[Cite as State v. Snyder, 2018-Ohio-5168.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. William B. Hoffman, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
ROBERT E. SNYDER, JR.,                       :       Case No. CT2017-0090
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2017-0175




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    December 18, 2018



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    ROGER SOROKA
Prosecuting Attorney                                 JOSHUA BEDTELYON
Muskingum County                                     AARON JONES
                                                     Soroka and Associates, LLC
By: GERALD V. ANDERSON II                            503 South Front Street, Suite 205
Assistant Prosecuting Attorney                       Columbus, Ohio 43215
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0090                                                 2

Baldwin, J.

       {¶1}   Defendant-appellant Robert E. Snyder, Jr. appeals from the November 20,

2017 Decision of the Muskingum County Court of Common Pleas denying his Motion to

Withdraw his no contest plea. Plaintiff-appellee is the State of Ohio.

                        STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 11, 2017, the Muskingum County Grand Jury indicted appellant on

one count of attempted illegal use of a minor in nudity oriented material or performance

in violation of R.C. 2907.323(A)(1) and R.C. 2923.02(A), a felony of the third degree, and

three counts rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree. At his

arraignment on May 17, 2017, appellant entered a plea of not guilty to the charges.

       {¶3}   On September 13, 2017, appellant withdrew his former not guilty plea and

entered a plea of no contest to attempted illegal use of a minor in nudity oriented material

or performance and to two amended counts of rape. The rape counts were amended to

being in violation of R.C. 2907.02(A)(2). The trial court found appellant guilty of the counts.

Appellee agreed to dismiss the remaining count of rape at the time of sentencing.

       {¶4}   Prior to sentencing, appellant, on October 2, 2017, filed a Motion to

Withdraw Plea pursuant to Crim.R. 32.1. Appellant, in his motion, argued that he had

retained new counsel on September 21, 2017 and that he “either misunderstood, or was

improperly advised, by prior counsel as to possible penalties he faced and his ability to

successfully argue his defenses.” He further alleged that he had been told by prior counsel

that he had no chance to win at trial and that counsel would not call the witnesses that

appellant had requested.
Muskingum County, Case No. CT2017-0090                                              3


      {¶5}   Appellee filed a brief in opposition to the motion on October 12, 2017 and

appellant filed a reply on October 23, 2017.

      {¶6}   A hearing on appellants’ motion was held on October 30, 2017. Pursuant to

a Decision filed on November 20, 2017, the trial court denied appellant’s motion.

      {¶7}   Thereafter, on November 20, 2017, the trial court sentenced appellant to an

aggregate sentence of twenty (20) years in prison. The remaining rape count was

dismissed on November 21, 2017.

      {¶8}   Appellant now raises the following assignment of error on appeal:

      {¶9}   “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S PRE-

SENTENCE MOTION TO WITHDRAW PLEA.”

                                               I

      {¶10} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Withdraw Plea. We disagree.

      {¶11} As is stated above, appellant’s motion was filed prior to sentencing.

      {¶12} Crim. R. 32.1 governs motions to withdraw guilty pleas and provides in

pertinent part: “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.”

A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing,

however; a trial court must conduct a hearing to determine whether there is a reasonable

and legitimate basis for the withdrawal of the plea. State v. Hamilton, 5th Dist. Muskingum

No. CT2008-0011, 2008-Ohio-6328, ¶ 32, citing State v. Xie, 62 Ohio St.3d 521, 584

N.E.2d 715 (1992), at paragraph one of the syllabus.
Muskingum County, Case No. CT2017-0090                                               4


       {¶13} 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 the trial court abused its discretion. Xie, paragraph two of the syllabus. An

abuse of discretion exists where the reasons given by the court for its action are clearly

untenable, legally incorrect, or amount to a denial of justice, or where the judgment

reaches an end or purpose not justified by reason and the evidence. State v. Firouzmandi,

5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, ¶ 54.

       {¶14} Although the general rule is that motions to withdraw guilty pleas before

sentence are to be freely given and treated with liberality, the right to withdraw a plea is

not absolute. State v. Keiner, 5th Dist. Holmes No. 15CA016, 2016–Ohio–3294, ¶ 17

citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). After a hearing to determine

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

decision to grant or deny a pre-sentence motion to withdraw guilty plea is within the sound

discretion of the trial court. Id. Some factors a trial court may consider when making a

decision on a motion to withdraw a guilty plea are: (1) prejudice to the state; (2) counsel's

representation; (3) adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea

withdrawal hearing; (5) whether the trial court gave full and fair consideration to the

motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of

the nature of the charges and the potential sentences; and (9) whether the defendant was

perhaps not guilty or has a complete defense to the charge. State v. Gilmore, 5th Dist.

Perry No. 15CA00017, 2016–Ohio–2654, ¶ 14 citing State v. Cuthbertson, 139 Ohio

App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist. 2000), citing State v. Fish, 104 Ohio
Muskingum County, Case No. CT2017-0090                                             5

App.3d 236, 661 N.E.2d 788 (1st Dist.1995). No one Fish factor is absolutely conclusive.

Cuthbertson, supra.

       {¶15} In the case sub judice, appellant’s motion was filed nineteen days after he

entered his no contest plea. A review of the transcript from the October 30, 2017 plea

hearing demonstrates that the trial court engaged appellant in a thorough Crim.R. 11

colloquy before accepting appellant’s plea. We note that appellant stated prior to entering

his plea he was satisfied with the representation of his counsel.

       {¶16} At the hearing on appellant’s Motion to Withdraw, appellant’s counsel

indicated that appellant maintained that he was innocent. The trial court asked appellant’s

counsel if he had any proof that appellant’s prior trial counsel had told appellant that he

could not go to trial and that he would not call any witnesses on appellant’s behalf. When

appellant’s counsel responded “Simply the words of my client”, the trial court stated, in

relevant part, as follows:

       {¶17} THE COURT: Okay. Because Mr. McVay [appellant’s prior counsel] has

appeared in this court numerous times.

       {¶18} MR. BEDTELYON: Sure.

       {¶19} THE COURT:        Also, the prosecutor has cases with him.        He’s been

appointed in cases in counties clear across this entire state.      He recently was just

appointed to a quadruple homicide down in Lawrence County as a State Public Defender.

He’s a very competent and excellent attorney. To say he would look at somebody and

say you can’t call witnesses is not him.

       {¶20} MR. BEDTELYON: And I - - and I - -
Muskingum County, Case No. CT2017-0090                                               6


       {¶21} THE COURT: I’ve known him for a long time, and he would not say that.

He would tell them the truth and give them his advice. But if they want to go to trial, he’ll

go to trial. He’s taken impossible cases to trial. I know he has.

       {¶22} MR. BEDTELYON: And I - - I - -

       {¶23} THE COURT: I asked your client, do you understand what you’ve been

charged with and any possible defenses you may have, and he said yes. Now you’re

telling me that that’s not true.

       {¶24} Transcript from October 30, 2017 hearing at 8-9. Trial counsel further

indicated to the trial court that appellant did not have any affirmative defenses, but was

just proclaiming his innocence. The trial court noted that appellant had the chance to say

at his plea hearing that he was innocent and that the State was prejudiced since “[t]hey

were ready to go trial. This was like a day or two before the trial was coming up.”

Transcript at from October 30, 2017 hearing at 11.

       {¶25} Subsequently, on November 20, 2017, the trial court stated, in part, as

follows on the record:

       {¶26} The Defendant’s motion is based upon, quote, improperly advising that his

sentence would be 78 to life, zero chance to win, his witnesses would not be called. No

evidence of these statements was presented, only hearsay allegations of the Defendant’s

interpretation of what may have been said. As far as what allegedly was said, the fact

that the Defendant was facing up to 78 to life must be conveyed as it is the maximum

penalty. Should an attorney, after getting discovery and investigating the case, feel his

case is not winnable, he or she should give their opinion to the Defendant.
Muskingum County, Case No. CT2017-0090                                             7


       {¶27} Potential comments of the prior attorney with respect to witnesses may have

been premised upon the rules of testimony and - - and inadmissibility or the possible

witnesses being effective - - ineffective or harmful to the Defense.

       {¶28} I don’t know what was said in these attorney-client conversations, but I do

know when I asked the Defendant if he was satisfied with the advice and help that Mr.

McKay has given you, the Defendant stated yes.

       {¶29} The court cannot find there to be a reasonable and legitimate basis to

withdraw the plea entered by counsel - - advice of counsel who had discovery, invested

the time, energy, and resources to investigate the case; brought by attorneys who have

not had the same with - - without additional proof as to why the plea should be withdrawn.

Therefore, the motion to withdraw is denied.

       {¶30} Transcript of November 20, 2017 hearing at 5-6.

       {¶31} Based on the foregoing, we find that the trial court did not abuse its

discretion in denying appellant’s motion. The trial court’s decision was not arbitrary,

unreasonable or unconscionable.

       {¶32} Appellant’s sole assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2017-0090                                  8


       {¶33} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.
