[Cite as State v. Gibson, 2015-Ohio-5258.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 102704 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

KENDELL J. GIBSON

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-587044-A 

BEFORE: Jones, J., Celebrezze, A.J., and Laster Mays, J. 

 

RELEASED AND JOURNALIZED: December 17, 2015 
ATTORNEY FOR APPELLANT 

Patrick E. Talty 

21875 Addington Boulevard 

Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Edward D. Brydle 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Defendant-appellant, Kendell Gibson, appeals the trial court’s denial of his 

presentence motion to withdraw his guilty plea. We affirm. 

{¶2} In 2014, Gibson was charged in three separate cases stemming from a crime 

spree he committed in Cleveland’s Slavic Village neighborhood in March 2014. In 

Cuyahoga C.P. No. CR-587044-A, which is the subject of this appeal, Gibson was 

charged with 21 counts. The case was scheduled for trial but after jury selection, Gibson 

informed the court that he wanted to take a plea bargain. Gibson pleaded guilty to eight 

counts: discharge of a firearm on or near prohibited premises, having weapons while 

under disability, two counts of carrying a concealed weapon, two counts of obstructing 

official business, assault, and tampering with evidence. 

{¶3} At the sentencing hearing, Gibson made an oral motion to withdraw his guilty 

plea. The court spoke at length with Gibson about why he wanted to withdraw his plea 

and ultimately denied the motion. The court sentenced Gibson to a total of 11 and 

one-half years in prison. 

{¶4} Gibson filed a timely notice of appeal. In his appeal, Gibson argues that the 

trial court erred when it denied his presentence motion to withdraw his guilty pleas. 

{¶5} A motion to withdraw a guilty plea is governed by the standards set forth in 

Crim.R. 32.1, which provides 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.” 

{¶6} Generally, motions to withdraw guilty pleas before sentencing are to be freely 

and liberally allowed. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 

N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); State v. 

Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980), citing Barker v. 

United States, 579 F.2d 1219, 1223 (10th Cir.1978). However, a defendant does not have 

an absolute right to withdraw a guilty plea prior to sentencing. Xie at paragraph one of the 

syllabus. In ruling on a presentence motion to withdraw a plea, the court must conduct a 

hearing and decide whether there is a reasonable and legitimate basis for withdrawal of 

the plea. Id. at 527. The decision to grant or deny such a motion is within the sound 

discretion of the trial court and will not be reversed absent an abuse of discretion. Id.

{¶7} In Peterseim, this court set forth the standard for determining whether the 

trial court has abused its discretion in denying a presentence motion to withdraw a plea: 

A trial court does not abuse its discretion in overruling a motion to 

withdraw: (1) where the accused is represented by highly competent 

counsel, (2) where the accused was afforded a full hearing, pursuant to 

Crim.R. 11, before he entered the plea, (3) when, after the motion to 

withdraw is filed, the accused is given a complete and impartial hearing on 

the motion, and (4) where the record reveals that the court gave full and fair 

consideration to the plea withdrawal request. 

Id. at paragraph three of the syllabus. 
{¶8} A review of the record in this case demonstrates that the trial court fully 

complied with the Peterseim criteria. During the sentencing hearing, Gibson’s counsel 

indicated to the court that Gibson had just informed him that he wanted to withdraw his 

guilty plea. According to counsel, Gibson’s decision was related to a confrontation with 

the sheriff’s deputies escorting Gibson because the deputies would not allow Gibson to 

address his family in the courtroom. 

{¶9} The trial court held a hearing on the oral motion, at which Gibson stated that 

he wanted to withdraw his plea because he did not understand what he was pleading to 

and his attorney was not working in his (Gibson’s) best interests. Gibson insisted it had 

nothing to do with his dispute with the deputies. 

{¶10} The state and the trial court questioned Gibson about his newfound desire to 

withdraw his guilty plea. Gibson maintained that he did not remember all the charges 

the court reviewed with him at his plea hearing and did not “fully understand everything 

that was being said [at the plea hearing].” Gibson told the court he made “two or three” 

post-plea phone calls to his attorney to tell him he wanted to withdraw his plea, but was 

not able to get in touch with him. Gibson conceded he had not written a letter to his 

attorney or the court or otherwise informed anyone that he wanted to withdraw his plea. 

{¶11} In a similar case, this court considered a defendant’s presentence motion to 

withdraw a guilty plea. State v. Bloom, 8th Dist. Cuyahoga No. 97535, 2012-Ohio-3805. 

 In Bloom, defense counsel made a motion to withdraw the defendant’s guilty plea at the 

sentencing hearing; the defendant had argued that he was innocent of the crimes that he 
had pled to just hours before the sentencing hearing. The trial court denied the motion, 

which this court affirmed, noting that the defendant was represented by competent 

counsel, was afforded a full plea hearing in accordance with Crim.R. 11, and the trial 

court held a hearing on the defendant’s motion and gave it full and fair consideration. 

This court concluded that “[a] mere change of heart regarding a guilty plea and the 

possible sentence is insufficient justification for the withdrawal of a guilty plea.” Id. at ¶ 

13, citing State v. Abdelhag, 8th Dist. Cuyahoga No. 71136, 1997 Ohio App. LEXIS 

3394, *10 (July 31, 1997). 

{¶12} In the case at bar, the record demonstrates that the trial court fully complied 

with the Peterseim criteria. Gibson was represented by highly competent counsel and 

was afforded a proper plea hearing in accordance with Crim.R. 11. Although Gibson 

maintained at the motion hearing that he did not fully understand the charges he had pled 

to, the record shows that the state, the court, and defense counsel went over the charges 

and potential penalties Gibson was facing before he entered his guilty pleas. During the 

plea hearing, Gibson expressed no confusion during the court’s colloquy regarding his 

plea. In addition, contrary to Gibson’s argument that his attorney was not acting in his 

best interests, Gibson told the trial court at his plea hearing that he was satisfied with his 

attorney. 

{¶13} Finally, the record reflects that the trial court gave the defendant a complete 

and impartial hearing on his presentence motion to withdraw his plea and full and fair 

consideration to his arguments in support of that motion as required by the third and 
fourth Peterseim factors. The court allowed Gibson to state his reasons for wanting to 

withdraw his motion and questioned him about each charge to which he had pleaded 

guilty. 

{¶14} Thus, because all four prongs set forth in Peterseim were satisfied, the trial 

court did not abuse its discretion in denying Gibson’s presentence motion to withdraw his 

guilty pleas. 

{¶15} The sole assignment of error is overruled. Judgment affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

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

the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

FRANK D. CELEBREZZE, JR., A.J., and 

ANITA LASTER MAYS, J., CONCUR