[Cite as State v. Ybarra, 2019-Ohio-4824.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio/City of Perrysburg                      Court of Appeals No. WD-19-006

        Appellee                                      Trial Court No. CRB 1801581

v.

Ricardo Ybarra                                        DECISION AND JUDGMENT

        Appellant                                     Decided: November 22, 2019

                                               *****

        Chynna L. Fifer, City of Perrysburg Prosecutor, for appellee.

        Michael B. Kelley, for appellant.

                                               *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Ricardo Ybarra, appeals the February 4, 2019

judgment of the Perrysburg Municipal Court denying his motion to withdraw his plea of

no contest. For the reasons that follow, we affirm the trial court judgment.

                                             I. Background

        {¶ 2} On December 4, 2018, Ricardo Ybarra was charged in Perrysburg Municipal

Court with domestic violence, a violation of R.C. 2919.25(A), a first-degree
misdemeanor, and unauthorized use of a vehicle, a violation of R.C. 2913.03(A), also a

first-degree misdemeanor. He entered a plea of not guilty on December 12, 2018. On

December 14, 2018, the matter was set for a pretrial, however, Ybarra elected that day to

enter a plea of no contest to the domestic-violence charge, in exchange for dismissal of

the charge of unauthorized use of a vehicle. The Perrysburg Municipal Court judge

accepted Ybarra’s plea and made a finding of guilt. She continued the case for

sentencing so that a presentence investigation report (“PSI”) could be prepared.

       {¶ 3} On December 21, 2018, Ybarra moved to withdraw his plea of no contest.

Soon thereafter, a new judge was appointed to the Perrysburg Municipal Court.

Following a hearing on January 4, 2019, the new Perrysburg Municipal Court judge

denied Ybarra’s motion. The matter proceeded to sentencing, and the court imposed a

jail term of 180 days in the Wood County Justice Center.

       {¶ 4} Ybarra appealed. We determined that the January 4, 2019 judgment entry

was not final and appealable because it failed to state that Ybarra was found guilty and

convicted of the offense. We remanded the case to the trial court for entry of a final

appealable order. The court entered an amended judgment on February 4, 2019, and we

reinstated the appeal to our docket.

       {¶ 5} Ybarra assigns the following errors for our review:

              I. Appellant’s motion to withdraw his no contest plea should have

       been granted, and the court abused its discretion.




2.
              II. Appellant’s no contest plea was not knowingly, intelligently and

       voluntarily entered.

                                   II. Law and Analysis

       {¶ 6} Ybarra argues in his first assignment of error that the trial court abused its

discretion in denying his motion to withdraw his no-contest plea. He argues in his second

assignment of error that his plea should be vacated because it was not entered knowingly,

intelligently, and voluntarily. We consider each of these assignments in turn.

               A. The trial court did not abuse its discretion in denying
                  Ybarra’s motion to withdraw his no-contest plea.

       {¶ 7} The trial court denied Ybarra’s motion to withdraw his plea of no contest. It

found that Ybarra understood the court process and what was happening at the time of his

plea, and it concluded that Ybarra had exhibited mere “buyer’s remorse.” In his first

assignment of error, Ybarra argues that the trial court abused its discretion.

       {¶ 8} Crim.R. 32.1 governs the withdrawal of a plea of guilty or no contest and

provides that such motion “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.” The Ohio Supreme Court has

recognized that “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).

Nevertheless, “[a] defendant does not have an absolute right to withdraw a guilty plea

prior to sentencing.” Id. at paragraph one of the syllabus.




3.
       {¶ 9} While Crim.R. 32.1 does not specify the circumstances under which a

presentence motion to withdraw may be granted, Ohio courts typically evaluate nine

factors when considering such a motion:

              (1) whether the state will be prejudiced by withdrawal; (2) the

       representation afforded to the defendant by counsel; (3) the extent of the

       Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

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

       motion; (6) whether the timing of the motion was reasonable; (7) the

       reasons for the motion; (8) whether the defendant understood the nature of

       the charges and potential sentences; and (9) whether the accused was

       perhaps not guilty or had a complete defense to the charge.

State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th

Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001)

(“Griffin factors”). A mere change of heart is not a sufficient reason to permit

withdrawal of a plea. (Citations omitted.) State v. Acosta, 6th Dist. Wood No.

WD-15-066, 2016-Ohio-5698, ¶ 18.

       {¶ 10} Upon the filing of a motion to withdraw a plea, the trial court “must

conduct a hearing to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea.” Xie at paragraph one of the syllabus. It is then left to the

discretion of the trial court whether to allow the defendant to withdraw his or her plea.




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Id. at paragraph two of the syllabus. We will reverse the trial court’s decision only where

there has been an abuse of that discretion. Id. at 527.

       {¶ 11} Ybarra maintains that at the plea hearing, he responded that he understood

the effect of his plea only after the court explained it to him four times. Even after that,

he claims, he told the judge that he did not understand that he may be prohibited under

federal law from owning or possessing firearms. Ybarra explains that while he speaks

English, he does not read or write English, and he signed a rights form without reading it.

He insists that he is innocent and he maintains that at the time he entered his plea, he was

nervous, confused, and embarrassed. Ybarra contends that his confusion by the court

process was further demonstrated when, at the motion hearing, he “babble[d] senselessly”

about double jeopardy, indicated that he only “kind of” understood the effects of

withdrawing his plea, asked the court to amend the charges at an inappropriate time, and

requested OR bond at an inappropriate time.

       {¶ 12} The city maintains that the newly-appointed municipal court judge

reviewed the video recordings from the arraignment and plea hearing, held a hearing, and

considered the relevant case law and factors before denying Ybarra’s motion. While it

concedes that the motion was timely filed and that it would not be prejudiced by

withdrawal of the plea, it insists that Ybarra had competent counsel who stopped the

hearing when necessary to explain things to him, the court ensured that Ybarra

understood the difference between the possible pleas, and the court explained the

potential sentence that could be imposed. The city claims that Ybarra did not assert




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innocence at the plea hearing, and was concerned only with whether it would be “better”

to enter a plea of guilty or no contest. It contends that the court properly concluded that

Ybarra understood the plea and had merely experienced “buyer’s remorse” after entering

the plea.

       {¶ 13} After reviewing the hearing transcripts, the video recordings, and the

arguments of the parties, we resolve the nine Griffin factors as follows.

       {¶ 14} Prejudice to the state. While the city objected to Ybarra’s motion, it did

not indicate that it would be prejudiced if Ybarra were permitted to withdraw his plea. It

concedes on appeal that it would not be prejudiced. This factor, therefore, weighs in

favor of allowing Ybarra to withdraw his plea.

       {¶ 15} Representation afforded to the defendant by counsel. The trial court found

that Ybarra was represented by competent defense counsel who reviewed Ybarra’s rights

with him, including his right to a trial. We agree with the court’s conclusion, and we find

that this factor weighs against allowing Ybarra to withdraw his plea.

       {¶ 16} The extent of the Crim.R. 11 plea hearing and whether the defendant

understood the nature of the charges and potential sentences. Ybarra initially planned to

enter a plea of guilty to the domestic violence charge. The trial court told him that it

would be a complete admission to the charge, so Ybarra asked if he could plead no

contest because he just wanted “to resolve the matter.” He asked whether that would be

the same thing. A brief recess was taken, during which the city consented to allowing




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Ybarra to enter a no-contest plea instead of a guilty plea. The court and Ybarra engaged

in the following exchange:

             The court: Mr. Ybarra, do you understand that with a no contest

      plea, you’re not admitting guilt, but you are accepting as true any

      statements contained in the charge or stated in court?

             The defendant: Yes, ma’am.

             The court: And based on that plea then, the Court would – could

      find you guilty and sentence you up to 180 days in the Wood County

      Justice Center, up to a $1,000 fine, do you understand that?

             The defendant: Not really. I just want the best thing and I want this

      resolved. * * * So, I mean, I don’t know what is better, the no contest or

      just pleading guilty.

             The court: I’m just telling you the effect of the plea. The no contest

      plea would not be used against you in a later civil or criminal matter. Even

      though the plea would not be used against you, a conviction on this charge

      could be used in the future to enhance a similar offense to a felony. Do you

      understand that a domestic violence charge is an enhanceable offense? If

      you’re convicted of the charge and in the future charged with a similar

      offense, that similar offense would be enhanced to a felony.

             The defendant: I will just plead guilty.

             ***




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             The court: The difference between a guilty plea is that is a complete

     admission, yes, I did it. The difference between a no contest plea is, you’re

     not admitting that you did it, but you’re not going to argue the facts of the

     case.

             The defendant: Then that’s what I want to do.

             ***

             The court: So, just let me – for the record – go through once again

     the no contest plea. You’re not admitting guilt, but you are accepting as

     true the statements contained in the charge or stated in court. The no

     contest plea would not be used against you in a later civil or criminal

     matter, do you understand.

             The defendant: Yes, ma’am.

             The court: All right. The effect of the plea. I do need to go over

     that this is an enhanceable offense. The plea would not be used against

     you, but a conviction could be used against you to enhance a future

     domestic violence or similar offense to a felony, do you understand?

             The defendant: Yes, ma’am.

             The court: With this charge and a conviction on this charge, you

     could be prohibited under federal law from owning or possessing any

     firearms or weapons, do you understand that?

             The defendant: I don’t. Yes, ma’am.




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The trial court also confirmed that Ybarra is an American citizen and that he was not

under the influence of any illegal drugs or alcohol.

       {¶ 17} The trial court concluded that the only concern exhibited by Ybarra during

the plea hearing was the difference between a no contest and a guilty plea. We agree

with that assessment, and we conclude that the judge who accepted Ybarra’s plea

patiently described the difference to Ybarra until he understood. There appeared to be no

language barrier affecting Ybarra’s understanding of the proceedings. And to the extent

that Ybarra initially responded “I don’t” when the judge asked him if he understood that

he could be prohibited from owning or possessing a firearm, our review of the video

recording convinces us that Ybarra was responding that he does not own or possess a

firearm—not that he did not understand that he may be prohibited from owning or

possessing them if convicted. In fact, he interrupted the court, such that the exchange

that took place more accurately reads as follows:

              The court: With this charge and a conviction on this charge, you

       could be prohibited under federal law from owning or possessing any

       firearms or weapons * * *

              [Defendant interrupts]: I don’t.

              [Court continues]: * * * do you understand that?

              [Defendant responds]: Yes, ma’am.




9.
       {¶ 18} We, therefore, conclude that Ybarra’s Crim.R. 11 plea hearing was

extensive, and that he understood the nature of the charges, the potential sentence, and

the effect of his plea. These factors weigh against allowing Ybarra to withdraw his plea.

       {¶ 19} The extent of the hearing on the motion to withdraw and whether the trial

court gave full and fair consideration to the motion. The newly-appointed municipal

court judge conducted a full hearing at which both Ybarra and his counsel were permitted

to speak. The court had clearly reviewed all materials pertinent to Ybarra’s motion,

including video recordings of the arraignment and plea hearing, and it asked thoughtful

questions. It ultimately concluded that Ybarra’s only confusion was over whether it was

more beneficial for him to enter a plea of “guilty” or “no contest,” and observed that the

trial judge who accepted his plea explained this to him “ad nauseam” until Ybarra

understood. Having reviewed the same materials reviewed by the trial judge, we agree

with the court’s conclusion and we find that these factors weigh against allowing Ybarra

to withdraw his plea.

       {¶ 20} The timing of the motion. The motion was filed one week after Ybarra

entered his plea and ten days before the date originally scheduled for the sentencing

hearing. The city concedes that the timing of his motion was reasonable. This factor

weighs in favor of allowing Ybarra to withdraw his plea.

       {¶ 21} The reasons for the motion. Ybarra claimed in his motion that he did not

know what was going on at the time of entering his plea. He maintained that he was

confused as to the nature of the plea and “did not understand he was admitting guilt.”




10.
Ybarra insisted that he was too embarrassed and nervous to ask too many questions of

defense counsel, so “he agreed at times with Counsel and the Court out of a desire to be

socially pleasing.” He indicated that after returning to the jail, speaking with other

inmates, reading in the library, and meeting with probation, it became clear to him “that

he made admissions.” Ybarra also summarily stated that “[he] is innocent and wishes to

have a trial,” without any further explanation.

       {¶ 22} At the plea hearing, however, Ybarra demonstrated eagerness to resolve the

charges. Indeed, Ybarra never wavered in his desire to enter a plea that would resolve the

case; he merely questioned whether he should plead guilty or no contest. The court fully

explained the difference to Ybarra until he understood. And despite Ybarra’s contention

that it was not until later that it became clear to him “that he made admissions,” the court

specifically advised him that by his plea, he would not be admitting guilt, but rather

would be “accepting as true any statements contained in the charge or stated in court.”

We agree with the trial court that Ybarra exhibited a mere change of heart, or, in the

court’s words, “buyer’s remorse.” This factor weighs against allowing Ybarra to

withdraw his plea.

       {¶ 23} Whether the accused was perhaps not guilty or had a complete defense to

the charge. As stated, at the plea hearing, Ybarra made clear that he entered the plea

because he wished to resolve the matter quickly. He did not profess his innocence, or

make any equivocal statements in that regard, on the record. This case is unlike State v.

Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 6, in which the defendant




11.
repeatedly disputed the state’s version of events at the plea hearing and, when asked how

he wished to plead to the charge of felonious assault, attempted to explain that he was

“[j]ust trying to get away from him. Guilty, I guess.”

       {¶ 24} Regardless, a court’s consideration of this factor is not limited to whether

the accused maintained his innocence but, rather, whether the “accused was perhaps not

guilty or had a complete defense to the charge.” Here, Ybarra never admitted assaulting

the victim. He ultimately maintained that she inflicted injury upon herself while under

the influence of drugs in order to blackmail him into staying with her and to convince

him to obtain more drugs for her. The issue of Ybarra’s guilt is entirely factual and, if

this matter went trial, would depend largely upon the jury’s determinations of witness

credibility. We therefore find that this factor weighs neither for nor against Ybarra.

       {¶ 25} Considering the Griffin factors as a whole, we conclude that the trial court

did not abuse its discretion when it denied Ybarra’s motion to withdraw his plea. Ybarra

was represented by competent counsel, his Crim.R. 11 plea hearing and hearing on his

motion to withdraw his plea were extensive, he understood the nature of the charges and

potential sentence, and the trial court gave full and fair consideration to his motion. We

agree with the trial court that Ybarra exhibited a mere change of heart. We find that the

trial court did not abuse its discretion in denying his motion, and we find his first

assignment of error not well-taken.




12.
            B. Ybarra’s plea was entered knowingly, intelligently, voluntarily.

         {¶ 26} In his second assignment of error, Ybarra argues that the trial court erred in

accepting his plea because it was not entered knowingly, intelligently, and voluntarily.

For the most part, his arguments mirror those made in support of his first assignment of

error. But he also adds that the trial court failed to advise him of his trial rights, including

the “right to jury or court trial, cross-exam, subpoena own witnesses, presumption of

innocence, right to remain silent, State burden of proof [sic].”

         {¶ 27} Ybarra cites Crim.R. 11(C) as setting forth the advisements necessary to

render his plea knowing, intelligent, and voluntary. But Crim.R. 11(C) governs pleas of

guilty and no contest in felony cases. Ybarra entered a plea to a misdemeanor.1

         {¶ 28} The advisements required for misdemeanors under Crim.R. 11 depend on

whether the misdemeanor is a “serious offense” or a “petty offense.” Crim.R. 2(C)

defines “serious offense” as “any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months.” A petty offense is

defined under Crim.R. 2(D) as “a misdemeanor other than [a] serious offense.” Because

Ybarra entered a plea to a first-degree misdemeanor, punishable by up to 180 days in jail,

the offense at issue is considered “petty” and Crim.R. 11(E) sets forth the necessary

advisements.

         {¶ 29} Under Crim.R. 11(E), “the court may refuse to accept a plea of guilty or no

contest, and shall not accept such pleas without first informing the defendant of the effect



1
    The city also incorrectly cites the rule applicable to felony cases.


13.
of the plea of guilty, no contest, and not guilty.” Under the plain language of the rule, the

trial court was required “to do one thing before accepting a plea of guilty or no contest in

a petty offense case, ‘inform[ ] the defendant of the effect of the plea[.]’” See State v.

Higby, 9th Dist. Wayne No. 10CA0054, 2011-Ohio-4996, ¶ 4, quoting State v. Jones, 116

Ohio St.3d 211, 2007-Ohio-6093, paragraph one of the syllabus.

       {¶ 30} Crim.R. 11(B)(2) explains the effect of a no-contest plea: “The plea of no

contest is not an admission of defendant’s guilt, but is an admission of the truth of the

facts alleged in the indictment, information, or complaint, and the plea or admission shall

not be used against the defendant in any subsequent civil or criminal proceeding.” See

Higby at ¶ 4, quoting Jones at paragraph two of the syllabus (“Criminal Rule 11(E)’s

‘effect of the plea’ language refers to Criminal Rule 11(B), which is titled ‘[e]ffect of

guilty or no contest pleas[.]’”).

       {¶ 31} As fully explained in our discussion of Ybarra’s first assignment of error,

the trial court explained to Ybarra the effect of his plea. Ybarra expressed that he

understood the effect of his plea. We, therefore, conclude that the trial court made the

advisements necessary under Crim.R. 11(E) to render Ybarra’s plea knowing, intelligent,

and voluntary.

       {¶ 32} We find Ybarra’s second assignment of error not well-taken.

                                      III. Conclusion

       {¶ 33} Our review of the nine Griffin factors leads us to conclude that the trial

court did not abuse its discretion when it denied Ybarra’s motion to withdraw his guilty




14.
plea. We also conclude that the trial court properly explained the effect of his no contest

plea as required under Crim.R. 11(E) and ensured Ybarra’s understanding of the effects

of his plea, thus his plea was entered knowingly, intelligently, and voluntarily.

       {¶ 34} Accordingly, we find Ybarra’s two assignments of error not well-taken.

We affirm the February 4, 2019 judgment of the Perrysburg Municipal Court. Ybarra is

ordered to pay the costs of this appeal under App.R. 24.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
CONCUR.                                         _______________________________
                                                            JUDGE

Gene A. Zmuda, J.,
DISSENTS.


       ZMUDA, J., dissenting:

       {¶ 35} Because I conclude that the trial court abused its discretion by denying

Ybarra’s presentence motion to withdraw his guilty plea without exploring his claim of

innocence at the change of plea hearing, I must respectfully dissent.




15.
       {¶ 36} In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), the Supreme

Court of Ohio directed that a trial court “must conduct a hearing to determine whether

there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph

one of the syllabus. In the motion to withdraw that Ybarra filed with the trial court, he

asserted that he wished to withdraw his guilty plea because he felt pressured to enter into

it despite being innocent. Importantly, Ybarra has consistently maintained his innocence

throughout the duration of these proceedings.

       {¶ 37} Despite the claim of innocence articulated in Ybarra’s motion to withdraw,

defense counsel did not raise Ybarra’s innocence at the withdrawal hearing, and the trial

court did not question Ybarra on the innocence issue. Instead, the trial court focused

exclusively on the extent to which Ybarra understood the plea proceedings. Admittedly,

defense counsel indicated at the beginning of the withdrawal hearing that Ybarra did not

understand what he was doing at the time of the plea, so I find that the trial court

appropriately examined that issue. However, entitlement to withdraw a plea presentence

is not limited to situations in which the plea was the product of a defendant’s

misunderstanding. Such a motion may also be granted for other reasons, including a

defendant’s claim of innocence.

       {¶ 38} Trial counsel did not articulate the innocence claim at the hearing, but that

claim was prominent within the written motion to withdraw. Moreover, Ybarra’s claim

of innocence is clearly articulated in the presentence investigation report, which was not

referenced by the trial court at the hearing. Thus, I find it problematic that the trial court




16.
failed to also address Ybarra’s claim of innocence, which was the most persuasive basis

for Ybarra’s motion to withdraw.

       {¶ 39} I find that the trial court’s failure to consider Ybarra’s claim of innocence is

especially troubling given the fact that Ybarra’s motion to withdraw was filed

presentence. As noted by the majority in its analysis, presentence motions to withdraw

are to be freely and liberally granted. Xie at 527. Under this liberal standard, trial courts

should be required to at least address a movant’s claim of innocence. Indeed, we have

previously stated that “[w]hen a defendant claims he is innocent and wishes to withdraw

his plea of guilt prior to sentencing, a comparison of the interests and potential prejudice

to the respective parties weigh heavily in the interests of the accused.” State v. Hartman,

6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 29. Failing to address a defendant’s

claim of innocence renders the withdrawal hearing mandated by Xie ineffective, because

the court has not satisfied its obligation to determine whether there is a reasonable and

legitimate basis for the withdrawal of the plea. Id. at ¶ 21; see also State v. Eversole, 6th

Dist. Erie Nos. E-05-073, 2006-Ohio-3988, ¶ 14 (“The scope of a hearing on an

appellant’s motion to withdraw his guilty plea should reflect the substantive merits of the

motion.”).

       {¶ 40} Our decision in Hartman is compelling because the trial court in that case

actually “conducted an extensive hearing on the substantive merits of Hartman’s motion,

by hearing arguments from both sides, and personally questioning Hartman and

Hartman’s former counsel regarding the asserted basis for the motion to withdraw.”




17.
Hartman at ¶ 21. Despite that hearing, this court correctly found that the trial court failed

to give full and fair consideration to the motion. Id. at ¶ 23.

       {¶ 41} Here, the trial court’s hearing consisted of confirming that the Crim.R. 11

plea colloquy was proper. Indeed, the record reveals that the trial court failed to ask

Ybarra or his counsel why he was seeking to withdraw his plea. The trial court concluded

that Ybarra’s motion to withdraw was motivated by a change of heart, without first

addressing the reasons offered by Ybarra in support of his request to withdraw his plea.

In its analysis of the Griffin factors, the majority examines Ybarra’s claim of innocence,

ultimately concluding that it rests upon factual considerations that neither weigh for or

against Ybarra. While the majority’s conclusion may be reasonable, it does not

overcome the fact that the trial court failed to conduct the proper analysis. Without an

inquiry into Ybarra’s claim of innocence, I find that the trial court’s change of heart

conclusion was arbitrary and unreasonable. See Hartman at ¶ 28 (rejecting the notion

that a defendant merely had a change of heart where he maintained his innocence

throughout the proceedings). Consequently, I would hold that the trial court abused its

discretion in denying Ybarra’s motion and reverse.

       {¶ 42} Because the majority holds otherwise, I must respectfully dissent.




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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