[Cite as State v. P.P., 2017-Ohio-1120.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :                    No. 16AP-42
                                                                   (C.P.C. No. 15CR-728)
v.                                               :
                                                             (ACCELERATED CALENDAR)
[P.P.],                                          :

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                      Rendered on March 28, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee. Argued: Steven L. Taylor.

                 On brief: Todd W. Barstow, and Todd W. Barstow, for
                 appellant. Argued: Todd W. Barstow.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
          {¶ 1} This is an appeal by defendant-appellant, P.P., from a judgment of the
Franklin County Court of Common Pleas sentencing him after the trial court denied his
motion to withdraw guilty plea.
          {¶ 2} On February 12, 2015, appellant was indicted on one count of rape, in
violation of R.C. 2907.02, one count of sexual battery, in violation of R.C. 2907.03, and
one count of gross sexual imposition, in violation of R.C. 2907.05. The rape and sexual
battery counts alleged that appellant "on or about July 19, 2013 to July 18, 2014," engaged
in "sexual conduct, to wit: fellatio, with M.P." The gross sexual imposition count alleged
No. 16AP-42                                                                                 2

that appellant "on or about July 19, 2012 to July 18, 2013," engaged in "sexual contact
with M.P."
        {¶ 3} On September 28, 2015, appellant entered a guilty plea to one count of gross
sexual imposition. At the start of the plea hearing, the prosecuting attorney represented
to the court that "[w]e worked out a plea agreement where the defendant will plead to
Count Three of the indictment, gross sexual imposition. In exchange for that plea the
state will nolle Counts One and Two." (Sept. 28, 2015 Tr. at 2-3.)
        {¶ 4} During the plea hearing, the prosecutor recited the following facts regarding
the underlying charges. In December 2014, "detectives received a sexual abuse referral
from Franklin County Children Services in regards to [M.P.] being sexually abused by her
father, the defendant." In January 2015, M.P. was interviewed at Nationwide Children's
Hospital, and "[a]t that time she disclosed her father had sexually abused her when she
was 13 and 14 years of age." M.P "disclosed the last incident happened when she was 14
years old when [appellant] came downstairs and put his thing in her mouth." M.P.
"related that she punch[ed] her doll and he stopped and walked away." (Sept. 28, 2015
Tr. at 3.)
        {¶ 5} According to M.P., "the first time anything happened her father pulled her
into his chest, touched her chest on top of the skin and then grabbed her by the waist
while lying in bed." M.P. disclosed that "on another occasion her father touched her down
there on top of her skin and then touched her chest." (Sept. 28, 2015 Tr. at 4.)
        {¶ 6} Detectives subsequently spoke with appellant by phone, and appellant
"stated * * * he was aware of the allegations and denied the sexual abuse allegations
involving his daughter." Detectives discussed with appellant "the polygraph at that time
and he expressed his doubts in regards to that test."         Detectives spoke again with
appellant "[l]ater in January," and "he came in of his own freewill and spoke with
detectives." (Sept. 28, 2015 Tr. at 4.)
        {¶ 7} Appellant "admitted an incident had occurred while lying in bed, but * * *
he thought it was his wife and only grabbed her by the waist and did not touch her chest.
He related he realized it was his daughter and sent her to her room." (Sept. 28, 2015 Tr.
at 4.) Appellant "related * * * it was a possibility that he touched her chest, but then again
related he did not touch her there." (Sept. 28, 2015 Tr. at 4-5.) Appellant "denied the
No. 16AP-42                                                                                3

other allegations and made comments about his wife sleeping on the other sofa in the
downstairs living room and she would have woken up." (Sept. 28, 2015 Tr. at 5.)
       {¶ 8} Detectives again discussed with appellant "the option of a polygraph."
Appellant "asked several times" why detectives were "continuing" if his daughter "did not
want to proceed with the investigation?" (Sept. 28, 2015 Tr. at 5.) Later that month,
detectives asked appellant if he would be willing to take a polygraph "and he agreed."
Detectives administered the polygraph and appellant was "found to be deceptive and
deliberately distorting the polygraph recording in an attempt to defeat the test."
Appellant "asked about taking a polygraph for a second time." (Sept. 28, 2015 Tr. at 6.)
       {¶ 9} Detectives subsequently spoke with M.P. and her mother about the results
of the polygraph. M.P. "related she's telling the truth about what happened and that she
just had to get it off her chest because it had been bothering her. The detectives and
[M.P.] spoke about the incident and she stated that she remembers the time on the clock
of when it happened at 3:42 a.m." (Sept. 28, 2015 Tr. at 6.)
       {¶ 10} Detectives then spoke with appellant "again over the phone and he
informed the detectives he was going to make an appointment to speak with a
psychologist to help them through this." Appellant "again asked why the investigation
was continuing," and offered that "his wife did not want to pursue charges."      During a
phone conversation, appellant "asked the detective if the investigation could be closed if
he sought help and related that he wanted this to go away." (Sept. 28, 2015 Tr. at 7.)
       {¶ 11} Appellant was arrested in February 2015, and "again spoke to detectives.
He stated at that time he wanted some sort of plea before confessing so he knew what he
would be looking at. He spoke of getting help and counseling, but wanted to know if the
detectives would then drop the charges." Detectives "did forensics on [appellant's] phone
in which they found several history searches of ways to beat a polygraph and also for
pedophile counsel." (Sept. 28, 2015 Tr. at 7.)
       {¶ 12} The prosecutor also noted "past charges of gross sexual imposition."
(Sept. 28, 2015 Tr. at 5.) According to the prosecutor, appellant entered a plea "in regard
to an incident involving a niece, the mother's sister's daughter that happened nine years
ago." (Sept. 28, 2015 Tr. at 5-6.) Appellant "related he had pled guilty to assault due to
No. 16AP-42                                                                                4

[advice] from his attorney and the fact it was taking a toll on them mentally and
financially." (Sept. 28, 2015 Tr. at 5.)
       {¶ 13} After plaintiff-appellee, the State of Ohio, provided the above recitation of
facts, the trial court engaged in a plea colloquy with appellant and accepted his guilty plea
to one count of gross sexual imposition. The court ordered a nolle prosequi as to the
remaining two counts. The court further ordered a presentence investigation report
("PSI"), and scheduled sentencing in the matter for October 29, 2015.
       {¶ 14} On October 28, 2015, appellant filed a motion to withdraw his guilty plea.
In   the   accompanying      memorandum      in   support,   appellant    argued   that   he
"believes he now remembers the evening on which the allege[d] rape occurred and that he
can now explain that the charge was a mistake." Further, that he "did not remember this
sooner * * * due to the evening being outside the time frame of the allegations." On
November 3, 2015, the state filed a memorandum contra the motion to withdraw.
       {¶ 15} On November 24, 2015, the trial court conducted a hearing on the motion to
withdraw guilty plea. During the hearing, counsel for appellant argued that appellant
"had remembered something that occurred out of the time that the indictment is talking
about, that he never thought of it and he's now faced with it and now he realizes that must
be where the mistake must have occurred." (Nov. 24, 2015 Tr. at 3.)
       {¶ 16} In response, the state argued that M.P. "is a teenage girl who was here the
day of the plea and was incredibly emotional about the idea of testifying. And that's why
the plea was offered the way that it was." (Nov. 24, 2015 Tr. at 4.) Asserting that
prejudice to M.P. "is great," the prosecutor argued that appellant "had ample opportunity
to decide upon a plea," and that "[i]t was something we talked about several weeks leading
up to the day of the trial." (Nov. 24, 2015 Tr. at 4-5.) The prosecutor further argued that,
based on "defendant's PSI as well as the motion written by his counsel * * * this is a mere
change of heart. He felt that * * * his wife, the mother of [M.P.] was standing by him. * * *
And after the guilty plea he felt that she was not going to stand by him anymore."
(Nov. 24, 2015 Tr. at 5.)       With respect to appellant's "newly found defense," the
prosecutor argued that such defense was "something that he's come up with in his PSI
after he has been charged and accused of this for many months if not a year at this point."
(Nov. 24, 2015 Tr. at 6.)
No. 16AP-42                                                                                5

       {¶ 17} Following a discussion on the record, the trial court denied appellant's
motion to withdraw guilty plea. On December 17, 2015, the trial court conducted a
sentencing hearing. By judgment entry filed December 15, 2015, the trial court sentenced
appellant to 18 months incarceration.
       {¶ 18} On appeal, appellant sets forth the following assignment of error for this
court's review:
              THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
              OF DUE PROCESS OF LAW AS GUARANTEED BY THE
              FOURTEENTH AMENDMENT TO THE UNITED STATES
              CONSTITUTION AND ARTICLE ONE SECTION TEN OF
              THE OHIO CONSTITUTION BY OVERRULING HIS
              MOTION TO WITHDRAW HIS PLEA OF GUILTY.

       {¶ 19} Under his single assignment of error, appellant challenges the trial court's
ruling denying his motion to withdraw guilty plea. Appellant acknowledges the trial court
considered the relevant factors in ruling on a pre-sentence motion to withdraw guilty plea,
but argues that the court abused its discretion in denying his request.
       {¶ 20} Crim.R. 32.1 states as follows: "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."
       {¶ 21} Under Ohio law, a trial court's ruling on a pre-sentence motion to withdraw
guilty plea is "within a trial court's discretion." State v. Xie, 62 Ohio St.3d 521, 526-27
(1992). In general, "a presentence motion to withdraw a guilty plea should be freely and
liberally granted. Nevertheless, it must be recognized that a defendant does not have an
absolute right to withdraw a plea prior to sentencing." Id. at 527. Accordingly, a trial
court "must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea." Id. Further, "[a]bsent an abuse of discretion on the
part of the trial court in making the ruling, its decision must be affirmed." Id.
       {¶ 22} In reviewing a trial court's ruling on a pre-sentence motion to withdraw a
guilty plea, an appellate court considers a number of non-exhaustive factors, 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
No. 16AP-42                                                                                 6

               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.

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).
        {¶ 23} A court's consideration of these factors "involves a balancing test," and "[n]o
single factor is dispositive." State v. Inskeep, 2d Dist. No. 2016-CA-2, 2016-Ohio-7098,
¶ 26.
        {¶ 24} In the present case, the trial court discussed each of the above factors in
ruling on the motion to withdraw guilty plea. In addressing the issue of prejudice to the
state, the trial court found it "clear" that M.P., the teenage daughter of appellant, "is
traumatized and is having an unbelievably hard time with the thought of having to testify
against her father. It was clear to the Court when she was here on the day that the plea
was taken." (Nov. 24, 2015 Tr. at 9.) Observing that "there is a question as to whether
[M.P.] would even be able to" testify, the trial court concluded that "the prejudice to the
state in allowing the defendant to withdraw his guilty plea would be great." (Nov. 24,
2015 Tr. at 9-10.) The trial court also found "no question * * * the defendant was
represented by highly competent counsel," citing the fact that trial counsel "has been a
defense lawyer for a very long time and * * * practices in front of me on countless
occasions and has always done a very good job." (Nov. 24, 2015 Tr. at 10.)
        {¶ 25} The trial court noted it had conducted a "full Criminal Rule 11 hearing * * *
on the record," and concluded it had "complied with Criminal Rule 11." The trial court
further indicated it was conducting "a full hearing on this motion," and that it "is giving
full and fair consideration to the motion to withdraw." (Nov. 24, 2015 Tr. at 10.) Having
"read through the motion, * * * read the memorandum contra," as well as the PSI, the trial
court represented it had "given this motion full and fair consideration." (Nov. 24, 2015
Tr. at 11.)
        {¶ 26} With respect to the timeliness of the motion, the trial court observed that
the motion "was filed a month after the plea was taken." Further, citing the fact the
No. 16AP-42                                                                                 7

indictment was filed "in February," and that the plea was made "September 28th, 2015,"
the trial court found "the defendant certainly had enough time to consider what he was
doing with respect to taking this plea or agreeing to a plea." (Nov. 24, 2015 Tr. at 11.)
       {¶ 27} The trial court also considered appellant's reasons for the motion to
withdraw as "articulated in the motion," including a "newly discovered defense that he
now recalls the events of what may have happened." (Nov. 24, 2015 Tr. at 11.) In
addressing this issue, the court discussed its review of the PSI, observing in part: "[I]t's
clear to me in the PSI there is an attempt to try to justify out what may have occurred, but
when I read what [M.P.] said occurred, she described the last time it happened was early
in the morning and she was sleeping downstairs in the living room." (Nov. 24, 2015 Tr. at
11-12.) The court noted that M.P. "stated her father came downstairs while she was
sleeping and put his thing in her mouth." The trial court found nothing in the motion that
"would supply the Court with anything other than defendant thinks he may know what
had happened at that time which goes also to whether the accused might have a complete
defense to the charge or charges." The trial court further observed, based on a review of
the PSI, that "the defendant is concerned about his wife * * * no longer supporting him
now that he had entered the guilty plea." The court viewed this as merely "a change of
heart." (Nov. 24, 2015 Tr. at 12.)
       {¶ 28} The trial court next indicated it had "engaged in a very long discussion with
defendant at the plea hearing as part of taking the plea making sure that he understood
the nature of the charge, the effect of the plea and the maximum penalties that could be
imposed." (Nov. 24, 2015 Tr. at 12-13.) The court, noting the fact appellant provided
"affirmative answers on all of those," found it clear from the record that he entered the
plea "knowingly, intelligently[,] and voluntarily." (Nov. 24, 2015 Tr. at 13.)
       {¶ 29} With respect to the issue whether appellant had a complete defense to the
charge, the trial court deemed it "incredibly problematic" that appellant "kept asking for
the opportunity or * * * wanted the opportunity to speak with his daughter and he could
clear the whole thing up." The court found that such behavior "indicates there is no
defense, but rather an attempt to change the mind of a very young child." (Nov. 24, 2015
Tr. at 13.)
No. 16AP-42                                                                               8

       {¶ 30} On appeal, appellant does not dispute that his trial counsel had extensive
criminal experience; further, he acknowledges the trial court "appears to have complied
with" Crim.R. 11, and that the court conducted a full hearing on his motion to withdraw
and gave a full and fair consideration to the motion. Appellant suggests that prejudice to
the state would have been minimal; further, that any delay in filing the motion to
withdraw should be attributed to trial counsel and not appellant. Appellant also notes
that he outlined in detail his specific reasons for the motion to withdraw, and argues he
would have a complete defense to the charges if successful in his claim that M.P. was
mistaken in her allegations.
       {¶ 31} A review of the record supports the trial court's findings that appellant was
represented by competent counsel at the plea hearing, and that the court conducted a full
hearing in compliance with Crim.R. 11. Further, the record supports the trial court's
finding that appellant knowingly, voluntarily, and intelligently waived his rights at the
time of the plea. The court also afforded appellant a full hearing on his motion to
withdraw, and fully considered the reasons proffered by appellant. The trial court was
arguably justified in expressing skepticism as to the timing of the motion to withdraw,
which appellant filed one day before sentencing and approximately one month after he
entered his plea.
       {¶ 32} As set forth above, in his motion to withdraw, appellant argued he had a
newly discovered defense, i.e., that it was his thumb that had gone into his daughter's
mouth. The trial court expressed doubts as to this claim, finding "an attempt to try to
justify * * * what may have occurred." Rather, the court found persuasive the state's
argument that the real basis for the motion was a change of heart by appellant because his
wife no longer supported him. Specifically, in considering the PSI, the court concluded
that it was "clear that the defendant is concerned about his wife * * * no longer supporting
him now that he * * * entered the guilty plea." (Nov. 24, 2015 Tr. at 12.) The trial court
also expressed concern, based on a review of the PSI, that appellant was seeking the
opportunity to change M.P.'s testimony. As noted above, the court deemed it "incredibly
problematic" and "disturbing" that appellant "kept asking for the opportunity or * * *
wanted the opportunity to speak with [M.P.] and he could clear the whole thing up." The
No. 16AP-42                                                                                  9

court concluded "there is no defense, but rather an attempt to change the mind of a very
young child." (Nov. 24, 2015 Tr. at 13.)
       {¶ 33} Under Ohio law, " 'a mere change of heart * * * is insufficient justification' to
withdraw a guilty plea, even prior to sentence." State v. Yander, 10th Dist. No. 05AP-38,
2005-Ohio-5538, ¶ 27, rev'd on other grounds, In re Ohio Criminal Sentencing Statutes
Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, quoting State v. Drake, 73 Ohio App.3d 640,
645 (8th Dist.1991). See also State v. Moore, 7th Dist. No. 06 CO 74, 2008-Ohio-1039, ¶
13 ("It is axiomatic that a mere change of heart has been found to be an insufficient basis
for granting a presentence motion to withdraw a plea."); State v. Salah, 2d Dist. No. 2008
CA 51, 2010-Ohio-1613, ¶ 17 ("there is no indication from the record that [defendant's]
decision to file a motion to withdraw his pleas was anything other than a mere 'change of
heart,' which is not a sufficient basis upon which a defendant can rely in order to
successfully withdraw his guilty pleas").
       {¶ 34} In the present case, in the PSI cited by the trial court, the author of that
document reports that appellant "explained this change is a result of how his wife was
standing by him until his guilty plea." Appellant also related to the author that "he sees
himself as the victim and everything can be resolved with one phone call to his daughter."
(PSI at 13.) On review of the record and consideration of the relevant factors, we conclude
the trial court reasonably determined that appellant's motion to withdraw was premised
on a mere change of heart, which constitutes an insufficient basis for withdrawal of a plea.
Accordingly, we find no abuse of discretion by the trial court in denying the motion to
withdraw guilty plea.
       {¶ 35} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                         Judgment affirmed.

                            KLATT and BRUNNER, JJ., concur.

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