[Cite as State v. Bailey, 2013-Ohio-2852.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2012 CA 00183
MATTHEW W. BAILEY

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2012 CR 00459(A)


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 28, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                EUGENE O'BYRNE
PROSECUTING ATTORNEY                           101 Central Plaza South
RENEE M. WATSON                                Canton, Ohio 44702
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012 CA 00183                                                   2

Wise, P. J.

       {¶1}   Appellant Matthew W. Bailey appeals the decision of the Stark County

Court of Common Pleas denying his motion to withdraw his guilty pleas.

       {¶2}   Appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On April 24, 2012, Appellant, Matthew W. Bailey, was indicted by the

Stark County Grand Jury on one count of Felonious Assault, in violation of R.C.

§2903.11(A)(2), a second degree felony with a firearm specification pursuant to R.C.

§2941.145; one count of Illegal Cultivation of Marijuana, in violation of R.C.

§2925.04(A)(C)(5)(D), a second degree felony; and four counts of Endangering

Children, in violation of R.C. §2919.22(B)(6), third degree felonies.

       {¶4}   These charges arose out of an incident which occurred on March 3, 2012.

Two co-defendants, Jessica Brown and Rhonda Bailey were also charged as result of

the events which occurred on March 3, 2012.1

       {¶5}   On July 17, 2012, Appellant changed his plea to guilty to all indicted

charges. The trial court ordered a presentence investigation and set sentencing for

August 13, 2012.

       {¶6}   Appellant subsequently hired new counsel and on August 10, 2012,

Appellant filed a Motion to Withdraw Plea with the trial court. In said motion, Appellant

argued that he should be permitted to withdraw his pleas because he did not have the

benefit of his own independent legal counsel when he entered his pleas and allegedly

did not understand the ramifications of his pleas.


1   For purposes of this appeal, this Court finds that a recitation of the facts is
unnecessary.
Stark County, Case No. 2012 CA 00183                                                     3


      {¶7}   The presentence investigation hearing was continued from August 13,

2012 to August 20, 2012. The trial court then scheduled the presentence investigation

hearing to August 27, 2012, and also set hearing on Appellant’s Motion to Withdraw for

the same day.

      {¶8}   On August 27, 2012, the trial court held a hearing on Appellant’s motion to

withdraw guilty pleas. During the hearing, counsel for Appellant advised the trial court

that Appellant had no issues with Attorney Pitinii’s representation, that he had done

nothing to jeopardize Appellant’s rights and that "everything was fine" in regard to their

attorney-client relationship. (T. 3-8). Appellant, through counsel, argued that while

Appellant was not challenging the drug charges, he did want to challenge the charge of

felonious assault with a firearm, arguing that he should have been charged with using

weapons while intoxicated instead. Id.

      {¶9}   Before taking the matter under advisement, the trial court pointed out that

using weapons while intoxicated is not a lesser included offense to felonious assault

with a firearm. Appellant acknowledged and agreed with the trial court. (T. at 13-14).

      {¶10} By Judgment Entry filed August 30, 2012, the trial court overruled

Appellant's Motion to Withdraw Plea.

      {¶11} The trial court sentenced Appellant to four (4) years on the felonious

assault charge, with three years to be served consecutive and prior to any other

sentence for the firearm specification. Appellant was sentenced to four (4) years on the

illegal cultivation of marijuana charge to be run concurrent with the felonious assault

sentence. On the child endangering charges, Appellant was sentenced to twelve
Stark County, Case No. 2012 CA 00183                                                   4


months for each count to be served concurrent with the drug charge, but consecutive to

the felonious assault charge, for an aggregate sentence of eight (8) years in prison

       {¶12} Appellant now appeals, assigning the following error for review:

                              ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING

APPELLANT TO WITHDRAW               HIS PLEA UPON HIS MOTION PRIOR TO

SENTENCING.”

                                            I.

       {¶14} In his sole Assignment of Error, Appellant argues the trial court erred in

denying his pre-sentence motion to withdraw his guilty pleas. We disagree.

       {¶15} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:

       {¶16} “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.”

       {¶17} This rule establishes a fairly strict standard for deciding a post-sentence

motion to withdraw a guilty plea, but provides no guidelines for deciding a presentence

motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).

       {¶18} The Ohio Supreme Court has stated pre-sentence motions to withdraw a

guilty plea “should be freely and liberally granted.” Id. at 584, 584 N.E.2d 715. That

does not mean, however, a defendant has an absolute right to withdraw a guilty plea

prior to sentencing. Id. at paragraph one of the syllabus. There must be “a reasonable
Stark County, Case No. 2012 CA 00183                                                    5

and legitimate basis for withdrawal of the plea.” Id. The decision to grant or deny a pre-

sentence plea withdrawal motion is within the trial court's sound discretion. Id.

       {¶19} The factors to be considered when making a decision on a motion to

withdraw a guilty plea are as follows: (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. Cuthbertson,

139 Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish,

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

conclusive. Cuthbertson, supra.

       {¶20} The trial court in this matter announced its decision on Appellant’s motion

on August 30, 2012, prior to sentencing.        The trial court stated that it had given

Appellant's motion full consideration and found that he was represented by highly

competent counsel during his plea hearing and had been given a full Crim.R. 11 hearing

prior to the court’s acceptance of his guilty pleas. Next, the trial court noted it had

reviewed the transcript of Appellant's plea hearing and found he understood the nature

of the charges and the possible penalties when he entered his pleas. Finally, the court

stated that there was no question as to Appellant's guilt on the marijuana and child

endangering charges, and even if Appellant believed he had a defense to the charge of

felonious assault, that issue had previously been brought to the attention of the court

and discussed when Appellant was represented by former counsel. The trial court
Stark County, Case No. 2012 CA 00183                                                     6


concluded by remarking that there was no pressure on Appellant to plead to the

charges, and that he had been afforded at least six (6) pre-trials prior to his decision to

enter his guilty pleas.

       {¶21} Based upon the above, we do not find the trial court abused its discretion

in denying Appellant's motion to withdraw his pleas.

       {¶22} Appellant’s sole Assignment of Error is overruled.

       {¶23} For the foregoing reasons, the decision of the Court of Common Pleas of

Stark County, Ohio, is affirmed.


By: Wise, P. J.

Baldwin, J., and

Delaney, J., concur

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
JWW/d 0614
Stark County, Case No. 2012 CA 00183                                         7


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




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MATTHEW W. BAILEY                         :
                                          :
       Defendant-Appellant                :         Case No. 2012 CA 00183




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
