[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 : : : : : : : : : : Appellate Case No. 29039

Trial Court Case No. 2020-CR-2105 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . 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, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantow n, Ohio 45327 Attorney for Defendant-Appellant

. . . . . . . . . . . . . EPLEY, J.-2-

{¶ 1} Defendant-Appellant Charles Mille r appeals from his conviction following his guilty plea to burglary and felonious assault. He claims that t he court erred in denying his pre-sentence motion to withdraw his guilty plea. For the reason s 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 pa rties agreed that Miller would plead guilty to burglary and one count of felonious assau lt; 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 co nsider the plea offer, Miller pleaded guilty to Count 1 (burglary) and Cou nt 3 (felonious assaultserious physical harm). Per the agreement, the State dismissed the other felonious assault count and recommended a term of imprisonment of four ye ars. 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. Th e court also announced that it would grant a hearing on the matter. {¶ 5} On January 8, 2021, the court held a hearing (virtually) on Mil ler’s motion to-3- withdraw his plea. At the hearing, his original counsel testifi ed that after meeting with Miller, he was authorized to negotiate a two-year plea deal wit h the State. The prosecutor declined the two-year proposal and offered a mandatory four-yea r 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 wa s 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 ja il. He told the court that he was under the impression that he would receive a two-ye ar 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 i t 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 ge t on with it and get it over with.” Hearing Transcript at p. 56. {¶ 7} Despite wanting to “get it over with,” during direct examinatio n Miller reaffirmed his wish to withdraw his guilty plea and proceed to trial. Details of his past also were elicited during M iller’s testimony, including a 1992 motor cycle 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, kn owing that he would receive a four-year sentence, and further testified that he knew he was waiving his right to a jury

trial.-4- {¶ 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 y ears in prison. In its judgment entry overruling the motion, the court found that the testimony of Miller’s original counsel was “highly credible,” an d 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 f or a term of four years. He had at least two full weeks to evaluate that offer. When he app eared in court on November 10, 2020, the four-year term was not a surprise to Defendant. D efendant made a knowing, voluntary and intelligent plea of guilty to the agreed four-yea r 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, s ix-year maximum term in accordance with the Reagan Tokes Act. {¶ 10} Miller appeals from his conviction and raises a single assignme nt of error.

II. The court did not abuse its discretion {¶ 11} Miller argues that the trial cour t erred when it denied his mot ion to withdraw his guilty plea. {¶ 12} Crim.R. 32.1 states that “[a] motion to withdraw a plea of guil ty or no contest may be made only before sentence is imposed; but to correct a m anifest injustice the court after sentence may set aside the judgment of conviction a nd permit the defendant to withdraw his or her plea.” The Supreme Court of Ohio has hel d that a pre-sentence motion to withdraw a plea “should be freely and liberally grant ed.” State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, withdrawing a p re-sentence plea is not-5- 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 ab use 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 act ion 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 rev iewing court should be guided by a presumption that the trial court wa s 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 particula r sentence a trial court intends to impose, we have held that a pre-senten ce 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 jus t 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 a s part of a plea bargain, and the trial court has indicated that it is joining in the agr eement, there has been no ‘unpleasant surprise’ to the defendant after ‘testing the sente ncing waters,’ which is the rationale for the stricter standard for a post-sentence motion to withdraw a plea.” Id

.-6- Therefore, when a defendant files a pre-sentence motion to vaca te 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 i n overruling a pre-sentence motion to withdraw a plea, we have adopted the nin e 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) whethe r the accused is represented by highly competent counsel, (2) whether the accuse d 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 consider ation to the motion, (5) whether the motion was made within a reasonable time, (6) wheth er the motion sets out specific reasons for the withdrawal, (7) whether the accused un derstood the nature of the charges and possible penalties, (8) whether the accused was per haps not guilty of or had a complete defense to the charge or charges, and (9) whether th e 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 discreti on when it denied Miller’s moti on. {¶ 17} As to the first factor, Miller was represented by highly compet ent counsel. At the time of the motion hearing, his original trial counsel h ad practiced law for more than-7- three decades, with extensive experience in criminal defense ma tters ranging from misdemeanors to murder. The first factor weighs in favor of den ial. {¶ 18} The second factor also militates toward denial because Miller w as 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 bel ies 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 m ade his plea knowingly, intelligently, and voluntarily. This factor weighs in favor of denial. {¶ 19} A full hearing with testimony from multiple witnesses (includin g 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 ma tter, the court reviewed and considered the evidence. It then published a detailed, three-pa ge 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 t ime) and six (whether the motion sets out specific reasons for the withd rawal) 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 seve re injuries, including-8- apparent head trauma. In addition, Miller was sent for a compet ency 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 lend s any credibility to that claim, and certainly nothing that would demonstrate he would be succes sful 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 chang e of heart; Miller’s counsel adm itted 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 did n’t sign up for this; I can’t believe I did that.’ ” Even though pre-sentence motions to withdraw ple as are to be “freely and liberally granted,” we cannot say that the trial court abused i ts 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.-9-

. . . . . . . . . . . . .

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. J. Joshua Rizzo Kirsten Knight Hon. Mary L. Wiseman