[Cite as State v. Beeker, 2022-Ohio-1430.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. W. Scott Gwin, P.J.

 Plaintiff-Appellee Hon. William B. Hoffman, J.

Hon. Craig R. Baldwin, J.

-vsCase No. 2021 CA 00072

ANDREW BEEKER

 Defendant-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of 

Common Pleas, Case No. 20 CR 605

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 28, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JARED BRANKAMP

Licking County Prosecutor Brankamp Law, LLC

765 S. High Street

JENNY WELLS Columbus, Ohio 43206

Assistant Prosecuting Attorney

20 S. Second Street, Fourth Floor

Newark, Ohio 43055
Licking County, Case No. 2021 CA 00072 2

Hoffman, J.

{¶1} Defendant-appellant Andrew Beeker appeals the judgment entered by the 

Licking County Common Pleas Court convicting him following his pleas of guilty to four 

counts of rape (R.C. 2907.02(A)(1)(b), R.C. 2907.02(A)(2)), one count of gross sexual 

imposition (R.C. 2907.03(A)(4)), and three counts of sexual battery (R.C. 2907.02(A)(5)), 

and sentencing him to an aggregate term of incarceration of 20 years to life. Plaintiffappellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} At 7:22 a.m. on Thursday, November 5, 2020, Licking County Dispatch 

received a call from a man who advised them the friend of his daughter reported she was 

raped by Appellant. The victim was Appellant’s fourteen-year-old daughter, and reported 

the rape occurred at the residence she shared with Appellant. The victim told police the 

sexual abuse began when she was around 11 years of age. The victim reported Appellant 

engaged in numerous acts of sexual conduct and sexual contact with her, including digital 

penetration and mouth to genital contact, when she was 11, 12, and 13 years old. She 

disclosed the sexual activity occurred multiple times per week in her bedroom and 

Appellant’s bedroom. She reported the sexual activity progressed to sexual intercourse 

in 2020, and intercourse occurred four times prior to the incident which had occurred that 

morning. Law enforcement effectuated a controlled call and execution of a search 

warrant at Appellant’s home. Appellant made admissions to police at this time. A rape 

kit was collected, and Appellant’s DNA was located in the victim’s underwear, and in her 

vaginal and anal swabs. 

{¶3} On November 18, 2020, the Licking County Grand Jury returned an 

indictment charging Appellant with four counts of rape, two counts of gross sexual 
Licking County, Case No. 2021 CA 00072 3

imposition, and four counts of sexual battery. On the morning of trial, July 13, 2021, 

Appellant entered negotiated pleas of guilty to eight counts, and the State dismissed one 

count of gross sexual imposition and one count of sexual battery. The trial court continued 

the case to August 25, 2021 for sentencing.

{¶4} On August 24, 2021, Appellant filed a motion to withdraw his plea. In his 

motion, he argued his judgment at the time of his plea was impaired by mental illness, 

stress, fear, anxiety, insomnia and a list of powerful medications he was taking, including 

an increased dosage of Ativan the night before trial. He attached his medical records to 

the motion. 

{¶5} The trial court held a hearing on the motion to withdraw the plea on August 

25, 2021, prior to sentencing. In addition to the medical records provided by Appellant, 

the trial court had before it the transcript of the plea proceedings, as well as the 

presentence investigation report which included a detailed psychological evaluation of 

Appellant conducted on April 20, 2021. At the hearing, Appellant represented he had 

slept only an hour a day for over a month, and did not remember anything from the day 

of his plea. 

{¶6} The trial court overruled the motion to withdraw the plea. The trial court 

found as follows:

As the Court states on the record, the Court found in considering the 

factors set out above that the majority of the factors augured [sic] in favor 

of denying the Defendant’s motion to withdraw his plea. The Defendant’s 
Licking County, Case No. 2021 CA 00072 4

major complaint was that he could not now sleep and was unable to 

comprehend what was occurring.

The Court noted through the doctor notes presented by Defendant 

and attached to the motion that the Defendant was experiencing anxiety, 

which the Court determined to be typical of a person undergoing the stress 

of court proceedings. The Court also noted these medical records were 

done by a teledoc system whereby the Defendant could simply obtain a visit 

with his doctor. The doctor never requested the Defendant to appear 

personally, and the Court noted the treating physician with this 

documentation was a family physician and not a psychologist/psychiatrist 

or a mental health professional, nor did the doctor indicate in any place that 

the Defendant needed to be referred to a mental health professional, nor 

did she express any opinion that he should not be participating in court 

proceedings or was unable to do so. Most of the complaints made by the 

Defendant were self-serving and bore [sic] out by the medical records, 

which showed also his increasing anxiety about his impending sentencing. 

The Court noted the Defendant’s counsel was of high regard, that the plea 

colloquy appeared complete, and that no evidence of any issue involving 

mental health or otherwise appeared at the hearing or was present to 

anyone else. A presentence investigation report and its attached 

psychological evaluation are also filed under seal ·in the court record and 

made a part of the file.
Licking County, Case No. 2021 CA 00072 5

{¶7} Judgment entry, August 26, 2021.

{¶8} The trial court sentenced Appellant to an aggregate term of incarceration of 

20 years to life. It is from the August 26, 2021 judgment of conviction and sentence 

Appellant prosecutes his appeal, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DENIED APPELLANT'S PRESENTENCE MOTION TO WITHDRAW PLEA 

BECAUSE IT EFFECTIVELY USED THE WRONG STANDARD.

II. APPELLANT WAS GIVEN INEFFECTIVE ASSISTANCE OF 

COUNSEL WHEN HIS COUNSEL DID NOT REQUEST A COMPETENCY 

EVALUATION WHEN APPELLANT WAS NOT COMPETENT.

I.

{¶9} In his first assignment of error, Appellant argues the trial court abused its 

discretion in denying his presentence motion to withdraw his guilty pleas.

{¶10} 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 manifest injustice the court 

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

withdraw his or her plea.”

{¶11} Generally, a presentence motion to withdraw a guilty plea is to be freely and 

liberally granted. State v. Xie (1992), 62 Ohio St.3d 521, 526, 584 N.E.2d 715. However, 

the Xie court indicated a defendant does not have an absolute right to withdraw a guilty 

plea prior to sentencing. Id. at paragraph one of the syllabus. Rather, “[a] trial court must 
Licking County, Case No. 2021 CA 00072 6

conduct a hearing to determine whether there is a reasonable and legitimate basis for the 

withdrawal of the plea.” Id. The court further held “[t]he decision to grant or deny a 

presentence motion to withdraw a guilty plea is within the sound discretion of the trial 

court.” Id. at paragraph two of the syllabus. Accordingly, in order to find the trial court 

abused its discretion, a reviewing court must find the court's ruling was “unreasonable, 

arbitrary or unconscionable.” Id. at 527, 584 N.E.2d 715.

{¶12} In reviewing a trial court’s decision to deny a presentence motion to 

withdraw a guilty plea, this Court has previously adopted the factors as set forth in State 

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

other grounds by State v. Sims, 1st Dist. Hamilton No. C-160856, 2017-Ohio-8379, 99 

N.E.3d 1056:

In reviewing a trial court's decision regarding a motion to withdraw a 

plea, the court in State v. Fish (1995), 104 Ohio App.3d 236, 661 N.E.2d 

788, set forth a non-exhaustive list of factors to weigh when considering a 

motion to withdraw a plea. Such factors include: (1) whether the prosecution 

would be prejudiced if the plea was vacated; (2) whether the accused was 

represented by highly competent counsel; (3) whether the accused was 

given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the 

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

motion; (6) whether the motion was made within a reasonable time; (7) 

whether the motion set forth specific reasons for the withdrawal; (8) whether 

the accused understood the nature of the charges and possible penalties; 
Licking County, Case No. 2021 CA 00072 7

and (9) whether the accused was perhaps not guilty or had a complete 

defense to the crime. Id. at 240, 661 N.E.2d 788. Finally, a change of heart 

or mistaken belief about pleading guilty is not a reasonable basis that 

requires a trial court to permit the defendant to withdraw his guilty plea. 

State v. Lambros (1988), 44 Ohio App.3d 102, 103, 541 N.E.2d 632. When 

looking at the ninth factor, “the trial judge must determine whether the claim 

of innocence is anything more than the defendant's change of heart about 

the plea agreement.” State v. Kramer, Mahoning App. No. 01-C.A.-107, 

2002-Ohio-4176, ¶ 58.

{¶13} State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 2008-Ohio-7037, ¶ 

45. See, also, State v. Shelton, 5th Dist. Stark No. 2012CA00024, 2012-Ohio-4482, ¶ 

20; State v. Pickering, 5th Dist. Perry No. 20-CA-00019, 2021-Ohio-2579, ¶ 13; State v. 

Lewis, 5th Dist. Delaware No. 20 CAA 06 0025, 2021-Ohio-530, ¶ 39.

{¶14} As to the first factor, the State conceded in its memorandum contra 

Appellant’s motion to withdraw the State would not necessarily be prejudiced by the 

withdrawal of the plea. However, the State noted the victim is a juvenile who had been 

traumatized multiple times having to prepare for trial, and was able to move forward after 

the plea, believing Appellant was taking responsibility for his crimes.

{¶15} The second factor to be considered is whether Appellant was represented 

by highly competent counsel. The trial court noted at the hearing on the motion to 

withdraw the plea Appellant was represented by highly competent counsel, who had 

represented other people in similar cases. Appellant argues counsel was not competent 
Licking County, Case No. 2021 CA 00072 8

because he did not move for a competency evaluation, and because counsel misinformed 

Appellant and his family the plea could be withdrawn at any time before sentencing and 

the sentence would be ten years to life.

{¶16} We note Appellant’s contention he was misinformed regarding withdrawal 

of the plea and the sentence he would receive is unsupported by the record. Appellant 

did not raise this claim in his motion to withdraw the plea, nor did he raise it at the hearing. 

{¶17} Appellant also represents counsel said in eighteen years he has never been 

so worried about a client as he was about Appellant. Appellant mischaracterizes the 

record. Counsel for Appellant did not make this statement on the record. Instead, the 

medical records reflect Appellant told his doctor counsel made this statement. 

{¶18} A defendant is competent to stand trial if he has sufficient present ability to 

consult with his lawyer with a reasonable degree of rational understanding and has a 

rational as well as a factual understanding of the proceedings against him. State v. 

Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 82, citing Dusky v. 

United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Nothing in the 

psychological evaluation filed under seal in this case as part of the presentence 

investigation demonstrates Appellant’s mental health issues rose to the level of 

incompetence to stand trial. Likewise, while the medical records demonstrate Appellant 

experienced increasing anxiety, difficulty sleeping, and other mental health issues in the 

days leading up to trial, the medical records also demonstrate Appellant had an 

understanding of the proceedings against him. He indicated to his doctor he was worried 

he would not be able to handle court, he was afraid of becoming emotional when he saw 

his daughter in court, and he was afraid he would never see his family or his cat again. 
Licking County, Case No. 2021 CA 00072 9

While Appellant’s doctor wrote a letter expressing he was not competent at the time he 

entered the plea, this letter was dated October 20, 2021, and not filed until October 21, 

2021, after the trial court had rendered judgment on the motion to withdraw the plea and 

had sentenced Appellant. Finally, we note in his motion to continue the trial, filed April 

12, 2021, counsel for Appellant represented:

Defendant has been engaged in an in-depth psychological 

assessment at Forum Ohio with licensed clinical and forensic psychologist 

Jenna Wade. Defendant began this process with Directions counseling in 

February, 2021. Soon thereafter Defendant was referred to Forum Ohio as 

Defendant presented potential psychological issues that were beyond that 

counselor’s expertise. On February 16, 2021, Defendant engaged with 

Forum and the final interview was conducted on April 8, 2021. After 

discussions with Psy. D. Wade, it was determined that Defendant presented 

certain disorders that would be relevant to his defense in this matter. While 

these diagnoses do not appear to negate his competence, they do likely 

explain his atypical response to controlled call and demeanor, response 

with investigating and arresting officers and his atypical interactions with the 

prosecution’s witness M.B.

{¶19} Thus, it is apparent counsel for Appellant considered the issue of 

competence, and engaged Appellant with appropriate services to determine if 

competency to stand trial was a relevant consideration in this case.
Licking County, Case No. 2021 CA 00072 10

{¶20} Appellant concedes he was given a full Crim. R. 11 hearing. Likewise, 

Appellant concedes he was given a hearing on his motion to withdraw his plea, but argues 

the hearing was not impartial and the trial court did not give fair consideration to his 

arguments. We disagree. While Appellant may not agree with the conclusions the trial 

court reached on his motion to withdraw his plea, the record demonstrates the court gave 

full and fair consideration to his motion. The trial court reviewed the medical records, the 

transcript of the plea hearing, and the psychological assessment filed with the 

presentence investigation. 

{¶21} The sixth factor is whether the motion was made within a reasonable time. 

The motion was filed less than 24 hours before sentencing, shortly after counsel received 

the necessary medical records to present to the court. We find the motion was made 

within a reasonable time.

{¶22} The seventh factor is whether the motion sets forth specific reasons for 

withdrawal of the plea. The motion in the instant case sets forth specific reasons for 

withdrawal of the plea, based on the attached medical records.

{¶23} The eighth factor is whether Appellant understood the nature of the charges 

and the possible penalties at the plea hearing. We note Appellant provides information 

in his brief regarding the possible effects of the various medications Appellant was taking 

and of the specific dosages he was taking, some without reference, and some citing to 

medical articles. None of this information was provided to the trial court for consideration. 

The trial court had only the notes from Appellant’s medical records, which listed the 

medications, but did not include information regarding normal dosage, nor did the records
Licking County, Case No. 2021 CA 00072 11

demonstrate how these medications could affect Appellant’s ability to understand the plea 

proceedings or to voluntarily enter a plea. 

{¶24} Appellant cites to the letter from his doctor filed October 21, 2021, 

suggesting he was not able to make a rational decision on the day he entered his plea; 

however, the trial court did not have this medical opinion before it at the time it ruled on 

Appellant’s motion. The only notation in the medical records suggesting Appellant may 

be on a higher dosage of medication than usual at the time of the plea hearing is found 

in the medical records from July 12, 2021. The doctor wanted to prescribe Lunesta. 

Appellant was afraid of the medication because he had not used it before, and was afraid 

of oversleeping and missing court. The doctor noted, “Agreed to just have him take an 

extra Ativan before bed so he can get some rest.” The record does not indicate this extra 

Ativan is above the normal dosage, as nothing in the record demonstrates what the 

normal dosage was compared to the dosage Appellant had previously been prescribed. 

Further, this extra Ativan was suggested by a medical doctor who was fully aware 

Appellant was going to appear in court the next day. 

{¶25} The transcript of the plea hearing demonstrates Appellant appeared fully 

aware of what was occurring and was able to engage the court in appropriate dialogue 

regarding his understanding of the charges and the possible penalties. At the hearing 

on his motion to withdraw the plea, Appellant went back and forth between stating he 

couldn’t remember the plea hearing at all, to stating he didn’t understand what was 

happening at the plea hearing, which were self-contradictory statements. Further, the 

medical records from July 15, 2021, demonstrate Appellant informed the doctor he pled 

guilty, and thus he remembered entering the plea in the days following the hearing.
Licking County, Case No. 2021 CA 00072 12

{¶26} The final consideration is whether the accused was possibly not guilty, or 

had a defense to the crime. The record demonstrates in addition to the statements of the 

victim, during a controlled call, Appellant made admissions to the sexual abuse of his 

daughter. A rape kit was collected and analyzed, and Appellant’s DNA was located in the 

victim’s underwear and in vaginal and anal swabs. While Appellant cites to numerous 

articles challenging the reliability of DNA evidence, none of this information was before 

the trial court and is therefore not properly before this Court at this time.

{¶27} Considering all of the factors set forth above, we find the trial court did not 

abuse its discretion in overruling Appellant’s motion to withdraw his plea. The first 

assignment of error is overruled.

II.

{¶28} In his second assignment of error, Appellant argues his trial counsel was 

ineffective for failing to move for a competency evaluation.

{¶29} A properly licensed attorney is presumed competent. State v. Hamblin, 37 

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of 

ineffective assistance of counsel, Appellant must show counsel's performance fell below 

an objective standard of reasonable representation and but for counsel’s error, the result 

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373 (1989). In other words, Appellant must show counsel’s conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied upon as having 

produced a just result. Id. 
Licking County, Case No. 2021 CA 00072 13

{¶30} A defendant is competent to stand trial if he has sufficient present ability to 

consult with his lawyer with a reasonable degree of rational understanding and has a 

rational as well as a factual understanding of the proceedings against him. State v. 

Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 82, citing Dusky v. 

United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

{¶31} Nothing in the psychological evaluation filed under seal in this case as part 

of the presentence investigation demonstrates Appellant’s mental health issues rose to 

the level of incompetence to stand trial. Likewise, while the medical records demonstrate 

increasing anxiety, difficulty sleeping, and other mental health issues in the days leading 

up to trial, the records demonstrate Appellant had an understanding of the proceedings 

against him. He indicated to his doctor he was worried he would not be able to handle 

court, he was afraid of becoming emotional when he saw his daughter in court, and he 

was afraid he would never see his family or his cat again. While Appellant’s doctor wrote 

a letter expressing Appellant was not competent at the time he entered the plea, this letter 

was dated October 20, 2021, and not filed until October 21, 2021, after the trial court had 

rendered judgment on the motion to withdraw the plea and had sentenced Appellant. 

Finally, we note in his motion to continue the trial, filed April 12, 2021, counsel for 

Appellant represented Appellant had been undergoing an in-depth psychological 

assessment at Forum Ohio, and it appeared his diagnoses would not negate competence. 

Thus, it is apparent counsel for Appellant considered the issue of competence, and 

engaged Appellant with appropriate services to determine if competency to stand trial 

was a relevant consideration in this case.
Licking County, Case No. 2021 CA 00072 14

{¶32} We find Appellant has not demonstrated counsel’s performance fell below 

a reasonable standard of representation, nor has Appellant demonstrated had counsel 

moved for a competency evaluation, he would have been found incompetent to stand 

trial.

{¶33} The second assignment of error is overruled.

{¶34} The judgment of the Licking County Common Pleas Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur