[Cite as State v. Watson, 2012-Ohio-13.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96803 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

THEODORE WATSON

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540963 

BEFORE: E. Gallagher, J., Jones, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: January 5, 2012 
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 ATTORNEY FOR APPELLANT

Michael P. Maloney 

24441 Detroit Road 

Suite 300 

Westlake, Ohio 44145 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Matthew Waters 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Avenue 

Cleveland, Ohio 44113 

EILEEN A. GALLAGHER, J.: 

{¶ 1} Theodore Watson (“appellant”), appeals his convictions from the 

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred 

by denying his motion to withdraw his guilty plea at his sentencing hearing. For the 

following reasons, we affirm. 

{¶ 2} Appellant was indicted on August 31, 2010 in a four count indictment 

charging him with aggravated arson in violation of R.C. 2909.02(A)(2) (Count 1), arson 

in violation of R.C. 2909.03(A)(2) (Count 2), insurance fraud in violation of R.C. 
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2913.47(B)(1) (Count 3), and insurance fraud in violation of R.C. 2913.47(B)(2) (Count 

4). Appellant initially pled not guilty to the indictment. On March 14, 2011, pursuant 

to a plea agreement between the state and appellant, the state moved to amend Count 1 to 

attempted aggravated arson. Under the plea agreement, appellant pled guilty to the 

amended Count 1 and Count 3 as indicted. Appellant further agreed to pay restitution to 

Nationwide Insurance Company in the amount of $187,836.31. All other remaining 

counts were nolled. 

{¶ 3} Appellant’s sentencing was originally scheduled for April 14, 2011 and, at 

that time, representatives of the Nationwide Insurance Company appeared to address the 

court. Counsel for the appellant was, however, unable to appear on that date and the 

court continued the sentencing after hearing, on the record, from the Nationwide 

representatives. 

{¶ 4} On April 18, 2011, appellant’s trial counsel informed the trial court that 

appellant wished to withdraw his guilty pleas. The following exchange occurred: 

APPELLANT’S COUNSEL: “But Mr. Watson, the basis for that plea, as we 

discussed between us — and not meaning to violate any attorney/client 

confidentiality, but it was a calculation on his part based upon what I had 

indicated to him was what I thought was likely to occur at sentencing. That was 

in part based upon my conversation with the court where the court did not make 

any promises to me, however, it did indicate that it was considering I think would 

be — I’m trying very hard to phrase it exactly. That it would consider something 

in the range of probation with house arrest as a potential sentence in this matter. 

Subsequently, the co-defendant, Stephanie Wainwright, was sentenced. She had 

pled out earlier; and she was, in fact, given probation. I understand that certain 

things have happened specifically with regard to what is contained in the 
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probation report, specifically Mr. Watson’s complete denial of any responsibility 

in this matter. And, second of all, statements that were made by the insurance 

people which have been relayed to me by the Court. * * * But, obviously, from 

what the Court has indicated to me, those factors might have caused it to 

re-evaluate how it initially viewed the matter * * *.” 

{¶ 5} The trial court then stated on the record that no promises had been made 

and that the court had previously indicated to trial counsel that the court would hear from 

all the parties involved, including the victims, and consider appellant’s presentence 

report prior to reaching a decision on appellant’s sentence. Trial counsel agreed with 

the court’s account but stated: 

APPELLANT’S COUNSEL: “What he is basically maintaining is that he is 

innocent, that he did not commit these offenses, he pled guilty, and it may be my 

fault in the way I communicated the information that I thought the court had 

communicated to me, it may be that I falsely created in him an impression that he 

was definitively going to get probation, but he — basic reason is he doesn’t want 

to go to prison for something that he believes he did not do, and that’s the basis 

for asking to withdraw the plea.” 

{¶ 6} The trial court at that time conducted a hearing on appellant’s motion 

considering arguments from both appellant and the state before denying appellant’s 

motion. The trial court then sentenced appellant to one year on Count 1 and one year on 

Count 2. The court ordered the sentences to run consecutively for an aggregate prison 

term of two years. Appellant brought the present appeal asserting the following sole 

assignment of error: 

{¶ 7} “The trial court erred in overruling appellant’s motion to withdraw his 

guilty plea.” 
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{¶ 8} Crim.R. 32.1 governs motions to withdraw guilty pleas and states that “[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.” 

{¶ 9} Although presentence motions to withdraw guilty pleas should be freely 

granted, “a defendant ‘does not have an absolute right to withdraw a plea prior to 

sentencing.’” State v. McGregor, Cuyahoga App. No. 86165, 2005-Ohio-5561, at ¶3, 

quoting State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. “Instead, the trial 

court ‘must conduct a hearing to determine whether there is a reasonable and legitimate 

basis for the withdrawal of the plea.’” Id. A mere change of heart is insufficient 

grounds for the withdrawal of a guilty plea prior to sentencing. State v. Benjamin, 

Cuyahoga App. No. 85071, 2005-Ohio-2322, at ¶9. 

{¶ 10} The decision of a trial court to grant or deny a motion to withdraw a guilty 

plea is reviewed using an abuse of discretion standard. State v. Van Dyke, Lorain App. 

No. 02CA008204, 2003-Ohio-4788, at ¶7, citing State v. Peterseim (1980), 68 Ohio 

App.2d 211, 428 N.E.2d 863, paragraph two of the syllabus. To constitute an abuse of 

discretion, it must be unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶ 11} In determining whether the trial court abused its discretion by denying the 

appellant’s motion to withdraw a plea, we consider the following factors: (1) whether the 
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accused was represented by highly competent counsel; (2) whether the accused was 

afforded a full hearing pursuant to Crim.R. 11 before he entered the plea; (3) whether, 

after the motion to withdraw was filed, the accused was given a complete and impartial 

hearing on the motion; and (4) whether the record reveals that the court gave full and fair 

consideration to the plea withdrawal request. State v. Weakley, Cuyahoga App. No. 

93282, 2010-Ohio-2464, at ¶12, citing Peterseim at paragraph three of the syllabus. 

{¶ 12} In the case sub judice, appellant’s argument can only be understood to 

dispute the first factor above. The record reveals that the trial court complied with 

Crim.R. 11 in its plea colloquy, conducted a hearing on appellant’s motion to withdraw 

his plea, and after hearing from both parties and considering case law on the matter, gave 

full and fair consideration to appellant’s plea withdrawal request. Furthermore, we note 

that appellant does not argue that the conduct of his trial counsel constituted ineffective 

assistance of counsel. 

{¶ 13} Appellant instead argues that the trial court abused its discretion in denying 

his motion because a misunderstanding existed where he was led to believe he would be 

placed on probation instead of being sentenced to a term of incarceration. This court 

considered an analogous argument under nearly identical facts in State v. Lambros 

(1988), 44 Ohio App.3d 102, 541 N.E.2d 632. The defendant in Lambros sought to 

withdraw his plea at sentencing because he had been led to believe he would be put on 

probation. Lambros’s attorney acknowledged that he had told Lambros that if the court 
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did not give him probation, Lambros would be permitted to withdraw his plea. The trial 

court denied any such agreement existed and denied Lambros’s motion to withdraw his 

guilty plea. 

{¶ 14} On appeal, this court noted that “[a]t the time he entered his guilty plea, 

[Lambros] acknowledged that no promises or threats were made to induce his plea and 

he understood the possible sentencing consequences. It appears from the record that 

[Lambros] attempted to withdraw his plea before sentencing only because defense 

counsel became aware that appellant would be sentenced to a period of incarceration.” 

Lambros, 44 Ohio App.3d at 103. 

{¶ 15} We held that a defendant who has a change of heart regarding his guilty 

plea should not be permitted to withdraw that plea just because he is made aware that an 

unexpected sentence is going to be imposed. Id.1

 We explained in Lambros that, 

“[o]therwise, defense counsel merely has to allege that the defendant’s plea was induced 

by some underlying ‘mistaken belief’ that the defendant would receive probation and the 

plea would be vacated.” Id. 

{¶ 16} The record in the present case, as in Lambros, refutes appellant’s 

contention that his plea was induced by a promise of a particular sentence. At 

appellant’s plea hearing the trial court reviewed the potential penalties associated with 

 1

 See, also, State v. Palatas (May 12, 1995), Montgomery App. No. CA 14735, citing our decision in 

Lambros and refusing to allow the withdrawal of a plea under similar circumstances. 
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charges to which appellant plead guilty. The court specifically explained that the “worst 

case scenario” appellant faced, “could be five years on each count, could be a total of ten 

years of incarceration if the court gave you maximum consecutive sentences.” Not 

once, but twice during the plea hearing the court asked appellant if he had been promised 

anything to change his plea and appellant responded no. Specifically in regards to the 

potential sentence of probation, the following exchange occurred: 

{¶ 17} THE COURT: “Mr. Watson, do you have any questions of me at all, the 

waiving of your trial rights, the potential penalties you face, any questions about the 

imposition of sentence, whether its community control sanctions or a term of 

incarceration, is there anything at all you don’t understand?” 

{¶ 18} APPELLANT: “I would like to know about am I eligible for probation 

[sic]?” 

{¶ 19} THE COURT: “They’re both felonies of the third degree, there’s no 

recommendation for incarceration * * * it’s what’s called non-presumption. I hear all 

the evidence at the time of sentencing and make a determination with respect to that. So 

yes, I guess your question is answer by yes, you’re someone that qualifies for a 

community control sanction. At the time of sentencing I’ll have your pre-sentence 

report, I’ll hear from the state of Ohio, I’ll hear from your lawyer and then from yourself 

before I impose any type of either community control sanction or incarceration. Does 

that answer your question?” 
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{¶ 20} APPELLANT: “Yes, your honor.” 

{¶ 21} In discussing appellant’s motion to withdraw his plea, appellant’s counsel 

further admitted that appellant’s plea was, “a calculation on his part based upon what I 

had indicated to him was what I thought was likely to occur at sentencing.” (Emphasis 

added). The trial court refuted any allegation of an agreement in regards to appellant’s 

sentence and appellant’s counsel affirmed the court’s statement. Appellant himself 

presented no testimony or evidence to suggest he was promised probation. 

{¶ 22} It is clear from the record that appellant was fully apprised of the court’s 

procedure in reaching an appropriate sentence and that appellant entered his plea based 

on a calculation as to his likely sentence. The record does not include any evidence 

demonstrating that appellant had a reasonable and legitimate basis for his motion. Only 

when appellant learned, subsequent to his plea, that probation was a less likely sentence 

than he had anticipated did he seek to withdraw his plea. On these facts we cannot say 

that the trial court abused its discretion in denying appellant’s motion to withdraw his 

plea. 

{¶ 23} Appellant’s sole assignment of error is overruled. 

{¶ 24} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said lower court to carry this 
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judgment into execution. The defendant’s conviction having been affirmed, any bail 

pending appeal is terminated. Case remanded to the trial court for execution of 

sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

EILEEN A. GALLAGHER, JUDGE 

LARRY A. JONES, P.J., and 

KENNETH A. ROCCO, J., CONCUR