[Cite as State v. Jones, 2020-Ohio-3578.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                 COLUMBIANA COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                            TIONA L. JONES,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 CO 0023


                                  Criminal Appeal from the
                      Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2016 CR 424A

                                         BEFORE:
                 Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.


                                            JUDGMENT:
                                       Reversed and Remanded.



 Atty. Robert Herron, Prosecutor, Atty. John Gamble, Assistant Prosecutor,
 Columbiana County Prosecutor’s Office, Columbiana County Courthouse, 105 South
 Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee and

 Atty. Rhys Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503, for
 Defendant-Appellant.
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                                          Dated:
                                       June 24, 2020

 Donofrio, J.

       {¶1}     Defendant-appellant, Tiona Jones, appeals her convictions in the
Columbiana County Common Pleas Court following a guilty plea for one count of
engaging in a pattern of corrupt activity, one count of trafficking in heroin, one count of
trafficking in cocaine, two counts of money laundering, four counts of conspiracy to traffic
drugs, one count of complicity to felonious assault, one count of complicity to aggravated
burglary, one count of witness intimidation, and four forfeiture specifications.
       {¶2}     On November 17, 2016, a Columbiana County Grand Jury indicted
appellant and eight co-defendants on 51 counts by a secret indictment. The grand jury
indicted appellant on the following 24 counts:

       Count 1: Engaging in a pattern of corrupt activity in violation of R.C.
       2923.31(A)(1), a first-degree felony;

       Count 2: Trafficking in heroin in violation of R.C. 2925.03(A)(1), a fourth-
       degree felony;

       Counts 3 and 4: Trafficking in cocaine in violation of R.C. 2925.03(A)(1),
       fourth-degree felonies;

       Count 5: Trafficking in cocaine in violation of R.C. 2925.03(A)(1), a third-
       degree felony;

       Counts 6 and 7: Trafficking in heroin in violation of R.C. 2925.03(A)(1), third-
       degree felonies;

       Count 8: Trafficking in cocaine in violation of R.C. 2925.03(A)(1), a fourth-
       degree felony;

       Count 9: Trafficking in cocaine in violation of R.C. 2925.03(A)(1), a fifth-
       degree felony;



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      Counts 10 and 11: Money laundering in violation of R.C. 1315.55(A)(1),
      third-degree felonies;

      Counts 12, 13, 14, and 15: Conspiracy to traffic drugs in violation of R.C.
      2923.01(A)(2), third-degree felonies;

      Count 16: Aggravated menacing in violation of R.C. 2903.21(A), a first-
      degree misdemeanor;

      Count 17: Assault in violation of R.C. 2903.13(A), a first-degree
      misdemeanor;

      Count 18: Aggravated menacing in violation of R.C. 2903.21(A), a first-
      degree misdemeanor;

      Count 19: Assault in violation of R.C. 2903.13(A), a first-degree
      misdemeanor;

      Count 20: Having a weapon while under disability in violation of R.C.
      2923.13(A)(2), a third-degree felony;

      Count 21: Complicity to commit felonious assault in violation of R.C.
      2923.03(A)(1), a second-degree felony;

      Count 22: Complicity to commit aggravated burglary in violation of R.C.
      2923.03(A)(2), a first-degree felony;

      Count 23: Conspiracy to commit aggravated burglary in violation of R.C.
      2923.01(A)(2), a second-degree felony; and

      Count 24: Witness intimidation in violation of R.C. 2921.04(B)(2), a third-
      degree felony.

      {¶3}    The grand jury also attached two forfeiture specifications on Count 1, one
forfeiture specification on Count 7, and one forfeiture specification on Count 8. The
specifications on Counts 1, 7, and 8 sought the forfeiture of appellant’s car as it was
alleged appellant used her car to transport and sell drugs. The second specification on


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Count 1 sought the forfeiture of appellant’s home in Galloway, Ohio as it was alleged that
appellant purchased this home with proceeds from drug sales.
      {¶4}     On April 4, 2018, appellant and plaintiff-appellee, the State of Ohio,
entered into a plea agreement. Under the terms of the plea agreement, appellant agreed
to plead guilty to Counts 1, 7, 8, 10, 11, 12, 13, 14, 15, 21, 22, and 24. Appellant also
agreed to forfeit her car and her home in Galloway. In exchange, the state dismissed all
remaining charges and agreed to recommend an aggregate prison term of 14 years. The
trial court accepted appellant’s guilty plea, ordered a presentence investigation, and
scheduled a sentencing hearing for June 21, 2018.
      {¶5}     On April 27, 2018, appellant filed a motion to withdraw her guilty plea. This
motion argued that appellant was innocent. The trial court scheduled a hearing on
appellant’s motion to withdraw her guilty plea for May 31, 2018.
      {¶6}     At the scheduled hearing, the trial court permitted appellant’s counsel and
the state to make arguments. The trial court also allowed appellant to speak on her own
behalf regarding the motion.     Appellant stated that she was innocent and she felt
pressured into pleading guilty for the sake of her elderly grandmother.
      {¶7}     On June 14, 2018, the trial court ruled on appellant’s motion to withdraw
her guilty plea. The trial court addressed the factors pursuant to State v. Fish, 104 Ohio
App.3d 236, 661 N.E.2d 788 (1st Dist.1995). The trial court found that there was a lack
of prejudice to the state and that appellant’s motion was timely. But the trial court held
that appellant presented no evidence of a meritorious defense and her current claim of
innocence amounted to a change of heart. The trial court ultimately denied the motion.
      {¶8}     At the subsequent sentencing hearing, the trial court sentenced appellant
to the agreed upon prison term of 14 years. Appellant timely filed her notice of appeal on
July 23, 2018. Appellant now raises one assignment of error.
      {¶9}     Appellant’s sole assignment of error states:

             THE TRIAL COURT ERRED IN DENYING TIONA JONES’ PRE-
      SENTENCE MOTION TO WITHDRAW HER GUILTY PLEA.




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       {¶10}   Appellant generally argues that the trial court erred when it denied her
motion to withdraw her guilty plea because there was no showing of prejudice to the state
and she maintained her innocence throughout the proceedings.
       {¶11}   A pre-sentence motion to withdraw a guilty plea should be freely and
liberally granted. State v. Ocel, 7th Dist. Jefferson No. 08 JE 22, 2009-Ohio-2633, ¶ 21,
citing State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “A motion made
pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the
good faith, credibility and weight of the movant's assertions in support of the motion are
matters to be resolved by that court.” Ocel at ¶ 22, citing State v. Smith, 49 Ohio St.2d
261, 264, 361 N.E.2d 1324 (1997), paragraph two of the syllabus.
       {¶12}   When determining whether a trial court abused its discretion in denying a
pre-sentence motion to withdraw a plea, this court looks to nine factors. Those factors
are:

       (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) whether the defendant understood the nature of the charges
       and potential sentences; (5) the extent of the hearing on the motion to
       withdraw; (6) whether the trial court gave full and fair consideration to the
       motion; (7) whether the timing of the motion was reasonable; (8) the
       reasons for the motion; and (9) whether the accused was perhaps not guilty
       or had a complete defense to the charge.

State v. Scott, 7th Dist. Mahoning No. 08 MA 12, 2008-Ohio-5043, ¶ 13 citing Fish, supra.
       {¶13}   No one factor is conclusive for the determination of whether the trial court
should have granted the motion to withdraw. State v. Morris, 7th Dist. Mahoning No. 13
MA 19, 2014–Ohio–882, ¶ 22.
       {¶14}   In considering the first factor, as the trial court found, the state made no
argument it would be prejudiced by appellant withdrawing her plea. Because there is no
indication of prejudice to the state by appellant withdrawing her plea, this factor weighs in
appellant’s favor.




Case No. 18 CO 0023
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       {¶15}    In considering the second factor, appellant was represented by counsel at
all relevant stages during this action. During the change of plea hearing, appellant stated
that her trial counsel answered all of her questions related to her guilty plea. Appellant
had a question regarding judicial release after serving 10 years of her sentence, which
the trial court permitted a brief recess to allow her to consult with her counsel. Appellant
answered numerous times that her trial counsel answered all questions she had about
her guilty plea. Appellant also stated that she was satisfied with her trial counsel’s
representation. Thus, appellant’s representation was adequate and this factor weighs in
the state’s favor.
       {¶16}    In considering the third factor, during the change of plea hearing, the trial
court confirmed appellant was making her plea voluntarily. The trial court informed
appellant of the minimum and maximum sentences she faced on each individual count,
informed her that a prison term was presumed necessary, and that the sentences could
be served consecutively. The trial court also informed appellant of the details of the fines,
the forfeiture specifications, and the potential to have her driver’s license suspended. The
trial court informed appellant that she would be placed on mandatory post-release control
for five years upon being released from prison and what the consequences would be for
violating the terms of post-release control. In compliance with Crim.R. 11(C)(2), the trial
court advised appellant that, by pleading guilty, she was waiving her constitutional rights
to: a jury trial, confront witnesses against her, subpoena witnesses on her behalf, remain
silent, and have the state prove her guilt beyond a reasonable doubt. Thus, appellant’s
Crim.R. 11 plea hearing was sufficient and this factor weighs in the state’s favor.
       {¶17}    In considering the fourth factor, appellant stated that she understood the
legal elements of the charges against her. The trial court advised appellant of the
minimum and maximum prison term on each count and appellant stated that she
understood her potential prison sentence. Thus, appellant understood the nature of the
charges and her potential sentence and this factor weighs in the state’s favor.
       {¶18}    In considering the fifth factor, at the hearing on appellant’s motion, the trial
court permitted appellant’s counsel and the state to make arguments regarding the
motion. The trial court also permitted appellant herself to speak in support of her motion.




Case No. 18 CO 0023
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Appellant and her attorney generally argued that she was innocent of the charges and
has always maintained her innocence throughout the proceedings.
       {¶19}    Appellant stated that she originally pled guilty to help out her grandmother.
After pleading guilty, appellant spoke to her grandmother and her grandmother told her
she should not have pled guilty. Appellant also claimed that she had never personally
seen any of the evidence the state had against her. Appellant denied intimidating a
witness, committing a burglary, or being part of a drug organization. The day after
appellant entered her guilty plea, she called her attorney and said she wanted to withdraw
her plea. Appellant’s counsel stated that he wanted appellant to think about withdrawing
her plea for some time before filing a motion to make sure that is what she wanted to do.
Thus, the extent of the hearing on appellant’s motion was sufficient and this factor weighs
in the state’s favor.
       {¶20}    In considering the sixth factor, the trial court’s June 14, 2018 judgment
entry addressed all of the Fish factors.       The trial court considered the arguments
contained in the motion, the arguments presented at the hearing, and the change of plea
proceedings. The trial court concluded that only two factors weighed in appellant’s favor:
lack of prejudice to the state and timeliness of the motion. The trial court categorized
appellant’s claim of innocence as a change of heart, which the trial court held is
insufficient to withdraw a guilty plea. Thus, the trial court gave appellant’s motion full and
fair consideration and this factor weighs in the state’s favor.
       {¶21}    In considering the seventh factor, appellant filed her motion to withdraw
her guilty plea on April 25, 2018, three weeks after she entered her guilty plea and almost
two months before her sentencing hearing. Thus, the motion to withdraw was reasonably
timed and this factor weighs in appellant’s favor.
       {¶22}    In considering the eighth factor, appellant made two arguments in support
of her motion: actual innocence and she was not aware of the evidence against her.
Regarding actual innocence, appellant denied intimidating a witness, being the leader of
a drug organization, and committing aggravated burglary. Appellant also argued that she
only pled guilty to help out her grandmother, but her grandmother later told her she should
not have pled guilty. Appellant told her counsel the day after she pled guilty to move to




Case No. 18 CO 0023
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withdraw the plea. Appellant’s counsel acknowledged this request, but stated he wanted
appellant to think about withdrawing the plea a little more before filing a motion.
       {¶23}   Regarding appellant not being aware of the evidence against her, the state
argues appellant was aware of the evidence against her because she referenced
witnesses’ statements during her argument. Specifically, appellant stated:

       The people - - the paper that I do have from the people who said what they
       said - - I basically know some of them saying what they’re saying is because
       they got in trouble themselves, and they wanted to get out of trouble
       themselves. Like a specific person that was in the case was Tina Taylor.
       When I seen her back in 2016, she told me that Detective Scheets and
       Detective Talbert was hounding her and was hassling her. There is another
       female that was being hassled about the case that basically do tell on me
       and say different things about me that basically wasn’t true. And she kept
       telling them, hey - - that she wanted to be left alone and she [confided] in
       one of the worker’s that still work at CCJ, and we have had conversations
       about that situation too.

(Withdraw Tr. 9).
       {¶24}   Based on this passage, appellant was only aware of the general testimony
of two potential witnesses. The grand jury indicted appellant on 28 counts, the majority
of which are felonies. This indicates that the state has a substantial amount of evidence.
The state indicated at the hearing that there was a substantial amount of evidence, but
did not go into any detail about what the evidence was. Thus, the motion put forth
sufficient reasons and this factor weighs in appellant’s favor.
       {¶25}   In considering the ninth factor, appellant stated that she was innocent of
all the charges. The day after appellant entered her guilty plea, she contacted her
attorney to ask him to move to withdraw the plea. Appellant’s counsel acknowledged this
request and advised appellant to think about withdrawing her plea. After approximately
three weeks, appellant still wanted to withdraw her plea and her counsel filed the motion.
Appellant argued that she only pled guilty because she believed it would help her
grandmother, who was over 80 years old. Appellant’s grandmother was also taking care


Case No. 18 CO 0023
                                                                                          –9–


of appellant’s three young children. It was not until after appellant pled guilty that her
grandmother told her she should not have done so. Thus, there is an indication that
appellant was perhaps innocent and this factor weighs in appellant’s favor.
       {¶26}    In total, four Fish factors weigh in appellant’s favor: lack of prejudice to the
state, the timing of her motion, the reasons for the motion, and perhaps appellant was
innocent or had a complete defense. Moreover, “[l]ack of prejudice to the state is said to
be one of the most important factors.” State v. Cuthbertson, 139 Ohio App.3d 895, 899,
746 N.E.2d 197 (7th Dist.2000). Based on the existence of four Fish factors, including
lack of prejudice to the state and the circumstances of this case, the trial court abused its
discretion by denying appellant’s motion to withdraw her guilty plea.
       {¶27} Accordingly, appellant’s sole assignment of error has merit and is
sustained.
       {¶28} For the reasons stated above, the trial court’s judgment is hereby reversed
and this matter is remanded for further proceedings pursuant to law and consistent with
this opinion.




Waite, P. J., concurs.

D’Apolito, J., concurs.




Case No. 18 CO 0023
[Cite as State v. Jones, 2020-Ohio-3578.]




         For the reasons stated in the Opinion rendered herein, the sole assignment of
 error is sustained and it is the final judgment and order of this Court that the judgment
 of the Court of Common Pleas of Columbiana County, Ohio, is reversed. We hereby
 remand this matter to the trial court for further proceedings according to law and
 consistent with this Court’s Opinion. Costs to be waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                            NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
