[Cite as State v. Johnson, 2016-Ohio-8494.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                     No. 15AP-946
v.                                                  :             (C.P.C. No. 13CR-6671)

Trevelyn S. Johnson,                                :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                              D E C I S I O N

                                   Rendered on December 29, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                 Swisher, for appellee. Argued: Laura R. Swisher.

                 On brief: Moore & Yaklevich, and W. Jeffrey Moore, for
                 appellant. Argued: W. Jeffrey Moore.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

        {¶ 1} Defendant-appellant, Trevelyn S. Johnson, appeals from a judgment of the
Franklin County Court of Common Pleas sentencing him to a six-year prison term
pursuant to a guilty plea entered by appellant. Because we conclude the trial court did not
abuse its discretion by denying appellant's presentence motion to withdraw his plea and
that the sentence is supported by the record and not clearly and convincingly contrary to
law, we affirm.
I. Facts and Procedural History
        {¶ 2} Appellant was indicted on one count of felonious assault, a second-degree
felony, in violation of R.C. 2903.11, and one count of domestic violence, a first-degree
misdemeanor, in violation of R.C. 2919.25. Appellant initially pled not guilty and gave
No. 15AP-946                                                                                              2


notice of his intention to assert various affirmative defenses, including self-defense,
duress, and necessity. A trial was ultimately set for July 13, 2015. On the day that trial
was set to begin, appellant entered into a plea agreement whereby he entered an Alford1
plea of guilty to one count of felonious assault, a second-degree felony, in violation of R.C.
2903.11, and plaintiff-appellee, State of Ohio, dismissed the misdemeanor domestic
violence charge. Pursuant to the guilty plea, the trial court ordered a sentencing hearing
for September 16, 2015.
        {¶ 3} At the beginning of the sentencing hearing, appellant moved to withdraw
his guilty plea. In support of the motion, appellant's counsel expressed concern about the
victim's supporters filling the courtroom and the court's ability to be fair and impartial in
imposing a sentence. Appellant's counsel also asserted that appellant had defenses to the
charges against him. The prosecutor opposed the motion to withdraw, arguing it was a
delay tactic. After hearing arguments from appellant's counsel and the prosecutor, the
trial court denied the motion to withdraw the plea and proceeded with the sentencing
hearing. The trial court took statements from the prosecutor, the victim, the victim's
daughter, appellant's counsel, and appellant, before imposing a sentence of six years of
imprisonment and a mandatory period of three years of postrelease control.2
II. Assignments of Error
        {¶ 4} Appellant appeals and assigns the following two assignments of error for
our review:
                [I.] The trial court committed error by refusing to allow Mr.
                Johnson to withdraw his plea without a hearing.

                [II.] The trial court erred in sentencing Mr. Johnson to six
                (6) years in prison.

III. Discussion
        {¶ 5} In his first assignment of error, appellant asserts the trial court erred by
denying his presentence motion to withdraw his guilty plea. Under Crim.R. 32.1, a
criminal defendant may move to withdraw a guilty or no contest plea before sentence is

1 North Carolina v. Alford, 400 U.S. 25 (1970).
2 We note that appellant also filed a post-sentencing motion to vacate the sentence or to withdraw his plea.
The trial court denied that motion on October 16, 2015. Appellant filed this appeal on October 15, 2015, one
day prior to the denial of that postsentence motion; therefore, denial of the postsentence motion is not at
issue in the present appeal.
No. 15AP-946                                                                             3


imposed. Generally, "a presentence motion to withdraw a guilty plea should be freely and
liberally granted."   State v. Xie, 62 Ohio St.3d 521, 527 (1992). See also State v.
Zimmerman, 10th Dist. No. 09AP-866, 2010-Ohio-4087, ¶ 11. However, a defendant
"does not have an absolute right to withdraw a plea prior to sentencing." Xie at 527.
"[T]he trial court must conduct a hearing to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea." Id.
       {¶ 6} A trial court's decision on a presentence motion to withdraw a plea is
subject to review for abuse of discretion.        Xie at paragraph two of the syllabus;
Zimmerman at ¶ 12. An abuse of discretion occurs where a decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). We
consider a number of non-exhaustive factors in determining whether a trial court abused
its discretion by denying a presentence motion to withdraw, including: " '(1) whether the
prosecution would be prejudiced if the plea were vacated; (2) whether the offender was
represented by highly competent counsel; (3) the extent of the Crim.R. 11 hearing;
(4) whether there was a full hearing on the motion to withdraw the offender's guilty plea;
(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 perhaps not guilty or had a
complete defense to the crime.' " Zimmerman at ¶ 13, quoting State v. Jones, 10th Dist.
No. 09AP-700, 2010-Ohio-903, ¶ 10, citing State v. Fish, 104 Ohio App.3d 236, 240 (1st
Dist.1995). Consideration of these factors is a balancing test, and no single factor is
conclusive. Zimmerman at ¶ 13, citing Fish at 240.
       {¶ 7} Appellant's primary argument addresses the fourth factor set forth under
the case law—i.e., whether he received a "full hearing on the motion to withdraw" his plea.
Id. Accordingly, we begin our evaluation of the balancing test with this factor. On the
morning of the sentencing hearing, the following exchange occurred between appellant's
counsel, the prosecutor, and the trial court:
              The Court: We are on the record in 13CR-6671, State of Ohio
              versus Trevelyn Johnson.

              [Appellant's counsel]: Okay. My client --
No. 15AP-946                                                                   4


           The Court: At the bench are counsel for the State, Ms.
           Chappelear, and defense counsel, Mr. Moore.

           [Appellant's counsel]: Your Honor, for the record, my client
           has just – and I have not talked to him, spoken to him about
           this withdraw – stated he wishes to withdraw his plea. It was
           not my idea. I will tell this court in no uncertain terms I was –
           that's just what he told me. I'm not trying to delay anything.

           I know that – I will put on the record that I have deep
           concerns about the victim drumming up a support group
           that's filled the courtroom and – but the Court has assured me
           that the Court will be fair and impartial in this case. I've told
           my client that, but he feels evidently he wishes to withdraw his
           plea. I don't know what to tell you.

           The Court: Any response?

           [Prosecutor]: I don't think there's any basis for him
           withdrawing his plea. He was fully informed of his rights and
           the consequences of entering his Alford plea at the time of the
           plea colloquy.

           [Appellant's counsel]: I believe –

           [Prosecutor]: It would seem to me that a last-minute change
           of heart in the face of his sentencing is disingenuous and
           merely a delay tactic.

           [Appellant's counsel]: Your Honor, I believe my client does
           have a right to withdraw his plea previous to sentencing and I
           guess on his behalf I know I have to advocate that. It wasn't
           what I intended to do today, so I'm getting surprised more
           than once.

           The Court: What – what basis are you advancing for the
           withdraw?

           [Appellant's counsel]: He believes he has got – he as got
           defenses to this case, which he does. He also believes that he –
           at the very worst, he would get an aggravated assault in this
           case versus a felonious assault. That would change the
           amount of time he would get. Initially, his idea was that he
           was going to try to save Ms. Phipps and the Court a headache
           here because he believed he would get a fair shake, but he
           does not believe he's getting a fair shake. He doesn't believe
           what he's being – his side is being heard. He believes only one
No. 15AP-946                                                                               5


              side is being heard and I guess I can understand that to an
              extent. I'm not accusing the Court of not taking this serious or
              hearing our side. I thought I pretty much laid our side out to
              you. As I say, this is coming as a shock to me, but that's his
              reasoning. I had not planned on this obviously because I
              threw a tantrum in your office about the sentencing.

              [Prosecutor]: I – I don't think that Mr. Moore has articulated
              a valid reason for Mr. Johnson to withdraw his plea.

              [Appellant's counsel]: Your Honor, I think he has valid
              defenses and he –

              [Prosecutor]: He had those same defenses available to him
              when he entered his plea. Nothing has changed between when
              he entered his plea –

              The Court: And at the plea hearing you stood by his side and
              noted that he knowingly, intelligently and voluntarily waived
              the rights that he had and entered into a guilty plea.

              [Appellant's counsel]: I did, but he's had –

              The Court: I have not heard a reasonable and legitimate basis
              to withdraw the plea presentencing. Under State v. Xio [sic],
              I'm going to deny the request and move forward with the
              sentencing hearing.

              [Appellant's counsel]: Can you please note our objection for
              the record?

              The Court: Sure. It's all on the record.

(Sept. 16, 2015 Tr. at 2-5.)
       {¶ 8} Appellant argues the conference at the bench did not constitute a hearing,
and, therefore, the trial court abused its discretion by denying the motion to withdraw
without a hearing. This court has previously noted that a trial court inviting and hearing
oral arguments on a motion to withdraw a guilty plea at a sentencing hearing may
constitute a full and fair hearing. State v. Hairston, 10th Dist. No. 07AP-160, 2007-Ohio-
5928, ¶ 27. In Hairston, the defendant stated at sentencing that he wished to withdraw
his plea. The trial court initially responded "[y]eah, the answer to that is no." Id. at ¶ 9.
After the trial court's initial response, the defendant's counsel explained that defendant
No. 15AP-946                                                                               6


had expressed a desire to withdraw his plea after discussing the sentencing possibilities.
Id. at ¶ 10. Although the defendant had not yet been sentenced, he had discussed the
potential sentencing range with his counsel and asserted that he felt he should not receive
that much jail time. Id. at ¶ 9-12. The trial court noted that an extensive discussion
occurred at the plea hearing and concluded that the defendant failed to establish grounds
to withdraw his plea. Id. at ¶ 11. On appeal, this court affirmed the trial court's denial of
the motion to withdraw. The court noted that the trial court gave both appellant and his
counsel an opportunity to explain the reasons for the plea withdrawal motion. Id. at ¶ 28.
Because the defendant failed to establish a reasonable and legitimate basis for his motion,
there was no need for further inquiry. Id. at ¶ 28.
       {¶ 9} Although our precedents indicate that a trial court is not required to hold a
separate evidentiary hearing on a presentence motion to withdraw a plea, this court has
reversed a trial court's summary denial of a presentence motion to withdraw when the
court did not give the defendant or counsel an opportunity to explain the motion. See
State v. Hurlburt, 10th Dist. No. 12AP-231, 2013-Ohio-767. In Hurlburt, the defendant
entered a guilty plea on a felony charge of non-support of dependents. At the sentencing
hearing, the prosecutor explained to the court that the plea agreement required the
defendant to pay $10,000 toward his child support arrearage by the time of the
sentencing hearing and, if this condition was met, the state would permit the defendant to
withdraw the guilty plea on the felony charge and plead guilty to a misdemeanor charge
instead. Id. at ¶ 5. When the sentencing hearing occurred, the defendant had previously
paid $6,200 toward his arrearage and his counsel had an additional $3,085 that would be
applied to it. The state indicated that if the trial court would continue the sentencing
hearing, the defendant had promised to pay the remaining $915 to satisfy the arrearage
prior to the next sentencing date. Id. at ¶ 5. The trial court refused to continue the
sentencing hearing and indicated that it intended to proceed with sentencing.           The
defendant's counsel then asked if they could discuss withdrawing the guilty plea; the court
immediately responded in the negative and proceeded to enter a sentence. Id. at ¶ 6. On
appeal, this court reversed, holding that "[a]lthough the court in Xie did not set forth the
type of hearing required for a presentence motion to withdraw a guilty plea, the trial court
No. 15AP-946                                                                              7


here did not hold any hearing or even allow defense counsel to explain the basis for the
motion." Id. at ¶ 7.
       {¶ 10} Unlike Hurlburt, in the present case, the trial court did not summarily deny
appellant's motion but, rather, afforded appellant's counsel an opportunity to explain the
basis for the motion to withdraw. Appellant's counsel explained that appellant believed
he had defenses to the charge against him and that he would not receive a fair sentence
from the trial court. Appellant's counsel did not expressly request a separate hearing, nor
argue that additional evidence was necessary. Under these circumstances, the trial court
conducted a sufficient hearing on the motion to withdraw. Therefore, this factor weighs
against finding an abuse of discretion. Moreover, we note that whether the trial court
conducted a full hearing on the motion to withdraw is only one part of our multi-factor
test and, as explained herein, on balance we conclude that the weight of the other factors
is against finding an abuse of discretion.
       {¶ 11} Having addressed appellant's primary argument, we now turn to the other
eight factors to be considered in determining whether the trial court abused its discretion
by denying the motion to withdraw, and we consider them in order.
       {¶ 12} The first factor set forth in our precedents is whether withdrawal of the plea
would result in prejudice to the prosecution. Zimmerman at ¶ 13. In this case, there is no
evidence that any additional prejudice to the state would have resulted from granting
appellant's motion, "beyond the ordinary impact of any defendant's subsequent
withdrawal of a guilty plea." State v. Harris, 10th Dist. No. 09AP-1111, 2010-Ohio-4127,
¶ 26. Thus, this factor weighs in favor of finding an abuse of discretion in denying the
motion to withdraw. State v. Jones, 10th Dist. No. 15AP-530, 2016-Ohio-951, ¶ 16. See
also State v. Simpson, 10th Dist. No. 07AP-929, 2008-Ohio-2460, ¶ 15 ("[O]nly two of the
factors weigh in favor of granting appellant's motion to withdraw. The state would not
have been prejudiced by the trial court's permitting appellant to withdraw his guilty plea,
beyond the ordinary impact of any defendant's subsequent withdrawal of a guilty plea,
and appellant's motion was made in a timely manner."). Compare State v. Ridgeway,
10th Dist. No. 14AP-768, 2015-Ohio-2539, ¶ 10 (holding that the absence of additional
prejudice to the state beyond the ordinary impact of a subsequent withdrawal of a guilty
plea was neutral).
No. 15AP-946                                                                             8


       {¶ 13} The second factor is whether appellant was represented by highly
competent counsel. Zimmerman at ¶ 13. There does not appear to be any question as to
whether appellant's counsel provided competent assistance. Appellant's counsel took care
to ensure that appellant's guilty plea was entered as an Alford plea, thus preserving
appellant's assertion of innocence. In addition, at the sentencing hearing, appellant's
counsel stated he had been practicing law for 32 years and had been involved in serious
criminal cases, including assault and death penalty cases. There is nothing in the record
to suggest that appellant was not capably represented by his counsel. Thus, this factor
weighs against finding an abuse of discretion.
       {¶ 14} The third factor is the extent of the Crim.R. 11 hearing conducted before
entry of the plea. Zimmerman at ¶ 13. The record in this case reflects that the trial court
undertook a thorough Crim.R. 11 hearing before accepting appellant's guilty plea. The
case was set for trial when appellant decided to accept a plea offer from the state. The
court granted a recess of 45 minutes to allow appellant to discuss the plea offer with his
attorney. When the court reconvened, the trial court directly addressed appellant to
ensure that he understood the terms of the plea and the rights that he was waiving by
pleading guilty. Appellant indicated that he understood the rights he was waiving and he
had reviewed the guilty plea form with his counsel sufficiently to understand it. The trial
court indicated that the maximum penalty was eight years imprisonment and there was a
presumption of incarceration.      Appellant's counsel also indicated that he believed
appellant understood his rights and that he was knowingly, intelligently, and voluntarily
pleading guilty. Because the trial court conducted a full and thorough Crim.R. 11 hearing
before accepting the plea, this factor weighs against finding an abuse of discretion.
       {¶ 15} The fifth factor is whether the trial court fully and fairly considered the
motion to withdraw. Zimmerman at ¶ 13. As explained above, we conclude that, under
the circumstances, the trial court undertook a sufficient hearing on appellant's motion to
withdraw. The record also reflects that the trial court fully and fairly considered the
motion within the context of that hearing. The court heard arguments from appellant's
counsel and the prosecutor, and in denying the motion the court expressly referred to the
"reasonable and legitimate basis" standard under Xie. This factor weighs against finding
an abuse of discretion.
No. 15AP-946                                                                             9


       {¶ 16} The sixth factor to be considered is whether appellant made his motion to
withdraw within a reasonable time. Zimmerman at ¶ 13. Appellant entered his guilty
plea on July 13, 2015, and moved to withdraw that plea on the morning of the sentencing
hearing, which occurred on September 16, 2015. This court has previously held that "[a]
motion to withdraw a guilty plea made on the day of the sentencing hearing is not made at
a reasonable time." State v. Caballero, 10th Dist. No. 15AP-1132, 2016-Ohio-5496, ¶ 20.
In Caballero, as in this case, the defendant waited two months after entering the plea to
file a motion to withdraw, and filed the motion to withdraw on the day the case was set for
sentencing. Id. On the facts of this case, we find as well that appellant failed to move to
withdraw his plea within a reasonable time and this factor weighs against finding an
abuse of discretion.
       {¶ 17} The seventh factor is whether the motion set forth specific reasons for the
withdrawal of the plea. Zimmerman at ¶ 13. In arguing for withdrawal of the plea,
appellant's counsel did set forth specific reasons to support the motion. He asserted that
appellant believed he had defenses to the charge of felonious assault and he believed the
trial court could not be impartial in issuing a sentence because of the environment in the
courtroom. Even if these reasons ultimately lacked merit, they were specific reasons in
support of the motion to withdraw; thus, this factor weighs in favor of finding an abuse of
discretion. See Caballero at ¶ 21.
       {¶ 18} The eighth factor to be considered is whether appellant understood the
nature of the charges and the possible penalties. Zimmerman at ¶ 13. The guilty plea
form appellant signed indicated that he faced a maximum prison term of up to eight years
and a maximum fine of up to $15,000, and that there was a presumption in favor of a
prison term. During the plea hearing, the trial court asked appellant whether he
understood the plea form and he responded affirmatively. The trial court then reviewed
the potential maximum penalties to ensure that appellant understood them. Appellant
does not argue on appeal that he did not understand the nature of the charges and the
possible penalties. Therefore, we find this factor weighs against finding an abuse of
discretion.
       {¶ 19} Finally, the ninth factor is whether appellant may not have been guilty or
may have had a complete defense to the crime. Zimmerman at ¶ 13. Prior to entering a
No. 15AP-946                                                                               10


guilty plea, appellant had given notice that he intended to plead various affirmative
defenses, including self-defense, duress, and necessity. Appellant's guilty plea was an
Alford plea, under which he agreed to plead guilty but maintained his innocence. See
State v. Raymond, 10th Dist. No. 05AP-1043, 2006-Ohio-3259, ¶ 9 (characterizing an
Alford plea as a circumstance "whereby a defendant pleads guilty yet maintains actual
innocence of the charges" and that "[i]n order to constitute a valid Alford plea, the plea of
guilty must be accompanied by the defendant's protestation of innocence"). (Emphasis
sic.) In support of his motion to withdraw, appellant's counsel asserted that he had
defenses to the charge. The trial court noted that those defenses were also available to
appellant at the time he pled guilty but did not address the validity of those defenses. The
presence of potential defenses weighs in favor of finding an abuse of discretion.
       {¶ 20} As noted above, appellant focuses predominantly on his claim that he was
denied a hearing on the motion to withdraw; we disagree and conclude that, under the
circumstances, the trial court conducted a sufficient hearing on the motion. With respect
to the full range of factors to be considered, we conclude that although a few of the factors
in the balancing test weigh in favor of finding an abuse of discretion, on the whole the
weight of the factors is against finding that the trial court abused its discretion by denying
appellant's presentence motion to withdraw his guilty plea.
       {¶ 21} Accordingly, we overrule appellant's first assignment of error.
       {¶ 22} In his second assignment of error, appellant asserts the trial court erred by
sentencing him to six years of imprisonment. Appellant argues the trial court was not fair
and impartial and was affected by the alleged "circus[-]like, hostile atmosphere" in the
courtroom at the sentencing hearing. (Appellant's Brief at 14.) Appellant further argues
the trial court ignored the principles of sentencing, asserting that the trial court failed to
consider evidence mitigating appellant's conduct and that the sentence imposed an
unnecessary burden on state resources.
       {¶ 23} Appellant argued in his brief on appeal that in reviewing the sentence this
court should apply the two-step analysis set forth by the Supreme Court of Ohio in State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In that decision, a plurality of the court
held that an appellate court was first required to examine the sentencing court's
compliance with all applicable rules and statutes to determine whether the sentence was
No. 15AP-946                                                                                11


clearly and convincingly contrary to law. If the appellate court found that the sentence
was not clearly and convincingly contrary to law, the court was then required to apply an
abuse of discretion standard in reviewing the sentencing court's decision. State v. D.S.,
10th Dist. No. 15AP-790, 2016-Ohio-2856, ¶ 7, citing Kalish at ¶ 4. The state argued in its
brief on appeal that Kalish was of limited precedential value because it was a plurality
opinion and that this court should instead consider whether clear and convincing
evidence established that the sentence was contrary to law, citing this court's decision in
State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941.
       {¶ 24} After the close of briefing in this case, the Supreme Court issued its decision
in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, which revisited the standard to
be applied in reviewing felony sentences. In Marcum, the court held that "appellate
courts may not apply the abuse-of-discretion standard in sentencing-term challenges."
Id. at ¶ 10. The court further held that "an appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the appellate court
finds by clear and convincing evidence that the record does not support the sentence." Id.
at ¶ 23. Accordingly, we must consider whether (1) appellant's sentence is clearly and
convincingly contrary to law, or (2) the record does not support appellant's sentence by
clear and convincing evidence. D.S. at ¶ 9. See also State v. Madison, 10th Dist. No.
15AP-994, 2016-Ohio-7127, ¶ 11 (explaining that, under Marcum, an appellate court may
vacate or modify a felony sentence only if it determines by clear and convincing evidence
that the record does not support the trial court's findings or that the sentence is otherwise
contrary to law). "Clear and convincing evidence is that measure or degree of proof which
is more than a mere 'preponderance of the evidence,' but not to the extent of such
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established."   Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. Following Marcum, this court has held that a sentence is not clearly and
convincingly contrary to law when a trial court considers the principles and purposes of
sentencing contained in R.C. 2929.11 and the factors listed in R.C. 2929.12, properly
imposes postrelease control, and sentences the defendant within the permissible statutory
range. State v. Gore, 10th Dist. No. 15AP-686, 2016-Ohio-7667, ¶ 8.
No. 15AP-946                                                                               12


       {¶ 25} With respect to the principles and purposes of sentencing, a trial court is
guided by the overriding purposes of sentencing set forth in R.C. 2929.11(A) when
sentencing an offender for a felony offense. D.S. at ¶ 10. To achieve those purposes, the
court must consider the need for incapacitating the offender, deterring future crime,
rehabilitating the offender, and making restitution.      Id. The sentence must also be
commensurate with the seriousness of the offender's conduct and its impact on the victim
and consistent with sentences imposed for similar crimes committed by similar offenders.
Id. at ¶ 11. The sentencing court must also consider the seriousness and recidivism factors
set forth in R.C. 2929.12 in determining the most effective way to comply with the
purposes and principles of sentencing. Id.
       {¶ 26} Appellant pled guilty to felonious assault, a second-degree felony, in
violation of R.C. 2903.11. Pursuant to statute, a conviction for this offense was subject to a
prison term of up to eight years. R.C. 2929.14(A)(2). The trial court sentenced appellant
to six years of imprisonment; thus, the sentence in this case was within the range of
sentences applicable to second-degree felonies.
       {¶ 27} After reviewing the record, we also find that the court properly complied
with the applicable sentencing provisions. In the judgment entry, the court expressly
stated that it considered the purposes and principles of sentencing set forth in R.C.
2929.11 and the factors set forth in R.C. 2929.12. The court concluded that a shorter
prison term would demean the seriousness of appellant's conduct and would not
adequately protect the public from future crime by appellant. The court also expressly
referred to the purposes of felony sentencing at the sentencing hearing and explained that
it had considered the seriousness of the crime and the likelihood of recidivism, along with
the impact on the victim and child who was present in the home when the incident
occurred.
       {¶ 28} Having fully reviewed the record, we find appellant's sentence is not clearly
and convincingly contrary to law and the record supports appellant's sentence. See
Marcum at ¶ 23.
       {¶ 29} Accordingly, we overrule appellant's second assignment of error.
No. 15AP-946                                                                                 13


IV. Conclusion
        {¶ 30} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                          Judgment affirmed.
                                SADLER, J., concurs.
                    BRUNNER, J., concurs in part and dissents in part.
BRUNNER, J., concurring in part and dissenting in part.
        {¶ 31} I concur with the majority in overruling Johnson's second assignment of
error, but I respectfully dissent from the majority's decision as to Johnson's first
assignment of error.
        {¶ 32} I would analyze the issue of whether Johnson's presentence motion to
withdraw his guilty plea was afforded a full hearing according to a two-step analysis:
(1) whether the issue of having been provided a full hearing is in Johnson's or the State's
favor, and (2) how weighty this factor is in relation to the eight other factors to be
considered. I would hold that Johnson did not receive a full hearing on his motion, which
is in his favor. I would further hold that this factor is highly grave or weighty, because it is
structural error when not provided, especially in the context of an Alford plea. North
Carolina v. Alford, 400 U.S. 25 (1970). I would therefore find that the trial court abused
its discretion, and I would reverse the trial court's decision and remand it for a full
hearing on the motion in accordance with the dissent portion of this decision.
Standard of Review
        {¶ 33} We review the trial court's decision on Johnson's motion to withdraw his
guilty plea according to an abuse of discretion standard, considering nine specific factors
as set forth in paragraph six of the majority decision that relate to deciding a presentence
motion to withdraw a guilty plea pursuant to Crim.R. 32.1.            These factors must be
balanced against one another, with no single factor being conclusive. State v. Xie, 62
Ohio St.3d 521, 527 (1992), and State v. Zimmerman, 10th Dist. No. 09AP-866, 2010-
Ohio-4087, ¶ 11. On appeal, Johnson has focused on the fourth factor as being in error
and of grave concern—whether there was a full hearing on his motion to withdraw his
plea.
No. 15AP-946                                                                             14


The Nature of the Hearing Provided Johnson
       {¶ 34} The extent of the hearing before the trial court on Johnson's motion was to
bring counsel to a brief sidebar conference during which Johnson's counsel had little
opportunity to present and substantiate the reasons for his client's presentence motion to
withdraw his Alford plea. See Alford and State v. Schmidt, 3d Dist. No. 10-10-04, 2010-
Ohio-4809, ¶ 13-14 ("Because pleas accompanied by protestations of innocence give rise
to an inherent suspicion that a knowing, voluntary, and intelligent waiver may not have
occurred, an Alford plea places a heightened duty upon the trial court to ensure that the
defendant's rights are protected and that entering the plea is a rational decision on the
part of the defendant."). Since the plea Johnson sought to withdraw was an Alford plea,
the need for a full hearing on his motion was heightened. Schmidt at ¶ 13-14.
       {¶ 35} The transcript of the sidebar conference indicates that it was brief, and the
prosecutor was permitted to interrupt appellant's counsel before he could finish
presenting reasons in support of his client's motion to the court. The record indicates that
the circus-like atmosphere of the courtroom with television equipment and several dozen
supporters of the victim in matching tee shirts expressing support for the victim in the
courtroom contributed to a perceived necessity for a sidebar conference rather than a full
public hearing on Johnson's motion. The trial court could have prevented this:

              A trial court has the authority to exercise control over the
              proceedings and may exclude those courtroom spectators
              whose conduct is likely to interfere with the administration of
              justice or to denigrate the protection of public health, safety,
              and morals.

(Citations omitted.) State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285, ¶ 34.
Rather than hold a sidebar conference to attempt to hear and consider Johnson's reasons
for wanting to withdraw his plea, the trial court could have either publicly held the
hearing or excluded the tee shirt clad supporters of the victim to avoid any concern for
disruption at a public hearing.
The Issue of Whether Johnson Was Provided a Full Hearing Favors Johnson
       {¶ 36} That the trial court did neither but instead held a sidebar conference tends
to favor Johnson in his concern for a full hearing. And the interruption by the prosecutor
during the scant chance Johnson's attorney had to present reasons to the court at sidebar,
No. 15AP-946                                                                               15


followed by the trial court's continuation of the discussion without fully hearing Johnson's
reasons, also tend to favor Johnson.
       {¶ 37} The scenario at Johnson's sentencing hearing is highly dissimilar to that of
cases in which we previously decided there was no abuse of discretion for failure to grant
a presentence motion to withdraw a guilty plea. For instance, in State v. Hairston, 10th
Dist. No. 07AP-160, 2007-Ohio-5928, ¶ 27, the defendant clearly communicated that he
did not like the length of the sentence that was about to be imposed: "I feel like I shouldn't
deserve this much time." Hairston at ¶ 9 (quote of defendant at sentencing hearing).
However, in Johnson's case, his counsel communicated concern about the raucous
atmosphere of the courtroom that Johnson perceived would deny him a fair sentencing
hearing. For Johnson, the courtroom atmosphere at sentencing was a worse risk than a
trial would be. So he changed his mind about proceeding under his prior Alford plea. The
facts of Johnson's case objectively necessitated a more thorough hearing of his motion to
withdraw his plea than was provided by the trial court in denying it.
       {¶ 38} Under these circumstances, I would find that the trial court abused its
discretion. Johnson argues, and I agree, that no opportunity was provided for a full
hearing during which Johnson could offer evidence and testimony to substantiate his
reasons for wanting to withdraw his prior Alford plea.
The Weight of the Fourth Factor for a Full Hearing is Heavy
       {¶ 39} This denial of a full hearing on a presentence motion to withdraw a guilty
plea is structural error.   At the sentencing hearing but before sentencing, Johnson
changed his mind and wanted a trial. Whether or not he was entitled to withdraw his plea
and have a jury trial should have been more fully and fairly considered at a hearing on his
motion. He was asking for a trial.

              "The violation of the right to a public trial is considered
              structural error and not subject to harmless-error standard."
              State v. Drummond, 111 Ohio St.3d 14, 2006 Ohio 5084, at
              ¶ 50, 854 N.E.2d 1038 [other citations omitted] "A structural
              error is a 'defect affecting the framework within which the
              trial proceeds, rather than simply an error in the trial process
              itself.' " Id., citing Arizona v. Fulminante (1991), 499 U.S. 279,
              310, 111 S.Ct. 1246, 113 L. Ed. 2d 302.

Sowell at ¶ 33.
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       {¶ 40} Subsequent to our decision in Sowell we held that there is no structural
error when a guilty plea is entered. State v. Peeks, 10th Dist. No. 08AP-1027, 2009-Ohio-
1546, ¶ 11. In doing so, we relied on State v. Palacios, 10th Dist. No. 08AP-669, 2009-
Ohio-1187, which relied on State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, ¶ 5,
overruled in part, State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, ¶ 45, with
Palacios and Colon factually premised on a defective indictment.
       {¶ 41} Johnson's case is not about a defective indictment; it is about whether he is
entitled to a trial. Peeks should not apply to Johnson's case, first, because of a heightened
standard of review of an Alford plea, and second, because Johnson's motion went to the
very issue of whether he was to be afforded a jury trial. The United States Supreme Court
has stated that "absent voluntary waiver of the jury right, the Constitution does not trust
judges to make determinations of criminal guilt." (Emphasis omitted.) Neder v. United
States, 527 U.S. 1, 32 (1999). As such, the trial court needed more information with which
to effectively decide whether Johnson should have a jury trial or whether the court
without a jury could find Johnson guilty based on his prior plea.
       {¶ 42} The Supreme Court further stated "[s]ome structural errors, like the
complete absence of counsel or the denial of a public trial, are visible at first glance." Id.
at 37. The gravity of a full hearing on a motion to withdraw presentence a guilty plea is
more than harmless error, and it is grave and weighty. The trial court should have
afforded Johnson a full hearing on his motion. The failure to do so was tantamount to
structural error and calls for reversal.
Overruling Proposition of Law in State v. Ridgeway
       {¶ 43} As a last concern, I agree with the majority in its conclusion concerning the
first factor of prejudice to the prosecution under the Xie and Zimmerman holdings on
presentence plea withdrawal. Zimmerman at ¶ 13. But I disagree with the majority's
pointing to the existence of the case of State v. Ridgeway, 10th Dist. No. 14AP-768, 2015-
Ohio-2539, ¶ 10, as another point of view on the matter. I would overrule our prior
holding in Ridgeway, because it is inapposite to our ruling here. The door to future
confusion on this issue should be closed once and for all.
       {¶ 44} In Ridgeway, we considered the first factor involving prejudice to the
prosecution as being neutral and having no weight for either party when there is no
No. 15AP-946                                                                            17


evidence of prejudice. However, this proposition in Ridgeway is not derived from any
other cited authority. Id. at ¶ 10 ("First, the record does not indicate any evidence of
prejudice to the state 'beyond the ordinary impact of any defendant's subsequent
withdrawal of a guilty plea.' [State v. Harris, 10th Dist. No. 09AP-1111, 2010-Ohio-
4127,] ¶ 26. Therefore, this factor does not influence the balancing of factors in favor or
against appellant's motion to withdraw."). (Emphasis added.)
       {¶ 45} Rather than acknowledge its existence, I would overrule our decision in
Ridgeway on this point. As we have held today, a lack of prejudice to the prosecution
should weigh in a criminal defendant's favor and not be neutralized when there is no
evidence of prejudice to the prosecution. Otherwise, the converse of this is when there is
prejudice, it weighs against the criminal defendant. An "I win, you lose" analysis is
inconsistent with the interpretation and application of Crim.R. 32.1. By recognizing
Ridgeway to be any part of our analysis, we dilute our holding today and hinder the solid
development of case law that must be consistent with the requirement that trial courts
should "freely and liberally" grant presentence motions to withdraw guilty pleas. Xie at
527; Zimmerman at ¶ 11. Since the nine factors of the Xie and Zimmerman analysis are
to be balanced against one another, they must carry some weight no matter which way
they are decided in reviewing whether a trial court abused its discretion in deciding a
motion to withdraw presentence a guilty plea.
       {¶ 46} Thus I respectfully concur in part and dissent in part with the majority's
decision and suggest that the proposition of law in Ridgeway, as noted in paragraph 12 of
the majority decision, be overruled.
