[Cite as State v. Ford, 2012-Ohio-1280.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-11-13

        v.

GEOFFREY S. FORD,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Union County Common Pleas Court
                            Trial Court No. 10-CR-0022

                                      Judgment Affirmed

                            Date of Decision: March 26, 2012




APPEARANCES:

        Alison Boggs for Appellant

        David W. Phillips for Appellee
Case No. 14-11-13



SHAW, P.J.

         {¶1} Defendant-Appellant, Geoffrey S. Ford (“Ford”), appeals the June 2,

2011 judgment of the Union County Court of Common Pleas denying his pre-

sentence motion to withdraw his guilty plea.

         {¶2} This case arose out of an incident that occurred in the early morning

hours of January 26, 2010, in which the state alleged that Ford broke into a

woman’s home carrying a knife, threatened to kill her if anyone else was in the

apartment or if she screamed, and proceeded to rape her vaginally. Afterward,

Ford attempted to force the victim to perform fellatio, again threatening her with

the knife. Before leaving, Ford looked for items to steal including money or the

victim’s television. When the victim informed him that she had no money Ford

told her he would kill her if she called the police, and then fled. 1

         {¶3} On April 14, 2010, Ford was indicted by the Union County Grand

Jury for one count of Rape in violation of R.C. 2907.02(A)(2), a felony of the first

degree, with a sexually violent predator specification, R.C. Spec. 2941.148;

Attempted Rape, R.C. 2923.02(A), as it relates to R.C. 2907.02(A)(2), a felony of

the first degree, with a sexually violent predator specification, R.C. Spec.

2941.148; two counts of Aggravated Burglary, in violation of R.C. 2911.11(A)(1),

1
  These allegations are based on the Indictment (Doc. No. 2), the Bill of Particulars, (Doc. No. 16), and the
state’s narrative of facts at the guilty plea hearing (Apr. 19, 2011 Tr. at 23-26). At the plea hearing Ford did
not contest that the state’s evidence would have been consistent with these allegations, and agreed that he
committed those acts.

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Case No. 14-11-13



both felonies of the first degree; Intimidation of Attorney, Victim or Witness in a

Criminal case in violation of R.C. 2921.04(B), a felony of the third degree;

Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first degree, with a

specification that Ford is a sexually violent predator, R.C. Spec. 2941.148, and the

specification that Ford committed the offense with a sexual motivation, R.C. Spec.

2941.147; and Aggravated Robbery in violation of R.C. 2911.01(A)(1), a felony of

the first degree.

       {¶4} At arraignment on April 16, 2010, Ford pled not guilty to the charges.

On November 30, 2010, after hiring new counsel, Ford changed his plea to not

guilty by reason of insanity. A hearing was held on January 20, 2011 to determine

his competence to stand trial after Ford was evaluated by NetCare. Ultimately, he

was deemed competent.

       {¶5} Ford’s jury trial began on April 19, 2011. After jury selection and the

State’s opening statement, court recessed. During the recess, the State and the

defense negotiated a plea agreement. Specifically the State and Ford agreed that

Ford would plead guilty to the offense of Rape in violation of R.C. 2907.02(A)(2),

a felony of the first degree, with the specification withdrawn; Aggravated

Burglary, in violation of R.C. 2911.11(A)(1), a felony of the first degree; and

Kidnapping, in violation of R.C. 2905.01(A)(4), a felony of the first degree, with



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Case No. 14-11-13



the specification withdrawn. (Doc. No. 91). The remaining charges were to be

dismissed.

        {¶6} The plea agreement was then reduced into two separate, but

unfortunately somewhat convoluted and overlapping written documents. The first

of these documents is entitled “Sentencing Recommendation” (Doc. No. 90),

(hereinafter referred to as the “written sentencing recommendation”) which

purports to reflect a proposed agreement between the prosecutor and defense

counsel as to what would constitute an acceptable sentence to both parties in the

case.

        {¶7} The written sentencing recommendation is signed by the prosecutor,

defense counsel, and Ford. It is also initialed by all three parties next to the

recommended terms imposed. The written sentencing recommendation calls for a

20 year sentence; 10 years on each charge, with the 10 years for Rape and

Kidnapping to be served concurrently, and the 10 years for Aggravated Burglary

to be served consecutively to the other charges. Although these sentences would

render Ford ineligible for judicial release, paragraph six of the written sentencing

recommendation seems to imply otherwise, by reserving the state’s right to oppose

judicial release based only upon an unfavorable report from the correctional

institution at the time judicial release is applied for.



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       {¶8} The second of these documents is entitled “Entry Withdrawing Plea of

Not Guilty and Referral for Presentence Investigation” (hereinafter referred to as

the “written plea agreement and entry”). However, despite its judgment entry

styled caption, this document contains three separate parts, only the last of which

purports to be the judgment entry of the trial court.

       {¶9} The first part of the written plea agreement and entry sets forth a series

of statements by Ford acknowledging his understanding of the negotiated plea, the

charges, various possible sentences, advice of his counsel, the implications of the

written sentencing recommendations he is agreeing to, and his basic Crim. R. 11

rights. Following this section, Ford’s signature appears on the document. Like the

sentencing recommendation, this portion of the written plea agreement and entry

devotes two paragraphs to the possibility of judicial release and other sentencing

options clearly not contemplated by other terms of the written agreement or the

written sentencing recommendation.

       {¶10} Following Ford’s signature, the written plea agreement and entry

continues with a statement by Ford’s attorney, Sterling Gill, that Gill has

explained the charges, penalties and “constitutional rights” to Ford and that in

Gill’s opinion, Ford is competent to enter the plea and that Ford does so

knowingly, intelligently and voluntarily. Gill’s signature then appears on the

document.

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       {¶11} Following, Gill’s signature, the written plea agreement and entry

then proceeds for the first time with language of a judgment entry reciting that the

foregoing matters have come before the court, were reviewed with the parties and

signed in open court and that upon being advised by the court of his Crim. R. 11

rights, Ford entered his plea of guilty to the specified charges. Upon acceptance of

the guilty plea and setting the matter for later sentencing pending receipt of a PSI,

the document is then signed by the trial judge.

       {¶12} In   sum,   despite   the   execution   of   the   written   sentencing

recommendation which contains fairly specific sentence proposals, the written

plea agreement and entry contains numerous provisions, some of which appear to

be “boilerplate” in nature, also pertaining to various sentencing options and

possibilities, many of which are not necessarily consistent with each other, with

the sentencing proposals in the written sentencing recommendation, or with the

actual Crim. R. 11 dialogue conducted by the trial court with Ford at the guilty

plea hearing. Particularly troubling in this regard are statements in both documents

which clearly discuss the possibility of judicial release under certain

circumstances. These statements do not seem to be consistent with the terms of the

plea bargain, with other statements within the same documents, or with the Crim.

R. 11 dialogue, all of which simultaneously seem to acknowledge the intention of



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Case No. 14-11-13



the court and the understanding of the parties that Ford’s sentence was to be such

that Ford would not be entitled to judicial release at all.

          {¶13} In any event, following the execution of the foregoing two

documents, the court reconvened and conducted a thorough Crim. R. 11 colloquy

with Ford before he entered his guilty plea. During the colloquy, Ford

acknowledged he had read, signed, and discussed the written plea agreement and

entry and the written sentencing recommendation with his attorney. The court then

advised Ford that the recommendation was for twenty years; that this sentence

would render Ford ineligible for judicial release; and that the written sentencing

recommendation was not binding on the court. Specifically, the court explained

that it was free to disregard the written sentencing recommendation and elaborated

upon the maximum sentences that could be imposed, which in this case consisted

of a 30 year prison term. Ford voiced his understanding and proceeded to plead

guilty.

          {¶14} When prompted, Ford asked no questions, said he did not need

further time to confer with counsel, and stated he was satisfied with his

representation. Following that, the court accepted the guilty plea, setting

sentencing for June 2, 2011.

          {¶15} The next day, on April 20, 2011, Ford filed a handwritten pro se

motion to withdraw his guilty plea. In his motion, Ford stated that he thought the

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Case No. 14-11-13



plea agreement was “for a twelve to fourteen year sentence, with a possible

judicial [release] after five years[.]” (Doc. No. 93). Ford said he received this

“impression” from his attorney, Sterling Gill, while “signing the paperwork.” Id.

       {¶16} The court held a hearing on the motion on June 2, 2011, the same

day sentencing was scheduled. On the day of the hearing, and notwithstanding his

own signed statement in part two of the written plea agreement and entry to the

contrary, Sterling Gill, counsel for the defendant, filed an affidavit in support of

his client’s claims in the motion. During the hearing on the motion, Mr. Gill did

not testify. He did, however, speak on his client’s behalf in narrative form. In this

narrative, Gill said that he had discussed a potential reduction of charges with his

client, and there was some dialogue with his client relating to judicial release.

(June 2, 2011 Tr. at 6-7).

       {¶17} Ford    then    took   the   stand   and   testified   to   his   alleged

misunderstanding, stating that he “felt [he] was kind of rushed” in signing the

agreement. (June 2, 2011 Tr. at 15). He added that he did not get a chance to read

the full plea agreement until he “got back to the jail,” and that he was relying “on

what [he was] told from [Gill].” (June 2, 2011 Tr. at 16, 36). Ford also testified

that he regularly took an anti-depressant called Wellbutrin but that he did not get a

chance to take the medication on the day of the trial. (June 2, 2011 Tr. at 17-18).



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Case No. 14-11-13



          {¶18} On cross examination, Ford admitted that he had told the court

during the Crim R. 11 colloquy that he understood the written plea agreement and

entry and the written sentencing recommendation, and that he had informed the

court that all of his questions were answered. (June 2, 2011 Tr. at 23-24). Ford

also admitted during the hearing that he had told the court he had enough time to

think about his “very important decision” and that he had “essentially agree[d]

[he] would be sent to prison for twenty years.” (June 2, 2011 Tr. at 25-26). Ford

also testified that he understood the nature of a “recommendation,” both then and

now, and that the court was not bound to accept it. (June 2, 2011 Tr. at 28).

          {¶19} The State called two witnesses at the motion to withdraw hearing,

Deputy Eric Yocum and Melissa A. Chase. Deputy Yocum testified to overhearing

Ford say, right after the Plea hearing, that he had just received 20 years. (June 2,

2011 Tr. at 42). Melissa Chase testified to another instance when Ford entered a

guilty plea as a juvenile and later tried to withdraw it. (June 2, 2011 Tr. at 47-48).

          {¶20} After the arguments were presented, the court found that the

defendant did not show a reasonable and legitimate basis to withdraw his plea and

overruled the defendant’s motion to withdraw.

          {¶21} Following the denial of the motion, the trial court adopted the

parties’ sentencing recommendation and sentenced the defendant to 20 years in

prison.

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       {¶22} Ford filed this appeal, asserting the following assignment of error.

                          ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT OVERRULED THE
       DEFENDANT-APPELLANT’S MOTION TO WITHDRAW
       HIS PLEA. THE COURT ABUSED ITS DISCRETION IN
       MAKING ITS DECISION.

       {¶23} Rule 32.1 of the Ohio Rules of Criminal Procedure provides that “[a]

motion to withdraw a plea of guilty * * * 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. Generally, a motion to withdraw a guilty plea that is filed prior to

sentencing will be freely allowed. State v. Drake, 73 Ohio App.3d 640, 645, 598

N.E.2d 115 (8th Dist. 1991); State v. Thomas, 3d Dist. No. 1-08-36, 2008-Ohio-

6067, ¶ 6.

       {¶24} However, this does not mean that a motion to withdraw a guilty plea

will be granted automatically. Drake, at 645, 598 N.E.2d at 118. “A defendant

does not have an absolute right to withdraw a guilty plea prior to sentencing. A

trial court must conduct a hearing to determine whether there is a reasonable and

legitimate basis for withdrawal of the plea.” State v. Xie, 62 Ohio St.3d 521, 584

N.E.2d 715 (1992), at paragraph one of the syllabus. It is within the sound

discretion of the trial court to determine whether there is a legitimate and


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Case No. 14-11-13



reasonable basis for withdrawal of a guilty plea and, absent an abuse of discretion,

the trial court’s decision on the matter must be affirmed. Id. at 527, 584 N.E.2d

715. An abuse of discretion is more than an error of judgment; it implies that the

decision was “unreasonable, arbitrary, or unconscionable.” State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144, 149 (1980).

       {¶25} Ohio Appellate Courts consider several factors when reviewing a

trial court’s decision to deny a defendant’s pre-sentence motion to withdraw a

plea, including: (1) whether the withdrawal will prejudice the prosecution; (2) the

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

held pursuant to Crim.R. 11; (the extent of the hearing on the motion to withdraw

the plea; (5) whether the trial court gave full and fair consideration of the motion;

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

motion; 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 charges. State v. Lane, 3d Dist. No. 1–10–10, 2010–Ohio–4819, ¶

21, citing State v. Griffin, 141 OhioApp.3d 551, 554, 752 N.E.2d 310 (7th Dist.

2001). We note that the trial court duly addressed and considered each of these

factors in its judgment entry denying the motion to withdraw.

       {¶26} At the outset we address Ford’s argument that the plea was affected

by his inability to take his daily dose of Wellbutrin. The first time Ford raised this

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Case No. 14-11-13



argument was at the hearing on the motion to withdraw. The defendant’s pro se

motion to withdraw failed to mention any dependency upon prescription

medication that would affect his ability to accept the plea agreement.

       {¶27} At the hearing on the motion, the only evidence produced of drug

dependency was the following testimony of the defendant:

       Q. Okay. All right. Now, are you on any medication?
       A. Yes, sir.
       Q. And what medication are you on?
       A. It’s called Wellbutrin.
       Q. Okay. And do you take that – how do you take that?
       A. It’s a pill I take it.
       Q. When – when do they provide the medication?
       A. We get lunch about 11, so I probably get it about 11:30 or
       some time [sic] after lunch depending on when it comes.
       Q. And on the 19th do you remember what time you were
       transported here to the courtroom?
       A. Like 7 or 8-ish in the morning.
       Q. Did you get an opportunity to take your medication?
       A. No.

            ***

       Q. Do you know what the medication is for?
       A. Yeah. I’ve been diagnosed with clinical severe depression.
       Q. Okay.
       A. And it’s supposed to keep my spirits up I guess per se.
       Q. Does that – just tell the court how – how that medication
       helps you.
       A. Well, I mean, I’m a pretty unstable guy I guess I’d say. So
       taking this med it helps me just – helps me focus a lot more and
       just – yeah.

(June 2, 2011 Tr. at 17-19).


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       {¶28} Additionally, defendant’s counsel, who did not testify, commented in

his general remarks to the court:

       Mr. Ford indicates to me that he is prescribed a medication, and
       that has been provided to him on occasion. But that he normally
       receives that medication at 8 A.M. – now, Oh, I’m sorry with his
       lunch at noon. And on the day, and this could be documented, of
       the sentencing or of the plea, Mr. Ford was transported to the
       court at least – before 8 A.M. – before 8 A.M. And so he did not
       have an opportunity to take his medication. It was not taken. He
       needs this medication to deal with depression and to deal with
       anxiety. And I could tell you that when defendants sit in this
       chair, I think what’s going on in their mind is not what’s being
       said, but what is being heard, what they hear from their
       attorney. And without his medication, I wonder, in fact, it’s our
       opinion, along with – along with the misunderstanding as to
       sentencing, which is the key portion of the plea negotiation,
       whether or not he was intelligently, knowingly, voluntarily
       entering his plea.

(June 2, 2011 Tr. at 8).

       {¶29} Aside from the testimony and accompanying narrative, no

documentation or other evidence was produced showing that Ford was on

medication or that he missed a dose. Also, no documentation or other evidence

was produced showing the effects of missing one dose of the allegedly prescribed

medication.

       {¶30} Furthermore, during the Crim R. 11 colloquy at the plea hearing, the

trial court specifically asked Ford about prescription medication.

       The Court: As you sit here before me this afternoon, are you
       under the influence of any drugs, medication, or alcohol?

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Case No. 14-11-13




       Defendant: No, sir.

(Apr. 19, 2011 Tr. at 9).

       {¶31} In sum, Ford had opportunity to mention the drug dependency to the

court during the Crim R. 11 colloquy and failed to do so. Ford also had time to

gather evidence about the nature of the alleged drug dependency before the

hearing on the motion to withdraw, yet Ford produced no evidence of a chemical

dependency other than the self-serving testimony. For all of the foregoing reasons

we find Ford’s argument as to any medication issue affecting the guilty plea to be

well within the discretion of the trial court to determine to be without merit.

       {¶32} Turning to the remaining arguments under the assignment of error,

Ford takes greatest issue with the trial court’s reasoning as to whether inadequate

representation caused Ford’s plea to be less than knowing, intelligent and

voluntary. Specifically, it is Ford’s contention that he completely relied on

mistaken advice given to him by counsel when signing the plea agreement and

that, as a result, he thought he would be eligible for judicial release and would be

sentenced to no more than 12-14 years in prison. (Doc. No. 93).

       Q. Okay. And what were your thoughts there? Did you fully
       understand at the time you were in court the sentence by the
       court?

       A.   No, sir. I thought I was going to be getting 12 to 14.


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Case No. 14-11-13



(June 2, 2011 Tr. at 16).

       {¶33} In support of this claimed misunderstanding, Ford points to the

Affidavit filed by his counsel, Sterling Gill. As noted earlier, just before the

hearing on Ford’s pro se motion to withdraw his guilty plea, Gill filed an Affidavit

in support stating he mistakenly advised Ford. The affidavit reads:

       1. My name is Sterling E. Gill, II attorney for defendant
       Geoffrey Ford.
       2. This case was set for trial on April 19, 2011.
       3. At the conclusion of jury selection and opening statements
       the trial recessed for lunch.
       4. During recess discussions and negotiations occurred
       between counsel, defendant, State of Ohio and the court
       regarding resolution of this case short [of] continuing the trial.
       5. At the conclusions of said discussions all of the above
       mentioned parties believed that this case would be resolved with
       the guilty plea that was entered herein.
       6. Based upon the above no evidence was presented by either
       the State of Ohio or the defense.
       7. The defense intended to call witness [sic] relative to the
       prosecuting witness’s mental status.
       8. The defense believed that the prosecuting witness’s mental
       status and medications that she [sic] was taking was critical to
       the defense of consent.
       9. Defendant Geoffrey Ford (D.O.B. 11/14/1990) was nineteen
       years old at the time of offense herein. As of the date of this
       affidavit the defendant is twenty years old.
       10. This motion to withdraw plea was initiated by Mr. Ford,
       pro se, without knowledge of counsel, nor this [sic] parents.
       11. Mr. Ford indicates that he did not fully understand the plea
       paperwork that he had signed and was under the impression
       from counsel that the plea was for “a twelve to fourteen year
       sentence, with a possible judicial release after five years”.



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Case No. 14-11-13



       12. Counsel believes that Mr. Ford was genuinely confused and
       did not fully understand the impact of the documents that he
       signed.
       13. Mr. Ford had less than approximately one hour to read and
       understand some seventeen pages of documents that was [sic]
       presented to him.
       14. Counsel believes that his signature was based solely on the
       understanding that he receive [sic] from counsel.
       15. Counsel did indicate different numbers with respect to
       sentencing and judicial release eligibility.
       16. In hindsight counsel mistakenly advised Mr. Ford as to
       eligibility for judicial release and sentencing.
       17. Counsel agrees with the two forensic psychologist [sic] who
       opined that Mr. Ford “is presently mentally ill suffering from
       Polysubstance Dependent”.
       18. Based upon the foregoing counsel believes that Mr. Fords
       [sic] plea was not knowing, voluntary nor intelligently made but
       rather done under pressure and stress of the moment.

(Doc. No. 107).

       {¶34} Ford argues that the trial court did not take this affidavit into account

when making its decision on the motion to withdraw, and that this affidavit points

to counsel’s deficiency. We disagree both with the notion the trial court

“overlooked” the affidavit and that the affidavit points to a deficiency in

representation meriting reversal.

       {¶35} During the hearing on the motion to withdraw, the court noted that

the affidavit was filed, stating that the court did not feel “the affidavit satisfie[d]

the requirements of proof that are necessary in order to withdraw the defendant’s

plea.” (June 2, 2011 Tr. at 5). We agree. The affidavit fails to corroborate Ford’s


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claim as to any specific incorrect advice or improper misrepresentation with

regard to either judicial release or the possible sentence to be imposed in this case.

       {¶36} Additionally, we note that as Ford’s attorney, Gill executed and

signed his own statement as part of the written plea agreement and entry, expressly

representing that Ford “is competent to enter this plea and now does so knowingly,

intelligently and voluntarily.” (Doc. No. 91). As a member of the bar, Gill’s sworn

disavowal of that representation a few days later is troubling. Equally troubling are

other statements in Gill’s affidavit characterizing Ford’s review of the written plea

agreement and entry as confused, rushed and under stress or pressure, all of which

directly contradict Ford’s own signed statements in the written plea agreement and

entry indicating that “I have had enough time to think about this important

decision and I am certain that I want to proceed today and change my plea.” (Doc.

No. 91).

       {¶37} Moreover, at the hearing on the motion to withdraw, Gill spoke only

generally about the plea negotiations and stated that there was “an indication that

one of the charges would be amended from an F-1 to an F-2.” (June 2, 2011 Tr. at

6). Gill said that he had advised Ford of the possibility of judicial release, but only

as to the third charge after serving the mandatory 10 year sentence on the first two

concurrent charges. In other words, under such a scenario, Ford might only have to

serve a total of 15 years in prison.

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Case No. 14-11-13



       {¶38} In sum, Ford states in his motion that he thought he would be eligible

for judicial release after five years, and was only going to serve 12-14 years in

prison (based on credit for over a year of time served). His counsel, while

implying that he mistakenly advised his client as to the possibilities of judicial

release in the context of a ten to fifteen year sentence, never states that he told

Ford he would be eligible for judicial release after five years or that he was

assured any certain sentence.

       {¶39} All of these inconsistencies and the credibility of these statements by

Ford and Gill were legitimately within the province of the trial court to consider.

Moreover, in contrast to these alleged misunderstandings, an examination of the

record shows that there was significant and credible evidence showing a lack of

confusion on Ford’s part, particularly at the guilty plea hearing itself.

       {¶40} For example, Ford argued at the motion hearing that he felt “rushed”

when signing the paperwork. (June 2, 2011 Tr. at 15). However, at the plea

hearing, the court gave Ford ample opportunity to ask questions or take additional

time if he needed it, yet Ford gave no indication at any time that he was at all

hesitant to enter his plea. Ford was asked multiple times about whether he had any

questions, needed to consult his lawyer, and whether he had enough time to make

his decision.



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      COURT: Do you believe at this point in time you’ve had enough
      time to consult with your lawyer before proceeding with this
      plea agreement?
      DEFENDANT: Yes, sir.
      COURT: Has he talked to you about all ramifications in the case
      and answered all of the questions that you have?
      DEEFNDANT: Yes, sir.
      COURT: Are you satisfied with his advice and counsel?
      DEFENDANT: Yes, sir.
      COURT: The court has before it a 12 page entry withdrawing
      plea of not guilty, entering plea of guilty * * * And that would
      appear to me to be signed by you * * * and initialled [sic] by you
      throughout the document. Have you read this plea agreement?
      DEFENDANT: Yes, sir.
      COURT: And have you discussed it with your lawyer:
      DEFENDANT: Yes, sir.
      COURT: Do you understand the plea agreement?
      DEFENDANT: Yes, sir.
      COURT: Am I looking at your signature and initials on this plea
      agreement?
      DEFENDANT: Yes, sir.
      COURT: Did you initial and sign it after you read * * * the
      agreement and discussed it with your lawyer?
      DEFENDANT: Yes, sir.

      ***

      COURT: Do you have any questions of the court before we
      proceed further?
      DEFENDANT: No, sir.
      COURT: Do you want to speak to your lawyer before we go any
      further?
      DEFENDANT: No, sir.
      COURT: Have you had enough time to think about this very
      important decision?
      DEFENDANT: Yes, sir.
      COURT: A decision that you’re making that essentially agrees
      that you would be sent to prison for 20 years.
      DEFENDANT: Yes, sir.

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Case No. 14-11-13



       COURT: And you are certain then that you want to proceed to
       change your plea?
       DEFENDANT: What’s that?
       COURT: Are you certain that you want to proceed today and
       change your plea and plead guilty to counts 1, 3, and 6?
       DEFENDANT: Yes, sir.

(June 2, 2011 Tr. at 11-12, 22-23).

       {¶41} Ford repeatedly stressed that he had no questions about the written

plea agreement and entry or the written sentencing recommendation he claimed to

have read, agreed to, and signed. He answered concisely and directly to each and

every question asked by the court. Ford even asked for clarification the one time

he didn’t hear or understand. This could certainly give the trial court the

impression that Ford was doing more than merely “going through the motions” as

he suggests he was. (June 2, 2011 Tr. at 25).

       {¶42} Also, at the plea hearing, Ford voiced no confusion or any

misunderstanding stemming from his attorney’s advice. Ford did not once give the

court the impression that he thought the prison term was for something other than

20 years or that he would be eligible for judicial release.

       COURT: Do you understand that if the court were to impose a
       maximum sentence in each case and run those sentences
       consecutively, that you would be facing 30 years in prison and a
       $60,000 fine?
       DEFENDANT: Yes, sir.
       COURT: Do you understand that if you’re sentenced to a prison
       term of more than 10 years, that you are not eligible for judicial
       release?

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        DEFENDANT: Yes, sir.

        ***

        COURT: Do you understand, based upon my discussion on the
        record with you this morning, that the court’s [sic] of the
        opinion that this sentencing recommendation renders you
        ineligible to apply for judicial release?
        DEFENDANT: Yes, sir.

(Apr. 19, 2011 Tr. at 15-17).

        {¶43} The period of 20 years, which Ford acknowledged in the written

sentencing recommendation, was mentioned at least 5 times during the Rule 11

dialogue. (Apr. 19, 2011 Tr. at 3-6, 22). In contrast, a period of 12-14 years was

never mentioned once neither during the court’s Rule 11 dialogue nor in either of

the two written agreements signed by Ford. In addition, Ford said he understood

the nature of consecutive sentences when it was explained to him at the plea

hearing, and Ford said he understood that he would be ineligible for judicial

release both times it was mentioned in the excerpts above.

        {¶44} In fact, the sentence Ford received was exactly the sentence set forth

in the written sentencing recommendation which he signed and acknowledged at

the plea hearing. The first three provisions of the sentencing recommendation

read:

        1. On Count I the Defendant is to be sentenced to a
        mandatory prison term of ten (10) years.


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       2. On count VI the Defendant is to be sentenced to a prison
       term of ten (10) years, to be served concurrent to Count I;
       3. On Count III the Defendant is to be sentenced to a prison
       term of ten (10) years, to be served consecutive to counts I and
       VI for a combined prison term of (20) years;

(Doc. No. 90).

       {¶45} The sentence Ford received was precisely what he had bargained for.

Moreover, Ford’s assertions that he understood the written sentencing

recommendation are consistent with his statements at the motion to withdraw

hearing that he knew he was potentially facing life in prison and that, to him, less

time seemed more favorable. (June 2, 2011 Tr. at 19).

       {¶46} In sum, the evidence in favor of Ford having understood the full

implications of his plea is substantial. Ford could admittedly read and write and

was a graduate of high school. He claimed to have read and reviewed the written

plea agreement and entry and the written sentencing recommendation. He signed

them both and initialed next to the provision in the written sentencing

recommendation providing for a term of imprisonment of 20 years. In addition,

during the Rule 11 colloquy, Ford raised no questions, said he had enough time to

consult with his attorney, and said he needed no more time.

       {¶47} In addition to the other evidence illustrating that Ford understood, the

State called Deputy Eric Yocum at the hearing on the motion to withdraw. Deputy



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Eric Yocum testified to Ford saying he had just gotten twenty years directly after

the plea.

       Q. Deputy, after you separated the defendant from his friend
       or family member, would you please tell the court what the
       defendant indicated to you.

       A. Well, he was upset and he made a statement that why [sic]
       he couldn’t hug her. He said he just received 20 years.

(June 2, 2011 Tr. at 41-42). Deputy Yocum’s testimony suggests that Ford grasped

the fact that he was getting 20 years in prison at the time of the hearing,

contradicting his later alleged misunderstanding. This would be consistent with

Ford signing and initialing the above mentioned agreements and having no

questions during the plea hearing.

       {¶48} There is substantial evidence illustrating that Ford had no

misunderstanding at all. But, even if there was a misunderstanding about the

availability of judicial release, whether from Gill or from certain provisions of the

written plea agreement, this type of misinformation has typically not risen to the

level of deficient performance of counsel sufficient to constitute vacation of a

guilty plea. In State v. Xie, a defendant similarly attempted to withdraw his guilty

plea after being misinformed about eligibility for parole. Xie at 523. The Supreme

Court of Ohio stated that “a defendant who bases a plea decision on parole

eligibility will often be relying on a factor beyond the prediction of defense


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Case No. 14-11-13



counsel, and beyond the actual control of a defendant.” Id. at 524-25. The court in

Xie found that incorrect advice on parole did not meet the standards for ineffective

assistance of counsel. Id. at 525.

       {¶49} While we have not found sufficient evidence supporting the idea that

counsel’s performance was deficient, it is important to note that even if it was, and

Ford actually had misunderstood, Fort would still have to show that he would have

made a different decision had Gill given accurate advice. See State v. Kole, 92

Ohio St.3d 303, 306 (2001), citing Strickland v. Washington 466, US 668, 104 S.

Ct. 2052 (1984).

       {¶50} In this case, Ford was admittedly worried about spending life in

prison, the lesser amount of time seeming favorable to him. (June 2, 2011 Tr. at

19). The court made sure that Ford was apprised of the fact he was going to prison

for 20 years and he had no possibility of judicial release. Ford agreed to the

sentencing recommendation knowing the court could disregard it and give him 30

years. He proceeded to plead guilty, admitting the facts read into the record.

       {¶51} Based on the foregoing, the evidence does not suggest that Ford

would have made a different decision had Gill’s advice been correct as Ford was

willing to endure up to thirty years in prison and was aware that he was facing it if

maximum penalties were imposed. So even if Gill’s performance was deficient,

which we have determined it was not, and even if Ford misunderstood, which we

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have determined there is significant evidence saying he did not, Ford still had to

show that he would have made a different decision, and that is not established in

this record.

         {¶52} Nevertheless, with regard to all of the foregoing issues, we believe it

is important to acknowledge that the record in this case is not without some

confusion. As noted earlier, we believe some of the unnecessary confusion in this

case arises from the boilerplate language and check box formats used by the trial

court in attempting to consolidate a written plea agreement, representations of

counsel and a separate somewhat redundant written sentencing recommendation

all into a single judgment entry accepting the plea.

         {¶53} However, having acknowledged this, we also believe it is within the

province of the trial court at a Crim. R. 32.1 hearing to weigh the credibility of

these competing statements and claims of the parties with regard to all of the

factors that go into the acceptance of a guilty plea. As such, it is our conclusion

that in this case there was ample evidence, including in particular, the Crim. R. 11

dialogue at the plea hearing, which the trial court was entitled to find outweighed

any other claims of misunderstanding by Ford or his counsel in exercising its

discretion to overrule the motion to withdraw the guilty plea.2


2
  This court has previously upheld the trial court’s discretion to overrule a motion to withdraw a guilty plea
under similar circumstances albeit in a post-sentence motion involving the higher standard of manifest
injustice. See for example, State v. Langenkamp, 3d. Dist. No. 17-08-03, 2008-Ohio-5308.

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          {¶54} Turning to some of the other factors relied upon by the trial court, we

note that a jury had already been selected and opening statements were given in

this case. The court noted that some of the State’s witnesses might not be available

again and there were additional financial burdens on the State. It had been well

over a year since the incident in question. So factor number one of State v. Lane,

supra, has been appropriately addressed by the trial court.

          {¶55} Ford also claims that failure to allow the guilty plea to be withdrawn

prevents Ford from asserting the complete defense of “consent.” However, in its

entry denying the motion to withdraw, the trial court stated that “evidence

presented up to the point of the Defendant withdrawing his plea was

overwhelming in favor of the Defendant being found guilty.” (June 3, 2011 JE at

18). “[Ford] agreed under oath with the recitation of the facts by the state in

support of the indictment and agreed that he committed the acts.” (June 3, 2011 JE

at 18).

          {¶56} Finally, Ford cites the case of State v. Cuthbertson, 139 Ohio App.

3d 895, 746 N.E.2d 197 (7th Dist. 2000), out of the seventh district court of

appeals, arguing factual similarities to the case at bar. In Cuthbertson the

defendant was also in the midst of a trial when he pled guilty, withdrew his plea a

week later prior to sentencing, and was denied. State v. Cuthbertson, 139 Ohio



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App. 3d 895, 896, 746 N.E.2d 197, 198 (2000). The trial court’s denial of that

motion then was overturned on appeal. Id.

       {¶57} We find this case distinguishable from Cuthbertson for two reasons.

First, Cuthbertson argued that he was pressured into signing his plea agreement by

his mother. Id. at 897, 746 N.E.2d 198. Though Ford argues he felt rushed and that

he misunderstood, he never states he was pressured or coerced into signing the

agreement. Second, the court in Cuthbertson found that the prosecution presented

no evidence of any prejudice to the State in allowing the plea to be withdrawn. Id.

at 899, 746 N.E.2d 200. Unlike the court in Cuthbertson the State argued, and the

trial court noted, several instances of potential prejudice in this case.

       {¶58} In sum, we find the record contains significant credible evidence to

support the trial court’s finding that the nine factors of State v. Lane weighed in

favor of denying the motion to withdraw defendant’s guilty plea. Based on this

record we find no abuse of discretion in the trial court’s decision to deny Ford’s

motion to withdraw his guilty plea.

       {¶59} For these reasons, Ford’s assignment of error is overruled and the

judgment is affirmed.

                                                                   Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concurs.

/jlr

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