[Cite as State v. Hampton, 2011-Ohio-171.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-10-58

        v.

ANTOINE C. HAMPTON,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2010 0047

                                     Judgment Affirmed

                           Date of Decision: January 18, 2011




APPEARANCES:

        Michael J. Short for Appellant

        Jana E. Emerick for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, Antoine C. Hampton (hereinafter “Hampton”),

appeals the Allen County Court of Common Pleas’ judgment denying his motion

to withdraw his guilty pleas. We affirm.

       {¶2} On February 3, 2010, an unidentified caller phoned 9-1-1 emergency

but was not on the phone line, so the 9-1-1 operator kept the phone line open and

traced the phone call, while the phone call was being recorded. (State’s Exs. 1&2).

A female and male were heard arguing during the phone call. (Id.). After several

minutes, the altercation turned physical, and the female began to scream and cry.

(Id.). After tracing the call, law enforcement reported to the house of Alicia

Gonzalez, Hampton’s girlfriend and the mother of his children, and found

Hampton hiding in the basement.

       {¶3} On February 17, 2010, the Allen County Grand Jury indicted

Hampton on count one of domestic violence in violation of R.C. 2919.25(A) &

(D)(4), a third degree felony; count two of aggravated burglary in violation of R.C.

2911.11(A)(1), a first degree felony; and count three of intimidation of a victim in

violation of R.C. 2921.04(B). (Doc. No. 2).

       {¶4} On February 23, 2010, Hampton appeared for arraignment, entered

pleas of not guilty, and was appointed trial counsel. (Doc. Nos. 4, 5, 12-13). A

jury trial was scheduled for April 27, 2010. (Doc. No. 16).



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       {¶5} On April 20, 2010, Hampton filed a motion to exclude from the trial

certain photographs he believed were prejudicial. (Doc. No. 20). On May 19,

2010, the State filed a motion to continue the trial due to the unavailability of a

key witness. (Doc. No. 21). On May 20, 2010, the trial court held a hearing on the

pending motions. (Doc. No. 23). Prior to the hearing, Hampton withdrew his

motion to exclude the photographs, and, thereafter, the trial court granted the

State’s request to continue the trial. (Id.). The jury trial was rescheduled for June

8, 2010. (Id.).

       {¶6} On June 8, 2010, the day of trial, Hampton decided to forgo trial and

to plead guilty to all three counts of the indictment. (June 8, 2010 Tr. at 1-2);

(Doc. Nos. 40-41). After conducting a Crim.R. 11 inquiry, the trial court accepted

Hampton’s pleas of guilty and entered convictions on the three counts. (June 8,

2010 Tr. at 23); (Doc. No. 41).          The trial court ordered a pre-sentence

investigation (PSI) report and scheduled sentencing for July 19, 2010. (Doc. No.

41).

       {¶7} On July 12, 2010, Hampton, pro se, filed a motion to withdraw his

previously tendered pleas of guilty based on alleged ineffective assistance of trial

counsel. (Doc. No. 44). On July 13, 2010, the trial court allowed Hampton’s trial

counsel to withdraw and appointed Hampton new trial counsel. (Doc. No. 47).




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      {¶8} On July 21, 2010, Hampton filed an amended motion to withdraw.

(Doc. No. 51). On August 3, 2010, the State filed a response to the motion. (Doc.

No. 58). On August 5, 2010, the matter proceeded to a hearing, and, on August 6,

2010, the trial court denied Hampton’s motion. (Doc. No. 60).

      {¶9} On August 16, 2010, the trial court sentenced Hampton to five (5)

years on each count. (Doc. No. 64). The trial court further ordered that the term

imposed in count three be served concurrently to the term imposed in count one,

and the term imposed in count two be served consecutively to the terms imposed

in counts one and three, for a total sentence of ten (10) years imprisonment. (Doc.

No. 64).

      {¶10} On August 23, 2010, Hampton, pro se, filed a notice of appeal. (Doc.

No. 68). On August 24, 2010, the trial court appointed appellate counsel. (Doc.

No. 69). Hampton now appeals raising one assignment of error for our review.

                          ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED IN OVERRULING THE
      DEFENDANT’S PRE-SENTENCE MOTION TO WITHDRAW
      HIS GUILTY PLEA.

      {¶11} In his sole assignment of error, Hampton argues that the trial court

erred by denying his pre-sentence motion to withdraw his guilty pleas.

Specifically, Hampton argues that he entered his pleas of guilty based upon trial

counsel’s ineffective representation. Hampton argues that his trial counsel was



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ineffective by failing to share discovery with him, failing to file a witness list or

subpoena witnesses, failing to investigate possible defenses, and by threatening

him. Hampton argues that he had a meritorious defense to the aggravated burglary

charge since he was living at the residence. He further argues that he filed the

motion timely, and that the State has failed to show potential prejudice if the

motion was granted.

       {¶12} Crim.R. 32.1 provides that a defendant may file a pre-sentence

motion to withdraw a guilty plea. The general rule is that a trial court should

freely grant such a motion. State v. Xie (1992), 62 Ohio St.3d 521, 526, 584

N.E.2d 715.     However, a defendant does not maintain an absolute right to

withdraw his plea prior to sentencing. Id., paragraph one of the syllabus. Instead,

a trial court must hold a hearing to determine whether a “reasonable and legitimate

basis” exists to allow a defendant to do so. Id.        Nevertheless, a trial court

maintains discretion in deciding whether to grant or deny a defendant’s pre-

sentence motion to withdraw. Id., paragraph two of the syllabus. As such, we will

not overturn the trial court’s decision absent an abuse of its discretion. An abuse

of discretion is more than an error of judgment; it suggests that a decision is

unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d

151, 157-58, 404 N.E.2d 144.




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       {¶13} We consider several factors when reviewing a trial court’s decision

on a pre-sentence motion to withdraw. Those factors include: (1) whether the

withdrawal will prejudice the prosecution; (2) the representation afforded to the

defendant; (3) the extent of the Crim.R. 11 hearing; (4) the extent of the motion to

withdraw hearing; (5) whether the trial court gave full and fair consideration of the

motion; (6) whether the timing of the motion was reasonable; (7) the stated

reasons for the motion; (8) whether the defendant understood the nature of the

charges and potential sentences; and (9) whether the accused was perhaps not

guilty or had a complete defense to the charges. State v. Liles, 3d Dist. No. 1-10-

28, 2010-Ohio-5799, ¶16, citing State v. Griffin (2001), 141 Ohio App.3d 551,

554, 752 N.E.2d 310.

       {¶14} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To

establish prejudice when ineffective assistance of counsel relates to a guilty plea, a

defendant must show there is a reasonable probability that but for counsel’s

deficient or unreasonable performance the defendant would not have pled guilty.




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Xie, 62 Ohio St.3d at 524, citing Hill v. Lockhart (1985), 474 U.S. 52, 59, 106

S.Ct. 366, 88 L.E.2d 203; Strickland, 466 U.S. at 687.

       {¶15} Hampton’s motion to withdraw was filed thirty-four (34) days after

his change of plea. (June 8, 2010 Tr. at 1-2); (Doc. Nos. 40-41, 44). The trial

court found that Hampton’s delay in filing the motion to withdraw would

prejudice the State since the crime had occurred several months ago. (Aug. 6, 2010

JE, Doc. No. 60).     Prior to accepting Hampton’s guilty pleas, the trial court

conducted a thorough Crim.R. 11 change of plea hearing, explaining the possible

terms of imprisonment, penalties, restitution, court costs, as well as post-release

control and the possibility of judicial release. (June 8, 2010 Tr. at 5-15). The trial

court also explained Hampton’s right to trial, provided him with the opportunity to

ask questions, and confirmed that he was pleading knowingly, voluntarily, and

intelligently. (Id. at 16-22).   When asked, Hampton repeatedly stated that he

understood the information conveyed by the trial court. (Id. at passim).

       {¶16} Hampton’s motion to withdraw was premised upon ineffective

assistance of trial counsel. Hampton alleged that trial counsel failed to share

discovery with him, failed to file a witness list or subpoena witnesses, failed to

investigate possible defenses, and threatened him.        The trial court provided

Hampton with a full hearing at which Hampton testified as well as his trial

counsel, pursuant to a subpoena. (Aug. 5, 2010 Tr. at 3, 15-17). Trial counsel



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testified that he shared the entire contents of discovery with Hampton. (Id. at 19).

Trial counsel testified that he discussed possible defenses with Hampton, but that

he advised Hampton to seek a plea deal given the likelihood that Hampton would

be found guilty and to lessen Hampton’s exposure to possible prison time. (Id. at

21, 23-25). Trial counsel testified that he spoke with Hampton four or five (4 or 5)

times prior to the change of plea hearing. (Id. at 20). Trial counsel testified that he

attempted to contact Hampton’s brother, who Hampton indicated was a possible

witness, but he was ultimately unable to contact the brother. (Id. at 32).

Hampton’s other brother knew nothing about the case, according to trial counsel.

(Id.). Trial counsel testified that the only time he “threatened” Hampton was when

he refused to file documents in court that were untruthful, which would have

resulted in unethical conduct on his part. (Id. at 27). Trial counsel testified that

Hampton wanted him to file a motion alleging that he was a racist, was having an

affair with the prosecutor, and that he had forged documents and signatures, all of

which trial counsel denied. (Id.). Since trial counsel refused to file such a motion,

Hampton made a pro se motion making these allegations, which Hampton

ultimately withdrew for lack of evidence. (Id.).

       {¶17} As an initial matter, we cannot find that trial counsel’s service was

deficient or unreasonable under the circumstances.          Trial counsel met with

Hampton several times, shared discovery with him, informed him of possible



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defenses, attempted to contact witnesses, and advised him to seek a plea

agreement. Even if trial counsel rendered ineffective assistance, Hampton has

failed to demonstrate prejudice; namely, that he would not have pled guilty but for

counsel’s ineffective performance. Xie, 62 Ohio St.3d at 524, citing Hill, 474 U.S.

at 59; Strickland, 466 U.S. at 687. In fact, even though Hampton pled guilty to all

three counts of the indictment, including a first degree felony, the trial court

agreed to sentence Hampton to no more than if he had pled guilty to only two third

degree felonies, which was consistent with the State’s original plea offer that

Hampton had rejected. (June 8, 2010 Tr. at 1-4, 6, 8, 31). Although Hampton was

facing twenty (20) years incarceration, the trial court ultimately sentenced him to a

total of only ten (10) years. (Id. at 8); (Aug. 16, 2010 JE, Doc. No. 64). Under

these circumstances, we cannot find that Hampton would not have pled guilty but

for counsel’s alleged ineffective assistance.

       {¶18} The record also fails to support Hampton’s claim of innocence or of

having a complete defense. In an attempt to establish a defense to the aggravated

burglary charge, Hampton testified that he was living at the residence at the time

of the indicted acts. (Aug. 5, 2010 Tr. at 7-10). Hampton testified that, when he

arrived at the house, he suspected foul play because the curtain normally covering

the front door window was not pulled closed, and he saw their small dog jumping




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up and down barking in the window. (Id. at 9). When asked why he did not use

his keys to enter the house, however, Hampton testified:

       [b]ecause I didn’t want to alert whoever- - I may [sic] thought
       was in the house at the time cause I seen the glass. Once I looked
       in there, I didn’t want to alert nobody because I knew, you
       know, it was gonna, you know, I wanted to get in there and make
       sure everybody was safe in the house.

(Id.). Hampton’s testimony suggests that the window to the house was already

broken when he arrived. However, during the recorded 9-1-1 Gonzalez screamed

at Hampton asking him why he broke the window. (State’s Exs. 1&2). Hampton

also admitted to law enforcement that he was living “pretty much here and there”

after having a physical altercation with Gonzalez earlier in January of 2010, which

contradicts his testimony at the hearing. (State’s Discovery Response, Doc. No.

15). Furthermore, the record contains messages and a letter from Hampton to the

victim urging the victim to drop the domestic violence charges against him and to

not testify against him. (Id.). The record contains judgment entries of Hampton’s

four prior domestic violence convictions for purposes of the felony domestic

violence charge in count one of the indictment. (Id.). The record also contains

photographs of Gonzalez’s injuries, the door’s broken glass, and turned over items

in the house indicative of a physical struggle. (Id.).

       {¶19} After reviewing the record in light of the factors outlined in Griffin,

supra, we conclude that the trial court did not abuse its discretion by denying



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Hampton’s motion to withdraw his guilty pleas. Hampton’s assignment of error

is, therefore, overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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