 [Cite as State v. Curtis, 2019-Ohio-1108.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 MEIGS COUNTY

 STATE OF OHIO,                  :
                                 :   Case No. 18CA12
      Plaintiff-Appellee,        :
                                 :
      vs.                        :   DECISION AND JUDGMENT
                                 :   ENTRY
 MELODY D. CURTIS,               :
                                 :
      Defendant-Appellant.       :   Released: 03/20/19
_____________________________________________________________
                           APPEARANCES:

 Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

 James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
 Appellee.
 _____________________________________________________________

 McFarland, J.

         {¶1} This is an appeal from a Meigs County Court of Common Pleas

 judgment entry convicting Appellant, Melody Curtis, of one count of illegal

 cultivation of marijuana, a fifth-degree felony in violation of R.C.

 2925.04(A), which was issued after the trial court verbally denied her pre-

 sentence motion to withdraw her guilty plea. On appeal, Appellant contends

 1) the trial court erred in failing to conduct a mandatory hearing on her pre-

 sentencing motion to withdraw her guilty plea; and 2) trial counsel rendered

 constitutionally ineffective assistance in violation of her rights under the
Meigs App. No. 18CA12                                                           2

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution

and Ohio Constitution. Because we conclude the trial court erred and

abused its discretion in failing to hold a hearing prior to denying Appellant's

motion to withdraw her guilty plea, Appellant's first assignment of error is

sustained. Further, in light of our disposition of Appellant's first assignment

of error, Appellant's second assignment of error has been rendered moot and

we do not address it. Accordingly, the judgment of the trial court is reversed

and this matter is remanded to the trial court for further proceedings

consistent with this opinion.

                                   FACTS

      {¶2} On July 12, 2017, Appellant was indicted by the Meigs County

Grand Jury on two counts: 1) illegal cultivation of marijuana, a fifth-degree

felony in violation of R.C. 2925.04(A) & (C)(5)(c); and 2) one count of

possession of marijuana, a fifth-degree felony in violation of R.C.

2925.11(A) & (C)(3)(c). Appellant initially pleaded not guilty to the

charges, but then entered into a plea agreement with the State whereby she

would plead guilty to one count of illegal cultivation of marijuana in

exchange for the dismissal of the possession of marijuana charge. A change

of plea hearing was held on December 14, 2017, where the trial court
Meigs App. No. 18CA12                                                           3

accepted Appellant's guilty plea to illegal cultivation of marijuana. A

sentencing hearing was then scheduled for January 24, 2018.

      {¶3} A review of the record reveals that although both parties

appeared for the scheduled sentencing hearing on January 24, 2018, the

hearing was rescheduled by the trial court due to the court desiring to obtain

more information about Appellant and the charges filed against her prior to

imposing sentencing. The transcript from the January 24th hearing

demonstrates there was a discussion between the court and counsel

regarding the number of marijuana plants that were recovered at the time

Appellant was arrested. The sentencing hearing was ultimately rescheduled

for February 21, 2018.

      {¶4} Appellant, however, filed a motion to withdraw her guilty plea

just prior to the start of the scheduled sentencing hearing on February 21st.

Appellant's motion alleged the affirmative defense of personal use in regards

to the charges contained in the indictment. The record indicates the trial

court verbally denied the motion, without holding a hearing, and then

proceeded to Appellant's sentencing. Appellant now appeals the judgment

of the trial court, assigning two errors for our review.
Meigs App. No. 18CA12                                                              4

                        ASSIGNMENTS OF ERROR

"I.   THE TRIAL COURT ERRED IN FAILING TO CONDUCT A
      MANDATORY HEARING ON DEFENDANT-APPELLANT’S
      PRE-SENTENCE MOTION TO WITHDRAW A GUILTY PLEA.

II.   TRIAL COUNSEL RENDERED CONSTITUTIONALLY
      INEFFECTIVE ASSISTANCE IN VIOLATION OF CURTIS’
      RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH
      AMENDMENTS TO THE UNITED STATES CONSTITUTION
      AND OHIO CONSTITUTION ARTICLE I, §§ 5, 10 AND 16."

                        ASSIGNMENT OF ERROR I

      {¶5} In her first assignment of error, Appellant contends that the trial

court erred in failing to conduct a mandatory hearing on her pre-sentence

motion to withdraw her guilty plea. The State concedes the trial court erred

in failing to conduct a hearing. Accordingly, for the following reasons and

also in light of the State's concession, Appellant’s first assignment of error is

sustained.

                          STANDARD OF REVIEW

      {¶6} Trial courts possess discretion when deciding whether to grant or

to deny a presentence motion to withdraw a guilty plea. State v. Howard,

2017-Ohio-9392, 103 N.E.2d 108, ¶ 20 (4th Dist.); State v. Xie, 62 Ohio

St.3d 521, 584 N.E.2d 715, paragraph two of the syllabus (1992). Thus,

absent an abuse of discretion, appellate courts will not disturb a trial court's

ruling concerning a motion to withdraw a guilty plea. Id. at 527. An “abuse
Meigs App. No. 18CA12                                                            5

of discretion” means that the court acted in an “ ‘unreasonable, arbitrary, or

unconscionable’ ” manner or employed “ ‘a view or action that no

conscientious judge could honestly have taken.’ ” Howard, supra; quoting

State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67;

quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d

671, ¶ 23. Moreover, a trial court generally abuses its discretion when it

fails to engage in a “ ‘sound reasoning process.’ ” Howard, supra, quoting

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14;

quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally,

“[a]buse-of-discretion review is deferential and does not permit an appellate

court to simply substitute its judgment for that of the trial court.” Howard,

supra; quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 34.

                            LEGAL ANALYSIS

      {¶7} Crim.R. 32.1 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.” Crim.R.

32.1 permits a defendant to file a motion to withdraw a guilty plea before
Meigs App. No. 18CA12                                                          6

sentence is imposed. While trial courts should “freely and liberally” grant a

presentence motion to withdraw a guilty plea, a defendant does not “have an

absolute right to withdraw a guilty plea prior to sentencing.” Howard, supra,

at ¶ 21; quoting Xie at 527; accord State v. Ketterer, 126 Ohio St.3d 448,

2010-Ohio-3831, 935 N.E.2d 9, ¶ 57; State v. Spivey, 81 Ohio St.3d 405,

415, 692 N.E.2d 151 (1998); State v. Wolfson, 4th Dist. Lawrence No.

02CA28, 2003-Ohio-4440, ¶ 14. Instead, “[a] trial court must conduct a

hearing to determine whether there is a reasonable and legitimate basis for

the withdrawal of the plea.” Howard, supra; quoting, Xie at paragraph one of

the syllabus; accord State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577,

906 N.E.2d 422, ¶ 10, superseded by statute on other grounds as stated in

State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.

      {¶8} While a trial court possesses discretion to determine whether to

grant or to deny a presentence motion to withdraw a guilty plea, it does not

have discretion to determine if a hearing is required. Howard, at ¶ 22; see

also Wolfson at ¶ 15. Instead, a trial court has a mandatory duty to hold a

hearing regarding a presentence motion to withdraw a guilty plea. Howard,

supra; Xie at paragraph one of the syllabus; State v. Leonhart, 4th Dist.

Washington No. 13CA38, 2014-Ohio-5601, ¶ 50; State v. Burchett, 4th Dist.

Scioto No. 11CA3445, 2013-Ohio-1815, ¶ 13; State v. Davis, 4th Dist.
Meigs App. No. 18CA12                                                          7

Lawrence No. 05CA9, 2005-Ohio-5015, ¶ 9; Wolfson at ¶ 15; State v.

Wright, 4th Dist. Highland No. 94CA853, 1995 WL 368319 (June 19,

1995). In Wright, we explained:

      "Without a hearing, it is not possible to determine whether a
      legitimate and reasonable basis exists for a motion to withdraw
      a guilty plea. Because a hearing is clearly required by Xie,
      supra, as the mechanism by which [the] trial court determines
      whether there is a reasonable and legitimate basis for a motion
      to withdraw a guilty plea, we hold that the denial of a hearing is
      reversible error as a matter of law." Id. at *5.

      {¶9} “While Xie states that a hearing is mandatory, it does not define

the type of hearing that is required.” Wolfson at ¶ 16. This Court, however,

has previously “concluded that a hearing complying with at least the

minimum mandates of due process is necessary.” Id.; citing Wright; accord

State v. Robinson, 8th Dist. Cuyahoga No. 89651, 2008-Ohio-4866, ¶ 24

(noting that although the Xie court did not define the type of hearing

required, “it is axiomatic that such hearing must comport with the minimum

standards of due process”). In Wolfson, we explained that although a trial

court “must afford the defendant meaningful notice and a meaningful

opportunity to be heard,” the court nonetheless retains discretion to define

the scope of the hearing so as to “ ‘reflect the substantive merits of the

motion.’ ” Id. at ¶ 16; quoting Wright at *6, and citing State v. Smith, 8th

Dist. Cuyahoga No. 61464, 1992 WL 369273, *5 (Dec. 10, 1992).
Meigs App. No. 18CA12                                                           8

Additionally, a trial court need not necessarily “schedule a separate hearing”

in order to comply with minimum due process standards. State v. Glavic,

143 Ohio App.3d 583, 589, 758 N.E.2d 728 (11th Dist.2001). Instead, as

long as a trial court affords a defendant “an opportunity at a hearing to assert

to the court the reasons why the [defendant] should be able to withdraw his

plea, he has been given a ‘full and actual hearing on the merits.’ ” State v.

Maistros, 8th Dist. Cuyahoga No. 43835, 1982 WL 5253, *3 (Mar. 25,

1982) (internal citation omitted); accord State v. Hall, 8th Dist. Cuyahoga

No. 55289, 1989 WL 42253, *2 (Apr. 27, 1989).

      {¶10} We further point out that a trial court need not conduct a full

evidentiary hearing if the defendant fails to “ ‘make a prima facie showing

of merit * * *. * * * This approach strikes a fair balance between fairness to

the accused and the preservation of judicial resources.’ ” Smith at *5;

quoting Hall at *1; accord Wright at *6. “[B]old assertions without

evidentiary support” ordinarily will not merit a full evidentiary hearing. Hall

at *1; e.g., Davis, supra, at ¶ 10; Wolfson at ¶ 16; Smith, supra; Wright at *6.

      {¶11} Here, a review of the record reveals that although Appellant's

sentencing hearing was initially scheduled to take place on January 24, 2017,

it did not go forward on that day. The hearing was rescheduled at the

request of the trial court, due to the court's desire to obtain additional
Meigs App. No. 18CA12                                                           9

information on Appellant prior to imposing sentence. The hearing was

ultimately rescheduled for 2:00 p.m. on February 21, 2017. Appellant filed

a written motion to withdraw her guilty plea at 1:34 p.m. on February 21,

2017. In her motion, Appellant asserted the affirmative defense of personal

use with respect to the charge of cultivation of marijuana. Specifically, as to

Appellant's assertion of the affirmative defense of personal use, we note that

R.C. 2925.04(F) provides as follows:

      "(F) It is an affirmative defense, as provided in section 2901.05
      of the Revised Code, to a charge under this section for a fifth
      degree felony violation of illegal cultivation of marihuana that
      the marihuana that gave rise to the charge is in an amount, is in
      a form, is prepared, compounded, or mixed with substances that
      are not controlled substances in a manner, or is possessed or
      cultivated under any other circumstances that indicate that the
      marihuana was solely for personal use."

      {¶12} There is limited information in the record regarding the trial

court's consideration of the motion prior to orally denying it on the record.

What does appear in the transcript states as follows:

      "BY THE JUDGE:           Okay, thank you very much. Uh, is
      there any reason why this hearing should not proceed at this
      time? Defense counsel or Defendant or State of Ohio?

      BY PROSECUTOR ADKINS:                   None for the State, Your
      Honor.

      BY ATTORNEY BUNCE:                Um, no sir, Your Honor. Well,
      I, I mean, I guess what we need to do, Your Honor, I, I did prior
      to this hearing uh file a Motion to Withdraw the Guilty Plea um
      and I know we had a, a moment in chambers to discuss this
Meigs App. No. 18CA12                                                          10

      briefly and I, I guess we just need to maybe have the Court to
      um address whether we're gonna go forward with that or not.

      BY THE JUDGE:               Uh, thank you very much. It's well
      done. It's a Motion to Withdraw Guilty Plea. Uh, I've read it
      and discussed it back in chambers. We had an argument back
      in chambers and I, uh, based upon what we had done prior to
      this at the taking of the plea, the Court's going to overrule your
      Motion (inaudible) to Withdraw the Plea –

      BY ATTORNEY BUNCE:                 Thank you --"

      {¶13} The discussion and/or argument regarding the motion

referenced by the trial court were either not recorded or not transcribed, and

are not part of the appellate record. Thus, it is unclear to this Court the

extent to which the trial court considered the merits of Appellant's motion.

Additionally, the State describes the trial court's consideration of the motion

as follows in its appellate brief as follows:

      "At the sentencing hearing, the trial court mentioned that the
      motion had been addressed off the record in chambers.
      However, the trial court and defense counsel minimally
      addressed the motion on the record. No argument or evidence
      was presented regarding the merits of the motion."

Thus, the exchange on the record during the sentencing hearing seems to

suggest the trial court denied Appellant's motion, without a hearing, based

upon a single factor, stating it was denying the motion "based upon what we

had done prior to this at the taking of the plea * * *." However, the question

of whether Appellant was afforded a full Crim.R. 11 hearing before entering
Meigs App. No. 18CA12                                                                                     11

a plea is but one of nine factors an appellate court must consider when

reviewing a trial court's decision regarding a pre-sentence motion to

withdraw a guilty plea. See State v. Nance, 4th Dist. No. 18CA7, 2018-Ohio-

2637, ¶ 13.1 Additionally, and as set forth above, the State has conceded the

trial court erred in failing to conduct a hearing, citing this Court's prior

holding in State v. Nance, supra.

         {¶14} In State v. Nance, a motion to withdraw a guilty plea was filed

approximately two weeks prior to the rescheduled sentencing hearing. The

trial court verbally denied the motion during the sentencing hearing and then

proceeded to sentencing, stating as follows:

         "Attorney Knight:                   Uh, Your Honor, we do have a
         pending motion.

         The Court:                 Well we're going to deny that motion.

         Attorney Knight:          We would ask for a hearing on the
         motion or at least a submission of the transcript which was
         attached to make it part of the record.

         The Court:       Sure, absolutely. Absolutely. Uh, as to the
         sentencing?" Nance at ¶ 19.


1
  As explained in Nance, nine factors should be taken into consideration. Those factors are as follows: 1)
whether the appellant was represented by highly competent counsel; 2) whether the trial court afforded the
appellant a full Crim.R. 11 hearing before entering the plea; 3) whether the trial court held a full hearing
regarding the motion to withdraw the plea; 4) whether the trial court gave full and fair consideration to the
motion; 5) whether the appellant filed the motion with a reasonable time; 6) whether the appellant's motion
gave specific reasons for the withdrawal; 7) whether the defendant understood the nature of the charges,
possible penalties, and consequences of the plea; 8) whether the appellant was "perhaps" not guilty of has a
complete defense to the charges; and 9) whether permitting the appellant to withdraw the plea will
prejudice the State. Nance at ¶ 13 (internal citation omitted).
Meigs App. No. 18CA12                                                           12

This Court characterized the trial court's handling of the motion in Nance as

being handled in a "summary fashion[]" noting, however, the trial court

"arguably had time to review the written motion and to give it full and fair

consideration prior to the sentencing hearing." Id. Nevertheless, this Court

found the record did not support a finding that Nance "was given a real

opportunity to be heard on his motion to withdraw his pleas and to present

any evidence in the matter[,]" considering "the summary nature of the brief

discussion of the motion to withdraw." Id. at ¶ 21. Here, the motion was

filed just twenty-six minutes prior to the sentencing hearing and, while

timely, it is unlikely the trial court had a chance to fully consider the motion

prior to the hearing.

      {¶15} We agree with the State that the motion to withdraw the guilty

plea filed here was handled in a very similar manner as the one in Nance,

and that Nance should govern our disposition in this matter. Thus,

consistent with Nance, as well as the State's concession that the trial court

failed to hold a hearing before denying Appellant's motion to withdraw her

guilty plea, we find the trial court abused its discretion by not holding a

mandatory hearing on Appellant's motion to withdraw her guilty plea. As

such, Appellant's first assignment of error has merit and is therefore

sustained. Accordingly, we reverse the trial court's judgment and remand
Meigs App. No. 18CA12                                                          13

this matter with instructions to conduct a hearing that complies with due

process standards. State v. Xie, supra.

                        ASSIGNMENT OF ERROR II

      {¶16} In her second assignment of error, Appellant contends trial

counsel rendered constitutionally ineffective assistance in violation of her

constitutional rights. More specifically, Appellant argues her trial counsel

was constitutionally ineffective because she filed the motion to withdraw the

guilty plea on the day of the final sentencing hearing, despite knowing

Appellant had an affirmative defense prior to the first sentencing hearing.

Appellant further argues the she "was prejudiced by the omission of trial

counsel, as the trial court did not need to have a full and fair hearing on the

motion as it was not timely filed."

      {¶17} The State counters by arguing Appellant's trial counsel was not

ineffective for failing to file the motion to withdraw the guilty plea prior to

the first sentencing hearing, because Appellant was not sentenced at the first

hearing. The State further points out that the motion was filed prior to

Appellant being sentenced and thus the filing was sufficient to require the

trial court to conduct a hearing on the motion.

      {¶18} However, in light of our disposition of Appellant's first

assignment of error, in which we already determined Appellant's motion to
Meigs App. No. 18CA12                                                          14

withdraw her plea was filed pre-sentence, and that the trial court erred and

abused its discretion in failing to hold a hearing before denying the motion,

we conclude the arguments raised under Appellant's second assignment of

error have been rendered moot. As such, we do not address them.

Accordingly, the judgment of the trial court is reversed and remanded for

further proceedings consistent with this opinion.

                                       JUDGMENT REVERSED AND
                                       CAUSE REMANDED FOR
                                       FURTHER PROCEEDINGS
                                       CONSISTENT WITH THIS
                                       OPINION.
Meigs App. No. 18CA12                                                          15

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Costs shall be assessed to Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellee to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellee to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, J. & Hess, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.
