[Cite as State v. Euler, 2019-Ohio-235.]




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


State of Ohio                                   Court of Appeals No. WD-17-058

        Appellee                                Trial Court No. 2016CR0438

v.

Gregory L. Euler                                DECISION AND JUDGMENT

        Appellant                               Decided: January 25, 2019

                                           *****

        Paul A. Dobson, Wood County Prosecuting Attorney,
        David T. Harold and Jim Hoppenjans, Assistant Prosecuting
        Attorneys, for appellee.

        Adam H. Houser, for appellant.

                                           *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Gregory L. Euler, appeals the August 21, 2017

judgment of the Wood County Court of Common Pleas, entered after the trial court

denied his motion to withdraw his guilty plea. For the following reasons, we affirm the

trial court judgment.
                                     I. Background

      {¶ 2} On October 6, 2016, Gregory Euler was indicted on one count of domestic

violence, a violation of R.C. 2919.25(A) and (D)(4), a third-degree felony. The case was

scheduled for jury trial beginning on April 24, 2017. On April 21, 2017, the state offered

Euler a plea agreement under which it would reduce the charge to a fourth-degree felony

and recommend community control at sentencing. Euler accepted the plea agreement and

the trial court accepted his plea on April 24, 2017. The court found Euler guilty and

continued the matter for sentencing on June 16, 2017.

      {¶ 3} After entering his plea, Euler told his attorney that he had felt coerced into

accepting the plea agreement. Defense counsel filed a motion to withdraw the plea on

May 19, 2017. The court set the motion for a June 9, 2017 hearing, at which time it

heard argument from counsel. On June 20, 2017, the trial court entered a detailed

judgment denying Euler’s motion. Following the denial of the motion, the case

proceeded to sentencing on August 18, 2017. The trial court imposed a prison term of 17

months and a term of postrelease control of up to three years. Euler appealed and assigns

two errors for our review:

             First Assignment of Error: The Trial Court Erred By Not Allowing

      Appellant to Withdraw His Guilty Plea.

             Second Assignment of Error: The Trial Court Erred When it [sic]

      Sentenced Appellant to a prison [sic] Sentence.




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                                  II. Law and Argument

       {¶ 4} In his first assignment of error, Euler challenges the denial of his motion to

withdraw his guilty plea. In his second assignment of error, he challenges his 17-month

prison sentence. We consider each of these assignments in turn.

                         A. Withdrawal of Euler’s Guilty Plea

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

motion to withdraw his guilty plea. He argues that his request was timely submitted,

there was great potential for an acquittal, and the state would not have been prejudiced if

he had been permitted to withdraw his plea.

       {¶ 6} Under Crim.R. 32.1, “[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.” The Ohio Supreme Court has recognized that a presentence

motion to withdraw a guilty plea should be freely and liberally granted. State v. Xie, 62

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992), citing State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). Nevertheless, a defendant does not have an absolute right to

withdraw a plea prior to sentencing. Id. Withdrawal of a plea will not be permitted

merely because a defendant has experienced a change of heart. State v. Posey, 6th Dist.

Ottawa No. OT-12-028, 2014-Ohio-1994, ¶ 9.

       {¶ 7} Upon the filing of a motion to withdraw a plea, the trial court must conduct a

hearing and exercise its discretion in determining whether there is a reasonable and




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legitimate basis for withdrawal of the plea. Xie at paragraphs one and two of the

syllabus. We review the trial court’s decision for an abuse of that discretion. Id. at 527.

In doing so, we evaluate a number of factors (the “Fish factors”), including:

                     (1) whether the state would 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 timing of the motion

              was reasonable; (7) the 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 crime.

State v. Richey, 6th Dist. Sandusky No. S-09-028, 2011-Ohio-280, ¶ 42, citing State v.

Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995), overruled in part on

other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056, ¶ 15 (1st Dist.).

       {¶ 8} The trial court conducted a hearing on Euler’s motion on June 9, 2017. At

that hearing, defense counsel told the court that Euler felt pressured to accept the plea

agreement because the state gave him only two hours to decide whether to accept or

reject it. While defense counsel acknowledged that the plea offer had been extended to

him on Friday, April 21, 2017, and the plea hearing was three days later, on Monday,

April 24, 2017, he explained that Euler had only two hours to confer with counsel and




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had no contact with his attorney over the weekend. Counsel also told the court that he

had received a letter from the victim stating that Euler “did not threaten her or lay his

hands on her,” thus there was potential for Euler to prevail at trial. He emphasized that

Euler’s motion was timely filed. And he maintained that the state would not be

prejudiced if Euler were permitted to withdraw his plea because the victim was just as

readily available—or unavailable—as she was on the day the case was set for trial.

       {¶ 9} In response to questioning from the court, Euler’s counsel stated that he had

been practicing law for 30 years and had defended other clients on felony charges,

including felony domestic-violence charges. Defense counsel also conceded to the court

that he had advised Euler on the day of the plea hearing that it was his decision whether

to go forward with accepting the plea, and he agreed that Euler had not been “promised

anything special for the plea,” he had not been threatened, and it was his personal

decision to accept the plea.

       {¶ 10} The state responded that while Euler may have had only two hours to

decide whether to accept or reject the plea, he still could have declined to go forward

with it when they appeared in court on April 24, 2017. It argued that it would be

prejudiced if Euler was permitted to withdraw his plea because the victim’s whereabouts

were unknown. It explained that the victim had an active warrant for her arrest, and was,

therefore, not cooperating with the state. While it acknowledged that the victim had

submitted a letter to defense counsel expressing that she did not wish to go forward with

the case and recanting the accusations of abuse she had made against Euler, defense




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counsel had this letter months before the plea hearing. The state insisted that Euler was

merely experiencing a change of heart and there existed no other basis justifying a

withdrawal of his plea.

       {¶ 11} The court took the matter under advisement. On June 20, 2017, it issued a

lengthy written decision, examining each of the Fish factors at length and concluding that

the factors weighed against allowing Euler to withdraw his plea.

       {¶ 12} The parties’ arguments on appeal are similar to what they argued in the trial

court. Euler insists that with respect to the victim’s attendance at trial, the state was in

the same position on April 24, 2017, as it was on the date the court heard his motion to

withdraw the plea; therefore, he argues, there was no prejudice to the state. He

emphasizes that his motion was filed well in advance of the sentencing hearing. And he

contends that if the victim had appeared for trial, her letter strongly suggests that the state

would have been unable to prove its case beyond a reasonable doubt. Euler also contends

that there is nothing in the record indicating that he had the option of declining to enter

the plea on April 24, 2017, and points out that the court did not inquire personally of him

at the motion hearing to ask him whether he understood that he could have changed his

mind after the two-hour window.

       {¶ 13} The state maintains that it would have suffered prejudice if Euler were

permitted to withdraw his plea because it would have to rebuild its case and “reconvince”

the victim to testify. It insists that even if the victim had not testified, responding officers

observed strangle marks, bruising, and rug burns on the victim, suggestive of domestic




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violence, thus we should reject Euler’s claim that he had a defense to the charge. And the

state disputes Euler’s contention that he had only two hours to accept the plea because he

actually had the whole weekend to decide whether to go forward. Again, the state

characterizes Euler’s request to withdraw his plea as a mere change of heart.

       {¶ 14} We examine the trial court’s resolution of each of the Fish factors.

       {¶ 15} Whether the state will be prejudiced by withdrawal of the plea. The trial

court found that the victim has a warrant for her arrest and is unlikely to appear to testify.

It observed that many victims of domestic violence find themselves in this situation and,

as a result, are hesitant to cooperate with law enforcement and prosecutors. The court

was persuaded that this factor weighs against Euler.

       {¶ 16} We disagree with the trial court’s resolution of this factor. While the court

validly observed the difficulty the state can face when a victim has an outstanding arrest

warrant, thereby interfering with her willingness to cooperate with law enforcement, this

has no bearing on whether the state would be prejudiced by withdrawal of Euler’s plea.

The record here indicates that the withdrawal of Euler’s plea would render the state’s

position no better or worse than it was on the day Euler entered his plea. We, therefore,

conclude that there would have been no prejudice to the state if Euler had been permitted

to withdraw his guilty plea.

       {¶ 17} The representation afforded to the defendant by counsel. The trial court

found that Euler had been represented by highly-competent counsel with more than 30

years of experience. It noted that counsel had secured a favorable plea agreement,




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reducing the level of offense to one for which prison time was not presumed, and that

Euler had expressed during the plea colloquy that he was satisfied with the advice and

counsel of his attorney. We agree with the trial court’s resolution of this factor.

       {¶ 18} The extent of the Crim.R. 11 plea hearing. The trial court found that Euler

was afforded a comprehensive Crim.R. 11 plea hearing at which he was fully informed of

his rights and the implication of his plea. The court determined that it had strictly

complied in informing Euler of his constitutional rights and “did more than substantially

comply” in informing him of his non-constitutional rights. We agree with the trial

court’s resolution of this factor.

       {¶ 19} The extent of the hearing on the motion to withdraw. The trial court found

that Euler had been afforded a full hearing to address his motion and that his counsel

presented arguments on his behalf. We agree with the trial court’s resolution of this

factor. While Euler did not testify, we note, first, that he never requested to testify, and,

second, that the substantive merits of his motion were fully addressed at the June 9, 2017

hearing. See State v. Cherry, 6th Dist. Erie No. E-10-045, 2013-Ohio-2596, ¶ 22

(affirming trial court’s denial of motion to withdraw plea even though defendant had not

been permitted to testify at motion hearing).

       {¶ 20} Whether the trial court gave full and fair consideration to the motion. The

court deemed that it had given full and fair consideration to Euler’s motion as evidenced

by the fact that it had taken the matter under advisement and considered the arguments of

counsel in preparing its judgment entry. It also indicated that it had been guided by this




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court’s recent case law, including our decisions in State v. Acosta, 6th Dist. Wood No.

WD-15-066, 2016-Ohio-5698, and State v. Williams, 6th Dist. Lucas No. L-15-1259,

1260, 2016-Ohio-4905, where we held that the trial court correctly denied the defendants’

motions to withdraw their pleas. We agree with the trial court’s resolution of this factor.

       {¶ 21} Whether the timing of the motion was reasonable. The court concluded

that Euler’s motion had been made within a reasonable time and stated that this was the

only factor weighing in favor of allowing Euler to withdraw his plea. We agree with the

trial court’s determination that Euler timely filed his motion to withdraw his guilty plea.

       {¶ 22} The reasons for the motion and whether the defendant understood the

nature of the charges and potential sentences. The court concluded that Euler had ample

opportunity to consider whether to enter the plea. It found that even though Euler had

been given only two hours to decide whether to accept the plea, he had the entire

weekend to more adequately consider the plea and its implications. It also found that

Euler had met with his attorney to discuss the offer, he communicated his willingness to

accept the plea, and he demonstrated during the plea colloquy that he understood the

rights he was waiving, the level of the offense, and the possible penalties. We agree with

the trial court’s resolution of this factor.

       {¶ 23} Whether the accused was perhaps not guilty or had a complete defense to

the charge. The trial court acknowledged the letter that Euler had received from the

victim indicating that she did not wish to go forward, but it observed that the letter had

been in Euler’s possession “almost the entire pendency of the case,” and that he had




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entered a plea “in spite of the letter.” The court also indicated that while the victim may

have stated that she did not wish to go forward, this did not mean that Euler had a defense

to the charge. We agree with the trial court’s resolution of this factor, and we note that

the officers responding to this incident observed physical injuries consistent with abuse

and could offer testimony as to their observations. So while Euler may have had a

defense to the charge, we cannot say that the victim’s recantation constituted a complete

defense or prevented the state from going forward.

       {¶ 24} Having reviewed the April 24 and June 9, 2017 transcripts and the trial

court’s detailed judgment entry, we find that on the whole, the Fish factors weigh in

favor of denying Euler’s motion to withdraw his guilty plea. Euler’s arguments in

support of his motion evidence a mere change of heart rather than a reasonable and

legitimate basis for withdrawing the plea. We conclude that the trial court did not abuse

its discretion in denying Euler’s motion.

       {¶ 25} Accordingly, we find Euler’s first assignment of error not well-taken.

                              B. Imposition of Prison Term

       {¶ 26} Euler next challenges his 17-month prison sentence. He claims that the

trial court failed to properly follow the sentencing criteria under R.C. 2929.11 and

2929.12 in deciding upon his sentence. He argues that the sentence was not supported by

the record because (1) the facts of the case showed that the victim was not a member of

Euler’s household, she went to Euler’s home, and Euler was the one who called the

police; (2) the court acknowledged at the hearing on Euler’s motion to withdraw his plea




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that the level of the offense was one where imprisonment was not presumed; (3) the state

recommended community control; (4) Euler was working full-time and was recently

married; and (5) he was remorseful.

       {¶ 27} The state responds that the trial court “complied with all statutory

requirements and amply supported the imposition of a prison term with facts that remain

unchallenged by Appellant.” The state also complains that Euler continues to blame the

victim, and it argues that the trial court’s denial of his motion to withdraw his plea does

not undermine the sentence imposed. It maintains that Euler has proffered no challenge

to any specific finding of the court.

       {¶ 28} An appellate court will not modify or vacate a sentence unless it finds by

clear and convincing evidence that the sentence is contrary to law or that the record does

not support any relevant findings under “division (B) or (D) of section 2929.13, division

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22;

R.C. 2953.08(G)(2). “Clear and convincing evidence is that measure or degree of proof

which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such

certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established.” Marcum at ¶ 22, citing Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus.




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       {¶ 29} Euler does not challenge any findings under R.C. 2929.13(B) or (D), R.C.

2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I), nor does he allege that his sentence is

contrary to law; rather, he argues that his sentence is not consistent with the purposes and

principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed

in R.C. 2929.12. An appellate court may review a sentence imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 “under a standard that is equally

deferential to the sentencing court.” Id. at ¶ 23. In other words, it may vacate or modify

the sentence only if it finds by clear and convincing evidence that it is not supported by

the record. Id.

       {¶ 30} Under R.C. 2929.11(A), the purposes of felony sentencing are “to protect

the public from future crime by the offender and others, to punish the offender, and to

promote the effective rehabilitation of the offender using the minimum sanctions that the

court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” To achieve those purposes, the sentencing court

must consider “the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.” R.C. 2929.11(A). The sentence imposed shall be

reasonably calculated to achieve the overriding purposes, “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).




12.
       {¶ 31} R.C. 2929.12 grants discretion to the trial court to determine the most

effective way to comply with the purpose and principles of sentencing, and it lists general

factors that the trial court must consider relating to the seriousness of the offender’s

conduct, the likelihood of recidivism, and, if applicable, the offender’s service in the U.S.

armed forces and whether the offender has an emotional, mental, or physical condition

traceable to that service that contributed to the commission of the offenses. R.C.

2929.12(A) also permits the court to “consider any other factors that are relevant to

achieving those purposes and principles of sentencing.”

       {¶ 32} Here, the trial court found that a prison term was consistent with the

purposes and principles of sentencing, and it found that a prison term was warranted due

to the following circumstances:

              -The offender caused physical harm to a person.

              -The offender attempted to cause or made an actual threat of

       physical harm to a person, and the offender previously was convicted of an

       offense that caused physical harm to a person.

              -The offender at the time of the offense was serving, or the offender

       previously served, a prison term.

              -The victim of the offense suffered serious physical, psychological

       or economic harm as a result of the offense.

              -The offender’s relationship with the victim facilitated the offense.




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              -The offender was previously adjudicated a delinquent child * * * or

       the offender has a history of criminal convictions.

              -The offender has not been rehabilitated to a satisfactory degree after

       previously being adjudicated a delinquent child * * * or the offender has

       not responded favorably to sanctions previously imposed for criminal

       convictions.

              -The offender has established a pattern of drug or alcohol abuse that

       is related to the offense, and the offender refuses to acknowledge that the

       offender has demonstrated that pattern, or the offender refuses treatment for

       the drug or alcohol abuse.

              -The offender shows no genuine remorse for the offense.

       {¶ 33} We find no clear and convincing evidence that Euler’s sentence was not

supported by the record. Furthermore, at the time the trial court accepted Euler’s plea, it

advised him that it was not required to accept the state’s sentencing recommendation.

State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6

(finding that a trial court does not err by imposing a sentence greater than that which

induced the defendant to plead guilty where the trial court has forewarned the defendant

of the applicable penalties, including the possibility of imposing a greater sentence than

that recommended by the state.). Finally, while the trial court observed in its June 20,

2017 judgment that defense counsel had successfully negotiated Euler’s originally-

charged third-degree felony to the reduced fourth-degree felony for which imprisonment




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is not presumed, this did not bind the court to impose community control in lieu of

prison.

          {¶ 34} Accordingly, we find Euler’s second assignment of error not well-taken.

                                       III. Conclusion

          {¶ 35} We find Euler’s two assignments of error not well-taken. As to his

challenge to the trial court’s denial of his motion to withdraw his guilty plea, the trial

court thoroughly considered the Fish factors. While we disagree with the trial court’s

resolution of one of those factors, we find no abuse of discretion in the court’s overall

conclusion denying Euler’s motion to withdraw his plea.

          {¶ 36} As to Euler’s challenge to his 17-month prison sentence, Euler makes no

argument that his sentence is contrary to law, he makes no claim that the court made any

incorrect findings under R.C. 2929.13(B) or (D), R.C. 2929.14 (B)(2)(e) or (C)(4), or

R.C. 2929.20(I), and there is no clear and convincing evidence that the sentence was not

supported by the record.

          {¶ 37} We affirm the August 21, 2017 judgment of the Wood County Court of

Common Pleas. The costs of this appeal are assessed to Euler under App.R. 24.


                                                                          Judgment affirmed.




15.
                                                               State v. Euler
                                                               C.A. No. WD-17-058




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




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.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/.




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