[Cite as State v. Puckett, 2012-Ohio-4841.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                      Plaintiff-Appellee       :      Hon. W. Scott Gwin, J.
                                               :      Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :      Case No. 12CA12
DAVID R. PUCKETT                               :
                                               :
                                               :
                     Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court of
                                                   Common Pleas, Case No. 2011 CR 0163


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            October 15, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

CHARLES M. BROWN                                      JAMES J. MYER
76 North Mulberry Street                              RICHLAND COUNTY PROSECUTOR
Mansfield, OH 44902                                   JOHN C. NIEFT
                                                      38 South Park Street
                                                      Mansfield, OH 44902
[Cite as State v. Puckett, 2012-Ohio-4841.]


Delaney, J.

        {¶1} Appellant David R. Puckett appeals from the October 14, 2011 judgment

entries of conviction and sentence in the Richland County Court of Common Pleas.

Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} A statement of the facts underlying appellant's conviction is unnecessary

to our disposition of this appeal.

        {¶3} Appellant was charged by indictment with 15 criminal offenses and

accompanying specifications as follows:          Count I, failure to register [R.C.

2950.04(A)(2)(a), felony of the first degree]; Count II, felonious assault with a repeat

violent offender specification [R.C. 2903.11(A)(1)/R.C. 2941.149, felony of the second

degree]; Count III, felonious assault with a repeat violent offender specification [R.C.

2903.11(A)(2)/R.C. 2941.149, felony of the second degree]; Count IV, kidnapping with

a repeat violent offender specification and sexual motivation specification [R.C.

2905.01(A)(4)/R.C. 2941.149/R.C. 2941.147, a felony of the first degree]; Count V,

kidnapping with a repeat violent offender specification and sexual motivation

specification [R.C. 2905.01(A)(3)/R.C. 2941.149/R.C. 2941.147, a felony of the first

degree]; Count VI, abduction with a repeat violent offender specification and sexual

motivation specification [R.C. 2905.02(A)(2)/ R.C. 2941.149/R.C. 2941.147, a felony of

the third degree]; Count VII, rape with a repeat violent offender specification and

sexually violent predator specification [R.C. 2907.02(A)(2)/R.C. 2941.149/R.C.

2941.148, a felony of the first degree]; Count VIII, unlawful sexual conduct with a

minor with a sexually violent predator specification [R.C. 2907.04(A)(1)/R.C. 2941.148,
Richland County, Case No. 12CA12                                                            3


a felony of the second degree]; Count IX, aggravated robbery with a repeat violent

offender specification [R.C. 2911.01(A)(1)/R.C. 2941.149, a felony of the first degree];

Count X, aggravated robbery with a repeat violent offender specification [R.C.

2911.01(A)(3), a felony of the first degree]; Count XI, kidnapping with a repeat violent

offender specification and a sexual motivation specification [R.C. 2905.01(A)(4)/R.C.

2041.149/R.C. 2941.147, a felony of the first degree]; Count XII, rape with a repeat

violent     offender   specification   and   a   sexually   violent   predator   specification

[R.C.2907.02(A)(2)/R.C. 2941.149/R.C. 2941.148, a felony of the first degree]; Count

XIII, attempted rape with a repeat violent offender specification and a sexually violent

predator specification [R.C. 2923.02(A)/R.C. 2907.02(A)(2)/R.C. 2941.149/R.C.

2941.148, a felony of the second degree]; Count XIV, felonious assault with a repeat

violent offender specification [R.C. 2903.11(A)(1)/R.C. 2941.149, a felony of the

second degree]; and Count XV, kidnapping with a repeat violent offender specification

and a sexual motivation specification [R.C. 2905.02(A)(2)/R.C. 2941.149/R.C.

2941.147, a felony of the third degree].

          {¶4} Appellant appeared with counsel before the trial court on October 10,

2011 to withdraw his previously entered pleas of not guilty and to enter pleas of guilty

to all 15 charges. Appellee noted appellant agreed to plead guilty to each charge plus

the specifications, although the specifications would merge for purposes of

sentencing.

          {¶5} The trial court explained the rights appellant waived by entering pleas of

guilty. The trial court also advised appellant that he would be sentenced to a prison
Richland County, Case No. 12CA12                                                                      4


term of 25 years to life,1 and that this prison term would be served consecutively to

any prison term imposed for charges appellant faced in Arkansas.

       {¶6} Appellant returned to the trial court on October 13, 2011 for sentencing

and stated he wanted to withdraw his pleas of guilty. Upon inquiry by the trial court,

appellant stated he talked to his family and while he was guilty of some counts, he

was not guilty of others. He stated he agreed to plead guilty only because he was

negotiating for the “best time frame possible” but did not believe he would be

convicted of all the charges if he went to trial.

       {¶7} The trial court advised appellant he could face a maximum sentence of

112 years to life, and pointed out the rape charges alone could result in sentences

longer than the 25-years-to-life which the trial court intended to impose. Appellant

asked how much time he will actually have to serve and whether he might be eligible

for “good time” credit. The trial court responded he would not be eligible for parole

until he served 25 years.

       {¶8} Appellant then said he wanted to maintain his guilty plea, and the trial

court noted he therefore withdrew his request to withdraw his guilty plea.

       {¶9} Appellee corrected the trial court and pointed out the resulting term

would be 23 years to life: 3 years on Count I (failure to register), and 10 years to life

on both Counts VII and XII (rape).

       {¶10} Prior to imposition of sentence, appellee commented on appellant’s

criminal history. In 1994, appellant raped a 69-year-old woman and was sentenced to



1
 The resulting sentence at the sentencing hearing on October 13 was 23 years to life, but
several times the trial court refers to “25 to life.” At sentencing, appellee pointed out the trial
court’s error in calculation.
Richland County, Case No. 12CA12                                                          5


a prison term of 40 years, but was released in 16 years. Appellant was therefore

indicted upon repeat violent offender and sexually violent predator specifications in the

instant case. Perhaps because of problems with alcohol, appellant re-offended in this

case: he kidnapped, raped, and stabbed a 14-year-old boy, and lured a woman to a

house, raped her at knifepoint, and attempted to rape her again.         At sentencing,

appellant also had active warrants for his arrest in Arkansas due to parole violations.

       {¶11} The trial court then sentenced appellant to an aggregate prison term of

23 years to life.

       {¶12} Appellant now appeals from the judgment entry of his convictions and

sentence.

       {¶13} Appellant raises two Assignments of Error:

       {¶14} “I. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL PROVIDED BY THE SIXTH AMENDMENT OF THE UNITED STATES

CONSTITUTION, IN ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AS

WELL AS THE DUE PROCESS PROTECTION UNDER THE 14TH AMENDMENT OF

THE UNITED STATES CONSTITUTION IN ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.”

       {¶15} “II. THE TRIAL COURT ERRED IN FAILING TO PERMIT DEFENDANT-

APPELLANT TO WITHDRAW HIS PREVIOUS GUILTY PLEA IN VIOLATION OF

DEFENDANT-APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

OHIO RULE OF CRIMINAL PROCEDURE 32.1.”
Richland County, Case No. 12CA12                                                      6


                                           I.

       {¶16} In his first assignment of error, appellant argues he received ineffective

assistance of counsel. We disagree.

       {¶17} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶18} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶19} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶20} In the instant case, appellant bases his allegation of ineffective

assistance upon his statement at sentencing that he did not want to enter guilty pleas

because he was not guilty of all of the charges. Appellant asks us to infer from the
Richland County, Case No. 12CA12                                                     7


record that he did not understand the plea because of some deficiency by counsel, but

does not point to any such deficiency in the record.

       {¶21} ). We are required to indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance, and

appellant has not demonstrated any evidence in the record to overcome the

presumption that counsel was effective. We cannot infer from appellant’s brief change

of heart that trial counsel was incompetent.

       {¶22} We do not find trial counsel’s representation of appellant to have been

ineffective and appellant’s first assignment of error is therefore overruled.

                                            II.

       {¶23} In his second assignment of error, appellant argues the trial court should

have permitted appellant to withdraw his guilty plea. We disagree.

       {¶24} Crim. R. 32.1 states, “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.” 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-Ohio-

6328, ¶ 32, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), at

paragraph one of the syllabus.

       {¶25} 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
Richland County, Case No. 12CA12                                                         8

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 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).

       {¶26} 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).

       {¶27} 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 (1st Dist.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
Richland County, Case No. 12CA12                                                         9

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.

       {¶28} In the instant case, we first note the trial court never overruled

appellant’s motion to withdraw his guilty plea; instead, the trial court acknowledged

appellant’s own withdrawal of the motion.

       {¶29} When the trial court inquired why appellant wanted to withdraw his plea,

appellant explained he was not guilty of all of the charges and was negotiating to get

the “best time frame” possible. The trial court explained the nature of the charges he

faced, including two counts of rape plus specifications which could each result in

prison terms of 25 years to life. The trial court also pointed out appellee’s only interest

in the plea deal was avoiding making the minor victim testify at trial; otherwise

appellee would have demanded a term of 50 years to life.

       {¶30} There is simply no basis in this record from which we can conclude the

trial court abused its discretion in addressing appellant’s motion. Not only was the

motion ultimately withdrawn, but it is evident that appellant’s last-minute change of

heart was related to length of his ultimate sentence, not to his claim of innocence to

“some” of the charges.

       {¶31} We find the trial court did not abuse its discretion because appellant

withdrew his motion. Appellant’s second assignment of error is therefore overruled.
Richland County, Case No. 12CA12                                                10


      {¶32} Having overruled both of appellant’s assignments of error, the judgment

of the Richland County Court of Common Pleas is hereby affirmed.

By: Delaney, P.J.

Gwin, J. and

Farmer, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. SHEILA G. FARMER



PAD:kgb
[Cite as State v. Puckett, 2012-Ohio-4841.]


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                      Plaintiff-Appellee        :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
DAVID R. PUCKETT                                :
                                                :
                                                :   Case No. 12CA12
                     Defendant-Appellant        :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

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




                                              HON. PATRICIA A. DELANEY



                                              HON. W. SCOTT GWIN



                                              HON. SHEILA G. FARMER
