[Cite as State v. Singh, 2014-Ohio-3377.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 8-13-25 

 v. 

GURWINDER SINGH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Logan County Common Pleas Court 

Trial Court No. CR 13 03 0062 

Judgment Reversed and Cause Remanded 

Date of Decision: August 4, 2014 

 

APPEARANCES: 

 

Marc S. Triplett for Appellant 

Eric C. Stewart for Appellee 

 
Case No. 8-13-25 

-2- 

SHAW, J.

{¶1} Defendant-appellant Gurwinder Singh (“Singh”) appeals the 

December 3, 2013 judgment of the Logan County Common Pleas Court denying 

Singh’s pre-sentence motion to withdraw his guilty plea and sentencing Singh to 

serve five years in prison for Rape in violation of R.C. 2907.02(A)(2), a felony of 

the first degree. 

{¶2} The facts relevant to this appeal are as follows. On March 12, 2013, 

Singh was indicted for Rape in violation of R.C. 2907.02(A)(2), a felony of the 

first degree, Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first 

degree, and Disrupting Public Service in violation of R.C. 2909.04(A)(3), a felony 

of the fourth degree. (Doc. 1). The Bill of Particulars alleged that the charges 

stemmed from a February 25, 2013 incident wherein Singh held a woman against 

her will, knocked her cell phone out of her hand while she was attempting to call 

9-1-1 and raped her. (Doc. 21). 

{¶3} On March 19, 2013, an interpreter was appointed for Singh. (Doc. 9). 

On April 1, 2013, Singh was arraigned and pled not guilty to the charges. (Doc. 

12). 

{¶4} On October 7, 2013, Singh filed multiple motions in limine, one of 

which sought to exclude evidence regarding Singh’s citizenship. Singh was, 
Case No. 8-13-25 

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according to the Bill of Particulars, from India and had entered the United States 

illegally. (Doc. 21). 

{¶5} On October 9, 2013, Singh entered a written negotiated guilty plea 

wherein he agreed to plead guilty to the Rape charge in exchange for the State 

dismissing the remaining counts against him. 

{¶6} A plea hearing was then held that same day. At the hearing, the court 

and defense counsel had a discussion about whether Singh would be subject to a 

“mandatory” prison term or whether there was simply a presumption of prison. 

(Oct. 9, 2013, Tr. at 3). Singh’s counsel asserted his understanding that the prison 

sentence was not mandatory. Singh’s counsel also informed the court that he had 

gone over the written plea agreement line-by-line with Singh. (Id. at 5). 

{¶7} After the court and the attorneys finished their discussion regarding 

the nature of Singh’s potential sentence, the court conducted a Criminal Rule 11 

dialogue with Singh, through Singh’s interpreter. As part of that plea dialogue, the 

court said to Singh, “[t]his offense is probationable, although there is a 

presumption in favor of prison.” (Id. at 10). 

{¶8} When the court had gone through the remainder of the Criminal Rule 

11 dialogue, Singh plead guilty to Rape as charged in the indictment and the 

remaining counts were dismissed. The matter was set for sentencing at a later 

date. 
Case No. 8-13-25 

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{¶9} On October 11, 2013, a second hearing was held where the court, 

defense counsel, and the State reconvened and all agreed that a mistake had been 

made at the October 9, 2013 plea hearing. This time, the trial court, the State and 

defense counsel all agreed that rather than a presumption of prison, a prison 

sentence was mandatory for Singh in this case for the Rape charge. The court 

stated that the “plea petition” would need to be amended to reflect that changed 

language, and that the court and counsel needed “to correct [their] advice to the 

defendant.” (Oct. 11, 2013, Tr. at 2). Singh’s counsel then stated on the record 

that “it’s my intention to have further discussion with [Singh] regarding the impact 

of this modification of the Court’s advice to him.” The court then recessed, and 

no further discussion was had on the record. It is not clear from the transcript 

whether Singh was present at this hearing, as the court did not state who was in 

attendance.1

 At the very least, if Singh was present, he was never directly 

addressed by the court regarding the earlier mistake. 

{¶10} On October 23, 2013, a judgment entry was filed indicating that the 

court had “informed” Singh on October 11, 2013, that the charge of Rape under 

R.C. 2907.02(A)(2) carried a mandatory prison sentence. (Doc. 77). 

 

1

 The cover of the transcript indicates that both the State and defense counsel were present, and also 

indicates that Singh’s interpreter was present. 
Case No. 8-13-25 

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{¶11} Prior to sentencing, on November 11, 2013, Singh filed a motion to 

withdraw his guilty plea. (Doc. 79).2

 In support of his motion, Singh contended 

that despite the trial court’s October 23, 2013 judgment entry, Singh was never 

called before the court to reaffirm his plea after being informed of the mandatory 

nature of his prison sentence. (Id.) 

{¶12} On November 27, 2013, the trial court held a hearing on the motion 

to withdraw Singh’s guilty plea. At the hearing, each side presented arguments 

and the State presented the testimony of the officer who had investigated the case. 

The State also introduced the audio recording of the 9-1-1 call where Singh could 

be overheard purportedly restraining and raping the victim in this case.3

 At the 

conclusion of the hearing, the trial court overruled Singh’s motion and proceeded 

to sentence Singh. Singh was subsequently sentenced to serve five years in prison. 

{¶13} A judgment entry denying Singh’s motion and memorializing his 

sentence was filed December 3, 2013. It is from this judgment that Singh appeals, 

asserting the following assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED WHEN IT OVERRULED MR. 

SINGH’S MOTION TO WITHDRAW HIS GUILTY PLEA

 

2

 This motion was amended (Doc. 81), and supplemented (Doc. 82). 

3

 The call had connected to 9-1-1 prior to the phone being knocked out of the victim’s hands, and continued 

to record throughout the incident. 
Case No. 8-13-25 

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{¶14} In his assignment of error, Singh contends that the trial court erred 

when it overruled his motion to withdraw his guilty plea. Specifically Singh 

contends that the trial court erred by incorrectly advising Singh regarding the 

mandatory nature of his prison sentence at the original plea hearing and not 

advising him on the record regarding this issue at the subsequent hearing, thus 

rendering his plea not “knowing” and “intelligent.” 

{¶15} Crim.R. 32.1 provides in pertinent part 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.” While the 

general rule is that motions to withdraw guilty pleas, made before sentencing, are 

to be freely granted, the right to withdraw a guilty plea is not absolute. State v. 

Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. The trial court 

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

basis for the withdrawal of the plea. Id. The decision to grant or deny a motion to 

withdraw a guilty plea is within the sound discretion of the trial and will not be 

disturbed on appeal, absent an abuse of discretion. Id. at paragraph two of the 

syllabus. A trial court will be found to have abused its discretion when its 

decision is contrary to law, unreasonable, not supported by the evidence, or 
Case No. 8-13-25 

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grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 18 (2d 

Dist.). 

{¶16} There are several factors that have been delineated by this and other 

courts to assist in our review of the trial court’s determination to grant or deny a 

motion to withdraw a guilty plea, including: (1) whether the State will be 

prejudiced by withdrawal; (2) the representation afforded to the defendant by 

counsel; (3) the extent of the Crim.R. 11 hearing; (4) the extent of the hearing on 

the motion to withdraw; (5) whether the trial court gave full and fair consideration 

of 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. Prince, 3d Dist. Auglaize 

No. 2-12-07, 2012-Ohio-4111, ¶ 22; State v. Lefler. 3d Dist. Hardin No. 6-07-22, 

2008-Ohio-3057, ¶ 11; State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995). 

{¶17} In this case the State concedes, and thus the parties are in agreement, 

that Singh was improperly advised at his plea hearing regarding the mandatory 

nature of his prison sentence. The State argues, however, that the improper 

notification was subsequently corrected by the trial court such that any defect in 

the earlier plea hearing was cured. 
Case No. 8-13-25 

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{¶18} At the plea hearing in this case, when the trial court was conducting 

its Criminal Rule 11 dialogue with Singh, the trial court told Singh that the 

“offense is probationable, although there is a presumption of prison.” (Tr. at 10). 

The trial court finished its dialogue with Singh without correcting this statement. 

{¶19} Two days later, the court convened with the State and Singh’s 

counsel on the record. The State and Singh’s counsel agreed at this brief 

“hearing” that the prison term for Singh was actually mandatory for the Rape 

offense rather than “presumed.” The court and Singh’s attorney talked about the 

need to discuss this change with Singh, and the need to correct Singh’s written 

plea agreement. 

{¶20} Singh’s plea agreement appears to have originally contained a 

typewritten “Yes” as to whether the prison term was mandatory for Rape. This 

“Yes” was crossed out prior to the original plea hearing and replaced with a 

handwritten “no.” The record does appear to indicate that the plea agreement was 

subsequently altered again to accurately reflect the mandatory nature of the prison 

term. On page four of the written plea agreement, there is a handwritten 

amendment dated October 11, 2013 indicating that the prison sentence was 

mandatory rather than Singh merely having a “presumption of prison” for the 

Rape offense. (Doc. 71). There is also some further writing or initialing next to 

this amendment, perhaps indicating Singh’s initials, but it is indecipherable. (Id.) 
Case No. 8-13-25 

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{¶21} However, despite the change in the written plea agreement, and the 

State’s contention that the problems with the original plea hearing were cured in 

the subsequent hearing, Singh was never addressed by the court at the second 

hearing on the record. The second “hearing” consisted of what amounts to twoand-a-half pages of dialogue between the court, the State, and defense counsel 

clearing up that the prison sentence was mandatory rather than presumed. The 

discussion was ended without Singh ever being addressed, with the record 

indicating that Singh’s counsel intended to speak with Singh “regarding the impact 

of this modification of the Court’s advice to him.” (Tr. at 3). There is no 

indication that the court ever specifically advised Singh of the prior mistake or that 

Singh was given an opportunity to reevaluate his plea in light of the new 

information. Thus based on the record it does not seem, as the State suggests, that 

the court’s improper advisement of Singh at the original plea hearing was 

corrected at the second hearing. 

{¶22} We have held previously that a trial court’s improper advisement of a 

defendant at a plea hearing regarding whether his sentence was mandatory—and 

thus whether the defendant was subject to judicial release—rendered his plea void. 

State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-Ohio-2846, ¶ 12 (“when 

reviewing the record, it appears that there was a specific misunderstanding and 

mistake of law by court and counsel as to whether Cook was eligible for judicial 
Case No. 8-13-25 

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release. We believe a fundamental error of this nature * * * is sufficient to void 

the plea[.]”). In Cook, we found that this error constituted a manifest injustice 

sufficient to warrant withdrawal in a post-sentence guilty plea withdrawal motion, 

where a much higher standard is employed than in the case before us. 

{¶23} Similarly, in State v. Bush, 3d Dist. Union No. 14-2000-44, 2002-

Ohio-6146, ¶11, we found that a trial court’s improper notification to the 

defendant about his eligibility for judicial release warranted granting defendant’s 

motion to withdraw his plea. See also State v. Cox, 3d Dist. Union No. 14-06-47, 

2007-Ohio-6023, ¶ 18 (“[I]t is evident that the trial court initially read the 

erroneous information to Cox, but then found the error and attempted to correct 

the misinformation. However, from our reading of the transcript, we are unable to 

say the trial court clearly informed Cox regarding the correct terms of judicial 

release or that Cox understood when he would be eligible for his judicial 

release.”). In State v. Taylor, 3d Dist. Seneca No. 13-12-25, 2012-Ohio-5130, ¶¶ 

13-19, we reversed a trial court’s denial of a motion to withdraw a guilty plea 

where a defendant was “given the wrong information concerning her [potential] 

sentence.” Taylor at ¶ 15. In State v. Maney, 3d Dist. Defiance Nos. 4-12-16, 4-

12-17, 2013-Ohio-2261, we reversed the denial of a pre-sentence motion to 

withdraw a guilty plea where the defendant was incorrectly notified of the 
Case No. 8-13-25 

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maximum possible sentence and incorrectly notified of mandatory post-release 

control. Maney at ¶ 28. 

{¶24} On the basis of our prior case law we find that the trial court erred in 

failing to grant Singh’s motion as Singh was never properly informed on the 

record regarding the nature of his sentence, and he was never given an opportunity 

to evaluate his plea in light of the new information. 

{¶25} Notwithstanding the court’s error, the State makes several arguments 

to support the trial court’s denial of Singh’s pre-sentence motion to withdraw his 

guilty plea, including that the State would be prejudiced by the withdrawal. 

However, the State has not shown the unavailability of any of its witnesses, 

relying only on the difficulty of the victim of having to go through with trial. The 

State also argues that Singh was represented by highly competent counsel, and that 

there was overwhelming evidence of Singh’s guilt, particularly with regard to the 

audio recording of the 9-1-1 call where the purported rape could be overheard. 

While both of these arguments may be true, they do not negate the fact that Singh 

was improperly advised as to the nature of his plea at the plea hearing, and the 

subsequent hearing does not establish on the record that Singh was able to reevaluate his plea once he was made aware of the mandatory nature of his prison 

sentence. 
Case No. 8-13-25 

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{¶26} Accordingly, for the aforementioned reasons the judgment of the 

Logan County Common Pleas Court is reversed and the cause is remanded for 

further proceedings. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr