[Cite as State v. Hempfield, 2013-Ohio-1827.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 12-CA-77
BRITTANY A. HEMPFIELD

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Case No. 10-CR-150


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         April 30, 2013


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


KENNETH W. OSWALT                               DAVID B. STOKES
Licking County Prosecutor                       21 W. Church St., Suite 206
By: JUSTIN T. RADIC                             Newark, Ohio 43055
Assistant Prosecutor
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12-CA-77                                                            2

Hoffman, P.J.


         {¶1}   Defendant-appellant Brittany A. Hempfield appeals the October 2, 2012

Judgment Entry entered by the Licking County Court of Common Pleas.                  Plaintiff-

appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On March 26, 2010, the Licking County Grand Jury indicted Appellant,

Brittany Hempfield, on two counts of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1) and/or (2) and (C)(1)(b) and/or (c), one count of aggravated possession

of drugs in violation of R.C. 2925.11(A) and/or (C)(1)(a), and one count of possession of

drug paraphernalia in violation of R.C. 2925.14.

         {¶3}   On July 23, 2010, Appellant pled guilty as charged save for the drug

paraphernalia count which was dismissed. By judgment entry filed the same date, the

trial court sentenced Appellant to an aggregate term of six years in prison.

         {¶4}   Appellant filed an appeal with this Court in State v. Hempfield, Licking

App. No. 10CA87, 2010-Ohio-6570. This Court affirmed Appellant's plea and sentence

via Judgment Entry and Opinion of December 30, 2010.

         {¶5}   On August 19, 2011, Appellant filed a petition for post-conviction relief. Via

Judgment Entry of September 26, 2011, the trial court denied Appellant's petition.

Appellant again filed an appeal with this Court in State v. Hempfield, Licking App. No.

11-CA-103, 2012-Ohio-2619. Via Judgment Entry of June 11, 2012, this Court affirmed

in part, and reversed in part the trial court decision, remanding the matter to the trial

court for further proceedings.       Specifically, this Court held the statute relating to

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Licking County, Case No. 12-CA-77                                                        3


transitional control vested the trial court with the retention of discretion to disapprove

transitional control; however, to do so in the sentencing entry prior to notice from the

adult parole authority was premature. Citing, State v. Spears, Licking App. No. 10CA95,

2011–Ohio–1538. This Court further held Appellant's motion to withdraw her pleas was

filed the same day as the trial court's sentence; therefore, as a trial court speaks

through its docket, Appellant's sentence was not imposed until after Appellant had filed

her motion to withdraw the pleas of guilty. Therefore, the motion was a presentence

motion to withdraw pleas, and the trial court utilized the incorrect standard in addressing

Appellant's motion to withdraw the pleas. See, State v. Hempfield, Licking App. No. 11

CA 103, 2012-Ohio-2619.

         {¶6}   On remand, the trial court conducted a status conference on July 20,

2012, and on October 1, 2012 conducted an oral hearing.           Via Judgment Entry of

October 2, 2012, the trial court again denied Appellant's motion to withdraw her guilty

pleas.

         {¶7}   Appellant now appeals, assigning as error:

         {¶8}   “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

NOT COMPLYING WITH R.C. 2929.14(D)(3).

         {¶9}   “II. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES WITHOUT ENGAGING IN JUDICIAL FACT FINDING, NOW REQUIRED

BY H.B. 86.

         {¶10} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

DENYING APPELLANT’S MOTION TO WITHDRAW HER PRE-SENTENCE PLEAS.
Licking County, Case No. 12-CA-77                                                       4


      {¶11} “III. THE TRIAL COURT’S JUDGMENT (SENTENCES) IS CONTRARY

TO LAW R.C. 2953.08(A)(2) AND/OR (4).”



                                           I, II, and IV.

      {¶12} Appellant's first, second and fourth assignments of error raise common

and interrelated issues; therefore, we will address the arguments together.

      {¶13} The first, second and fourth assigned errors challenge alleged errors in

the sentence imposed by the trial court on July 23, 2010. As set forth in the Statement

of the Case, supra, this Court remanded this case to the trial court for further

proceedings limited to Appellant's motion to withdraw her pleas of guilty. Accordingly,

Appellant's arguments relative to the sentence previously imposed by the trial court are

barred by the doctrine of res judicata as these arguments could have been raised or

were raised on direct appeal.

      {¶14} The first, second, and fourth assigned errors are overruled.

                                                III.

      {¶15} Appellant's third assignment of error asserts the trial court erred in denying

her motion to withdraw her guilty pleas.

      {¶16} As set forth in the Statement of the Case, supra, in State v. Hempfield,

Licking App. No. 11-CA-103, 2012-Ohio-2619, this Court held Appellant's motion to

withdraw her pleas was a presentence motion to withdraw pleas and the trial court

utilized the incorrect standard in addressing Appellant's motion.

      {¶17} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:
Licking County, Case No. 12-CA-77                                                      5


       {¶18} “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.”

       {¶19} This rule establishes a fairly strict standard for deciding a post-sentence

motion to withdraw a guilty plea, but provides no guidelines for deciding a presentence

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

       {¶20} The Ohio Supreme Court has stated pre-sentence motions to withdraw a

guilty plea “should be freely and liberally granted.” Id. at 584. That does not mean,

however, a defendant has an absolute right to withdraw a guilty plea prior to sentencing.

Id. at paragraph one of the syllabus. There must be “a reasonable and legitimate basis

for withdrawal of the plea.” Id. The decision to grant or deny a pre-sentence plea

withdrawal motion is within the trial court's sound discretion. Id.

       {¶21} The factors to be considered when making a decision on a motion to

withdraw a guilty plea are as follows: (1) prejudice to the state; (2) counsel's

representation; (3) adequacy of the Crim .R. 11 plea hearing; (4) extent of the plea

withdrawal hearing; (5) whether the trial court gave full and fair consideration to the

motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of

the nature of the charges and the potential sentences; and (9) whether the defendant

was perhaps not guilty or has a complete defense to the charge. State v. Cuthbertson,

139 Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish,

104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). No one Fish factor is absolutely

conclusive. Cuthbertson, supra.
Licking County, Case No. 12-CA-77                                                        6


       {¶22} On remand, the trial court conducted an oral hearing on October 1, 2012.

A review of the record indicates the trial court listened to arguments as to the factors to

be considered. The trial court stated on the record,

       {¶23} “The Court: The Court finds that there was no plea agreement. This was

simply made because, again, Ms. Hempfield wasn’t satisfied with the sentence she got.

       {¶24} “On the plea forms indicate no - - there was nothing offered to her or

promised to her, there wasn’t any indication, and the State dismissed some count,

which is commonly what one might expect, but the plea forms themselves say no

promise of any sentence. The Court certainly didn’t promise any sentence or agree to

one. It was simply that there was not enough - - she didn’t like the sentence that she

got, felt it was too much, and the Court disagreed on the basis of her prior convictions

for the same things, as I recall.

       {¶25} “I’d find the State would be prejudiced based on the length of time and the

lack of evidence remaining presently.

       {¶26} “I don’t’ think it is appropriate to grant motions that are just made after a

sentence comes out that you don’t like, which would allow everybody to test the

sentence they get. And I - - I’m not at the point where I can do immediate written

entries right from the Court.       So there is always going to be the opportunity for a

Defendant to file a written motion or make a motion to withdraw their plea after the

Court indicates what it’s going to be from the bench.

       {¶27} “On that basis, I would deny the Defendant’s presentence motion to

withdraw her guilty pleas here today. And on that basis, I would impose generally a
Licking County, Case No. 12-CA-77                                                      7


four-year driver’s license suspension and delete any reference to transitional control or

intensive prison program from the sentencing entry.”

      {¶28} Tr. at 10-11.

      {¶29} The trial court's October 2, 2012 recited the considerations set forth at the

hearing.

      {¶30} Based upon the above, we do not find the trial court abused its discretion

in denying Appellant's motion to withdraw her pleas.

      {¶31} The third assignment of error is overruled.

      {¶32} Based upon our analysis and disposition set forth above, the October 2,

2012 Judgment Entry entered by the Licking County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Licking County, Case No. 12-CA-77                                                 8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
BRITTANY A. HEMPFIELD                     :
                                          :
       Defendant-Appellant                :         Case No. 12-CA-77


       For the reasons stated in our accompanying Opinion, the October 2, 2012

Judgment Entry entered by the Licking County Court of Common Pleas is affirmed.

Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ John W. Wise______________________
                                          HON. JOHN W. WISE


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
