[Cite as State v. Waters, 2013-Ohio-1229.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
SHAREZ M. WATERS                             :       Case No. 2012CA00147
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2012CR0323



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 28, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellee

JOHN D. FERRERO                                      AARON KOVALCHIK
Prosecuting Attorney                                 116 Cleveland Avenue, NW
                                                     Suite 808
By: KATHLEEN O. TATARSKY                             Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00147                                                     2

Farmer, J.

      {¶1}   On March 10, 2012, the Stark County Grand Jury indicted appellant,

Sharez Waters, on one count of domestic violence in violation of R.C. 2919.25.

Appellant pled guilty on May 9, 2012.

      {¶2}   On May 25, 2012, appellant filed a Crim.R. 32.1 motion to withdraw his

guilty plea, as he acquired funds to pay his retained counsel and now wished to proceed

with a jury trial. A hearing was held on June 25, 2012. By judgment entry filed July 2,

2012, the trial court denied the motion.        The trial court subsequently sentenced

appellant to twelve months in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA."

                                            I

      {¶5}   Appellant claims the trial court erred in denying his presentence motion to

withdraw his guilty plea. We disagree.

      {¶6}   Crim.R. 32.1 governs withdrawal of guilty plea and 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." The right to withdraw

a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith, 49 Ohio St.2d 261 (1977). In order to find an
Stark County, Case No. 2012CA00147                                                       3


abuse of discretion, we must determine 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 (1983).



                 A motion to withdraw a plea of no contest, made prior to the

       imposition of sentence, should be freely granted in the exercise of the trial

       court's discretion; one extremely important factor bearing on the exercise

       of the court's discretion is whether withdrawal will result in prejudice to the

       prosecution, but there are others to be weighed as well, including (1) the

       representation afforded to the defendant by counsel; (2) the extent of the

       hearing conducted pursuant to Crim.R. 11; (3) the extent of the hearing on

       the motion to withdraw; (4) the amount of consideration given to the

       motion by the court; (5) the timing of the motion; (6) the reasons given for

       withdrawal; (7) the defendant's understanding of the charges and

       penalties; and (8) the existence of a meritorious defense.



State v. Fish, 104 Ohio App.3d 236, paragraph two of the syllabus (1st Dist. 1995).



       {¶7}      During the hearing, defense counsel stated appellant's reasons for the

motion to withdraw and the history behind it (June 28, 2012 T. at 4-5 and 7,

respectively):
Stark County, Case No. 2012CA00147                                                      4


            MR. KOUKOUTAS: Thank you, Your Honor. I was with Mr. Waters

     when he entered a plea of guilty to the charge against him and applied for

     probation. I would like to point out to the Court that even on that day he

     was telling me he wished to proceed to a jury trial. I informed him at the

     time that he would have to come up with additional funds in order for me

     to do a jury trial since he did retain me in this matter.

            He indicated that he would not be able to have the funds so he

     decided to enter a plea of guilty to the charge and proceed with a PSI.

            Subsequently he contacted my office, indicated to me that he did

     have the funds to pay for a trial. I, therefore, filed a motion to withdraw his

     plea on May 25th, 2012.

            And we are here today asking the Court to allow him to withdraw

     his guilty plea based primarily on the fact that he - - he felt he was forced

     into taking a - - into pleading guilty to the charge, primarily because he did

     not have the money to pay me to do a jury trial.

            He says that he does have the funds for me now. I have yet to see

     them, but I felt obligated to at least file the motion on his behalf, that way I

     could protect any rights that he may have. And that's pretty much the

     basis of the motion, Your Honor.

            ***

            Your Honor, I never, at any point in time, told him he had to take a

     plea to the charge. I just basically told him, Look, you need to pay me in

     order to do a trial. If you're - - if you're not going to pay me to do a trial,
Stark County, Case No. 2012CA00147                                                       5


         then you're going to have to think of something to do here. What do you

         want to do?



         {¶8}   The prosecutor reviewed the factors set forth in Fish, as cited above, and

argued the record established the factors were fulfilled. Id. at 8-9. Also, a review of the

Crim.R.11 plea hearing transcript indicates appellant was satisfied with his attorney and

when asked, offered nothing further to the trial court. May 9, 2012 T. at 4, 7.

         {¶9}   During the motion to withdraw hearing, the trial court explained if it had

been aware of appellant's lack of finances, it would have entertained a motion for the

appointment of an attorney at state's expense. June 28, 2012 T. at 6. In summary, the

trial court denied appellant's request stating, "[t]aking all that into consideration, the

plea, the absence of any discussion with regard to finances, any indication that this was

anything but a freely given plea at the time, the Court finds that it is not going to grant

the motion to withdraw the guilty plea and is proceeding to sentencing at this time." Id.

at 12.

         {¶10} Upon review, we find the trial court did not abuse its discretion in denying

appellant's Crim.R. 32.1 motion to withdraw his guilty plea.

         {¶11} The sole assignment of error is denied.
Stark County, Case No. 2012CA00147                                            6


      {¶12} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                      _s/ Sheila G. Farmer_______________



                                      s/ W. Scott Gwin__________________



                                      s/ Patricia A. Delaney_______________

                                                   JUDGES

SGF/sg 3/14
[Cite as State v. Waters, 2013-Ohio-1229.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
SHAREZ M. WATERS                               :
                                               :
        Defendant-Appellant                    :        CASE NO. 2012CA00147




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _s/ Sheila G. Farmer_______________



                                               s/ W. Scott Gwin__________________



                                               s/ Patricia A. Delaney_______________

                                                           JUDGES
