[Cite as State v. Harris, 2011-Ohio-6159.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96335

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOSEPH L. HARRIS

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540159 

BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: December 1, 2011 
ATTORNEY FOR APPELLANT

Kelly A. Gallagher 

P.O. Box 306 

Avon Lake, OH 44012 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Erin Stone 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

KATHLEEN ANN KEOUGH, J.: 

Defendant-appellant, Joseph Harris (“Harris”), appeals the trial court’s decision 

denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm. 

In 2010, Harris was charged with one count each of kidnapping, having weapons 

while under disability, vandalism, and domestic violence with a prior conviction 

specification. All counts contained a forfeiture specification of the firearm. Further, the 

kidnapping and domestic violence counts also contained one- and three-year firearm 

specifications. 
Harris subsequently entered into a negotiated plea agreement where he pled guilty 

to the domestic violence charge, including the one-year firearm specification, having 

weapons while under disability, and the forfeiture specification. All other charges were 

dismissed. Prior to sentencing, Harris filed a pro se motion to withdraw his guilty plea, 

asserting that he was under “duress and stress” when he entered his plea. He attached an 

affidavit, allegedly by the victim in the case, which averred that she had made false 

allegations against Harris and he was not guilty. 

After conducting a hearing on Harris’s motion, the trial judge denied the motion 

and sentenced Harris to an aggregate prison term of four years. Harris appeals, raising as 

his sole assignment of error that the trial court erred in denying his motion to withdraw 

his guilty plea. 

“Crim.R. 32.1 provides that a defendant may move to withdraw his guilty plea 

prior to sentencing. A defendant who so moves, however, does not have an absolute right 

to have his guilty plea withdrawn. The trial court must conduct a hearing to determine 

whether there is a reasonable and legitimate basis for withdrawal of the plea. State v. Xie 

(1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. The decision to grant or deny the motion 

is within the trial court’s discretion and will not be disturbed absent a finding of an abuse 

of discretion. Id.” State v. Hurst, Cuyahoga App. No. 89297, 2007-Ohio-6326, ¶4. 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, ¶9. 
In State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, 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. 

In State v. Montgomery, Cuyahoga App. No. 87246, 2006-Ohio-3850, this court 

added an additional factor for courts to apply when considering a defendant’s motion to 

withdraw his guilty plea. “In a case in which the record reflects the defendant made his 

decision to enter a guilty plea at the time his case had been called for trial, with the parties 

fully prepared to go forward, the jury about to be chosen, and the witnesses present, the 

trial court certainly acts within its discretion to include this circumstance in the 

subsequent consideration of the genuineness of the defendant’s motion to withdraw his 

guilty plea.” Id. at ¶16. 

In this case, we find that the trial court did not abuse its discretion in denying 

Harris’s motion to withdraw his guilty plea. The record before us shows that Harris was 

represented by highly competent counsel and was afforded a full hearing pursuant to 

Crim.R. 11 before he entered the plea. Harris’s counsel negotiated a plea agreement that 
substantially reduced Harris’s possible prison term and discussed with the trial court prior 

to the plea a bond reduction and the possibility of a minimum sentence. Moreover, 

during the Crim.R. 11 colloquy, Harris affirmatively stated that he was satisfied with his 

attorney’s representation. The trial court also conducted a full and complete Crim.R. 11 

hearing, thoroughly explaining the nature of proceedings, Harris’s constitutional rights, 

the plea offer, and the consequences of a guilty plea. 

Furthermore, we find that Harris was given a complete and impartial hearing on 

his motion to withdraw his plea, and the record reveals that the court gave full and fair 

consideration of his plea withdrawal request. The trial court rescheduled Harris’s initial 

sentencing hearing to properly conduct a hearing on his motion to withdraw his plea. 

Moreover, the record before us, including the transcript of the hearing on Harris’s motion, 

reveals that the trial court gave the motion full and fair consideration. 

We also find that Harris’s blanket assertion that he entered into the guilty plea 

while under “stress and duress” is insufficient to demonstrate that his plea was not made 

knowingly, intelligently, and voluntarily. Harris was not under the stress of his case 

being called for trial because his trial date was scheduled for the following week. 

Although Harris’s counsel indicated that he would withdraw as counsel if Harris wanted 

to proceed with trial, the trial court advised Harris that the trial would be continued and 

that new counsel would have to be retained or appointed. At no time did the trial court 

indicate that Harris would have to proceed pro se or that court would be biased towards 

him in any way. 
Moreover, the trial court did not abuse its discretion in finding the affidavit 

attached to Harris’s motion speculative in light of the information provided by the State in 

its brief in opposition. We find that Harris’s motion to withdraw his plea was merely a 

change of heart and, thus, an insufficient basis to grant his motion. 

Accordingly, the trial court did not abuse its discretion in denying Harris’s motion 

to withdraw his plea. The assignment of error is overruled. 

Judgment 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 issue out of this court directing the common 

pleas court to carry this 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. 

KATHLEEN ANN KEOUGH, JUDGE 

MARY J. BOYLE, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR