[Cite as State v. Nance, 2018-Ohio-2637.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               MEIGS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 18CA7
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
DAVID L. NANCE,                :
                               :
    Defendant-Appellant.       :    Released: 06/27/18
_____________________________________________________________
                         APPEARANCES:

Charles H. Knight, Pomeroy, Ohio, for Appellant.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Appellant David L. Nance entered guilty pleas in the Meigs

County Court of Common Pleas to three counts: (1) tampering with

evidence, R.C. 2923.02(A) and 2921.12(A)(1); (2) permitting drug abuse,

R.C. 2925.13(B)(1); and (3) possession of drugs, 2925.11(A). He

subsequently filed a motion to withdraw his guilty pleas and now appeals the

judgment entry of conviction, journalized February 7, 2018, on the basis that

the trial court erred and abused its discretion in denying his motion to

withdraw his guilty pleas. Based upon our review of the record, we find
Meigs App. No. 18CA7                                                            2

Appellant’s arguments have merit. Accordingly, we sustain the first

assignment of error, reverse the judgment of the trial court, and remand for

further proceedings consistent with this opinion.

                                   FACTS

      {¶2} On March 16, 2017, Appellant was indicted by the Meigs

County Grand Jury on three counts: (1) tampering with evidence, in

violation of R.C. 2921.12(A)(1), a felony of the third degree; (2) permitting

drug abuse, R.C. 2925.13(B)(1), a misdemeanor of the first degree; and (3)

possession of drugs, in violation of R.C. 2925.11(A)& (C) (4) (a), a felony

of the fifth degree. The record indicates the indictment arose subsequent to

an overdose death which occurred at Appellant’s home in Syracuse, Ohio, in

March 2016. Appellant pleaded not guilty to all counts.

      {¶3} After the pretrial proceedings commenced and the parties

exchanged discovery, the record indicates Appellant changed his pleas on

October 12, 2017. On that date, Appellant entered guilty pleas to an

amended count one (attempted tampering with evidence) and the other two

counts. He also executed a waiver of jury trial and acknowledgment of

rights. The matter was set for sentencing in November 2017. On November

27, 2017, he requested a transcript of the October 12, 2017 plea hearing.
Meigs App. No. 18CA7                                                               3

           {¶4} An entry dated January 18, 2018 reflects that Appellant’s

sentencing was rescheduled to February 5, 2018. The entry reads: “Met off

record. Defendant was present.” On January 26, 2018, Appellant filed a

motion to withdraw his plea pursuant to Crim.R. 32.1.

           {¶5} In Appellant’s motion, several facts were highlighted. Appellant

pointed out that he was absent from his home when the overdose death

occurred over one year prior to his indictment.1 He emphasized his

complete cooperation with authorities. Substantial negotiations had

occurred and Appellant’s only prior criminal record was over 10 years old.

Appellant cited his lack of understanding of the plea, his psychological

difficulties, and indicated he would assert a valid defense. Appellant

concluded by arguing that there would be no prejudice to the State of Ohio if

the plea were to be vacated.

           {¶6} On February 5, 2018, the trial court verbally denied Appellant’s

motion to withdraw and proceeded to sentence Appellant to an eighteen-

month prison sentence for amended count one, a suspended 180-day jail

sentence as to count two, and five years of community control (with an

underlying sentence of twelve months) as to count three. On February 6,

2018, the trial court journalized an entry denying Appellant’s motion. On


1
    Appellant pointed out a “subsequent prosecutor” was handling the case.
Meigs App. No. 18CA7                                                                                  4

February 7, 2018, the trial court journalized its judgment entry of sentence.

On February 22, 2018, the trial court journalized an amended judgment

entry.2

           {¶7} This timely appeal followed. Additional facts are set forth

below, where pertinent.

                                  ASSIGNMENTS OF ERROR

           I.      “THE TRIAL COURT ERRED IN FAILING TO
                   CONDUCT A MANDATORY HEARING ON
                   DEFENDANT-APPELLANT’S PRE-SENTENCE
                   MOTION TO WITHDRAW A GUILTY PLEA.

           II.     THE TRIAL COURT’S DENIAL OF APPELLANT’S
                   MOTION FOR WITHDRAW OF PLEA WITHOUT A
                   MANDATORY HEARING AND WITHOUT
                   CONSIDERATION DENIED DEFENDANT-
                   APPELLANT HIS CONSTITUTIONAL RIGHT TO
                   TRIAL BY JURY.”

           {¶8} Appellant challenges the trial court’s decision which denied his

pre-sentence motion to withdraw his guilty pleas. He first asserts the trial

court erred in failing to conduct a mandatory hearing on his motion and, as a

result, his due process rights were violated. Secondly, he asserts that the

trial court’s error and abuse of discretion in failing to conduct a hearing

violated his constitutional right to a trial by jury. Because these matters are

interrelated, we consider Appellant’s assignments of error jointly.


2
    The amended entry reflected that count one was amended to an “attempt” to tamper with evidence.
Meigs App. No. 18CA7                                                               5

                          STANDARD OF REVIEW

      {¶9} Trial courts possess discretion when deciding whether to grant or

to deny a presentence motion to withdraw a guilty plea. State v. Howard, 4th

Dist. Scioto No. 16CA3762, 2017-Ohio-9392, at ¶ 20; State v. Xie, 62 Ohio

St.3d 521, 584 N.E.2d 715 (1992), paragraph two of the syllabus. Thus,

absent an abuse of discretion, appellate courts will not disturb a trial court's

ruling concerning a motion to withdraw a guilty plea. Id. at 527, 584 N.E.2d

715. An “abuse of discretion” means that the court acted in an

“ ‘unreasonable, arbitrary, or unconscionable’ ” manner or employed “ ‘a

view or action that no conscientious judge could honestly have taken.’ ”

Howard, supra, quoting State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-

1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,

2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. Moreover, a trial court generally

abuses its discretion when it fails to engage in a “ ‘sound reasoning process.’

” Howard, supra, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). Additionally, “[a]buse-of-discretion review is

deferential and does not permit an appellate court to simply substitute its
Meigs App. No. 18CA7                                                          6

judgment for that of the trial court.” Howard, supra, quoting State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

                            LEGAL ANALYSIS

       {¶10} Crim.R. 32.1 states: “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.” Crim.R.

32.1 permits a defendant to file a motion to withdraw a guilty plea before

sentence is imposed. While trial courts should “freely and liberally” grant a

presentence motion to withdraw a guilty plea, a defendant does not “have an

absolute right to withdraw a guilty plea prior to sentencing.” Howard, supra,

at ¶ 21, quoting Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715; accord State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 57; State v.

Spivey, 81 Ohio St.3d 405, 415, 692 N.E.2d 151 (1998); State v. Wolfson,

4th Dist. Lawrence No. 02CA28, 2003-Ohio-4440, at ¶ 14. Instead, “[a]

trial court must conduct a hearing to determine whether there is a reasonable

and legitimate basis for the withdrawal of the plea.” Howard, supra, quoting,

Xie at paragraph one of the syllabus; accord State v. Boswell, 121 Ohio St.3d

575, 906 N.E.2d 422, 2009-Ohio-1577, ¶ 10, superseded by statute on other
Meigs App. No. 18CA7                                                               7

grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, 920 N.E.2d 958.

      {¶11} While a trial court possesses discretion to determine whether to

grant or to deny a presentence motion to withdraw a guilty plea, it does not

have discretion to determine if a hearing is required. Howard, at ¶ 22. See

Wolfson at ¶ 15. Instead, a trial court has a mandatory duty to hold a hearing

regarding a presentence motion to withdraw a guilty plea. Howard, supra;

Xie at paragraph one of the syllabus; State v. Leonhart, 4th Dist. Washington

No. 13CA38, 2014-Ohio-5601, at ¶ 50; State v. Burchett, 4th Dist. Scioto

No. 11CA3445, 2013-Ohio-1815, at ¶ 13; State v. Davis, 4th Dist. Lawrence

No. 05CA9, 2005-Ohio-5015, at ¶ 9; Wolfson at ¶ 15; State v. Wright, 4th

Dist. Highland No. 94CA853, 1995 WL 368319 (June 19, 1995).

      {¶12} In support of Appellant’s arguments that he was denied an

opportunity to be heard and full consideration of his motion, he argues:

      (1) his motion was filed pre-sentence;

      (2) the motion set forth his mental challenges; and,

      (3) there is a substantial likelihood of a not guilty finding at trial due
          to the existence of certain defenses.

      {¶13} This court in Howard, and other appellate courts, have

identified nine factors that appellate courts should consider when reviewing

a trial court's decision regarding a presentence motion to withdraw a guilty
Meigs App. No. 18CA7                                                           8

plea: (1) whether “highly competent counsel” represented the defendant; (2)

whether the trial court afforded the defendant “a full Crim.R. 11 hearing

before entering the plea”; (3) whether the trial court held “a full hearing”

regarding the defendant's motion to withdraw; (4) “whether the trial court

gave full and fair consideration to the motion”; (5) whether the defendant

filed the motion within a reasonable time; (6) whether the defendant's

motion gave specific reasons for the withdrawal; (7) whether the defendant

understood the nature of the charges, the possible penalties, and the

consequences of his plea; (8) whether the defendant is “perhaps not guilty or

ha[s] a complete defense to the charges”; and (9) whether permitting the

defendant to withdraw his plea will prejudice the state. Id. at 24. State v.

McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st Dist. 2001), citing

State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.

1980), and State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st

Dist. 1995); e.g., State v. Jones, 10th Dist. Franklin No. 15AP-530, 2016-

Ohio-951, at ¶ 14; (internal citations omitted.).

      {¶14} “The ultimate question is whether there exists a ‘reasonable and

legitimate basis for the withdrawal of the plea.’ ” Howard, supra, quoting

State v. Delpinal, 2nd Dist. Clark Nos. 2015–CA–97 and 2015CA98, 2016

Ohio 5646, at ¶ 9, quoting Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715;
Meigs App. No. 18CA7                                                           9

accord Crawford at ¶ 12. A mere change of heart is not a legitimate and

reasonable basis for the withdrawal of a plea. Howard, supra. E.g.,

Campbell at ¶ 7; Harmon at ¶ 22.

      {¶15} After considering the above-referenced factors, our review of

the transcript indicates that Appellant had highly competent counsel; that he

had a full Crim.R. 11 hearing; that his motion was filed within a reasonable

time; that he set forth specific reasons for withdrawal; and that he had

possible defenses to the charges. Given the fact that Appellant was indicted

over a year later, we find little likelihood of prejudice to the State. However,

upon review of the transcript, we cannot say that there was a “full” hearing

on the motion, and this causes us to question whether the motion was given

full consideration.

      {¶16} Citing Wright, supra, at *5, we explained in State v. Elkins,

2016-Ohio-6579, 77 N.E.3d 360 at ¶9:

      “Without a hearing, it is not possible to determine whether a
      legitimate and reasonable basis exists for a motion to withdraw
      a guilty plea. Because a hearing is clearly required by Xie,
      supra, as the mechanism by which [the] trial court determines
      whether there is a reasonable and legitimate basis for a motion
      to withdraw a guilty plea, we hold that the denial of a hearing is
      reversible error as a matter of law.”

      {¶17} In Wolfson, we also explained that although a trial court “must

afford the defendant meaningful notice and a meaningful opportunity to be
Meigs App. No. 18CA7                                                           10

heard,” the court nonetheless retains discretion to define the scope of the

hearing so as to “ ‘reflect the substantive merits of the motion.’ ” Id. at ¶ 16,

quoting Wright at *6, and citing State v. Smith, 8th Dist. Cuyahoga No.

61464, 1992 WL 369273 (Dec. 10, 1992), *5. Additionally, a trial court

need not necessarily “schedule a separate hearing” in order to comply with

minimum due process standards. State v. Glavic, 143 Ohio App.3d 583, 589,

758 N.E.2d 728 (11th Dist.2001). Instead, as long as a trial court affords a

defendant “an opportunity at a hearing to assert to the court the reasons why

the [defendant] should be able to withdraw his plea, he has been given a ‘full

and actual hearing on the merits.’ ” State v. Maistros, 8th Dist. Cuyahoga

No. 43835, 1982 WL 5253 (Mar. 25, 1982), *3, quoting State v. Bates, 8th

Dist. Cuyahoga No. 31310 (April 28, 1972), pg. 2; accord State v. Hall, 8th

Dist. Cuyahoga No. 55289, 1989 WL 42253 (Apr. 27, 1989), *2. “We

further point out that a trial court need not conduct a full evidentiary hearing

if the defendant fails to ‘make a prima facie showing of merit * * *.’ ”

Elkins, supra, at ¶ 11.

      {¶18} In Elkins, we observed that the trial court did not conduct any

inquiry into appellant's oral, presentence request to withdraw his guilty plea.

Instead, the court stated that appellant should file a written motion to

withdraw his guilty plea and then proceeded to sentence appellant without
Meigs App. No. 18CA7                                                        11

conducting any inquiry into the reasons appellant wished to withdraw his

plea. We therefore found the court's failure to conduct any inquiry into

appellant's request to withdraw his guilty plea did not comply with the

minimum due process standards.

      {¶19} In Appellant’s case, the trial court had the opportunity to have

reviewed Appellant’s previously filed motion to withdraw for several days

beforehand. When Appellant’s counsel broached the matter of the motion to

withdraw at sentencing, it was addressed in summary fashion as follows:

      Attorney Knight:          Uh, Your Honor, we do have a pending
                                motion.

      The Court:                Well we’re going to deny that motion.

      Attorney Knight:          We would ask for a hearing on the
                                motion or at least a submission of the
                                transcript which was attached to make
                                it part of the record.

      The Court:                Sure, absolutely. Absolutely. Uh, as to
                                the sentencing?
      ***

      {¶20} The above exchange reflects the extent of Appellant’s

opportunity to be heard on his motion to withdraw. It is true that Appellant

may simply have had a change of heart when he discovered he was receiving

an actual prison sentence. Had the trial court inquired even briefly, the

record might support such a finding. The trial court was certainly within its
Meigs App. No. 18CA7                                                          12

discretion to conduct the motion hearing and sentencing hearing at the same

time.

        {¶21} Arguably the court had time to review the written motion and to

give it full and fair consideration prior to the sentencing hearing. However,

given the summary nature of the brief discussion of the motion to withdraw,

the record does not support a finding that Appellant was given a real

opportunity to be heard on his motion to withdraw his pleas and to present

any evidence in the matter.

        {¶22} For the foregoing reasons, we find the trial court abused its

discretion by failing to hold a mandatory hearing on Appellant’s motion to

withdraw his guilty pleas. As such, we sustain Appellant’s first assignment

of error and the second assignment of error is hereby rendered moot.

Accordingly, we reverse the trial court's judgment and remand this matter

with instructions to conduct a hearing that complies with due process

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

                                        JUDGMENT REVERSED AND
                                        CAUSE REMANDED FOR
                                        PROCEEDINGS CONSISTENT
                                        WITH THIS OPINION.
Meigs App. No. 18CA7                                                           13

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. Costs be assessed to Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland

NOTICE TO COUNSEL:             Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.
