[Cite as State v. Waters, 2013-Ohio-1229.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
SHAREZ M. WATERS : Case No. 2012CA00147
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012CR0323
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
JOHN D. FERRERO AARON KOVALCHIK
Prosecuting Attorney 116 Cleveland Avenue, NW
Suite 808
By: KATHLEEN O. TATARSKY Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00147 2
Farmer, J.
{¶1} On March 10, 2012, the Stark County Grand Jury indicted appellant,
Sharez Waters, on one count of domestic violence in violation of R.C. 2919.25.
Appellant pled guilty on May 9, 2012.
{¶2} On May 25, 2012, appellant filed a Crim.R. 32.1 motion to withdraw his
guilty plea, as he acquired funds to pay his retained counsel and now wished to proceed
with a jury trial. A hearing was held on June 25, 2012. By judgment entry filed July 2,
2012, the trial court denied the motion. The trial court subsequently sentenced
appellant to twelve months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA."
I
{¶5} Appellant claims the trial court erred in denying his presentence motion to
withdraw his guilty plea. We disagree.
{¶6} Crim.R. 32.1 governs withdrawal of guilty plea and 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." The right to withdraw
a plea is not absolute and a trial court's decision on the issue is governed by the abuse
of discretion standard. State v. Smith, 49 Ohio St.2d 261 (1977). In order to find an
Stark County, Case No. 2012CA00147 3
abuse of discretion, we must determine 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 (1983).
A motion to withdraw a plea of no contest, made prior to the
imposition of sentence, should be freely granted in the exercise of the trial
court's discretion; one extremely important factor bearing on the exercise
of the court's discretion is whether withdrawal will result in prejudice to the
prosecution, but there are others to be weighed as well, including (1) the
representation afforded to the defendant by counsel; (2) the extent of the
hearing conducted pursuant to Crim.R. 11; (3) the extent of the hearing on
the motion to withdraw; (4) the amount of consideration given to the
motion by the court; (5) the timing of the motion; (6) the reasons given for
withdrawal; (7) the defendant's understanding of the charges and
penalties; and (8) the existence of a meritorious defense.
State v. Fish, 104 Ohio App.3d 236, paragraph two of the syllabus (1st Dist. 1995).
{¶7} During the hearing, defense counsel stated appellant's reasons for the
motion to withdraw and the history behind it (June 28, 2012 T. at 4-5 and 7,
respectively):
Stark County, Case No. 2012CA00147 4
MR. KOUKOUTAS: Thank you, Your Honor. I was with Mr. Waters
when he entered a plea of guilty to the charge against him and applied for
probation. I would like to point out to the Court that even on that day he
was telling me he wished to proceed to a jury trial. I informed him at the
time that he would have to come up with additional funds in order for me
to do a jury trial since he did retain me in this matter.
He indicated that he would not be able to have the funds so he
decided to enter a plea of guilty to the charge and proceed with a PSI.
Subsequently he contacted my office, indicated to me that he did
have the funds to pay for a trial. I, therefore, filed a motion to withdraw his
plea on May 25th, 2012.
And we are here today asking the Court to allow him to withdraw
his guilty plea based primarily on the fact that he - - he felt he was forced
into taking a - - into pleading guilty to the charge, primarily because he did
not have the money to pay me to do a jury trial.
He says that he does have the funds for me now. I have yet to see
them, but I felt obligated to at least file the motion on his behalf, that way I
could protect any rights that he may have. And that's pretty much the
basis of the motion, Your Honor.
***
Your Honor, I never, at any point in time, told him he had to take a
plea to the charge. I just basically told him, Look, you need to pay me in
order to do a trial. If you're - - if you're not going to pay me to do a trial,
Stark County, Case No. 2012CA00147 5
then you're going to have to think of something to do here. What do you
want to do?
{¶8} The prosecutor reviewed the factors set forth in Fish, as cited above, and
argued the record established the factors were fulfilled. Id. at 8-9. Also, a review of the
Crim.R.11 plea hearing transcript indicates appellant was satisfied with his attorney and
when asked, offered nothing further to the trial court. May 9, 2012 T. at 4, 7.
{¶9} During the motion to withdraw hearing, the trial court explained if it had
been aware of appellant's lack of finances, it would have entertained a motion for the
appointment of an attorney at state's expense. June 28, 2012 T. at 6. In summary, the
trial court denied appellant's request stating, "[t]aking all that into consideration, the
plea, the absence of any discussion with regard to finances, any indication that this was
anything but a freely given plea at the time, the Court finds that it is not going to grant
the motion to withdraw the guilty plea and is proceeding to sentencing at this time." Id.
at 12.
{¶10} Upon review, we find the trial court did not abuse its discretion in denying
appellant's Crim.R. 32.1 motion to withdraw his guilty plea.
{¶11} The sole assignment of error is denied.
Stark County, Case No. 2012CA00147 6
{¶12} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin__________________
s/ Patricia A. Delaney_______________
JUDGES
SGF/sg 3/14
[Cite as State v. Waters, 2013-Ohio-1229.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SHAREZ M. WATERS :
:
Defendant-Appellant : CASE NO. 2012CA00147
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin__________________
s/ Patricia A. Delaney_______________
JUDGES
State v. Waters
Combined Opinion