[Cite as State v. Dean, 2016-Ohio-8422.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2015-T-0136
        - vs -                                 :

JASON PHILLIP DEAN,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2015 CR 00239.

Judgment: Affirmed and remanded.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Jason Phillip Dean, appeals from the December 2, 2015 entry

of the Trumbull County Court of Common Pleas sentencing him to eighteen months in

prison for one count of Domestic Violence. For the following reasons, the trial court’s

judgment is affirmed and remanded.

        {¶2}     On March 18, 2015, a complaint was filed against appellant in the Newton

Falls Municipal Court, alleging two counts of Domestic Violence, felonies of the fourth
degree, in violation of R.C. 2919.25(A) & (D)(1)(3). The matter was bound over to the

Trumbull County Court of Common Pleas. On May 22, 2015, appellant was indicted by

the Grand Jury on one count of Domestic Violence, a felony of the third degree, in

violation of R.C. 2929.25(A) & (D)(1)(4). The indictment stated appellant knowingly

caused or attempted to cause physical harm to a family or household member. The

victim was appellant’s girlfriend, with whom he lived. The indictment also provided that

appellant had previously pled guilty to or been convicted of two or more offenses of

domestic violence and listed the case number and jurisdiction of each.

      {¶3}   Appellant initially entered a plea of not guilty and was released on a

personal recognizance bond. Appellant subsequently entered into a plea agreement

with appellee, the state of Ohio, on one amended count of Domestic Violence, a felony

of the fourth degree, in violation of R.C. 2929.25(A) & (D)(1)(3).       The signed plea

agreement provides that appellant understood he could receive anywhere from six to

eighteen months in prison and up to a $5000 fine. Appellant acknowledged that prison

was not presumed necessary and was not mandatory, and he was eligible for probation

or community control sanctions. The agreement advised that post-release control was

optional, up to a maximum of three years, upon release from prison.           Finally, the

agreement stated, “[t]he underlying agreement upon which this plea is based is as

follows: Defendant waives a Pre-Sentence Investigation. The State and Defendant

agree to a jointly recommended prison sentence of 6 months.” (Emphasis sic.)

      {¶4}   A plea hearing was held on October 8, 2015, at the conclusion of which

the trial court stated, “[a] presentence investigation is to be completed. Sentencing will

be scheduled for January 7th.” On November 4, 2015, appellant, through counsel, filed




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a motion to withdraw his guilty plea. He attached a signed and witnessed exhibit to his

motion, which provided the following explanation for the motion:

              Within the Plea Bargain, I was agreeing to accept a six (6) month
              sentence and waive a P.S.I. (Pre-Sentence Investigation), to which
              my sentencing would be held on or after January 1, 2016 so I may
              enjoy the holiday season with my family and friends.

              However, while in Court on the aforementioned date, [the judge]
              Ordered that I undergo a P.S.I., even though that was not part of
              the Plea Bargain.

              As a result, I, Jason Dean, now wish to withdraw my Plea Bargain
              and have my herein case proceed to a Jury Trial. By doing this, I
              acknowledge and agree to the following:

              1. Any and all deal(s), Plea Bargain(s), offer(s) and/or sentencing
              reduction options are hereby null and void.

              2. Any and all Jury Trial costs shall be my sole responsibility, as the
              Court may order, and attached to my herein case as “Court Costs.”

              3. My sentencing date shall be at the Court’s discretion, with no
              guarantee of sentencing being held on or after January 1, 2016.

              4. I understand that the Court might reject my “Motion to Withdraw
              Plea” and proceed with the Plea Bargain and P.S.I. as previously
              Ordered on or about Thursday, October 8, 2015.

       {¶5}   On November 19, 2015, the trial court held a hearing, at which it orally

overruled appellant’s motion to withdraw his guilty plea. The trial court then ordered

appellant into custody for failing to appear for his presentence investigation and set the

matter for sentencing once the presentence investigation was complete.

       {¶6}   Later that afternoon, the trial court held the sentencing hearing. The court

stated it had received a copy of appellant’s criminal record from the probation

department and did not need the rest of the PSI to proceed. In his statement to the

court, appellant restated his desire to withdraw his guilty plea and advance to a jury trial.

The prosecutor and defense counsel reiterated the agreed recommendation of six

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months in prison.       The trial court made the requisite findings, advised appellant of

optional post-release control up to a maximum of three years, and sentenced appellant

to the maximum prison term of eighteen months.

        {¶7}     Appellant filed a notice of appeal from the sentencing entry and asserts

one assignment of error for our review:

        {¶8}     “The trial court erred and abused its discretion by denying the appellant’s

pre-sentencing motion to withdraw his guilty plea.”

        {¶9}     Appellant argues the trial court abused its discretion in denying his motion

to withdraw his guilty plea because it was not entered voluntarily, knowingly, and

intelligently.   Specifically, appellant maintains his plea was constitutionally deficient

because he would not have pled guilty had he known the trial court could order a PSI

despite the fact that he waived a PSI in the plea agreement.

        {¶10} Pursuant to Crim.R. 32.1, “[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.”             Motions to withdraw guilty pleas prior to

sentencing are to be allowed freely and liberally. State v. Xie, 62 Ohio St.3d 521, 527

(1992). The right to withdraw a plea is not, however, absolute. State v. Prinkey, 11th

Dist. Ashtabula No. 2010-A-0029, 2011-Ohio-2583, ¶5, citing Xie, supra, at paragraph

one of the syllabus.

                 [T]he trial court must conduct a hearing to determine whether there
                 is a reasonable and legitimate basis for the withdrawal of the plea.
                 After considering the basis of the motion, the trial court’s decision to
                 grant or deny a presentence motion to withdraw a guilty plea is
                 within the sound discretion of the trial court.




                                                4
State v. Ziefle, 11th Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621, ¶9 (citations

omitted).

       {¶11} An appellate court reviews a trial court’s decision regarding a motion to

withdraw a guilty plea for an abuse of discretion.        Prinkey, supra, at ¶7 (citation

omitted).   An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-

54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶12} In evaluating whether a trial court properly exercised its discretion in ruling

on a pre-sentence motion to withdraw a guilty plea, this court applies the four-factor test

pronounced in State v. Peterseim, 68 Ohio App.2d 211 (8th Dist.1980). See, e.g., State

v. Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶11; State v. Johnson,

11th Dist. Lake No. 2007-L-195, 2008-Ohio-6980, ¶21. A trial court does not abuse its

discretion in overruling a motion to withdraw when (1) the defendant was represented

by competent counsel; (2) the defendant was afforded a full plea hearing, pursuant to

Crim.R. 11; (3) the defendant was provided a complete and impartial hearing on the

motion to withdraw; and (4) the trial court gave full and fair consideration to the request.

Peterseim, supra, at paragraph three of the syllabus.

       {¶13} Appellant’s arguments on appeal are limited to the second and fourth

factors: he challenges the knowing, intelligent, and voluntary nature of his plea at the

Crim.R. 11 hearing and whether the trial court gave full and fair consideration to the

basis for his motion to withdraw, namely his lack of understanding that the trial court

could order a PSI prior to sentencing.




                                             5
       {¶14} Pursuant to Crim.R. 11(C)(2), a trial court shall not accept a plea of guilty

in a felony case without first addressing the defendant personally and doing all of the

following:

             (a) Determining that the defendant is making the plea voluntarily,
             with understanding of the nature of the charges and of the
             maximum penalty involved, and if applicable, that the defendant is
             not eligible for probation or for the imposition of community control
             sanctions at the sentencing hearing.

             (b) Informing the defendant of and determining that the defendant
             understands the effect of the plea of guilty * * *, and that the court,
             upon acceptance of the plea, may proceed with judgment and
             sentence.

             (c) Informing the defendant and determining that the defendant
             understands that by the plea the defendant is waiving the rights to
             jury trial, to confront witnesses against him or her, to have
             compulsory process for obtaining witnesses in the defendant’s
             favor, and to require the state to prove the defendant’s guilt beyond
             a reasonable doubt at a trial at which the defendant cannot be
             compelled to testify against himself or herself.

Further, when the guilty plea is entered pursuant to a negotiated plea agreement, “the

underlying agreement upon which the plea is based shall be stated on the record in

open court.” Crim.R. 11(F).

       {¶15} It is evident from the transcript of appellant’s plea hearing that the trial

court complied with these Crim.R. 11 requirements.           Additionally, the trial court

specifically informed appellant that it was not bound by the six-month sentencing

recommendation in the plea agreement and that it could impose any sentence, up to

eighteen months, for the offense. See State v. Warith, 6th Dist. Lucas No. L-02-1240,

2003-Ohio-6367, ¶8 (citation omitted).

       {¶16} “Furthermore, a defendant who challenges his guilty plea on the basis that

it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.



                                            6
The test is whether the plea would have otherwise been made.” State v. Nero, 56 Ohio

St.3d 106, 108 (1990), citing Crim.R. 52(A) and State v. Stewart, 51 Ohio St.2d 86, 93

(1977).

       {¶17} Appellant argues the trial court did not inform him, prior to accepting his

plea, that it could order a PSI despite appellant’s waiver in the plea agreement.

Although the court ordered the PSI, it obtained only appellant’s criminal record from the

probation department prior to sentencing.         Had the trial court not received that

information, the trial court would still have been aware of at least a portion of appellant’s

relevant criminal history from the face of the indictment. Further, in order to properly

consider the seriousness and recidivism factors provided in R.C. 2929.12, the trial court

was required to consider appellant’s criminal history prior to sentencing. The trial court

was therefore well within its discretion to sentence appellant to eighteen months even

without a PSI. Appellant contends he was prejudiced by entering his guilty plea without

understanding the trial court was not bound by the statement in the plea agreement that

he waived a PSI. We disagree. Appellant’s argument that his guilty plea was not

knowing, voluntary, and intelligent is not well taken.

       {¶18} Finally, the record establishes that the trial court gave full and fair

consideration to appellant’s motion to withdraw his plea.            It engaged appellant

personally on the issue at both the hearing to withdraw his plea and the sentencing

hearing later that afternoon. The court reiterated it had advised appellant at the plea

hearing that it was not bound by the recommendations contained in the plea agreement.

Based on the colloquy with appellant, there was a sufficient basis for the trial court to

find that he was attempting to shield the court from his criminal record and was arguing

to withdraw his plea in an effort to avoid being sentenced sooner rather than later.

                                             7
Based on a review of the transcript, we find appellant’s argument that the trial court did

not fully and fairly consider the basis for his motion to withdraw not well taken.

       {¶19} Appellant’s sole assignment of error is without merit. The trial court did

not abuse its discretion by overruling appellant’s motion to withdraw his guilty plea.

       {¶20} Upon review of the sentencing entry, this court has found clerical errors

that must be corrected by the trial court via a Crim.R. 36 nunc pro tunc entry. First, the

entry incorrectly states appellant pled guilty to R.C. 2919.25(A) & (D)(1)(4), a felony of

the third degree; this should be corrected to reflect that he pled guilty to R.C.

2919.25(A) & (D)(1)(3), a felony of the fourth degree. Second, the entry incorrectly

states it notified appellant that post-release control is mandatory for three years;

however the trial court properly notified appellant, at the plea hearing and the

sentencing hearing, that post-release control in this case is optional. This should be

corrected to reflect that the court notified appellant that post-release control is optional

up to a maximum of three years. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-

1111, ¶24 (“The original sentencing entry can be corrected to reflect what actually took

place at the sentencing hearing, through a nunc pro tunc entry, as long as the correction

is accomplished prior to the defendant’s completion of his prison term.”).

       {¶21} For the reasons in this opinion, we affirm the judgment of the Trumbull

County Court of Common Pleas and remand for the trial court to issue a nunc pro tunc

sentencing entry, pursuant to Crim.R. 36.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.




                                             8
                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶22} I respectfully dissent.

      {¶23} The majority finds the trial court properly denied appellant’s motion to

withdraw his guilty plea and sentenced him to 18 months in prison rather than six

months pursuant to the jointly recommended sentence. For the reasons that follow, I

disagree.

      {¶24} This matter commenced due to the filing of a complaint alleging two

counts of domestic violence, felonies of the fourth degree. Appellant was later indicted

on one count of domestic violence, a felony of the third degree. Appellant, who was

represented by counsel, subsequently entered into a plea agreement with the state on

one count of domestic violence, a felony of the fourth degree.

      {¶25} The October 8, 2015 plea agreement indicated the prison term range was

between six to 18 months. The plea agreement specified: “The prison term for this

offense is not presumed necessary and is not mandatory.” (Emphasis sic). The plea

agreement further specified: “Defendant waives a Pre-Sentence Investigation.          The

State and Defendant agree to a jointly recommended prison sentence of 6 months.”

(Emphasis sic).

      {¶26} A plea hearing was held on October 8, 2015. At the hearing, appellant

indicated the following: he is the person named in the indictment; is 36 years old; a high

school graduate; able to read and write English; is a U.S. citizen; was not under the

influence of drugs or alcohol; never suffered from any mental illness or disease; was not

threatened by anyone to enter into the plea agreement; was not promised anything



                                            9
special; was on misdemeanor probation; read the plea agreement and reviewed it with

his attorney; did not have any questions; acknowledged his signature on the agreement;

had enough time to consult with his lawyer and indicated all of his questions were

answered; stated he was satisfied with his attorney’s representation; understood the

elements of felony domestic violence; understood the potential penalties ranged

between six to 18 months in prison and included a fine up to $5,000; and understood

the constitutional rights he was waiving by pleading guilty. However, appellant also

stated he was unaware that the agreed six-month sentence was not binding on the

court and was unaware that it was up to the court to determine what the appropriate

sentence would be. At the conclusion of the hearing, the trial court found appellant had

been informed of his constitutional rights and that he understood the nature of the

charge, the effect of the guilty plea, and the possible penalties. Thus, the trial court

found appellant guilty and accepted his plea. The trial court rightly, and well within its

discretion, also ordered a PSI despite the agreed sentence.1

       {¶27} As a result, appellant, through counsel, then filed a motion to withdraw his

guilty plea less than one month later on November 4, 2015. In his motion and attached

exhibit, appellant stated he no longer wished to proceed with the plea he previously

entered but rather wanted a jury trial. Appellant acknowledged that when he accepted

the plea bargain, he was agreeing to accept a six month sentence and waive a PSI.

Appellant indicated, however, that the trial court ordered him to undergo a PSI even

though it was not part of the plea bargain.



1. The PSI reveals that appellant’s criminal background began when he was a teenager. His prior record
is extensive. In fact, it is eight pages long. The Static Tool of the Ohio Risk Assessment System was
completed and appellant was assessed at a “moderate” level of risk.



                                                 10
      {¶28} A hearing was held on November 19, 2015. At that hearing, appellant

indicated he wanted to withdraw his plea and have a jury trial.       Appellant said his

attorney told him that a PSI would be waived and he would just be sentenced to a

straight six months. Appellant said he felt “sabotaged.” Appellant stated he did not

receive good representation from his counsel.       Appellant said the allegations were

untrue and he was “innocent” of the charge. Appellant also said he did not understand

at the time how he could waive his rights. Nevertheless, the trial court orally denied

appellant’s motion to withdraw his guilty plea. Thereafter, the trial court proceeded to

sentencing.

      {¶29} At sentencing, both the prosecutor and defense counsel reiterated the

agreed recommendation of six months in prison. The prosecutor stated: “* * * I’m going

to stand by the recommendation. I don’t want to create unnecessary appellate issues,

so I’ll stand by whatever is in the plea form * * *.” Defense counsel stated: “Your Honor,

I would just ask the Court to go along with the Rule 11 Agreement and sentence my

client to the six months that was negotiated between myself and the state.”

      {¶30} Contrary to the foregoing, the trial court sentenced appellant to 18 months

in prison, i.e., three times longer than the agreed negotiated sentence at the plea

hearing.

      {¶31} This writer is aware that the trial court had jurisdiction to impose or not

impose the jointly recommended sentence. See generally State v. Zenner, 11th Dist.

Lake No. 2004-L-008, 2005-Ohio-6070, ¶26.          The PSI in this case subsequently

attained by the court reveals a compelling reason for the trial court to not follow the

parties’ agreement as appellant’s criminal background is long and troubling. Once the

trial judge realized he could not follow the agreed plea and recommended sentence and

                                           11
the terms and conditions upon which appellant pleaded guilty, he should have allowed

appellant to withdraw his plea. The agreed condition upon which he pleaded guilty no

longer existed. It is this writer’s humble position that the trial court abused its discretion

in not allowing appellant to withdraw his plea and go to trial.

       {¶32} As indicated, appellant filed his motion to withdraw his guilty plea pre-

sentence.

       {¶33} “‘Crim.R. 32.1 governs the withdrawal of a guilty plea prior to sentencing

and provides: “(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.” “However, the rule itself gives no guidelines for a trial court to use when

ruling on a presentence motion to withdraw a guilty plea.” State v. Xie, 62 Ohio St.3d

521, 526 * * * (* * *) (1992).”

       {¶34} “‘A motion to withdraw a guilty plea filed before sentencing should be

freely and liberally granted. Xie at 526. However, there is no absolute right to withdraw

a guilty plea. Id. “Appellate review of a trial court’s denial of a motion to withdraw is

limited to a determination of abuse of discretion, regardless whether the motion to

withdraw is filed before or after sentencing.” State v. Peterseim, 68 Ohio App.2d 211, *

* * (* * *), paragraph two of the syllabus (8th Dist. 1980).’ (Parallel citations omitted.)

State v. Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶9-10.

       {¶35} “The term ‘abuse of discretion’ is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record. State v. Ferranto, 112

Ohio St. 667, 676-678 * * * (1925). An abuse of discretion may be found when the trial

court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies

                                             12
on clearly erroneous findings of fact.’ Thomas v. Cleveland, 176 Ohio App.3d 401,

2008-Ohio-1720, ¶15 * * * (8th Dist.2008).

       {¶36} “* * *

       {¶37} “‘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. Those factors

include: (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.

Griffin, 141 Ohio App.3d 551, 554 * * * (* * *) (7th Dist.2001); State v. Fish, 104 Ohio

App.3d 236, 240 * * * (* * *) (1st Dist.1995).’ State v. Maney, 3d Dist. Defiance Nos. 4-

12-16 and 4-12-17, 2013-Ohio-2261, ¶18 * * *. (Parallel citations omitted.)” (Parallel

citations omitted.) State v. Pudder, 11th Dist. Portage No. 2013-P-0045, 2014-Ohio-68,

¶12-14, 18.

       {¶38} The factors in this case establish the trial court abused its discretion in

failing to grant appellant’s motion to withdraw his plea.       Such motions, made pre-

sentencing, are to be granted freely and liberally. Xie, supra, at 526. Regarding the

factors, (1) nothing in the record indicates the prosecution would have been prejudiced

if the plea was withdrawn; (2) appellant indicated at the hearing on the motion to

withdraw that he was unsatisfied with his counsel’s representation; (3) appellant stated

at the plea hearing that he was unaware that the agreed six-month sentence was not

                                             13
binding on the court and was unaware that it was up to the court to determine what the

appropriate sentence would be; (4) appellant stated at the hearing on the motion to

withdraw that he wanted to withdraw his plea and have a jury trial - that his attorney told

him that a PSI would be waived and he would just be sentenced to a straight six months

- that he felt “sabotaged” - that he did not receive good representation from his counsel -

that the allegations were untrue and he was “innocent” of the charge - and that he did

not understand at the time how he could waive his rights; (5) nevertheless, the trial court

told appellant he did not “get to pick and choose” and the court orally denied his motion

to withdraw; (6) appellant’s motion was made within a reasonable time, i.e., less than

one month after the plea hearing and prior to sentencing; (7) appellant stated in his

motion that he no longer wished to proceed with the plea he previously entered but

rather wanted a jury trial – he acknowledged that when he accepted the plea bargain,

he was agreeing to accept a six month sentence and waive a PSI; (8) appellant stated

at the hearing on the motion to withdraw that he did not understand at the time how he

could waive his rights; and (9) appellant said he was “innocent.” See Pudder, supra, at

¶18.

       {¶39} A plea agreement requires citizens who are accused of crimes to waive

valuable constitutional rights in making a knowing and voluntary plea in exchange for a

multitude of reasons including pleading to a lesser offense or for the ability to obtain a

lesser sentence. The trial court’s disagreement with the agreed plea and recommended

sentence is sufficient to meet the Pudder factors in freely granting a withdrawal of

defendant’s plea.   In this writer’s opinion, the failure to grant appellant’s motion to

withdraw his guilty plea violates the abuse of discretion standard and flies in the face of




                                            14
procedural fairness and compromises the court’s integrity in a game of “gotcha” which

clearly is an abuse of discretion as it does not comply with reason or the record.

      {¶40} Accordingly, I respectfully dissent.




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