[Cite as State v. Prince, 2012-Ohio-4111.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-12-07

        v.

JAMES J. PRINCE,                                          O P I N IO N

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2011-CR-144

                                      Judgment Affirmed

                          Date of Decision: September 10, 2012




APPEARANCES:

        Terrence K. Scott for Appellant

        Edwin Pierce and R. Andrew Augsburger for Appellee
Case No. 2-12-07


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, James Prince (“Prince”), appeals the judgment

entry of the Auglaize County Court of Common Pleas, sentencing him to prison

for four years after he pled guilty to possession of heroin and illegal conveyance of

drugs into a correction facility. On appeal, Prince contends that the trial court

abused its discretion when it denied his presentence motion to withdraw his guilty

plea. For the reasons set forth below, the judgment is affirmed.

       {¶2} On October 4, 2011, the Ohio State Highway Patrol responded to a

report that individuals were using drugs inside a vehicle parked at a rest area along

I-75 in Auglaize County. Upon searching the vehicle, the officers located heroin,

a syringe, and a cup of water that had been used to clean the syringe. Prince

admitted that these items belonged to him. Prince was placed under arrest and

taken to the Auglaize County Correctional Center.

       {¶3} On October 6, 2011, the Auglaize County Grand Jury indicted Prince

on one count of possession of heroin in violation of R.C. 2925.11(A)(C)(6)(a), a

felony of the fifth degree, and one count of possession of drug abuse instruments

in violation of R.C. 2925.12(A), a misdemeanor of the second degree. On the

same date, Prince’s cell at the correctional center was searched based on

information provided by other inmates that Prince had drugs in his cell. During

this search, officers located a baggie containing heroin.


                                         -2-
Case No. 2-12-07


       {¶4} Counsel was appointed for Prince, and on October 12, 2011, he

entered not guilty pleas to the two counts in the indictment. Prince himself filed

several hand-written motions with the trial court while he was incarcerated. These

motions were denied and Prince was instructed that all motions should be filed by

counsel as the court did not allow “hybrid representation,” i.e., Prince representing

himself in addition to an attorney. (10/19/11 J.E.)

       {¶5} The final pre-trial hearing was set for November 23, 2011, with a jury

trial scheduled for December 12, 2011. (10/28/11 J.E.) Prince’s counsel filed a

motion to suppress and a hearing on that motion was set for that on November 28,

2011. On the date set for the pre-trial, the State filed a Bill of Information

pursuant to Crim.R. 7, charging Prince with one count of illegal conveyance of

drugs into a correction facility in violation of R.C. 2921.36(A)(2), a felony of the

third degree, pertaining to the drugs found in his jail cell.

       {¶6} On November 23, 2011, instead of a pre-trial hearing, the trial court

was informed that Prince had accepted a plea agreement and wished to change his

plea. Pursuant to the terms of that agreement, Prince would plead guilty to Count

I in the indictment, the fifth degree felony, with a maximum sentence of twelve

months in prison, and the State would enter a nolle prosequi as to Count II, the

misdemeanor. Prince also would waive prosecution by Indictment and agree to be

prosecuted by the Information for the charge of illegal conveyance of drugs,


                                          -3-
Case No. 2-12-07


which, “pursuant to the statute, there’s a thirty-six months maximum prison term

for that offense * * *.” (11/23/11 Change of Plea Hrg. Tr. 4) Prince would also

agree to withdraw his motion to suppress. (Id.) The agreement was reduced to

writing and signed by the prosecutor, Prince, and his attorney. (Id.)

       {¶7} The trial court conducted a full and detailed Crim.R. 11 plea colloquy

before accepting Prince’s pleas and finding him guilty. The trial court questioned

Prince in detail to determine whether he understood everything that he was

agreeing to, whether he could read and write, if he was satisfied that he knew what

the charges were about, whether he was under the influence of drugs, alcohol,

medication, or in withdrawal, whether he was in any pain that prevented him from

thinking clearly, whether he knew what he was doing, and whether he was

changing his plea and waiving indictment freely and voluntarily of his own free

will. (Id. 6-12)

       {¶8} The trial court further asked Prince, “Do you want me to read and

explain to you any further the Bill of Information, the law, and the penalties?” (Id.

8)   Prince answered, “No, Your Honor.”          At this point, Prince’s attorney

interjected and informed the trial court on the record that he had recommended

that Prince wait at least an additional five days, until the date of the suppression

hearing, before making his final decision, in order to allow enough time to review




                                         -4-
Case No. 2-12-07


the discovery that the State had just provided, and to further discuss the Bill of

Information and the plea agreement with his client. (Id. 8-9)

        {¶9} However, Prince indicated that he was satisfied that he knew what the

charges were about and satisfied that he wanted to go forward. (Id. 9)

        THE COURT:         You do understand you’ve got additional time if
        you want more time to think about it?

        PRINCE:              Yes, Your Honor.

        THE COURT:           You want to go forward today and do this?

        PRINCE:              Yes, Your Honor.

        THE COURT:          And you are doing that freely and voluntarily of
        your own free will?

        PRINCE:              Yes, Your Honor.

(Id.)   The trial court also questioned Prince about his willingness to waive

indictment and be prosecuted by the Bill of Information, and further explained the

potential penalties involved. (Id. 11-14)

        {¶10} Prince then entered pleas of guilty to the two counts specified in the

plea agreement. (Id. 15) Before the trial court would accept the pleas, it explained

in detail all of the rights that Prince was giving up by entering his pleas rather than

going to trial. Prince acknowledged that he understood and agreed to waive each

and every right read to him by the trial court. The trial court then accepted




                                         -5-
Case No. 2-12-07


Prince’s guilty pleas. It ordered a presentence investigation report and continued

the matter for sentencing.

         {¶11} On December 8, 2011, prior to sentencing, Prince filed a pro se

motion seeking to withdraw his guilty plea pursuant to Crim.R. 32.1, claiming that

he was not in his right state of mind when he entered his plea, claiming he was

psychologically disabled and did not understand the matters in the plea agreement.

(12/8/11 Motion, #55). He also claims he was denied effective counsel because

neither his attorney, nor the trial court, nor the jail personnel had done anything to

obtain medications for him. (Id.)1

         {¶12} On December 16, 2011, the trial court held a hearing on Prince’s

motion to withdraw his plea and on the other matters he had raised. First, the trial

court informed Prince that it had no medical training or authority, but that it had

made sure that the jail administration was aware of his medical complaints. Prince

had written multiple letters to the trial court and jail personnel claiming that he

was bi-polar and suffered from manic depression, and that he was not receiving

any medication for these conditions in jail. The trial court reviewed Prince’s

medical communications (Exhibits A and C) and noted that the nurse had

responded that the doctor could not prescribe medication for his claimed bi-polar


1
 Prince’s attorney also filed a “Motion in Support of Defendant’s Ex Parte Request to Withdraw Plea” on
December 9, 2011. (12/9/11 Mtn. #56) On December 12, 2011, another copy of Prince’s Motion to
Withdraw his Plea, dated December 4, 2011, was filed with the notation that it had been found after the fact
and had inadvertently not been docketed.” (12/12/11 Mtn. #57)

                                                    -6-
Case No. 2-12-07


condition when they “have no medical confirmation.” The communications from

the registered nurse stated that “I have asked for additional information in regards

to your mental health condition and, to date, have received no additional

documentation.” (Ex. A, “kite” dated 10/24/11) In another communication, the

nurse noted that “the doctor has reviewed all the medical information and we are

not placing you on any medication.”            (Ex. A, “kite” dated 11/3/11) The

information the jail’s medical personnel had received from one of the contacts

provided by Prince did not indicate that he had been on any long-term medication

program. (Ex. A, Memo dated 10/24/11; 12/16/11 Hrg. Tr. 11-12)

       {¶13} The trial court then addressed Prince’s request to obtain new counsel.

After hearing the testimony of the parties, the trial court did not find any merit to

Prince’s claims that counsel’s representation was deficient and denied the motion

to disqualify counsel. (12/16/11 Hrg. Tr. 19)

       {¶14} And finally, the trial court heard Prince’s testimony concerning his

reasons for wanting to withdraw his pleas. (Id. at 20-39) Prince claimed that he

was not in his right mind when he made the pleas, due to lack of medication for

his bi-polar, manic depression, and anxiety conditions. He also claimed that he

had believed that the maximum penalty for the third degree felony was five years,

and that he was gaining a benefit by pleading guilty and getting a three year

sentence. (Id. at 37-39) He had since learned that the law had recently been


                                         -7-
Case No. 2-12-07


changed, as a result of H.B. 86, and the maximum penalty had been reduced to

three years. Therefore, he felt he was not gaining any benefit from the plea deal.

(Id. at 39; 43)

         {¶15} The State opposed allowing the withdrawal of his guilty pleas

claiming that Prince’s multiple pro se motions and communications with the trial

court and jail personnel exhibited that he was of clear mind and fully understood

the law and his rights. (Id. at 39) The State further pointed out that Prince had

been correctly informed of the maximum penalties according to law, both at the

change of plea hearing and on the plea agreement forms. The State represented

that Prince’s desire to change his plea “seems to be more of akin to buyer’s

remorse than one of true confusion as to what happened at the plea change.” (Id.

at 40)

         {¶16} The trial court took the matter under advisement and on January 9,

2012, denied Prince’s motion to withdraw his plea. The trial court found that the

“Defendant’s basis amounts to his having changed his mind. He was fully advised

in accordance with the Criminal Rules, the statutes, and his rights, he knowingly

and voluntarily waived prosecution by indictment, [and] entered his plea freely

and voluntarily * * *. (1/9/12 J.E., #61)

         {¶17} The sentencing hearing was held on January 13, 2012. Noting that

the PSI indicated that Prince had a lengthy criminal history, the trial court


                                        -8-
Case No. 2-12-07


sentenced Prince to maximum, consecutive sentences.         He was sentenced to

twelve months in prison for possession of heroin and thirty-six months in prison

for the illegal conveyance of drugs, for a total of forty-eight months in prison.

(1/13/12 J.E. Orders on Sentence)

      {¶18} It is from this judgment that Perkins now appeals, raising the

following assignment of error for our review.

                              Assignment of Error

      The trial court abused its discretion when it denied Mr. Prince’s
      December 8, 2011 motion to withdraw his guilty plea.

      {¶19} Prince claims that the trial court abused its discretion by denying his

presentence motion to withdraw his guilty plea because a presentence motion to

withdraw a guilty plea should be liberally and freely granted. Prince contends that

he demonstrated a reasonable and legitimate basis for the withdrawal, asserting

that he was not of clear mind when he made the plea because he did not have his

medication. He also claims that he did not understand at the time he entered his

plea that the maximum sentence for an F-3 was 36 months.

      {¶20} Crim.R. 32.1 states that: “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.” Although the rule does not

articulate a standard to be used when considering a presentence motion, it has long

                                        -9-
Case No. 2-12-07


been held that a presentence motion to withdraw a guilty plea “should be freely

and liberally granted.” State v. Xie, 62 Ohio St.3d 521 (1992). However, this does

not mean that a motion to withdraw a guilty plea will be granted automatically.

State v. Drake, 73 Ohio App.3d 640, 645 (8th Dist.1991). “A defendant does not

have an absolute right to withdraw a guilty plea prior to sentencing. A trial court

must conduct a hearing to determine whether there is a reasonable and legitimate

basis for withdrawal of the plea.” State v. Xie, at paragraph one of the syllabus.

       {¶21} It is within the sound discretion of the trial court to determine

whether there is a legitimate and reasonable basis for withdrawal of a guilty plea

and, absent an abuse of discretion, the trial court's decision on the matter must be

affirmed. Id. at 527. The term abuse of discretion implies that the court's attitude

is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151,

157 (1980). It involves views or actions “that no conscientious judge, acting

intelligently, could honestly have taken.” (Internal citations omitted.) State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 129-130.

       {¶22} Appellate courts often consider the following factors when reviewing

a trial court's decision concerning a presentence motion to withdraw a guilty plea:

1) whether the State will 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


                                        -10-
Case No. 2-12-07


gave full and fair consideration to the motion; 6) whether the 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 charge. State v.

Fish, 104 Ohio App.3d 236, 240 (1st.Dist.1995); State v. Leffler, 3d Dist. No. 6-

07-22, 2008-Ohio-3057, ¶ 11.       A trial court does not abuse its discretion in

overruling a motion to withdraw a guilty plea where the accused is represented by

highly competent counsel; where the accused was afforded a full hearing pursuant

to Crim.R. 11 before he entered the plea; when, after the motion to withdraw is

filed, the accused is given a complete and impartial hearing on the motion; and

where the record reveals the court gave full and fair consideration to the plea

withdrawal request. State v. Staton, 3d Dist No. 4-11-06, 2011-Ohio-4889, ¶ 4,

quoting State v. Sylvester, 2d Dist. No. 22289, 2008–Ohio–2901, ¶ 19. A change

of heart is not sufficient grounds to allow the withdrawal of the guilty plea, even in

a presentence motion to withdraw the plea. Sylvester at ¶ 4; State v. Lambros, 44

Ohio App.3d 102 (8th Dist. 1988). “A change of heart or mistaken belief about

the plea is not a reasonable basis requiring a trial court to permit the defendant to

withdraw the plea.” State v. Hoke, 4th Dist. No. 10CA32, 2011–Ohio–1221, ¶ 13.

       {¶23} The record demonstrates that Prince was afforded a full hearing,

pursuant to Crim.R. 11, before he entered his guilty plea. The transcript of the


                                        -11-
Case No. 2-12-07


plea hearing reveals that the trial court explained the aspects of the plea to him,

and that Prince was cognizant of the consequences of entering the guilty plea.

Prince was represented by competent counsel.       Although Prince chose not to

follow counsel’s recommendation that Prince delay entering his plea, the record

shows that Prince had chosen to by-pass working with counsel, make his own

decisions, and file his own motions through the entire proceedings in this case. At

the plea hearing, the trial court addressed Prince personally and reviewed the plea

agreement with Prince, addressing the nature of the charge against him, the

maximum penalty involved, the effect of a guilty plea, and Prince's constitutional

rights. After questioning Prince, the trial court determined that Prince was making

the plea voluntarily, with an understanding and waiver of his rights, an

understanding of the nature of the charge against him, and an understanding of the

consequences of his guilty plea. Based on the record, Prince was afforded a full

hearing with a thorough explanation of all aspects in making his plea, pursuant to

Crim.R. 11, before he entered his guilty plea. There was nothing in the record to

indicate that Prince was not thinking clearly or that he did not comprehend what

he was doing.

      {¶24} The record further demonstrates that Prince was given a full,

impartial hearing on his motion to withdraw his guilty plea. However, after




                                       -12-
Case No. 2-12-07


consideration of all of the evidence and testimony, the trial court concluded that

Prince had merely changed his mind.

       {¶25} In support of his position, Prince cites to a Seventh District Court of

Appeals decision in which the appellate court reversed the trial court’s denial of

the defendant’s motion to withdraw his presentence guilty plea, claiming that the

facts in that case are similar to the facts in Prince’s case. See State v. Cuthbertson,

139 Ohio App.3d 895, 2000-Ohio-2638 (7th Dist.)           However, we find that the

decision in Cuthbertson is distinguishable in several important aspects.            In

addition to the defendant admitting that he “changed his mind,” he also claimed

that he was coerced into making his plea and he claimed that he was innocent. Id.

at 899. The defendant set forth the possibility of a defense to the charge by

maintaining his claims that he was not the perpetrator of the murder. Id. The

court of appeals held that “when a defendant claims he is innocent and wishes to

withdraw his plea of guilt prior to sentencing, a comparison of the interests and

potential prejudice to the respective parties weigh heavily in the interests of the

accused.” Id. at 899-900.

       {¶26} In Prince’s case, there was no claim that he was not actually guilty of

the charges. Prince essentially acknowledged that he changed his mind about his

plea when he claimed he later discovered that he did not receive as good of a deal

as he thought he had at the time of the plea. However, the record shows that both


                                         -13-
Case No. 2-12-07


the State and the trial court meticulously explained the correct penalties that were

involved and gave Prince every opportunity to request clarification or further

information.

       {¶27} Prince also claims that he was not able to think clearly because of a

lack of proper medication for his psychological conditions. However, there was

no evidence in the record to support Prince’s claims. The medical personnel at the

jail had attempted to obtain more information concerning his claims but did not

receive any in response to their inquiries. Furthermore, Prince’s communications

with the court and jail personnel and his behavior in front of the court on several

occasions did not appear to indicate that he was suffering from any impairment.

The trial court is in the better position to evaluate both the motivation of the

defendant in pleading guilty and the credibility and weight to be given to the

reasons for seeking to withdraw the plea. State v. Kutnyak, 6th Dist. No. WD-11-

038, 2012-Ohio-3410, ¶ 5. When applying an abuse of discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

State v. Castillo, 3d Dist. No. 14-10-36, 2011-Ohio-3131, ¶ 17.

       {¶28} Based on all of the above, we do not find that the trial court abused

its discretion when it denied Prince’s motion to withdraw his guilty plea. Prince’s

assignment of error is overruled.




                                       -14-
Case No. 2-12-07


       {¶29} 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

PRESTON and ROGERS, J.J., concur.

/jlr




                                        -15-
