[Cite as State v. Matthews, 2012-Ohio-1894.]




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



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 1-11-39

        v.

ROBERT L. MATTHEWS,                            OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 1-11-40

        v.

ROBERT L. MATTHEWS,                            OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 1-11-41

        v.

ROBERT L. MATTHEWS,                            OPINION

        DEFENDANT-APPELLANT.
Case No. 1-11-39, 1-11-40, 1-11-41




               Appeals from Allen County Common Pleas Court
        Trial Court Nos. CR2005 0412, CR2006 0056 and CR2005 0330

                                Judgments Affirmed

                         Date of Decision: April 30, 2012




APPEARANCES:

       Michael J. Short for Appellant

       Juergen Waldick for Appellee




SHAW, P.J.

       {¶1} Defendant-appellant, Robert L. Matthews (“Matthews”), appeals the

January 31, 2011 judgment of the Allen County Court of Common Pleas

overruling his pre-sentence motion to withdraw his guilty pleas.

       {¶2} This consolidated appeal arises from three separate cases, which were

handled together at the trial court level.

       {¶3} On September 15, 2005, in case number CR2005 0412, Matthews was

indicted on the following charges, which were alleged to have occurred on various

dates in May and June of 2005.          Count One of the indictment alleged that


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Matthews did knowingly sell or offer to sell crack cocaine, a Schedule II

controlled substance, in violation of R.C. 2925.03(A),(C)(4)(a), a felony of the

fifth degree. Count Two of the indictment alleged that Matthews did knowingly

sell or offer to sell crack cocaine, a Schedule II controlled substance, in violation

of R.C. 2925.03(A),(C)(4)(a), a felony of the fifth degree. Count Three of the

indictment alleged that Matthews did knowingly sell or offer to sell crack cocaine,

a Scheduled II controlled substance, in violation of R.C. 2925.03(A),(C)(4)(a), a

felony of the fifth degree. Count Four of the indictment alleged that Matthews did

knowingly sell or offer to sell marijuana, a Schedule I controlled substance, in

violation of R.C. 2925.03(A),(C)(3)(a), a felony of the fifth degree. Count Five of

the indictment alleged that Matthews did knowingly sell or offer to sell crack

cocaine,   a   Schedule    II   controlled     substance,   in   violation   of   R.C.

2925.03(A),(C)(4)(e), a felony of the second degree.

       {¶4} The charges stemmed from a series of controlled purchase operations

conducted by the Lima Police Department’s P.A.C.E. unit involving Matthews and

a confidential informant, during which Matthews on three occasions sold crack

cocaine to the confidential informant ranging in amounts from 0.23 grams to 0.28

grams, one occasion during which Matthews sold 115.7 grams of marijuana to the

confidential informant, and one occasion during which Matthews sold 11.5 grams

of crack cocaine to the confidential informant.


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       {¶5} On September 15, 2005, in case number CR2005 0330, Matthews was

indicted on the following charges, which were alleged to have occurred on July 5,

2005. Count One of the indictment alleged that Matthews did knowingly sell or

offer to sell cocaine, a Schedule II controlled substance, in violation of R.C.

2925.03(A),(C)(4)(c), a felony of the fourth degree. Count Two of the indictment

alleged that Matthews did knowingly possess crack cocaine, a Schedule II

controlled substance, in violation of R.C. 2925.11(A),(C)(4)(e), a felony of the

first degree. Count Three of the indictment alleged that Matthews did knowingly

possess cocaine, a Scheduled II controlled substance, in violation of R.C.

2925.11(A),(C)(4)(b), a felony of the fourth degree.

       {¶6} The charges stemmed from a controlled purchase operation conducted

by the West Central Ohio Crime Task Force involving Matthews and a

confidential informant, during which Matthews sold the confidential informant

4.78 grams of cocaine for $800.00.        Shortly after the controlled purchase

operation, the West Central Ohio Crime Task Force executed a search warrant at

Matthews’ residence finding 5.75 grams of cocaine and 48.76 grams of crack

cocaine in the kitchen.

       {¶7} On March 16, 2006, in case number CR2006 0056, Matthews was

indicted on the following charges, which were alleged to have occurred on

February 3, 2006.     Count One of the indictment alleged that Matthews did


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knowingly sell or offer to sell crack cocaine, a Schedule II controlled substance,

with said transaction taking place in the vicinity of a school, in violation of R.C.

2925.03(A),(C)(4)(b), a felony of the fourth degree. Count Two of the indictment

alleged that Matthews knowingly permitted his vehicle to be used for the

commission of a felony drug abuse offense, that drug abuse offense being

corrupting      another   with   drugs   or     trafficking,   in   violation   of   R.C.

2925.13(A),(C)(3), a felony of the fifth degree. Count Three of the indictment

alleged that Matthews did knowingly possess crack cocaine, a Schedule II

controlled substance, in violation of R.C. 2925.11(A),(C)(4)(a), a felony of the

fifth degree.

       {¶8} The charges stemmed from another controlled purchase operation

conducted by the West Central Ohio Crime Task Force, during which Matthews

sold 0.75 grams of crack cocaine to a confidential informant, with the transaction

taking place approximately 710 feet from the location of Liberty Elementary

School in Lima, Ohio. At the time of the transaction, Matthews was driving his

1988 Ford Bronco. After the operation was complete, law enforcement pursued

Matthews in his vehicle. Matthews continued to drive his vehicle and threw a

plastic baggie from the driver’s side window. The baggie was recovered by law

enforcement and crack cocaine was found inside. Once Matthews’ vehicle was




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stopped and searched by law enforcement, another rock of crack cocaine weighing

0.17 grams was found on the driver’s side floor.

       {¶9} Matthews subsequently pled not guilty to all the charges listed in each

of the three indictments.    The cases proceeded to the discovery and pre-trial

phases, and were scheduled to be tried together.

       {¶10} On July 7, 2006, the trial court ordered the revocation of Matthews’

bond and electronic surveillance, and issued a bench warrant for Matthews’ arrest.

The trial court’s order was based upon information it received that Matthews had

violated the conditions of his electronic surveillance by absconding.

       {¶11} Matthews did not again appear in court in the three cases until

October 25, 2010, when he waived his right to a speedy trial. On November 18,

2010, Matthews appeared for a pre-trial hearing where he entered negotiated pleas

of guilty to all the charges listed in each of the three indictments in exchange for a

stipulated ten-year prison sentence.

       {¶12} On December 3, 2010, Matthews filed a pre-sentence motion to

withdraw the guilty pleas he previously entered in each of the three cases.

Matthews fired his attorney after the pre-sentence motion to withdraw his guilty

pleas was filed.

       {¶13} On December 23, 2010, Matthews’ new counsel filed a notice of

appearance.


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       {¶14} On January 5, 2011, the trial court issued a judgment entry in all

three cases ordering Matthews to be released from the custody of the Allen County

Jail in order to be placed on a medical furlough due to some medical concerns

which required hospitalization.

       {¶15} On January 27, 2011, Matthews and his new counsel appeared for a

hearing on Matthews’ pre-sentence motion to withdraw his guilty pleas. At the

hearing, Matthews and his sister testified in support of Matthews’ motion.

       {¶16} On January 31, 2011, the trial court overruled Matthews’ pre-

sentence motion to withdraw his guilty pleas. The trial court scheduled sentencing

to take place on February 18, 2011.

       {¶17} On March 7, 2011, the trial court ordered a bench warrant be issued

for Matthews’ arrest. The trial court specified that Matthews had violated the

terms of his bond by failing to appear for sentencing.

       {¶18} On July 19, 2011, Matthews appeared for sentencing and the trial

court imposed the following aggregate ten-year prison sentence.

       {¶19} In case number CR2005 0412, the trial court ordered Matthews to

serve one year in prison on Count One, a fifth degree felony trafficking in crack

cocaine offense; one year in prison on Count Two, a fifth degree felony trafficking

in crack cocaine offense; one year in prison on Count Three, a fifth degree felony

trafficking in crack cocaine offense; one year in prison on Count Four, a fifth


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degree trafficking in marijuana offense; and five years in prison on Count Five, a

second degree trafficking in crack cocaine offense. The trial court noted that the

prison term imposed on Count Five is a mandatory term, whereas the prison terms

imposed on Counts One thru Four are not mandatory. The trial court ordered the

prison terms in CR2005 0412 be served concurrent to one another, for a total five-

year prison term, but consecutive to the prison terms in case number CR2005

0330.

        {¶20} In case number CR2005 0330, the trial court ordered Matthews to

serve one year in prison on Count One, a fourth degree felony trafficking in

cocaine offense; five years in prison on Count Two, a first degree felony

possession of crack cocaine offense; and one year in prison on Count Three, a

fourth degree felony possession of cocaine offense. The trial court noted that the

prison term imposed on Count Two is a mandatory prison term, whereas the prison

terms imposed on Counts One and Three are not mandatory. The trial court

ordered that the prison terms imposed for CR2005 0330 be served concurrent to

one another, for a total five-year prison term, but consecutive to the prison terms

imposed for CR2005 0412.

        {¶21} Finally, in case number CR2006 0056, the trial court ordered

Matthews to serve a one year prison term on Count One, a fourth degree felony

trafficking in crack cocaine offense; a one year prison term on Count Two, a fifth


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Case No. 1-11-39, 1-11-40, 1-11-41


degree felony permitting drug abuse offense; and a one year prison term on Count

Three, a fifth degree felony possession of crack cocaine offense. The trial court

noted that all of the prison terms imposed on Counts One thru Three are non-

mandatory terms. The trial court ordered the prison terms in CR2006 0056 to be

served concurrent to one another and to also run concurrent to the prison terms

imposed in CR2005 0412 and in CR2005 0330.

      {¶22} Matthews subsequently filed this appeal, asserting the following

assignment of error.

      THE TRIAL COURT ERRED IN OVERRULING THE
      DEFENDANT’S PRE-SENTENCE MOTION TO WITHDRAW
      HIS GUILTY PLEA WITHOUT A HEARING.

      {¶23} In his sole assignment of error, Matthews contends that the trial court

erred in overruling his pre-sentence motion to withdraw his guilty pleas. We also

note that Matthews erroneously states in his assignment of error that he was not

granted a hearing on his motion to withdraw his guilty pleas.

      {¶24} On January 27, 2011, Matthews appeared in court for the hearing on

his motion to withdraw his guilty pleas.        At this hearing, Matthews was

represented by different counsel than the one who represented him at the change

of plea hearing. As previously mentioned, Matthews and his sister testified at this

hearing in support of Matthews’ motion.




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Case No. 1-11-39, 1-11-40, 1-11-41


       {¶25} Matthews testified that, prior to the change of plea hearing, his

previous attorney told Matthews that he did not like the plea bargain, but advised

Matthews to plead guilty to the charges in the indictment in exchange for the

stipulated ten-year sentence. Matthews claimed that his then-attorney told him

that after Matthews entered his guilty pleas, he would “litigate” to get Matthews a

three to five year sentence, and that Matthews would then also be eligible for

judicial release.   At the hearing on his motion to withdraw his guilty pleas,

Matthews maintained that he did not commit the majority of the offenses listed in

the indictments. Matthews testified that he only pled guilty to the charges because

his attorney at the time assured him that he would only have to serve three to five

years of the ten-year sentence.

       {¶26} Matthews explained that he did not feel right after the change of plea

hearing and called his attorney that day to file a motion to withdraw his guilty

pleas. Matthews also claimed that his attorney had stopped “fighting” for his case

and told him that there was little chance of winning his case because Matthews

was facing so many charges.

       {¶27} On cross-examination, Matthews recalled the Crim.R. 11 colloquy

conducted by the trial court. Matthews remembered acknowledging on the record

that he understood that by pleading guilty he was admitting to committing the

offenses alleged in the indictments.     Matthews also recalled the trial court


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Case No. 1-11-39, 1-11-40, 1-11-41


engaging in a lengthy dialogue with him about the stipulated ten-year sentence—

specifically, that some of the charges in the indictments carried a mandatory

prison term, which would mean that Matthews would have to serve those entire

terms before he was eligible for judicial release. Matthews further admitted that

he told the trial court on the record that no one had made him any promises in

exchange for him pleading guilty to the charges. However, Matthews contended

that he hesitated prior to giving his answer, but that his attorney tapped his knee

underneath the table, prompting him to affirm that no one had made him any

promises in exchange for his guilty pleas.

       {¶28} Matthews’ sister testified that she spoke to Matthews’ attorney at the

courthouse prior to the change of plea hearing. She testified that Matthews’

attorney told her that Matthews would only have to serve three to five years of the

ten-year sentence. However, she admitted that she was not present during any of

Matthews’ conversations with his attorney regarding the decision to agree to the

plea bargain.

       {¶29} 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.”

Generally, a motion to withdraw a guilty plea that is filed prior to sentencing will


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Case No. 1-11-39, 1-11-40, 1-11-41


be freely allowed. State v. Drake, 73 Ohio App.3d 640, (1991); State v. Thomas,

3d Dist. No. 1–08–36, 2008–Ohio–6067, ¶ 6.

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

will be granted automatically. Drake, at 645. “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 the withdrawal of the plea.” State v. Xie, 62 Ohio St.3d 521, at paragraph one

of the syllabus (1992). It is within the sound discretion of the trial court to

determine whether there is a legitimate and reasonable basis for the 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. 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 (1980).

      {¶31} Ohio Appellate Courts 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;


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Case No. 1-11-39, 1-11-40, 1-11-41


(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, 141 Ohio

App.3d 551, 554 (2001).

      {¶32} In the instant case, the trial court addressed each of these factors in

its decision to overrule Matthews’ motion to withdraw his guilty pleas. The trial

court noted that at the change of plea hearing, Matthews stated on the record that

he understood the nature of the charges against him, that he did not have to plead

guilty, and that if he pled guilty he was admitting to all the charges. Matthews’

affirmation on record that he understood each of these things is supported by the

transcript from the change of plea hearing. The trial court also asked Matthews

several times if he understood that he was stipulating to a ten-year sentence.

Matthews was very clear on the record that he understood he was agreeing to a

ten-year sentence. Moreover, the trial court noted that Matthews indicated on the

record that he had plenty of time to consider the plea bargain with his attorney and

that no promises were made to him in exchange for his guilty pleas.

      Trial Court: Okay. Had plenty of time to talk to the attorney
      about all these cases?

      Matthews: Yes, sir.



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Case No. 1-11-39, 1-11-40, 1-11-41


      Trial Court: Have any promises been made by anybody that we
      haven’t put on the record yet to get you to plead?

      Matthews: No, sir.

      Trial Court: Have any threats been made upon you to force you
      to plead against your will?

      Matthews: No, sir.

      Trial Court: You feel like you’re being coerced into this? Your
      arm being twisted and that you don’t have a choice?

      Matthews: No, sir.

      Trial Court: And you understand you do have a choice, you can
      go to trial. Understood?

      Matthews: Yes, sir.

      Trial Court:       Okay.     You feel like you’re being tricked
      somehow?

      Matthews: No, sir.

(Nov. 18, 2010 Hrg. at 28-29).

      {¶33} It is also evident from the transcript of the change of plea hearing

that the trial court took extreme care in explaining to Matthews the potential

sentences he faced if he pled guilty to the charges in the indictments. This was

primarily due to the fact that Matthews was entering guilty pleas in three different

cases, with three different indictments, each listing offenses that carried both

mandatory and non-mandatory prison terms.           The trial court explained to

Matthews that at the very least Matthews would have to serve a three-year

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Case No. 1-11-39, 1-11-40, 1-11-41


mandatory term with the remaining seven years being a non-mandatory term.

However, the trial court also explained the possibility of Matthews being

sentenced to two, five-year mandatory prison terms, which meant that Matthews

would have to serve all ten years with no possibility for judicial release.

       {¶34} The trial court also repeatedly tried to impress upon Matthews that

even though he was pleading guilty in exchange for a stipulated ten-year sentence,

the trial court was not a party to that agreement and could still give Matthews

more than a ten-year sentence. The following is an excerpt from the change of

plea hearing.

       Trial Court: What I’m basically telling you, is I’m the judge
       and I have to make the decision, and I’m not bound by the
       stipulation. The prosecutor’s bound by it; she can’t ask for
       more. And by your agreement you’re bound by it; you’re telling
       the prosecutor, “I’m not gonna seek less than ten years. I’m
       agreeing to ten years.” That’s what the stipulation is, that you
       are—I’m speaking for you, but it’s ultimately my decision.

       Matthews: Right, I understand.

(Nov. 18, 2010 Hrg. at 8) (emphasis added).

       {¶35} The trial court also noted the prejudice to the prosecution if

Matthews’ motion were to be granted. The charges in the indictment occurred in

2005 and in the early part of 2006. Matthews absconded in July 2006 and was not

arrested until October 2010. Thus, over four years had transpired with no progress

in Matthews’ cases.      Moreover, in the interim, one of the four confidential


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Case No. 1-11-39, 1-11-40, 1-11-41


informants used in the controlled purchase operations involving Matthews had

died. Notably, Matthews was made aware of this fact at the change of plea

hearing in November of 2010 when he decided to enter his guilty pleas. In

addition, the trial court noted that, despite his contentions, the record supported

that Matthews was competently represented by his counsel at the change of plea

hearing. Prior to agreeing to the plea bargain, Matthews faced a possible twenty-

eight and a half years in prison if he was convicted of all the charges pending

against him. The trial court highlighted the fact that Matthews’ attorney was able

to negotiate a ten-year stipulated sentence with the prosecution, giving Matthews

an obvious benefit of the bargain. The trial court concluded that each of these

things weighed heavily against granting Matthews’ motion to withdraw his guilty

pleas.

         {¶36} The trial court also gave Matthews ample opportunity to present

evidence in support of his motion to withdraw his guilty pleas. Nevertheless,

Matthews chose to only offer his own self-serving testimony and the testimony of

his sister, who admitted to not being present when Matthews had conversations

about the plea bargain with his attorney. Thus, none of the testimony presented at

the hearing corroborated Matthews’ claims that his attorney’s private

representations regarding a three to five year sentence induced him into entering

his guilty pleas in these cases. Moreover, the trial court was entitled to weigh the


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credibility of Matthews’ testimony and was free to disbelieve all or none

Matthews’ contentions.

         {¶37} In sum, the record in this case demonstrates that the trial court

carefully considered all the applicable factors and the competing interests

implicated in allowing Matthews to withdraw his guilty pleas. The record also

supports the trial court’s findings with regard to those factors and its ultimate

conclusion that Matthews failed to demonstrate a legitimate and reasonable basis

for withdrawal of his guilty pleas. Accordingly, we find no abuse of the trial

court’s discretion in its decision to deny Matthews’ motion to withdraw his guilty

pleas.

         {¶38} For all these reasons, Matthews’ assignment of error is overruled and

the judgments are affirmed.

                                                               Judgments Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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