[Cite as State v. Sams, 2013-Ohio-2731.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                 :   JUDGES:
CITY OF MANSFIELD                              :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 12CA106
                                               :
FREDDIE A. SAMS                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Mansfield Municipal
                                                   Court, Case No. 2012CRB01351



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            June 21, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

MICHAEL J. KEMERER                                 RANDALL E. FRY
ASSISTANT LAW DIRECTOR                             10 West Newlon Place
CITY OF MANSFIELD                                  Mansfield, OH 44902
30 North Diamond St.
Mansfield, OH 44902
Richland County, Case No.12CA106                                                     2



Delaney, J.

        {¶1} Appellant Freddie A. Sams appeals from the September 19, 2012 journal

entry and sentencing order of the Mansfield Municipal Court. Appellee is the City of

Mansfield.

                         FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant was charged with one count of assault pursuant to City of

Mansfield Ordinance No. 537.03, a misdemeanor of the first degree, on March 16,

2012. The complaint states appellant did knowingly cause or attempt to cause physical

harm to Mary Boyd on February 23, 2012.

        {¶3} The record reflects that on September 6, 2012, appellant appeared before

the trial court and entered a plea of guilty to an amended charge of disorderly conduct

pursuant to City of Mansfield Ordinance 509.03(A), a misdemeanor of the fourth degree.

        {¶4} On September 17, 2012, appellant filed a motion to withdraw his guilty

plea.

        {¶5} On September 18, 2012, appellant appeared before the trial court to

address the motion to withdraw his guilty plea. Appellant’s counsel stated the woman

involved was never appellant’s girlfriend; appellant said he didn’t understand the

consequences of his plea and was trying to relocate. The trial court denied appellant’s

motion to withdraw his plea and sentenced him to a suspended jail term of 30 days, one

year of intensive supervision, and completion of the DOVE program.

        {¶6} Appellant now appeals from the September 19, 2012 judgment entry and

sentencing order of the trial court.
Richland County, Case No.12CA106                                                        3


                              ASSIGNMENT OF ERROR

       {¶7} I. “THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-

APPELLANT’S ‘MOTION TO WITHDRAW GUILTY PLEA.’”

                                       ANALYSIS

                                            I.

       {¶8} In his sole assignment of error, appellant argues the trial court should

have permitted him to withdraw his guilty plea. We disagree.

       {¶9} 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.” A defendant does not have an absolute right to withdraw a

guilty plea prior to sentencing, however; a trial court must conduct a hearing to

determine whether there is a reasonable and legitimate basis for the withdrawal of the

plea. State v. Hamilton, 5th Dist. No. CT2008-0011, 2008-Ohio-6328, ¶ 32, citing State

v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), at paragraph one of the syllabus.

       {¶10} The trial court’s decision to grant or deny a motion to withdraw a guilty

plea is vested within the sound discretion of the court, and will not be reversed by an

appellate court unless the trial court abused its discretion. State v. Xie, supra, 62 Ohio

St.3d 521 at paragraph two of the syllabus. In order to find an abuse of discretion, the

reviewing court must determine that the trial court’s decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Richland County, Case No.12CA106                                                        4


       {¶11} The good faith, credibility and weight of a defendant’s assertions in

support of a motion to withdraw guilty plea are matters to be resolved by the trial court,

which is in a better position to evaluate the motivations behind a guilty plea than is an

appellate court in reviewing a record of the hearing. State v. Xie, supra, 62 Ohio St.3d

at 525, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

       {¶12} In reviewing a trial court’s decision regarding a motion to withdraw a guilty

plea, the court in State v. Fish set forth a non-exhaustive list of factors to be weighed.

104 Ohio App.3d 236, 661 N.E.2d 788 (1995). These factors include: (1) whether the

prosecution would be prejudiced if the plea was vacated; (2) whether the accused was

represented by highly competent counsel; (3) whether the accused was given a full

Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5) whether the

trial court gave full and fair consideration to the motion; (6) whether the motion was

made within a reasonable time; (7) whether the motion set forth specific reasons for the

withdrawal; (8) whether the accused understood the nature of the charges and possible

penalties; and (9) whether the accused was possibly not guilty or had a complete

defense to the crime. Id., 104 Ohio App.3d at 240. 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. Davison, 5th Dist. No.

2008-CA-00082, 2008-Ohio-7037, ¶ 45, citing State v. Kramer, 7th Dist. No. 01-CA-107,

2002-Ohio-4176, ¶ 58.

       {¶13} The record does not reflect whether appellee would be prejudiced by

granting the motion to withdraw the guilty plea. The record does indicate, however, that

appellant waived his rights in writing when he entered the plea to the reduced charge
Richland County, Case No.12CA106                                                        5


and was represented by counsel. The trial court gave appellant the opportunity to state

his reason for asking to withdraw his plea, but appellant was unable to articulate a

reason beyond the fact that he changed his mind. Appellant stated he wanted to go to

trial, but did not indicate a defense beyond counsel’s argument that the victim was not

his girlfriend but merely an acquaintance that had been pursuing him. In light of the fact

that appellant was initially charged with assault and not domestic violence, and the

charge had been amended to disorderly conduct, this fact is of little consequence.

       {¶14} We have previously noted a trial court does not abuse its discretion in

disallowing a pre-sentence withdrawal of a guilty plea where the motion is motivated by

“a change of heart and an attempt to reduce the original sentence.” State v. Carrington,

5th Dist. No.2010CA00228, 2011–Ohio–3228, ¶ 11. In the instant case, appellant was

unable to articulate any reason to withdraw his plea beyond “[he] wasn’t thinking

clearly.” Upon review, it is evident from the record appellant's change of heart was

premised upon dissatisfaction with the trial court's sentence and its requirement that he

complete the DOVE program. The trial court therefore did not abuse its discretion in

disallowing the motion to withdraw the plea.
Richland County, Case No.12CA106                                                    6


                                    CONCLUSION

       {¶15} Having found the trial court did not err in denying appellant’s motion to

withdraw his guilty plea, appellant’s sole assignment of error is overruled and the

judgment of the Mansfield Municipal Court is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. WILLIAM B. HOFFMAN



                                        HON. CRAIG R. BALDWIN




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