[Cite as State v. Fisher, 2019-Ohio-3925.]




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


State of Ohio                                    Court of Appeals No. L-18-1162

        Appellee                                 Trial Court No. CR0201702729

v.

David Zacharius Fisher                           DECISION AND JUDGMENT

        Appellant                                Decided: September 27, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Sarah Haberland, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, David Fisher appeals from the June 27, 2018 judgment of the

Lucas County Court of Common Pleas convicting him, following acceptance of his guilty

plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162

(1970), to a reduced charge of sexual battery, a violation of R.C. 2907.03(A)(1) and (B).
Appellant was sentenced to a six-year prison term. For the reasons which follow, we

affirm.

          {¶ 2} On appeal, appellant asserts the following assignments of error:

                     I. The Trial Court erred when is [sic] found victim competent to

          testify.

                     II. The Trial Court erred when it accepted an Alford plea that was

          not made voluntarily by Defendant.

                     III. The Trial Court erred when it failed to allow Defendant to

          withdraw his Alford Plea.

          {¶ 3} In his first assignment of error, appellant argues that the trial court erred

when it found the six-year-old victim was competent to testify at trial. Appellant does

not assert on appeal that the ruling on the competency issue affected the voluntariness of

his Alford plea. Because appellant entered an Alford plea, he has waived any error

related to the trial court’s determination of the competency of a child witness. State v.

Turski, 6th Dist. Lucas No. L-18-1217, 2019-Ohio-3604, ¶ 6. Therefore, we find

appellant’s first assignment of error not well-taken.

          {¶ 4} In his second assignment of error, appellant argues the trial court erred when

it accepted an Alford plea to the charge of sexual battery that was not voluntary because

appellant had only 24 minutes to discuss the plea with counsel after the court ruled that

the child was competent to testify.




2.
       {¶ 5} The record does not support appellant’s assertion. After consulting with

counsel, appellant indicated on the record that he had reviewed the plea and had enough

time to discuss his defense with counsel and was satisfied with his attorney’s advice.

Therefore, we find the trial court did not err by accepting the plea.

       {¶ 6} Appellant’s second assignment of error is found not well-taken.

       {¶ 7} In his third assignment of error, appellant argues the trial court abused its

discretion when it denied appellant’s motion to withdraw his Alford plea. Prior to

sentencing, appellant moved to withdraw his plea on the grounds that his counsel failed

to provide him with or explain a defense to the charges. He asserted that his counsel

appeared to work with the prosecutor to obtain a plea.

       {¶ 8} There is no absolute right to withdraw a guilty plea after conviction, but

prior to sentencing, and the matter is left to the sound discretion of the trial court. State v.

Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraphs one and two of the syllabus.

We will not reverse the trial court’s denial of the motion unless the defendant can

establish that the trial court abused its discretion. Id. at 525.

       {¶ 9} While Crim.R. 32.1 does not give criteria for determining when withdrawal

of a plea is justified, the Ohio Supreme Court has held that “a presentence motion to

withdraw a guilty plea should be freely and liberally granted.” Xie at 526. The Ohio

Supreme that has held the denial of a motion to withdraw a guilty plea is not an abuse of

discretion:




3.
       [w]here the record affirmatively discloses that: (1) defendant’s guilty plea

       was not the result of coercion, deception or intimidation; (2) counsel was

       present at the time of the plea; (3) counsel’s advice was competent in light

       of the circumstances surrounding the indictment; (4) the plea was made

       with the understanding of the nature of the charges; and, (5) defendant was

       motivated either by a desire to seek a lesser penalty or a fear of the

       consequences of a jury trial, or both, the guilty plea has been voluntarily

       and intelligently made.

State v. Piacella, 27 Ohio St.2d 92, 92, 271 N.E.2d 852 (1971), syllabus. We have

previously identified the key factual considerations a trial court should make prior to

ruling on a motion to withdraw a plea:

       (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 trial court gave full and fair consideration to the

       motion; (6) whether the timing of the motion was reasonable; (7) the

       reasons for the motion; (8) whether the defendant understood the nature of

       the charges and potential sentences; and (9) whether the accused was

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

State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th

Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001).




4.
A change of heart is an insufficient reason to permit withdrawal of the plea. State v.

Williams, 6th Dist. Lucas No. L-15-1259, 2016-Ohio-4905, ¶ 13.

       {¶ 10} When the motion for withdrawal of the plea was asserted in the case, the

trial court questioned appellant’s appointed counsel. Counsel indicated that he had

explored appellant’s potential legal defenses and determined the only viable action was to

file a motion regarding the competency of the child. Counsel provided copies of all

documents to appellant which the state had provided to counsel. Counsel discussed the

state’s evidence with appellant and the pros and cons of the case. Appellant

acknowledged he had a change of heart because he did not want to serve a prison term.

Appellant was unable to provide any explanation for the evidence against him in this

case. The trial court continued the matter for further hearing.

       {¶ 11} At a follow-up hearing, appellant indicated that he desired to have the

motion granted so that he could enter a plea which would result in probation because he

pled guilty to an offense which would result in a mandatory prison sentence. The state

responded that a therapist working with the child was concerned that allowing a change

in plea could disrupt the healing process which began after the conviction and the child

knew she would not have to testify. The child had developed serious sleeping disorders

which started to be resolved after the conviction. The therapist is also concerned that

appellant would become involved in the child’s life again before her healing is complete

because he is the father of her half-sibling. Furthermore, the state indicated that even if

the plea was withdrawn, there would not be any offer that would result in an offer to




5.
plead to an offense which would lead to probation. The current plea was the state’s best

and final way to resolve this case short of a trial.

       {¶ 12} At a third hearing, the state indicated that if the plea was withdrawn, the

state would proceed to trial. Appellant then discuss the matter for ten minutes with his

counsel. Afterward, appellant at first indicated that he did not want to withdraw his plea

although he reasserted his claim of innocence. When questioned further by the judge,

appellant again requested that the trial court rule on his motion to withdraw his plea.

       {¶ 13} Applying the nine considerations noted above, the trial court found: 1) the

state has indicated this young victim was greatly relieved when the plea had been entered

and that her mental health recovery would be negatively affected by allowing appellant to

withdraw his plea; 2) appellant’s counsel is highly competent and was chosen because of

the serious nature of the charge; 3) appellant was given a full Crim.R. 11 hearing before

entering his plea; 4) a full hearing was given on the motion to withdraw the plea; 5) the

trial court gave full and fair consideration of the motion to withdraw the plea; 6) the

motion was made within a reasonable time; 7) the motion set forth the specific reasons

for withdrawing the plea; 8) appellant had understood the nature of the charges and

possible penalties before entering the plea; 9) while appellant asserts that he is innocent,

he has not presented any evidence of that fact in light of the compelling evidence of the

state. Furthermore, the court found that a change of heart is not a legitimate basis for

granting a motion to withdraw a plea.




6.
       {¶ 14} On appeal, appellant argues that the state would not have been prejudiced

by a withdrawal of the plea. Appellant asserts it was improper in this case to deny the

motion because of the impact it would have upon the victim.

       {¶ 15} Upon a review of the record, and the trial court’s analysis, we find that the

trial court did not abuse its discretion in denying the motion to withdraw. We find the

trial court considered all nine factors. The victim’s mental health in this case was a

relevant fact regarding the issue of whether there would be prejudice to the state because

the victim’s mental health could affect her ability to testify. Therefore, we find

appellant’s third assignment of error not well-taken.

       {¶ 16} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                        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.




7.
                                                                     State v. Fisher
                                                                     C.A. No. L-18-1162




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Gene A. Zmuda, 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.supremecourt.ohio.gov/ROD/docs/.




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