[Cite as State v. Taylor, 2014-Ohio-3080.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-10-186

                                                   :            OPINION
    - vs -                                                       7/14/2014
                                                   :

RAYMOND TAYLOR,                                    :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-05-0758



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Raymond Taylor, appeals his conviction and sentence

in the Butler County Court of Common Pleas for menacing by stalking.

        {¶ 2} On May 29, 2013, the Butler County Grand Jury indicted Taylor on one count of

menacing by stalking, a fourth-degree felony, in violation of R.C. 2903.21.1(A)(1). Taylor

initially entered a not guilty by reason of insanity plea on June 10, 2012. That same day, a
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suggestion of incompetency was also filed. After a forensic evaluation, Taylor was found

competent to stand trial.

      {¶ 3} On August 23, 2013, Taylor withdrew his not guilty by reason of insanity plea

and pled guilty to the menacing by stalking charge. After holding a plea hearing, the trial

court accepted Taylor's guilty plea and released him on a personal recognizance bond with

the condition that he comply with the court's pretrial release orders. The trial court also

informed Taylor it would consider a community control sentence, as provided in the plea

agreement, if he complied with the pretrial release orders. The trial court scheduled a

sentencing hearing for October 3, 2013. However, on October 2, 2013, a capias was issued

based upon allegations that Taylor had violated the terms of his pretrial release, including

failing to appear for his presentence investigation interview.    Taylor was subsequently

arrested.

      {¶ 4} On October 3, 2013, the trial court held the sentencing hearing. At the outset of

the hearing, the trial court noted Taylor failed to show up for his presentence investigation

interview, and the following exchange took place:

             THE COURT: * * * Would your client like to now be interviewed for
             presentence investigation while he's in the Butler County Jail?

             THE DEFENDANT: I don't even want to get on probation, I'm just ready
             to take it to trial and plead a not guilty plea.

             THE COURT: Well we're way beyond that, sir. You've already been
             found guilty. You've already pled. We are set for sentencing. So here
             are the choices.

             THE DEFENDANT: Uh-huh. You can call me (phonetic) my time right
             now, if you'd like.

             THE COURT: Well the choice is to proceed, if you and your attorney
             decide you want to waive a presentence investigation report, you can do
             that and we'll proceed with sentencing - -

             THE DEFENDANT: I don't want no probation or nothing like that.


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              THE COURT: - - or we can order a presentence investigation report and
              continue this out about five or six weeks. You'll be held in Butler County
              Jail without bond.

              THE DEFENDANT: That's cool.

              [DEFENSE COUNSEL]: Do you want to be sentenced today or do you
              want to wait until - -

              THE DEFENDANT: Sentenced today, I want to get sentenced today.

              THE COURT: - -be sent to prison?

              THE DEFENDANT: Yeah, today.

              [DEFENSE COUNSEL]: Understand that that means you'll be
              sentenced to prison.

              THE DEFENDANT: I don't care, all I got 11 more months to do if they
              give me the max.

              [DEFENSE COUNSEL]: He's indicating that he wants to waive his PSI.
              I would not object to that if that's what he wants to do.

              THE DEFENDANT: No due respect to you, Your Honor, I just want to
              get this over with.

              THE COURT: Fair enough, fair enough.

The court then proceeded with the sentencing hearing and sentenced Taylor to a prison term

of 15 months. Taylor appealed, assigning the following error:

       {¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF APPELLANT IN FAILING TO CONDUCT A HEARING ON HIS ORAL

PRESENTENCE MOTION TO WITHDRAW GUILTY PLEA.

       {¶ 6} In his sole assignment of error, Taylor asserts he made an oral motion to

withdraw his guilty plea which the trial court denied without conducting a hearing. Taylor

contends his statement: "I'm just ready to take it to trial and plead a not guilty plea" was an

oral presentence motion to withdraw his guilty plea. As such, Taylor argues the trial court

was required to conduct a hearing on his motion to determine whether a reasonable and


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legitimate basis existed to withdraw the guilty plea. For the reasons set forth below, we

agree.

         {¶ 7} Pursuant to Crim.R. 32.1, a defendant may move to withdraw his guilty plea

"before sentence is imposed." A presentence motion to withdraw a guilty plea "should be

freely and liberally granted." State v. Gabbard, 12th Dist. Clermont No. CA2006-03-025,

2007-Ohio-461, ¶ 7, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992). Nevertheless, a

defendant does not possess "an absolute right to withdraw a plea prior to sentencing." State

v. Manis, 12th Dist. Butler No. CA2011-03-059, 2012-Ohio-3753, ¶ 24, quoting Xie at 527.

Therefore, "[a] trial court must conduct a hearing to determine whether there is a reasonable

and legitimate basis for the withdrawal of the plea." (Emphasis added.) Xie at paragraph
                                            1
one of the syllabus; see also Manis at ¶ 24. On review, we will not reverse a trial court's

decision on a presentence motion to withdraw a guilty plea absent an abuse of discretion.

Manis at ¶ 24. An abuse of discretion involves more than an error of law or judgment; it

implies that the trial court's decision was arbitrary, unreasonable, or unconscionable. Id.

         {¶ 8} The state contends Taylor did not move to withdraw his guilty plea, but rather

his statements at the sentencing hearing merely reflected his desire to be sentenced that day

and "get this case over with." However, we find Taylor made a presentence motion to

withdraw his guilty plea when he stated, "I'm just ready to take it to trial and plead a not guilty

plea." Although Taylor failed to use the words, "I move" or specifically request to "withdraw"

his prior guilty plea, his statements reflected his desire and intent to plead not guilty and take

the matter to trial. The trial court did not inquire any further regarding whether or why Taylor


1. This court has stated that the factors to be weighed in considering a presentence motion to withdraw a plea
include: (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) 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; (9) whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Witherspoon, 12th Dist. Butler No. CA2010-01-025, 2010-Ohio-4569, ¶ 10.
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wanted to withdraw his guilty plea. Rather, the trial court informed Taylor he was "beyond

that" point; he had already pled guilty, and his options were: (1) be sentenced that day and

waive a presentence investigation or (2) continue the sentencing hearing so a presentence

investigation could take place.

       {¶ 9} Because Taylor made a request to withdraw his guilty plea prior to sentencing,

Xie required the trial court to hold a hearing to determine whether there was a reasonable

and legitimate basis for the motion. Although the court in Xie did not set forth the type of

hearing required for a presentence motion to withdraw a guilty plea, the trial court here failed

to hold any hearing or otherwise inquire as to the basis of Taylor's request to withdraw his

guilty plea and proceed to trial. See State v. Hurlburt, 10th Dist. No. 12AP-231, 2013-Ohio-

767, ¶ 7. In light of Taylor's statements at the outset of the hearing, we find it was

unreasonable for the trial court to proceed with sentencing.

       {¶ 10} Based on the foregoing, we sustain Taylor's sole assignment of error as the trial

court failed to conduct a hearing on Taylor's oral motion to withdraw his guilty plea. The

matter is remanded to the trial court, and the trial court is instructed to hold a hearing on

Taylor's motion "to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea." Xie at paragraph one of the syllabus; see also Witherspoon at ¶ 10.

       {¶ 11} Judgment of the trial court is reversed and the cause remanded.


       PIPER, J., concurs.


       S. POWELL, J., dissents.


       S. POWELL, J., dissenting.

       {¶ 12} I respectfully dissent from the majority's decision as Taylor never moved to

withdraw his guilty plea prior to sentencing, thereby eliminating any obligation on behalf of

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the trial court to hold a hearing. While Taylor did state that he was "ready to take it to trial

and plead a not guilty plea," such remarks are completely undermined by his statements

indicating he wanted to be sentenced immediately and that he just wanted to "get this over

with." While I agree that no magic words are necessary to effectively move to withdraw a

guilty plea, the trial court should not be forced to guess as to the defendant's wishes. This is

particularly true here as Taylor was at all times represented by counsel. Therefore, because

I agree with the state and find Taylor never moved to withdraw his guilty plea, I must dissent.




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