[Cite as State v. Adams, 2012-Ohio-5979.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO,                               )    CASE NO.     12 MA 9
                                             )
        PLAINTIFF-APPELLEE,                  )
                                             )
VS.                                          )    OPINION
                                             )
DAVID ADAMS,                                 )
                                             )
        DEFENDANT-APPELLANT.                 )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 09CR1282.

JUDGMENT:                                         Judgment Reversed; Plea Vacated;
                                                  Case Remanded.

APPEARANCES:
For Plaintiff-Appellee:                           Attorney Paul Gains
                                                  Prosecuting Attorney
                                                  Attorney Ralph Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant:                          Attorney J. Dean Carro
                                                  Director, Legal Clinic
                                                  University of Akron School of Law
                                                  Office of Appellate Review
                                                  Akron, Ohio 44325-2901

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                  Dated: December 14, 2012
[Cite as State v. Adams, 2012-Ohio-5979.]

VUKOVICH, J.


        {¶1}    Defendant-appellant David Adams appeals the decision of the
Mahoning County Common Pleas Court denying his motion to vacate his Alford Plea.
The issue in this appeal is whether the trial court abused its discretion in denying the
pre-sentence motion to withdraw a plea. For the reasons expressed below, we find
that the trial court did abuse its discretion. Thus, the judgment of the trial court is
reversed, the plea is vacated, and the case is remanded for further proceedings.
                                  STATEMENT OF THE CASE
        {¶2}    In November 2009, Adams was indicted for eight counts of rape,
violations of R.C. 2907.02(A)(2)(B), first-degree felonies. In October 2011, a couple
days prior to trial, the state and Adams reached a plea agreement; Adams entered an
Alford Plea to all eight counts and the state agreed to recommend an aggregate
sentence of 15 years. 10/24/11 Hearing; 10/26/11 Alford Plea Agreement. After a
plea colloquy, the trial court accepted the Alford Plea.
        {¶3}    A little over two weeks later Adams filed a pre-sentence motion to
vacate the Alford Plea. He contended that he did not have enough time to think
about the plea and that after entering the plea he was “publicly humiliated by the
Vindicator and other published entities.” 11/14/11 Motion. The state filed a motion in
opposition claiming that the victim was comforted by the plea agreement knowing
that she would not be subject to reliving the abuse through her testimony,
negotiations had been ongoing for two years and defense counsel got the state to
reduce the recommendation from 25 years to 15 years.             The state claimed that
Adams was just having a change of heart. 11/18/11 Motion. Following a hearing, the
trial court overruled the motion to vacate the plea. 11/20/11 J.E.; 11/22/11 Hearing.
Thereafter, Adams filed a motion for reconsideration, which the trial court denied.
12/1/11 Motion; 12/2/11 J.E.
        {¶4}    The case proceeded to sentencing.          Adams received an aggregate
sentence of 15 years. 12/22/11 J.E.         He received three years on each of the eight
                                                                                      -2-

counts. The first five counts were ordered to be served consecutively, while counts
six through eight were ordered to be served concurrently. 12/22/11 J.E.
         {¶5}   Adams has filed a timely appeal.
                               ASSIGNMENT OF ERROR
         {¶6}   “The trial court abused its discretion when it overruled appellant Adams’
presentence motion to withdraw his Alford Plea in violation of State v. Xie, 62 Ohio
St.3d 521, 584 N.E.2d 715 (1992) and Crim.R. 32.1.”
         {¶7}   Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:
“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.”    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 pre-
sentence motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).
         {¶8}   That said, the Ohio Supreme Court has stated that pre-sentence
motions to withdraw a guilty plea “should be freely and liberally granted.” Id. at 584.
That does not mean, however, that 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 and legitimate basis for withdrawal of the plea.” Id.
         {¶9}   The decision to grant or deny a pre-sentence plea withdrawal motion is
within the trial court's sound discretion. Id. at 526. Unless it is shown that the trial
court acted unfairly or unjustly, there has not been an abuse of discretion. Id. at 526.
         {¶10} 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
                                                                                   -3-

State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). We have
previously explained that no one Fish factor is absolutely conclusive. Cuthbertson at
899.
       {¶11} The transcript of the plea withdrawal hearing indicates that the trial
court did consider the Fish factors prior to making its decision. 11/22/11 Tr. 23-38.
Furthermore, the judgment entry details consideration of the Fish factors. 11/30/11
J.E.
       {¶12} The trial court found that the state would be prejudiced by the delay,
which is the first factor. The record indicates that one of the state’s witnesses was
retired Detective Ray Holmes. The state informed the court that Detective Holmes
would be unavailable to testify if the trial was scheduled for December 12, 2011.
11/30/11 J.E. The court also confirmed this with Detective Holmes. 12/2/11 Tr. 15.
       {¶13} Adams disagrees with that determination and argues the state has not
shown Detective Holmes’ unavailability or that it would be prejudiced by his
unavailability. He even argues that the trial could have been rescheduled to a date
when Detective Holmes was available.
       {¶14} The first available date to have the trial following the November 22,
2011 motion to withdraw the plea hearing was December 12, 2011. The record
indicates that Detective Holmes was unavailable because he would be on vacation
on December 12, 2011.       The record also indicates that Detective Holmes was
scheduled to testify at the trial that was scheduled to start on the date the plea was
accepted and that he was an investigator into the sex abuse.
       {¶15} From the record before us, we cannot find that the trial court’s decision
that Detective Holmes was unavailable on December 12, 2011 and that the state
would be prejudiced by his unavailability on that date if the trial was scheduled for
that date was incorrect.    For purposes of continuances, courts have held that
continuances are not unreasonable when an officer is unavailable to testify based on
a scheduled vacation and such time is not computed against the state. State v.
Kopchak, 5th Dist. No. 06CA108, 2007-Ohio-4026, ¶ 35 (speedy trial time was
tolled); State v. Burdick, 11th Dist. No. 98-G-2209 (May 26, 2000). See also State v.
                                                                                      -4-

Berrien CA2005-08-018, 2006-Ohio-4563, ¶ 30 (key witness unavailable due to
vacation).   Consequently, it would appear that even for purposes of determining
prejudice to the state if the motion to withdraw is granted, vacation would justify an
unavailability finding.
       {¶16} That said, while the state would have been prejudiced if trial was set for
December 12, 2011, we must also address whether prejudice would have resulted if
the trial could have been set for a later date when Detective Holmes was available to
testify. At the November 22, 2011 Motion to Withdraw the Plea Hearing, the state
indicated that if the trial court grants the request to withdraw the guilty plea that the
trial be set for December 12, 2011, the earliest date available to defense and the
court. 11/22/11 Tr. 20. It indicated that the case is over two years old and Adams
had been out on bond for the past two years. 11/22/11 Tr. 20. The state was
insinuating that Adams was just making further attempts to delay the proceedings.
The state also asserted that one of Adams’ attorneys would no longer be able to be
his attorney in January and that by delaying the case beyond December 2011 would
just cause further delay for a new attorney to catch up. 11/22/11 Tr. 21. Defense
counsel appeared to agree with that conclusion. 11/22/11 Tr. 22-23.
       {¶17} Despite their agreement, we do not find, given the record, that any
delay beyond December 2011 would prejudice the state. While it may be true that
one of Adams’ defense counsel would no longer be able to be his counsel after
December 2011, that does not necessarily result in a lengthy delay or prejudice the
state. Adams was represented by two lawyers. Nothing in the record suggests that
his other counsel could not defend him at trial. Thus, the delay may have only been
for another month, until Detective Holmes was available to testify. Therefore, we
disagree with the trial court’s conclusion that the state would be prejudiced by a delay
beyond December 2011. Consequently, for that reason we find that the first factor,
prejudice to the state, weighs in Adams favor.
       {¶18} The second Fish factor is defense counsel’s representation. The trial
court specifically found that Adams was adequately represented.          11/30/11 J.E.;
                                                                                       -5-

11/22/11 Tr. 31. Adams does not dispute this finding. And incidentally, from our
review of the record, there appears to be effective representation.
       {¶19} The third and eighth Fish factors are addressed together. Respectively
they are the adequacy of the Crim.R. 11 plea hearing and the defendant's
understanding of the nature of the charges and the potential sentences.
       {¶20} Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty plea to ensure that the plea is entered into
knowingly, intelligently and voluntarily. These advisements are typically divided into
constitutional rights and nonconstitutional rights. The constitutional rights are: 1) a
jury trial; 2) confrontation of witnesses against him; 3) the compulsory process for
obtaining witnesses in his favor; 4) that the state must prove the defendant's guilt
beyond a reasonable doubt at trial, and 5) that the defendant cannot be compelled to
testify against himself. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176,
2008–Ohio–5200, 897 N.E.2d 621, ¶ 19–21. The trial court must strictly comply with
these requirements; if it fails to strictly comply, the defendant's plea is invalid. Veney
at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 (1981).
       {¶21} The nonconstitutional rights that the defendant must be informed of are:
1) the nature of the charges; 2) the maximum penalty involved, which includes, if
applicable, an advisement on postrelease control; 3) if applicable, that the defendant
is not eligible for probation or the imposition of community control sanctions, and 4)
the effect of the plea and that after entering a guilty plea or a no contest plea, the
court may proceed directly to judgment and sentencing.           Crim.R. 11(C)(2)(a)(b);
Veney at ¶ 10–13; State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d
1224, ¶ 19–26 (indicating that postrelease control is a nonconstitutional advisement).
For the nonconstitutional rights, the trial court must substantially comply with Crim.R.
11's mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
“Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.”   Veney at ¶ 15, quoting Nero at 108.         Furthermore, a defendant who
challenges his guilty plea on the basis that the advisement for the nonconstitutional
                                                                                     -6-

rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must also show a
prejudicial effect, meaning the plea would not have been otherwise entered. Veney at
¶ 15, citing Nero at 108.
       {¶22} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Adams was informed and indicated that he understood that
by pleading guilty he was waiving his right to a jury trial, his right to confront
witnesses against him, his right to subpoena witnesses in his favor, his right to have
the state prove at trial each and every element of the offense of rape by proof beyond
a reasonable doubt and his right to not testify at trial or any other proceeding.
10/25/11 Plea Tr. 6-9.
       {¶23} As to the Crim.R. 11(C) advisement on the nonconstitutional rights,
Adams was advised of the charge against him, rape. 10/25/11 Plea Tr. 7-8. He was
correctly advised of the maximum penalty involved, 11 years in prison on each count,
$25,000 fine on each count and he would be subject to a five year period of
postrelease control.     10/25/11 Tr. 13-15.     See also R.C. 2929.14(A)(1); R.C.
2929.18(A)(3)(a); R.C. 2967.28(B)(1). The trial court advised him that he is not
eligible for a community control sanction and that prison is presumed necessary.
10/25/11 Plea Tr. 13.
       {¶24} The trial court did not inform him that it could proceed immediately to
sentencing after accepting the plea. But it did advise him that sentencing would not
occur that day. 10/25/11 Tr. 14. Sentencing did occur at a later date. Thus, there is
no prejudice in the failure to advise of the possibility of proceeding immediately to
sentencing.
       {¶25} The last advisement regards the nature of his plea. Adams did not
enter a guilty plea. Rather, he entered an Alford plea. In an Alford plea, a defendant
pleads guilty but maintains actual innocence to the charges. North Carolina v. Alford
(1970), 400 U.S. 25, 91 S.Ct. 160. In Alford, the United States Supreme Court held
that a plea of guilty may be accepted by the trial court despite the fact that the
defendant maintains actual innocence of the charges. Id. at 37.
       {¶26} The Ohio Supreme Court has applied Alford and has explained that:
                                                                                    -7-

              Where the record affirmatively discloses that: (1) defendant's
       guilty plea was not the result of coercion, deception or intimidation; (2)
       counsel was present at the time of the plea; (3) counsel's advice was
       competent in light of the circumstances surrounding the indictment; (4)
       the plea was made with the understanding of the nature of the charges;
       and, (5) defendant was motivated either by a desire to seek a lesser
       penalty or a fear of the consequences of a jury trial, or both, the guilty
       plea has been voluntarily and intelligently made.

State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus.
       {¶27} The majority of the arguments that Adams made in his motion to
withdraw and at the withdrawal hearing concerned his understanding of an Alford
plea. The plea transcript clearly indicates that he understood the nature of the Alford
plea and chose to enter it.

              MR. DIXON (Counsel for Adams): Yes, it does, Your Honor.
       Obviously, my client contests the idea or notion that he had any sexual
       conduct with * * * [the victim].    On the other hand, he was facing
       basically the rest of his life in the penitentiary. Today the Prosecutor
       has agreed to make a recommendation, that these type of cases, by
       experience, has found that it’s a reasonable recommendation, probably
       lower than they would recommend and definitely less than what they
       were talking about in years while going through trial preparations, Your
       Honor.

              So here we are on the eve of trial and we are prepared to go
       forward.     And my client and I understand the risks involved in this
       particular case, and we examine it from head to toe and have advised
       him fully.

              He does wish to use the Alford plea, which is basically where
       somebody is saying the State or the government has offered me a Rule
                                                                               -8-

11 agreement, that my counsel has explained to me that it is very much
beneficial in my favor, and even though I did not commit these offenses,
I know the risk I’m taking, I know that I don’t want to take that risk, I do
want to see the light of day and the concerns for his family and many
other factors come into play.

       ***

       THE COURT: Do you also understand by entering this plea, you
are saying, as counsel has very eloquently stated, that you are not
admitting that you’re guilty; however, you are acknowledging that if this
case were to proceed to trial, that there would be sufficient evidence
that would enable a jury to return a unanimous verdict of guilty as to
these counts. That’s kind of a two-part answer.

       THE DEFENDANT: Yeah, you know –

       THE COURT: The first part.

       THE DEFENDANT: -- pertaining to that—

       THE COURT: You’re not admitting you’re guilty.

       THE DEFENDANT: Right, but –

       ***

       THE DEFENDANT: Yeah, I understand that, but there’s – I’m
not taking the plea because of the, you know – yes to that answer. The
next question – I don’t know how to state what I’m trying to say about it.

       THE COURT: Well –

       MR. DIXON: Well, I think for the record, Your Honor, what Mr.
Adams is saying is that he understands that the State could prove
                                                                                -9-

through evidence sufficient for him to be found guilty at the trial. It’s
one of the things that we discussed was the risk, that the State could
produce evidence that could very well result in his being found guilty at
trial.

         THE DEFENDANT: It’s part of my –

         MR. DIXON: Yeah. And he also understands that we could
have lost at trial. Is that correct; David [Mr. Adams]?

         THE DEFENDANT: Yes.

         ***

         THE COURT: So I’m going to ask it again –

         THE DEFENDANT: Okay.

         THE COURT: -- perhaps in a different way.

         THE DEFENDANT: Okay.

         THE COURT: You are not admitting that you are guilty, but if we
brought a jury down and the Prosecutor presented their evidence and
there was cross examination, if you had any witnesses that you wanted
to call, all of the rights we’ve gone over, you are telling me that you
understand that the jury, after listening to the evidence, could return a
verdict of guilty, because if you don’t believe they could, then I will bring
the jury down right now.

         Are you telling me, and you have to tell me, that you admit
there’s sufficient evidence that could return a verdict of guilty, and
based upon that and based upon, quite frankly –
                                                                                 -10-

                 THE DEFENDANT: When you say could, my answer do [sic] that
       is yes.

                 THE COURT: All right.

                 THE DEFENDANT: Yes, sir.

                 THE COURT:     And what you’re doing is cutting your losses,
       quite frankly.

                 THE DEFENDANT: Yes, sir.

                 THE COURT: You are limiting the exposure, and that is what
       this is all about.

                 THE DEFENDANT: Yes, sir.

10/25/11 Tr. 3-5, 9-13.
       {¶28} There were eight pages of dialog in the plea transcript that addressed
the effect of the Alford plea. The plea transcript is 20 pages long. Thus, almost half
of the plea hearing was a discussion of what an Alford plea is and the effect of that
plea. The above excerpts indicate that Adams understood the nature of the Alford
plea. Specifically, the record clearly shows that he had a desire to seek a lesser
penalty while maintaining his innocence. The state was recommending an aggregate
sentence of 15 years for the 8 counts of first degree rape. If he was convicted of
these charges and the court sentenced him to maximum consecutive sentences he
could receive a maximum sentence of 88 years in the penitentiary. By entering the
Alford plea, he had a guarantee of a 15 year sentence; the trial court specifically
stated at the plea hearing, prior to accepting the plea, that it would not sentence
Adams to more than 15 years if he did not get into any trouble prior to sentencing.
10/25/11 Tr. 14.
       {¶29} Consequently, the record clearly indicates that he understood the
nature of the charges, the potential penalty and the effect of the Alford plea. Thus,
these two factors weigh in the state’s favor.
                                                                                   -11-

      {¶30} The fourth and fifth Fish factors are the extent of the plea withdrawal
hearing and whether the trial court gave full and fair consideration to the motion. The
plea withdrawal hearing transcript is 38 pages long. Arguments are presented by
both sides and the trial court clearly considered those arguments. The trial court
complied with both of these requirements.
      {¶31} The sixth Fish factor is timing. The trial court stated that the motion
was timely. The record indicates that the motion was filed less than two weeks after
entering the Alford plea. Thus, this factor weighs in Adams’ favor.
      {¶32} The seventh Fish factor is the reasons for the motion. In addition to the
alleged reason that he did not understand the nature of the Alford plea, which is
discussed in depth above, Adams also asserted that he did not have enough time to
think about the plea and that after entering the plea he was “publicly humiliated by
the Vindicator and other published entities.” 11/14/11 Motion.
      {¶33} The record does reveal that during the pendency of the trial court
proceedings (2 years) there were plea negotiations. The state agreed that it would
recommend 25 years if Adams pled to the crimes. The transcript on the motion to
withdraw the Alford plea indicates that either on the morning of trial or the day before
trial was scheduled to start there were plea negotiations and the state agreed to
lower its recommendation to 15 years if Adams pled to the charges. 11/22/11 Plea
Tr. 14, 17-18.   The state indicated that there was a day and half of extensive
negotiations. 11/22/11 Plea Tr. 17-18. Consequently, given that this occurred on the
eve of trial, the maximum sentence (88 years) he was potentially facing if he did not
accept the plea, and that there was not much time for discussion or thought, this
factor weighs in Adams favor.
      {¶34} The last Fish factor is whether the defendant was perhaps not guilty or
has a complete defense to the charge.        As stated above, in an Alford plea the
defendant is maintaining his innocence. Thus, this factor weighs in Adams favor.
      {¶35} Considering all the above, we find that the trial court abused its
discretion when it did not grant the presentence motion to withdraw.               The
combination of the Ohio Supreme Court’s advisement that pre-sentence motions to
                                                                                 -12-

withdraw should be freely and liberally be granted, that the state would not be
prejudiced if a delay occurred beyond December 2011, that Adams only had at most
a day to a day and a half to consider the plea before accepting it, and that by
entering the Alford plea he has maintained his innocence to the charges throughout
the proceedings, indicates that the plea should be withdrawn. Thus, the trial court’s
decision must be reversed. In coming to this determination, we note that if the only
factor that weighed in Adams’ favor was the fact that by entering an Alford plea he
was maintaining his innocence and was perhaps not guilty, reversal would not be
warranted. The fact that a person enters an Alford plea does not automatically justify
withdrawal of the plea when the request is made. Rather, all Fish factors and facts
surrounding the plea must be considered and weighed.          As aforementioned, the
weighing of all the factors warrants reversal in this instance. The sole assignment of
error is meritorious.
       {¶36} For the foregoing reasons, the judgment of the trial court is reversed,
the plea is vacated, and the case is remanded for further proceedings.

Donofrio, J., concurs.
DeGenaro, J., dissents; see dissenting opinion.

                                                  APPROVED:



                                                  _____________________________
                                                  JOSEPH J. VUKOVICH, JUDGE
