[Cite as State v. Harris, 2019-Ohio-1700.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

 BUTLER COUNTY 

STATE OF OHIO, : 

 Appellee, : CASE NO. CA2018-04-076 

 : O P I N I O N 

 - vs - 5/6/2019 

 : 

WAYNE HARRIS, JR., : 

 Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2017-05-0794 

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee 

Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant 

 HENDRICKSON, P.J.

{¶ 1} Appellant, Wayne Harris, Jr., appeals from a decision of the Butler County 

Court of Common Pleas denying his presentence motion to withdraw his guilty plea to the 

charge of having weapons while under disability. For the reasons discussed below, we affirm 

the decision of the trial court. 

{¶ 2} On June 14, 2017, appellant was indicted on one count of having weapons 

while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree, one 
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count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third 

degree, and one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of 

the fourth degree. According to the bill of particulars, the charges stemmed from allegations 

that, on April 30, 2017, while at a motel in Fairfield, Ohio, appellant threw a black bag 

containing a stolen firearm out of his room while the police were knocking on his door. 

Because appellant had been previously convicted of a felony offense of violence, he was 

prohibited from knowingly acquiring, having, carrying, or using a firearm. 

{¶ 3} Appellant initially pled not guilty to the charges. On January 16, 2018, following 

plea negotiations, appellant entered a guilty plea to having weapons while under disability in 

exchange for the remaining charges being dismissed. Appellant, who was represented by 

counsel, was provided with a Crim.R. 11 colloquy by the trial court before entering his guilty 

plea. After accepting appellant's plea and finding him guilty, the trial court set the matter for 

sentencing. 

{¶ 4} On February 26, 2018, the day before his sentencing hearing was scheduled to 

occur, appellant moved to withdraw his guilty plea. The state filed a memorandum in 

opposition, and a hearing on appellant's motion was held on March 12, 2018. At that time, 

appellant's counsel argued for withdrawal of the plea by citing to relevant case law and noting 

that appellant wished to have his day in court. Defense counsel contended that the state 

would not be prejudiced if withdrawal of the plea was allowed. The trial court ultimately 

denied appellant's request to withdraw his plea, finding that appellant had experienced a 

"mere change of heart" and that withdrawal of the plea would be prejudicial to the state. The 

court further noted that appellant had been represented by competent and effective legal 

counsel, afforded a complete and extensive Crim.R. 11 plea colloquy, and understood the 

nature of the charges and the possible consequences of pleading guilty. Following the denial 

of appellant's motion to withdraw his guilty plea, the trial court sentenced appellant to a 36-
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month prison term. 

{¶ 5} Appellant timely appealed, raising two assignments of error for review. 

{¶ 6} Assignment of Error No. 1: 

{¶ 7} THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING 

[APPELLANT'S] MOTION TO WITHDRAW HIS GUILTY PLEA. 

{¶ 8} In his first assignment of error, appellant argues the trial court erred by denying 

his motion to withdraw his guilty plea. 

{¶ 9} Pursuant to Crim.R. 32.1, a defendant is permitted to file a motion to withdraw 

his or her guilty plea prior to sentencing. Generally, a presentence motion to withdraw a 

guilty plea "should be freely and liberally granted." State v. Gabbard, 12th Dist. Clermont No. 

CA2006-03-025, 2007-Ohio-461, ¶ 7, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992). 

However, "[a] defendant does not have an absolute right to withdraw a guilty plea prior to 

sentencing." Xie at paragraph one of the syllabus. Rather, the trial court must conduct a 

hearing to determine whether there is a "reasonable and legitimate basis for the withdrawal 

of the plea." Id. 

{¶ 10} The decision to grant or deny a presentence motion to withdraw a guilty plea 

rests within the trial court's discretion. Id. at paragraph two of the syllabus. In turn, an 

appellate court reviews a trial court's decision under an abuse of discretion standard. State 

v. Newton, 12th Dist. Preble No. CA2014-10-011, 2015-Ohio-2319, ¶ 11. An appellate court 

defers to the judgment of the trial court because "'the good faith, credibility and weight of the 

movant's assertions in support of the motion are matters to be resolved by that court.'" Xie at 

525, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). 

{¶ 11} In determining whether to grant a presentence motion to withdraw a guilty plea, 

the trial court should consider the circumstances surrounding the defendant's plea. State v. 
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Metcalf, 12th Dist. Butler No. CA2002-12-299, 2003-Ohio-6782, ¶ 11. The factors to be 

considered include: (1) whether the state will be prejudiced by withdrawal of the plea; (2) the 

representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea 

hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court 

gave full and fair consideration to the motion; (6) whether the timing of the motion was 

reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature 

of the charges and potential sentences; and (9) whether the accused was perhaps not guilty 

or had a complete defense to the charge. State v. Ward, 12th Dist. Clermont No. CA2008-

09-083, 2009-Ohio-1169, ¶ 7. "No one factor is conclusive in the determination of whether a 

plea should be allowed to be withdrawn." State v. Rivera, 12th Dist. Butler No. CA2013-05-

072, 2014-Ohio-3378, ¶ 17. 

{¶ 12} In reviewing the aforementioned factors within the context of appellant's case, 

we find that the trial court did not abuse its discretion by denying appellant's request to 

withdraw his guilty plea. The trial court found withdrawal of the plea would have been 

prejudicial to the state. While the extent to which the state would have been prejudiced by 

appellant's withdrawal is unclear, the record reveals that appellant waited until February 26, 

2018, more than a month after entering his guilty plea and only one day prior to sentencing, 

before moving to withdraw his plea. By this point in time, more than 11 months had passed 

since the date of the offense for which appellant was arrested and charged. 

{¶ 13} The record further reveals that both appellant's initial trial attorney and the 

attorney that took over before the change of plea hearing provided competent legal 

representation. Through the efforts of trial counsel, appellant received a favorable plea deal 

that allowed him to plead guilty to a single felony count, having weapons while under 

disability, in exchange for two other felony charges being dismissed. At the time appellant 

entered his guilty plea, he indicated that he had discussed with his attorney the nature of the 
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charges he faced, any possible defenses he may have had to the charges, and the 

consequences of pleading guilty. Appellant indicated he was satisfied with the "advice, 

competence, and counsel" rendered to him by his attorney. 

{¶ 14} The record of the plea hearing also indicates that the trial court conducted an 

extensive and thorough plea colloquy prior to appellant entering his guilty plea and that 

appellant understood the nature of the charges and the potential sentence he faced as a 

result of his plea. After the trial court complied with Crim.R. 11(C)(2) by advising appellant of 

the nature of the charges he faced, the consequences of his guilty plea, and the rights he 

was waiving by pleading guilty, appellant stated that he understood the trial court's 

advisements, that nobody had threatened or coerced him into pleading guilty, and that he 

had no questions for the court or his counsel about the effect of his guilty plea. The 

prosecutor then read aloud the facts that constituted the offense of having weapons while 

under disability, and appellant acknowledged that he understood those facts and was 

admitting to them. The trial court found the plea was knowingly, intelligently and voluntarily 

entered, and the record supports the court's determination. 

{¶ 15} The record further reveals that appellant was given a full hearing on his motion 

to withdraw and that the trial court gave full and fair consideration to the motion. Although 

appellant's written motion was not accompanied by a memorandum in support and did not 

contain any citations to relevant case law, at the hearing on the motion, appellant's counsel 

cited precedential case law and provided the reasons for appellant's request to withdraw his 

plea. Counsel indicated appellant did not wish to proceed with a guilty plea but, rather, 

wished to have his day in court, with a jury of his peers deciding his guilt. Counsel did not 

indicate, however, that appellant was innocent of the charges or that meritorious defenses to 

the charges existed. The record indicates appellant had a mere "change of heart" the day 

before he was scheduled to be sentenced. As we have repeatedly recognized, a mere 
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"change of heart" is insufficient justification to allow withdrawal of a plea. Metcalf, 2003-Ohio6782 at ¶ 19; Newton, 2015-Ohio-2319 at ¶ 14; State v. Wofford, 12th Dist. Butler No. 

CA2014-10-210, 2015-Ohio-3708, ¶ 11. 

{¶ 16} Accordingly, in light of the foregoing considerations, we find that the trial court 

did not abuse its discretion in denying appellant's presentence motion to withdraw his guilty 

plea. There was no reasonable or legitimate basis for withdrawal of the plea. Appellant's 

first assignment of error is, therefore, overruled. 

{¶ 17} Assignment of Error No. 2: 

{¶ 18} APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE 

PROCESS WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL. 

{¶ 19} In his second assignment of error, appellant contends his trial counsel provided 

ineffective assistance by "fail[ing] to adequately represent [him] in the motion hearing to 

withdraw his plea." Appellant also argues counsel was ineffective for failing to file a 

memorandum in support of his motion to withdraw his guilty plea. 

{¶ 20} To prevail on an ineffective assistance of counsel claim, an appellant must 

establish that (1) his trial counsel's performance was deficient and (2) such deficiency 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 

(1984). Trial counsel's performance will not be deemed deficient unless it "fell below an 

objective standard of reasonableness." Id. at 688. To show prejudice, the appellant must 

prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id. at 694. An appellant's failure to 

satisfy one prong of the Strickland test negates a court's need to consider the other. State v. 

Madrigal, 87 Ohio St.3d 378, 389 (2000). 

{¶ 21} We find that appellant's ineffective assistance of counsel claim is without merit 
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as appellant cannot demonstrate either prong of the Strickland test. Counsel's performance 

was not deficient and did not fall below an objective standard of reasonableness. Although 

counsel failed to file a memorandum in support of appellant's motion to withdraw the guilty 

plea, counsel cited to relevant case law and provided a basis for and an argument in support 

of the motion at the March 12, 2018 hearing. Though the trial court ultimately concluded that 

appellant's basis for the motion – his desire to have his day in court in front of a jury of his 

peers – was without merit and reflected a mere "change of heart," counsel's representation 

was not deficient. "Counsel is strongly presumed to have rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional judgment." State v. 

Simpson, 12th Dist. Butler No. CA2018-06-121, 2019-Ohio-1493, ¶ 23. 

{¶ 22} Furthermore, appellant's argument that he was prejudiced by his counsel's 

alleged deficient representation is without merit. Appellant asserts that the results of his 

motion to withdraw his plea would have been different if counsel had provided additional 

"facts or evidence" to support his desire to withdraw his plea or if counsel had "articulate[d] 

any basis for [his] innocence." Appellant's arguments are predicated on the assumption that 

there was a "basis for [his] innocence" or "facts or evidence" to support his motion that were 

known to trial counsel but not presented by counsel at the hearing. Here, the unspecified 

"facts or evidence" are not part of the record before us. It would be purely speculative for us 

to conclude that the unknown "facts or evidence" would have supported withdrawal of the 

plea and resulted in a different outcome. The alleged ineffective assistance of counsel must 

be apparent from the record on appeal. State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983). 

"Any allegations of ineffectiveness based on facts not appearing in the record should be 

reviewed through * * * postconviction remedies." State v. Coleman, 85 Ohio St.3d 129, 134 

(1999). 

{¶ 23} We therefore find that appellant's argument that his trial counsel provided 
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ineffective representation is without merit. Appellant's second assignment of error is 

overruled. 

{¶ 24} Judgment affirmed. 

 S. POWELL and PIPER, JJ., concur.