[Cite as State v. Whaley, 2019-Ohio-3933.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    WILLIAMS COUNTY


State of Ohio                                    Court of Appeals No. WM-18-009

        Appellee                                 Trial Court No. 18CR000123

v.

Travis T. Whaley                                 DECISION AND JUDGMENT

        Appellant                                Decided: September 27, 2019

                                             *****

        Katherine J. Zartman, Williams County Prosecuting Attorney, and
        Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.

        Abigail L. Wurm, for appellant.

                                             *****

        ZMUDA, J.

        {¶ 1} This is an appeal from the Williams County Court of Common Pleas, which

denied the motion to withdraw guilty plea of appellant Travis Whaley, and sentenced him

to a five-year prison term for felonious assault, in violation of R.C. 2903.11(A)(1)(D)(a),

a felony of the second degree. Finding no error in the trial court’s decision, we affirm.
                                       A. Background

         {¶ 2} On April 27, 2018, Whaley traveled to Toledo to purchase drugs,

accompanied by Troy Smith, Vicky Sauceda, and Vicky’s boyfriend, June. Vicky drove

the group in her car. On the drive back, Whaley injected himself with drugs, and by his

own admission, forced the drugs on Troy. When Troy exhibited signs of overdose,

Whaley performed CPR in the car for 45 minutes, until they reached Whaley’s home.

Whaley and Vicky then placed Troy in a bathtub, and Whaley’s father called 911.

Whaley and Vicky fled the house before police and EMS arrived. Troy was revived, and

survived.

         {¶ 3} The next day, Whaley discussed the incident in a phone call with his

girlfriend, Jessica Conrad. The call was recorded, because Jessica was an inmate at

CCNO at the time. Whaley told Jessica that “Troy tried snitching on me and I found the

thing on him.” He also admitted, “I took him to Toledo and I came out with the dope.

With a ball of heroin and he wouldn’t get high. He won’t do it Jess so I made him do it

and when I made him do it, he OD’d and died.”

         {¶ 4} Troy also discussed the incident in a phone call with a third party, days later.

That phone call was also recorded, because Troy was an inmate at CCNO.1 Troy stated

he fell asleep in the car, and Whaley injected him with the drugs and took his money and

phone. When asked whether the drug used was fentanyl, Troy responded, “Yes. That’s



1
    The record does not indicate why Troy was in custody.




2.
what the dumbass is doing when I fell asleep. I didn’t know it.” Troy’s account in the

phone call matched his subsequent statement to police.

       {¶ 5} On June 19, 2018, the Williams County Grand Jury indicted Whaley,

charging him in Count 1, corrupting another with drugs, a felony of the second degree,

and in Count 2, of felonious assault, a felony of the second degree. The charges arose

from the forced injection of Troy, resulting in his overdose and near death. Whaley was

arraigned, and remained free on bond.

       {¶ 6} Whaley received pretrial discovery, including the recorded phone calls and

statements. Prior to the scheduled October 1, 2018 trial date, Whaley agreed to a

negotiated plea to avoid the mandatory prison term that he would face for conviction on

Count 1, corrupting another with drugs. On September 19, 2018, in exchange for the

prosecution dismissing Count 1, which carried a mandatory prison term if convicted,

Whaley entered a guilty plea to Count 2, felonious assault.2

       {¶ 7} Prior to accepting the plea, the trial court conducted extensive inquiry of

Whaley to ensure he entered his plea knowingly, intelligently, and voluntarily. As part of

the colloquy between Whaley and the trial court, Whaley acknowledged he was satisfied

with his counsel’s work on the case and with his advice, and understood the guilty plea


2
  At the plea hearing, the state also indicated it would argue in favor of a prison term, but
would not pursue a specific prison term. The written plea agreement, journalized by the
trial court, contained no such provision, and at sentencing, the state argued in favor of a
six-year prison term. Whaley asserts no error based on any breach of the plea agreement
by the state, and regardless, the trial court did not follow the state’s recommendation, as
evidenced by the record.




3.
was a complete admission of the facts and allegations regarding the charge of felonious

assault. The trial court accepted the plea and found Whaley guilty of felonious assault, in

violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree. The trial

court continued sentencing to October 22, 2018, and ordered Whlaley to report for a

presentence investigation interview.

       {¶ 8} On September 26, 2018, the trial court revoked Whaley’s bond after he

failed to appear for a presentence investigation interview. A bench warrant issued, and

Whaley was taken into custody on October 2, 2018.

       {¶ 9} On October 19, 2018, Whaley filed a motion, seeking to withdraw his guilty

plea and requesting a hearing to demonstrate the basis for the motion. The trial court

vacated the sentencing hearing, and granted Whaley additional time to file a

memorandum in support of his motion. On October 29, 2018, Whaley filed his

memorandum in support, arguing his counsel was unable to interview the victim, Troy,

prior to entering his plea, but subsequently learned that Troy “did not remember” who

administered the drugs to him, and despite other evidence of his guilt, Whaley maintained

his innocence. Therefore, Whaley argued, there was a reasonable and legitimate basis to

permit him to withdraw his guilty plea.

       {¶ 10} On November 5, 2018, the state filed an objection to Whaley’s motion,

arguing Whaley fully understood the charges and potential sentence, and despite claims

of innocence, entered a guilty plea rather than an Alford plea. As to the evidence, the




4.
state noted that Whaley failed to acknowledge his own incriminating statements that

amounted to a confession.

       {¶ 11} On November 8, 2018, the trial court held a hearing on the motion.

Whaley, through his counsel, argued a change in evidence from the date he entered his

plea until the date of his motion, based on a statement attributed to Troy that he did not

remember who injected him. Whaley testified at hearing, asserting, “what is said ain’t

really what happened.” Despite incriminating recordings received by Whaley in

discovery, prior to his plea, Whaley argued that a potential change in Troy’s testimony,

and potential testimony by the driver of the vehicle, Vicky, provided a complete and total

defense to the charges. The state opposed the motion, and argued that Whaley’s recorded

confession negated any claim of a complete defense.

       {¶ 12} The trial court reviewed a transcript of the recorded statements, submitted

by stipulation of the parties as a joint exhibit. After considering the motion and

objection, the testimony, the joint exhibit, and applicable law, the trial court denied the

motion by written opinion, concluding Whaley failed to establish “that he is ‘perhaps’ not

guilty or that he has a complete defense to the charge. His own words tell us otherwise.”

       {¶ 13} On November 14, 2018, the trial court held a sentencing hearing. The state

argued in favor of a six-year prison term. Whaley’s counsel acknowledged the

presumption for a prison term and Whaley’s criminal history, but requested community

control and drug treatment instead of prison. Whaley spoke on his own behalf, and

continued to claim Troy injected himself with the drugs. Whaley also argued in favor of




5.
drug treatment rather than prison. The trial court engaged in the following exchange with

Whaley:

             THE COURT: So I’m pleased to hear maybe you’ve reached the

      point in your life where there’s no place to go but up. But that doesn’t

      minimize what you’ve been convicted of. I feel like we’re dancing. You

      said you didn’t inject the victim of this offense. You’ve injected others in

      the past but that’s not what you’re charged with here. But you still have

      entered a knowing and voluntary plea to felonious assault.

             So my difficulty right now is selecting the appropriate term of your

      period of imprisonment because you’ve not overcome the presumption of

      prison. So the Court must decide whether to impose a maximum period of

      imprisonment of eight (8) years or the minimum or something in between.

      And an important factor in my mind is to look at remorse. So I want you to

      give it some thought. You might want to talk with [your attorney]. I want

      you to tell me exactly what happened that particular night. If it’s the same

      stories you just told me, that’s fine but I want to hear it again. What exactly

      happened?

             WHALEY: Your Honor, on that night, Troy had texted me and was

      asking about going to Toledo. Your Honor, I didn’t have no money. No

      one, no one had no money. The driver didn’t have no money. Troy said

      that he would pay for gas if we went. By no means I’m not blaming him,




6.
       by no means whatsoever. He was my friend. He was walking from

       McDonald to Aces Corners in which that night, he said when we had

       picked him up, he had food and wanted to be taken to a friend’s house first.

              THE COURT: My question for you, I understand the preliminaries.

       My question is, did you administer the heroin to your friend or not?

              WHALEY: No, I did not Your Honor.

              THE COURT: Alright, have a seat.

       {¶ 14} The trial court plainly indicated to Whaley that remorse was an important

consideration, and Whaley continued to blame the victim without confronting his own,

recorded statement, confessing to the assault. After articulating consideration of the

factors under R.C. 2929.11 and 2929.12, the trial court found Whaley not amenable to

community control and imposed a five-year prison term for Count 2 of the indictment,

felonious assault. The state dismissed Count 1 pursuant to the plea agreement. Whaley

then filed the present appeal, challenging the trial court’s decision in denying his motion

to withdraw his guilty plea, and asserting the following assignments of error:

              I. THE TRIAL COURT ERRED WHEN IT DENIED THE

       APPELLANT’S PRESENTENCE MOTION TO WITHDRAW HIS

       GUILTY PLEA.

              II. APPELLANT DID NOT RECEIVE THE EFFECTIVE

       ASSISTANCE OF COUNSEL IN HIS REQUEST TO WITHDRAW

       GUILTY PLEA.




7.
                                        B. Analysis

       {¶ 15} In his first assignment of error, Whaley challenges the trial court’s denial of

his presentence motion to withdraw his guilty plea. A motion to withdraw a plea of

guilty “may be made only before sentence is imposed” and, generally, is to “be freely and

liberally granted.” State x. Xie, 62 Ohio St.3d 521, 526-527, 584 N.E.2d 715 (1992);

Crim.R. 32.1. “Nevertheless, it must be recognized that a defendant does not have an

absolute right to withdraw a plea prior to sentencing.” Id. at 527. We review a trial

court’s decision regarding withdrawal of a plea for an abuse of discretion, and will affirm

unless we find the trial court’s ruling was unreasonable, arbitrary, or unconscionable. Id.,

citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 16} To prevail on a Crim. R. 32.1 motion to withdraw a guilty plea, a criminal

defendant must demonstrate a “reasonable and legitimate basis.” Xie at 527. A trial

court must conduct a hearing, prior to ruling, to decide whether such basis exists. Id.

Some of the factors a trial court considers, relative to a presentence motion, are as

follows:

       (1) whether the state will be prejudiced by withdrawal; (2) the

       representation afforded to the defendant by counsel; (3) the extent of the

       Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

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

       motion; (6) whether the timing of the motion was reasonable; (7) the

       reasons for the motion; (8) whether the defendant understood the nature of




8.
       the charges and potential sentences; and (9) whether the accused was

       perhaps not guilty or had a complete defense to the charge.

State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001).

       {¶ 17} Whaley acknowledges the fact that the trial court held a proper Crim.R.11

hearing, and at the time of plea, he believed a guilty plea to be in his best interest.

Whaley also acknowledges the trial court held a hearing on his motion. He argues his

motion was timely and presented no prejudice to the state, and stated reasons for

withdrawal. As to his representation, Whaley argues that his trial counsel failed to

provide effective assistance in pursuing his motion to withdraw his guilty plea, and failed

to explore all possible defenses in counseling Whaley to enter into the plea.3

       {¶ 18} As to the final factor, Whaley argues that he agreed to plead guilty based

on Troy’s statement that Whaley injected him, and with Troy no longer certain who

injected him, Whaley was “perhaps not guilty or had a complete defense to the charge.”

Whaley also argues that other occupants of the car might have testified in his favor. In

denying his motion, however, the trial court focused on evidence Whaley completely

ignored in his argument in support of his motion, his taped conversation with his

girlfriend in which he admitted he forced Troy to take the drugs.




3
 Whaley did not address whether he “understood the nature of the charge and potential
sentences” in this appeal, and the record demonstrates Whaley understood that, by
entering a guilty plea to felonious assault, the state would dismiss the charge carrying a
mandatory prison term.




9.
       {¶ 19} This is not a case in which Whaley argued he did not knowingly enter his

plea because he should have been charged with a lesser offense based on his taped

confession. See, e.g., State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-

6181, ¶ 13-14 (defendant wanted to withdraw plea to murder in order to seek a voluntary

manslaughter instruction at trial, based on taped statement that he “snapped” when

girlfriend said she was leaving him). This is also not a case in which Whaley recanted or

even disputed his taped confession. See, e.g., State v. Mhoon, 8th Dist. Cuyahoga No.

98832, 2013-Ohio-2090, ¶ 40 (defendant argued he falsely confessed in a letter to the

juvenile court, but failed to raise claims of innocence prior to plea hearing). Instead, this

is a case in which Whaley pretended—and continues to pretend—his taped statements do

not exist.

       {¶ 20} The trial court noted the main issue raised by Whaley in his motion, his

complete defense to the charge, and carefully considered this issue along with the

statements submitted within the parties’ joint exhibit. The trial court concluded that a

change of heart provided the true basis for Whaley’s motion, and therefore, Whaley

failed to demonstrate a reasonable basis or that he had a complete defense. It is well-

settled law that a change of heart is not a reasonable basis for permitting a defendant to

withdraw a guilty plea. State v. Kimpel, 6th Dist. Williams No. WM-07-008, 2007-Ohio-

6129, ¶ 20, quoting State v. Green, 6th Dist. Erie No. E-03-020, 2005-Ohio-5256, ¶ 17,

quoting State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).




10.
       {¶ 21} In reviewing the trial court’s determination regarding a change of heart, we

find this ruling was not unreasonable, arbitrary, or unconscionable. Therefore, we find

no abuse of discretion by the trial court in denying Whaley’s motion. Whaley’s first

assignment of error, accordingly, is not well-taken.

       {¶ 22} In his second assignment of error, Whaley argues that his counsel provided

ineffective assistance relative to his motion to withdraw his guilty plea. The right to

effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution, as well as the Ohio Constitution, Article I, Section 10.

       {¶ 23} To prevail on a claim of ineffective assistance of counsel, Whaley must

demonstrate that his trial counsel’s conduct “fell below an objective standard of

reasonableness,” based on “prevailing professional norms.” State v. Belton, 149 Ohio

St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 132, quoting Strickland v. Washington, 466

U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A defendant arguing that he

should be allowed to withdraw a guilty plea due to the ineffective assistance of counsel

must show that the alleged ineffective assistance precluded the defendant from entering a

knowing and voluntary plea.” State v. Strong, 6th Dist. Wood No. WD-08-009, 2009-

Ohio-1528, ¶ 33, citing State v. Doak, 7th Dist. Columbiana Nos. 03 CO 15, 03 CO 31,

2004-Ohio-1548, ¶ 54-55. In other words, Whaley must show that, but for his counsel’s

errors, he would not have agreed to plead guilty. State v. Kimpel, 6th Dist. Williams No.

WM-07-008, 2007-Ohio-6129, ¶ 14, quoting Xie, 62 Ohio St.3d at 524, 584 N.E.2d 715

(additional citations omitted).




11.
       {¶ 24} Whaley argues his counsel was ineffective in failing to secure testimony

prior to the plea, and again in failing to secure testimony for hearing on his motion to

withdraw the guilty plea. In support, Whaley relies on claims he learned of new

witnesses after he entered his guilty plea. These “new” witnesses, however, included

Vicky and Troy, individuals known to Whaley prior to the plea. In its colloquy with

Whaley at the plea hearing, the trial court specifically addressed the possibility of calling

supporting witnesses or cross-examining the state’s witnesses.

              THE COURT: At a trial, [your attorney] would have the

       opportunity to subpoena witnesses to come into this Courtroom to testify

       for you. But because of your plea today, you’re waiving your right to

       compulsory process of witnesses. * * *

              Also at a trial [your attorney] would have the opportunity to cross-

       examine all of the State’s witnesses called into this Courtroom to testify

       against you. But because of your plea today, you’re waiving your right to

       cross examination of witnesses. Do you understand that?

              WHALEY: Yes, Your Honor.

       {¶ 25} The record indicates Whaley knew of all potential witnesses, prior to his

plea, and he agreed to plead guilty to felonious assault in exchange for the state

dismissing the charge for corrupting another with drugs, which carried a mandatory

prison term upon conviction. Furthermore, in claiming that “new” witness testimony,

previously unknown, would have changed his decision to enter a guilty plea, Whaley




12.
once more ignores his own, recorded statements, in which he admitted to forcing the

drugs on Troy.

       {¶ 26} Despite this recorded admission by Whaley, his counsel negotiated a plea

that halved Whaley’s charges, and secured dismissal of the charge that carried a

mandatory prison sentence. Furthermore, while Whaley characterizes Troy’s subsequent

memory lapse as “recanting” his prior statement, even without Troy’s testimony

identifying Whaley as his assailant, the state possessed Whaley’s own, recorded

statement admitting to the assault. Significantly, Whaley fails to demonstrate that any

potential witness, unexplored by his trial counsel, could provide testimony that would

have neutralized his admission of guilt.

       {¶ 27} Considering the record, Whaley’s trial counsel made substantial efforts on

his behalf, both before his guilty plea and after the plea in raising the issue of Troy’s

potential changed recollection. While not successful, trial counsel was nonetheless

effective. Accordingly, Whaley failed to demonstrate that his trial counsel provided

ineffective assistance, either prior to plea or in seeking to withdraw the plea. Whaley’s

second assignment of error, therefore, is not well-taken.

                                       C. Conclusion

       {¶ 28} Finding no error, the judgment of the Williams County Court of Common

Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24.

                                                                          Judgment affirmed.




13.
                                                               State v. Whaley
                                                               C.A. No. WM-18-009




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




14.
