[Cite as State v. Bush, 2018-Ohio-5272.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-13
                                                 :
 v.                                              :   Trial Court Case Nos. 2014-CR-12,
                                                 :   2014-CR-19, and 2014-CR-152
 ARIEL BUSH                                      :
                                                 :   (Criminal Appeal from
         Defendant-Appellant                     :   Common Pleas Court)
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 28th day of December, 2018.

                                            ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

LUCAS W. WILDER Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
    Attorney for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                       -2-




      {¶ 1} Defendant-appellant, Ariel Bush, appeals from his convictions in Case No.

2014 CR 12, Case No. 2014 CR 19 and Case No. 2014 CR 152, in each of which he

pleaded guilty to one or more felonies in lieu of a trial. Raising a single assignment of

error, Bush argues that his convictions should be overturned because the trial court

abused its discretion by overruling his motions under Crim.R. 32.1 to withdraw his pleas.

We find that the trial court did not abuse its discretion by overruling Bush’s motions to

withdraw, and therefore, his convictions are affirmed.

                           I. Facts and Procedural History

      {¶ 2} Between October 15, 2013, and March 3, 2014, the Clark County Grand Jury

issued indictments against Bush in Case Nos. 2013 CR 718, 2014 CR 12, 2014 CR 19,

2014 CR 83 and 2014 CR 152. The cases were consolidated, and Bush and the State

reached a comprehensive plea agreement whereby, on June 3, 2014, Bush pleaded guilty

to six offenses. In Case No. 2013 CR 718, Bush pleaded guilty to one count of assault,

a first degree misdemeanor pursuant to R.C. 2903.13(A) and (C)(1).1 In Case No. 2014

CR 12, Bush pleaded guilty to one count of domestic violence, a fourth degree felony

pursuant to R.C. 2919.25(A) and (D)(3); and one count of possession of cocaine, a fourth

degree felony pursuant to R.C. 2925.11(A) and (C)(4)(b).2 Additionally, Bush pleaded


1 The State amended the charge as part of its plea agreement with Bush. Originally, the
indictment in Case No. 2013 CR 718 charged Bush with one count of domestic violence.
2 The indictment in Case No. 2014 CR 12 originally charged Bush with possession of
cocaine as a third-degree felony pursuant to R.C. 2925.11(C)(4)(c); as part of its plea
agreement with Bush, the State amended the charge to a fourth degree felony pursuant
to R.C. 2925.11(C)(4)(b). Although Bush was indicted before the 2018 amendments to
R.C. 2925.11 became effective, the provisions of R.C. 2925.11(C)(4)(a)-(c) were not
changed.
                                                                                     -3-


guilty to three counts of violating a protection order—one count in Case No. 2014 CR 12,

one count in Case No. 2014 CR 19 and one count in Case No. 2014 CR 152—all of which

were fifth degree felonies pursuant to R.C. 2919.27(A)(1) and (B)(3)(c). 3 The State

dismissed the indictment in Case No. 2014 CR 83.

      {¶ 3} After accepting Bush’s pleas, the trial court ordered a presentence

investigation and scheduled a sentencing hearing for June 23, 2014. Bush, however,

failed to appear, and the court issued a capias.    On December 1, 2014, Bush was

arrested in Maryland.

      {¶ 4} His excursion to Maryland having been curtailed, Bush appeared for

sentencing on December 11, 2014.       Before the trial court imposed sentence, Bush

informed the court that he intended to dismiss his defense counsel, to request the

appointment of substitute counsel, and to move to withdraw his pleas. 4      The court

received Bush’s announcement as an oral motion under Crim.R. 32.1, which it overruled

at once. On December 12, 2014, the court filed termination entries in Case Nos. 2013

CR 718, 2014 CR 12, 2014 CR 19 and 2014 CR 152.




3The indictment against Bush in Case No. 2014 CR 12 included seven counts, four of
which the State dismissed as part of its plea agreement with Bush.
4 At the sentencing hearing held on December 11, 2014, Bush indicated that he sought
to withdraw his pleas with respect to three charges in two cases—two charges in Case
No. 2014 CR 12, and one charge in Case No. 2014 CR 152. Transcript of Disposition
Hearing 8:3-8:18, Dec. 11, 2014. On February 7, 2017, Bush filed a motion to withdraw
in each of the four cases in which he entered pleas—Case Nos. 2013 CR 718, 2014 CR
12, 2014 CR 19 and 2014 CR 152. The four motions were identical, and Bush did not
specify which plea or pleas he sought to withdraw. In his brief, Bush argues that his
“convictions and sentences in 14-CR-12 and 13-CR-718 should be reversed,” yet he did
not file a notice of appeal in Case No. 2013 CR 718. Appellant’s Br. 7.
                                                                                        -4-


      {¶ 5} Arguing that the trial court abused its discretion by overruling his motions to

withdraw without holding a separate hearing, Bush filed untimely notices of appeal on

April 14, 2015, accompanied by motions for delayed appeals under App.R. 5(A). We

sustained Bush’s motions under App.R. 5(A), and in our opinion of August 26, 2016, we

reversed the trial court and remanded the cases for a hearing on the motions to withdraw.

See State v. Bush, 2d Dist. Clark Nos. 2015 CA 39, 2015 CA 40, 2015 CA 41 & 2015 CA

42, 2016-Ohio-5536, ¶ 2.

      {¶ 6} On February 7, 2017, Bush filed written motions to withdraw in Case Nos.

2013 CR 718, 2014 CR 12, 2014 CR 19 and 2014 CR 152. The trial court held a hearing

as instructed on July 31, 2017, and on November 30, 2017, the court overruled the

motions. The court filed corresponding termination entries on December 21, 2017.

      {¶ 7} On January 18, 2018, Bush timely filed notices of appeal from his convictions

in Case Nos. 2014 CR 12, 2014 CR 19 and 2014 CR 152. He has not appealed from

his conviction in Case No. 2013 CR 718.

                                      II. Analysis

      {¶ 8} For his sole assignment of error, Bush contends that:

             THE TRIAL COURT ABUSED ITS DISCRETION BY NOT

      ALLOWING BUSH TO WITHDRAW HIS GUILTY PLEA[.]

      {¶ 9} By his own account, Bush “produced testimony and exhibits” at the hearing

on July 31, 2017, “demonstrating he was perhaps not guilty and had a complete defense

to the charges” against him. Appellant’s Br. 6-7. He argues that the trial court abused

its discretion by overruling his motions to withdraw because the court thus disregarded

not only the foregoing evidence, but also the absence of any evidence “that the [S]tate
                                                                                         -5-

would be prejudiced” were the motions sustained. Id. at 7.

      {¶ 10} A “presentence motion to withdraw a guilty plea should be freely and

liberally granted,” although “a defendant does not have an absolute right to withdraw a

plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

Instead, after conducting a hearing on the motion, the trial court must “determine whether

[the defendant] has a reasonable and legitimate basis” for the withdrawal, rather than “[a]

mere change of heart.” Id.; State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632

(8th Dist.1988).   Some of the factors that a trial court may weigh in considering a

presentence motion to withdraw a plea are the following:

      (1) whether the state will be prejudiced * * *, (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 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 [or charges].

(Citations omitted.) State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d

197 (7th Dist.2000), citing State v. Thomas, 7th Dist. Mahoning Nos. 96 CA 223, 96 CA

225 & 96 CA 226, 1998 WL 934645 (Dec. 17, 1998), and State v. Fish, 104 Ohio App.3d

236, 240, 661 N.E.2d 788 (1st Dist.1995); see also State v. Askew, 2d Dist. Montgomery

No. 20110, 2005-Ohio-4026, ¶ 10-11, quoting Cuthbertson at 898-899.

      {¶ 11} Absent “an abuse of discretion on the part of the trial court,” its decision on
                                                                                          -6-

a presentence motion to withdraw “must be affirmed.” Xie at 527; State v. Donaldson,

2d Dist. Greene No. 06 CA 110, 2007-Ohio-5756, ¶ 6. A “trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable, or arbitrary.” State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 871, ¶ 34, citing State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Appellate review under this

standard “is deferential and does not permit [the] appellate court to simply substitute its

judgment for that of the trial court.” Id., citing State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, ¶ 14.

       {¶ 12} Here, Bush was represented by counsel with considerable experience at

his plea hearing on June 3, 2014.5 The trial court complied fully with Crim.R. 11(C)-(D)

before accepting Bush’s pleas, verifying among other things that Bush understood the

nature of the charges against him and the potential sentences he could receive, and on

July 31, 2017, the court held a full hearing on Bush’s motions to withdraw. During the

latter hearing, Bush availed himself of the opportunity to present testimonial and

documentary evidence. Moreover, neither the transcript of the hearing, nor the trial

court’s decision of November 30, 2017, provides any indication that the court failed to

give full and fair consideration to the motions. We find, then, that the second, third,

fourth, fifth and eighth factors listed in the Seventh District’s Cuthbertson opinion support

the trial court’s decision. Cuthbertson at 898-899. We further find that the sixth factor,


5 In its judgment entry overruling Bush’s motions to withdraw, the trial court remarked that
the attorney who represented Bush at his plea hearing had “more than [30] years of
general practice, including defense work in numerous criminal cases.” Entry Overruling
Defendant’s Motions to Withdraw 4, Nov. 30, 2017. The plea hearing had occurred three
years earlier, though Bush’s defense counsel would still have had 27 or more years of
experience at that time.
                                                                                         -7-


concerning the timing of Bush’s motions, has been rendered irrelevant in light of the

procedural history of this case, and we concur with the trial court’s finding, regarding the

first factor, that the record includes insufficient evidence to determine whether the State

would be prejudiced were Bush permitted to withdraw his pleas. See Entry Overruling

Defendant’s Motions to Withdraw 6, Nov. 30, 2017.

        {¶ 13} The remaining factors—the seventh and the ninth—are functionally

interchangeable for purposes of Bush’s motions inasmuch as Bush maintains that he

wants to withdraw his pleas because he is not guilty of the offenses for which he has been

convicted. Cuthbertson at 898-899; see Appellant’s Br. 6-7. At the hearing on July 31,

2017, however, Bush offered testimony and exhibits with respect to only two charges:

assault under R.C. 2903.13(A), to which he pleaded guilty in Case No. 2013 CR 718; and

domestic violence under R.C. 2919.25(A), to which he pleaded guilty in Case No. 2014

CR 12. Bush has not appealed from his conviction in Case No. 2013 CR 718, meaning

the trial court’s ruling on Bush’s motion in that case is not subject to review.

        {¶ 14} Regarding his conviction for domestic violence pursuant to R.C. 2919.25(A)

in Case No. 2014 CR 12, Bush argues he is not guilty, or has a complete defense to the

charge, inasmuch as the record establishes that: (1) the victim was not a member of his

family or household; and (2) the victim’s statements to police officers and medical

personnel were inconsistent. See Appellant’s Br. 3 and 6-7. These arguments have

little merit.

        {¶ 15} Under R.C. 2919.25(A), “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” R.C. 2919.25(F)(1) defines the

term “[f]amily or household member,” in relevant part, as a “spouse, a person living as a
                                                                                        -8-


spouse, or a former spouse of the offender” who resides with “or has resided with the

offender.” The term “[p]erson living as a spouse” means “a person who is living or has

lived with the offender in a common law marital relationship, who otherwise is cohabiting

with the offender, or who otherwise has cohabited with the offender within five years prior

to the date of the alleged commission” of an act of domestic violence.          See R.C.

2919.25(F)(2).

      {¶ 16} Count Two of the indictment in Case No. 2014 CR 12 charged Bush with

the commission of domestic violence “on or about December 30, 2013.” Although Bush

and the victim were not cohabiting on that date and have never been married, the

meaning of the term “household member” is not limited “to those who actually share one

residential address,” but instead, is dependent on a number of “factors [that] are unique

to each case,” because “the offense of domestic violence, * * *, arises out of the

relationship of the parties rather than their exact living circumstances.” See State v.

Williams, 79 Ohio St.3d 459, 462-465, 683 N.E.2d 1126 (1997); see also State v.

McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 14 and 16-20. The

victim in Case No. 2014 CR 12 testified at a hearing in January 2014—on her request for

a civil protection order—that she and Bush had shared a residence, albeit for an

unspecified interval, in the previous one to two years, and Bush himself admitted during

the hearing on his motions to withdraw on July 31, 2017, that he and the victim had had

a sexual relationship.6 See Transcript of Hearing on Motions to Withdraw 29:2-29:25

and Exs. A-B, July 31, 2017. Hence, despite Bush’s insistence that he was not guilty of


6 Bush introduced a transcript of the victim’s testimony from January 2014 as Exhibit “B”
at the hearing on his motions to withdraw on July 31, 2017.
                                                                                        -9-


domestic violence in this case because he and the victim were not members of the same

household, the record arguably comprises sufficient evidence to establish that Bush and

the victim were members of a household for purposes of the domestic violence statute.

      {¶ 17} More importantly, Bush has essentially acknowledged that he chose to

plead guilty to the charge of domestic violence, a fourth degree felony, in exchange for

the State’s agreement to dismiss the more serious charge of felonious assault, a second

degree felony.7 Transcript of Hearing on Motions to Withdraw 40:1-41:9; compare R.C.

2929.25(A) and (D)(2), with R.C. 2903.11(A)(1) and (D)(1)(a); see also R.C.

2929.14(A)(2) and (4). Bush accordingly made a rational decision to concede the issue

of whether he and the victim were household members in return for a significant reduction

in his maximum possible sentence. Thus, even accepting for sake of argument that the

record is insufficient to dispose of any doubt that Bush and the victim were members of

the same household, we cannot conclude that the trial court abused its discretion when it

found that Bush moved to withdraw his plea merely as the result of a change of heart.

Furthermore, notwithstanding Bush’s contention that the victim gave inconsistent

statements to police officers and medical personnel with respect to the date or dates on

which he attacked her, the record—including an affidavit submitted by a detective with

the Springfield Police Division—corroborates much of the victim’s account, particularly

the fact that she suffered injuries consistent with her descriptions of Bush’s conduct. See

Appellant’s Br. 3 and 6; Transcript of Hearing on Motions to Withdraw, Exs. A and E.



7 Count One of the indictment in Case No. 2014 CR 12 charged Bush with committing
felonious assault against the same victim, and on the same date, to which the charge of
domestic violence in Count Two referred.
                                                                                         -10-


      {¶ 18} We find for all of the foregoing reasons that the trial court did not abuse its

discretion by overruling Bush’s motion to withdraw his pleas in Case No. 2014 CR 12. In

the absence of any argument or citation to the record regarding the other two cases from

which Bush has appealed, we further find that the trial court did not abuse its discretion

by overruling Bush’s motions to withdraw his pleas in Case Nos. 2014 CR 19 and 2014

CR 152. Bush’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 19} The trial court conducted a plea colloquy with Bush on June 3, 2014, in

compliance with the requirements of Crim.R. 11, and Bush was represented at the time

by highly competent counsel. On July 31, 2017, the trial court held a full and impartial

hearing on Bush’s motions to withdraw, and the court’s subsequent decision overruling

the motions provides no indication that the court gave them less than full and fair

consideration. Therefore, we find that the trial court did not abuse its discretion by

overruling Bush’s motions to withdraw his pleas in Case Nos. 2014 CR 12, 2014 CR 19

and 2014 CR 152, and his convictions are affirmed.



                                     .............



DONOVAN, J. and FROELICH, J., concur.



Copies sent to:

Andrew P. Pickering
Lucas W. Wilder
Hon. Richard J. O’Neill
