[Cite as State v. DeJesus, 2015-Ohio-4111.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :  C.A. CASE NO. 2015-CA-4
                                                    :
 v.                                                 :  T.C. NO. 13CR563
                                                    :
 JOHN P. DeJESUS, JR.                               :  (Criminal appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :
                                               ...........

                                              OPINION

                    Rendered on the __2nd__ day of ___October___, 2015.

                                               ...........

ELIZABETH A. ELLIS, Atty, Reg. No. 0074332, Assistant Prosecuting Attorney, 55
Greene Street, Xenia, Ohio 45385
     Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 200 W. Main Street, Eaton, Ohio
45320
      Attorney for Defendant-Appellant

JOHN P. DeJESUS, JR., Inmate #712775, London Correctional Institute, P. O. Box 69,
London, Ohio 43140
     Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} On October 18, 2013, DeJesus was indicted for one count of domestic

violence, in violation of R.C. 2919.25(A), a felony of the third degree. At his arraignment

on November 22, 2013, DeJesus pled not guilty to the charged offense.
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      {¶ 2} DeJesus filed a motion to suppress in which he sought to exclude any

incriminating statements he made to the police upon being arrested. However, on March

17, 2014, DeJesus withdrew his motion to suppress.

      {¶ 3} Thereafter, on October 2, 2014, DeJesus withdrew his plea of not guilty and

entered a guilty plea to one count of domestic violence. In exchange for his plea, the

State agreed to reduce the degree of the offense from third degree felony to a felony of

the fourth degree.

      {¶ 4} On November 19, 2014, DeJesus orally informed the trial court that he

wanted to withdraw his guilty plea. The trial court subsequently permitted DeJesus’

counsel to withdraw, and new counsel was appointed to represent him. After a hearing

held on January 23, 2015, the trial court denied DeJesus’ motion to withdraw his guilty

plea in a judgment entry issued on January 26, 2015.         DeJesus was sentenced to

eighteen months in prison. The trial court also imposed an optional period of post-

release control of up to three years and ordered him to pay the costs of the proceeding.

      {¶ 5} DeJesus filed a timely notice of appeal with this Court on January 30, 2015,

and counsel was appointed to prosecute this appeal. On June 12, 2015, appointed

counsel filed an Anders brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), wherein counsel argued that there were no meritorious

issues to present on appeal. By magistrate's order on June 24, 2015, this Court advised

DeJesus that an Anders brief had been filed by his counsel and of the significance of an

Anders brief. DeJesus was granted sixty days from June 24, 2015, to file a pro se brief

assigning error for an independent review by this court. DeJesus has filed nothing with

this court. After a thorough review of the record, this Court agrees that the trial court's
                                                                                       -3-


proceedings were proper, and we affirm the trial court's judgment.

       {¶ 6} Although appointed counsel represents that he can identify no arguably

meritorious issues to present on appeal, he nevertheless identifies two potential

assignments of error. The first potential assignment is as follows:

       {¶ 7} “THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S GUILTY

PLEA ON THE BASIS OF HIS ADMISSION WHERE SUCH AN ADMISSION WAS NOT

MADE KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY AND THEREBY

VIOLATED HIS RIGHTS AFFORDED HIM UNDER THE CONSTITUTION OF THE

UNITED STATES AND THE STATE OF OHIO.”

       {¶ 8} In his first potential assignment, appointed counsel argues that DeJesus'

guilty plea was not made in a knowing, voluntary, and intelligent fashion.

       {¶ 9} In order to satisfy the requirements of due process, a guilty plea must be

knowingly, intelligently, and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242–243,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The plea must be made with a full understanding

of its consequences. State v. Bowen, 52 Ohio St.2d 27, 28, 368 N.E.2d 843 (1977).

Before accepting a guilty plea, a trial court must substantially comply with the

requirements of Crim.R. 11. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990), citing State v. Stewart, 51 Ohio St.2d 86, 92–93, 364 N.E.2d 1163 (1977).

“Substantial compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.” Nero,

at 108. Here, the trial court did substantially comply with Crim.R. 11 during DeJesus'

plea hearing.

       {¶ 10} The trial court informed DeJesus of the facts underlying the charges against
                                                                                            -4-


him, the maximum sentence that he faced, and the constitutional rights that he waived by

foregoing a trial. Prior to accepting the plea, the trial court asked DeJesus whether he

understood what he was doing, whether he was acting of his own free will and not as the

result of any promises aside from those incorporated in the plea agreement, and whether

he wanted the court to accept the plea. DeJesus responded to all of these questions in

the affirmative. DeJesus acknowledged that he had discussed his case with his attorney,

including the elements of the offenses with which he was charged and his potential

defenses. DeJesus stated that his attorney had gone over the plea forms with him and

that he was satisfied with his attorney's representation.

       {¶ 11} Upon review, we conclude that the record reflects that DeJesus knowingly,

intelligently, and voluntarily entered into the plea agreement, which provided a significant

benefit to him insofar as the domestic violence count was reduced from a third degree

felony to a felony of the fourth degree.

       {¶ 12} Accordingly, DeJesus’ first potential assignment of error is without merit.

       {¶ 13} DeJesus’ second potential assignment of error is as follows:

       {¶ 14} “THE TRIAL COURT ERRED BY DENYING MR. DEJESUS’S MOTION TO

VACATE PLEA.”

       {¶ 15} In his second potential assignment, DeJesus argues that the trial court erred

when it denied his pre-sentence motion to withdraw his guilty plea.

       {¶ 16} As this Court has previously noted:

       * * * Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no

       contest may be made only before sentence is imposed; but to correct a

       manifest injustice the court after sentence may set aside the judgment of
                                                                                          -5-


      conviction and permit the defendant to withdraw his or her plea.” Under the

      foregoing rule, a pre-sentence motion to vacate a guilty plea “should be

      freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584

      N.E.2d 715 (1992). Nevertheless, even under the pre-sentence standard,

      the right to withdraw a plea is not absolute and a trial court retains discretion

      to overrule a pre-sentence plea-withdrawal motion. Id. The pre-sentence

      standard, however, is far more lenient than the “manifest injustice” standard

      applicable to post-sentence motions. State v. Fugate, 2d Dist. Montgomery

      No. 21574, 2007–Ohio–26, ¶ 10.

      ***

      But even under the more lenient pre-sentence standard, “a defendant must

      show a reasonable and legitimate basis for the withdrawal of the plea.” * * *

      “A change of heart is not enough,” and a trial court's finding regarding a

      defendant's true motivation is entitled to deference. * * * Likewise, a trial

      court's ultimate decision to grant or deny a pre-sentence motion to withdraw

      a guilty plea is subject to review for an abuse of discretion. Fugate, at ¶ 10.

State v. Simpson, 2d Dist. Montgomery No. 24266, 2011–Ohio–6181, ¶ 7, 10.

      {¶ 17} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482

N.E.2d 1248 (1985). A decision is unreasonable if there is no sound reasoning process

that would support that decision. AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990); Feldmiller v.

Feldmiller, 2d Dist. Montgomery No. 24989, 2012–Ohio–4621, ¶ 7.
                                                                                        -6-


      {¶ 18} As this Court has noted:

      A trial court does not abuse its discretion in overruling a motion to withdraw:

      (1) where the accused is represented by highly competent counsel, (2)

      where the accused was afforded a full hearing, pursuant to Crim. R. 11,

      before he entered the plea, (3) when, after the motion to withdraw is filed,

      the accused is given a complete and impartial hearing on the motion, and

      (4) where the record reveals that the court gave full and fair consideration

      to the plea withdrawal request.

State v. Askew, 2d Dist. Montgomery No. 20110, 2005–Ohio–4026, ¶ 8.

      {¶ 19} Further, this Court in Askew noted as follows:

      When conducting the hearing on the motion to withdraw, the trial court may

      consider: “(1) whether the state will be prejudiced by withdrawal; (2) the

      representation afforded to the defendant by counsel; (3) the extent of the

      Crim. R. 11 plea hearing; (4) the extent of the hearing on the motion to

      withdraw, * * * (5) whether the timing of the motion was reasonable; (6) the

      reasons for the motion; (7) whether the defendant understood the nature of

      the charges and potential sentences, and (8) whether the accused was

      perhaps not guilty or had a complete defense to the charge.”

Askew, at ¶ 11, quoting State v. Cuthbertson, 139 Ohio App.3d 895, 898–899, 746

N.E.2d 197 (7th Dist.2000).

      {¶ 20} Under the more lenient pre-sentence standard, a defendant must show

“there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio

St.3d 521, 584 N.E.2d 715, at paragraph one of the syllabus. A trial court that denies a
                                                                                        -7-


pre-sentence motion to withdraw a guilty plea does not abuse its discretion where the

only reason given by the defendant is a change of heart. State v. Cohen, 2d Dist.

Montgomery No. 25376, 2013–Ohio–2928, ¶ 15; Sylvester, 2d Dist. Montgomery No.

22289, 2008–Ohio–2901 at ¶ 11; State v. Thomas, 2d Dist. Greene No. 2006 CA 57,

2007–Ohio–443, ¶ 11.

       {¶ 21} Recently, in State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-

Ohio-4849, we addressed a similar situation to the case at bar. In Spurgeon, we found

that although the appellant’s pre-sentence motions to withdraw his guilty plea claimed

that he was perhaps not guilty or had a complete defense to the charges, he possessed

such knowledge prior to entering the guilty plea and had discussed the issue with his

attorney. Id. at ¶ 19. Denial of a pre-sentence motion to withdraw a guilty plea was found

not to be an abuse of discretion where the motion was based upon a complete defense

that the defendant was aware of when he entered the plea. Id. at ¶ 18, citing State v.

Littlefield, 4th Dist. Ross No. 03CA2747, 2004–Ohio–5996. Upon review, we found that

the reason behind appellant’s motion to withdraw was a mere change of heart, which is

an insufficient basis to permit the withdrawal of a guilty plea. Spurgeon, at ¶ 19. Thus,

we found that the trial court did not err when it denied appellant’s pre-sentence motions

to withdraw his guilty plea.

       {¶ 22} In the instant case, DeJesus argued in his motion to withdraw his guilty plea

that a cell phone video existed that would exonerate him of the domestic violence charge.

Upon inquiry, however, the trial court found that DeJesus was aware of the existence of

the video and had discussed it with trial counsel prior to entering his guilty plea.

Furthermore, nothing in the record suggests the video is anything but incriminating, as it
                                                                                        -8-


was provided to the police as evidence of a beating. Citing directly to our decision in

Spurgeon, the trial court found that the cell phone video was, therefore, not new evidence

and could not be relied upon as a basis upon which to withdraw his plea.

       {¶ 23} Additionally, DeJesus informed the court that he had talked with his attorney

about the nature of the charges and potential defenses that might be available and he

was completely satisfied with his attorney. Change of Plea Trans. (October 2, 2014), p. 8

– 9. DeJesus acknowledged that he understood that if he pled guilty to these offenses

he was making a complete admission that he committed the allegations contained in the

charges. Id., at 15. DeJesus also affirmatively answered that he understood that if he

entered a plea of guilty the court may enter judgment of guilt against him and proceed to

sentencing in accordance with law. Id.       Under such circumstances, the trial court

reasonably found that DeJesus merely had a change of heart. Accordingly, the trial court

did not abuse its discretion when it denied DeJesus’ motion to withdraw his guilty plea.

       {¶ 24} DeJesus’ second potential assignment of error is without merit.

       {¶ 25} Additionally, in the performance of our duty, under Anders v. California, to

conduct an independent review of the record, we have found no additional potential

assignments of error having arguable merit. Since this appeal is wholly frivolous, it is

dismissed. The judgment of the trial court is affirmed.

                                       ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Elizabeth A. Ellis
Brian A. Muenchenbach
John P. DeJesus, Jr.
Hon. Michael A. Buckwalter
