[Cite as State v. Leist, 2016-Ohio-8066.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   :   JUDGES:
                                                 :
                                                 :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                 :   Hon. Patricia A. Delaney, J.
 -vs-                                            :
                                                 :   Case No. 16 CAA 03 0017
                                                 :
 JEREMIAH LEIST                                  :
                                                 :
                                                 :
        Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Delaware County Court
                                                     of Common Pleas, Case No. 15 CR I 07
                                                     0293 B



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              December 5, 2016




APPEARANCES:

 For Plaintiff-Appellee:                             For Defendant-Appellant:

 CAROL HAMILTON O’BRIEN                              JEFFREY P. UHRICH
 DELAWARE COUNTY PROSECUTOR                          P.O. Box 1977
                                                     Westerville, OH 43086
 ANDREW M. BIGLER
 140 North Sandusky St., 3rd Floor
 Delaware, OH 43015
Delaware County, Case No. 16 CAA 03 0017                                                 2

Delaney, J.

       {¶1} Defendant-Appellant Jeremiah Leist appeals the March 28, 2016 judgment

entry of the Delaware County Court of Common Pleas denying Leist’s motion to withdraw

his plea.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Defendant-Appellant Jeremiah Leist was indicted by the Delaware County

Grand Jury on July 1, 2015 for one count of Burglary under R.C. 2911.12(A)(1), a second-

degree felony, and one count of Theft under R.C. 2913.02(A)(1), a fifth-degree felony.

Leist entered a plea of not guilty at the arraignment.

       {¶3} A change of plea hearing/status conference was scheduled for October 20,

2015. At the hearing, Leist did not wish to change his plea because he wanted to review

discovery. (Judgment Entry, Oct. 20, 2015). A change of plea hearing/status conference

was scheduled for October 28, 2015. At the hearing, Leist requested the trial court

schedule the matter for trial. (Judgment Entry, Oct. 29, 2015). A jury trial was scheduled

on December 22, 2015.

       {¶4} On December 15, 2015, the trial court issued a scheduling order stating a

hearing was set for December 18, 2015 for the purposes of Leist changing his plea. The

change of plea hearing went forward on December 21, 2015. Leist did not provide a

transcript of the December 21, 2015 hearing. The Crim.R. 11(F) Agreement filed on

December 22, 2015 shows that Leist agreed to plead guilty to a lesser included offense

of count one of the indictment, Burglary in violation of R.C. 2911.12(A)(3), a third-degree

felony. The State dismissed count two of the indictment and agreed to a pre-sentence

investigation. The parties agreed to jointly recommend a sentence of 18 months. Also on
Delaware County, Case No. 16 CAA 03 0017                                                      3


December 22, 2015, the trial court filed its judgment entry accepting Leist’s plea. The

judgment entry reflected the trial court advised Leist of his rights, was represented by

counsel, and made a knowing, intelligent, and voluntary waiver of his rights.

       {¶5} The trial court held the sentencing hearing on March 2, 2016. At the start of

the hearing, Leist requested to withdraw his plea of guilty. (T. 3-4). Leist stated he had a

conflict of interest with his attorney and felt he was pushed to make the deal. (T. 4). The

trial court told Leist it would allow him to withdraw his plea and set the case for trial. (T.

6). The trial court advised Leist that if he went to trial and was found guilty, the trial court

would sentence Leist based on the evidence presented at trial. (T. 8). Leist was further

advised that if he withdrew his plea, he would be tried on one count of Burglary, a second-

degree felony, and one count of Theft, a fifth-degree felony. (T. 8). The trial court told

Leist it would set a new trial date and appoint Leist a new attorney. (T. 10).

       {¶6} Leist then stated, “I’ll go with sentencing, Your Honor. Sentence me, I can’t

risk it. It’s eight years I could do, or eight months or nine more or 18 months I mean. I’ll

go with sentencing. I’ve got no choice, proceed with sentencing.” (T. 10). The trial court

responded,

       I will say with your frame of mind, I’m worried now that you’re going to even

       in about four hours think what did I just do, so. * * * There’s no rush on this.

       What if we just wait until * * * tomorrow or Friday, would that be helpful? So

       we just freeze the whole thing for a little time because you’re upset today

       and that’s not a condition any of us should be in when you’re making an

       important decision.
Delaware County, Case No. 16 CAA 03 0017                                                   4


(T. 11). Leist disagreed and said, “Proceed with sentencing, I’m in the state of mind. * *

*” (T. 12). The trial court explained to Leist, “You just need to make sure because I get

letters and motions from prisoners of course saying I want to undo what I did and the

further we go in this, the harder it is for me to --.” (T. 12). Leist interrupted and stated,

“Your Honor, I’ll go ahead and get sentenced. I retract my previous statement about

wanting to withdraw my plea. I’m just confused.” (T. 13).

       {¶7} The State did not object to continuing the sentencing hearing to allow Leist

time to consider whether to withdraw his plea. (T. 13).

       {¶8} The trial court, after Leist again indicated his desire to be sentenced,

imposed the recommended sentence of 18 months in prison. (T. 18). The trial court

sentenced Leist to an additional three years, to be served consecutively, because Leist

committed the burglary offense while under post-release control. The sentencing entry

was filed on March 3, 2016.

       {¶9} On March 24, 2016, Leist filed a pro se motion to withdraw his guilty plea.

He argued he agreed to be sentenced on March 2, 2016 because he did not want to upset

the court. He still felt his counsel did not properly represent him. Leist filed an identical

motion to withdraw guilty plea on March 28, 2016.

       {¶10} On March 28, 2016, the trial court denied the motion to withdraw guilty plea.

The trial court found no manifest injustice.

                               ASSIGNMENT OF ERROR

       {¶11} Leist raises one Assignment of Error:

       {¶12} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED

THE SENTENCING HEARING TO GO FORWARD AFTER DEFENDANT REQUESTED
Delaware County, Case No. 16 CAA 03 0017                                                      5


THAT HIS GUILTY PLEA BE WITHDRAWN AND THAT NEW COUNSEL BE

APPOINTED TO REPRESENT HIM.”

                                         ANALYSIS

       {¶13} Leist argues in his sole Assignment of Error that the trial court abused its

discretion when it went forward with the sentencing hearing after Leist requested to

withdraw his guilty plea. We note that Leist does not raise as an Assignment of Error that

the trial court erred when it denied his written motions to withdraw his guilty plea filed after

sentencing.

       {¶14} Crim.R. 32.1 states as follows: “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.” Although the general rule is that motions to

withdraw guilty pleas before sentence are to be freely given and treated with liberality, the

right to withdraw a plea is not absolute. State v. Keiner, 5th Dist. Holmes No. 15CA016,

2016-Ohio-3294, ¶ 17 citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). After

a hearing to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea, the decision to grant or deny a pre-sentence motion to withdraw

guilty plea is within the sound discretion of the trial court. Id. Some factors a trial court

may consider when making a decision on a motion to withdraw a guilty plea are: (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
Delaware County, Case No. 16 CAA 03 0017                                                     6


(9) whether the defendant was perhaps not guilty or has a complete defense to the

charge. State v. Gilmore, 5th Dist. Perry No. 15CA00017, 2016-Ohio-2654, ¶ 14 citing

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

        {¶15} Leist made a verbal motion at the start of his sentencing hearing to withdraw

his guilty plea. Leist argues the trial court should have granted him more time to consider

whether he wished to withdraw his guilty plea. A review of the sentencing hearing shows

the trial court was initially willing to grant Leist’s request to withdraw his guilty plea. The

trial court stated it would grant Leist’s motion, set the matter for trial, and appoint him a

new attorney. When Leist changed his mind and asked to proceed with sentencing, the

trial court offered to give Leist more time to consider his request. Leist declined, but the

trial court again attempted to give Leist more time. Finally, Leist withdrew his request to

withdraw his plea and asked to proceed with sentencing.

        {¶16} The record shows the trial court attempted to grant Leist’s verbal motion to

withdraw his plea. The trial court repeatedly tried to give Leist more time to consider how

he wanted to proceed. In the end however, it was Leist’s choice, not the decision of the

trial court, to proceed with sentencing.

        {¶17} We find no abuse of discretion for the trial court to proceed with sentencing

at the sentencing hearing based on Leist’s choice to withdraw his motion to change his

plea.

        {¶18} Leist’s sole Assignment of Error is overruled.
Delaware County, Case No. 16 CAA 03 0017                                        7


                                 CONCLUSION

      {¶19} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Hoffman, J., concur.
