[Cite as State v. Kohler, 2023-Ohio-1772.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. William B. Hoffman, P.J.

 Plaintiff-Appellee Hon. Patricia A. Delaney, J.

Hon. Craig R. Baldwin, J.

-vsCase No. 22 CAA 10 0068

TOD KOHLER

 Defendant-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of 

Common Pleas, Case No. 21 CR I 04 0237

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 25, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL MICHAEL A. MARROCCO

Prosecuting Attorney Saia and Piatt Law Firm

Delaware County, Ohio 98 North Union Street

Delaware, Ohio 43015

KATHERYN L. MUNGER

Assistant Prosecuting Attorney

Delaware County, Ohio 

145 North Union Street, 3rd Floor

Delaware, Ohio 43015
Delaware County, Case No. 22 CAA 10 0068 2

Hoffman, P.J.

{¶1} Defendant-appellant Tod C. Kohler appeals the judgment entered by the 

Delaware County Common Pleas Court convicting him following his pleas of guilty to two 

counts of sexual battery (R.C. 2907.03(A)(5)) and two counts of gross sexual imposition 

(R.C. 2907.05(A)(4)), and sentencing him to an aggregate prison term of eight years. 

Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On April 30, 2021, Appellant was indicted by the Delaware County Grand 

Jury with two counts of rape, two counts of attempted gross sexual imposition, and four 

counts of gross sexual imposition. Trial date was originally set for July 20, 2021. After 

six continuances, trial was finally scheduled to go forward on June 28, 2022.

{¶3} On the morning of trial, counsel for Appellant and the State discussed trialrelated issues with the visiting judge in chambers. The prosecutor asked Appellant’s 

attorney if there were any more plea discussions to be had now that Appellant was 

present.2 The prosecutor offered to dismiss the remaining charges in exchange for a no 

contest plea to the two counts of rape. Appellant’s counsel rejected the offer, but 

suggested a possible plea of no contest to two counts of gross sexual imposition. The 

prosecutor responded he would be willing to discuss two counts of sexual battery and two 

counts of gross sexual imposition with the victims.

{¶4} Appellant’s attorney left the courtroom at 8:49 a.m. to discuss a plea with 

Appellant. Appellant offered to plead no contest to two counts of sexual battery and two 

1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal.

2 Although these discussions were not held on the record, they were recorded by the courtroom recording 

system, and recounted in the court’s judgment entry of October 5, 2022.
Delaware County, Case No. 22 CAA 10 0068 3

counts of gross sexual imposition. The State rejected the offer, and told Appellant a guilty 

plea would be required instead of a no contest plea.

{¶5} At 11:41 a.m. the court went on the record and conducted a plea hearing, 

at which Appellant pled guilty to two counts of sexual battery and two counts of gross 

sexual imposition. Sentencing was scheduled for August 12, 2022.

{¶6} On July 29, 2022, Appellant filed a motion to withdraw his guilty pleas. The 

trial court held an evidentiary hearing, at which Appellant testified. Appellant testified 

when he showed up for trial, he was unprepared for plea negotiations. While he 

acknowledged he accepted the State’s plea offer, he testified he only pled to the 

negotiated charge to get the case over quickly. He testified he felt rushed and did not 

have time to discuss the plea with his family. He testified he answered the court’s 

questions during the plea hearing under duress because he could not enter a no contest 

plea as he wished, but instead was required to plead guilty. During the hearing on the 

motion to withdraw the plea, the trial court questioned Appellant about his feelings he 

entered the plea claiming he was under duress. Appellant acknowledged there was no 

external force or threat made against him to coerce him to enter a guilty plea. Rather, he 

was experiencing internal pressure from being forced to consider plea negotiations when 

he expected the trial to begin. The trial court overruled the motion to withdraw the guilty 

pleas on October 5, 2022.

{¶7} The case proceeded to sentencing on October 17, 2022. Appellant was 

sentenced to 48 months incarceration on each count, with the sentences for sexual 

battery to run consecutively to one another, and the sentences for gross sexual imposition 
Delaware County, Case No. 22 CAA 10 0068 4

to run concurrently to each other and to the sentences for sexual battery, for an aggregate 

term of incarceration of eight years.

{¶8} It is from the October 5, 2022 and October 17, 2022 judgments of the trial 

court Appellant prosecutes his appeal, assigning as error:

THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S 

PRE-SENTENCE REQUEST TO WITHDRAW HIS PLEA.

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

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

{¶10} A motion to withdraw a plea is governed by Crim. R. 32.1, which 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} “A presentence motion to withdraw a guilty plea should be freely and 

liberally granted.” State v. Barnes, 2022-Ohio-4486, ¶ 13, citing State v. Xie, 62 Ohio St. 

3d 521, 584 N.E.2d 715 (1992). However, a defendant does not have an absolute right 

to withdraw his or her plea, even when a motion to withdraw is made before sentencing. 

Id. Before ruling on a defendant's presentence motion to withdraw his plea, the trial court 
Delaware County, Case No. 22 CAA 10 0068 5

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

for withdrawing the plea. Id. The determination of whether there is a reasonable and 

legitimate basis for the defendant's request to withdraw a plea is within the sound 

discretion of the trial court, and must be affirmed on appeal absent an abuse of discretion 

on the part of the trial court. Id. 

{¶12} The Ohio Supreme Court has recently restated its past precedent in Xie that 

a presentence motion to withdraw a plea should be freely and liberally granted, while 

recognizing there are situations in which a denial of a presentence motion to withdraw a 

plea is not an abuse of discretion:

We begin by repeating what this court established three decades ago 

in Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715: a defendant's presentence 

motion to withdraw his guilty plea should be freely and liberally granted. This 

standard makes clear that when a defendant pleads guilty to one or more 

crimes and later wants to withdraw that plea before he has been sentenced, 

the trial court should permit him to withdraw his plea. This is the 

presumption from which all other considerations must start.

As previously noted, a defendant does not have an absolute right to 

withdraw his guilty plea, id., and denying a defendant's motion to do so has 

been upheld in various circumstances, id. at 524-525, 584 N.E.2d 715 (the 

trial court's denial of the defendant's presentence motion to withdraw his 

guilty plea was upheld when the defendant relied on his defense attorney's 

erroneous advice regarding parole eligibility). See also State v. Drake, 73 
Delaware County, Case No. 22 CAA 10 0068 6

Ohio App.3d 640, 645-646, 598 N.E.2d 115 (8th Dist. 1991) (the trial court's 

denial of the defendant's presentence motion to withdraw his guilty plea was 

upheld when the defendant pleaded guilty on a mistaken belief that his 

aggravated-robbery charge would be reduced to robbery); State v. 

Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist. 1988) (the 

trial court's denial of the defendant's presentence motion to withdraw his 

guilty plea was upheld when the defendant pleaded guilty because he 

thought that in exchange for pleading guilty, he would be sentenced to 

probation); State v. Ganguly, 10th Dist. Franklin, 2015-Ohio-845, 29 N.E.3d 

375, ¶ 15 (the trial court's denial of the defendant's presentence motion to 

withdraw his guilty plea was upheld when the defendant asserted that his 

antianxiety medication rendered his plea unknowing, unintelligent, and 

involuntary).

{¶13} Barnes, supra, at ¶¶21-22.

{¶14} In Barnes, the defendant claimed he acted in self-defense throughout the 

proceedings. The State gave Barnes’s attorney video footage from the scene, which 

counsel did not share with Barnes prior to his plea. After viewing the footage subsequent 

to his plea but prior to sentencing, Barnes believed based on his military training the 

footage supported his claim of self-defense. The Ohio Supreme Court found the trial 

court erred in overruling Barnes’s motion to withdraw his plea under these circumstances. 

Id. The Eighth District Court of Appeals had developed a set of factors under which to 

evaluate whether there is a reasonable and legitimate basis for withdrawal of a plea. The 
Delaware County, Case No. 22 CAA 10 0068 7

Ohio Supreme Court declined to apply those factors in Barnes, holding “when a defendant 

discovers evidence that would have affected his decision to plead guilty, he has a 

reasonable and legitimate basis to withdraw his guilty plea before sentencing.” Id. at ¶24. 

However, the court did not hold the factors would be inapplicable in every case where a 

presentence motion to withdraw a plea is made. See Brunner, concurring (“I would go 

further and would discard the nine-factor analysis that has been created and adopted by 

Ohio's courts of appeals in favor of a renewed focus on Crim.R. 32.1 and the guiding 

standards set forth by this court in State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 

(1992.”)). Id. at ¶28.

{¶15} The instant case does not involve discovery of evidence which would 

support a defense to the charges against Appellant. Rather, Appellant based his motion 

on feeling internal pressure to make a decision on the plea, and his wish to plead no 

contest rather than guilty. As such, we find the factors set forth by this Court in prior 

cases to be applicable to the trial court’s evaluation of Appellant’s motion, as well as our 

review of the trial court’s decision. This Court set forth these factors in State v. Gilmore,

5th Dist. Perry No. 15CA17, 2016-Ohio-2654, ¶14, as follows:

Some factors a trial court may consider when making a decision on 

a motion to withdraw a guilty plea are: (1) prejudice to the state; (2) 

counsel's representation; (3) adequacy of the Crim .R. 11 plea hearing; (4) 

extent of the plea withdrawal hearing; (5) whether the trial court gave full 

and fair consideration to the motion; (6) timing; (7) the reasons for the 

motion; (8) the defendant's understanding of the nature of the charges and 
Delaware County, Case No. 22 CAA 10 0068 8

the potential sentences; and (9) whether the defendant was perhaps not 

guilty or has a complete defense to the charge. State v. Cuthbertson, 139 

Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist. 2000), citing State v. 

Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist. 1995); Accord, State 

v. Pitts, 5th Dist. Stark No. 2012CA00234, 2014–Ohio–17, ¶ 21. No one 

Fish factor is conclusive. Cuthbertson, supra. In addition, when weighing 

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. Davison, 5th Dist. Stark No. 2008–CA–00082, 

2008–Ohio–7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01–

CA–107, 2002–Ohio–4176, ¶ 58. The good faith, credibility and weight of a 

defendant's assertions in support of a motion to withdraw guilty plea are 

matters to be resolved by the trial court, which is in a better position to 

evaluate the motivations behind a guilty plea than is an appellate court in 

reviewing a record of the hearing. Xie, supra, 62 Ohio St.3d at 525, citing 

State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

{¶16} Prejudice to the State: The change of plea hearing in the instant case 

was made on the morning of trial. The State was prepared to proceed to trial, having 

prepared the young victims to testify. Both victims in the instant case were young girls 

who alleged they were sexually abused by Appellant when they were under the age of 

ten. The memories of young witnesses tend to fade with time more than the memories 

of adult witnesses, causing prejudice to the State by time delay. See State v. O'Neill, 7th 
Delaware County, Case No. 22 CAA 10 0068 9

Dist. Mahoning No. 03 MA 188, 2004-Ohio-6805, ¶ 33 (“prejudice to the State's case can 

be seen in that the victim was appellant's daughter, who was a ten-year-old child when 

the molestation began and whose memory is more likely to dim with time than the typical 

adult witness's memory”); State v. Martre, 3rd Dist. Allen No. 1-18-61, 2019-Ohio-2072, 

¶ 14 (finding prejudice to the State in sex offense case involving a minor child because 

the nature of sex offense cases with minor child victims involves memories which do not 

improve with age, and all State witnesses were present and ready to proceed on the day 

of trial prior to acceptance of the negotiated plea agreement).

{¶17} In the instant case, Appellant entered the plea on the morning of trial, when 

the State’s witnesses were prepared and ready to testify. The victims in this case are 

Appellant’s young stepdaughters. As discussed in the case law cited above, the 

memories of children tend to fade in ways the memories of adult witnesses do not fade. 

Nearly a year had passed from the date Appellant was indicted to the time of trial. We 

find the trial court did not abuse its discretion in finding prejudice to the State.

{¶18} Timeliness of the motion to withdraw the plea: Appellant’s motion was 

filed prior to sentencing, and the trial court found the motion to be timely. 

{¶19} Counsel’s representation: Appellant testified he had no objections or 

concerns about his attorney’s representation. Appellant does not argue on appeal the 

trial court erred in its finding there were no problems with counsel’s representation.

{¶20} Adequacy of plea hearing: The trial court found the plea hearing met the 

requirements of Crim. R. 11, and Appellant makes no argument to this Court challenging 

this finding.
Delaware County, Case No. 22 CAA 10 0068 10

{¶21} Extent of plea withdrawal hearing and attention given to the motion: 

Appellant does not argue on appeal the trial court erred in its consideration of the motion. 

The record demonstrates the trial court held an evidentiary hearing on the motion, and 

issued a fourteen-page judgment setting forth its reasons for overruling the motion.

{¶22} Reasons for wanting to withdraw the plea, potential defenses, and 

whether defendant may be not guilty: The trial court addressed these factors together, 

rejecting Appellant’s claim he felt rushed to make a decision on the plea offer and did not 

have time to make a decision before entering his plea. The trial court found Appellant 

had a change of heart, which is not a sufficient basis to withdraw a plea. The trial court 

further found while Appellant continued to maintain his innocence, he had no evidence to 

offer to prove his innocence or call his guilt into question other than his denial of the 

charges. The trial court found while Appellant most likely felt some pressure when 

contemplating plea negotiations on the morning of trial, it is the “uncommon defendant 

who does not feel some sort of pressure” on the morning of trial. Judgment entry, 10/5/22, 

p. 13. Appellant argues the trial court abused its discretion in finding he merely had a 

change of heart, arguing he felt “situational distress” having to decide on a plea deal the 

morning of trial, and he continues to maintain his innocence.

{¶23} Although Appellant testified at the plea withdrawal hearing he wanted to 

enter a no contest plea, he also admitted the State did not make such an offer. The 

record is clear Appellant understood the offer was contingent upon a plea of guilty. While 

Appellant argues he did not have time to make an informed decision, the record reflects 

he had several hours during which he could confer with counsel, and he was not in 

custody during this time. He testified he was not able to talk with his father before 
Delaware County, Case No. 22 CAA 10 0068 11

changing his plea, but admitted he did not ask to telephone his father while considering 

the plea offer. 

{¶24} While Appellant preferred to enter a no contest plea, it was clear to him the 

offer was contingent on a guilty plea, and he does not make any argument he did not 

understand the ramifications of a guilty plea. Although he maintained he was innocent 

throughout, he had no defense or evidence to present to demonstrate his innocence. 

Unlike the defendant in Barnes, supra, there was no new evidence to support his claim 

of innocence discovered subsequent to the plea hearing. The trial court was in a better 

position than this Court to evaluate Appellant’s testimony at the change of plea hearing 

and to determine whether Appellant simply had a change of heart regarding his plea as 

opposed to a reasonable, legitimate reason for withdrawing the plea. See Gilmore, supra, 

citing Xie, supra. 

{¶25} After individually examining each of the factors set forth by this Court in 

Gilmore, the trial court summarized:

Kohler has presented no valid argument for withdrawing his plea. He 

had more than competent counsel, his plea hearing was lengthy and 

covered all the required topics, he was properly advised of his constitutional 

rights, and told the Court he understood the charges and penalties, and had 

had sufficient time to discuss the matter with his counsel, and was 

proceeding voluntarily.
Delaware County, Case No. 22 CAA 10 0068 12

Fundamentally, what is left is merely Kohler’s change of heart. In the 

weeks following his plea he wished he had not pled guilty. This is legally 

insufficient to allow a plea to be withdrawn.

{¶26} Judgment Entry, 10/5/22, p. 13.

{¶27} We find the trial court did not abuse its discretion in finding Appellant’s 

motion was based on a change of heart, which is insufficient to demonstrate a reasonable 

and legitimate reason for withdrawing a plea.

{¶28} The assignment of error is overruled. The judgment of the Delaware County 

Common Pleas Court is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur.