[Cite as State v. Meek, 2021-Ohio-2535.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-17
:
v. : Trial Court Case Nos. 2019-CR-485 &
: 2020-CR-193
ROBERT L. MEEK, JR. :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 23rd day of July, 2021.
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ANTHONY E. KENDELL, Atty. Reg. No. 0067242, Miami County Prosecutor’s Office,
Appellate Division, Safety Building, 201 West Main Street, Troy, Ohio 45371
Attorney for Plaintiff-Appellee
P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Robert L. Meek, Jr., appeals from his conviction for one
count of aggravated possession of drugs, in violation of R.C. 2925.11(A)/(C)(1)(c), a
felony of the second degree; one count of possession of drugs, in violation of R.C.
2925.11(A)/(C)(4)(a), a felony of the fifth degree; and one count of possession of a
fentanyl related compound, in violation of 2925.11(A)/(C)(11)(a), a felony of the fifth
degree. Meek filed a timely notice of appeal on December 2, 2020.
{¶ 2} On October 9, 2019, Meek was indicted for one count of aggravated
possession of drugs and one count of possession of drugs in Miami C.P. No. 2019-CR-
485. On May 28, 2020, Meek was charged by bill of information with one count of
possession of a fentanyl related compound in Miami C.P. No. 2020-CR-193.
{¶ 3} On May 28, 2020, Meek pled guilty to the charged offenses in both cases.
The State agreed to remain silent at sentencing but did recommend that Meek’s
sentences be served concurrently to one another. On June 22, 2020, prior to his
sentencing hearing, Meek filed a motion to withdraw his guilty pleas, and on July 29, 2020,
he filed an amended motion to withdraw his guilty pleas. The trial court held a hearing
on the motion on September 3, 2020. On September 23, 2020, the trial court overruled
Meek’s motion to withdraw his guilty pleas.
{¶ 4} On November 4, 2020, Meek was sentenced in Case No. 2019-CR-485 to
four to six years in prison for aggravated possession of drugs and to six months for
possession of drugs; in Case No. 2020-CR-193, he was sentenced to 12 months in prison
for possession of a fentanyl related compound. The trial court ordered Meek’s sentences
in both cases to be served concurrently for an aggregate sentence of four to six years in
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prison.
{¶ 5} It is from this judgment that Meek now appeals.
{¶ 6} Meek’s sole assignment of error is as follows:
TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S
MOTION TO WITHDRAW HIS GUILTY PLEAS.
{¶ 7} Meek contends that the trial court erred when it overruled his motion to
withdraw his guilty pleas because its decision was “arbitrary and unreasonable.”
Appellant’s Brief, p. 3. Specifically, Meek argues that he was misled by his attorney and
confused at the plea hearing regarding the sentence he would receive by pleading guilty
to aggravated possession of drugs, a felony of the second degree, which required the trial
court to sentence him to an indefinite term of incarceration.
{¶ 8} As this Court has previously noted:
* * * 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 a
manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.” Under
the foregoing rule, a pre-sentence motion to vacate a guilty plea “should be
freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992). Nevertheless, even under the pre-sentence standard,
the right to withdraw a plea is not absolute and a trial court retains discretion
to overrule a pre-sentence plea-withdrawal motion. Id. The pre-sentence
standard, however, is far more lenient than the “manifest injustice” standard
applicable to post-sentence motions. State v. Fugate, 2d Dist. Montgomery
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No. 21574, 2007-Ohio-26, ¶ 10.
***
But even under the more lenient pre-sentence standard, “a
defendant must show a reasonable and legitimate basis for the withdrawal
of the plea.” * * * “A change of heart is not enough,” and a trial court's
finding regarding a defendant's true motivation is entitled to deference. * * *
Likewise, a trial court's ultimate decision to grant or deny a pre-sentence
motion to withdraw a guilty plea is subject to review for an abuse of
discretion. Fugate at ¶ 10.
State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7, 10.
{¶ 9} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 87, 482
N.E.2d 1248 (1985). A decision is unreasonable if there is no sound reasoning process
that would support that decision. AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990); Feldmiller v.
Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.
{¶ 10} In evaluating whether a trial court has abused its discretion in overruling a
pre-sentence motion to withdraw a plea, this court considers the following nine factors set
forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995),
overruled on other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.):
“(1) whether the accused is represented by highly competent counsel, (2)
whether the accused was given a full Crim.R. 11 hearing before entering
the plea, (3) whether a full hearing was held on the motion, (4) whether the
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trial court gave full and fair consideration to the motion, (5) whether the
motion was made within a reasonable time, (6) whether the motion sets out
specific reasons for the withdrawal, (7) whether the accused understood the
nature of the charges and possible penalties, (8) whether the accused was
perhaps not guilty of or had a complete defense to the charge or charges,
and (9) whether the state is prejudiced by withdrawal of the plea.”
State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29, quoting State v.
Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 11.
{¶ 11} Under the more lenient pre-sentence standard, a defendant must show
“there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio
St.3d 521, 584 N.E.2d 715, at paragraph one of the syllabus. A trial court that denies a
pre-sentence motion to withdraw a guilty plea does not abuse its discretion where the
only reason given by the defendant is a change of heart. State v. Cohen, 2d Dist.
Montgomery No. 25376, 2013-Ohio-2928, ¶ 15; State v. Thomas, 2d Dist. Greene No.
2006 CA 57, 2007-Ohio-443, ¶ 11.
{¶ 12} As previously stated, Meek argues that the trial court abused its discretion
when it overruled his motion to withdraw his guilty pleas because he was confused with
respect to the indefinite nature of the sentence he would receive by pleading guilty to
aggravated possession of drugs. Meek’s argument in this regard, however, is
undermined by the record. At Meek’s change of plea hearing, the following exchange
occurred while the trial court was discussing Meek’s guilty plea in Case No. 2020-CA-
193:
TRIAL COURT: You know what most people don’t understand that, so
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you’re in the same boat as everybody, but I’m going to do my best to explain
it to you on common terms. I’ll give you some legal language, but then I’ll
break it down to what it really means.
MEEK: I appreciate that.
***
TRIAL COURT: Okay. Have you had enough time to speak to your lawyer
today about entering the plea?
MEEK: Yes, ma’am.
TRIAL COURT: Has he been able to answer all of your questions?
MEEK: Yes.
TRIAL COURT: Are you satisfied with his legal advice in order to enter a
plea?
MEEK: Definitely.
TRIAL COURT: And you have seen the Information presented here today
for Possession of a Fentanyl-Related Compound?
MEEK: Yes, ma’am.
TRIAL COURT: Do you have any questions about that.
MEEK: I do not.
(Emphasis added.) Change of Plea Transcript, p. 3, 12-13.
{¶ 13} Thereafter, the following exchange occurred regarding the imposition of
post-release control in Case No. 2020-CR-193:
TRIAL COURT: Post-release control, again, is discretionary in this case up
to three years by the Adult Probation Authority. If you violate their terms
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and conditions, they can send you back to prison for up to nine months or
up to fifty percent of your prison sentence for all violations. Do you
understand that?
MEEK: Yes, ma’am.
TRIAL COURT: If you are on post-release control and you are convicted of
a new felony, in addition to the sentences of the new felony, the court could
impose an additional one year consecutive sentence or the balance of time
on your post-release control term, whichever is great as a maximum. So
what that means is if you – let’s say Montgomery County happens after you
are released and are on post-release control, you get a new conviction in
Montgomery County, you would get a sentence there, but then the judge
would have the ability to say I’m going to give you an extra year because
you’ve now been on post-release control. Does that make sense?
MEEK: An extra year of post-release control or an extra year that –
TRIAL COURT: Extra year of prison. It would be an added sentence. So
it would be in addition to whatever sentence you’re receiving on that new
felony. It doesn’t apply to community control. It’s only post-release
control.
MEEK: Okay.
TRIAL COURT: Understand?
MEEK: Yes, ma’am.
Id. at 14-15.
{¶ 14} Lastly, in regards to Meek’s guilty plea in Case No. 2020-CR-193, the
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following exchange occurred:
TRIAL COURT: * * * In order to enter your guilty plea, you must also
understand that guilty means you make a complete admission of all of the
facts alleged in that Information. Do you understand that?
MEEK: I do.
TRIAL COURT: And do you understand by entering a guilty plea, you waive
any right to have filed a pretrial motion?
MEEK: Yes, ma’am.
TRIAL COURT: Do you have any questions about anything at this point?
MEEK: I do not.
TRIAL COURT: Do you want any additional time to speak to your lawyer?
MEEK: I – I’m – I’m good.
TRIAL COURT: Okay. And at this time, what plea did you want to enter to
that one count of Possession of a Fentanyl-Related Compound?
MEEK: A guilty plea.
TRIAL COURT: And do you do that of your own free will and voluntarily?
MEEK: I do.
TRIAL COURT: The court finds that you have made a knowing, intelligent,
and voluntary decision to enter a guilty plea to the Information. The court
also finds you’ve been informed of all of your constitutional rights, you
understand that [sic] nature of the charge against you, the possible
penalties, and the effect of a guilty plea.
MEEK: Yes, ma’am.
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Id. at 17-19.
{¶ 15} After accepting Meek’s guilty plea in Case No. 2020-CR-193, the trial court
then moved on to Meek’s guilty pleas in Case No. 2019-CR-485, and the following
exchange occurred:
TRIAL COURT: And in this particular case, did you have enough time to
speak to your lawyer about entering a plea?
MEEK: Yes, ma’am.
TRIAL COURT: Was he able to answer all of your questions?
MEEK: Yes, ma’am.
TRIAL COURT: Are you satisfied with his legal advice to enter a plea?
MEEK: I am, yes.
***
TRIAL COURT: This is the part that’s complicated. So just, again ask
questions if you don’t understand, but it’s very long and it requires a lot of
explanation. And that is for count one (aggravated possession of drugs),
it is a felony of the second degree. So do you understand that that offense
carries a mandatory prison term?
MEEK: I do.
TRIAL COURT: Do you understand that the offense carries an indefinite
sentence, meaning you will receive both a minimum and a maximum term?
MEEK: I do.
TRIAL COURT: Do you understand that the minimum term is selected from
the penalty range of two to eight years by the court?
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MEEK: Yes, ma’am.
TRIAL COURT: Now here’s the part that I need to explain it, because it’s
easy to say yes, I understand that, but this is how it works, because it’s
really a mathematical calculation. So you will receive two numbers. I will
give you a minimum sentence and a maximum sentence. The minimum
on a felony of the second [degree] is two years, but if for some reason, an
eight year sentence is imposed, the way you get to a maximum sentence is
you take fifty percent of the minimum that I give you. So if I give you eight
years, you add fifty percent, now the maximum becomes twelve. So you
would have a minimum of eight and a maximum of twelve. Does that make
sense?
MEEK: Yes, ma’am.
TRIAL COURT: So I don’t want you to think is [sic] automatically two. Does
that – are you – do you understand that?
MEEK: I do.
TRIAL COURT: Okay. And do you understand that regardless of the
number selected as the minimum, the maximum term automatically
becomes fifty percent of that?
MEEK: Yes, ma’am.
TRIAL COURT: And do understand that the minimum term would be the
mandatory term?
MEEK: Yes, ma’am.
TRIAL COURT: Do you understand that the maximum term you are facing
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on count one is twelve years?
MEEK: I do.
***
TRIAL COURT: And do you understand that the longest minimum term, I
told you the longest maximum term is twelve years, but do you understand
the longest minimum term is eight years?
MEEK: Yes, ma’am.
***
DEFENSE COUNSEL (addressing Meek): Do you understand how all of
that works? Yeah. Essentially, you’re going to get a minimum term and
whatever that term is – whatever she gives you, it runs two to eight, one of
those numbers. Once you get done it’s presumed that they’re going to
release you at the end of that. Then it’s up to them to decide. If they don’t,
if they think you have not complied or done something wrong, then they can
have another hearing, not in front of this judge, but to determine whether or
not the extra time goes on. Got it?
MEEK: So you’re saying that if I’m – if I’m given three and a half –
DEFENSE COUNSEL: Let’s say she gives you –
MEEK: -- three and a half or –
DEFENSE COUNSEL: Let’s say – let’s say she gives a three year sentence,
so your sentence at that point is three to four and a half, right? At the end
of three, you’re presumed, assuming she runs this all concurrent, at the end
of three you’re presumed that you’ve served your sentence. They can
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have a hearing over at the Ohio Department of Rehabilitation and
Correction to try to see whether you should stay the extra year and a half or
some portion of that, largely depending upon what’s been going on since
you’ve been in.
MEEK: Right.
DEFENSE COUNSEL: Do you understand all of that? That’s what she’s
trying to say.
MEEK: Yes. I – I – I’m aware of that.
***
TRIAL COURT: Do you have any questions about how that sentencing
works with a minimum term and a maximum term?
MEEK: I do not.
***
TRIAL COURT: I know I’ve asked you a million times if you understand
everything, but it’s really critical in this case because the sentencing
terminology is different and it’s very unique. It just went into effect for
cases after March 9 of 2019. So I just want to give you one more
opportunity to ask any questions about that that you may have?
MEEK: I have no questions.
TRIAL COURT: And do you want any additional time to speak to your
lawyer?
MEEK: I do not.
(Emphasis added.) Id. at p. 21-37.
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{¶ 16} We also note that the record establishes that Meek acknowledged that he
signed the plea form in Case No. 2019-CR-485 which states:
I understand that I am pleading to an offense, Count I Aggravated
Possession of Drugs, which carries an INDEFINITE SENTENCE under
Senate Bill 201. This means that I will receive a minimum and a maximum
prison term. I am NOT eligible for judicial release prior to the expiration of
the minimum term. The offense carries mandatory prison and 3 years of
mandatory Post Release Control. I understand that the Court will select
the minimum term from a range of 2-8 years. I understand the maximum
term is automatically the minimum term plus 50%. I understand the
maximum penalty I could face is 12 years. The maximum fine possible is
$15,000, of which $7,500 is mandatory.
{¶ 17} Here, the trial court thoroughly complied with the provisions of Crim.R.
11(C)(2) during the plea hearing. Meek indicated that he was satisfied with his
representation and had sufficient time to discuss the matter with his lawyer. Meek stated
that he was “college educated” but did not have a bachelor’s degree. Meek
acknowledged that he had not been threatened or promised anything other than the terms
of the plea agreement in exchange for his guilty pleas. Meek stated he was not under
the influence of drugs or alcohol. Meek did not indicate to the court that he was under
any emotional stress. Meek indicated that his plea was voluntary and acknowledged that
he understood the nature of the charges against him. The trial court explained the
maximum penalties, judicial release, and post release control. The court thoroughly
explained the rights Meek waived by entering a guilty plea. Meek acknowledged all of
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his rights, indicated that he understood them, and signed the plea forms.
{¶ 18} Upon review of the record, we find no error in the trial court's ruling. Meek
was given a complete and impartial hearing regarding the withdrawal of his pleas, and he
was given ample opportunity to explain his reasons for seeking withdrawal. Meek's
testimony, however, as the trial court found, revealed only a change of heart. The court
provided Meek a hearing on his motion to withdraw his pleas and listened to his lengthy
testimony regarding his state of mind during and after the plea hearing. The record also
reflects that Meek was represented by highly competent counsel at the plea hearing.
There is no evidence in the record to support Meek’s argument that he was misled by his
attorney at the plea hearing or that he was confused regarding the sentence he would
receive by pleading guilty to aggravated possession of drugs, a felony of the second
degree, which required the trial court to sentence him to an indefinite term of
incarceration.
{¶ 19} Simply put, there is no indication from the record that Meek's decision to file
a motion to withdraw his pleas was anything other than a mere “change of heart,” which
was not a sufficient basis upon which to withdraw his guilty pleas. Under these
circumstances, the trial court did not abuse its discretion in denying Meek's motion to
withdraw his guilty pleas.
{¶ 20} Meek’s sole assignment of error is overruled.
{¶ 21} The judgment of the trial court is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
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Copies sent to:
Anthony Kendell
P.J. Conboy, II
Stacy M. Wall