[Cite as State v. Carrington, 2011-Ohio-3228.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2010CA00228
ANTHONY M. CARRINGTON

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Stark County Court of
                                                 Common Pleas, Case No. 2009CR0134


JUDGMENT:                                        Affirmed


DATE OF JUDGMENT ENTRY:                          June 27, 2011


APPEARANCES:


For Plaintiff-Appellee                           For Defendant-Appellant


JOHN D. FERRERO                                  VERNON M. INFANTINO
PROSECUTING ATTORNEY,                            Schnars, Baca & Infantino, LLC
STARK COUNTY, OHIO                               610 Market Avenue North
                                                 Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00228                                                     2

Hoffman, J.


       {¶1}   Defendant-appellant Anthony M. Carrington appeals the June 3, 2010

Judgment Entry of the Stark County Court of Common Pleas denying his motion to

withdraw his plea of guilty. Plaintiff-appellee is the State of Ohio.

                                  STATEMENT OF THE CASE

       {¶2}   On April 2, 2009, Appellant entered a plea of guilty to four counts of

aggravated robbery and one count of carrying a concealed weapon. The trial court

sentenced Appellant to six years in prison on the four aggravated robbery counts to run

concurrently. On the carrying a concealed weapon charge, the trial court sentenced

Appellant to eighteen months, with the term to run concurrent with the aggravated

robbery count.    Appellant received the mandatory three years on the four firearm

specifications which coincided with the aggravated robbery counts and which terms

were imposed consecutively with the four aggravated robbery terms.          Accordingly,

Appellant was sentenced to a total of eighteen years on all counts.

       {¶3}   On April 19, 2010, Appellant filed a motion to withdraw his guilty plea and

to vacate or void the judgment. The trial court scheduled a hearing on the motion and a

hearing to resentence Appellant with regard to post-release control.      Via Judgment

Entry of May 24, 2010, the trial court denied the motion to withdraw the guilty plea, and

imposed the same sentence except for modifying post-release control. Appellant now

appeals, assigning as error:

       {¶4}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA AND REQUEST FOR

NEW COUNSEL.”
Stark County, Case No. 2010CA00228                                                         3


         {¶5}   Ohio Rule of Criminal Procedure 32.1 governs the withdraw of guilty

pleas:

         {¶6}   “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.”

         {¶7}   The trial court’s decision to grant or deny a motion to withdraw a guilty

plea is vested within the sound discretion of the court, and will not be reversed by an

appellate court unless there has been an abuse of discretion.        State v. Xie (1992), 62

Ohio St.3d 521.

         {¶8}   Appellant cites the First District Court of Appeals decision in State v. Fish

(1995), 104 Ohio App.3d 236, in which that court stated:

         {¶9}   “There are numerous additional factors which should be weighed in

considering a motion to set aside a plea, which motion is made before sentencing,

some of which are set out in Peterseim, as follows: (1) whether the accused is

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, and (4) whether the trial court gave full and fair consideration to the motion. We

would also add: (5) whether the motion was made within a reasonable time, (6) whether

the motion sets out specific reasons for the withdrawal (see State v. Mathis [May 30,

1990], Hamilton App. No. C-890286, unreported), (7) whether the accused understood

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

perhaps not guilty of or had a complete defense to the charge or charges (see State v.
Stark County, Case No. 2010CA00228                                                     4

Cloud [1993], 91 Ohio App.3d 366, 632 N.E.2d 932). Obviously, the list is not

exhaustive, and other factors will appear to trial and appellant courts depending upon

the merits of each individual case.”

       {¶10} Appellant asserts he was not granted an opportunity to speak regarding

his motion or permitted to offer expert testimony or witnesses other than himself to

testify as to the effects of medication on his judgment at the time of the hearing.

Appellant asserts had he been given the opportunity he would have demonstrated the

effect certain drugs had on his understanding of what was going on at the time of the

change of plea hearing.

       {¶11} Upon review of the record, Appellant offers no evidence to support his

argument the medications affected his ability to knowingly and intelligently enter his

pleas of guilty.       Instead, Appellant’s argument is based upon speculation and

assumption. Moreover, at the hearing, Appellant conceded the motion was motivated

more by a change of heart and an attempt to reduce the original sentence:

       {¶12} “The Court: Okay. So I guess I’m trying to understand. You’re asking to

withdraw your plea.

       {¶13} “Besides this medication issue, are there any other claims that you’re

making why this plea should be withdrawn?

       {¶14} “The Defendant: Yeah. I just felt that I didn’t get the right punishment for

a first-time felony.

       {¶15} “The Court: Okay. You think I was too harsh?

       {¶16} “The Defendant: Yes.
Stark County, Case No. 2010CA00228                                                     5


       {¶17} “The Court: Okay, and I can understand that. I mean I can appreciate

your feelings on that, but again, looking at State versus Fish, the next prong is whether

a full hearing was on the motion. It appears that we did have a full hearing on it.

       {¶18} “Whether the motion was made within a reasonable time, it seems that it

has.

       {¶19} “Then I see whether you made your motion on the specific time, and you

made it almost a year after the sentence.

       {¶20} “It seems to me that what you have more is a change of heart than really

anything, isn’t it?

       {¶21} “The Defendant: Yes.

       {¶22} “* * *

       {¶23} “So I was hoping that you can grant my punishment a little lower so I can

have another shot by doing what’s right in life.”

       {¶24} Tr. at 14-15; 18.

       {¶25} Based upon the above, we find Appellant has not demonstrated the trial

court abused its discretion in denying his motion to withdraw his plea.
Stark County, Case No. 2010CA00228                                            6


       {¶26} The June 3, 2010 Judgment Entry of the Stark County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ Julie A. Edwards___________________
                                        HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00228                                                 7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :        JUDGMENT ENTRY
                                           :
ANTHONY M. CARRINGTON                      :
                                           :
       Defendant-Appellant                 :        Case No. 2010CA00228


       For the reason stated in our accompanying Opinion, the June 3, 2010 Judgment

Entry of the Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards
                                           HON. JULIE A. EDWARDS
