[Cite as State v. Gibson, 2015-Ohio-5258.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102704




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  KENDELL J. GIBSON

                                                            DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-587044-A

        BEFORE:          Jones, J., Celebrezze, A.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: December 17, 2015
ATTORNEY FOR APPELLANT

Patrick E. Talty
21875 Addington Boulevard
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Edward D. Brydle
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Kendell Gibson, appeals the trial court’s denial of his

presentence motion to withdraw his guilty plea.     We affirm.

       {¶2} In 2014, Gibson was charged in three separate cases stemming from a crime

spree he committed in Cleveland’s Slavic Village neighborhood in March 2014. In

Cuyahoga C.P. No. CR-587044-A, which is the subject of this appeal, Gibson was

charged with 21 counts.     The case was scheduled for trial but after jury selection, Gibson

informed the court that he wanted to take a plea bargain.    Gibson pleaded guilty to eight

counts: discharge of a firearm on or near prohibited premises, having weapons while

under disability, two counts of carrying a concealed weapon, two counts of obstructing

official business, assault, and tampering with evidence.

       {¶3} At the sentencing hearing, Gibson made an oral motion to withdraw his guilty

plea. The court spoke at length with Gibson about why he wanted to withdraw his plea

and ultimately denied the motion. The court sentenced Gibson to a total of 11 and

one-half years in prison.

       {¶4} Gibson filed a timely notice of appeal. In his appeal, Gibson argues that the

trial court erred when it denied his presentence motion to withdraw his guilty pleas.

       {¶5} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which provides that “[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.”

       {¶6} Generally, motions to withdraw guilty pleas before sentencing are to be freely

and liberally allowed. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935

N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); State v.

Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980), citing Barker v.

United States, 579 F.2d 1219, 1223 (10th Cir.1978). However, a defendant does not have

an absolute right to withdraw a guilty plea prior to sentencing. Xie at paragraph one of the

syllabus.   In ruling on a presentence motion to withdraw a plea, the court must conduct a

hearing and decide whether there is a reasonable and legitimate basis for withdrawal of

the plea. Id. at 527. The decision to grant or deny such a motion is within the sound

discretion of the trial court and will not be reversed absent an abuse of discretion. Id.

       {¶7} In Peterseim, this court set forth the standard for determining whether the

trial court has abused its discretion in denying a presentence motion to withdraw a plea:

       A trial court does not abuse its discretion in overruling a motion to

       withdraw:    (1) where the accused is represented by highly competent

       counsel, (2) where the accused was afforded a full hearing, pursuant to

       Crim.R. 11, before he entered the plea, (3) when, after the motion to

       withdraw is filed, the accused is given a complete and impartial hearing on

       the motion, and (4) where the record reveals that the court gave full and fair

       consideration to the plea withdrawal request.

Id. at paragraph three of the syllabus.
       {¶8} A review of the record in this case demonstrates that the trial court fully

complied with the Peterseim criteria. During the sentencing hearing, Gibson’s counsel

indicated to the court that Gibson had just informed him that he wanted to withdraw his

guilty plea. According to counsel, Gibson’s decision was related to a confrontation with

the sheriff’s deputies escorting Gibson because the deputies would not allow Gibson to

address his family in the courtroom.

       {¶9} The trial court held a hearing on the oral motion, at which Gibson stated that

he wanted to withdraw his plea because he did not understand what he was pleading to

and his attorney was not working in his (Gibson’s) best interests. Gibson insisted it had

nothing to do with his dispute with the deputies.

       {¶10} The state and the trial court questioned Gibson about his newfound desire to

withdraw his guilty plea. Gibson maintained that he did not remember all the charges

the court reviewed with him at his plea hearing and did not “fully understand everything

that was being said [at the plea hearing].”   Gibson told the court he made “two or three”

post-plea phone calls to his attorney to tell him he wanted to withdraw his plea, but was

not able to get in touch with him. Gibson conceded he had not written a letter to his

attorney or the court or otherwise informed anyone that he wanted to withdraw his plea.

       {¶11} In a similar case, this court considered a defendant’s presentence motion to

withdraw a guilty plea. State v. Bloom, 8th Dist. Cuyahoga No. 97535, 2012-Ohio-3805.

 In Bloom, defense counsel made a motion to withdraw the defendant’s guilty plea at the

sentencing hearing; the defendant had argued that he was innocent of the crimes that he
had pled to just hours before the sentencing hearing.     The trial court denied the motion,

which this court affirmed, noting that the defendant was represented by competent

counsel, was afforded a full plea hearing in accordance with Crim.R. 11, and the trial

court held a hearing on the defendant’s motion and gave it full and fair consideration.

This court concluded that “[a] mere change of heart regarding a guilty plea and the

possible sentence is insufficient justification for the withdrawal of a guilty plea.” Id. at ¶

13, citing State v. Abdelhag, 8th Dist. Cuyahoga No. 71136, 1997 Ohio App. LEXIS

3394, *10 (July 31, 1997).

       {¶12} In the case at bar, the record demonstrates that the trial court fully complied

with the Peterseim criteria.   Gibson was represented by highly competent counsel and

was afforded a proper plea hearing in accordance with Crim.R. 11.          Although Gibson

maintained at the motion hearing that he did not fully understand the charges he had pled

to, the record shows that the state, the court, and defense counsel went over the charges

and potential penalties Gibson was facing before he entered his guilty pleas. During the

plea hearing, Gibson expressed no confusion during the court’s colloquy regarding his

plea. In addition, contrary to Gibson’s argument that his attorney was not acting in his

best interests, Gibson told the trial court at his plea hearing that he was satisfied with his

attorney.

       {¶13} Finally, the record reflects that the trial court gave the defendant a complete

and impartial hearing on his presentence motion to withdraw his plea and full and fair

consideration to his arguments in support of that motion as required by the third and
fourth Peterseim factors. The court allowed Gibson to state his reasons for wanting to

withdraw his motion and questioned him about each charge to which he had pleaded

guilty.

          {¶14} Thus, because all four prongs set forth in Peterseim were satisfied, the trial

court did not abuse its discretion in denying Gibson’s presentence motion to withdraw his

guilty pleas.

          {¶15} The sole assignment of error is overruled.    Judgment affirmed.

          It is ordered that appellee recover of appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.




          A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
ANITA LASTER MAYS, J., CONCUR
