[Cite as State v. Shelton, 2012-Ohio-4482.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. 2012CA00024
WILLIAM SHELTON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR1603
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 17, 2012
APPEARANCES:
For Appellant: For Appellee:
STEVEN A. REISCH JOHN D. FERRERO, JR.
STARK CO. PUBLIC DEFENDER STARK CO. PROSECUTOR
OFFICE RONALD MARK CALDWELL
200 West Tuscarawas St., Suite 200 110 Central Plaza S., Suite 510
Canton, OH 44702 Canton, OH 44702-1413
[Cite as State v. Shelton, 2012-Ohio-4482.]
Delaney, J.
{¶1} Appellant William Shelton appeals from the January 27, 2012 decision of
the Stark County Court of Common Pleas overruling his Motion to Withdraw Plea.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant was charged by indictment with one count of domestic violence
pursuant to R.C. 2919.25(A), a felony of the third degree; the offense was predicated
upon appellant’s three prior convictions of domestic violence. A statement of the facts
underlying appellant's offense is unnecessary to our disposition of this appeal.
{¶3} On December 29, 2011, appellant appeared before the trial court, with
counsel, to withdraw his plea of not guilty and enter a plea of guilty.
{¶4} At the plea hearing, the trial court engaged in a Crim.R. 11 colloquy with
appellant, and then advised a pre-sentence investigation would be completed before
sentencing. The trial court cautioned appellant, however, that while community control
was one possibility for sentencing, a prison term was also a possibility:
* * * *.
THE COURT: I also want to make it straight right up front; it is my inclination to
send you to prison for a period of time and, then send you to the SRCCC for
treatment; do you understand that?
[APPELLANT:] I don’t know if I’m all the way clear on that.
THE COURT: Okay, I want to make sure. I’m going to do what’s called a
presentence investigation and I’ll be open minded and I will be fair, but I am not
a big fan of anybody putting their hands on women and you’re a repeat
Stark County, Case No. 2012CA00024 3
offender, and I’ve made it very clear that as of today if I had to make the
decision I would be sending you to prison and let you apply for what’s called
judicial release and have you released after a short stint because it’s my goal to
try to wake you up as to what your problem is, and it seems that you have an
alcohol problem, and I’m not bettering the system in any way or protecting
women anymore if I don’t get you some treatment for that because then if you
would come back in front of me again you wouldn’t see daylight for a long long
time.
So that is the plan. I don’t want you walking out of here today thinking by
pleading today that you are likely to get straight probation. Does that make
sense what I’m telling you?
[APPELLANT:] That makes sense. I just—I was not aware of—could you give
maybe more specifics on what the short stint might be?
THE COURT: Could—usually I’d say between 60 days to 6 months is—I guess
in some people’s eyes that’s a short stint. I mean, if I was going down, that
would be a long stint. So I guess beauty’s in the eye of the beholder.
I also don’t know your background, I don’t know everything, I don’t know what
you’ve done to help yourself since being arrested; that’s why I do a pre-
sentence investigation.
But I don’t want you coming in on sentencing day and thinking you’re walking
out of my courtroom.
[APPELLANT:] I know that’s not going to happen, Your Honor.
THE COURT: Okay. All right.
Stark County, Case No. 2012CA00024 4
Just because I accept your application for community control does not mean it’s
necessarily going to be granted. I can reject it and send you to prison, I can
send you to the Stark County Jail, a community based correction facility, as I
talked about, to treat you, a halfway house, or allow you to apply for judicial
release. Do you understand all those options?
[APPELLANT:] Yes, sir.
* * * *.
{¶5} Appellant thereupon entered his plea of guilty.
{¶6} Appellant next appeared for sentencing on January 23, 2012, and the
hearing opened with appellant’s counsel stating he wanted to withdraw his guilty plea
because appellant “received some new letters from the alleged victim where she
states that this incident did not happen.” The trial court asked appellant whether the
letters were with him in court that day, and he said no. Appellant then stated his
“whole concern” with entering a guilty plea was the possibility he might get SRCCC
[supervised treatment], but “to me that’s been changed, and that’s why I want to take
my guilty plea back.”
{¶7} The trial court clarified appellant would be receiving a one-year prison
term in addition to SRCCC; he inquired whether appellant received a full Crim.R. 11
hearing, and appellant admitted his real concern:
* * * *.
[APPELLANT:] Because I’m in trouble with the courts on this charge. I was in
trouble with my parole officer, and she had violated me. And everyone worked
together with me here to pull this together, and my PO agreed that if I took
Stark County, Case No. 2012CA00024 5
SRCCC—in other words, I—I was pleading guilty because everything would fall
into place for my benefit for—to take care of my parole officer, to take care of
the Court, and more importantly, to get me the treatment/help that I’ve needed.
I’ve been in prison a lot, as you can tell, and that doesn’t seem to be the thing
that’s helping me. I was—actually I’m really looking forward to going to SRCCC
and I’m kind of disappointed that that’s not happening that way. So I would like
to go back to where we were and start over.
* * * *.
THE COURT: Okay. From what I heard you just say, you are here because
you’re upset that you’re not going to SRCCC and you’re going to prison, and
that’s why you want to change your plea; is that right?
[APPELLANT:] Well, not only that, new evidence has come into the picture.
* * * *.
{¶8} Appellant requested time to produce letters from the victim, and the trial
court stated the letters would be reviewed in camera. The trial court then proceeded
to sentence appellant to a prison term of three years with judicial release after one
year.
{¶9} The next day, appellant was back before the trial court with a letter from
the victim, which the trial court read into the record. Nothing in the letter exonerated
appellant or even touched upon the criminal case, although the victim stated she
would make a statement in court if it would help appellant. Instead, the victim
reiterated the fact she still loved appellant and would send him money.
Stark County, Case No. 2012CA00024 6
{¶10} The trial court noted nothing in the letter exonerated appellant, and went
on to detail appellant’s criminal history of assaults, domestic violence offenses,
disorderly conduct, and failure to report.
{¶11} Appellant further argued, however, that evidence existed the victim was
not credible. He asserted the victim has been convicted of making false statements
and proffered the testimony of a police officer who would testify, he claimed, that the
victim was not credible.
{¶12} Ultimately, the trial court overruled appellant’s motion to withdraw his
guilty plea, noting the significant injuries sustained by the victim plus appellant’s
criminal record. In the judgment entry, the trial court noted it “reviewed the alleged
evidence of truthfulness, discussed the case with [appellant] and found no confusion
of his plea, and factored in the parameters of St. v. Fish. The Court’s sentence was
consistent with the plea offer, and the Court reviewed [appellant’s] lengthy criminal
record.”
{¶13} Appellant now appeals from the trial court’s judgment entry overruling his
Motion to Withdraw Plea.
{¶14} Appellant raises one Assignment of Error:
{¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA.”
I.
{¶16} Appellant argues in his sole assignment of error the trial court should
have allowed him to withdraw his plea because the sentence appellant received was
increased from what appellant was originally told, he presented newly-discovered
Stark County, Case No. 2012CA00024 7
evidence which constituted a valid defense to the charge, and appellee would not
have been prejudiced. We disagree.
{¶17} 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.
{¶18} 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
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).
{¶19} 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).
Stark County, Case No. 2012CA00024 8
{¶20} 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 (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 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.
{¶21} In this case, the trial court thoroughly advised appellant of the rights he
waived at the time the guilty plea was entered. Appellant does not claim otherwise.
The trial court then brought appellant back for sentencing upon completion of the pre-
sentence investigation, and continued the hearing for a day to allow appellant to
collect the letters that would allegedly exonerate him. Appellant was represented by
counsel at each hearing.
{¶22} Appellant argues he should have been able to withdraw his plea because
the trial court initially stated he could apply for judicial release after a period of 60 days
Stark County, Case No. 2012CA00024 9
to 6 months, but then increased the prison term to a year. The cases appellant directs
us to are inapposite because in this case, there was no erroneous assumption on the
part of the trial court and appellant. We have reviewed the record and find the trial
court repeatedly advised appellant his sentence would depend upon the findings of
the pre-sentence investigation because the trial court didn’t know appellant’s
background. At sentencing, the trial court was aware of appellant’s criminal history of
violence and the extent of the victim’s injuries in the underlying offense.
{¶23} Finally, we note a trial court does not abuse its discretion in disallowing a
pre-sentence withdrawal of a guilty plea where the motion is motivated by “a change
of heart and an attempt to reduce the original sentence.” State v. Carrington, 5th Dist.
No. 2010CA00228, 2011-Ohio-3228, ¶ 11. It is evident from the record appellant’s
motion to withdraw his guilty plea was premised upon dissatisfaction with the trial
court’s sentence and rejection of straight SRCCC.
{¶24} Appellant also argues now that “new evidence” was discovered after
appellant’s guilty plea. Assuming the new evidence is the letter presented to the trial
court, appellant told the trial court he received “some new letters from the victim where
she states this incident did not happen.” The trial court asked appellant when he
received the letters and he stated “sometime in the last couple weeks.” Appellant was
brought back the next day, “letters” in hand. The trial court read one letter into the
record, and it neither stated the incident did not happen, nor exonerated appellant.
Appellant also asserted a police officer would testify to the victim’s general lack of
credibility, but appellee noted there was no information in the case to indicate the
victim was not truthful, she made a police report, and her visible injuries were
Stark County, Case No. 2012CA00024 10
consistent with her statements. Appellant has neither factually substantiated his claim
nor offered any evidence or testimony supporting his innocence. See, State v.
Davison, 5th Dist. No. 2008-CA-00082, 2008-Ohio-7037, ¶ 50, citing State v. Boyd,
10th Dist. No. 97APA12-1640, 1998 WL 733717 (Oct. 22, 1998) and State v. Keith,
9th Dist. Nos. 07CA009263, 07CA009267, 07CA009268, 07CA009269, 07CA009270,
07CA009271, 07CA009272, 2008-Ohio-3724.
{¶25} Appellant was represented by competent counsel, was afforded a full
hearing before entering his guilty plea, and was afforded a full hearing upon his motion
to withdraw his guilty plea.
{¶26} Upon review, therefore, we find the trial court did not abuse its discretion
in overruling appellant’s motion to withdraw his plea of guilty. Appellant’s sole
assignment of error is overruled.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
[Cite as State v. Shelton, 2012-Ohio-4482.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM SHELTON :
:
: Case No. 2012CA00024
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER