[Cite as State v. Ferdinandsen, 2016-Ohio-7172.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-16-08

        v.

ROBERT C. FERDINANDSEN,                                  OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2014CR307

                                     Judgment Affirmed

                            Date of Decision: October 3, 2016




APPEARANCES:

        William T. Cramer for Appellant

        Alex K. Treece for Appellee
Case No. 5-16-08


PRESTON, J.

       {¶1} Defendant-appellant, Robert C. Ferdinandsen (“Ferdinandsen”),

appeals the February 23, 2016 judgment entry of sentence of the Hancock County

Court of Common Pleas. We affirm.

       {¶2} On December 30, 2014, the Hancock County Grand Jury indicted

Ferdinandsen on one count of felonious assault in violation of R.C. 2903.11(A)(1),

a second-degree felony. (Doc. No. 1). On January 7, 2015, Ferdinandsen appeared

for arraignment and entered a plea of not guilty. (Doc. No. 5).

       {¶3} On April 20, 2015, a change-of-plea hearing was held. (Apr. 20, 2015

Tr. at 3). Pursuant to a negotiated plea agreement, Ferdinandsen pled guilty to the

count of the indictment, and the parties jointly recommended that Ferdinandsen be

sentenced to five years of community control with a three-year reserved prison term.

(Id. at 4-5); (Doc. Nos. 21, 23). The trial court conducted a Crim.R. 11 colloquy,

accepted Ferdinandsen’s guilty plea, and ordered a presentence investigation. (Id.

at 5-18); (Id.).

       {¶4} On July 28, 2015, Ferdinandsen filed a motion to withdraw his guilty

plea. (Doc. No. 37). After a hearing on September 16, 2015, the trial court, on

December 14, 2015, denied Ferdinandsen’s motion to withdraw his guilty plea.

(Doc. No. 55).




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       {¶5} On February 10, 2016, the trial court sentenced Ferdinandsen to four

years in prison. (Feb. 10, 2016 Tr. at 65). The trial court filed its judgment entry

of sentence on February 23, 2016. (Doc. No. 66).

       {¶6} Ferdinandsen filed his notice of appeal on March 22, 2016. (Doc. No.

87). He raises one assignment of error for our review.

                              Assignment of Error

       The trial court abused its discretion in denying appellant’s pre-
       sentence motion to withdraw his guilty plea.

       {¶7} In his assignment of error, Ferdinandsen argues that the trial court

abused its discretion by denying his presentence motion to withdraw his guilty plea.

In particular, he argues that the trial court abused its discretion by denying his

motion because there was no evidence that the State would have been prejudiced

and because he presented an arguable claim of actual innocence.

       {¶8} A defendant may file a presentence motion to withdraw a guilty plea.

Crim.R. 32.1. Although a trial court should freely grant such a motion, a defendant

does not maintain an absolute right to withdraw his plea prior to sentencing. State

v. Xie, 62 Ohio St.3d 521, 526 (1992). Instead, a trial court must hold a hearing to

determine whether a “reasonable and legitimate basis” exists for the withdrawal. Id.

at paragraph one of the syllabus.

       {¶9} We consider several factors when reviewing a trial court’s decision to

grant or deny a defendant’s presentence motion to withdraw a plea, including: (1)

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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; (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. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21, citing

State v. Griffin, 141 Ohio App.3d 551, 554 (7th Dist.2001). See also State v. Fish,

104 Ohio App.3d 236, 240 (1st Dist.1995). “None of the factors is determinative

on its own and there may be numerous additional aspects ‘weighed’ in each case.”

State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 16, citing Griffin at

554 and Fish at 240.

       {¶10} Ultimately, it is within the sound discretion of the trial court to

determine what circumstances justify granting a presentence motion to withdraw a

guilty plea. Xie at paragraph two of the syllabus. Therefore, appellate review of a

trial court’s decision to deny a presentence motion to withdraw a guilty plea is

limited to whether the trial court abused its discretion. State v. Nathan, 99 Ohio

App.3d 722, 725 (3d Dist.1995), citing State v. Smith, 49 Ohio St.2d 261, 361

(1977). An abuse of discretion implies that the trial court acted unreasonably,


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arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

When applying this standard, a reviewing court may not simply substitute its

judgment for that of the trial court. State v. Adams, 3d Dist. Defiance No. 4-09-16,

2009-Ohio-6863, ¶ 33.

       {¶11} An examination of the reasonable-and-legitimate-basis factors

supports that the trial court’s decision to deny Ferdinandsen’s presentence motion

to withdraw his guilty plea was not unreasonable, arbitrary, or unconscionable. That

is, the trial court did not abuse its discretion by concluding that Ferdinandsen’s

motion to withdraw his guilty plea was nothing more than a change of heart.

       {¶12} First, Ferdinandsen argues that the first factor weighs in his favor—

that is, that the State did not articulate any reasons that it would be prejudiced if

Ferdinandsen’s motion were to be granted. In response, the State acknowledges that

it conceded at the September 16, 2015 hearing that it would not be prejudiced

because all of the witnesses would be available to testify; however, the State argues

on appeal that allowing Ferdinandsen to withdraw his guilty plea “could have

potentially prejudiced the prosecution due to the continued delay of the case.”

(Appellee’s Brief at 5). “Prejudice will not be presumed when it is not articulated.”

State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 23,

citing Griffin at 554. The State conceded that all of the witnesses would be available

for trial, and did not articulate to the trial court any other prejudice. Likewise, as in


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Zimmerman, the prejudice argued by the State on appeal appears to relate “only to

the inconvenience of having to prosecute its case, rather than relating to actual,

articulated prejudice.” Id. at ¶ 24. Thus, we agree that the first factor weighs in

Ferdinandsen’s favor.

       {¶13} Although “the prejudice to the State is often classified as the most

important factor in the balancing test,” the remaining factors weigh against granting

Ferdinandsen’s motion to withdraw his guilty plea. See id. at ¶ 23, citing State v.

Cuthbertson, 139 Ohio App.3d 895, 899 (7th Dist.2000), citing Fish, 104 Ohio

App.3d at 240. See also North, 2015-Ohio-720, at ¶ 27 (concluding that the trial

court did not abuse its discretion by overruling North’s presentence motion to

withdraw his guilty plea even though there was a lack of prejudice to the

prosecution).

       {¶14} As Ferdinandsen concedes, the third, fourth, fifth, and eighth factors

do not weigh in his favor. The trial court conducted an extensive Crim.R. 11 hearing

and an extensive hearing on Ferdinandsen’s motion to withdraw his guilty plea.

(Apr. 20, 2015 Tr.); (Sept. 16, 2015 Tr.). At Ferdinandsen’s change-of-plea hearing,

the trial court conducted a thorough colloquy with Ferdinandsen, as required by

Crim.R. 11, and informed him of all of the rights he was waiving by pleading guilty

to the charges. (Apr. 20, 2015 Tr. at 6-16). The trial court informed Ferdinandsen

that he was waiving his right to a jury trial, the right to confront witnesses against


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him, the right to subpoena witnesses to appear on his behalf, the privilege against

self-incrimination, and the right to have the prosecutor prove all elements of the

offense beyond a reasonable doubt.       (Id. at 14-16).      However, Ferdinandsen

contends that the trial court’s plea colloquy was deficient because the trial court

failed “to explore the elements of the offense or applicable defenses.” (Appellant’s

Brief at 9). More specifically, Ferdinandsen argues that “the problems in this case

could have been avoid [sic] with a slightly more involved discussion about potential

defenses, including the obvious self-defense claim.” (Id.).

       {¶15} “It is well-settled that there is no requirement under Crim.R. 11(C)(2)

that trial courts apprise defendants of available defenses when accepting a change

of plea.” State v. Phillips, 3d Dist. Van Wert No. 15-12-02, 2012-Ohio-5950, ¶ 31,

citing State v. Reynolds, 40 Ohio St.3d 334 (1988), syllabus and State v. Ingram,

7th Dist. Mahoning No. 09 MA 98, 2010-Ohio-1093, ¶ 22. See also State v.

Gardner, 3d Dist. Union Nos. 14-02-18 and 14-02-19, 2003-Ohio-1580, ¶ 1

(rejecting Gardner’s argument that his plea colloquy was inadequate because “he

was not informed that a guilty plea would waive any self-defense claim”).

Moreover, Ferdinandsen did not indicate to the trial court at the change-of-plea

hearing that he had a self-defense claim. See State v. Schlegel, 3d Dist. Defiance

Nos. 4-14-12 and 4-14-13, 2015-Ohio-1183, ¶ 22 (“Moreover, Schlegel made no

argument at the plea hearing, at the sentencing hearing, or on appeal that he had a


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complete defense to the charge.”). Accordingly, Ferdinandsen’s argument that his

Crim.R. 11 hearing was inadequate because the trial court did not advise him that

he was waiving his self-defense claim is erroneous.

      {¶16} The record also illustrates that Ferdinandsen understood the nature of

the charge and potential sentence. Indeed, the following exchanges took place at

the change-of-plea hearing:

      [Trial Court]:          I read the indictment when we came into court.

                              Did you receive or were you served a copy of that

                              indictment some time earlier?

      [Ferdinandsen]:         Yes, I was.

      [Trial Court]:          Have you read that over?

      [Ferdinandsen]:         Yes, I did.

      [Trial Court]:          Do you understand the charge?

      [Ferdinandsen]:         Yes, I do.

      [Trial Court]:          Do you understand that a plea of guilty to the

                              charge today here in court by you is a complete

                              admission that you committed this offense?

      [Ferdinandsen]:         Yes, I do, Your Honor.

(Apr. 20, 2015 Tr. at 9-10). Further, Ferdinandsen indicated that he understood the

trial court’s explanation of the potential sentence for the crime to which he was


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pleading guilty. (See id. at 10-14). As such, the eighth factor does not weigh in

Ferdinandsen’s favor.

       {¶17} Likewise, the record illustrates that the hearing on Ferdinandsen’s

motion to withdraw his guilty plea was extensive. Indeed, Ferdinandsen concedes

that “the motion to withdraw turned into a mini trial with all three of the main

witnesses testifying.” (Appellant’s Brief at 9). Ferdinandsen further concedes that

“the trial court gave ample consideration to the motion.” (Id.). As such, the fourth

and fifth factors do not weigh in Ferdinandsen’s favor.

       {¶18} Further, we conclude that the second, sixth, seventh, and ninth factors

do not weigh in Ferdinandsen’s favor. As to the sixth factor, the timing of

Ferdinandsen’s motion to withdraw his plea was not reasonable. In this case,

Ferdinandsen pled guilty to the charge in the indictment. Prior to sentencing, the

trial court ordered a presentence investigation to be completed by the trial court’s

probation department. As part of its presentence investigation, the trial court

requires defendants to provide to the probation department a urine sample for

testing. At the time Ferdinandsen was providing his urine sample, it was discovered

that he was using a “whizzinator,” “which is a device designed to hold urine in a

bag around the waist that could be released through a fake penis attachment.”

(Appellant’s Brief at 1). The trial court ordered Ferdinandsen to remain at the

probation department until he could provide his own urine sample. Ferdinandsen


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eventually complied, and his sample “proved to be negative for the presence of

illegal drugs.” (Doc. No. 55). Regarding his use of the whizzinator in light of his

negative urine-sample results, Ferdinandsen explained to the trial court “that he has

a difficult time urinating in the presence of others.” (Id.). Before the trial court

could sentence him, Ferdinandsen filed his motion to withdraw his guilty plea.

         {¶19} The timing of Ferdinandsen’s motion is suspect because it was only

after the whizzinator incident, and the State’s subsequent indication that it intended

to pursue a sentencing recommendation different than that in the negotiated plea

agreement, that Ferdinandsen wanted to withdraw his plea.1 As such, we conclude

that the timing of Ferdinandsen’s motion is unreasonable. See Schlegel, 2015-Ohio-

1183, at ¶ 21 (concluding that the timing of Schlegel’s presentence motion to

withdraw his guilty plea was unreasonable because “[i]t was only at the sentencing

hearing, after Schlegel had been removed from [his rehabilitation program for

failing to participate in the program], that he attempted to withdraw his plea”).

         {¶20} Notwithstanding the suspect timing of Ferdinandsen’s motion,

Ferdinandsen states that the reasons for his motion are that he is actually innocent

and that his trial counsel at the change-of-plea hearing “pressured and coerced [him]



1
  At a hearing on November 20, 2015, the State acknowledged that it did not reserve at the Crim.R. 11 hearing
the right to amend the sentencing recommendation to which it agreed to in the negotiated plea agreement.
(Nov. 20, 2015 Tr. at 5). Assuming that it was bound to the original sentencing recommendation because it
did not make that reservation, the State agreed to adhere to the original sentencing recommendation. (Id.).
However, the State asserted that it would not abide by that sentencing recommendation if the trial court
granted Ferdinandsen’s motion to withdraw his guilty plea and the case proceeded to trial. (Id.).

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to enter a plea and that he was left with no other viable option.” (Doc. No. 37).

Based on that argument, to determine whether the seventh factor—the stated reasons

for the motion—weighs in his favor, we must examine it in conjunction with his

arguments as to the second and ninth factors.

       {¶21} We will first address the ninth factor—Ferdinandsen’s claim of

innocence. “In weighing the ninth factor, ‘the trial judge must determine whether

the claim of innocence is anything more than the defendant’s change of heart about

the plea agreement.’” State v. Davis, 5th Dist. Richland No. 15CA6, 2015-Ohio-

5196, ¶ 19, quoting State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 2008-

Ohio-7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01-CA-107, 2002-

Ohio-4176, ¶ 58. “‘A change of heart or mistaken belief about pleading guilty is

not a reasonable basis for withdrawal of a guilty plea.’” State v. Jones, 7th Dist.

Mahoning No. 09 MA 50, 2011-Ohio-2903, ¶ 20, quoting State v. Smith, 8th Dist.

Cuyahoga No. 94419, 2010-Ohio-5784, ¶ 9.            Claims of innocence must be

substantiated. North, 2015-Ohio-720, at ¶ 27.

       {¶22} Ferdinandsen argues that he is innocent because he acted in self-

defense. To establish a self-defense claim for the use of non-deadly force, the

defendant must (1) not be “‘“at fault in creating the situation giving rise to the

affray,”’” and (2) have an “‘“objectively reasonable and subjectively honest”’” bona

fide belief, even if that belief is mistaken, “‘“that he was in imminent danger of any


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bodily harm.”’” State v. Wagner, 3d Dist. Seneca No. 13-15-18, 2015-Ohio-5183,

¶ 10, quoting State v. Kimmel, 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶

19, quoting Struthers v. Williams, 7th Dist. Mahoning No. 07 MA 55, 2008-Ohio-

6637, ¶ 15, and citing State v. Vielma, 3d Dist. Paulding No. 11-11-03, 2012-Ohio-

875, ¶ 37. As an affirmative defense, the defendant must prove by a preponderance

of the evidence the elements of self-defense. State v. Reed, 9th Dist. Summit No.

27755, 2016-Ohio-5123, ¶ 15, citing State v. Cornwell, 9th Dist. Wayne No.

14AP0017, 2015-Ohio-4617, ¶ 19, citing R.C. 2901.05(A).

       {¶23} As we noted above, the trial court provided Ferdinandsen great

latitude in allowing him to present evidence of his self-defense claim. Indeed,

Ferdinandsen and his then-girlfriend, Kristen Hoffman (“Hoffman”), testified to the

version of events that led to Ferdinandsen assaulting the victim. The testimony at

the hearing on Ferdinandsen’s motion revealed that he was involved in an

altercation with Hoffman, which caused the victim to intervene to come to

Hoffman’s aid. (See Sept. 16, 2015 Tr. at 11-12, 20). When the victim did so,

Ferdinandsen feloniously assaulted the victim. (Id. at 32-33). Notwithstanding that,

Ferdinandsen and Hoffman testified that Ferdinandsen acted in self-defense because

(1) it appeared that the victim had an object in his hand, (2) Ferdinandsen was pinned

against his garage, and (3) Ferdinandsen warned the victim to “stay back” two to

three times as the victim was coming toward him. (Id. at 12-13, 31-32). After


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hearing that testimony, the trial court rejected Ferdinandsen’s self-defense claim

after concluding that Ferdinandsen “created the situation giving rise to his assault

of [the victim].” (Doc. No. 55). Thus, because the trial court concluded that

Ferdinandsen’s self-defense claim is unsubstantiated, it further concluded that

Ferdinandsen’s motion to withdraw his guilty plea was nothing more than a change

of heart.

       {¶24} Nonetheless, in an effort to combat the conclusion that his wish to

change his plea was anything more than a change of heart, Ferdinandsen points to

the second factor and argues that his prior counsel was ineffective and coerced him

into pleading guilty. With respect to his claim that he was denied the effective

assistance of counsel, we note that a defendant asserting a claim of ineffective

assistance of counsel must establish: (1) the counsel’s performance was deficient or

unreasonable under the circumstances; and (2) the deficient performance prejudiced

the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice when ineffective

assistance of counsel relates to a guilty plea, a defendant must show there is a

reasonable probability that but for counsel’s deficient or unreasonable performance,

the defendant would not have pled guilty. Xie, 62 Ohio St.3d at 524, citing Hill v.

Lockhart, 474 U.S. 52, 59 (1985) and Strickland at 687.




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       {¶25} Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255

(1991). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. State v. Bradley, 42 Ohio St.3d 136, 141-

142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976). When asserting

that counsel failed to introduce evidence, the defendant must show that “such

evidence was available or that it would have corroborated [the defendant’s]

assertions.” State v. Dunn, 3d Dist. Allen No. 1-02-98, 2003-Ohio-4353, ¶ 19.

       {¶26} On appeal, Ferdinandsen argues that his prior counsel was ineffective

because he “ignored [his] protestations of innocence and guaranteed he would lose

at trial based on his prior record.”      (Appellant’s Brief at 8).    In particular,

Ferdinandsen argues that his prior

       counsel never explained that Ferdinandsen’s record would not be

       admissible if he avoided testifying.      And Hoffman could have

       provided all the facts relevant to self-defense without Ferdinandsen

       taking the stand * * * [b]ut counsel would not have known any of that

       because he never interviewed Hoffman.

(Id. at 9). Ferdinandsen cannot sustain his burden of proving that his prior counsel’s

performance was deficient or unreasonable under the circumstances or that there is

a reasonable probability that he would not have pled guilty.


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       {¶27} Ferdinandsen cannot show that his prior counsel’s advice was

deficient or unreasonable under the circumstances for two reasons.             First,

Ferdinandsen cannot show that his prior counsel’s advice was anything more than

trial strategy. As we noted above, Ferdinandsen argues that his prior counsel

advised him to accept the negotiated plea agreement as opposed to taking the case

to trial. According to Ferdinandsen, his prior counsel “guaranteed [Ferdinandsen]

would lose at trial based on his prior record” because his prior record would be used

against him since he would have to testify to assert his self-defense claim.

(Appellant’s Brief at 8).   “‘[A]n attorney’s advice to take a plea deal is not

ineffective assistance of counsel.’”    State v. Robinson, 12th Dist. Butler No.

CA2013-05-085, 2013-Ohio-5672, ¶ 23, quoting State v. Shugart, 7th Dist.

Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37. Rather, Ferdinandsen’s prior

counsel’s advice “constitute[s] nothing more than counsel’s attempts to provide

[Ferdinandsen] with informed advice, to relay worst case scenarios to him, and to

make recommendations to him on how to proceed.” Id., citing State v. Eberle, 12th

Dist. Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 57.

       {¶28} Furthermore, Ferdinandsen argues that his prior counsel’s advice to

accept the negotiated plea agreement amounted to ineffective assistance of counsel

because his prior counsel failed to interview Hoffman and failed to explain to

Ferdinandsen that Hoffman’s testimony could have established Ferdinandsen’s self-


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defense claim thereby avoiding any prejudice from Ferdinandsen’s criminal record

being raised. Ferdinandsen’s argument is meritless. Although we do not know what

underscored Ferdinandsen’s prior counsel’s advice, Ferdinandsen fails to

acknowledge that Hoffman provided a written statement to law enforcement

detailing what she witnessed during the altercation, which would have been

available for review. Even if we assume that Ferdinandsen’s prior counsel’s actions

concerning Hoffman are deficient or unreasonable under the circumstances,

Ferdinandsen cannot show that Hoffman’s testimony would have corroborated his

self-defense claim—that is, that he would have been entitled to a self-defense

instruction based on Hoffman’s testimony.          Jury instructions are within the

discretion of the trial court. See State v. Gripper, 10th Dist. Franklin No. 12AP-

396, 2013-Ohio-2740, ¶ 17. As we discussed above, Hoffman testified as to what

she witnessed the night of the altercation and the trial court rejected Ferdinandsen’s

self-defense claim after concluding that Ferdinandsen “created the situation giving

rise to his assault of [the victim].” (Doc. No. 55). Compare Reed, 2016-Ohio-5123,

at ¶ 16 (concluding, in part that, that the trial court did not abuse its discretion by

denying Reed’s self-defense jury instruction because “Reed failed to offer sufficient

evidence that he was not at fault for creating the violent situation”), citing State v.

Nichols, 4th Dist. Scioto No. 01CA2775, 2002 WL 126973, *3 (Jan. 22, 2002). For

these reasons, Ferdinandsen cannot show that his prior counsel’s advice was


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deficient or unreasonable under the circumstances. See State v. Strong, 6th Dist.

Wood No. WD-08-009, 2009-Ohio-1528, ¶ 34 (rejecting Strong’s argument that his

counsel was ineffective for failing to explain to Strong all of his possible defenses

and explore issues raised by Strong).

       {¶29} Ferdinandsen also did not demonstrate that he was prejudiced by his

prior counsel’s advice—that is, that he would not have pled guilty to the charge. As

in State v. Ganguly, Ferdinandsen’s argument that he was pressured to accept the

negotiated plea agreement “taken on its face would make the second factor weigh

heavily in [his] favor.” 10th Dist. Franklin No. 14AP-383, 2015-Ohio-845, ¶ 17.

However, as in Ganguly, the trial court weighed Ferdinandsen’s credibility when

considering this factor, and did not find him to be credible. See id. First, at

Ferdinandsen’s change-of-plea hearing, there was no indication of any issues

between Ferdinandsen and his then-counsel.         At that hearing, Ferdinandsen

represented to the trial court that he was satisfied with his then-counsel’s legal

advice and that he and his then-counsel had enough time to review the negotiated

plea agreement prior to Ferdinandsen entering his guilty plea. (Apr. 20, 2015 Tr. at

7-8). Yet, Ferdinandsen’s motion to withdraw his guilty plea represents that those

statements were untrue.

       {¶30} Ferdinandsen’s prior attorney did not testify at the hearing on

Ferdinandsen’s motion to withdraw his guilty plea. As such, the only evidence


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presented   regarding    Ferdinandsen’s    prior   counsel’s   “bad    advice”   was

Ferdinandsen’s and Hoffman’s testimony. The trial court was in the best position

to evaluate the credibly of witnesses. Ganguly at ¶ 17, citing State v. Burris, 10th

Dist. Franklin No. 13AP-238, 2013-Ohio-5108, ¶ 18 and State v. Watkins, 10th Dist.

Franklin No. 13AP-133, 2013-Ohio-5544, ¶ 11. More specifically, the trial court

was in the best position to determine Ferdinandsen’s motivation to enter his plea

initially and his credibility at the subsequent plea-withdrawal hearing because it had

the opportunity to observe him at both hearings. Id. In concluding that it did not

find Ferdinandsen credible, the trial court acknowledged that Ferdinandsen’s (1)

“deceitful conduct” with respect to the whizzinator incident; (2) admission “that he

prepared a false letter of apology to [the victim] in an effort to gain favor with the

court;” and (3) “demeanor and appearance was highly suggestive of deception

[because] he was extremely nervous and jittery while he was on the witness stand”

weighed against his credibility. (Doc. No. 55). Because the trial court was in the

best position to assess credibility, the trial court did not abuse its discretion by

concluding that the second factor does not weigh in Ferdinandsen’s favor after

concluding that Ferdinandsen’s and Hoffman’s testimony was not credible.

       {¶31} Moreover, Ferdinandsen was offered a very favorable negotiated plea

agreement in which the State agreed to jointly recommend to the trial court that

Ferdinandsen be sentenced to five years of community control with a three-year


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reserved prison term.         That sentence recommendation is favorable to

Ferdinandsen—the charge in the indictment carries a presumption in favor of prison

of two to eight years. (See id. at 10, 13). Thus, Ferdinandsen did not show that he

was prejudiced by his prior counsel. Accordingly, the trial court did not abuse its

discretion by concluding that the second factor does not weigh in Ferdinandsen’s

favor.

         {¶32} Although we concluded that the prosecution would not be prejudiced

if the trial court allowed Ferdinandsen to withdraw his guilty plea, the indications

that Ferdinandsen’s motion is nothing more than a change of heart demonstrate that

the trial court’s denial of his motion was not unreasonable, arbitrary, or

unconscionable. See North, 2015-Ohio-720, at ¶ 27 (“‘[It] is not an abuse of

discretion for the trial court to find that a reasonable and legitimate basis did not

exist on which to grant a motion to withdraw the plea even though the state would

not be prejudiced if the motion were granted.’”), quoting State v. Littlefield, 4th Dist.

Ross No. 03CA2747, 2004-Ohio-5996, ¶ 12; Jones, 2011-Ohio-2903, at ¶ 20

(“‘When none of the [] factors weigh heavily in the defendant’s favor regarding the

presentence withdrawal of a guilty plea, a strong inference arises that the plea is

being withdrawn merely because of a change of heart about entering the plea.’”),

quoting State v. Moore, 7th Dist. Columbiana No. 06 CO 74, 2008-Ohio-1039, ¶ 13.




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Accordingly, we conclude that the trial court did not abuse its discretion by denying

Ferdinandsen’s motion to withdraw his guilty plea.

       {¶33} Ferdinandsen’s assignment of error is overruled.

       {¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr


ROGERS, J. dissenting.

       {¶35} I respectfully dissent from the opinion of the majority.

       {¶36} First, the state conceded at the hearing on the motion to withdraw that

it would suffer no prejudice by allowing the Appellant to withdraw his plea. This

factor should be given great weight. The majority acknowledges that presentence

motions to withdraw a plea should be freely granted, but then searches for reasons

to deny the motion.

       {¶37} Second, the Appellant stated the basis for withdrawing his plea. The

Appellant stated that believes he may have a defense in the form of self-defense. In

my opinion, the trial court proceeded to weigh the evidence of that potential defense

and determined that the evidence of that defense was inadequate. However, it was

not the role of the trial court to become the trier of fact on the issue of self-defense.

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       {¶38} The majority argues that the defense would not be available because

the Appellant was at fault in creating the situation. However, while the Appellant

may have had fault in creating a situation with the girlfriend, Hoffman, there is a

substantial question of fact as to whether a jury would find that he created the

situation with the neighbor. The neighbor volunteered to get involved, crossed a

fence to get to Appellant, and had a Maglite in his hand. There is even a question

whether Hoffman was still outside the house when the neighbor confronted

Appellant.

       {¶39} These are all questions which should be presented to the trier of fact

and not weighed by the judge.

       {¶40} Accordingly, I would sustain the assignment of error and remand the

matter for trial.




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