[Cite as State v. Miller, 2021-Ohio-2606.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

CHARLES MILLER 

Defendant-Appellant 

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Appellate Case No. 29039 

Trial Court Case No. 2020-CR-2105 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 30th day of July, 2021. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

 Attorney for Plaintiff-Appellee 

 

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327 

 Attorney for Defendant-Appellant 

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EPLEY, J. 
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{¶ 1} Defendant-Appellant Charles Miller appeals from his conviction following his 

guilty plea to burglary and felonious assault. He claims that the court erred in denying his 

pre-sentence motion to withdraw his guilty plea. For the reasons that follow, the trial 

court’s judgment will be affirmed. 

I. Facts and Procedural History 

{¶ 2} In July 2020, Miller was indicted on one count of burglary and two counts of 

felonious assault. After several months of negotiations, the parties agreed that Miller 

would plead guilty to burglary and one count of felonious assault; in exchange, the State 

would dismiss the remaining felonious assault charge and agree to recommend a fouryear prison term. 

{¶ 3} On November 10, 2020, after being granted additional time to consider the 

plea offer, Miller pleaded guilty to Count 1 (burglary) and Count 3 (felonious assaultserious physical harm). Per the agreement, the State dismissed the other felonious 

assault count and recommended a term of imprisonment of four years. The court made it 

clear that it would be imposing the agreed upon sentence as it fit within the structure of 

the Reagan Tokes Act. 

{¶ 4} Miller appeared for disposition on November 17, 2020, at which time he 

informed the court that he wished to withdraw his guilty plea, stating that he was the victim 

and that he did not do anything wrong. The trial court informed Miller that it would remove 

his attorney (he was now a witness) and appoint new counsel. The court also announced 

that it would grant a hearing on the matter. 

{¶ 5} On January 8, 2021, the court held a hearing (virtually) on Miller’s motion to 
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withdraw his plea. At the hearing, his original counsel testified that after meeting with 

Miller, he was authorized to negotiate a two-year plea deal with the State. The prosecutor 

declined the two-year proposal and offered a mandatory four-year term. Counsel testified 

that he relayed the State’s counteroffer, that Miller accepted it, and that he explained the 

Reagan Tokes Act implications. He further testified that he was unaware of Miller’s 

intention to withdraw his plea until just before the sentencing hearing. 

{¶ 6} Miller also testified at the virtual hearing, appearing from jail. He told the court 

that he was under the impression that he would receive a two-year sentence, and when 

he heard four years, he “freaked out.” Nevertheless, he pleaded guilty, because, he 

asserted, he wanted to “get it over with.” Miller stated: 

I just wanted it over with. I told him that from day one. Get it over with. I just 

wanted to be done with it. I still just want it to be done with. * * * [G]o ahead 

and give me four years so I can get it over with, let’s just get on with it and 

get it over with.” 

Hearing Transcript at p. 56. 

{¶ 7} Despite wanting to “get it over with,” during direct examination Miller 

reaffirmed his wish to withdraw his guilty plea and proceed to trial. Details of his past also 

were elicited during Miller’s testimony, including a 1992 motorcycle accident that left him 

seriously and permanently injured and resulted in a decline in mental aptitude. It was also 

claimed that Miller acted in self-defense in the present case. During cross-examination, 

however, Miller admitted that he voluntarily pleaded guilty, knowing that he would receive 

a four-year sentence, and further testified that he knew he was waiving his right to a jury 

trial. 
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{¶ 8} On February 16, 2021, the trial court overruled Miller’s motion and sentenced 

him to a minimum term of four years and a maximum term of six years in prison. In its 

judgment entry overruling the motion, the court found that the testimony of Miller’s original 

counsel was “highly credible,” and in contrast, it found Miller to be not credible. The court 

stated: “Based upon those credibility determinations, the court finds that Mr. Miller was 

advised by at least October 27, 2020, that the plea offer was for a term of four years. He 

had at least two full weeks to evaluate that offer. When he appeared in court on November 

10, 2020, the four-year term was not a surprise to Defendant. Defendant made a knowing, 

voluntary and intelligent plea of guilty to the agreed four-year term of imprisonment.” 

February 23, 2021 Decision, Order and Entry. 

{¶ 9} After overruling Miller’s motion, the trial court proceeded to disposition and 

sentenced him to the agreed upon mandatory four-year minimum, six-year maximum term 

in accordance with the Reagan Tokes Act. 

{¶ 10} Miller appeals from his conviction and raises a single assignment of error. 

II. The court did not abuse its discretion 

{¶ 11} Miller argues that the trial court erred when it denied his motion to withdraw 

his guilty plea. 

{¶ 12} Crim.R. 32.1 states that “[a] motion to withdraw a plea of guilty or no contest 

may be made only before sentence is imposed; but to correct a manifest injustice the 

court after sentence may set aside the judgment of conviction and permit the defendant 

to withdraw his or her plea.” The Supreme Court of Ohio has held that a pre-sentence 

motion to withdraw a plea “should be freely and liberally granted.” State v. Xie, 62 Ohio 

St.3d 521, 527, 584 N.E.2d 715 (1992). However, withdrawing a pre-sentence plea is not 
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a given because “a trial court retains discretion to overrule a presentence plea-withdrawal 

motion.” Id. 

{¶ 13} We review decisions on motions to withdraw a guilty plea for abuse of 

discretion. State v. Greenlee, 2d Dist. Montgomery Nos. 28467, 28468, 2020-Ohio-2957, 

¶ 11. To constitute an abuse of discretion, a trial court’s action must be arbitrary, 

unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio 

St.3d 230, 232, 466 N.E.2d 875 (1984). When applying the abuse of discretion standard, 

an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio 

State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). Rather, “a reviewing 

court should be guided by a presumption that the trial court was correct.” State ex rel. 

Montgomery v. Pakrats Motorcycle Club, Inc., 118 Ohio App.3d 458, 466, 693 N.E.2d 

310 (9th Dist.1997). 

{¶ 14} When a defendant discovers just-before sentencing the particular sentence 

a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea 

generally should be treated as a post-sentence motion. State v. Simpson, 2d Dist. 

Montgomery No. 24266, 2011-Ohio-6181, ¶ 8. “This is so because a defendant cannot 

test the sentencing waters and then move to vacate his plea just before sentencing if he 

receives an unpleasant surprise.” Id., citing State v. Wallen, 2d Dist. Montgomery No. 

21688, 2007-Ohio-2129, ¶ 22. We also have noted, however, that this reasoning does 

not apply to agreed sentences. “Where a sentence is agreed to as part of a plea bargain, 

and the trial court has indicated that it is joining in the agreement, there has been no 

‘unpleasant surprise’ to the defendant after ‘testing the sentencing waters,’ which is the 

rationale for the stricter standard for a post-sentence motion to withdraw a plea.” Id. 
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Therefore, when a defendant files a pre-sentence motion to vacate a plea entered as part 

of a plea deal with an agreed sentence, the motion still should be treated as a presentence motion and judged under the more lenient standard. Id.; see also State v. 

Williamson, 2d Dist. Montgomery No. 21965, 2008-Ohio-4727, ¶ 11. 

{¶ 15} In evaluating whether a trial court has abused its discretion in overruling a 

pre-sentence motion to withdraw a plea, we have adopted the nine factors set forth in 

State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E. 2d 788 (1st Dist.1995), overruled on 

other grounds, State v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.); State v. Candy, 

2d Dist. Miami No. 2019-CA-11, 2020-Ohio-1401, ¶ 12: (1) whether the accused is 

represented by highly competent counsel, (2) whether the accused was given a full 

Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the 

motion, (4) whether the trial court gave full and fair consideration to the motion, (5) 

whether the motion was made within a reasonable time, (6) whether the motion sets out 

specific reasons for the withdrawal, (7) whether the accused understood the nature of the 

charges and possible penalties, (8) whether the accused was perhaps not guilty of or had 

a complete defense to the charge or charges, and (9) whether the state is prejudiced by 

withdrawal of the plea. 

{¶ 16} Consideration of these factors involves a balancing test and no single factor 

is dispositive. State v. Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, 

¶ 11. In this case, a consideration of the factors leads to the determination that the trial 

court did not abuse its discretion when it denied Miller’s motion. 

{¶ 17} As to the first factor, Miller was represented by highly competent counsel. 

At the time of the motion hearing, his original trial counsel had practiced law for more than 
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three decades, with extensive experience in criminal defense matters ranging from 

misdemeanors to murder. The first factor weighs in favor of denial. 

{¶ 18} The second factor also militates toward denial because Miller was given a 

full Crim.R. 11 hearing before the court accepted his plea. And while he, on appeal, claims 

that he did not fully understand the plea offer, the record belies that assertion. Miller 

appeared twice before the court for a plea hearing after being granted more time to 

consider and discuss it with counsel. The court found that he made his plea knowingly, 

intelligently, and voluntarily. This factor weighs in favor of denial. 

{¶ 19} A full hearing with testimony from multiple witnesses (including Miller 

himself) and closing arguments was held on January 8, 2021. The third factor cuts against 

Miller. 

{¶ 20} The fourth factor, whether the trial court fully considered the motion, also 

militates against Miller. After having a full hearing on the matter, the court reviewed and 

considered the evidence. It then published a detailed, three-page decision which 

analyzed the nine-factor test from Fish. This factor also weighs in favor of the motion’s 

denial. 

{¶ 21} Factors five (whether the motion was made within a reasonable time) and 

six (whether the motion sets out specific reasons for the withdrawal) weigh in Miller’s 

favor. Shortly after being appointed, and only a month after he entered his plea, Miller’s 

new counsel filed a motion to withdraw the plea citing specific reasons. 

{¶ 22} The seventh factor, whether Miller understood the nature of the charges and 

possible penalties, is neutral in this case. Miller’s attorney elicited testimony at the motion 

hearing about an accident in 1992 in which Miller suffered severe injuries, including 
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apparent head trauma. In addition, Miller was sent for a competency evaluation in August 

2020. On the other hand, Miller was ultimately found competent to assist in his defense, 

and the trial court found that he voluntarily entered his plea. This factor weighs neither for 

nor against denial. 

{¶ 23} The eighth factor (whether the accused was not guilty or had a complete 

defense) weighs in favor of denial. Miller contends that he was stabbed and acted in selfdefense, but there is nothing in the record before us that lends any credibility to that claim, 

and certainly nothing that would demonstrate he would be successful with the affirmative 

defense. The eighth factor favors affirming the trial court. 

{¶ 24} The final factor, whether the State would be prejudiced by the withdrawal of 

the plea, favors Miller. The State concedes this point. 

{¶ 25} We conclude that, on balance, the Fish factors weigh in favor of affirming 

the trial court’s decision to deny Miller’s motion to withdraw his guilty plea. Ultimately, this 

appears to be a case of a change of heart; Miller’s counsel admitted as much during the 

closing arguments of the motion hearing when he concluded: “Mr. Miller went back to his 

jail cell and thought better of it and just thought ‘man, I didn’t sign up for this; I can’t believe 

I did that.’ ” Even though pre-sentence motions to withdraw pleas are to be “freely and 

liberally granted,” we cannot say that the trial court abused its discretion in this case. 

{¶ 26} The assignment of error is overruled. 

III. Conclusion 

{¶ 27} Miller’s assignment of error is overruled, and the judgment of the trial court 

will be affirmed. 
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DONOVAN, J. and WELBAUM, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

J. Joshua Rizzo 

Kirsten Knight 

Hon. Mary L. Wiseman