[Cite as State v. Simpson , 2011-Ohio-6181.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 24266 Plaintiff-Appellee : : Trial Court Ca se No. 08-CR-2913 v. : : JAMES SIMPSON : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 2 nd day of December, 2011.

. . . . . . . . . . . MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KENT J. DEPOORTER, Atty. Reg. #0058487, 7501 Paragon Road, LL Level, Dayton, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. James Simpson appeals from his conviction and sentence following guilty pleas to charges of murder, felonious assa ult, domestic violence, evidence tampering, and grand theft. Simpson advances two assignment s of error on appeal. First, he contends th e trial court 2

 erred in denying his pre-sentence motion to withdraw the guilty pleas when he “was not provided with adequate re presentation.” Second, he claims the trial court erred in refusing to allow him to withdraw the pleas on the basi s that they were not entered knowingly, voluntarily, and intelligently. The charges against Simpson stemmed from a fatal attack on his long-time girlfriend, Allison Beaty. Police discovered Beaty dead in the basement of a home she shared with Simpson. She was found tied to a chair with a sheet stuffed in her mouth. Following his arrest, Simpson confessed to punching Beaty repeatedly with a closed fist, choking her, and then dragging her to the basement. He explained that he stuffed the sheet in her mouth to keep her quiet. Simpson told investigators that he ha d “snapped” while confr onting Beaty about her desire to end their relations hip and about the fact that she was seeing another man. Simpson initially entered pleas of not guilty and not guilty by reason of insanity. He then underwent two mental examin ations, both of which establishe d that he was sane at the time of the incident. Simpson later agreed to plead guilty to all charges, and the trial court agreed, over the State’s objection, to impose the minimum aggregate sentence available, fifteen years to life in prison. After the guilty pleas were accepted, Simpson wrote the trial court a letter asking to withdraw them. In response, the trial court a ppointed new counsel, who filed a formal motion to withdraw the guilty pleas. In support of the motion, Simpson argued that he had a “complete defense” to the murder charge b ecause he should have been charged with manslaughter. He also argued that his “menta l condition” tainted the plea process, rendering his guilty pleas not knowing, intelligent, and vol untary. (Doc. # 215). The trial court discussed 3

 the motion with counsel at length during an August 5, 2010 scheduling conference, a transcript of which is part of the record. The trial court later overruled the motion in an eleven-page decision filed August 19, 2010. (Doc. #221). Thereafter, the tr ial court sentenced Simpson to an aggregate term of fifteen years to life in prison. This appeal followed. 1 In his first assignment of error, Simpson contends the trial cour t should have allowed him to withdraw his guilty pleas for two reasons: (1) his trial counsel at the time of the pleas had a conflict of intere st and (2) he should have been ch arged with voluntary manslaughter rather than murder and wanted to seek a vol untary manslaughter inst ruction at trial. Before turning to the merits of Simpson’s argument, we must determine the standard applicable to his motion. Crim.R. 32.1 provides: “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 as ide the judgment of convicti on and permit the defendant to withdraw his or her plea.” Under the foregoin g rule, a pre-sentence motion to vacate a guilty plea “should be freely and liberally granted.” State v. Xie (1992), 62 Ohio St.3d 521, 527. Nevertheless, even under the pre-sentence sta ndard, the right to withdraw a plea is not absolute and a trial c ourt retains discretion to overrule a pre-sentence plea-withdrawal motion. Id. The pre-sentence standard, however, is far more lenient than the “manifest injustice” standard applicable to post-sentence motions. State v. Fugate , Montgomery App. No. 21574, 2007-Ohio-26, ¶10. When a defendant discovers before sentenci ng the particular sentence a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea ordinarily should

1 After Simpson filed his notice of appeal, he filed a pro se post-sentence motion to withdraw his guilty pleas. That motion is not part of the present appeal. 4

 be treated as a post-sentence motion. This is so because a defendant cannot test the sentencing waters and then move to vacat e his plea just before sentenci ng if he receives an unpleasant surprise. State v. Wallen , Montgomery App. No. 21688, 2007-Oh io-2129, ¶22. We also have recognized, however, that this reasoning doe s 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. Therefore, when a defendant files a pre-sentence motion to vacate a plea entered as part of a plea d eal with an agreed sentence, th e motion still should be treated as a pre-sentence motion and judged under the mo re lenient standard. Id.; see, also, State v. Williamson , Montgomery App. No. 21965, 2008-Ohio-4727, ¶11. On the other hand, the fact that the defendant knew what the ultimate sentence would be may be a factor that the trial court could consider to determine whether the defendant’s request to withdraw is simply a change of heart. When Simpson entered his guilty pleas in the present case, the trial court agreed to impose an aggregate sentence of fi fteen years to life in prison. Becau se the trial court agreed to this sentence, Simpson certainly knew about it prior to disposition. He could not have been unpleasantly surprised, however, because he had been made aware of the sentence when he entered the guilty pleas. Therefore, Simpson’s pre-sentence motion to withdraw those pleas must be treated as a pre-sentence motion ev en though he knew, before disposition, the sentence he would receive. 2

2 Out of caution, the trial court analyzed Simpson’s motion separately as a pre-sentence and a post-sentence motion to withdraw his pleas. Our review will focus on the pre-sentence analysis. 5

 But even under the more lenient pre-sent ence standard, “a defendant must show a reasonable and legitimate basis for the withdrawal of the plea.” Williamson , at ¶13, citing
Xie , at 525. “A change of heart is not enough,” and a trial court’s finding regarding a defendant’s true motivation is entitled to deference. Id. Likewise, a trial court’s ultimate decision to grant or deny a pre-sentence motion to withdraw a guilty plea is subject to review for an abuse of discretion. Fugate , at ¶10. Upon review, we see no abuse of discretion in the trial court’s de nial of Simpson’s motion to withdraw his guilty pleas. We reach this conclusion because Simpson failed to establish a “reasonable and leg itimate basis” for withdrawing the pleas. The record supports the trial court’s finding that he simply had a change of heart. On appeal, Simpson first contends he s hould have been permitte d to withdraw his guilty pleas because his attorney had a conflict of interest. In particular, he claims his attorney at the time of the change-of-plea hearing was a friend of the vic tim’s brother. In response, the State correctly notes that Simpson’s plea-withdrawal motion never asked the trial court to consider the friendship between his attorney and the victim’s brother as grounds for vacating the pleas. In any event, that friendship did not provide Simpson with grounds for withdrawing his guilty pleas because he knew about it before he entered the pleas. During the change-of-plea hearing, Simpson acknowledged knowing that his attorney and the victim’s brother coached youth football together. Simps on expressly waived “any potential conflicts or any problems with that relationship.” (Change- of-plea transcript at 16). Therefore, the friendship did not constitute a reasonable and legitimate basis for withdrawing the guilty pleas. 6

 We are equally unpersuaded by Simpson’s argument that he should have been permitted to withdraw his guilty pleas because he wanted to seek a voluntary manslaughter instruction at trial. Once again, the record reflects that Simpson was aware of the possibility of a manslaughter instruction, and act ually discussed the issue with hi s attorney, prior to entering his guilty pleas. Simpson concedes that one of the psychologists who examined him to determine his sanity mentioned the idea of a manslaughter charge. In addition, the record contains a letter from Simpson to the trial court in which he admits that his attorney advised him, prior to entering his guilty pleas, that he would be “unable to convince a jury to find [him] guilty of a lesser charge.” We agree with this assessment. In fact, we question whether Simpson would even have been entitled to a voluntary manslaughter instruction. The record reflects that Simpson knew his girlfriend was seeing another man before the incident in question. In hi s taped confession, Simpson stat ed that he “snapped” while talking to her about the issue and about wa nting to leave him. We see no sufficient provocation to induce sudden passion or a fit of rage reasonably resulting in Simpson’s use of deadly force. Even more extreme provocation than exists here has been found insufficient. See State v. Shane (1994), 63 Ohio St.3d 630, 637 (“The killing of a spouse* * * by a spouse * * * who has just been made aware of the victim spouse’s adultery simply is not an acceptable response to the confession of infide lity.” [parentheticals deleted]); State v. Snyder , Tuscarawas App. No. 10AP060021, 2011-Ohio-3334, ¶49 (“Even if we believe appellant’s claim that [the victim] continued to taunt h im about other men she had slept with, such evidence was not sufficient to incite a reasonable person to the us e of deadly force. The court did not err in refusing appellant's requested instruction on voluntary manslaught er.”). As a result, hope for a 7

 voluntary manslaughter instru ction and conviction did not constitute a reasonable and legitimate basis for withdrawing Simpson’s guilty pleas. We find no error in the trial court’s determination that Simpson simply had a change of heart after entering his guilty pleas. Accordingly, we overrule his fi rst assignment of error. In his second assignment of error, Simpson cl aims the trial court e rred in refusing to allow him to withdraw the guilty pleas on the basis that they were not entered knowingly, voluntarily, and intelligently. In support, S impson contends his limited education and intelligence, combined with his unawareness of his attorney’s friendship with the victim’s brother, rendered the pleas invalid. Having reviewed the two psychological evaluations in the record, as well as a transcript of the change-of-plea hearing and other materials in the record, we see no indication that Simpson was incapable of knowingly, volunt arily, and intelligently entering guilty pleas. Simpson’s own letters and pro se filings below undermine his effo rt to show that he lacked the capacity to enter valid pleas. Moreover, his re sponses to questions at the change-of-plea hearing indicate a full understanding of what was happening. Finally , the record belies Simpson’s claim that he entered his guilty pleas without knowing about the friendship between his attorney and the vi ctim’s brother. As noted above, the trial court discussed that issue with Simpson before he entered his guilty pleas. In short, we see nothing to suggest that Simpson’s guilty pleas were not knowingly, vol untarily, and intelligently entered. His second assignment of error is overruled. The judgment of the Montgomery C ounty Common Pleas Court is affirmed.

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 DONOVAN and FROELICH, JJ., concur.

Copies mailed to: Mathias H. Heck, Jr. Carley J. Ingram Kent J. DePoorter Hon. Steven K. Dankof