State v. Myers

[Cite as State v. Myers, 2021-Ohio-3061.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

STATE OF OHIO COURT OF APPEALS NO. {48}L-20-1166

APPELLEE TRIAL COURT NO. CR0201902127

V. DECISION AND JUDGMENT

BENJAMIN KEITH MYERS Decided: September 3, 2021

APPELLANT

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Padraic A. McClure, Assistant Prosecuting Attorney, for appellee.

Robert P. Soto, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Benjamin K. Myers, appeals the September 18, 2020

judgment of the Lucas County Court of Common Pleas which, following appellant’s no
contest plea to attempted violation of a protection order, sentenced him to 180 days of

incarceration. Because we find no error, we affirm.

{¶ 2} On June 28, 2019, appellant was indicted on one count of violation of a

protection order, R.C. 2919.27(A)(1), (B)(3), a fifth-degree felony. Appellant entered a

not guilty plea. After several trial continuances, including those necessitated by the

COVID-19 pandemic and lockdown beginning in March 2020, appellant, on July 14,

2020, entered a no contest plea to attempted violation of a protection order. A

presentence investigation report was ordered.

{¶ 3} At the September 2, 2020 sentencing, appellant made an oral motion to

withdraw his plea. The matter was continued for a hearing. At the September 17, 2020

motion hearing, the following evidence was presented. Appellant testified that he had

three main reasons he desired to withdraw his plea. First, appellant claimed that there

was no tangible incentive for him to enter the plea and that by agreeing to the plea it

would demonstrate his lack of competence. Second, that the state wanted him to enter

the plea without producing the victim/witness. And finally, appellant stated that he

wished to assert his right to a speedy trial.

{¶ 4} During cross-examination, appellant failed to divulge any type of defense to

the charge. Appellant also acknowledged that during the plea colloquy he answered

affirmatively to the questions posed regarding nature of his plea.

{¶ 5} Ruling on the motion, the court reviewed the docket noting that appellant

had requested several continuances. The court first found that the state would be

2.
prejudiced as the victim, who lives out of town, appeared for trial on two occasions

where the trial did not go forward due to appellant’s failure to appear or request for a

continuance. Next, the court determined that when he entered his plea appellant was

represented by competent counsel and was afforded a full Crim.R. 11 hearing during

which he affirmatively indicated that he understood the charges and the penalties he was

facing. The trial court then denied the motion finding that appellant did not have a

legitimate basis, other than a change of heart, to withdraw his plea. Appellant was

immediately sentenced and this appeal followed with the assertion of the following three

assignments of error:

First Assignment of Error: The trial court abused its discretion and

committed reversible error when it refused to grant the defendant’s

presentence motion to withdraw his no contest plea despite evidence to the

contrary.

Second Assignment of Error: The trial court abused its discretion

and committed reversible error in accepting the defendant’s plea despite

clear evidence that it was not accepted voluntarily, knowingly, and

intelligently.

Third Assignment of Error: The trial court violated appellant’s

speedy trial rights.

{¶ 6} Appellant’s first assignment of error asserts that the trial court abused its

discretion when it denied his presentence motion to withdraw his no contest plea.

3.
Crim.R. 32.1 provides: “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.” Generally, a motion to withdraw a guilty plea is to be freely and

liberally granted. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).

However, the Xie court indicated that a defendant does not have an absolute right to

withdraw a guilty plea prior to sentencing. Id. at paragraph one of the syllabus. Rather,

“[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, “[t]he decision to grant or

deny a presentence motion to withdraw a guilty plea is within the sound discretion of the

trial court.” Id. at paragraph two of the syllabus. Accordingly, in order to find that the

trial court abused its discretion, a reviewing court must find that the court’s ruling was

“unreasonable, arbitrary or unconscionable.” Id. at 527. “Abuse-of-discretion review is

deferential and does not permit an appellate court to simply substitute its judgment for

that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 34.

{¶ 7} In determining whether a presentence motion to withdraw a plea should have

been granted, an appellate court should consider:

(1) [W]hether 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)

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

perhaps not guilty or had a complete defense to the crime.

State v. Eversole, 6th Dist. Erie Nos. E-05-073, E-05-076, E-05-074, E-05-075, 2006-

Ohio-3988, ¶ 13, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st

Dist.1995).

{¶ 8} Upon review of the trial court’s findings and the relevant case law, we find

that the trial court did not abuse its discretion when it denied appellant’s presentence

motion to withdraw his plea. Appellant was afforded a hearing on the motion and was

represented by competent counsel, appellant’s reasons for requesting the withdrawal were

analyzed by the court, appellant failed to assert a defense to the charge, and the state

presented evidence of prejudice had the motion been granted. Accordingly, appellant’s

first assignment of error is not well-taken.

{¶ 9} Appellant’s second assignment of error argues that the trial court erred by

accepting his plea where there was clear evidence that it was not voluntary, knowing, and

intelligent. Appellant entered a plea of no contest to attempted violation of a protection

order, R.C. 2923.02 and 2919.27(A)(1), (B)(3), a first-degree misdemeanor with a

maximum sentence of 180 days. Thus, the charge for which appellant was entering a

5.
plea was considered a petty misdemeanor under Crim.R. 2(C), (D). The trial court was

required to comply with Crim.R. 11(E) and ensure that appellant understood the effect of

his no contest plea. See State v. Willis, 6th Dist. Wood No. WD-16-048, 2019-Ohio-1182

at ¶ 11, citing State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677,

paragraph two of the syllabus.

{¶ 10} Reviewing the transcript of the proceedings and the plea form, it is

apparent that the court complied with Crim.R. 11(E). In fact, the court engaged in a full

Crim.R. 11 plea colloquy ascertaining that appellant could understand the English

language, was not under the influence of drugs or alcohol, was satisfied with counsel,

was not forced to enter the plea, was aware of the potential sentences and fines and the

effect it may have on appellant’s misdemeanor probation, was giving up his right to trial,

and that a no contest plea was not an admission of guilt but that appellant would not

contest the charges or proffer by the state as to what the evidence would have shown had

the case proceeded to trial, and that he was a United States citizen.

{¶ 11} Appellant acknowledges this but claims that the court “disregarded” the

circumstances surrounding the plea. Specifically, the fact that appellant “grudgingly”

accepted the plea and maintained his innocence. At the July 14, 2020 plea hearing the

following exchange took place:

THE COURT: Did anyone force you to enter this plea?

THE DEFENDANT: I mean, having to come – it’s been like a war

of attrition. I mean, I’ve had to make six appearances. I mean, it’s slowly

6.
 bankrupted me or slow motion bankruptcy. I mean, it’s not – I mean, at

some point you can’t fight any more.

THE COURT: Well, you have the right to take this matter to trial,

and if that’s what you want to do, you do not have to accept the plea. Do

you understand that?

THE DEFENDANT: I do.

THE COURT: And are you telling me that you would like to go

forward with the plea this morning?

THE DEFENDANT: With great reluctance.

THE COURT: Well, I don’t want you to reluctantly accept this plea,

I want it to be voluntary.

THE DEFENDANT: I—I mean, there’s very – there’s a huge power

despair. There’s a huge difference in power, how can it be voluntary? It’s

not like –

THE COURT: I don’t understand what you mean, there’s a huge

difference in power? You have a Constitutional right to go to trial, and if

that’s what you tell me you want to do, that’s what we will do.

THE DEFENDANT: I’ll take the plea, Your Honor.

THE COURT: Are you sure you want to do that?

THE DEFENDANT: I don’t want to, but I will.

7.
 THE COURT: Well, tell me why you don’t want to but you’re going

to do it.

THE DEFENDANT: I’m not convinced that the State can make its

case.

{¶ 12} A discussion then ensued regarding the state’s burden at trial, possible

penalties if convicted, and the state’s plea offer. Thereafter, appellant accepted the plea

offer as follows:

THE DEFENDANT: I will accept the State’s offer.

THE COURT: And so you are telling me that you are voluntarily

accepting the State’s offer?

THE DEFENDANT: Yes, your honor.

THE COURT: And you’re doing this knowingly?

THE DEFNEDANT: I’m doing it knowingly, Your Honor.

{¶ 13} Reviewing the extensive discussions appellant participated in prior to the

court accepting his plea, we find that it demonstrates that appellant, after being fully

informed of his rights and the penalties he was facing, knowingly, intelligently and

voluntarily entered the plea. Appellant’s second assignment of error is not well-taken.

{¶ 14} In his third and final assignment of error, appellant argues that his

constitutional right to a speedy trial was violated. Appellant asserts that his plea was not

accepted until well beyond the January 11, 2019 deadline marking 270 days following his

arrest. Conversely, the state argues that because the delay was caused by appellant’s

8.
multiple requests for continuances (and the COVID-19 pandemic), the time was not

charged against the state.

{¶ 15} Pursuant to R.C. 2945.71:

(C) A person against whom a charge of felony is pending:

(1) Notwithstanding any provisions to the contrary in Criminal Rule

5(B), shall be accorded a preliminary hearing within fifteen consecutive

days after the person’s arrest if the accused is not held in jail in lieu of bail

on the pending charge or within ten consecutive days after the person’s

arrest if the accused is held in jail in lieu of bail on the pending charge;

(2) Shall be brought to trial within two hundred seventy days after

the person’s arrest.

Further, each day in confinement “in lieu of bail on the pending charge shall be counted

as three days.” R.C. 2945.71(E).

{¶ 16} Under R.C. 2945.72, the time by which an accused must be brought to trial

may be tolled under a variety of circumstances, including:

(C) Any period of delay necessitated by the accused’s lack of

counsel, provided that such delay is not occasioned by any lack of diligence

in providing counsel to an indigent accused upon his request as required by

law;

(D) Any period of delay occasioned by the neglect or improper act

of the accused;

9.
 ***

(G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court competent to

issue such order;

(H) The period of any continuance granted on the accused’s own

motion, and the period of any reasonable continuance granted other than

upon the accused’s own motion; * * *.

{¶ 17} The docket in this case reveals the following timeline. Appellant was

arrested on May 4, 2019, and released on May 10, 2019. The six days counted as 18

under the “triple count” provision in R.C. 2945.71(E). On June 28, 2019, appellant was

indicted and his arraignment was scheduled for July 17; the matter was continued at

appellant’s request so he could obtain counsel (7 days tolled). Appellant was arraigned

on July 24, and the trial date was set for September 3, 2019.

{¶ 18} On September 3, 2019, appellant failed to appear for trial (1 day tolled); he

appeared on September 4, and at appellant’s request the trial was reset for October 1,

2019 (26 days tolled). At the request of appellant, on October 1, the trial date was

rescheduled for November 5 (35 days tolled). On November 5, the trial date was again

rescheduled for January 21, 2020 (77 days tolled). On January 21, appellant failed to

appear for trial but was present in court the next day (1 day tolled). On January 22, the

10.
trial was rescheduled for March 3, 2020 (41 days tolled). On March 3, at appellant’s

request, the matter was rescheduled for April 28, 2020 (56 days tolled).1

{¶ 19} Due to the COVID-19 pandemic and tolling order under Am Sub H.B. 197,

Sec. 22(A)(3), the court, on March 27, 2020, rescheduled the April 28 trial for June 2,

2020. The June date was then rescheduled for July 14, which is when appellant finally

entered his plea.

{¶ 20} Including the triple-count days from May 4, through May, 10, 2019, the

total number of days from appellant’s arrest until his plea is 448. According to the

court’s docket, 244 of the days were tolled due to either the actions of or by the request of

appellant. Thus, even if we counted the days properly delayed due to state mandate and

corresponding court order, the matter was still timely concluded in 204 days. Appellant’s

third assignment of error is not well-taken.

{¶ 21} On consideration whereof, we find that the September 18, 2020 judgment

of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24,

appellant is ordered to pay the costs of this appeal.

Judgment affirmed.

1
We note that although the April 28, 2020 court date was ultimately extended by the court
on March 27, appellant, by initially requesting and acquiescing to the date, should be
charged the time.

11.
 L-20-1166
State v. Myers

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. [[Applied Signature]]
JUDGE

Thomas J. Osowik, J. [[Applied Signature 2]]
JUDGE

Myron C. Duhart, J. [[Applied Signature 3]]
CONCUR JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

12.