[Cite as State v. Delpinal, 2016-Ohio-5646.]




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

 STATE OF OHIO                                       :
                                                     :   Appellate Case Nos. 2015-CA-97
          Plaintiff-Appellee                         :   Appellate Case Nos. 2015-CA-98
                                                     :
 v.                                                  :   Trial Court Case Nos. 14-CR-770
                                                     :   Trial Court Case Nos. 15-CR-46
 TRAVIS DELPINAL                                     :
                                                     :   (Criminal Appeal from
          Defendant-Appellant                        :    Common Pleas Court)
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 2nd day of September, 2016.

                                                ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, Post Office Box 231, Harveysburg, Ohio
45032
      Attorney for Defendant-Appellant

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


HALL, J.

        {¶ 1} Travis Delpinal appeals from his conviction and sentence following

negotiated guilty pleas to charges of felonious assault and third-degree-felony OVI with a
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related specification.

       {¶ 2} In his sole assignment of error, Delpinal contends the trial court erred in

overruling a presentence motion to withdraw his guilty pleas.

       {¶ 3} The record reflects that Delpinal was charged in two separate cases with (1)

two counts of felony OVI with prior-offense specifications and (2) felonious assault and

abduction. The cases were being tracked together but on April 20, 2015, Delpinal entered

a negotiated plea of guilty on the OVI case to one count of OVI and the specification in

exchange for dismissal of the other count and its specification. That case was set for

sentencing on May 27, 2015, but upon Delpinal’s motion, the sentencing was reset for

July 28, 2016 to coincide with his trial on the felonious assault case. On July 28th, the

cases were continued until August 5th, 2016 because Delpinal had been arrested at 3:30

or 4:00 that morning for domestic violence and other charges and when he was brought

to court he was still “highly intoxicated.” On August 4th, 2016, he separately pled guilty to

felonious assault in exchange for dismissal of the abduction charge and an agreement

for a three-year prison sentence to be served concurrently with whatever sentence he

received in the OVI case. The sentencing was set for August 11, 2016 in both cases. The

record reveals that the trial court conducted complete Crim.R. 11 plea hearings in both

cases, accepted the pleas, and found Delpinal guilty.

       {¶ 4} During the sentencing hearing for both cases, but before Delpinal’s sentence

was announced, defense counsel advised the trial court that his client wanted to withdraw

the guilty pleas. Upon being prompted by his attorney, Delpinal stated, “Yeah, I want to.”

(Disposition Tr. at 6). Defense counsel then told his client to “speak up,” and Delpinal

added, “I want to talk to another attorney.” (Id.). The trial court responded by finding
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“[i]nsufficient grounds” and overruling the oral motion. (Id.). The trial court then asked

Delpinal “is there anything you want to say at this time, sir?” (Id.). Delpinal shook his head.

The court inquired “No? Okay,” and he shook his head again. (Id.). The court proceeded

to impose a three-year prison sentence for the OVI, a consecutive two-year prison

sentence for the related specification, and a concurrent three-year prison sentence for

the felonious assault.

       {¶ 5} On appeal, Delpinal challenges the trial court’s denial of his plea-withdrawal

motion. He asserts that the trial court “virtually ignored” his request and “refused to

investigate” the basis for his motion. (Appellant’s brief at 4). He argues that the trial court’s

apparent “impatience” with his motion and its “summary manner of dispatching” his

request reflect an abuse of the trial court’s discretion. (Id. at 5).

       {¶ 6} Criminal Rule 32.1 governs motions to withdraw a plea. It provides: “A motion

to withdraw a plea of guilty or no contest may be made only before sentence is imposed;

but to correct a manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea.”

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

granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). But even under

the presentence standard, the right to withdraw a plea is not absolute. A trial court retains

discretion to overrule a presentence motion. Id. We review a trial court’s ruling on a

presentence motion to withdraw a plea for an abuse of discretion. State v. Massey, 2d

Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 10, citing State v. DeJesus, 2d Dist.

Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16.

       {¶ 8} When reviewing a trial court’s denial of a presentence motion to withdraw a
                                                                                       -4-


plea, this court frequently has examined the following factors:

      (1) whether the accused [was] represented by highly competent counsel,

      (2) whether the accused was given a full Crim.R. 11 hearing before entering

      the plea, (3) whether a full hearing was held on the motion, (4) whether the

      trial court gave full and fair consideration to the motion, (5) whether the

      motion was made within a reasonable time, (6) whether the motion sets out

      specific reasons for the withdrawal, (7) whether the accused understood the

      nature of the charges and possible penalties, (8) whether the accused was

      perhaps not guilty of or had a complete defense to the charge or charges,

      and (9) whether the state is prejudiced by withdrawal of the plea.

Massey at ¶ 11, quoting State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st

Dist. 1995); see also State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390,

¶ 29; State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶ 16.

      {¶ 9} A balancing test applies to the foregoing factors, and no single factor in

isolation is dispositive. Massey at ¶ 11. The ultimate question is whether there exists a

“reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio St.3d at

527. A “change of heart” is not enough. Spurgeon at ¶ 18.

      {¶ 10} Here the record supports a finding that Delpinal was represented by

competent counsel, and Delpinal himself acknowledged below that he was satisfied with

counsel’s representation. He also received a full Crim.R. 11 hearing before entering his

guilty pleas. Among other things, Delpinal was advised of the nature of the charges and

the penalties, and he indicated that he understood. Nothing in the record suggests that

Delpinal had a defense to the charges or was in fact not guilty. The OVI charge involved
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him crashing a vehicle, fleeing the scene, and being found under the influence of alcohol.

The felonious assault charge involved him hitting a woman and causing a facial fracture.

The record also supports a finding that Delpinal’s oral plea-withdrawal motion was not

made within a “reasonable time” because he did not raise the issue until after his

sentencing hearing had commenced. See, e.g., State v. Hill, 7th Dist. Carroll No. 12 CA

881, 2013-Ohio-2552, ¶ 29.

       {¶ 11} With regard to the other factors, Delpinal did receive a hearing on his plea-

withdrawal motion. Indeed, he broached the subject during a hearing. See State v.

Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 20 (citing case law for the

proposition that allowing argument on a plea-withdrawal motion during a sentencing

hearing can constitute a full hearing on the withdrawal issue). Whether Delpinal received

a “full” hearing, and whether the trial court gave “full and fair” consideration to his plea-

withdrawal motion is perhaps debatable. In resolving these questions, however, we

cannot ignore another of the factors mentioned above, namely whether Delpinal’s oral

motion identified specific reasons for his withdrawal request. As set forth above, Delpinal

received an opportunity to identify the basis for the request. He responded by stating, in

general terms, that he wanted “to talk to another attorney.” Given the non-specific nature

of this response, the trial court’s own cursory response of “insufficient grounds” was

permissible. Although the better practice would have been for the trial court to inquire why

he wanted to consult new counsel, Delpinal, as the moving party, bore the responsibility

to make his reasons known when given the opportunity to do so. In our view, the trial

court’s finding of “insufficient grounds” was an adequate, even if less than ideal, response

to Delpinal’s non-specific explanation for his plea-withdrawal request.
                                                                                         -6-




       {¶ 12} We recognize that we just recently decided State v. Bush, 2d Dist. Clark

Nos. 2015-CA-39 through -42, 2016-Ohio-5536 where we remanded that Appellant’s

request to withdraw his plea, made at the sentencing, for a hearing. We noted that “the

ultimate question is whether Bush had a ‘reasonable and legitimate basis’ to withdraw his

plea, other than a change of heart.” Id., ¶ 12. The trial court had overruled Bush’s request

to withdraw before he was given an opportunity to speak. When he was asked if he had

anything to say at allocution, Bush indicated his reasons to withdraw his pleas were the

victim of some of the offenses had changed her story, that he had other information that

would provide a defense and he had paperwork to prove everything. We distinguish the

result in Bush, where we were unable to determine if Bush’s stated reasons to withdraw

his plea were simply a change of heart. Consequently we remanded for a hearing. Here,

the defendant did not articulate any factual or legal reason to withdraw his pleas, one of

which had been made over three months earlier without expression of discontent in the

interim. His stated desire to speak with another lawyer was simply insufficient.

       {¶ 13} The only remaining factor is whether withdrawal of Delpinal’s pleas would

have prejudiced the State. Although nothing in the record indicates that prejudice would

have resulted, we are convinced, based on our consideration of all of the pertinent factors,

that the trial court did not abuse its discretion in overruling Delpinal’s motion.

       {¶ 14} The assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

                                      .............
                                      -7-


FAIN, J., and FROELICH, J., concur.


Copies mailed to:

Megan M. Farley
Thomas W. Kidd, Jr.
Hon. Richard J. O’Neill
