[Cite as State v. Watkins, 2013-Ohio-5544.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellee,                 :               Nos. 13AP-133
                                                                          and
v.                                                   :                   13AP-134
                                                                 (C.P.C. No. 11CR-09-4927)
Jason L. Watkins,                                    :
                                                                (REGULAR CALENDAR)
                 Defendant-Appellant.                :




                                              D E C I S I O N

                                   Rendered on December 17, 2013


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Yeura R. Venters, Public Defender, and David L. Strait, for
                 appellant.

                  APPEALS from the Franklin County Court of Common Pleas

KLATT, P.J.
        {¶ 1} In these two appeals, defendant-appellant, Jason L. Watkins, appeals from
judgment entries of the Franklin County Court of Common Pleas denying his motion to
withdraw guilty plea and imposing a 67-year prison sentence for his multiple convictions.
For the following reasons, we affirm those judgments.
I. Factual and Procedural Background
        {¶ 2} On October 12, 2011, after having been bound over from the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, a
Franklin County Grand Jury indicted appellant for six counts of aggravated robbery in
violation of R.C. 2911.01, six counts of robbery in violation of R.C. 2911.02, six counts of
Nos. 13AP-133 and 13AP-134                                                                   2

kidnapping in violation of R.C. 2905.01, two counts of rape in violation of R.C. 2907.02,
and two counts of gross sexual imposition in violation of R.C. 2907.05. These counts all
contained a firearm specification pursuant to R.C. 2941.145. The counts arose out of four
separate events that occurred in February 2011. The state alleged that appellant and
another unidentified person robbed multiple individuals at gunpoint during these four
events and that appellant, in two instances, also sexually assaulted certain victims.
Appellant was 16 years old at the time of the offenses.
       {¶ 3} Appellant initially entered a not guilty plea to the offenses. However, on the
morning of his scheduled trial, appellant entered a guilty plea to five counts of aggravated
robbery, and one count each of robbery, sexual battery, and gross sexual imposition as
well as three firearm specifications. The trial court told appellant that as a result, he faced
a maximum prison term of 73½ years. Appellant replied that he understood. The trial
court accepted appellant's guilty plea, ordered the preparation of a presentence
investigation, and scheduled a sentencing hearing. Appellant was 18 years old when he
entered his guilty plea.
       {¶ 4} Two days before his scheduled sentencing hearing, appellant filed a motion
to withdraw his guilty plea. In the motion, he alleged that he entered his guilty plea as the
result of pressure put on him by his family and that he did not accurately comprehend the
consequences of his plea. Notwithstanding the motion, the trial court proceeded to
sentence appellant to a total prison term of 67 years. The trial court subsequently held a
hearing on appellant's motion. Appellant testified that although he was guilty of some of
the counts he pled guilty to, he was not guilty of them all and so he did not want to plead
guilty. (Tr. 47.) Appellant testified that he felt pressured into entering his guilty plea by
family members who thought it was the right thing to do. (Tr. 57.) At the end of the
hearing, the trial denied appellant's motion.
II. Appellant's Appeal
       {¶ 5} Appellant appeals and assigns the following errors:
              [1.] The trial court committed reversible error by denying
              Defendant-Appellant's presentence motion to withdraw his
              guilty plea.

              [2.] The trial court imposed a cruel and unusual punishment
              in violation of the Eighth Amendment to the United States
Nos. 13AP-133 and 13AP-134                                                                3

              Constitution by sentencing Appellant, who was sixteen years
              old at the time of the offense, to a prison term of sixty seven
              (67) years.

       A. Appellant's Presentence Motion to Withdraw Guilty Plea
       {¶ 6} Appellant argues in his first assignment of error that the trial court erred by
denying his presentence motion to withdraw guilty plea. We disagree.
              1. Standard of Review
       {¶ 7} Crim.R. 32.1 provides for the filing of a presentence motion to withdraw
guilty plea. As this court has noted many times, such motions should be " 'freely and
liberally granted.' " State v. Zimmerman, 10th Dist. No. 09AP-866, 2010-Ohio-4087,
¶ 11, quoting State v. Xie, 62 Ohio St.3d 521, 527 (1992); State v. Davis, 10th Dist. No.
07AP-356, 2008-Ohio-107, ¶ 15. However, there is no absolute right to withdraw a plea,
even before sentence is imposed. Zimmerman at ¶ 11. A defendant seeking to withdraw a
guilty plea before sentence must establish a reasonable and legitimate basis for the
withdrawal of the plea. Id. A trial court must hold a hearing to allow the defendant to
make such a showing. State v. West, 10th Dist. No. 11AP-548, 2012-Ohio-2078, ¶ 15. The
trial court's decision to grant or deny the presentence motion to withdraw is within the
sound discretion of the trial court. Id.; State v. Porter, 10th Dist. No. 11AP-514, 2012-
Ohio-940, ¶ 20. Although an abuse of discretion is typically defined as an unreasonable,
arbitrary, or unconscionable decision, no court has the authority, within its discretion, to
commit an error of law. State v. Chandler, 10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8,
citing State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
       {¶ 8} In reviewing a trial court's decision on a presentence motion to withdraw
guilty plea, this court weighs several nonexhaustive factors. These include: (1) whether the
prosecution would be prejudiced if the plea were withdrawn; (2) whether the defendant
was represented by highly competent counsel; (3) whether the defendant received a full
Crim.R. 11 hearing prior to entering the plea; (4) whether there was a full hearing on the
motion to withdraw; (5) whether the trial court gave full and fair consideration to the
motion to withdraw; (6) whether the motion was filed within a reasonable time period; (7)
whether the motion put forth specific reasons for the withdrawal; (8) whether the
defendant understood the nature of the charges and the possible penalties; and (9)
whether the defendant had a complete defense to the crime or perhaps was not guilty.
Nos. 13AP-133 and 13AP-134                                                                                  4

State v. West, 10th Dist. No. 11AP-548, 2012-Ohio-2078, ¶ 16; State v. Jones, 10th Dist.
No. 09AP-700, 2010-Ohio-903, ¶ 10, citing State v. Fish, 104 Ohio App.3d 236, 240 (1st
Dist.1995).     "Consideration of the factors is a balancing test, and no one factor is
conclusive." Zimmerman at ¶ 13, citing Fish at 240.
        2. The Trial Court Did Not Abuse its Discretion by Denying Appellant's
           Motion

        {¶ 9} The trial court held a full hearing on appellant's motion. At the end of that
hearing, the trial court denied appellant's motion, concluding that appellant merely
changed his mind, which is not a reasonable basis for withdrawing a guilty plea. (Tr. 109.)
Porter at 30; State v. Jones, 7th Dist. No. 09 MA 50, 2011-Ohio-2903, ¶ 20; State v.
Prince, 3d Dist. No. 2-12-07, 2012-Ohio-4111, ¶ 22.1 In reaching that conclusion, the trial
court expressly addressed a number of the above factors. The court noted that appellant's
sole reason for seeking withdrawal was that he entered his guilty plea because of pressure
put on him by his family. The court discounted that claim, however, because appellant
did not present testimony to support that claim from any family members, despite the fact
that some family members were present at the hearing. The court also noted that it fully
complied with the requirements of Crim.R. 11 when it accepted appellant's guilty plea and
that appellant entered his guilty plea knowingly, voluntarily, and intelligently, with full
knowledge of the nature of the charges and the possible penalties. The court also noted
that appellant waited five or six weeks before he filed his motion to withdraw his guilty
plea. The trial court also pointed out that appellant did not maintain his innocence
throughout the proceedings—a factor the trial court felt was "critical." He admitted to
committing certain offenses but denied others. The trial court concluded that this meant
he did not have a complete defense to the offenses.                    The trial court also took into
consideration the presence of DNA evidence linking appellant to the offenses, including
some offenses to which appellant did not admit.
        {¶ 10} Appellant argues that the trial court abused its discretion in denying his
motion. Specifically, appellant argues that the trial court did not give enough weight to
his claim that his family pressured him into entering his plea and that pursuant to State v.

1 Obviously, every motion to withdraw a plea necessarily involves a change of heart. However, absent

additional legally sufficient justification, a mere change of heart is insufficient to warrant withdrawal. See
State v. Vaughn, 8th Dist. No. 87245, 2006-Ohio-6577, ¶ 11.
Nos. 13AP-133 and 13AP-134                                                                      5

Cuthbertson, 139 Ohio App.3d 895, 899-900 (7th Dist.2000), a "comparison of the
interests and potential prejudice to the respective parties" weighs heavily in his favor. We
reject both of appellant's arguments.
          {¶ 11} First, the trial court is in the best position to evaluate both the motivation of
the defendant in pleading guilty and the credibility and weight to be given to the reasons
offered for seeking withdrawal of the plea. Prince at ¶ 27. Thus, the weight or significance
that a trial court gives to any particular reason is within the discretion of the trial court.
Here, appellant testified that his family pressured him into entering his guilty plea. The
trial court, however, discounted appellant's claims of pressure because no family
members substantiated appellant's claim and appellant's testimony lacked credibility.
The trial court noted that appellant's family members were present at the hearing and
could have testified. The trial court did not abuse its discretion by taking this fact into
consideration and rejecting appellant's claim of pressure.
          {¶ 12} Second, appellant's reliance on Cuthbertson is not persuasive, as it is
factually distinguishable from this matter. There, the appellate court reversed a trial court
decision to deny a presentence motion to withdraw guilty plea.               It did so after its
consideration of the required factors and, in large part, on the lack of prejudice to the
state. Id. at 899-900. As that same court noted in a subsequent decision, however, lack of
prejudice does not mandate withdrawal, but is one factor a trial court must consider in
making its decision. State v. Moore, 7th Dist. No. 12 MA 8, 2013-Ohio-1435, ¶ 85. The
defendant in Cuthbertson had other factors which that court concluded weighed in favor
of granting withdrawal: justifications for the withdrawal, a question of counsel's
effectiveness, a claim of innocence, and a timely filed motion. State v. Leasure, 7th Dist.
No. 01-BA-42, 2002-Ohio-5019, ¶ 42 (distinguishing Cuthbertson on its facts). Thus,
Cuthbertson is simply a case in which an appellate court considered the required factors
and found the trial court decision to be an abuse of discretion. Because the facts of that
case are markedly different than the present facts, any reliance on Cuthbertson is not
persuasive.      Leasure at ¶ 43 (situation in "sharp contrast" to Cuthbertson, where
defendant did not provide substantiated reason for withdrawal other than change of
heart).
Nos. 13AP-133 and 13AP-134                                                                  6

       {¶ 13} We conclude that the trial court did not abuse its discretion by denying
appellant's motion to withdraw. The trial court held a full hearing on appellant's motion
and fairly considered the motion. The trial court expressly addressed a majority of the
factors that we consider in reviewing an appeal of a presentence motion to withdraw
guilty plea. We cannot say that any of these factors weigh in appellant's favor. In
addition, we note that there was some indication of prejudice to the state because one of
its witnesses lives out of state.    It also appears that appellant was represented by
experienced defense counsel and appellant has not alleged that his attorney was
ineffective. Thus, the trial court did not abuse its discretion by concluding that appellant's
desire to withdraw his guilty plea was no more than a change of heart, which is not a
legitimate basis to grant a motion to withdraw. Jones at ¶ 20, 30 ("When none of the * * *
factors weigh heavily in the defendant's favor regarding the presentence withdrawal of a
guilty plea, a strong inference arises that the plea is being withdrawn merely because of a
change of heart about entering the plea."). Accordingly, we overrule appellant's first
assignment of error.
       B. Appellant's Prison Sentence does not Amount to Cruel and Unusual
          Punishment

       {¶ 14} Appellant argues in his second assignment of error that the trial court's
imposition of a 67-year prison sentence was cruel and unusual punishment. We disagree.
       {¶ 15} The Eighth Amendment to the United States Constitution provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." That amendment applies to the states pursuant to the Fourteenth
Amendment. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶ 12 (2008), citing
Robinson v. California, 370 U.S. 660 (1962). Ohio Constitution, Article I, Section 9, sets
forth the same restriction: "Excessive bail shall not be required; nor excessive fines
imposed; nor cruel and unusual punishments inflicted."
       {¶ 16} The bulk of Eighth Amendment jurisprudence concerns whether
punishment is disproportionate to the crime. In re C.P., 131 Ohio St.3d 513, 2012-Ohio-
1446, ¶ 25. Central to that prohibition against cruel and unusual punishment is the
" 'precept of justice that punishment for crime should be graduated and proportioned to
[the] offense.' "   Id., quoting Weems v. United States, 217 U.S. 349, 367 (1910).
Nos. 13AP-133 and 13AP-134                                                               7

Proportionality review falls within two general classifications: the first involves
"challenges to the length of term-of-years sentences given all the circumstances in a
particular case." In re C.P. at ¶ 26. The second, which until recently was applied only in
capital cases, involves "cases in which the Court implements the proportionality standard
by certain categorical restrictions." Graham v. Florida, 560 U.S. 48, 59 (2010).
       {¶ 17} In Graham, the United States Supreme Court held that the Eighth
Amendment to the United States Constitution categorically prohibits sentencing a
juvenile to a term of life imprisonment without the possibility of parole for non-homicide
offenses.   Id. at 75.   Here, appellant received prison terms which, when served
consecutively, add up to a 67 years in prison. Thus, Graham does not specifically apply
to appellant's case because he did not receive a life sentence without the possibility of
parole for his convictions. See State v. Bokeno, 12th Dist. No. CA2011-03-044, 2012-
Ohio-4218, ¶ 29 (rejecting Graham argument because defendant received life sentence
with possibility of parole). Even so, as the state notes, appellant will be eligible for
judicial release after serving one-half of his prison term: 33½ years.                R.C.
2929.20(C)(5). The Graham court noted that "[a] State need not guarantee the offender
eventual release, but if it imposes a sentence of life it must provide him or her with some
realistic opportunity to obtain release before the end of that term." Id. at 82. The state
has provided appellant with an opportunity to obtain release before the end of his stated
prison term. See Goins v. Smith, N.D.Ohio No. 4:09-CV-1551 (July 24, 2012) (noting
judicial release statute which allows defendant in Ohio to markedly improve his ability
to pursue release).
       {¶ 18} Appellant argues, however, that other courts have equated lengthy terms of
imprisonment such as the one appellant received in this case as the "functional
equivalent of a life sentence" that is prohibited by Graham. See e.g., People v. Rainer,
Col.App. No. 10CA2414 (Apr. 11, 2013), ¶ 60-79. We reject that argument for two
reasons. First, no court in Ohio has accepted this expansive view of the Graham case
and, in fact, two federal courts in this state have rejected it. Bunch v. Smith, 685 F.3d
546, 552 (6th Cir.2012) (rejecting argument but noting split in authority); Goins.
Second, the Graham court categorically prohibited the imposition of a life sentence
without the possibility of parole imposed on a juvenile for a non-homicide offense. The
Nos. 13AP-133 and 13AP-134                                                                                 8

category of punishments prohibited is clear and easy to identify. The court did not
include non-lifetime but otherwise lengthy sentences and indeed, it would be hard to
arrive at a categorical prohibition against such a wide range of possible sentences that
could, arguably, constitute a "functional equivalent of a life sentence." Bunch at 552-53,
citing Henry v. State, 82 So.3d 1084, 1089 (Fla.App.2012) (quoting Henry, which stated,
" ' [i]f the Supreme Court has more in mind, it will have to say what that is.' ").
        {¶ 19} Additionally, we note that the Supreme Court of Ohio analyzes cruel and
unusual disproportionality claims2 arising from lengthy aggregate terms of consecutive
sentences based on the individual sentences imposed on each count and not the
"cumulative impact of multiple sentences imposed consecutively." Hairston at ¶ 20.3
"Where none of the individual sentences imposed on an offender are grossly
disproportionate to their respective offenses, an aggregate prison term resulting from
consecutive imposition of those sentences does not constitute cruel and unusual
punishment." Id.; State v. Flagg, 8th Dist. No. 95958, 2011-Ohio-5386, ¶ 15. Appellant
does not argue that any of his individual prison sentences were outside of the statutory
sentencing guidelines, that the trial court improperly ordered those sentences served
consecutively, or that any of the individual sentences amount to cruel and unusual
punishment for his offenses. Instead, appellant argues just that the aggregate amount of
those sentences is cruel and unusual punishment.                   This argument is insufficient to
demonstrate a cruel and unusual punishment violation.                     Hairston at ¶ 23 (because
individual sentences do not amount to cruel and unusual punishment, total aggregate
term likewise fails); State v. Anderson, 4th Dist. No. 10CA44, 2012-Ohio-3245, ¶ 47.


2
  Specifically, challenges to the length of sentences given all the circumstances in a particular case. In re
C.P. at ¶ 26. The Eighth Amendment does not require strict proportionality between crime and sentence but
forbids only extreme sentences that are grossly disproportionate to the crime. State v. Warren, 168 Ohio
App.3d 288, 2006-Ohio-4104, ¶ 29 (8th Dist.), citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). The
Supreme Court of Ohio has stated that, " '[c]ases in which cruel and unusual punishments have been found
are limited to those involving sanctions which under the circumstances would be considered shocking to any
reasonable person,' " and furthermore that " 'the penalty must be so greatly disproportionate to the offense
as to shock the sense of justice of the community.' " State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
¶ 14, citing State v. Weitbrecht, 86 Ohio St.3d 368, 371 (1999).

3 We recognize that the Graham decision was based on a categorical Eighth Amendment challenge and
not a disproportionality term of years challenge as in Hairston. See In re C.P. at ¶ 26 (recognizing distinct
types of challenges). We highlight Hairston, however, to point out the Supreme Court of Ohio's focus on
individual sentences for Eighth Amendment purposes and not simply the total aggregate sentence.
Nos. 13AP-133 and 13AP-134                                                             9

Lastly, there is nothing shocking about an individual receiving such a lengthy prison
sentence because he pled guilty to a number of offenses, including five separate
aggravated robberies involving a firearm as well as other conduct involving sexual
behavior with certain of his victims. The more crimes an individual commits, the more
likely it is that the ultimate prison sentence will indeed be a lengthy one. See State v.
Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513, ¶ 74 (noting that the severity of
sentence resulted in part from the number of crimes committed).
      {¶ 20} In conclusion, the total prison sentence appellant received in this matter
does not violate the constitutional prohibitions against cruel and unusual punishments.
Accordingly, we overrule appellant's second assignment of error.
III. Conclusion
      {¶ 21} Having overruled appellant's two assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
                                                                   Judgments affirmed.

                           TYACK and CONNOR, JJ., concur.
