[Cite as State v. Davis, 2016-Ohio-1391.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1084

        Appellee                                  Trial Court No. CR0201402535

v.

Dennis Dwight Davis                               DECISION AND JUDGMENT

        Appellant                                 Decided: March 31, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Christopher S. Clark, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, denying appellant’s, Dennis Dwight Davis, motion to withdraw his pleas of no

contest, and convicting him of three counts of rape in violation of R.C. 2907.02(A)(2)

and (B), felonies of the first degree, and two counts of sexual battery in violation of R.C.
2907.03(A)(5) and (B), felonies of the third degree. For the reasons that follow, we

affirm.

          {¶ 2} On September 25, 2014, the Lucas County Grand Jury entered a 24-count

indictment against appellant, including 10 counts of rape, six counts of unlawful sexual

conduct with a minor, and eight counts of sexual battery. The charges arose from

encounters with multiple victims, all of whom appellant had known previously.

Appellant entered initial pleas of not guilty to those charges. On February 11, 2015, as

part of a plea agreement, a 25th count was filed by information, charging appellant with

rape in violation of R.C. 2907.02(A)(2) and (B). Appellant withdrew his initial pleas of

not guilty, and pleaded no contest to the charge contained in the information as well as

two other counts of rape and two counts of sexual battery. The remaining counts were

dismissed. Upon accepting the plea and finding appellant guilty, the trial court continued

the matter for sentencing on March 3, 2015.

          {¶ 3} On March 3, the trial court began the sentencing hearing by first addressing

a pro se, handwritten motion to withdraw his guilty pleas, filed by appellant on

February 27, 2015. The trial court gave appellant additional time to consult with his

attorney, after which appellant elected to go forward with the motion to withdraw his

guilty pleas against the advice and recommendation of his attorney. The court then held a

hearing on the motion.

          {¶ 4} In support of his motion, appellant argued that he was never comfortable

with pleading guilty in the first place, but he was told that he had no chance at trial, so he




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accepted the plea agreement. He also stated that there were things which were favorable

to his defense, as well as discovery to which he had not had access. Appellant noted that

these reasons were why he paused during the Crim.R. 11 colloquy at the plea hearing

when the trial court asked him if he was comfortable taking the plea and was happy with

his attorney’s advice. Finally, appellant indicated that he believed he is not guilty of all

of the charges, and he would prefer going to trial with a new attorney.

       {¶ 5} In response to an inquiry by the court, appellant’s trial attorney commented

that there was substantial evidence against appellant, including DNA evidence and

testimony from the victims, and also flight issues prior to appellant’s arrest. The trial

attorney stated that he recommended accepting the plea offer based on the evidence and

the fact that, if convicted, appellant faced life imprisonment on some of the counts.

       {¶ 6} Upon receiving appellant’s arguments, the trial court exercised its discretion

and denied appellant’s motion to withdraw his guilty pleas. In its reasoning, the court

found that trial counsel was competent, that the Crim.R. 11 requirements were

meticulously followed, that while the prosecution may not be prejudiced, there may be

prejudice to the witnesses because of their age and the number of offenses that allegedly

occurred, and that appellant had not demonstrated a reasonable and legitimate basis for

withdrawing the pleas. The court then continued immediately to sentencing, and ordered

appellant to serve a total prison term of 19 years.

       {¶ 7} In its subsequent judgment entry memorializing the denial of the motion to

withdraw the guilty pleas, the trial court stated as its rationale:




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              The Court finds that the competency of counsel when he entered the

       pleas was not in question. During the plea hearing the Court found that the

       defendant knowingly, intelligently, and voluntary [sic] waived his rights

       pursuant to Rule 11. During that hearing, the defendant stated that he was

       satisfied with [the trial attorney’s] representation, that he knew the nature of

       the charges, the plea agreement and the possible sentencing options. The

       Court finds that the motion was made in a timely manner and while the

       State may not be prejudiced the young and numerous witnesses would be.

       This Court had the benefit of presiding over the entire case as well as the

       Rule 11 plea hearing.

       {¶ 8} Appellant has timely appealed the trial court’s judgment, raising one

assignment of error for our review:

              The trial court abused its discretion in denying Appellant’s Motion

       to Withdraw the pleas.

                                          Analysis

       {¶ 9} “The decision to grant or deny a presentence motion to withdraw a guilty

plea is within the sound discretion of the trial court.” State v. Xie, 62 Ohio St.3d 521, 584

N.E.2d 715 (1992), paragraph two of the syllabus. “[A] presentence motion to withdraw

a guilty plea should be freely and liberally granted.” Id. at 527. However, “[a] defendant

does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial

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




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basis for the withdrawal of the plea.” Id. at paragraph one of the syllabus. “Absent an

abuse of discretion on the part of the trial court in making the ruling, its decision must be

affirmed.” Id. at 527. An abuse of discretion connotes that the trial court’s ruling was

“unreasonable, arbitrary, or unconscionable.” State v. Adams, 62 Ohio St. 2d 151, 157,

404 N.E.2d 144 (1980).

       {¶ 10} We have recognized several factors to be considered by the trial court in

determining whether a presentence motion to withdraw a plea is warranted. Those

factors include:

              (1) [W]hether the prosecutor would be prejudiced if the plea was

       vacated; (2) whether the accused was represented by highly competent

       counsel; (3) whether the accused was given a full Crim.R. 11 hearing;

       (4) whether a full hearing was held on the motion; (5) whether the trial

       court gave full and fair consideration to the motion; (6) whether the motion

       was made within a reasonable time; (7) whether the motion set forth

       specific reasons for the withdrawal; (8) whether the accused understood the

       nature of the charges and possible penalties; and (9) whether the accused

       was perhaps not guilty or had a complete defense to the crime. State v.

       Eversole, 6th Dist. Erie Nos. E-05-073, E-05-076, E-05-074, E-05-075,

       2006-Ohio-3988, ¶ 13, citing State v. Fish, 104 Ohio App.3d 236, 240, 661

       N.E.2d 788 (1st Dist.1995).




5.
       {¶ 11} Here, appellant argues that the trial court’s decision was unreasonable and

arbitrary because it was based on the notion that young witnesses would be prejudiced.

Appellant asserts that there is no indication that any of the witnesses would be

inconvenienced by the trial process. Instead, he explains that the prejudice to the

witnesses is due solely to the fact that they would be required to testify about these

events. Appellant notes, however, that there is an expectation that the witnesses would

testify if appellant had exercised his constitutional right to a jury trial. Thus, he

concludes that it is improper to rely on the prejudice to witnesses to deny his motion to

withdraw his guilty pleas.

       {¶ 12} Upon review, we disagree that the sole reason for the denial of appellant’s

motion was the prejudice to the witnesses. The trial court, after giving appellant a full

hearing on the motion, also found that he was represented by highly competent counsel,

that he was afforded a Crim.R. 11 hearing, that he understood the nature of the charges

along with their possible penalties, and that he did not demonstrate a reasonable and

legitimate basis for withdrawing his pleas. In light of this, we cannot say that the trial

court’s decision was unreasonable, arbitrary, or unconscionable. Therefore, we hold that

the trial court did not abuse its discretion in denying appellant’s presentence motion to

withdraw his guilty pleas.

       {¶ 13} Accordingly, appellant’s assignment of error is not well-taken.




6.
       {¶ 14} For the foregoing reasons, we find that substantial justice was done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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