[Cite as State v. Nagel, 2013-Ohio-2356.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2012CA00211
JASON T. NAGEL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR0910B


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 3, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               EUGENE O'BYRNE
PROSECUTING ATTORNEY,                          101 Central Plaza South
STARK COUNTY, OHIO                             Canton, Ohio 44702

By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00211                                                      2

Hoffman, P.J.


       {¶1}   Defendant-appellant Jason T. Nagel appeals his sentence entered by the

Stark County Court of Common Pleas, after the trial court denied his motion to withdraw

plea. Plantiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1

       {¶2}   On August 6, 2012, the Stark County Grand Jury indicted Appellant on

one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of the fifth

degree.    The trial court granted the state’s request to amend the indictment to one

count of receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fifth

degree. Thereafter, Appellant entered a plea of guilty to the amended indictment. The

trial court accepted his plea and ordered a presentence investigation.

       {¶3}   While the presentence investigation report was being prepared, Appellant

retained new counsel who filed a motion to withdraw plea on his behalf. Appellant

argued he did not have “the understanding of the present and future ramifications of his

plea.” Appellant explained he would lose his current living situation due to a felony

conviction. Appellant also claimed he had a defense to the charge.

       {¶4}   At the beginning of the sentencing hearing on October 10, 2012, the trial

court addressed Appellant’s motion. The trial court determined Appellant had a felony

conviction prior to his entering a guilty plea to the instant receiving stolen property

charge.   The trial court overruled the motion, stating “[s]o the felony conviction aspect

of this is a justification certainly does not have any weight with this court nor has any



1
  A Statement of the Facts underlying Appellant’s conviction and sentence is not
necessary for our disposition of this Appeal.
Stark County, Case No. 2012CA00211                                                      3


basis been given even though it’s prior to sentencing.” Transcript of October 10, 2012

Sentencing Hearing at 4-5.        The trial court immediately proceeded to sentence

Appellant, imposing a two year period of community control sanctions as well as 200

hours of community service.

       {¶5}   It is from this sentence Appellant appeals, assigning as error:

       {¶6}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING

APPELLANT TO WITHDRAW HIS PLEA UPON HIS MOTION PRIOR TO

SENTENCING.”

                                                I

       {¶7}   Crim. R. 32.1, which governs motions to withdraw guilty pleas, provides in

pertinent part: “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.”

       {¶8}   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–Ohio6328, ¶ 32, citing State v. Xie, 62 Ohio St.3d

521, 584 N.E.2d 715 (1992), at paragraph one of the syllabus.

       {¶9}   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
Stark County, Case No. 2012CA00211                                                       4


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).

      {¶10} 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).

      {¶11} 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.
Stark County, Case No. 2012CA00211                                                       5


       {¶12} Appellant sought to withdraw his guilty plea because of the negative

consequences a felony conviction would have on his living situation, i.e., his job and his

residence. The trial court concluded Appellant’s reason did not have legal merit as he

already had a prior felony conviction; therefore, the proffered reason did not warrant the

requested relief. Further, Appellant asserted he had a complete defense, however, he

did not offer any specifics in his motion with regard to such.

       {¶13} We find the trial court did not abuse its discretion in overruling Appellant’s

motion to withdraw his guilty plea.

       {¶14} Appellant’s sole assignment of error is overruled.

       {¶15} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER


                                              s/ John W. Wise _____________________
                                              HON. JOHN W. WISE
Stark County, Case No. 2012CA00211                                                6


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
JASON T. NAGEL                            :
                                          :
       Defendant-Appellant                :        Case No. 2012CA00211


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

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




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
