[Cite as State v. Cruse, 2019-Ohio-1223.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      29140

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOHN WILLIAM CRUSE                                    COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2018-04-1301

                                 DECISION AND JOURNAL ENTRY

Dated: April 3, 2019



        HENSAL, Judge.

        {¶1}     John Cruse appeals a judgment of the Summit County Court of Common Pleas

that denied his motion to withdraw his Alford plea. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     During the early morning hours of June 5, 2017, a fire started on the back porch

of a house in Akron. After the fire was extinguished, a bottle of lighter fluid was discovered in

the backyard that had not been there when the residents of the house went to bed. The lighter

fluid was consistent with fluid found on the porch. DNA recovered from the bottle matched Mr.

Cruse, who used to date one of the women living in the house.

        {¶3}     The Grand Jury indicted Mr. Cruse on two counts of aggravated arson. At the

beginning of the second day of his trial, Mr. Cruse entered an Alford plea, alleging that he would

never be able to prove that he did not touch the bottle of lighter fluid. He also explained that he

would rather be in prison than in society and that it would only postpone the inevitable to finish
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the trial. He further expressed skepticism about whether the jury would actually require the State

to prove his guilt beyond a reasonable doubt. The trial court accepted his plea, released the jury,

and scheduled Mr. Cruse’s sentencing for the afternoon.

        {¶4}    At sentencing, Mr. Cruse continued to assert that he had not committed the

offenses. Mr. Cruse’s attorney, therefore, moved to withdraw Mr. Cruse’s plea during a sidebar,

arguing that he was not satisfied that Mr. Cruse wanted to go through with his plea. The State

opposed the motion because nothing had changed since the morning. Mr. Cruse’s attorney

responded that the State had used Mr. Cruse’s continued assertion of innocence against him

when it argued that he should receive the maximum sentence, in part, because he had refused to

take responsibility for his actions. The trial court found that nothing had changed regarding Mr.

Cruse’s claim of innocence and that Mr. Cruse, himself, had not indicated that his feelings about

his plea had changed. It, therefore, refused to allow Mr. Cruse to withdraw his plea. Mr. Cruse

then spoke regarding his sentence and again asked to withdraw his plea, claiming that he only

entered it because he believed he would not be able to prove his innocence and did not believe

that any jury would acquit him when only his DNA was on the lighter fluid bottle. Following his

statements, the trial court addressed Mr. Cruse’s renewed motion to withdraw. It stated that Mr.

Cruse had to show something more than a change of mind. It found that the State would be

prejudiced by the withdrawal. It also found that Mr. Cruse had had excellent representation, that

the plea hearing was very detailed, and that Mr. Cruse had understood the nature of the charges

and the potential sentence. It, therefore, denied his motion to withdraw. The court proceeded to

sentence Mr. Cruse to eight years imprisonment. Mr. Cruse has appealed, assigning as error that

the trial court denied his right to due process and a fair trial.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT DENIED CRUSE HIS RIGHTS OF DUE PROCESS AND
       A FAIR TRIAL, IN VIOLATION OF THE FIFTH, SIX[TH], AND
       FOURTEENTH    AMENDMENTS       TO   THE     UNITED      STATES
       CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10 AND 16, OF THE OHIO
       CONSTITUTION.

       {¶5}    Mr. Cruse argues that the trial court should have allowed him to withdraw his

plea. The Ohio Supreme Court has advised that motions to withdraw guilty pleas that occur

before sentencing “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527

(1992). Nevertheless, a defendant does not have an absolute right to withdraw a guilty plea

before sentencing. Id. at paragraph one of the syllabus. It is the defendant’s burden to provide a

reasonable and legitimate reason justifying withdrawal of the guilty plea. State v. West, 9th Dist.

Lorain No. 04CA008554, 2005-Ohio-990, ¶ 21. The trial court has discretion to grant or deny

the motion. Xie at paragraph two of the syllabus. We review the court’s decision for an abuse of

that discretion. State v. Krieg, 9th Dist. Lorain No. 04CA008442, 2004-Ohio-5174, ¶ 18. “An

abuse of discretion is more than an error of judgment; it implies a decision that is ‘unreasonable,

arbitrary, or unconscionable.’” Id., quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).

       {¶6}    This Court has held that, if “a defendant (1) is represented by competent counsel,

(2) is given a full hearing before entering the plea, and (3) is given a hearing on the motion to

withdraw during which the court considers the defendant’s arguments in support of the motion,

the trial court does not abuse its discretion in denying the motion to withdraw the plea.” State v.

Remines, 9th Dist. Lorain No. 97CA006700, 1998 WL 103350, *2 (Feb. 25, 1998). Upon

review of the record, we conclude that those circumstances occurred in this case. The trial court

found that Mr. Cruse’s counsel’s performance was exceptional, which Mr. Cruse does not
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contest. The court also afforded Mr. Cruse a full hearing on his request to enter an Alford plea,

which Mr. Cruse also has not contested.

       {¶7}    Mr. Cruse does challenge whether the court afforded him a hearing on his motions

to withdraw, arguing that the court did not do any sort of inquiry into the legitimacy of the

requests. We note, however, that the parties were in open court at the time of Mr. Cruse’s

motions. Both Mr. Cruse and his attorney had an opportunity to explain to the court why they

thought Mr. Cruse should be allowed to withdraw his plea. Following both the attorney’s motion

and Mr. Cruse’s motion, the court considered their arguments and explained why it was denying

them. We, therefore, conclude that Mr. Cruse was given a hearing on his motions to withdraw in

which the court considered the arguments in support of the motions. Accordingly, we conclude

that the trial court did not abuse its discretion when it refused to allow Mr. Cruse to withdraw his

plea. Mr. Cruse’s assignment of error is overruled.

                                                III.

       {¶8}    Mr. Cruse’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



CALLAHAN, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
