[Cite as State v. Pitra, 2011-Ohio-6165.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96593




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE
                                                vs.

                                            JAKUB PITRA
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-539302

        BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: December 1, 2011
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Heights, OH 44118

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
John P. Colan
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Jakub Pitra, appeals the trial court’s judgment denying

his motion to withdraw his plea. Finding no merit to the appeal, we affirm.

                                                I

      {¶ 2} In July 2010, Pitra was indicted on one count of burglary in violation of

R.C. 2911.12(A)(2), and one count of theft in violation of R.C. 2913.02(A)(1). Pitra

pleaded not guilty. Discovery proceeded and the trial date was reset several times.
      {¶ 3} On December 13, 2010, immediately prior to trial, Pitra pleaded guilty to an

amended count of breaking and entering, and the remaining count was nolled.

Sentencing was set for January 10, 2011.

      {¶ 4} On January 7, 2011, three days before sentencing, Pitra filed a motion to

withdraw his guilty plea. In his motion, Pitra asserted that his plea should be vacated

because he had recently learned of a witness in North Carolina who would testify that the

victim was a drug dealer and that Pitra’s handprint was found in the victim’s apartment

because Pitra had purchased drugs from the victim.

      {¶ 5} The trial court subsequently continued sentencing to January 20, 2011. On

that day, prior to sentencing, defense counsel informed the judge that Pitra wished to

withdraw his plea. The trial judge told counsel that he would not conduct a hearing on

Pitra’s motion that day because the prosecutor was not present. Accordingly, the trial

court continued the hearing until February 3, 2011. Subsequently, at the request of

Pitra’s counsel, the hearing on Pitra’s motion and sentencing was again continued to

February 18, 2011. When Pitra did not appear on February 18, 2011, the trial court

revoked his bond, issued a warrant for his arrest, and continued the hearing to February

25, 2011.

      {¶ 6} The record reflects that on February 25, 2011, the trial court heard argument

regarding Pitra’s motion to withdraw his plea. Defense counsel argued that the motion

should be granted because after entering his plea, Pitra had informed counsel that he had
found a witness in North Carolina who would testify that the victim was a drug dealer.

In response, the prosecutor argued that Pitra’s plea should stand.

       {¶ 7} The trial court denied Pitra’s motion to withdraw his plea and, in light of

Pitra’s criminal record and failure to respond to previously-imposed community control

sanctions, sentenced him to ten months in prison. The court also advised Pitra regarding

postrelease control and imposed a fine of $1,380.

       {¶ 8} On appeal, Pitra raises two assignments of error. He contends that the trial

court erred in denying his motion to withdraw his plea, and that the trial court did not

conduct the required hearing regarding his motion.

                                                II

       {¶ 9} “Crim.R. 32.1 provides that a defendant may move to withdraw his guilty

plea prior to sentencing. A defendant who so moves, however, does not have an absolute

right to have his guilty plea withdrawn. The trial court must conduct a hearing to

determine whether there is a reasonable and legitimate basis for withdrawal of the plea.

State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. The decision to grant or

deny the motion is within the trial court’s discretion and will not be disturbed absent a

finding of an abuse of discretion. Id.” State v. Hurst, Cuyahoga App. No. 89297,

2007-Ohio-6326, ¶4. A mere change of heart is insufficient grounds for the withdrawal

of a guilty plea prior to sentencing. State v. Benjamin, Cuyahoga App. No. 85071,

2005-Ohio-2322.
       {¶ 10} In State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, this

court set forth the standard for determining whether the trial court abused its discretion in

denying a presentence motion to withdraw a plea:

       {¶ 11} “A trial court does not abuse its discretion in overruling a motion to

withdraw: (1) where the accused is represented by highly competent counsel, (2) where

the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the

plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and

impartial hearing on the motion, and (4) where the record reveals that the court gave full

and fair consideration to the plea withdrawal request.” Id. at paragraph three of the

syllabus.

       {¶ 12} In State v. Montgomery, Cuyahoga App. No. 87246, 2006-Ohio-3850, this

court added another criteria to the Peterseim standard. “In a case in which the record

reflects the defendant made his decision to enter a guilty plea at the time his case had

been called for trial, with the parties fully prepared to go forward, the jury about to be

chosen, and the witnesses present, the trial court certainly acts within its discretion to

include this circumstance in its subsequent consideration of the genuineness of the

defendant’s motion to withdraw his guilty plea.” Id. at ¶16. See, also, State v. Walker,

Cuyahoga App. No. 95701, 2011-Ohio-3979, ¶22.

       {¶ 13} A review of the record in this case demonstrates the trial court fully

complied with the Peterseim criteria.       Pitra was represented by competent counsel
throughout the proceedings and informed the court at the plea hearing that he was

satisfied with his counsel.

       {¶ 14} Further, the transcript demonstrates that Pitra was afforded a complete

Crim.R. 11 hearing before he entered his guilty plea. The record reflects that the trial

judge informed Pitra of the constitutional rights he was waiving and made sure he

understood them.     The judge also informed Pitra of the charges and the potential

penalties upon pleading guilty, which he indicated he understood.          The judge also

informed Pitra of postrelease control and the penalties for violating postrelease control.

Pitra told the judge that he understood everything that had been explained to him and that

he was making the plea freely and voluntarily. The record is clear that Pitra understood

the ramifications of his plea and that it was made knowingly, voluntarily, and

intelligently.

       {¶ 15} Furthermore, despite Pitra’s assertion otherwise, we find that the trial court

afforded him a full hearing on his motion to withdraw. The record reflects that on

January 20, 2011, the trial judge continued the hearing on Pitra’s motion so that a full

hearing could be held when the prosecutor was present. At the subsequent hearing on

February 25, 2011, the trial court heard argument from Pitra’s counsel as to why Pitra

should be allowed to withdraw his plea. The judge then heard the State’s objections to

Pitra’s motion and denied the motion.
       {¶ 16} The court reasoned that the case had been pending since July 12, 2010, Pitra

had entered a knowing and voluntary guilty plea, and the victim’s status as a drug dealer

was not relevant to the charges to which Pitra had pleaded guilty.

       {¶ 17} Applying the Peterseim standards, we find no abuse of discretion in the trial

court’s decision to deny Pitra’s motion to withdraw his plea. Pitra was represented by

competent counsel throughout the proceedings and afforded a full Crim.R. 11 plea

hearing at which he entered a knowing, voluntary, and intelligent plea. The trial court

also held a hearing where it gave full and impartial consideration to Pitra’s motion to

withdraw his plea. Furthermore, although not mentioned by the trial court as a reason for

denying Pitra’s motion, the record reflects that Pitra pled guilty when trial was imminent,

a factor that calls into question the genuiness of his motion to withdraw his plea.

Accordingly, appellant’s assignments of error are overruled.

       Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
