[Cite as State v. Greenlee, 2020-Ohio-2957.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case Nos. 28467 & 28468
                                                     :
 v.                                                  :   Trial Court Case Nos. 2018-CRB-1708
                                                     :                      2018-CRB-2232
 KIEL T. GREENLEE                                    :
                                                     :   (Criminal Appeal from
         Defendant-Appellant                         :   Municipal Court)
                                                     :

                                                ...........

                                               OPINION

                              Rendered on the 15th day of May, 2020.

                                                ...........

JOHN D. EVERETT, Atty. Reg. No. 0059911, Assistant Prosecuting Attorney, City of
Kettering Prosecutor’s Office, 2325 Wilmington Pike, Kettering, Ohio 45420
       Attorney for Plaintiff-Appellee

THADDEUS A. HOFFMEISTER, Atty. Reg. No. 0081977, and Legal Interns Samantha
Hughes and Davis Schwartz, University of Dayton School of Law, 300 College Park Drive,
Keller Hall, Dayton, Ohio 45469
       Attorneys for Defendant-Appellant

                                               .............




HALL, J.
                                                                                          -2-




       {¶ 1} Kiel T. Greenlee appeals from his conviction following a negotiated guilty plea

to charges of disorderly conduct in two separate cases.

       {¶ 2} In his sole assignment of error, Greenlee contends the trial court erred in

overruling a presentence plea-withdrawal motion he filed one day before sentencing in

the two cases, which have been consolidated for appeal.

       {¶ 3} In September 2018, Greenlee was charged with domestic violence, a first-

degree misdemeanor, in Kettering Municipal Court Case No. 2018-CRB-1708.                   In

November 2018, he was charged with domestic violence and assault, both first-degree

misdemeanors, in Kettering Municipal Court Case No. 2018-CRB-2232.

       {¶ 4} On February 15, 2019, Greenlee appeared for a final pretrial conference in

the first case. He had an own-recognizance bond at the time. He also knew that an arrest

warrant had been issued for him in the second case. (Tr. at 17-18.) While waiting in a

hallway for his pretrial conference, Greenlee was arrested and taken to a holding cell in

connection with the second case. (Tr. at 19-20.) A short time later, he met with his attorney

about the situation. During the subsequent hearing on his plea-withdrawal motion,

Greenlee testified that defense counsel told him the second case had a “very high” bond,

which Greenlee could not afford. (Tr. at 21.) According to Greenlee, his attorney told him

the only way he would be getting “out of that cell and not going downtown to [c]ounty [jail]”

would be to accept a plea bargain in the two cases. (Tr. at 22.) Greenlee testified that the

offer was to plead guilty to one count of fourth-degree-misdemeanor disorderly conduct

in each case.

       {¶ 5} Instead of proceeding with a pretrial conference in the first case, Greenlee
                                                                                            -3-


accepted the plea bargain. He appeared in open court on February 15, 2019 and pled

guilty to disorderly conduct in both cases. (Tr. at 11.) The trial court accepted the plea,

ordered a presentence investigation, and set the matter for sentencing on March 13,

2019. One day before sentencing, however, Greenlee moved to withdraw his plea in both

cases. In his written motion, he proclaimed innocence and asserted that his guilty pleas

were not freely and voluntarily made, as he entered them “for the purpose of being

released from custody.”        In light of Greenlee’s motion, the trial court postponed

sentencing and held a plea-withdrawal hearing on May 29, 2019.

       {¶ 6} The first witness at the hearing was Greenlee. As set forth above, he testified

that he pled guilty because his attorney told him that accepting a plea deal was the only

way he would get to go home that day. Greenlee testified that he responded by telling

counsel that he “felt very strong-armed and duressed [sic] into taking these pleas” in order

to get released from confinement. (Tr. at 23.) According to Greenlee, his attorney then

reiterated that accepting the plea deal “was the only way that [he] was going to be getting

released that day.” (Id.) Greenlee also claimed his attorney told him it would be hard to

fight the two cases sitting in jail. (Tr. at 24.) He also testified that he possessed “proof of

affirmative defenses.” (Id.) Based on those two factors—duress and viable affirmative

defenses—Greenlee asserted that he should be permitted to withdraw his pleas. (Tr. at

25.) On re-direct examination, he suggested that a sense of “panic” and surprise at being

arrested overcame his free will, causing him to feel that “the only way out” was to accept

a plea bargain. (Tr. at 29.)

       {¶ 7} Following Greenlee’s testimony, the prosecution called Kyle Lennon, who

was Greenlee’s attorney at the time of the plea bargain. Lennon confirmed that he spoke
                                                                                        -4-


to the prosecutor about a global resolution of the two cases before presenting the plea

bargain to his client. (Tr. at 34.) The final witness was prosecutor John Everett. He

testified that he drafted a plea agreement, amended the charges to disorderly conduct,

and gave the agreement to defense counsel. (Tr. at 39.) On cross-examination, Everett

opined that Greenlee could not have been “shocked” about being arrested given his

awareness of the outstanding arrest warrant in connection with the second case. (Tr. at

41.) Everett also testified that, based upon his experience with the trial court judge,

Greenlee likely would have been required to post a cash bond rather than an own-

recognizance bond on the second domestic-violence case. (Tr. at 43.)

      {¶ 8} Following the hearing, the trial court overruled Greenlee’s motion to withdraw

his guilty pleas. (Entry & Order, June 20, 2019.) In support of its ruling, the trial court

reasoned:

             Three weeks after his pleas and one day before sentencing,

      Defendant apparently had a change of heart and through counsel filed a

      motion to withdraw his pleas asserting he wasn’t guilty and made the pleas

      for the sole purpose of getting out of jail. The Court set the motion for a

      hearing. Based on a potential conflict of interest between Defendant and his

      attorney, the Court continued the original hearing date and appointed new

      counsel to represent Defendant.

             At the hearing Defendant claimed that he was under duress and only

      pled guilty because he was afraid that he would be held in jail if he did not

      plead. Yet, the record is devoid of any representation to Defendant that the

      Court would hold him in jail if he did not accept the plea agreement which
                                                                                 -5-


he and counsel requested.

       The credible testimony offered at the hearing indicates that the

Defendant through his counsel approached the State asking for the plea

offer that was ultimately made and accepted by Defendant.

       Defendant pointed out in his testimony that he has extensive training

as a paralegal and significant experience in the legal system. Yet he now

claims that he pled guilty due to duress and threats. Yet the record is devoid

of any such threats.

***

       In the instant case, the Court finds that Defendant’s claims of duress

lack credibility. His demeanor in Court at the time of his pleas was not that

of a timid, uneducated or frightened man, but rather that of a man who knew

exactly what he was doing, who knowingly, voluntarily and intelligently pled

guilty to amended less serious charges. Then, three weeks later, one day

before sentencing, Defendant suddenly claims duress in an attempt to set

aside those pleas. The fact that Defendant in his testimony clearly

comprehends what he must claim if he is to successfully have his pleas

vacated, does not make his claim honest or sincere. In this instance the

Court finds the claim disingenuous.

       Defendant has played games with the law throughout the pendency

of these matters, by ignoring legal procedures, mocking the Court and doing

things his way. Perhaps he believes that if he is successful in withdrawing

his knowing, voluntary and intelligent pleas he will be able to continue
                                                                                         -6-


         playing games his way rather than complying with the rules that apply to

         everyone else. This the Court cannot sanction. Accordingly, Defendant’s

         motion to withdraw his guilty pleas in the above-captioned cases is hereby

         overruled.

(Tr. at 4-7.)

         {¶ 9} The trial court sentenced Greenlee to concurrent 30-day jail terms. In one of

the cases, it suspended 25 days and gave him two days of jail-time credit. In the other

case, it suspended 27 days with no jail-time credit. The result was that Greenlee was

required to serve a three-day jail sentence. He also received a $100 fine in each case

and was ordered to pay court costs. Finally, the trial court imposed a two-year probation

term.1

         {¶ 10} On appeal, Greenlee challenges the trial court’s overruling of his motion to

withdraw his guilty pleas. That issue is governed by Crim.R. 32.1, which provides: “A

motion to withdraw a plea of guilty or no contest may be made only before sentence is

imposed; but to correct a manifest injustice the court after sentence may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea.”

         {¶ 11} A presentence motion to withdraw a guilty plea “should be freely and

liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). But even

under the presentence standard, the right to withdraw a plea is not absolute. A trial court

retains discretion to overrule a presentence motion. Id. We review a trial court’s ruling on

a presentence motion to withdraw a plea for an abuse of discretion. State v. Massey, 2d



1We note that Greenlee moved for a stay of execution of his sentences, thereby negating
any potential mootness issue.
                                                                                           -7-


Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 10, citing State v. DeJesus, 2d Dist.

Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16.

       {¶ 12} When reviewing a trial court’s denial of a presentence motion to withdraw a

plea, we examine nine factors: “(1) whether the accused was 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, (4) whether the trial

court gave full and fair consideration to the motion, (5) whether the motion was made

within a reasonable time, (6) whether the motion sets out specific reasons for the

withdrawal, (7) whether the accused understood the nature of the charges and possible

penalties, (8) whether the accused was perhaps not guilty of or had a complete defense

to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the

plea.” State v. Betts, 2d Dist. Clark No. 2019-CA-18, 2019-Ohio-5008, ¶ 17. A balancing

test applies to the foregoing factors, and no single factor is dispositive. Massey at ¶ 11.

The ultimate question is whether there exists a “reasonable and legitimate basis for the

withdrawal of the plea.” Xie at 527. A “change of heart” is not enough. Betts at ¶ 16.

       {¶ 13} Here Greenlee addresses each of the nine factors, arguing that they

collectively establish a reasonable and legitimate basis for withdrawing his guilty pleas.

With regard to the first factor, he concedes that his attorney did not render constitutionally

ineffective assistance in connection with the plea bargain. He suggests, however, that

counsel “likely” failed to provide highly-competent representation. In support, he cites his

hearing testimony that he accepted the plea agreement under “duress” because defense

counsel told him accepting the deal was the only way to get out of jail that day.

       {¶ 14} We find Greenlee’s argument about defense counsel’s level of competence
                                                                                          -8-


unpersuasive for at least three reasons. First, the trial court explicitly found not credible

his claim about being under “duress” due to concern about being required to remain in

jail. Second, other than Greenlee’s testimony (which the trial court found lacking in

credibility), the record contains no evidence establishing that defense counsel did tell him

he would remain in jail with a cash bond set if he did not accept a plea deal. Third, even

if defense counsel opined that Greenlee would not be released from jail that day unless

he accepted the plea bargain, we see nothing improper about expressing this opinion. At

the plea hearing, the prosecutor similarly testified that, based on his experience with the

trial court judge, Greenlee would not have received an own-recognizance bond on the

second domestic-violence case. The fact that Greenlee may have had to choose between

remaining in jail following his arrest or accepting a plea bargain and being released does

not demonstrate sub-par performance by counsel. Assuming, arguendo, that Greenlee

faced such a decision, he made a reasoned choice to accept an objectively favorable plea

bargain and to be released. Three weeks later, on the eve of sentencing, Greenlee

changed his mind and moved to withdraw his guilty pleas. The trial court reasonably

characterized this action by Greenlee as a “change of heart,” which is not grounds to

withdraw a plea before sentencing.

       {¶ 15} With regard to the second and third factors, Greenlee concedes that he

received a full Crim.R. 11 hearing before entering his guilty pleas and that a full hearing

was held on his plea-withdrawal motion. As for the fourth factor, however, he contends

the trial court did not give full and fair consideration to his motion. More specifically, he

argues that it was “unfair” to have his former counsel testify about the circumstances

surrounding the plea agreement when essentially the same information could have been,
                                                                                            -9-


and was, obtained through the testimony of the prosecutor. As “further evidence” of the

trial court’s failure to give his motion full and fair consideration, Greenlee contends the

trial court should have required an offer of proof to determine whether defense counsel

possessed any information that could not be obtained another way. Finally, Greenlee

claims the trial court failed to consider the lack of evidence to rebut his claim that he was

under “duress,” that it unfairly characterized his plea-withdrawal motion as “playing

games,” that it exhibited disdain for him by remarking that he had experienced a “change

of heart,” and that it held him to a higher standard by noting that he once was a paralegal.

       {¶ 16} Upon review, we find Greenlee’s arguments to be without merit. We fail to

see how he was prejudiced by his former attorney’s testifying consistently with the

prosecutor’s testimony about the undisputed circumstances of the plea agreement. We

also see no error in the trial court’s failing, sua sponte, to demand an offer of proof. As for

Greenlee’s claimed duress, the trial court acted within its discretion in finding his

testimony not credible. In any event, as explained above, any duress stemmed from the

fact that Greenlee found himself in jail after being arrested on an outstanding warrant. He

made a calculated choice to accept a plea bargain to extricate himself from that situation,

and the trial court reasonably characterized his eleventh-hour plea-withdrawal motion as

a “change of heart.” Moreover, the trial court’s reference to a “change of heart” was not a

sign of disdain. That language is found in case law governing plea-withdrawal motions.

As for its belief that Greenlee was “playing games,” the trial court was in the best position

to assess his actions and motives. We also are unpersuaded that the trial court held

Greenlee to a “higher standard” when it referenced his experience as a paralegal. The

trial court made the reference merely to point out that he had some familiarity with legal
                                                                                         -10-


matters.

       {¶ 17} With regard to the fifth factor, Greenlee contends his presentence plea-

withdrawal motion was made within a “reasonable” time because he made it before

sentencing, as required by Crim.R. 32.1. In our view, this merely establishes that

Greenlee made the motion within a permissible time. The trial court still was entitled to

consider the fact that Greenlee made the motion weeks after entering his plea and literally

the day before sentencing.

       {¶ 18} As for the sixth factor, Greenlee argues that his motion identified specific

reasons for withdrawing his plea. But the only reasons found in the motion included a

general claim that he was “not guilty” and a claim that his plea was “not freely and

voluntarily entered” because he accepted a plea bargain “for the purpose of being

released from custody.” (Motion to Withdraw Plea). During the plea-withdrawal hearing,

Greenlee elaborated on his “not guilty” claim only to the extent of professing to have non-

specified “proof” of non-specified “affirmative defenses.” As for the voluntariness of

Greenlee’s plea and his desire to be released from custody, we fully addressed that issue

above.

       {¶ 19} With regard to the seventh factor, Greenlee argues that he did not

understand the nature of the charges against him and the possible penalties when he

pled guilty. This argument is undermined, however, by his concession that the trial court

provided him with a full Crim.R. 11 hearing prior to the entry of his plea. Moreover, the

hearing transcript reflects that the trial court addressed the nature of the charges and the

penalties with Greenlee, who indicated that he understood. (Tr. at 4-11.) Greenlee now

claims on appeal that he “robotically” answered “yes” when the trial court inquired about
                                                                                        -11-


his understanding. He asserts that his answers were given out of habit due to his prior

experience with the criminal-justice system and were not indicative of real understanding.

Once again, however, the trial court reasonably could have concluded otherwise. Based

on its plea colloquy with Greenlee, the trial court reasonably could have found that he did

understand the nature of the charges and the penalties when it accepted his guilty plea

to two counts of disorderly conduct. The fact that Greenlee had six prior disorderly

conduct convictions supported such a determination. (Tr. at 49.)

       {¶ 20} As for the eighth factor, Greenlee insists that he had a complete defense to

the charges. He argues that he “clearly and unequivocally” established that fact during

his plea-hearing testimony. But he did not. As set forth above, he simply claimed to have

non-specified “proof” of non-specified “affirmative defenses.” He neither identified any

particular defense during the hearing nor made any attempt to establish its viability. The

most he did was reference an “affidavit of evidence” purportedly showing that he had

affirmative defenses. (Tr. at 22.)

       {¶ 21} With respect to Greenlee’s alleged “complete defense,” the record in Case

No. 2018-CR-2232 reflects that Greenlee filed a pro se Crim.R. 12 motion to dismiss on

December 3, 2018. The complaint in that case alleged that Greenlee had picked the lock

on his stepson’s bedroom door with a pocket knife and then “came towards” his stepson

with the open knife in his hand. His stepson allegedly pushed him away. Greenlee then

saw his stepson standing in the hallway with a baseball bat. According to the complaint,

Greenlee “came towards” his stepson and pushed him against the wall, causing a dent in

the wall. (Statement of Facts, Case No. 2018-CRB-2232.) In his motion to dismiss in that

case, Greenlee argued that his stepson had threatened him with the baseball bat and that
                                                                                         -12-


he responded by putting his stepson “against the wall.” He also argued that he merely

had used a multi-tool to pick a door lock to gain entry in the child’s bedroom. (Motion to

Dismiss.) His motion to dismiss raised an affirmative defense of reasonable and proper

parental discipline. (Id.) The trial court overruled the motion, noting that it relied on

Greenlee’s version of events. (Order, Dec. 5, 2018.) Greenlee responded by renewing

his pro se motion to dismiss two weeks later, arguing that the trial court had committed

plain error in overruling the first motion. (Motion, Dec. 20, 2018.) In support of his

renewed motion, Greenlee provided his own affidavit as well as affidavits from his mother

and wife. Once again, however, Greenlee’s affidavit supported his version of events, as

did the affidavit from his wife. His mother was not present at the time of the incident, and

her affidavit did not even address him approaching his stepson with a knife or pushing

the child against a wall. Notably absent from Greenlee’s submissions was an affidavit

from the alleged victim, his stepson.

       {¶ 22} In our view, the most that can be gleaned from Greenlee’s affidavits is that

he might have had a defense in the second domestic-violence case if a trier of fact

ultimately believed his version of events. Regardless, Greenlee plainly knew about that

defense when he entered his guilty pleas, and the trial court was entitled to take that fact

into consideration in denying his plea-withdrawal motion. State v. Crawford, 2d Dist.

Montgomery No. 27046, 2017-Ohio-308, ¶ 15 (“A court also does not abuse its discretion

by denying a [presentence] withdrawal motion if the motion is based on a complete

defense that the defendant was aware of when he entered the plea.”).

       {¶ 23} Finally, with regard to the ninth factor, we agree with Greenlee that it does

not appear as if the State would have been materially prejudiced if the trial court had
                                                                                       -13-


allowed him to withdraw his guilty pleas.

      {¶ 24} Upon considering all nine factors, however, the trial court did not abuse its

discretion in finding that Greenlee had experienced a change of heart and that he had not

shown a reasonable and legitimate basis for withdrawing his guilty pleas. Accordingly, we

overrule the assignment of error.

      {¶ 25} The judgment of the Kettering Municipal Court is affirmed.

                                     .............



DONOVAN, J. and FROELICH, J., concur.


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