[Cite as State v. Betts, 2019-Ohio-5008.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2019-CA-18
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-579
                                                  :
 JAMICAL BETTS                                    :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 6th day of December, 2019.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton,
Ohio 45426
      Attorney for Defendant-Appellant

                                            .............
                                                                                         -2-


FROELICH, J.

       {¶ 1} Jamical Betts pled guilty in the Clark County Court of Common Pleas to

aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a

firearm specification. After denying Betts’s presentence motion to withdraw his plea, the

trial court sentenced him to three years for the aggravated robbery, to be served

consecutively to an additional mandatory three years for the firearm specification.

       {¶ 2} Betts appeals from his conviction, challenging the denial of his motion to

withdraw his plea. For the following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 3} According to the bill of particulars, on August 14, 2018, Betts and Cameron

Redd, Betts’s co-defendant, entered a Rite Aid Pharmacy in New Carlisle and told the

pharmacist that they had a firearm. Betts gave the pharmacist a handwritten note that

read, “This is an armed Robbery!! Place these Items in a bag. Any sudden movement

or sounds I will shoot you!!!” (Sic.) The note itemized the types of drugs that they

wanted. The note concluded, “Put at least 10-15 bottles in the Bag or I will shoot!!

These items belong to the government don’t die for them!!” (Sic.) Betts and Redd fled

from the store with 300 Oxycodone/acetaminophen tablets (10/325 mg), 211 Oxycodone

tablets (5 mg), 100 Oxycodone/acetaminophen tablets (7.5/325 mg), and 141

Oxycodone/acetaminophen tablets (5/325 mg).             Analysis of the letter revealed

fingerprints from Betts and Redd.

       {¶ 4} The police arrested Betts and Redd on August 17, 2018, after they fled from

the robbery of a Rite Aid Pharmacy in Middletown. Betts and Redd had used a similar

letter to the one used in the New Carlisle robbery. The police also found directions to
                                                                                          -3-


the New Carlisle Rite Aid from August 14 on Redd’s cell phone.

       {¶ 5} Soon thereafter, a grand jury indicted Betts and Redd on nine charges

stemming from the New Carlisle robbery: aggravated robbery (Count 1), aggravated

trafficking in drugs (Counts 2, 4, 6 and 8), and aggravated possession of drugs (Counts

3, 5, 7, and 9). Each of the charges included a firearm specification.

       {¶ 6} On November 27, 2018, Betts pled guilty to aggravated robbery (Count 1)

with the firearm specification. In exchange for the plea, the State agreed to dismiss the

remaining eight counts. The parties also agreed to a presentence investigation. The

plea form indicated that Betts faced a maximum of 11 years in prison, none of which was

mandatory, as well as three years in prison for the firearm specification, of which all three

years were mandatory.

       {¶ 7} At the plea hearing, the trial court reviewed with Betts the terms of the plea

agreement, whether Betts had discussed the case with his attorney, the possible

maximum sentence that Betts faced and other consequences of his plea, the nature of

the charges, the effect of a guilty plea, and the constitutional rights Betts would be

waiving. Betts expressed that he wanted to plead guilty to “aggravated robbery, a felony

of the first degree, with a three-year firearm specification,” and the court found that his

plea was knowingly, intelligently, and voluntarily made. The court scheduled sentencing

for December 18, 2018.

       {¶ 8} Prior to sentencing, Betts obtained new counsel, who filed a motion to

withdraw the plea on Betts’s behalf. Counsel wrote that Betts “seemed unaware of the

ramifications of the ‘gun spec’ nor knew the maximum sentence that he could be

sentenced” and that Betts indicated that he (Betts) had had limited communication with
                                                                                       -4-


his prior counsel.

       {¶ 9} The trial court continued Betts’s sentencing and conducted a hearing on the

motion on January 3, 2019; no testimony was offered. At the hearing, defense counsel

argued that Betts seemed to lack an understanding of the firearm specification, that Betts

was 19 years old with no prior record, and that the motion to withdraw the plea was filed

11 days before sentencing. Counsel argued that the case for Betts’s co-defendant was

still pending when the motion was filed, and the State would not be prejudiced by the

withdrawal of Betts’s plea. Finally, counsel argued that Betts had a possible defense to

the gun specification, because while Betts arguably indicated that he had a gun, there

was no indication that Betts actually “had a firearm on or about the offender’s person or

under the offender’s control.” Defense counsel noted that Betts was being investigated

for two similar robberies in Middletown and Greene County; those cases also involved a

note stating that he had a gun, but no gun was brandished or seen and no gun was found

when Betts and Redd (the co-defendant) were apprehended after the Middletown

robbery.   Counsel noted that Redd’s plea agreement included the dismissal of the

firearm specification, and counsel questioned whether “the State even believes that the

defendant had a firearm on his person that day.”

       {¶ 10} The State responded that Betts’s motion to withdraw his plea reflected a

change of heart. The State emphasized that Betts was fully informed of the possible

maximum sentence, including that the firearm specification involved a mandatory three-

year sentence.

       {¶ 11} The trial court orally denied Betts’s motion. It dismissed defense counsel’s

argument regarding the prosecutor’s personal opinion regarding Betts’s possession of a
                                                                                         -5-


firearm, noting that the defense could not argue the prosecutor’s personal opinion at trial.

Reviewing factors related to whether Betts’s plea should be withdrawn, the court noted

that Betts had been represented by highly competent counsel and that there had been a

full and complete Crim.R. 11 hearing, during which the court reviewed with Betts his age,

education, whether he was under the influence of drugs or alcohol, whether he had

discussed the case with his attorney and was satisfied with the advice and representation

received, whether he had read and understood the plea form, the possible maximum

sentences, and whether any promises or threats had been made. The court noted that

the motion had been made within a reasonable time, but the offered reasons for the

withdrawal were refuted by the record of the plea hearing. The court stated that it

believed Betts had understood the nature of the charges and the possible penalties.

       {¶ 12} As to whether Betts was possibly not guilty of or had a complete defense to

the firearm specification, the court stated:

       As to whether or not the defendant has a complete defense to these

       charges, again, the most I’ve heard today is, well, it seems to be

       comparable to other charges that the defendant may be involved in other

       offenses; and there may not be a lot of evidence as to his actual possession

       of a firearm in those other cases. I’m not here to judge the defense of other

       cases; but I’ve not heard anything that would be presented to this Court that

       could be any more of a defense than he would have had to begin with.

The court denied Betts’s motion, concluding, “I don’t see evidence before me today that

this is more than a change of heart.” The trial court filed a written entry consistent with

its oral pronouncement.
                                                                                         -6-


       {¶ 13} The court subsequently sentenced Betts to three years in prison for the

aggravated robbery and an additional three years for the firearm specification. Betts

appeals, raising one assignment of error.

                       II. Presentence Motion to Withdraw Plea

       {¶ 14} In his sole assignment of error, Betts claims that the trial court erred in

denying his presentence motion to withdraw his guilty plea.

       {¶ 15} Crim.R. 32.1 provides that “[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.” Under Crim.R. 32.1, a presentence motion to

withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d

521, 527, 584 N.E.2d 715 (1992).

       {¶ 16} Even before sentencing, “the right to withdraw a plea is not absolute and a

trial court retains discretion to overrule a pre-sentence plea-withdrawal motion.” State v.

Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7. After conducting a

hearing on such a motion, “the trial court must ‘determine whether [the defendant] has a

reasonable and legitimate basis’ for the withdrawal, rather than ‘[a] mere change of

heart.’ ” State v. Bush, 2d Dist. Clark No. 2018-CA-13, 2018-Ohio-5272, ¶ 10, quoting Xie

at 527.

       {¶ 17} In reviewing a trial court’s decision on a defendant’s motion to withdraw his

or her plea filed before sentencing, we apply the following nine factors: (1) whether the

accused was represented by highly competent counsel, (2) whether the accused was

given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was
                                                                                            -7-


held on the motion, (4) whether the trial court gave full and fair consideration to the motion,

(5) whether the motion was made within a reasonable time, (6) whether the motion sets

out specific reasons for the withdrawal, (7) whether the accused understood the nature

of the charges and possible penalties, (8) whether the accused was perhaps not guilty of

or had a complete defense to the charge or charges, and (9) whether the state is

prejudiced by withdrawal of the plea. E.g., State v. Becraft, 2017-Ohio-1464, 89 N.E.3d

218 (2d Dist.); State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29.

       {¶ 18} “In considering these factors, the trial court employs a balancing test; no

single factor is dispositive.” Warrix at ¶ 30, citing State v. Preston, 2d Dist. Montgomery

No. 25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is

whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id.,

quoting Xie at 527.     A change of heart or mistaken belief about the plea is not a

reasonable basis requiring a trial court to permit the defendant to withdraw his or her plea.

State v. Maddickes, 2d Dist. Clark No. 2013 CA 7, 2013-Ohio-4510, ¶ 15. However, in

considering whether to allow withdrawal of the plea, it is not simply sufficient for the trial

court to find that the Crim.R. 11 colloquy satisfied the requirements of that Rule and the

United States and Ohio Constitutions; if it were, even a presentence plea could never be

withdrawn. Id.

       {¶ 19} It is within the sound discretion of the trial court to grant or deny a motion to

withdraw a plea. Xie at 526. We will not reverse a trial court’s decision to deny a motion

to withdraw a guilty or no contest plea absent an abuse of discretion. Id. at 527, citing

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 20} The record reflects that Betts was represented by competent counsel at his
                                                                                          -8-


plea hearing and that the trial court complied with the requirements of Crim.R. 11 for the

aggravated robbery offense and firearm specification to which he pled. Betts filed his

motion on December 7, 2017, ten days after the plea hearing and 11 days prior to the

scheduled sentencing hearing. Betts received a hearing on his motion to withdraw his

plea (although he chose not to call any witnesses), and the trial court gave full and fair

consideration of the motion at the January 3, 2019 hearing. The prosecutor did not argue

that the State would be prejudiced by the withdrawal of Betts’s plea, but it claimed that

Betts was not entitled to withdraw his plea because he simply had a change of heart.

       {¶ 21} Betts asserted in his motion that he did not understand the nature of the

firearm specification. Betts’s plea form, which Betts indicated that he had read and

understood, stated that the firearm specification had a maximum penalty of three years

in prison, all of which were mandatory.        When discussing the potential maximum

penalties at the plea hearing, the trial court informed Betts that “the firearm specification

requires three years of prison time which must be served prior to and consecutively to the

maximum 11-year sentence, if you get the maximum.             Now, that would be a total

maximum penalty of 14 years in prison with a $20,000 fine, restitution, and costs; and

prison would be mandatory.” Betts expressed that he understood.

       {¶ 22} In denying the motion to withdraw the plea, the trial court concluded that

Betts understood the possible penalty for the firearm specification, including the fact that

the sentence would be mandatory and served consecutively. Although the plea form did

not indicate that the firearm specification was required to be served consecutively, the

record supports the trial court’s conclusion that Betts understood that the firearm

specification involved a mandatory three-year sentence, to be served consecutively to the
                                                                                          -9-


sentence for the aggravated robbery.

       {¶ 23} Betts further claimed at the hearing that he was “perhaps not guilty or had

a complete defense” to the firearm specification. R.C. 2941.145 permits the imposition

of a mandatory three-year prison term where the indictment specifies “that the offender

had a firearm on or about the offender’s person or under the offender’s control while

committing the offense and displayed the firearm, brandished the firearm, indicated that

the offender possessed the firearm, or used it to facilitate the offenses.”

       {¶ 24} “Both a firearm’s existence and its operability may be inferred from the

surrounding facts and circumstances. It is not necessary to admit the firearm used

during the crime in evidence in order to establish a firearm specification. A victim’s belief

that the weapon is a gun, together with the intent on the part of the accused to create and

exploit that belief for his own criminal purposes, is sufficient to prove a firearm

specification.” (Citations omitted.) State v. Vann, 2d Dist. Montgomery No. 22818, 2009-

Ohio-5308, ¶ 27; see also State v. Coleman, 2d Dist. Montgomery No. 27702, 2018-Ohio-

2214, ¶ 26.

       {¶ 25} We have commented that “it is not necessary that the defendant had

actually displayed the weapon in order to establish that he had possessed one.” State

v. Knight, 2d Dist. Greene No. 2003 CA 14, 2004-Ohio-1941, ¶ 17. We further noted that

“there may be circumstances where the defendant’s conduct alone makes clear that he

holds a hidden weapon and that he could use it if the victim fails to comply with his

instructions.   Id. at ¶ 19.   In Knight, we upheld that jury’s determination that the

defendant had a firearm based on the store clerk’s testimony that the defendant

approached the clerk with his hands in his pockets and the right hand was “out” compared
                                                                                         -10-


to the other hand, causing the clerk to believe that he had a gun.

       {¶ 26} Similar to this case, in State v. Haskins, 6th Dist. Erie No. E-1-016, 2003-

Ohio-70, the defendant threatened a gas station attendant by saying, “Are you going to

give me the money or do I have to pull this pistol out of my pocket?” Although no gun

was seen, the clerk immediately put up her hands, fearing that the defendant had one.

The Sixth Circuit court concluded that there was sufficient evidence to support the

conclusion that the defendant had a firearm for purposes of both the aggravated robbery

statute and the firearm specification.

       {¶ 27} While there indeed would have been a jury question as to whether Betts

had an operable firearm under his control, the record does not support a conclusion that

Betts had a complete defense to the firearm specification attached to the aggravated

robbery charge.     The trial court reasonably found that “[t]here was no evidence

presented at the motion hearing by which the Court could infer the defendant had a

complete defense to the charge * * *.” Whether to accept a plea to aggravated robbery

with the firearm specification was a decision that Betts and his counsel had to make,

especially in light of the facts known only to them and the entire plea agreement.

       {¶ 28} The record of the plea hearing reflects that Betts’s knowingly, intelligently,

and voluntarily pled to aggravated robbery and the firearm specification.         Although

another court might have exercised its discretion differently, upon consideration of the

nine factors relevant to Betts’s motion to withdraw his plea, the trial court here did not

abuse its discretion in denying Betts’s motion to withdraw his guilty plea.

       {¶ 29} Betts’s assignment of error is overruled.

                                     III. Conclusion
                                                            -11-


      {¶ 30} The trial court’s judgment will be affirmed.

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



HALL, J. and TUCKER, J., concur.


Copies sent to:

John M. Lintz
Christopher A. Deal
Hon. Richard J. O’Neill
