[Cite as State v. Watson, 2012-Ohio-13.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96803


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                THEODORE WATSON
                                                    DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540963

        BEFORE: E. Gallagher, J., Jones, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                   January 5, 2012
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 ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Matthew Waters
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Avenue
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Theodore Watson (“appellant”), appeals his convictions from the

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred

by denying his motion to withdraw his guilty plea at his sentencing hearing. For the

following reasons, we affirm.

      {¶ 2} Appellant was indicted on August 31, 2010 in a four count indictment

charging him with aggravated arson in violation of R.C. 2909.02(A)(2) (Count 1), arson

in violation of R.C. 2909.03(A)(2) (Count 2), insurance fraud in violation of R.C.
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2913.47(B)(1) (Count 3), and insurance fraud in violation of R.C. 2913.47(B)(2) (Count

4). Appellant initially pled not guilty to the indictment. On March 14, 2011, pursuant

to a plea agreement between the state and appellant, the state moved to amend Count 1 to

attempted aggravated arson. Under the plea agreement, appellant pled guilty to the

amended Count 1 and Count 3 as indicted. Appellant further agreed to pay restitution to

Nationwide Insurance Company in the amount of $187,836.31. All other remaining

counts were nolled.

       {¶ 3} Appellant’s sentencing was originally scheduled for April 14, 2011 and, at

that time, representatives of the Nationwide Insurance Company appeared to address the

court. Counsel for the appellant was, however, unable to appear on that date and the

court continued the sentencing after hearing, on the record, from the Nationwide

representatives.

       {¶ 4} On April 18, 2011, appellant’s trial counsel informed the trial court that

appellant wished to withdraw his guilty pleas. The following exchange occurred:

       APPELLANT’S COUNSEL: “But Mr. Watson, the basis for that plea, as we
       discussed between us — and not meaning to violate any attorney/client
       confidentiality, but it was a calculation on his part based upon what I had
       indicated to him was what I thought was likely to occur at sentencing. That was
       in part based upon my conversation with the court where the court did not make
       any promises to me, however, it did indicate that it was considering I think would
       be — I’m trying very hard to phrase it exactly. That it would consider something
       in the range of probation with house arrest as a potential sentence in this matter.
       Subsequently, the co-defendant, Stephanie Wainwright, was sentenced. She had
       pled out earlier; and she was, in fact, given probation. I understand that certain
       things have happened specifically with regard to what is contained in the
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       probation report, specifically Mr. Watson’s complete denial of any responsibility
       in this matter. And, second of all, statements that were made by the insurance
       people which have been relayed to me by the Court. * * * But, obviously, from
       what the Court has indicated to me, those factors might have caused it to
       re-evaluate how it initially viewed the matter * * *.”

       {¶ 5} The trial court then stated on the record that no promises had been made

and that the court had previously indicated to trial counsel that the court would hear from

all the parties involved, including the victims, and consider appellant’s presentence

report prior to reaching a decision on appellant’s sentence. Trial counsel agreed with

the court’s account but stated:

       APPELLANT’S COUNSEL: “What he is basically maintaining is that he is
       innocent, that he did not commit these offenses, he pled guilty, and it may be my
       fault in the way I communicated the information that I thought the court had
       communicated to me, it may be that I falsely created in him an impression that he
       was definitively going to get probation, but he — basic reason is he doesn’t want
       to go to prison for something that he believes he did not do, and that’s the basis
       for asking to withdraw the plea.”

       {¶ 6} The trial court at that time conducted a hearing on appellant’s motion

considering arguments from both appellant and the state before denying appellant’s

motion. The trial court then sentenced appellant to one year on Count 1 and one year on

Count 2. The court ordered the sentences to run consecutively for an aggregate prison

term of two years. Appellant brought the present appeal asserting the following sole

assignment of error:

       {¶ 7} “The trial court erred in overruling appellant’s motion to withdraw his

guilty plea.”
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      {¶ 8} Crim.R. 32.1 governs motions to withdraw guilty pleas and states that “[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.”

      {¶ 9} Although presentence motions to withdraw guilty pleas should be freely

granted, “a defendant ‘does not have an absolute right to withdraw a plea prior to

sentencing.’” State v. McGregor, Cuyahoga App. No. 86165, 2005-Ohio-5561, at ¶3,

quoting State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. “Instead, the trial

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

basis for the withdrawal of the plea.’” Id. A mere change of heart is insufficient

grounds for the withdrawal of a guilty plea prior to sentencing. State v. Benjamin,

Cuyahoga App. No. 85071, 2005-Ohio-2322, at ¶9.

      {¶ 10} The decision of a trial court to grant or deny a motion to withdraw a guilty

plea is reviewed using an abuse of discretion standard. State v. Van Dyke, Lorain App.

No. 02CA008204, 2003-Ohio-4788, at ¶7, citing State v. Peterseim (1980), 68 Ohio

App.2d 211, 428 N.E.2d 863, paragraph two of the syllabus. To constitute an abuse of

discretion, it must be unreasonable, arbitrary, or unconscionable.        Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶ 11} In determining whether the trial court abused its discretion by denying the

appellant’s motion to withdraw a plea, we consider the following factors: (1) whether the
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accused was represented by highly competent counsel; (2) whether the accused was

afforded a full hearing pursuant to Crim.R. 11 before he entered the plea; (3) whether,

after the motion to withdraw was filed, the accused was given a complete and impartial

hearing on the motion; and (4) whether the record reveals that the court gave full and fair

consideration to the plea withdrawal request. State v. Weakley, Cuyahoga App. No.

93282, 2010-Ohio-2464, at ¶12, citing Peterseim at paragraph three of the syllabus.

       {¶ 12} In the case sub judice, appellant’s argument can only be understood to

dispute the first factor above. The record reveals that the trial court complied with

Crim.R. 11 in its plea colloquy, conducted a hearing on appellant’s motion to withdraw

his plea, and after hearing from both parties and considering case law on the matter, gave

full and fair consideration to appellant’s plea withdrawal request. Furthermore, we note

that appellant does not argue that the conduct of his trial counsel constituted ineffective

assistance of counsel.

       {¶ 13} Appellant instead argues that the trial court abused its discretion in denying

his motion because a misunderstanding existed where he was led to believe he would be

placed on probation instead of being sentenced to a term of incarceration. This court

considered an analogous argument under nearly identical facts in State v. Lambros

(1988), 44 Ohio App.3d 102, 541 N.E.2d 632. The defendant in Lambros sought to

withdraw his plea at sentencing because he had been led to believe he would be put on

probation. Lambros’s attorney acknowledged that he had told Lambros that if the court
                                                   7

 did not give him probation, Lambros would be permitted to withdraw his plea. The trial

 court denied any such agreement existed and denied Lambros’s motion to withdraw his

 guilty plea.

            {¶ 14} On appeal, this court noted that “[a]t the time he entered his guilty plea,

 [Lambros] acknowledged that no promises or threats were made to induce his plea and

 he understood the possible sentencing consequences. It appears from the record that

 [Lambros] attempted to withdraw his plea before sentencing only because defense

 counsel became aware that appellant would be sentenced to a period of incarceration.”

 Lambros, 44 Ohio App.3d at 103.

            {¶ 15} We held that a defendant who has a change of heart regarding his guilty

 plea should not be permitted to withdraw that plea just because he is made aware that an

 unexpected sentence is going to be imposed. Id. 1 We explained in Lambros that,

 “[o]therwise, defense counsel merely has to allege that the defendant’s plea was induced

 by some underlying ‘mistaken belief’ that the defendant would receive probation and the

 plea would be vacated.” Id.

            {¶ 16} The record in the present case, as in Lambros, refutes appellant’s

 contention that his plea was induced by a promise of a particular sentence.                          At

 appellant’s plea hearing the trial court reviewed the potential penalties associated with


        1
         See, also, State v. Palatas (May 12, 1995), Montgomery App. No. CA 14735, citing our decision in
Lambros and refusing to allow the withdrawal of a plea under similar circumstances.
                                            8

charges to which appellant plead guilty. The court specifically explained that the “worst

case scenario” appellant faced, “could be five years on each count, could be a total of ten

years of incarceration if the court gave you maximum consecutive sentences.” Not

once, but twice during the plea hearing the court asked appellant if he had been promised

anything to change his plea and appellant responded no. Specifically in regards to the

potential sentence of probation, the following exchange occurred:

          {¶ 17} THE COURT: “Mr. Watson, do you have any questions of me at all, the

waiving of your trial rights, the potential penalties you face, any questions about the

imposition of sentence, whether its community control sanctions or a term of

incarceration, is there anything at all you don’t understand?”

          {¶ 18} APPELLANT: “I would like to know about am I eligible for probation

[sic]?”

          {¶ 19} THE COURT: “They’re both felonies of the third degree, there’s no

recommendation for incarceration * * * it’s what’s called non-presumption. I hear all

the evidence at the time of sentencing and make a determination with respect to that. So

yes, I guess your question is answer by yes, you’re someone that qualifies for a

community control sanction. At the time of sentencing I’ll have your pre-sentence

report, I’ll hear from the state of Ohio, I’ll hear from your lawyer and then from yourself

before I impose any type of either community control sanction or incarceration. Does

that answer your question?”
                                             9

        {¶ 20} APPELLANT: “Yes, your honor.”

        {¶ 21} In discussing appellant’s motion to withdraw his plea, appellant’s counsel

further admitted that appellant’s plea was, “a calculation on his part based upon what I

had indicated to him was what I thought was likely to occur at sentencing.” (Emphasis

added). The trial court refuted any allegation of an agreement in regards to appellant’s

sentence and appellant’s counsel affirmed the court’s statement. Appellant himself

presented no testimony or evidence to suggest he was promised probation.

        {¶ 22} It is clear from the record that appellant was fully apprised of the court’s

procedure in reaching an appropriate sentence and that appellant entered his plea based

on a calculation as to his likely sentence. The record does not include any evidence

demonstrating that appellant had a reasonable and legitimate basis for his motion. Only

when appellant learned, subsequent to his plea, that probation was a less likely sentence

than he had anticipated did he seek to withdraw his plea. On these facts we cannot say

that the trial court abused its discretion in denying appellant’s motion to withdraw his

plea.

        {¶ 23} Appellant’s sole assignment of error is overruled.

        {¶ 24} The judgment of the trial court is affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to said lower court to carry this
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judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated.       Case remanded to the trial court for execution of

sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, P.J., and
KENNETH A. ROCCO, J., CONCUR
