[Cite as State v. Charity, 2019-Ohio-5252.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                              STATE OF OHIO,

                                              Plaintiff-Appellee,

                                                      v.

                                        EARL L. CHARITY III,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 19 MA 0001


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 18 CR 672 A

                                        BEFORE:
                 Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                                 JUDGMENT:
                                                   Affirmed.



 Atty. Paul Gains, Mahoning County Prosecutor, Atty. Ralph Rivera, Assistant
 Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
 Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

 Atty. Lynn Maro, Maro & Schoenike Co., 7081 West Boulevard, Suite 4, Youngstown,
 Ohio 44512, for Defendant-Appellant.
                                                                                      –2–



                                        Dated:
                                   December 11, 2019

 DONOFRIO, J.

      {¶1}     Defendant-appellant, Earl Charity, III, appeals his conviction following a
guilty plea in the Mahoning County Common Pleas Court for one count of aggravated
murder.
      {¶2}     On July 19, 2018, a Mahoning County Grand Jury indicted appellant and
Juan Phillips on numerous charges surrounding the death of Oscar Caywood. Appellant
was indicted for: one count of aggravated murder in violation of R.C. 2903.01(B), an
unspecified felony; one count of murder in violation of R.C. 2903.02(A), an unspecified
felony; one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree
felony; and ten counts of having a weapon under disability, each count specifying a
different firearm appellant allegedly possessed, in violation of R.C. 2923.13(A)(3), third-
degree felonies. Appellant was also indicted on three firearm specifications pursuant to
R.C. 2941.145 and three repeat violent offender specifications pursuant to R.C. 2929.01.
      {¶3}     Appellant reached a plea agreement with plaintiff-appellee, the State of
Ohio. Appellant agreed to plead guilty to aggravated murder and its firearm specification.
In exchange, the state dismissed all remaining charges and specifications and agreed to
recommend a sentence of 23 years to life imprisonment.
      {¶4}     On December 4, 2018, the trial court held a change of plea hearing. The
trial court performed the plea colloquy.    (Plea Tr. 3-11).   During the plea colloquy,
appellant informed the trial court that he was on parole for involuntary manslaughter and
felonious assault. (Plea Tr. 7). The trial court informed appellant that pleading guilty to
aggravated murder would be a violation of his parole and any punishment the adult parole
authority ordered would be served consecutive to the sentence the trial court issued for
aggravated murder. (Plea Tr. 7-8). Appellant stated that he understood the rights he was
waiving by pleading guilty and his potential maximum sentence. (Plea Tr. 3-11). The trial
court accepted appellant’s guilty plea and scheduled the sentencing hearing for
December 10, 2018.




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       {¶5}    At the scheduled sentencing hearing, appellant’s counsel made an oral
motion to withdraw the guilty plea. (Sent. Tr. 2). A written motion was not filed because
counsel was only made aware of appellant’s desire to withdraw the plea approximately
30 minutes before the sentencing hearing. (Sent Tr. 3). Appellant addressed the court
himself and made two arguments in support of withdrawing his plea.
       {¶6}    First, appellant argued that his plea should be withdrawn because he was
not fully aware of the potential increased prison time he faced due to his parole violation
when he pled guilty. (Sent. Tr. 4-7). Appellant originally believed his parole violation
would result in a nine-month increase of his sentence but later learned that it would result
in a 42-month increase of his sentence. (Sent. Tr. 4). The trial court noted that it informed
appellant at his change of plea hearing that a guilty plea in this case would result in a
parole violation and the sentence for the parole violation would be served consecutive to
the sentence in this case. (Sent. Tr. 7).
       {¶7}    Second, appellant argued that he was in possession of evidence that
would support his defense if he went to trial. (Sent. Tr. 8). Appellant then conferred with
his counsel off the record. After that conference, appellant’s counsel informed the trial
court that appellant called Detective Lambert of the Youngstown Police Department, the
detective who investigated Caywood’s death, the day before the sentencing hearing.
(Sent. Tr. 9). Appellant claimed that he told Detective Lambert that someone else had
murdered Caywood. (Sent Tr. 9). Appellant’s counsel was unaware of this phone call
prior to the sentencing hearing. (Sent. Tr. 9).
       {¶8}    The trial court permitted the state to summarize the evidence it would have
presented had the matter gone to trial. (Sent. Tr. 10-13). The trial court then granted a
recess to permit the state and appellant to contact Detective Lambert. (Sent. Tr. 14-15).
       {¶9}    The state and appellant’s counsel managed to contact Detective Lambert
by phone. Detective Lambert confirmed that he received a call from appellant the day
before the sentencing hearing. (Sent. Tr. 15). But Detective Lambert would not speak to
appellant on the basis that appellant was represented by counsel. (Sent. Tr. 16).
       {¶10}   Appellant’s counsel then informed the trial court that appellant had given
him “a piece of paper with some information on it that [appellant] believes is the identity
of the person that committed the crime.”          (Sent Tr. 18).   Appellant’s counsel then



Case No. 19 MA 0001
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requested a recess of the sentencing hearing in order to investigate the information
appellant had provided. (Sent. Tr. 18). The trial court denied the recess. (Sent. Tr. 18).
      {¶11}    The trial court then addressed several factors concerning appellant’s
motion and concluded there was not a sufficient basis to allow appellant to withdraw his
plea. (Sent. Tr. 19-35). The trial court then sentenced appellant to the agreed upon
sentence of 23 years to life imprisonment. (Sent. Tr. 51).
      {¶12}    Appellant’s sentence was memorialized in a judgment entry dated
December 14, 2018. Appellant timely filed this appeal on January 2, 2019. Appellant
now raises two assignments of error.
      {¶13}    Appellant’s first assignment of error states:

              THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
      APPELLANT’S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY
      PLEA IN VIOLATION OF LIBERTIES GUARANTEED BY SIXTH AND
      FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
      ARTICLE I, §§ 1, 2, 10 AND 16 OF THE OHIO CONSTITUTION.

      {¶14}    Appellant argues that the lack of prejudice to the state and his claim of
innocence were sufficient grounds to permit withdrawal of his guilty plea.
      {¶15}    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.” Appellant and the state agree that appellant’s
motion is a pre-sentence motion to withdraw.
      {¶16}    A pre-sentence motion to withdraw a guilty plea should be freely and
liberally granted. State v. Ocel, 7th Dist. Jefferson No. 08 JE 22, 2009-Ohio-2633, ¶ 21,
citing State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “A motion made
pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the
good faith, credibility and weight of the movant's assertions in support of the motion are
matters to be resolved by that court.” Ocel at ¶ 22, citing State v. Smith, 49 Ohio St.2d
261, 264, 361 N.E.2d 1324 (1997), paragraph two of the syllabus.




Case No. 19 MA 0001
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        {¶17}   When determining whether a trial court abused its discretion in denying a
pre-sentence motion to withdraw a plea, this court looks to nine factors. Those factors
are:

        (1) whether the state will be prejudiced by withdrawal; (2) the representation
        afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea
        hearing; (4) whether the defendant understood the nature of the charges
        and potential sentences; (5) the extent of the hearing on the motion to
        withdraw; (6) whether the trial court gave full and fair consideration to the
        motion; (7) whether the timing of the motion was reasonable; (8) the
        reasons for the motion; and (9) whether the accused was perhaps not guilty
        or had a complete defense to the charge.

State v. Scott, 7th Dist. Mahoning No. 08 MA 12, 2008-Ohio-5043, ¶ 13 citing State v.
Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995).
        {¶18}   No one factor is conclusive for the determination of whether the trial court
should have granted the motion to withdraw. State v. Morris, 7th Dist. Mahoning No. 13
MA 19, 2014–Ohio–882, ¶ 22.
        {¶19}   Appellant argues that the first and ninth factors set out above are met. He
does not argue that any of the other factors support granting his motion to withdraw his
plea.
        {¶20}   Beginning with lack of prejudice to the state, appellant cites State v.
Cuthbertson, 139 Ohio App.3d 895, 746 N.E.2d 197 (7th Dist.2000), in support of this
argument. In Cuthbertson, Cuthbertson pled guilty to murder. Id. at 897. Two weeks
prior to the sentencing hearing, Cuthbertson sent the trial court a letter requesting to
withdraw his guilty plea for two reasons: he did not commit the murder and he was
pressured into pleading guilty. Id. The trial court held a hearing on Cuthbertson’s motion
where Cuthbertson testified that he was innocent and he was pressured into pleading
guilty by his mother and his attorney. Id. The trial court denied Cuthbertson’s motion and
Cuthbertson appealed. Id. at 898.




Case No. 19 MA 0001
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       {¶21} This court held that three Fish factors were met: minimal prejudice to the
state, timeliness of the motion, and the possibility that Cuthbertson was innocent. Id. at
899. This court placed emphasis on the minimal prejudice to the state factor by holding:

       when a defendant claims he is innocent and wishes to withdraw his plea of
       guilt prior to sentencing, a comparison of the interests and potential
       prejudice to the respective parties weigh heavily in the interests of the
       accused. That is, in such a situation we have the inconvenience to the state
       of proving the guilt of a defendant at trial versus the possibility that a person
       has pled guilty to a crime they did not commit. Absent any showing of some
       other real prejudice to the state which occurred solely as a result of entering
       into a plea bargain, as here, the potential harm to the state in vacating the
       plea is slight, whereas the potential harm to the defendant in refusing to
       vacate the plea is great.

Id. at 899-900.
       {¶22}      Appellant argues that, like Cuthbertson, there was no indication that the
state would have been prejudiced by granting the motion to withdraw the plea.
       {¶23}      At the sentencing hearing, the state indicated that it would experience
prejudice if appellant’s plea were withdrawn. Counsel for the state told the trial court “[w]e
had some witnesses who were coming in town just specifically for this case. Who knows
when we would reset it and whether those witnesses would be available at that time as
well.” (Sent. Tr. 23). Additionally, the trial court noted that appellant’s co-defendant was
set to testify if this matter had gone to trial. (Sent Tr. 22). The court noted that the co-
defendant saw everything and may have participated in the murder. (Sent. Tr. 22). It
pointed out that if the co-defendant had a “change of heart” and decided not to testify, the
state’s evidence would change significantly. (Sent. Tr. 22). This too would prejudice the
state. Because there was an indication the state would have experienced prejudice, this
factor weighs in the state’s favor.
       {¶24}      As for appellant’s argument that he had evidence that would support his
defense that someone else committed the murder, there is no indication at the sentencing
hearing as to what the evidence was. Appellant claimed that he was not the person who


Case No. 19 MA 0001
                                                                                     –7–


murdered Caywood but provided no evidence to support this argument. (Sent. Tr. 9).
Because the reasons for appellant’s motion were insufficient in this case, this factor
weighs in the state’s favor.
       {¶25}   Addressing whether appellant was perhaps innocent or had a complete
defense to the charges, the state summarized the evidence it would have presented at
appellant’s trial. Youngstown Police Department officers responded to a call reporting
gunshots at a garage in Youngstown, Ohio. (Sent. Tr. 10). When the officers arrived,
appellant exited the garage covered in Caywood’s blood, wearing some of Caywood’s
jewelry, and in possession of Caywood’s wallet and identification. (Sent. Tr. 10). The
garage where Caywood’s body was found belonged to appellant. (Sent. Tr. 13).
       {¶26}   Police searched the garage and found: a machete, a meat clever, and
three guns that were used to shoot Caywood 19 times. (Sent. Tr. 10-11). Several more
guns were found in the trunk of a car that was parked in the garage. (Sent. Tr. 11). The
car belonged to appellant’s grandfather and appellant had a key to the car’s trunk in his
pocket. (Sent. Tr. 11). The machete and meat clever were used in what appeared to be
an attempted dismemberment of Caywood’s body. (Sent. Tr. 30-31).
       {¶27} According to the co-defendant, Juan Phillips, he called Caywood to the
garage. (Sent. Tr. 12). When Caywood arrived, appellant started a fight with Caywood
and began to use the machete or the meat clever on Caywood. (Sent. Tr. 12).
       {¶28}   Caywood’s DNA was found on appellant and Phillips. (Sent. Tr. 12). While
appellant’s DNA was not found on any of the guns, appellant tested positive for gunshot
residue. (Sent. Tr. 12-13).
       {¶29}   As previously stated, the only evidence appellant offered in support of his
defense was his assertion that someone else murdered Caywood.              (Sent. Tr. 18).
Appellant stated that he had other evidence but did not state what the evidence was.
(Sent. Tr. 14). Based on the above, this factor weighs in the state’s favor.
       {¶30}   Based on the above, the state would have been prejudiced had appellant’s
plea been withdrawn. In addition, the state’s summary of evidence against appellant
combined with appellant’s lack of evidence to support his innocence does not indicate
that appellant was perhaps innocent or had a complete defense to the charges. As these




Case No. 19 MA 0001
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Fish factors do not weigh in favor of appellant, the trial court’s denial of appellant’s motion
to withdraw was not an abuse of discretion.
       {¶31}    Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶32}    Appellant’s second assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       REFUSED TO CONTINUE THE SENTENCING HEARING TO PERMIT A
       REASONABLE         INVESTIGATION         OF    THE    CLAIM     OF     ACTUAL
       [INNOCENCE] THEREBY DENYING APPELLANT DUE PROCESS AND
       THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF
       LIBERTIES GUARANTEED BY THE SIXTH AND FOURTEENTH
       AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I §§ 1, 2,
       10 AND 16 OF THE OHIO CONSTITUTION.

       {¶33}    Appellant argues that, when he provided his trial counsel with the name of
the person he believed murdered Caywood, the trial court should have continued the
sentencing hearing to allow his counsel to investigate the matter.
       {¶34} The trial court's judgment denying a motion to continue is reviewed for an
abuse of discretion. See State v. Wood, 7th Dist. Columbiana No. 11 CO 9, 2011-Ohio-
6405, ¶ 27. Abuse of discretion implies that the court acted in an unreasonable, arbitrary,
or unconscionable manner. State ex rel. Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-
3317, 770 N.E.2d 584.
       {¶35} The Ohio Supreme Court set forth a six factor test to determine whether
the denial of a motion to continue constitutes an abuse of discretion. The six factors are:

       (1) the length of the delay requested; (2) whether other continuances have
       been requested and granted; (3) the inconvenience to litigants, witnesses,
       opposing counsel and the court; (4) whether the requested delay is
       legitimate or not; (5) whether the defendant contributed to the
       circumstances giving rise to the request for the continuance; and (6) other
       relevant factors, depending on the unique facts of each case.



Case No. 19 MA 0001
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State v. Mitchell, 7th Dist. Mahoning No. 88 C.A. 130, 1995 WL 310044 citing State v.
Sowders, 4 Ohio St.3d 143, 447 N.E.2d 118 (1983).
       {¶36}    Addressing the length of the delay requested, appellant did not specify any
amount of time in his oral motion. The only indication of the amount of time was until
appellant’s counsel could investigate the name of the person appellant claimed was the
person who murdered Caywood. (Sent. Tr. 18). Without a definitive amount of time
requested, it cannot be said that this factor weighs in appellant’s favor.
       {¶37}    Addressing whether other continuances have been requested or granted,
the record indicates that the trial court continued appellant’s trial three times: on August
21, 2018; on September 24, 2018; and on November 16, 2018.                    With three prior
continuances of appellant’s trial, this factor weighs in the state’s favor.
       {¶38}    Addressing inconvenience to persons, as previously stated, the state
indicated to the trial court that there was a potential issue with witness availability if the
trial were continued as some witnesses lived out of town. (Sent. Tr. 23). There were also
three of Caywood’s relatives who spoke at the sentencing hearing: his fiancé, one of his
younger brothers, and his uncle. (Sent. Tr. 35-46). Caywood’s uncle came to the
sentencing hearing from Detroit, Michigan. (Sent. Tr. 44). Based on the above, granting
appellant’s continuance would have inconvenienced witnesses and this factor weighs in
the state’s favor.
       {¶39}    Addressing whether the requested delay is legitimate or not, appellant
entered his guilty plea on December 4, 2018. Appellant’s sentencing hearing was on
December 10, 2018. Appellant indicated his desire to withdraw his plea 30 minutes prior
to the sentencing hearing. (Sent. Tr. 3). Moreover, as previously stated, appellant
claimed at the sentencing hearing that he had evidence that would support his defense
but provided no specific information as to what the evidence was other than a name of
someone else who committed the crime. Based on these facts, appellant’s request for a
continuance was not legitimate and this factor weighs in the state’s favor.
       {¶40}    Addressing whether appellant contributed to the circumstances giving rise
to the request for the continuance, appellant did not indicate his desire to withdraw his
plea until 30 minutes prior to the sentencing hearing. (Sent Tr. 3). Because appellant did
not indicate his desire to withdraw his plea until immediately before his sentencing



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hearing, he contributed to the circumstances giving rise to the request for the continuance
and this factor weighs in the state’s favor.
       {¶41}   As for any other relevant factors depending on the facts of this case,
appellant argues that the denial of the continuance resulted in his attorney being unable
to fully investigate the claim or counsel him on how best to proceed with the case. In
support of this argument, appellant cites the American Bar Association’s (ABA) Criminal
Justice Standards. Specifically, ABA Standards 4-4.1 (Duty to Investigate and Engage
Investigators) and 4-5.1 (Advising the Client).
       {¶42}   Appellant’s reliance on the ABA Criminal Justice Standards lacks merit.
The Ohio Supreme Court has indicated that ABA Standards are guidelines and not
binding. See State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶
32 see also State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶
225.   Additionally, the Standards appellant cites provide guidance on how criminal
defense attorneys should perform their duties. Appellant is appealing the trial court’s
denial of a continuance, not raising a claim of ineffective assistance of counsel.
       {¶43} Moreover, as set out in the first assignment of error, the state intended to
present numerous pieces of evidence against appellant at trial, including: Caywood was
found dead in appellant’s garage; appellant was covered in Caywood’s blood; appellant
was in possession of Caywood’s wallet, identification, and jewelry; Caywood was shot 19
times; and appellant tested positive for gunshot residue. Appellant’s co-defendant was
also set to testify. He allegedly saw everything and may have been a participant. The
only argument appellant made in support of his motion to continue was so his counsel
could investigate a name appellant provided for the first time at the sentencing hearing.
Based on the above, the trial court’s denial of appellant’s motion for a continuance was
not an abuse of discretion.
       {¶44} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
       {¶45} For the reasons stated above, the trial court’s judgment is hereby affirmed.



Robb, J., concurs.
D’Apolito, J., concurs.


Case No. 19 MA 0001
[Cite as State v. Charity, 2019-Ohio-5252.]




          For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.


          A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                         NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
