[Cite as State v. Castillo, 2011-Ohio-3131.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-10-36

        v.

RUBEN J. CASTILLO II.,                                     OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Union County Common Pleas Court
                            Trial Court No. 2009 CR 0186

                                       Judgment Affirmed

                               Date of Decision: June 27, 2011




APPEARANCES:

        J.C. Ratliff and Jon L. Jensen for Appellant

        David W. Phillips for Appellee
Case No. 14-10-36



PRESTON, J.

          {¶1} Defendant-appellant, Ruben J. Castillo II (hereinafter “Castillo”),

appeals the judgment of the Union County Court of Common Pleas denying his

pre-sentence motion to withdraw his guilty plea. For the reasons that follow, we

affirm.

          {¶2} On October 23, 2009, the Union County Grand Jury returned an

indictment against Castillo charging him with two counts of Vehicular Assault in

violation of R.C. 2903.08(A)(2)(b), both felonies of the fourth degree. A warrant

was issued for Castillo’s arrest, and the matter was scheduled for arraignment on

November 12, 2009. Subsequently, Castillo appeared for arraignment and entered

pleas of not guilty to the charges in the indictment.

          {¶3} On November 18, 2009, the State filed its Bill of Particulars and

notice of service of discovery. On November 23, 2009, Attorney Gary Andorka

filed his notice of appearance as counsel for Castillo and also filed his demand for

discovery and a public records request.

          {¶4} Thereafter, on December 17, 2009, defense counsel filed a motion in

limine to exclude the testimony of the accident reconstructionist, a motion in

limine to exclude use of prejudicial terms, and Castillo’s response to the State’s

demand for discovery identifying Castillo and his passenger, Donna Castillo, as

witnesses. The matter was set for hearing on February 16, 2010. On February 12,

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2010, the State filed its memorandum contra to Castillo’s motions, and on

February 16, 2010, the trial court scheduled the matter for another scheduling

conference for March 10, 2010.

       {¶5} On March 12, 2010, the trial court scheduled the case for a final

pretrial conference on June 4, 2010, and a jury trial on June 14-15, 2010. On

March 23, 2010, Castillo filed a motion in limine to exclude cellular telephone

video and voice recordings.       On March 29, 2010, the State filed a motion

requesting to continue the jury trial as a witness was scheduled to be out-of-state

during the trial dates. The State also filed a memorandum contra to Castillo’s

motion in limine.

       {¶6} On April 1, 2010, the trial court granted the State’s motion for a

continuance and rescheduled the jury trial for June 29-30, 2010, and rescheduled

the final pretrial conference for June 22, 2010. On June 17, 2010, the State filed

proposed jury instructions with the trial court.

       {¶7} On June 24, 2010, Castillo, through counsel, filed motions with the

trial court to allow counsel to withdraw and to continue the jury trial scheduled for

June 29, 2010 on the basis that Castillo was dissatisfied with his counsel’s

representation. On June 25, 2010, the State filed a memorandum in opposition to

Castillo’s request for a continuance. On June 25, 2010, a hearing was held on



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Castillo’s motion, and subsequently the trial court denied Castillo’s request to

allow counsel to withdraw and his request for a continuance.

       {¶8} On June 28, 2010, Castillo filed a second motion for continuance on

the basis that he had just come into possession of potentially exculpatory evidence

that the State had previously failed to provide defense counsel. A telephone

conference was held with counsel and, as a result, Castillo’s second motion for a

continuance was denied.

       {¶9} On June 28, 2010, Castillo appeared before the trial court and entered

a plea of guilty to both counts of vehicular assault. The trial court accepted

Castillo’s guilty plea and ordered a pre-sentence investigation be conducted. On

June 30, 2010, the trial court issued its order accepting Castillo’s guilty pleas and

scheduled the case for sentencing on August 17, 2010.

       {¶10} On July 14, 2010, Castillo, through newly retained counsel, filed a

motion to withdraw his plea of guilty and an affidavit in support. On July 15,

2010, the State filed a memorandum in opposition to Castillo’s motion.           On

September 3, 2010, Castillo filed a supplemental memorandum in support of his

motion to withdraw his guilty plea.

       {¶11} The matter came on for a hearing on September 7, 2010, and only

Castillo testified on his behalf at the hearing. Subsequently, on September 21,



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2010, the trial court issued its order denying Castillo’s motion to withdraw his

guilty plea and scheduled the matter for sentencing.

       {¶12} On December 21, 2010, the trial court sentenced Castillo to fourteen

(14) months in prison on count one and fourteen (14) months in prison on count

two; the sentences were ordered to run consecutively, for a total of twenty-eight

(28) months. The trial court also suspended Castillo’s driver’s license for a period

of five (5) years and ordered Castillo to pay restitution.

       {¶13} Castillo now appeals and raises one assignment of error for our

review.

                           ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION IN DENYING DEFENDANT-APPELLANT’S
       PRESENTENCE MOTION TO WITHDRAW HIS PLEA OF
       GUILTY WHEN ITS ORDER WAS NOT SUPPORTED BY
       COMPETENT, CREDIBLE EVIDENCE.

       {¶14} In his only assignment of error, Castillo argues that the trial court

erred and abused its discretion when it denied his pre-sentence motion to withdraw

his guilty plea.

       {¶15} A defendant may file a pre-sentence motion to withdraw a guilty

plea. Crim.R. 32.1. Although a trial court should freely grant such a motion, a

defendant does not maintain an absolute right to withdraw his plea prior to

sentencing. State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. Instead,

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a trial court must hold a hearing to determine whether a “reasonable and legitimate

basis” exists for the withdrawal. Id., at paragraph one of the syllabus.

       {¶16} We consider several factors when reviewing a trial court’s decision

to grant or 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; (4) 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; (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 charges. State v. Lane, 3d Dist. No. 1-10-10, 2010-Ohio-4819, ¶21,

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

also, State v. Liles, 3d Dist. No. 1-10-28, 2010-Ohio-5799, ¶¶15-17.

       {¶17} Ultimately, it is within the sound discretion of the trial court to

determine what circumstances justify granting a pre-sentence motion to withdraw

a guilty plea. Xie, 62 Ohio St.3d 521, at paragraph two of the syllabus. Therefore,

appellate review is limited to whether the trial court abused its discretion. State v.

Nathan (1995), 99 Ohio App.3d 722, 725, 651 N.E.2d 1044, citing State v. Smith

(1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. An abuse of discretion connotes

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more than an error of judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140. When applying this standard, a reviewing court may not

simply substitute its judgment for that of the trial court. Id.

       {¶18} On appeal, Castillo claims that the trial court abused its discretion in

denying his pre-sentence motion to withdraw his guilty plea when (1) there was no

evidence that the State would have been prejudiced, (2) he was not represented by

competent trial counsel, and (3) he had presented evidence that he was either

innocent or had a meritorious defense.

       {¶19} Upon examination of these factors, we first note that in the instant

case there does not appear to be any prejudice to the State. The trial court found

that the State would be prejudiced because it would have to “scramble, several

months after believing the matter was at an end for all intents and purposes, to

reconstruct [its] file and prepare for trial.” (Sept. 21, 2010 JE at 5-6). However,

several months had not passed, and in fact, as the trial court later acknowledged,

there was no unreasonable delay in filing the motion since Castillo filed his

motion only twelve business days after entering his plea. In addition, at the

hearing on Castillo’s motion, the prosecutor never explicitly stated that the State

would be prejudiced. Rather, at the hearing the prosecutor said that he had not yet

contacted all of his witnesses; and while he knew of one witness that had moved to

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another city, he could not even represent to the court at that time whether they

would be able to locate him or not for purposes of trial. (Sept. 7, 2010 Tr. at 43).

Thus, we cannot say that there has been a demonstration of prejudice to the State.

       {¶20} Nevertheless, an examination of the remaining factors supports the

trial court’s decision to deny the motion to withdraw the guilty plea. The trial

court conducted an extensive Crim.R. 11 hearing and hearing on Castillo’s motion

to withdraw his guilty plea.      At the change of plea hearing, the trial court

conducted a thorough colloquy with Castillo, and informed him of all of the rights

he was giving up by pleading guilty to the charges as required by Crim.R. 11. The

trial court informed Castillo that he was waiving his right to a jury trial, the right

to confront witnesses against him, the right to subpoena witnesses to appear on his

behalf, the privilege against self-incrimination, and the right to have the prosecutor

prove all elements of the offense beyond a reasonable doubt. (June 28, 2010 Tr. at

14-16). See State v. Ballard (1981), 66 Ohio St.2d 473, 479-81, 423 N.E.2d 115.

In addition, given the fact that Castillo had filed a motion to have his trial counsel

withdraw from the case, the trial court inquired of Castillo regarding his trial

counsel in order to make sure that Castillo was voluntarily entering his plea:

       THE COURT: Now, there’s been issues with regard to your
       making allegations about your lawyer in this case and wanting to
       discharge your lawyer as late as last week. Have you had
       enough time to consult with your lawyer before proceeding this
       afternoon?

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       DEFENDANT: To the best of our ability, sir. Yes.
       THE COURT: Has he talked to you about this and answered all
       of your questions?
       DEFENDANT: Yes.
       THE COURT: Are you satisfied with his advice and counsel
       relative to this plea agreement that you’re entering into, and the
       entry withdrawing [sic] plea of not guilty that you’re proposing?
       DEFENDANT: Yes, sir.
       ***
       THE COURT: Do you have any questions of the court before we
       proceed further?
       DEFENDANT: No, your Honor.
       THE COURT: Want to speak with your lawyer before we go
       any further?
       DEFENDANT: If I could for just a moment.
       (The defendant spoke with Mr. Andorka)
       I’m fine, your Honor.
       THE COURT: Have you had enough time to think about this
       important decision?
       DEFENDANT: Yes.
       THE COURT: Are you certain that you want to proceed today
       to change your plea?
       DEFENDANT: Yes, your Honor.

(June 28, 2010 Tr. at 7, 16). Even despite Castillo’s prior concerns, Castillo

clearly indicated on the record that he was satisfied with the advice he had

received from his trial counsel and wished to change his plea to guilty.

       {¶21} In addition, the record also illustrates that Castillo understood the

nature of the charges and possible penalties. Castillo stated at the change of plea

hearing that he had read and understood the plea agreement and had discussed the

same with his counsel prior to initialing and signing the plea agreement. (June 28,

2010 Tr. at 7). Castillo stated that he was satisfied with his trial counsel’s advice

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regarding the plea agreement. (Id.). In addition, Castillo stated that he understood

the nature of the charges, the allegations contained in the indictment relating to the

charges, the potential sentences he faced on each of the charges, the fact that his

sentences could run concurrently or consecutively, the possibility of judicial

release, and the terms and conditions of post-release control. (Id. at 8-11). After

the end of the plea colloquy, the trial court asked Castillo if he had any questions

of the trial court, to which Castillo replied, “[n]o, your Honor.” (Id. at 16).

Castillo was also given an opportunity to speak to his lawyer, and did so, after

which time, he indicated that he was fine. (Id.). The trial court specifically

inquired about whether Castillo had had enough time to think about the important

decision, and Castillo replied “[y]es” and that he wished to proceed and change his

plea to guilty.   (Id.).   Thereafter, the State provided the trial court with an

extensive statement of the facts. (Id. at 16-17). When asked whether he agreed

that he had committed the acts as alleged in the statement of facts, Castillo replied

“[y]es, your Honor.” (Id. at 17-18). Then, Castillo entered pleas of guilty as to

each of the charges in the indictment. (Id. at 18).

       {¶22} The record also demonstrates that the hearing on the motion to

withdraw the guilty plea was extensive. The trial court permitted Castillo to

testify on his own behalf and heard arguments from both sides regarding the

motion. While Castillo did testify at the hearing, he did not present any other

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witnesses nor did he introduce any documentary evidence in support of his

motion. In particular, Castillo did not even introduce the copy of the full accident

report, which he claimed contained “exculpatory” evidence and which he claimed

could prove his innocence.      Nevertheless, in addition to giving Castillo the

opportunity to present evidence, the trial court also inquired about the availability

of witnesses and whether there would be any prejudice in permitting the

withdrawal. (Sept. 7, 2010 Tr. at 43).

       {¶23} Furthermore, it is clear that the trial court gave full consideration to

Castillo’s stated reasons for his request. In a lengthy and well-reasoned journal

entry, the trial court analyzed, and in great detail discussed, the fact that Castillo

had not demonstrated a reasonable and legitimate basis for his withdrawal. (Sept.

21, 2010 JE at 5-18). In particular, the trial court noted that Castillo’s main reason

for his request centered on the alleged ineffective assistance of his trial counsel.

(Id. at 11). After considering Castillo’s arguments, the record, and the applicable

law, the trial court ultimately concluded that Castillo had failed to show how his

trial counsel had been deficient and how there was a reasonable probability that he

would not have pled guilty but for his trial counsel’s purported deficiencies. (Id.

at 12-15).

       {¶24} Specifically, with respect to Castillo’s claim that he had been denied

effective assistance of counsel, we note that a defendant asserting a claim of

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ineffective assistance of counsel must establish: (1) the counsel’s performance

was deficient or unreasonable under the circumstances; and (2) the deficient

performance prejudiced the defendant. State v. Kole (2001), 92 Ohio St.3d 303,

306, 750 N.E.2d 148, citing Strickland v. Washington (1984), 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶25} To establish prejudice when ineffective assistance of counsel relates

to a guilty plea, a defendant must show there is a reasonable probability that but

for counsel’s deficient or unreasonable performance the defendant would not have

pled guilty. State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing

Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland,

466 U.S. at 687.

       {¶26} On appeal, Castillo’s basis for his claim of ineffective assistance of

counsel is that his attorney allegedly did not have a complete copy of the accident

report and was not fully prepared for trial. Castillo asserts that this report was

“exculpatory” and “proved his innocence” because the trooper writing the report

did not check any of the boxes for things like recklessness, speeding or aggressive

driving.

       {¶27} At the hearing on the motion to withdraw, Castillo testified that he

had found the complete accident report online on his own accord and believed that

his trial counsel did not have a copy of the full report. (Sept. 7, 2010 Tr. at 10-11)

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(emphasis added). Castillo further testified that he had given his trial counsel a

copy of the full report the day before trial, and that his trial counsel subsequently

filed a motion to continue, but that the motion was denied by the trial court. (Id.).

Castillo testified that, as a result, he felt that “[he] was backed into a corner * * *

[and] had to sign a plea.” (Id.). However, after reviewing the record, we find that

Castillo has failed to demonstrate how his trial counsel was ineffective.

       {¶28} First of all, Castillo has failed to show how his trial counsel’s

performance was deficient. According to his testimony at the hearing, Castillo

only believed that his trial counsel did not have the full report since Castillo had

discovered this report on his own; however, he could not say for sure whether his

trial counsel had a copy of the full accident report or not. In either case, the only

evidence Castillo can point to in support of his argument is his own self-serving

testimony at the hearing on his motion. Yet, even the credibility of his testimony

is questionable since Castillo admitted that he lied under oath at the change of plea

hearing. (Sept. 7, 2010 Tr. at 21).

       {¶29} Castillo has also failed to show a reasonable probability that he

would not have pled guilty but for his trial counsel’s alleged deficient

performance. Castillo admitted at the hearing on his motion that he had had a

copy of the full accident report, which Castillo claimed “proved his innocence,”

prior to entering his plea of guilty. Thus, we cannot see how this full accident

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report would have made any difference in his decision since clearly Castillo

decided to plead guilty even though he already had a copy of this report.

       {¶30} Furthermore, despite Castillo’s claim that his trial counsel was not

“competent,” the record shows that during the Crim.R. 11 colloquy, the trial court

asked Castillo whether he was satisfied with his trial counsel’s advice and

representation, to which Castillo replied “[y]es, your Honor.” The trial court even

specifically inquired about Castillo’s prior concerns with his trial counsel, but

again, Castillo said that he was satisfied with his trial counsel’s advice and

representation.

       {¶31} Finally, in denying Castillo’s motion, the trial court noted that

Castillo’s trial counsel was well-experienced and had aggressively defended

Castillo throughout the proceedings. For example, Castillo’s trial counsel filed

several motions in limine, and at the hearing on the motions, the trial court stated

that Castillo’s trial counsel had competently challenged the investigation and

opinions of the State’s expert.

       {¶32} Overall, not only did Castillo not know for sure whether his trial

counsel had a copy of the full accident report or not, but the fact remains that

Castillo admitted that he and his trial counsel had a copy of the full accident report

prior to him entering pleas of guilty to the charges of vehicular assault.         In

addition, all Castillo has offered in support of his position is his self-serving

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testimony and bald assertions. Therefore, we find that the trial court did not abuse

its discretion when it found that Castillo had failed to demonstrate his trial counsel

was ineffective, incompetent, and not fully prepared for trial.

       {¶33} Lastly, Castillo claims that he has a meritorious defense to the

charges of vehicular assault. We note that Castillo has never disputed the fact that

he was the person operating the vehicle on the night in question. Castillo argues

that he did not act recklessly the night of the incident. In support of his position,

Castillo points to the fact that he was not under the influence of drugs or alcohol

and he was not speeding or driving in an unsafe rate of speed, all of which he

claims were corroborated by the full accident report.

       {¶34} First of all, the fact that Castillo might not have been speeding or was

not under the influence of drugs or alcohol does not mean that Castillo did not act

recklessly that night. A person acts reckless when “with heedless indifference to

the consequences, he perversely disregards a known risk that his conduct is likely

to cause a certain result.”    R.C. 2901.22(C).     Addressing a similar argument

regarding a similar set of facts, the Seventh District Court of Appeals noted the

following:

       [T]he fact that a person is driving under the speed limit does not
       mean that the person is not driving recklessly. Speed limits
       permit a driver to operate their car up to a certain speed,
       however, that does not mean in all conditions it is safe to travel
       at the speed limit. For example, the speed on many highways is

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       65 mph and it is safe to travel at that speed when the road
       conditions are good. However, during a winter storm that
       causes the roads to be extremely icy, it is not safe to travel 65
       mph. If a person does decide to travel at that speed, even though
       they are continually sliding across the road, and causes an
       accident, they may be acting with heedless indifference to a
       known risk.

State v. Monigold, 7th Dist. No. 03 CO 25, 2004-Ohio-1554, ¶15 (emphasis in

original).

       {¶35} Here the record shows that the roads on the day of the accident were

covered with ice and snow.        Moreover, the record demonstrates that, while

attempting to pass the two vehicles in front of him in a no passing zone, Castillo

lost control of his vehicle, went left of center, and struck an on-coming vehicle,

significantly injuring two women in that on-coming vehicle.           Based on this

evidence, we believe that it was reasonable for the trial court to conclude that there

was overwhelming evidence that Castillo had acted recklessly that night.

       {¶36} In addition, we believe that it was also reasonable for the trial court

to conclude that Castillo had failed to demonstrate that he had a meritorious

defense. Besides Castillo’s testimony at the hearing on his motion, which as we

stated above was self-serving and untrustworthy, Castillo did not provide the trial

court with any other evidence to support his claims of innocence or establish a

meritorious defense. State v. Richey, 6th Dist. No. S-09-028, 2011-Ohio-280, ¶63,

citing State v. Scott, 6th Dist. No. S-05-035, 2006-Ohio-3875, ¶13. Significantly,

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Castillo did not even introduce the copy of the full accident report, which Castillo

adamantly asserted contained “exculpatory” evidence that “proved his innocence.”

       {¶37} Overall, based on all of the above, we find that the trial court did not

abuse its discretion in denying Castillo’s pre-sentence motion to withdraw his

guilty plea.

       {¶38} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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