[Cite as State v. Campbell, 2014-Ohio-2823.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                     :    Hon. John W. Wise, J.
                                               :    Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :
DANIEL J. CAMPBELL                             :    Case No. 13-CA-57
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2012-CR-0193




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   June 25, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOCELYN S. KELLY                                    SCOTT P. WOOD
239 West Main Street                                144 East Main Street
Suite 101                                           P.O. Box 667
Lancaster, OH 43130                                 Lancaster, OH 43130
Fairfield County, Case No. 13-CA-57                                                      2

Farmer, P.J.

       {¶1}    On May 4, 2012, the Fairfield County Grand Jury indicted appellant,

Daniel Campbell, on two counts of robbery in violation of R.C. 2911.02. Said charges

arose from an incident involving the theft of merchandise at a Walmart. After appellant

was stopped and questioned, he pulled out a knife and fled the scene.

       {¶2}    On June 27, 2012, appellant filed a motion to determine competency to

stand trial. A psychiatric evaluation was ordered. Following a hearing wherein the

evaluation was stipulated to, the trial court found appellant was competent to stand trial.

See, Entry filed August 29, 2012.

       {¶3}    On December 4, 2012, appellant pled guilty to one of the robbery counts

and the remaining count was dismissed.

       {¶4}    On December 17, 2012, appellant filed a motion to withdraw his guilty plea

pursuant to Crim.R. 32.1. A hearing was held on January 31, 2013. By journal entry

filed March 20, 2013, the trial court denied the motion.

       {¶5}    After retaining new counsel, appellant filed a second motion to withdraw

his guilty plea on May 14, 2013. A hearing was held on June 21, 2013. By journal entry

filed July 9, 2013, the trial court again denied the motion.

       {¶6}    By judgment entry filed August 9, 2013, the trial court sentenced appellant

to three years in prison.

       {¶7}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Fairfield County, Case No. 13-CA-57                                                   3


                                              I

       {¶8}   "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING

APPELLANT'S       MOTION      TO    WITHDRAW        HIS     GUILTY   PLEA   PRIOR    TO

SENTENCING."

                                              I

       {¶9}   Appellant claims the trial court erred in denying his motions to withdraw

his guilty plea pursuant to Crim.R. 32.1 made prior to sentencing. We disagree.

       {¶10} Crim.R. 32.1 governs withdrawal of guilty plea and states "[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. 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. Xie, 62 Ohio St.3d 521 (1992), paragraph one of

the syllabus. "The decision to grant or deny a presentence motion to withdraw a guilty

plea is within the sound discretion of the trial court."     Id. at paragraph two of the

syllabus. In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶11} In State v. McNeil, 146 Ohio App.3d 173, 175-176 (1st Dist.2001), our

brethren from the First District explained the following:
Fairfield County, Case No. 13-CA-57                                                    4


             It is well established that, even though a defendant does not have

      an absolute right to withdraw a plea prior to sentencing, a presentence

      motion to withdraw a guilty plea should be "freely and liberally

      granted."***Although such a motion is to be treated liberally, the trial

      court's decision is still ultimately one of discretion. In determining whether

      the trial court has properly exercised its discretion, this court is aided by

      the following 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 withdrawal motion, and (4) whether the trial court gave full and fair

      consideration to the motion.***In addition to these factors, there are other

      considerations, including (1) whether the motion was made within a

      reasonable time; (2) whether the motion set out specific reasons for the

      withdrawal; (3) whether the accused understood the nature of the charges

      and the possible penalties; and (4) whether the accused was perhaps not

      guilty or had a complete defense to the charges. (Footnotes omitted.)



      {¶12} Prior to sentencing, appellant filed two different motions to withdraw his

guilty plea, one on December 17, 2012 with a hearing on January 31, 2013, and the

second on May 14, 2013 with a hearing on June 21, 2013.

      {¶13} The first withdrawal motion claimed a "concern regarding the advice

provided to him by counsel." At the hearing, defense counsel summarized appellant's

reason for the motion as a post-plea conflict regarding appellant's assessment of the
Fairfield County, Case No. 13-CA-57                                                     5


case versus defense counsel's assessment of the case, and appellant's belief that he

would be acquitted after a trial. January 31, 2013 T. at 5, 7. Defense counsel explained

he disagreed with appellant's belief of the potential outcome. Id. at 9. Appellant did not

dispute or challenge the Crim.R. 11 colloquy. Id. The state argued there is a videotape

of appellant unloading over $200 worth of merchandise which was hidden on his

person, and pulling a knife on the loss prevention officer and fleeing the scene. Id. at

13-14, 17. Appellant's vehicle and license plate number are also on videotape. Id. at

14, 17. Employees described and identified appellant. Id. at 14. The state argued the

real reason for the motion was appellant's "cold feet," "change of heart," and his

awareness of the sentencing guidelines. Id. at 16, 18.

       {¶14} In its March 20, 2013 journal entry denying this motion, the trial court

provided a detailed decision, outlining appellant's arguments and addressing numerous

factors:



             The Defendant's reason for withdrawing his pleas is "…Mr.

       Campbell's concern regarding the advice provided to him by counsel."

       Motion to Withdrawal plea 12/17/2012. At defense counsel's request, the

       Defendant sent defense counsel a written request to withdraw his plea.

       The request was made December 13, 2012 indicating that "...he, (the

       Defendant) wished to withdraw his plea and proceed to trial. Upon further

       reflection, the Defendant disagreed with counsel's advice concerning the

       strengths or weaknesses of a defense to the charges and believes he is

       not guilty of the charges." Defendant's Reply filed January 11, 2012. "The
Fairfield County, Case No. 13-CA-57                                                 6


      Defendant also has indicated that he now disagrees with the advice of

      counsel as to the availability of defenses to the charges and believes that

      he is not guilty." Defendant's Reply filed January 11, 2013.

             The Court has reviewed the recording of the Defendant's plea

      hearing held on December 4, 2012.

             In State v. Shelton, 2012-Ohio-4482 (Ohio App. 5 Dist.) the Court of

      Appeals set out some factors for a court to consider in determining

      whether to grant a defendant's request to withdraw a plea prior to

      sentencing. Those factors and this court's attention to those factors are

      set forth as follows:

             1. Will vacating the plea prejudice the prosecution? There is no

      evidence that the prosecution would be prejudiced.

             2. Was the Defendant represented by highly competent counsel?

      The Defendant's attorney has had many years of experience representing

      people in juvenile, misdemeanor, and felony cases. The attorney, in this

      court's opinion, is highly qualified.

             3. Was the Defendant given a full Crim. R. 11 hearing? Yes, the

      court has reviewed the recording of the hearing.           The Defendant

      acknowledged that he was satisfied with his attorney's representation, and

      that the attorney was able to answer, to the Defendant's satisfaction,

      questions, if any, the Defendant had about the plea paperwork. Based on

      the colloquy, the court was convinced that the Defendant knowingly,

      voluntarily, and intelligently entered his plea. There is nothing about the
Fairfield County, Case No. 13-CA-57                                                  7


      plea hearing that would alert anyone that the Defendant was struggling

      with the advice given to him by counsel, or with his decision to plead

      guilty.

                4. Has the court given full and fair consideration to the motion?

      Yes. The Defendant filed his Motion to Withdrawal Plea on December 17,

      2012. On January 11, 2013, the Defendant filed a second pleading: Reply

      to State's Memorandum Contra Defendant's Motion to Withdraw Plea.

      The court denied defense counsel's request to withdraw as counsel. An

      oral hearing was held on January 13, 2013 on the Defendant's Motion to

      Withdrawal Plea.      This Journal Entry reflects the court's review of all

      pleadings and consideration of the Defendant's arguments at the oral

      hearing.

                5. Was the timing of the motion reasonable? Yes, the Defendant

      promptly filed his motion.

                6. What are the reasons for the motion? The stated reasons are

      that the Defendant is not satisfied with his attorney's advice as to the

      availability of defenses, and the Defendant believes that he is not guilty,

      although the details of these reasons are vague.

                7. What are the reasons for the motion? As stated above, the

      details of the reasons are vague. After considering the plea hearing and

      there being no indication at the time of the plea hearing that the Defendant

      was not satisfied with his attorney's representation and his (the
Fairfield County, Case No. 13-CA-57                                                 8


      Defendant's) decision to plead guilty, the Defendant simply appears to

      have changed his mind about pleading guilty.

             8. Did the Defendant understand the nature of the charge and the

      potential sentence? As stated above, the Defendant's Netcare Forensic

      Center competency report and a review of the plea colloquy reveal that

      the Defendant understood the nature of the charge and potential range of

      sentence.

             9. Is the Defendant perhaps not guilty of the crime or does he have

      a complete defense to the crime? The alleged facts are, according to the

      State, on Walmart surveillance video. Further, after leaving the store with

      shoplifted merchandise, two Walmart security officers had face-to-face

      contact with the Defendant when he allegedly drew a knife on them. The

      Defendant had raised his competency as an issue.         However, as the

      psychological report clearly indicates, and as this court found, the

      Defendant is competent to stand trial. While competent defense counsel

      may be able to make some arguments for acquittal to a jury, the weight of

      the evidence appears to be in favor of the State. Certainly, there seems to

      be no "complete defense to the crime".

             The evidence and arguments before the court as well as the

      recorded court proceedings demonstrate that the Defendant's plea was

      knowingly, voluntarily, and intelligently entered.
Fairfield County, Case No. 13-CA-57                                                      9


       {¶15} In his second withdrawal motion, appellant claimed he "did not have

effective assistance of counsel in making the decision to change his plea." At the

hearing, appellant testified, stating he met with his first counsel six or seven times and

they discussed the evidence against him and the available defenses. June 21, 2013 T.

at 8. His counsel advised him to plead guilty to one count of robbery, even though up

until then, appellant wanted a jury trial because he felt he was not guilty. Id. at 8-11.

Appellant believed the knife he used was not a deadly weapon; however, he trusted his

counsel's advice and changed his plea. Id. at 12-13. Appellant changed his mind the

day after the plea hearing after calling "a police station" and being informed that a knife

was not a deadly weapon. Id. at 16-17. Appellant offered the following explanation

about his guilty plea (Id. at 20-21):



              Q. So Daniel, if you had to summarize as to why you entered a plea

       of guilty on December 4th to robbery, when you yourself felt you were not

       guilty, can you explain to the Court why you did that?

              A. That I relied on the advice of Mr. Fields, and contrary to what I

       had looked up, because I knew that Mr. Fields knew what he was doing

       and that I could have probably been making a mistake, and my own

       research.

              Q. And then after you entered your plea, what was your reason for

       deciding that you wanted to withdraw that plea?

              A. My own research and the advice of others and my belief that I

       didn't commit robbery.
Fairfield County, Case No. 13-CA-57                                                        10


                Q. Do you still hold that belief today that you did not commit

         robbery?

                A. I do.

                Q. Is it your desire to have a jury decide whether or not you've

         committed robbery?

                A. Yes, it is.

                Q. And it's your desire to ask for the Court to withdraw your plea of

         guilty and allow you to have a jury trial; is that correct?

                A. Yes.

                Q. Is there anything else you want the Court to consider with regard

         to this motion to withdraw your plea?

                A. That I believe the evidence is in my favor and that it'll show that I

         didn't commit robbery.



         {¶16} On cross-examination, appellant described the knife as a folding pocket

knife with a 2½ inch blade. Id. at 22. Appellant admitted to stealing over $200 worth of

merchandise, being stopped by a loss prevention officer, pulling the knife out, and

fleeing the scene. Id. 23-25. Appellant claimed the loss prevention officer "assaulted"

him and he was "acting in self-defense" to his being detained for the theft. Id. at 23, 27.

Appellant conceded he discussed the defense of self-defense with his first attorney. Id.

at 27.     On redirect, appellant explained that after he unloaded all of the stolen

merchandise, the manager wanted him to sign a "packet of papers" which he refused to

do. Id. at 31. Appellant stated he was going to leave, whereupon the loss prevention
Fairfield County, Case No. 13-CA-57                                                   11

officer grabbed his coat collar and would not permit him to leave.          Id. at 31-32.

Appellant stated he "became afraid" and pulled the knife out and escaped. Id. at 32.

Again, the state argued the entire incident was on videotape. Id. at 49-50, 51, 52.

       {¶17} In its July 9, 2013 journal entry denying this motion, the trial court found

the following:



                 On June 21, 2013, a hearing was held which exceeded one hour

       and consisted of testimony by the Defendant and oral argument by

       Counsel.

                 The testimony elicited from the Defendant revealed: The Defendant

       and his attorney had met on at least six occasions to discuss his case;

       The video of the event giving rise to the charge was given to the

       Defendant by his Counsel, Mr. Fields; The Defendant discussed his belief

       that he acted in self-defense with his Counsel, Mr. Fields; The Defendant

       described what happened at Wal-Mart that gave rise to the charge against

       him; The Doctor who evaluated the Defendant in this case advised the

       Defendant to trust his attorney, Mr. Fields; The Defendant's mother

       advised the Defendant to trust his attorney, Mr. Fields; The Defendant did

       trust the legal advice given to him by his Counsel, Mr. Fields; The

       Defendant called the Lancaster Police station and an unnamed person

       told him that the knife that he used during the incident was "not a deadly

       weapon"; The Defendant talked to his Counsel, Mr. Fields; The Defendant

       contacted Andrew Stevenson, Attorney-at-Law, and "he helped", but the
Fairfield County, Case No. 13-CA-57                                                   12


      Defendant had already discussed his plea with his Counsel, Mr. Fields;

      the Defendant did not sleep the night before the plea hearing as he had a

      stomach virus and was "throwing up"; The Defendant was taking "stomach

      medicine"; and The Defendant disagrees with the advice given by his

      Counsel, Mr. Fields.

                At the conclusion of the evidence, during rebuttal argument,

      Counsel for the Defendant, Mr. Wood, stated, in part: "…to make the

      record clear, we are not arguing ineffective assistance of counsel," but that

      the Defendant disagreed with the advice given him by his attorney, Mr.

      Fields.

                ***

                The evidence and arguments before the court as well as the

      recorded court proceedings demonstrate that the Defendant's plea was

      knowingly, voluntarily, and intelligently entered, that the Defendant relied

      on the advice of Counsel, and that the Defendant simply changed his

      mind. There is no evidence, and now no claim, that there was ineffective

      assistance on the part of the Defendant's Counsel, Mr. Fields so the Court

      need not address that issue.



      {¶18} Appellant freely admitted to discussions with his first counsel about his

available defenses, i.e., the knife was not a deadly weapon and self-defense, to seeing

the videotape, and trusting his counsel's advice. June 21, 2013 T. at 8, 12, 26-27, 35,

37. During the plea hearing and the Crim.R. 11 colloquy, appellant affirmed to the trial
Fairfield County, Case No. 13-CA-57                                                       13


court that he was satisfied with his attorney, understood the possible penalties, and was

not under the influence of any substances that affected his ability to think and

understand. December 4, 2012 T. at 5-11. During the second motion to withdraw

hearing, defense counsel explained appellant was not making the argument that he was

under the influence of medication during the plea hearing and therefore his plea "wasn't

a knowing, voluntary, intelligent waiver." June 21, 2013 T. at 58.

         {¶19} We concur with the trial court assessment that appellant's guilty plea was

knowingly, voluntarily, and intelligently entered, and appellant "simply changed his

mind."     There is no likelihood of an acquittal given that the entire incident is on

videotape and appellant admitted to the theft, pulling the knife, and escaping. Appellant

merely experienced a "change of heart" which was not based on any reasonable or

legitimate reason for the withdrawal of his guilty plea. "It was within the trial court's

province to determine whether appellant's reasons were reasonable and legitimate. We

defer to the trial court's judgment in evaluating the 'good faith, credibility and weight' of

appellant's motivation and assertions in entering and attempting to withdraw his plea."

State v. Hamilton, 5th Dist. Muskingum No. CT2008-0011, 2008-Ohio-6328, ¶ 54, citing

Xie, supra.

         {¶20} Upon review, we find the trial court did not abuse its discretion in denying

appellant's motions to withdraw his guilty plea.

         {¶21} The sole assignment of error is denied.
Fairfield County, Case No. 13-CA-57                                            14


      {¶22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




SGF/sg 602
