[Cite as State v. Harris, 2011-Ohio-6159.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96335




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    JOSEPH L. HARRIS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-540159

        BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: December 1, 2011
ATTORNEY FOR APPELLANT

Kelly A. Gallagher
P.O. Box 306
Avon Lake, OH 44012


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

       Defendant-appellant, Joseph Harris (“Harris”), appeals the trial court’s decision

denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm.

       In 2010, Harris was charged with one count each of kidnapping, having weapons

while under disability, vandalism, and domestic violence with a prior conviction

specification. All counts contained a forfeiture specification of the firearm. Further, the

kidnapping and domestic violence counts also contained one- and three-year firearm

specifications.
       Harris subsequently entered into a negotiated plea agreement where he pled guilty

to the domestic violence charge, including the one-year firearm specification, having

weapons while under disability, and the forfeiture specification. All other charges were

dismissed. Prior to sentencing, Harris filed a pro se motion to withdraw his guilty plea,

asserting that he was under “duress and stress” when he entered his plea. He attached an

affidavit, allegedly by the victim in the case, which averred that she had made false

allegations against Harris and he was not guilty.

       After conducting a hearing on Harris’s motion, the trial judge denied the motion

and sentenced Harris to an aggregate prison term of four years. Harris appeals, raising as

his sole assignment of error that the trial court erred in denying his motion to withdraw

his guilty plea.

       “Crim.R. 32.1 provides that a defendant may move to withdraw his guilty plea

prior to sentencing. A defendant who so moves, however, does not have an absolute right

to have his guilty plea withdrawn. The trial court must conduct a hearing to determine

whether there is a reasonable and legitimate basis for withdrawal of the plea. State v. Xie

(1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. The decision to grant or deny the motion

is within the trial court’s discretion and will not be disturbed absent a finding of an abuse

of discretion. Id.” State v. Hurst, Cuyahoga App. No. 89297, 2007-Ohio-6326, ¶4. 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, ¶9.
       In State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, this court set

forth the standard for determining whether the trial court has abused its discretion in

denying a presentence motion to withdraw a plea:

       “A trial court does not abuse its discretion in overruling a motion to withdraw:

(1) where the accused is represented by highly competent counsel, (2) where the accused

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

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

hearing on the motion, and (4) where the record reveals that the court gave full and fair

consideration to the plea withdrawal request.” Id. at paragraph three of the syllabus.

       In State v. Montgomery, Cuyahoga App. No. 87246, 2006-Ohio-3850, this court

added an additional factor for courts to apply when considering a defendant’s motion to

withdraw his guilty plea. “In a case in which the record reflects the defendant made his

decision to enter a guilty plea at the time his case had been called for trial, with the parties

fully prepared to go forward, the jury about to be chosen, and the witnesses present, the

trial court certainly acts within its discretion to include this circumstance in the

subsequent consideration of the genuineness of the defendant’s motion to withdraw his

guilty plea.” Id. at ¶16.

       In this case, we find that the trial court did not abuse its discretion in denying

Harris’s motion to withdraw his guilty plea. The record before us shows that Harris was

represented by highly competent counsel and was afforded a full hearing pursuant to

Crim.R. 11 before he entered the plea. Harris’s counsel negotiated a plea agreement that
substantially reduced Harris’s possible prison term and discussed with the trial court prior

to the plea a bond reduction and the possibility of a minimum sentence. Moreover,

during the Crim.R. 11 colloquy, Harris affirmatively stated that he was satisfied with his

attorney’s representation. The trial court also conducted a full and complete Crim.R. 11

hearing, thoroughly explaining the nature of proceedings, Harris’s constitutional rights,

the plea offer, and the consequences of a guilty plea.

       Furthermore, we find that Harris was given a complete and impartial hearing on

his motion to withdraw his plea, and the record reveals that the court gave full and fair

consideration of his plea withdrawal request. The trial court rescheduled Harris’s initial

sentencing hearing to properly conduct a hearing on his motion to withdraw his plea.

Moreover, the record before us, including the transcript of the hearing on Harris’s motion,

reveals that the trial court gave the motion full and fair consideration.

       We also find that Harris’s blanket assertion that he entered into the guilty plea

while under “stress and duress” is insufficient to demonstrate that his plea was not made

knowingly, intelligently, and voluntarily. Harris was not under the stress of his case

being called for trial because his trial date was scheduled for the following week.

Although Harris’s counsel indicated that he would withdraw as counsel if Harris wanted

to proceed with trial, the trial court advised Harris that the trial would be continued and

that new counsel would have to be retained or appointed. At no time did the trial court

indicate that Harris would have to proceed pro se or that court would be biased towards

him in any way.
       Moreover, the trial court did not abuse its discretion in finding the affidavit

attached to Harris’s motion speculative in light of the information provided by the State in

its brief in opposition. We find that Harris’s motion to withdraw his plea was merely a

change of heart and, thus, an insufficient basis to grant his motion.

       Accordingly, the trial court did not abuse its discretion in denying Harris’s motion

to withdraw his plea. The assignment of error is overruled.

       Judgment 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 issue out of this court directing the common

pleas court to carry this 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.



KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
