[Cite as State v. Fisher, 2019-Ohio-3925.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-18-1162 

 

 Appellee Trial Court No. CR0201702729 

v. 

David Zacharius Fisher DECISION AND JUDGMENT

Appellant Decided: September 27, 2019 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Lauren Carpenter, Assistant Prosecuting Attorney, for appellee. 

 Sarah Haberland, for appellant. 

* * * * * 

 PIETRYKOWSKI, J. 

{¶ 1} Appellant, David Fisher appeals from the June 27, 2018 judgment of the 

Lucas County Court of Common Pleas convicting him, following acceptance of his guilty 

plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 

(1970), to a reduced charge of sexual battery, a violation of R.C. 2907.03(A)(1) and (B). 
2.

Appellant was sentenced to a six-year prison term. For the reasons which follow, we 

affirm. 

{¶ 2} On appeal, appellant asserts the following assignments of error: 

 I. The Trial Court erred when is [sic] found victim competent to 

testify. 

 II. The Trial Court erred when it accepted an Alford plea that was 

not made voluntarily by Defendant. 

 III. The Trial Court erred when it failed to allow Defendant to 

withdraw his Alford Plea. 

{¶ 3} In his first assignment of error, appellant argues that the trial court erred 

when it found the six-year-old victim was competent to testify at trial. Appellant does 

not assert on appeal that the ruling on the competency issue affected the voluntariness of 

his Alford plea. Because appellant entered an Alford plea, he has waived any error 

related to the trial court’s determination of the competency of a child witness. State v. 

Turski, 6th Dist. Lucas No. L-18-1217, 2019-Ohio-3604, ¶ 6. Therefore, we find 

appellant’s first assignment of error not well-taken. 

{¶ 4} In his second assignment of error, appellant argues the trial court erred when 

it accepted an Alford plea to the charge of sexual battery that was not voluntary because 

appellant had only 24 minutes to discuss the plea with counsel after the court ruled that 

the child was competent to testify. 
3.

{¶ 5} The record does not support appellant’s assertion. After consulting with 

counsel, appellant indicated on the record that he had reviewed the plea and had enough 

time to discuss his defense with counsel and was satisfied with his attorney’s advice. 

Therefore, we find the trial court did not err by accepting the plea. 

{¶ 6} Appellant’s second assignment of error is found not well-taken. 

{¶ 7} In his third assignment of error, appellant argues the trial court abused its 

discretion when it denied appellant’s motion to withdraw his Alford plea. Prior to 

sentencing, appellant moved to withdraw his plea on the grounds that his counsel failed 

to provide him with or explain a defense to the charges. He asserted that his counsel 

appeared to work with the prosecutor to obtain a plea. 

{¶ 8} There is no absolute right to withdraw a guilty plea after conviction, but 

prior to sentencing, and the matter is left to the sound discretion of the trial court. State v. 

Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraphs one and two of the syllabus. 

We will not reverse the trial court’s denial of the motion unless the defendant can 

establish that the trial court abused its discretion. Id. at 525. 

{¶ 9} While Crim.R. 32.1 does not give criteria for determining when withdrawal 

of a plea is justified, the Ohio Supreme Court has held that “a presentence motion to 

withdraw a guilty plea should be freely and liberally granted.” Xie at 526. The Ohio 

Supreme that has held the denial of a motion to withdraw a guilty plea is not an abuse of 

discretion: 
4.

[w]here the record affirmatively discloses that: (1) defendant’s guilty plea 

was not the result of coercion, deception or intimidation; (2) counsel was 

present at the time of the plea; (3) counsel’s advice was competent in light 

of the circumstances surrounding the indictment; (4) the plea was made 

with the understanding of the nature of the charges; and, (5) defendant was 

motivated either by a desire to seek a lesser penalty or a fear of the 

consequences of a jury trial, or both, the guilty plea has been voluntarily 

and intelligently made. 

State v. Piacella, 27 Ohio St.2d 92, 92, 271 N.E.2d 852 (1971), syllabus. We have 

previously identified the key factual considerations a trial court should make prior to 

ruling on a motion to withdraw a plea: 

(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 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. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th 

Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001). 
5.

A change of heart is an insufficient reason to permit withdrawal of the plea. State v. 

Williams, 6th Dist. Lucas No. L-15-1259, 2016-Ohio-4905, ¶ 13. 

{¶ 10} When the motion for withdrawal of the plea was asserted in the case, the 

trial court questioned appellant’s appointed counsel. Counsel indicated that he had 

explored appellant’s potential legal defenses and determined the only viable action was to 

file a motion regarding the competency of the child. Counsel provided copies of all 

documents to appellant which the state had provided to counsel. Counsel discussed the 

state’s evidence with appellant and the pros and cons of the case. Appellant 

acknowledged he had a change of heart because he did not want to serve a prison term. 

Appellant was unable to provide any explanation for the evidence against him in this 

case. The trial court continued the matter for further hearing. 

{¶ 11} At a follow-up hearing, appellant indicated that he desired to have the 

motion granted so that he could enter a plea which would result in probation because he 

pled guilty to an offense which would result in a mandatory prison sentence. The state 

responded that a therapist working with the child was concerned that allowing a change 

in plea could disrupt the healing process which began after the conviction and the child 

knew she would not have to testify. The child had developed serious sleeping disorders 

which started to be resolved after the conviction. The therapist is also concerned that 

appellant would become involved in the child’s life again before her healing is complete 

because he is the father of her half-sibling. Furthermore, the state indicated that even if 

the plea was withdrawn, there would not be any offer that would result in an offer to 
6.

plead to an offense which would lead to probation. The current plea was the state’s best 

and final way to resolve this case short of a trial. 

{¶ 12} At a third hearing, the state indicated that if the plea was withdrawn, the 

state would proceed to trial. Appellant then discuss the matter for ten minutes with his 

counsel. Afterward, appellant at first indicated that he did not want to withdraw his plea 

although he reasserted his claim of innocence. When questioned further by the judge, 

appellant again requested that the trial court rule on his motion to withdraw his plea. 

{¶ 13} Applying the nine considerations noted above, the trial court found: 1) the 

state has indicated this young victim was greatly relieved when the plea had been entered 

and that her mental health recovery would be negatively affected by allowing appellant to 

withdraw his plea; 2) appellant’s counsel is highly competent and was chosen because of 

the serious nature of the charge; 3) appellant was given a full Crim.R. 11 hearing before 

entering his plea; 4) a full hearing was given on the motion to withdraw the plea; 5) the 

trial court gave full and fair consideration of the motion to withdraw the plea; 6) the 

motion was made within a reasonable time; 7) the motion set forth the specific reasons 

for withdrawing the plea; 8) appellant had understood the nature of the charges and 

possible penalties before entering the plea; 9) while appellant asserts that he is innocent, 

he has not presented any evidence of that fact in light of the compelling evidence of the 

state. Furthermore, the court found that a change of heart is not a legitimate basis for 

granting a motion to withdraw a plea. 
7.

{¶ 14} On appeal, appellant argues that the state would not have been prejudiced 

by a withdrawal of the plea. Appellant asserts it was improper in this case to deny the 

motion because of the impact it would have upon the victim. 

{¶ 15} Upon a review of the record, and the trial court’s analysis, we find that the 

trial court did not abuse its discretion in denying the motion to withdraw. We find the 

trial court considered all nine factors. The victim’s mental health in this case was a 

relevant fact regarding the issue of whether there would be prejudice to the state because 

the victim’s mental health could affect her ability to testify. Therefore, we find 

appellant’s third assignment of error not well-taken. 

{¶ 16} Having found that the trial court did not commit error prejudicial to 

appellant and that substantial justice has been done, the judgment of the Lucas County 

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal 

pursuant to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

 
8.

 State v. Fisher 

 C.A. No. L-18-1162 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Gene A. Zmuda, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.