[Cite as State v. Goodwin, 2018-Ohio-4377.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                    :         OPINION

                   Plaintiff-Appellee,             :
                                                             CASE NO. 2017-P-0082
         - vs -                                    :

 PATRICK L. GOODWIN,                               :

                   Defendant-Appellant.            :


 Criminal Appeal from the Portage County Court of Common Pleas.
 Case No. 2015 CR 00453.

 Judgment: Affirmed.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 James W. Armstrong, Leipply & Armstrong, 2101 Front Street, Riverfront Centre, Suite
 101, Cuyahoga Falls, OH 44221 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Patrick L. Goodwin, pled guilty to two counts of Rape, felonies of

the first degree, and three counts of Gross Sexual Imposition, felonies of the third degree,

and was sentenced by the Portage County Court of Common Pleas to an aggregate

prison term of 25 years. He now appeals from the trial court’s denial of his oral pre-

sentence motion to withdraw his guilty plea. The trial court’s judgment is affirmed.
       {¶2}   On June 26, 2015, appellant was indicted by the Portage County Grand

Jury on five counts each of Importuning, in violation of R.C. 2907.07(A); Rape, in violation

of R.C. 2907.02(A)(1)(b) and (B); and Gross Sexual Imposition, in violation of R.C.

2907.05(A)(4) and (C)(2). The victim of all 15 counts was a minor less than 13 years of

age.

       {¶3}   The trial court determined appellant was indigent and appointed the public

defender to represent him. An individual identifying herself as appellant’s “authorized

representative” sent a handwritten letter to the trial court on August 7, 2015, claiming

appellant is a “slow learner,” has “issues with comprehension,” and has “issues with

understanding.” The individual claimed that appellant’s attorney appeared not to care

about those issues. The public defender filed a motion to withdraw as counsel due to a

conflict with another client, and new counsel was appointed to represent appellant on

December 3, 2015.

       {¶4}   At the request of appointed counsel, the trial court ordered appellant to

undergo a competency evaluation at Summit County Psycho-Diagnostic Clinic. Appellee,

the state of Ohio, stipulated to the findings in the report. Appellant objected to the

findings, and at defense counsel’s request, the trial court ordered appellant to undergo a

second competency evaluation at Summit Psychological and Associates. The results of

these evaluations are not included in the record.

       {¶5}   Appellant entered into a plea agreement with the state one day prior to the

scheduled jury trial, which had been continued multiple times, and the plea hearing was

held on September 6, 2016. Appellant pled guilty to two amended counts of Rape, in

violation of R.C. 2907.02(A)(2), and three counts of Gross Sexual Imposition, in violation




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of R.C. 2907.05(A)(4) and (C)(2).     Both parties agreed on the record that the plea

agreement included a joint sentencing recommendation of 25 years. The trial court found

appellant’s plea was entered knowingly, intelligently, and voluntarily; accepted the plea;

and found appellant guilty of the five counts. The state entered a nolle prosequi as to the

remaining counts of the indictment. Sentencing was deferred in order to allow the victim

and the victim’s family an opportunity to appear and make a statement.

      {¶6}    The sentencing hearing was held three days later on September 9, 2016.

Appellant made an oral motion to withdraw his guilty plea, and the following exchange

took place:

              DEFENSE COUNSEL: Okay. Judge, it’s my understanding at this
              point in time that my client – it’s his own motion because I think I’m
              part of it, he would like to make a pro se –

              THE COURT: A pro se motion?

              DEFENSE COUNSEL: A pro se Motion to Withdraw his Former Plea
              of Guilty. The basis of which, I believe without being glib, I don’t
              know if he feels like I’ve fought for him enough, I’ve gone out to see
              him enough, if I reviewed the evidence enough, basically, I don’t
              know if – I don’t know exactly outside of that what it is, but I think
              despite the things that he said to you on Tuesday –

              THE COURT: If you have a motion, take the stand. Raise your right
              hand.

              ***

              THE COURT: And what is your motion?

              APPELLANT: To get the plea taken – or get the charges – I – I don’t
              know how to say it.

              THE COURT: Do you want to vacate your plea?

              APPELLANT: Yes, I do. That’s what I wanted to say.

              THE COURT: Tell me why.



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             APPELLANT: I – I feel that I need to do this and take it to trial to find
             out the truth, to get it – to get it over with. I don’t know how to speak
             – I don’t how to [sic] talk to you guys about this. I’m doing my best I
             can [sic].

             THE COURT: [To the Prosecutor:] I’m going to allow you to ask him
             questions.

      {¶7}   At this time, appellant was cross-examined by the prosecutor as to the

reasons for the request to withdraw his plea. The following exchange then took place:

             THE COURT: And, again, since this is a pro se motion, I’m not going
             to allow you to ask any questions unless you feel it’s appropriate.

             DEFENSE COUNSEL: I don’t have any questions to ask.

             ***

             THE COURT: Do you have any other witnesses?

             APPELLANT: I don’t.

             THE COURT: Okay. At this time, I’m going to deny the Defendant’s
             Motion to Vacate Plea. The Defendant was apprised of his rights.
             We were set for a jury trial. This has been set many times for a jury
             trial and we were set for Wednesday morning. I would have allowed
             you to go forward on the jury trial, but you wanted to enter a plea.
             You made this decision knowingly, intelligently and voluntarily, sir.

             APPELLANT: Yes.

             THE COURT: And you’re the one that requested the 25 years, you
             didn’t want to do the life spec.

             APPELLANT: Right. I’m sorry.

             THE COURT: Right. Correct. I’m correct. Therefore, we’re going to
             go forward. Do you want – since you made the pro se motion, do
             you want [defense counsel] to represent you in the sentencing or do
             you want to represent yourself?

             DEFENSE COUNSEL: He would like me to continue, but he informs
             me –




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                THE COURT: You want him to represent you?

                DEFENSE COUNSEL: Yes. And he –

                THE COURT: And I will say for the record, [defense counsel] and
                [the prosecutor] have been in my office many times talking about this
                case and trying to resolve it and – so I know he worked hard on your
                behalf. I know he did.

                APPELLANT: Okay.

       {¶8}     Following the trial court’s oral denial of the motion, the matter proceeded to

sentencing. The trial court sentenced appellant to an aggregate term of 25 years, as was

jointly recommended by the parties. The sentence was comprised of ten years for each

count of Rape, to be served consecutively, and five years for each count of Gross Sexual

Imposition, to be served concurrent with each other and consecutive to the Rape counts.

       {¶9}     Appellant has noticed an appeal and asserts one assignment of error for

our review:

       {¶10} “The trial court committed reversible and plain error in denying Patrick

Goodwin’s Pro Se pre-sentence Motion to Withdraw Guilty Plea.”

       {¶11} Appellant argues the trial court erred by “forcing” him to represent himself

and by failing to conduct a full and complete hearing on his “pro se” motion to withdraw

his guilty plea, despite the court’s awareness of appellant’s “educational and intellectual

limitations.”

       {¶12} Pursuant to Crim.R. 32.1, “[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.”            Motions to withdraw guilty pleas prior to

sentencing are to be allowed freely and liberally. State v. Xie, 62 Ohio St.3d 521, 527



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(1992). The right to withdraw a plea is not, however, absolute. Id. at paragraph one of

the syllabus; see also State v. Prinkey, 11th Dist. Ashtabula No. 2010-A-0029, 2011-Ohio-

2583, ¶5.

       {¶13} An appellate court reviews a trial court’s decision regarding a motion to

withdraw a guilty plea for an abuse of discretion. Prinkey, supra, at ¶7 (citation omitted).

An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal

decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶14} In evaluating whether a trial court properly exercised its discretion in ruling

on a pre-sentence motion to withdraw a guilty plea, this court applies the four-factor test

pronounced in State v. Peterseim, 68 Ohio App.2d 211 (8th Dist.1980). See, e.g., State

v. Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶11, and State v.

Johnson, 11th Dist. Lake No. 2007-L-195, 2008-Ohio-6980, ¶21. A trial court does not

abuse its discretion in overruling a motion to withdraw when (1) the defendant was

represented by competent counsel; (2) the defendant was afforded a full plea hearing,

pursuant to Crim.R. 11; (3) the defendant was provided a complete and impartial hearing

on the motion to withdraw; and (4) the trial court gave full and fair consideration to the

request. Peterseim, supra, at paragraph three of the syllabus.

       {¶15} Appellant asserts the trial court failed to provide a complete and impartial

hearing on the motion to withdraw and failed to give full and fair consideration to the

request because the trial court denied the motion immediately after appellant was

questioned by the prosecutor. This court has held, however, that “[i]nviting and hearing

oral arguments on a motion to withdraw a guilty plea at the sentencing hearing can




                                              6
constitute a full and fair hearing on that motion.” State v. Greenleaf, 11th Dist. Portage

No. 2005-P-0017, 2006-Ohio-4317, ¶78, citing State v. Burnett, 2d Dist. Montgomery No.

20496, 2005-Ohio-1036, ¶20.

       {¶16} Here, the trial court provided appellant with an opportunity to state the

reasons why he wanted to withdraw his guilty plea, but he failed to offer a legitimate

reason for doing so. Defense counsel indicated appellant believed his representation had

been inadequate, an argument the trial court found to be unsupported. Further, the

prosecutor elicited testimony from appellant, during which appellant agreed he was given

time to choose between a 25-year sentence or an indeterminate term of 10 years to life

and that he alone chose the former. It appears from appellant’s statements that he had

merely changed his mind about entering the plea, which does not justify a withdrawal.

See, e.g., State v. Battersby, 11th Dist. Lake No. 2007-L-023, 2008-Ohio-836, ¶59

(citations omitted).

       {¶17} Although the trial court heard appellant’s argument and testimony and

denied the motion immediately before proceeding to sentencing, we conclude the trial

court gave full and fair consideration to the request after a complete and impartial hearing

on the matter. This argument is not well taken.

       {¶18} Appellant further asserts he was not represented by competent counsel at

the time he moved to withdraw his guilty plea. Under Peterseim, this argument lacks

merit. In Peterseim, the competent counsel to which the court held a defendant was

entitled was regarding the initial entering of the plea, not an attempt to withdraw the plea.

See Peterseim, supra, at 214 (“there is no question that the attorneys who negotiated the

plea for appellant (and whose advice prompted appellant to accept the plea) were




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exceptionally qualified and diligent”).     Appellant does not raise an issue with his

representation at his plea hearing nor does he argue the trial court failed to conduct a full

Crim.R. 11 plea hearing.

       {¶19} Embedded within this assignment of error, however, is the assertion that

appellant was denied his Crim.R. 44(A) right to counsel: “Where a defendant charged

with a serious offense is unable to obtain counsel, counsel shall be assigned to represent

him at every stage of the proceedings from his initial appearance before a court through

appeal as of right, unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”

       {¶20} The premise for this assertion is the continual reference to appellant’s

motion as a “pro se” motion. We conclude this premise is false. While there was

reference to appellant making a “pro se” motion, he was represented by counsel at that

time, and counsel was present. The fact the trial court allowed appellant to speak on his

own did not mean he was unrepresented. At no time did defense counsel withdraw from

representation nor did appellant request removal of defense counsel. In fact, appellant

desired defense counsel to immediately continue its representation for sentencing

purposes.    Additionally, defense counsel provided the trial court with the basis for

appellant’s motion as it pertained to his own representation, to wit: “I don’t know if he feels

like I’ve fought for him enough, I’ve gone out to see him enough, if I reviewed the evidence

enough[.]” Defense counsel was standing by during the prosecutor’s cross-examination

of appellant, and the trial court indicated defense counsel could ask questions of appellant

if he felt it was appropriate. Defense counsel stated he had no questions for appellant.




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      {¶21} Appellant was represented by appointed counsel at every stage of the

proceedings, including the portion of the sentencing hearing wherein appellant chose to

orally move to withdraw his guilty plea based on an asserted dissatisfaction with his

defense counsel. This argument is not well taken. Accord State v. Gabel, 6th Dist.

Sandusky No. S-14-038, et seq., 2015-Ohio-2803, ¶15, fn 1.

      {¶22} Appellant’s sole assignment of error is without merit.

      {¶23} The judgment of the Portage County Court of Common Pleas, denying

appellant’s oral pre-sentence motion to withdraw his guilty plea, is hereby affirmed.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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