[Cite as State v. Shelton, 2012-Ohio-4482.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellee     :     Hon. William B. Hoffman, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :     Case No. 2012CA00024
WILLIAM SHELTON                                :
                                               :
                                               :
                       Defendant-Appellant     :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2011CR1603


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            September 17, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

STEVEN A. REISCH                                     JOHN D. FERRERO, JR.
STARK CO. PUBLIC DEFENDER                            STARK CO. PROSECUTOR
OFFICE                                               RONALD MARK CALDWELL
200 West Tuscarawas St., Suite 200                   110 Central Plaza S., Suite 510
Canton, OH 44702                                     Canton, OH 44702-1413
[Cite as State v. Shelton, 2012-Ohio-4482.]


Delaney, J.

        {¶1} Appellant William Shelton appeals from the January 27, 2012 decision of

the Stark County Court of Common Pleas overruling his Motion to Withdraw Plea.

Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant was charged by indictment with one count of domestic violence

pursuant to R.C. 2919.25(A), a felony of the third degree; the offense was predicated

upon appellant’s three prior convictions of domestic violence. A statement of the facts

underlying appellant's offense is unnecessary to our disposition of this appeal.

        {¶3} On December 29, 2011, appellant appeared before the trial court, with

counsel, to withdraw his plea of not guilty and enter a plea of guilty.

        {¶4} At the plea hearing, the trial court engaged in a Crim.R. 11 colloquy with

appellant, and then advised a pre-sentence investigation would be completed before

sentencing. The trial court cautioned appellant, however, that while community control

was one possibility for sentencing, a prison term was also a possibility:

        * * * *.

        THE COURT: I also want to make it straight right up front; it is my inclination to

        send you to prison for a period of time and, then send you to the SRCCC for

        treatment; do you understand that?

        [APPELLANT:] I don’t know if I’m all the way clear on that.

        THE COURT: Okay, I want to make sure. I’m going to do what’s called a

        presentence investigation and I’ll be open minded and I will be fair, but I am not

        a big fan of anybody putting their hands on women and you’re a repeat
Stark County, Case No. 2012CA00024                                                   3


     offender, and I’ve made it very clear that as of today if I had to make the

     decision I would be sending you to prison and let you apply for what’s called

     judicial release and have you released after a short stint because it’s my goal to

     try to wake you up as to what your problem is, and it seems that you have an

     alcohol problem, and I’m not bettering the system in any way or protecting

     women anymore if I don’t get you some treatment for that because then if you

     would come back in front of me again you wouldn’t see daylight for a long long

     time.

     So that is the plan. I don’t want you walking out of here today thinking by

     pleading today that you are likely to get straight probation. Does that make

     sense what I’m telling you?

     [APPELLANT:] That makes sense. I just—I was not aware of—could you give

     maybe more specifics on what the short stint might be?

     THE COURT: Could—usually I’d say between 60 days to 6 months is—I guess

     in some people’s eyes that’s a short stint. I mean, if I was going down, that

     would be a long stint. So I guess beauty’s in the eye of the beholder.

     I also don’t know your background, I don’t know everything, I don’t know what

     you’ve done to help yourself since being arrested; that’s why I do a pre-

     sentence investigation.

     But I don’t want you coming in on sentencing day and thinking you’re walking

     out of my courtroom.

     [APPELLANT:] I know that’s not going to happen, Your Honor.

     THE COURT: Okay. All right.
Stark County, Case No. 2012CA00024                                                  4


      Just because I accept your application for community control does not mean it’s

      necessarily going to be granted. I can reject it and send you to prison, I can

      send you to the Stark County Jail, a community based correction facility, as I

      talked about, to treat you, a halfway house, or allow you to apply for judicial

      release. Do you understand all those options?

      [APPELLANT:] Yes, sir.

      * * * *.

      {¶5} Appellant thereupon entered his plea of guilty.

      {¶6} Appellant next appeared for sentencing on January 23, 2012, and the

hearing opened with appellant’s counsel stating he wanted to withdraw his guilty plea

because appellant “received some new letters from the alleged victim where she

states that this incident did not happen.” The trial court asked appellant whether the

letters were with him in court that day, and he said no. Appellant then stated his

“whole concern” with entering a guilty plea was the possibility he might get SRCCC

[supervised treatment], but “to me that’s been changed, and that’s why I want to take

my guilty plea back.”

      {¶7} The trial court clarified appellant would be receiving a one-year prison

term in addition to SRCCC; he inquired whether appellant received a full Crim.R. 11

hearing, and appellant admitted his real concern:

      * * * *.

      [APPELLANT:] Because I’m in trouble with the courts on this charge. I was in

      trouble with my parole officer, and she had violated me. And everyone worked

      together with me here to pull this together, and my PO agreed that if I took
Stark County, Case No. 2012CA00024                                                     5


        SRCCC—in other words, I—I was pleading guilty because everything would fall

        into place for my benefit for—to take care of my parole officer, to take care of

        the Court, and more importantly, to get me the treatment/help that I’ve needed.

        I’ve been in prison a lot, as you can tell, and that doesn’t seem to be the thing

        that’s helping me. I was—actually I’m really looking forward to going to SRCCC

        and I’m kind of disappointed that that’s not happening that way. So I would like

        to go back to where we were and start over.

        * * * *.

        THE COURT: Okay. From what I heard you just say, you are here because

        you’re upset that you’re not going to SRCCC and you’re going to prison, and

        that’s why you want to change your plea; is that right?

        [APPELLANT:] Well, not only that, new evidence has come into the picture.

        * * * *.

        {¶8} Appellant requested time to produce letters from the victim, and the trial

court stated the letters would be reviewed in camera. The trial court then proceeded

to sentence appellant to a prison term of three years with judicial release after one

year.

        {¶9} The next day, appellant was back before the trial court with a letter from

the victim, which the trial court read into the record. Nothing in the letter exonerated

appellant or even touched upon the criminal case, although the victim stated she

would make a statement in court if it would help appellant.          Instead, the victim

reiterated the fact she still loved appellant and would send him money.
Stark County, Case No. 2012CA00024                                                   6


       {¶10} The trial court noted nothing in the letter exonerated appellant, and went

on to detail appellant’s criminal history of assaults, domestic violence offenses,

disorderly conduct, and failure to report.

       {¶11} Appellant further argued, however, that evidence existed the victim was

not credible. He asserted the victim has been convicted of making false statements

and proffered the testimony of a police officer who would testify, he claimed, that the

victim was not credible.

       {¶12} Ultimately, the trial court overruled appellant’s motion to withdraw his

guilty plea, noting the significant injuries sustained by the victim plus appellant’s

criminal record. In the judgment entry, the trial court noted it “reviewed the alleged

evidence of truthfulness, discussed the case with [appellant] and found no confusion

of his plea, and factored in the parameters of St. v. Fish. The Court’s sentence was

consistent with the plea offer, and the Court reviewed [appellant’s] lengthy criminal

record.”

       {¶13} Appellant now appeals from the trial court’s judgment entry overruling his

Motion to Withdraw Plea.

       {¶14} Appellant raises one Assignment of Error:

       {¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA.”

                                             I.

       {¶16} Appellant argues in his sole assignment of error the trial court should

have allowed him to withdraw his plea because the sentence appellant received was

increased from what appellant was originally told, he presented newly-discovered
Stark County, Case No. 2012CA00024                                                      7


evidence which constituted a valid defense to the charge, and appellee would not

have been prejudiced. We disagree.

       {¶17} Crim. R. 32.1 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, however; 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. Hamilton, 5th Dist. No. CT2008-0011, 2008-Ohio-

6328, ¶ 32, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), at

paragraph one of the syllabus.

       {¶18} The trial court’s decision to grant or deny a motion to withdraw a guilty

plea is vested within the sound discretion of the court, and will not be reversed by an

appellate court unless the trial court abused its discretion. State v. Xie, supra, 62

Ohio St.3d 521 at paragraph two of the syllabus.          In order to find an abuse of

discretion, the reviewing court must determine that 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, 219, 450 N.E.2d 1140 (1983).

       {¶19} The good faith, credibility and weight of a defendant’s assertions in

support of a motion to withdraw guilty plea are matters to be resolved by the trial court,

which is in a better position to evaluate the motivations behind a guilty plea than is an

appellate court in reviewing a record of the hearing. State v. Xie, supra, 62 Ohio

St.3d at 525, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).
Stark County, Case No. 2012CA00024                                                          8


       {¶20} In reviewing a trial court’s decision regarding a motion to withdraw a

guilty plea, the court in State v. Fish set forth a non-exhaustive list of factors to be

weighed. 104 Ohio App.3d 236, 661 N.E.2d 788 (1995). These factors include: (1)

whether the prosecution would be prejudiced if the plea was vacated; (2) whether the

accused was represented by highly competent counsel; (3) whether the accused was

given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5)

whether the trial court gave full and fair consideration to the motion; (6) whether the

motion was made within a reasonable time; (7) whether the motion set forth specific

reasons for the withdrawal; (8) whether the accused understood the nature of the

charges and possible penalties; and (9) whether the accused was possibly not guilty

or had a complete defense to the crime. Id., 104 Ohio App.3d at 240. In weighing the

ninth factor, “the trial judge must determine whether the claim of innocence is anything

more than the defendant’s change of heart about the plea agreement.”                 State v.

Davison, 5th Dist. No. 2008-CA-00082, 2008-Ohio-7037, ¶ 45, citing State v. Kramer,

7th Dist. No. 01-CA-107, 2002-Ohio-4176, ¶ 58.

       {¶21} In this case, the trial court thoroughly advised appellant of the rights he

waived at the time the guilty plea was entered. Appellant does not claim otherwise.

The trial court then brought appellant back for sentencing upon completion of the pre-

sentence investigation, and continued the hearing for a day to allow appellant to

collect the letters that would allegedly exonerate him. Appellant was represented by

counsel at each hearing.

       {¶22} Appellant argues he should have been able to withdraw his plea because

the trial court initially stated he could apply for judicial release after a period of 60 days
Stark County, Case No. 2012CA00024                                                      9


to 6 months, but then increased the prison term to a year. The cases appellant directs

us to are inapposite because in this case, there was no erroneous assumption on the

part of the trial court and appellant. We have reviewed the record and find the trial

court repeatedly advised appellant his sentence would depend upon the findings of

the pre-sentence investigation because the trial court didn’t know appellant’s

background. At sentencing, the trial court was aware of appellant’s criminal history of

violence and the extent of the victim’s injuries in the underlying offense.

       {¶23} Finally, we note a trial court does not abuse its discretion in disallowing a

pre-sentence withdrawal of a guilty plea where the motion is motivated by “a change

of heart and an attempt to reduce the original sentence.” State v. Carrington, 5th Dist.

No. 2010CA00228, 2011-Ohio-3228, ¶ 11. It is evident from the record appellant’s

motion to withdraw his guilty plea was premised upon dissatisfaction with the trial

court’s sentence and rejection of straight SRCCC.

       {¶24} Appellant also argues now that “new evidence” was discovered after

appellant’s guilty plea. Assuming the new evidence is the letter presented to the trial

court, appellant told the trial court he received “some new letters from the victim where

she states this incident did not happen.” The trial court asked appellant when he

received the letters and he stated “sometime in the last couple weeks.” Appellant was

brought back the next day, “letters” in hand. The trial court read one letter into the

record, and it neither stated the incident did not happen, nor exonerated appellant.

Appellant also asserted a police officer would testify to the victim’s general lack of

credibility, but appellee noted there was no information in the case to indicate the

victim was not truthful, she made a police report, and her visible injuries were
Stark County, Case No. 2012CA00024                                                    10


consistent with her statements. Appellant has neither factually substantiated his claim

nor offered any evidence or testimony supporting his innocence.           See, State v.

Davison, 5th Dist. No. 2008-CA-00082, 2008-Ohio-7037, ¶ 50, citing State v. Boyd,

10th Dist. No. 97APA12-1640, 1998 WL 733717 (Oct. 22, 1998) and State v. Keith,

9th Dist. Nos. 07CA009263, 07CA009267, 07CA009268, 07CA009269, 07CA009270,

07CA009271, 07CA009272, 2008-Ohio-3724.

       {¶25} Appellant was represented by competent counsel, was afforded a full

hearing before entering his guilty plea, and was afforded a full hearing upon his motion

to withdraw his guilty plea.

       {¶26} Upon review, therefore, we find the trial court did not abuse its discretion

in overruling appellant’s motion to withdraw his plea of guilty.        Appellant’s sole

assignment of error is overruled.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. SHEILA G. FARMER


PAD:kgb
[Cite as State v. Shelton, 2012-Ohio-4482.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                       Plaintiff-Appellee       :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
WILLIAM SHELTON                                 :
                                                :
                                                :   Case No. 2012CA00024
                       Defendant-Appellant      :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. WILLIAM B. HOFFMAN



                                              HON. SHEILA G. FARMER
