER                          :       Case No. 11 CA 16
                                           :
        Defendant-Appellant                :       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from Court of Common
                                               Pleas, Case No. 10 CR 103


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         February 28, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

STEVEN KNOWLING                                 CLARK W. OWENS
PROSECUTING ATTORNEY                            132 South Market Street
164 East Jackson Street                         Suite 204
Millersburg, Ohio 44654                         Wooster, Ohio 44691
Holmes County, Case No. 11 CA 16                                                        2

Wise, J.

       {¶1}   Appellant Jesse James Baker appeals his sentence and conviction

entered in the Holmes County Common Pleas Court. Appellant also appeals the denial

of his motion to withdraw his guilty plea.

       {¶2}   Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   This case involves a negotiated plea and, as such, the only reference to

the facts contained in the record is in the transcript of the February 17, 2011, plea

hearing. The Prosecutor summarized the facts underlying the plea as follows:

       {¶4}   Prosecutor: “… on October 22nd agents of the Holmes County

Prosecuting Drug Enforcement Unit as well as the Medway Drug Enforcement Unit

executed a search warrant on Township Road 212 in Washington Township here in

Holmes County. The search warrant was for a trailer camper as well as a garage and a

house.

       {¶5}   “During the search of the camper and the garage the defendant's

codefendant was found in an active cook of Methamphetamine in the garage. The

search warrant of the camper itself revealed numerous chemicals necessary for the

production of Methamphetamine, including but not limited to ah, ammonia nitrate and

cold packs, hydrochloric acid, lye, Coleman fuel, common drain opener, nuratic acid,

pseudoephedrine, which is cold pills ah, and lithium battery strips. In addition there was

numerous what's called Meth trash, the byproducts from a previous cook of

Methamphetamine. Methamphetamine itself, finished product was found in the camper

as well as Heroin and a .22 rifle was found inside the camper loaded with 17 rounds,
Holmes County, Case No. 11 CA 16                                                            3


which we found to be an operable firearm after being test fired. His camper was

approximately 10 or 12 by 16, one room. The defendant has a prior conviction in Darke

County in 2004 for Possession of Cocaine. That's a felony conviction.” (T. at 1-13).

          {¶6}   On November 23, 2010, the Holmes County Grand Jury indicted

Appellant, together with a co-defendant, on the following charges:

          {¶7}   Count I: Illegal Manufacture of Methamphetamine, in violation of R.C.

2925.04, a second degree felony;

          {¶8}   Count II: Illegal Assembly or Possession of Chemicals/Methamphetamine,

in violation of R.C. 2925.041, a third degree felony;

          {¶9}   Count III: Aggravated Trafficking in Methamphetamine, in violation of R.C.

2925.03, a third degree felony;

          {¶10} Count IV: Possession of Methamphetamine, in violation of R.C. 2925.11, a

third degree felony;

          {¶11} Count V: Possession of Heroin, in violation of R.C. 2925.11, a fifth degree

felony;

          {¶12} Count VI: Possession of Paraphernalia, in violation of R.C. 2925.14, a

fourth degree misdemeanor;

          {¶13} Count VII: Weapons Under Disability, in violation of R.C. 2923.13, a third

degree felony.

          {¶14} The Indictment also contained a forfeiture specification and a firearm

specification. The forfeiture specification listed the items to be forfeited, and alleged that

the items were either used or intended to be used in the commission or facilitation of a

felony or that they were contraband or proceeds.
Holmes County, Case No. 11 CA 16                                                       4


       {¶15} On January 11, 2011, Appellant was also indicted in Case No. 11CR002.

This indictment contained one count of Illegal Manufacture/Methamphetamine, F2, in

violation of R.C. 2925.04, one count of Illegal Assembly, F3, in violation of R.C.

2925.041, and one firearm specification assigned to both counts. The only difference

between these counts and the first two counts in Case No. 10CR103 was that the date

of offense in 10CR103 was stated as "October 26, 2010," and in 11CR002 it was given

as "On or about October 1, 2010 through October 25, 2010."

       {¶16} On January 6, 2011, a pre-trial hearing was held. At this time the two

cases were ordered joined for trial by Judgment Entry dated January 14, 2011.

       {¶17} On January 21, 2011, the trial court issued a Judgment Entry indicating

the case had been scheduled for trial on January 6, 2011, but that two previous judges

had abandoned the case due to conflicts of interest and/or scheduling, and the present

judge on assignment was not able to conduct the expected 3-day trial due to its own

docket conflicts in Wayne County, and was unable to do so until February 22, 2011. The

trial court therefore ordered a continuance, acknowledging that Appellant had been

incarcerated since October 26, 2010, but citing R.C. 2945.72(H), as basis for a

reasonable continuance.

       {¶18} On January 26, 2011, upon motion by the State, the trial court amended

Counts III and IV in Case No. 10CR103 from Felony 3 to Felony 4 offenses.

       {¶19} On February 3, 2011, Appellant filed a pro se Motion to Dismiss, based on

a claim of violation of speedy trial rights.

       {¶20} On February 17, 2011, Appellant entered guilty pleas to Counts II, V, and

VII of the original indictment as follows: one count of Illegal Assembly or Possession of
Holmes County, Case No. 11 CA 16                                                        5


Chemicals Necessary for the Manufacture of Methamphetamine (Count II), in violation

of R.C. 2925.041, a felony of the third degree with a two year minimum mandatory

sentence; one count of Possession of Heroin (Count V), in violation of R.C. 2925.11, a

felony of the fifth degree; and one count of Having Weapons While Under Disability

(Count VII), in violation of R.C. 2923.13, a felony of the third degree. In addition,

Appellant pled guilty to the firearm specification contained in the indictment which

carried a one-year mandatory prison sentence. Appellant further consented and

stipulated to the property forfeiture specification contained in the indictment. The

remaining counts in Case No. 10-CR-103, as well as the indictment in Case No. 11-CR-

002, were dismissed.

       {¶21} After his plea, the trial judge granted Appellant an "O.R." bond with certain

reporting conditions. Subsequently, a bench warrant was issued due to Appellant's

failure to comply with the reporting requirements of this bond.

       {¶22} Appellant failed to appear at his March sentencing date.

       {¶23} Appellant was eventually located in the State of Illinois, arrested and

appeared for sentencing on August 2, 2011.

       {¶24} Prior to sentence being imposed, Appellant moved to withdraw his guilty

plea. The trial court held a hearing, at which time the State opposed Appellant's motion.

The trial court denied defendant's motion. (T. at 1-4).

       {¶25} The trial court then proceeded to sentence Appellant as follows:

       {¶26} Count II. Illegal Assembly of Chemicals- 2 years minimum mandatory.

       {¶27} Count V. Possession of Heroin - 1 year.

       {¶28} Count VII. Weapons Under Disability- 1 year.
Holmes County, Case No. 11 CA 16                                                       6


       {¶29} Firearm specification - 1 year.

       {¶30} Count V was ordered to run concurrent with Count II and Count VII was

ordered to run consecutive to Counts I and II, for a total sentence of four years.

       {¶31} A separate judgment entry was filed on August 3, 2011, forfeiting the

items listed in the original indictment forfeiture specification.

       {¶32} The original sentencing judgment entry was filed on August 3, 2011,

followed by a Nunc Pro Tunc sentencing judgment entry on August 30, 2011, to correct

the numbering of the counts to which Appellant pled guilty.

       {¶33} It is from this judgment entry that Appellant now appeals, assigning the

following errors for review:

                                   ASSIGNMENTS OF ERROR

       {¶34} "I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO

GIVE CREDIT FOR ALL TIME SERVED.

       {¶35} “II.   MR.    BAKER'S      GUILTY     PLEA     WAS     NOT   KNOWING    AND

VOLUNTARY.

       {¶36} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING

MR. BAKER TO WITHDRAW HIS PLEA UPON HIS MOTION PRIOR TO

SENTENCING.

       {¶37} “IV. MR. BAKER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

INVOLVING PLAIN ERRORS.

       {¶38} “V. THE SENTENCE IS CONTRARY TO LAW BY VIRTUE OF BEING

MEANINGLESS.
Holmes County, Case No. 11 CA 16                                                         7


       {¶39} “VI. THE JUDGMENT ENTRY OF SENTENCING IS CONTRARY TO

LAW BECAUSE IT DOES NOT DISPOSE OF ALL THE MATTERS IN THE

INDICTMENT, AND MAY NOT BE A FINAL, APPEALABLE ORDER.

       {¶40} “VII. THE SENTENCING COURT COMMITTED PLAIN ERROR AND THE

JUDGMENT ENTRY OF SENTENCING IS CONTRARY TO LAW BECAUSE IT DOES

NOT INCLUDE NOTICE OF PENALTIES FOR VIOLATION OF POST-RELEASE

CONTROL,       NOR    DOES     IT   INCLUDE        SECTION   REFERENCES        FOR    THE

SPECIFICATIONS.”

                                            III.

       {¶41} For purposes of economy, we shall address Appellant’s assignments of

error out of order.

       {¶42} In Appellant’s third assignment of error, he claims that the trial court erred

in denying his motion to withdraw his guilty plea.

       {¶43} Crim.R. 32.1 governs withdrawal of guilty plea and states:

       {¶44} “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.”

       {¶45} 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.
Holmes County, Case No. 11 CA 16                                                           8


       {¶46} 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.

       {¶47} “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.” State v. McNeil (2001), 146 Ohio App.3d 173, 175-

176. (Footnotes omitted.)

       {¶48} The State of Ohio concedes Appellant's assignment of error has merit.

       {¶49} Here, Appellant pled guilty pursuant to a plea agreement. However, prior

to sentencing, Appellant moved the trial court to allow him to withdraw his guilty plea.
Holmes County, Case No. 11 CA 16                                                            9


       {¶50} A review of the sentencing hearing reveals that Appellant expressed to the

trial court that it had always been his wish to have a jury trial in this matter and, further,

that he wanted to raise issues concerning the search warrant.

       {¶51} As Appellant did articulate specific reasons in support of his motion to

withdraw and did make his motion to withdraw prior to imposition of sentence, we find

that the trial court did abuse its discretion in not freely and liberally granting such motion

in this case.

       {¶52} Since the record reflects the trial court abused its discretion in denying

Appellant's motion to withdraw his guilty pleas, his convictions and sentences are

vacated, and his case is remanded for further proceedings.

       {¶53} We further find that this disposition renders Appellant’s remaining

assignments of error moot. App.R. 12(A)(1)(c).

       {¶54} Accordingly, the judgment of the Common Pleas Court, Holmes County,

Ohio, is reversed.    Appellant's pleas and convictions are vacated, and this case is

remanded.

By: Wise, J.

Hoffman, P.J., and

Farmer, J., concur.

                                               _ ________________________________


                                               __________________________________


                                               ___________________________________
                                                                 JUDGES
JWW/d 0217
Holmes County, Case No. 11 CA 16                                             10


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
JESSE JAMES BAKER                           :
                                            :
       Defendant-Appellant                  :         CASE NO. 11 CA 16




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

judgment of the Court of Common Pleas, Holmes County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs to Appellee.




                                            __________________________________


                                            __________________________________


                                            __________________________________
                                                             JUDGES
