[Cite as State v. Candy , 2020-Ohio-1401.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO Plaintiff-Appellee

v. AARON T. CANDY Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-11

Trial Court Case No. 2018-CR-16 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 10th day of April, 2020.

. . . . . . . . . . . JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45 373 Attorney for Plaintiff-Appellee MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second St reet, Suite 2103, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . TUCKER, P.J.-2- {¶ 1} Defendant-appellant Aaron Candy appeals from his conviction fol lowing a plea of guilty to one count of felony nonsupport of dependents. Candy contends the trial court should have permitted him to withdraw his plea. He furth er contends trial counsel was ineffective with regard to Candy’s motion to withdraw his p lea. Finally, Candy claims that his plea was not made knowingly, voluntarily and intellige ntly. For the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History {¶ 2} On January 17, 2018, Candy was indicted on one count of nonsupp ort of dependents in violation of R.C. 2919.21(B), a felony of the fou rth degree. The indictment was based upon allegations Candy had failed to pay child suppor t from March 10, 2010 to May 26, 2012. A warrant was issued for Candy’s arrest. The warrant was executed on April 5, 2018. Thereafter, Candy entered a plea of not guil ty. He was granted an own recognizance bond and a pretrial conference was set for Apr il 23, 2018. On April 20, 2018, Candy filed a motion to continue the pretrial confere nce, asserting he needed

to travel to Texas and California in order to obtain documents from former employers that he claimed would demonstrate he had paid child support during t he time period set forth in the indictment. The trial court granted the motion and resc heduled the pretrial conference for May 7, 2018. Following the pretrial conference, the trial court set a final pretrial conference for July 23, 2018 with trial to commence on August 7, 2018. {¶ 3} On July 26, 2018, attorney Patrick Mulligan entered as substitu te counsel for Candy and filed a motion for a continuance of trial. The trial court granted the motion and trial was rescheduled for October 10, 2018. On September 1 8, 2018, Candy filed-3- another motion seeking to continue the trial date. In the moti on, Candy alleged he was

incarcerated in Texas. The court denied the motion and issued a capias for Candy’s

arrest. {¶ 4} Candy appeared before the court on December 27, 2018, at which time the parties indicated that a plea agreement had been reached. Cand y agreed to plead guilty to the charged offense and to pay restitution in the amount of $4,689.17. The agreement provided the restitution had to be paid by the time of the sent encing. In exchange, the State agreed to recommend community control sanctions. The tri al court conducted a Crim.R. 11 hearing and Candy entered a plea of guilty. Candy w as granted another own recognizance bond and the matter was set for sentencing on Febr uary 7, 2019. {¶ 5} On the date set for sentencing, Candy appeared with counsel and indicated he wanted to withdraw his plea. Counsel stated that he had met with Candy “several weeks ago” and Candy had expressed the desire to withdraw the p lea. Tr. p. 3. Counsel further stated that he did not agree with such action a nd that he was “not willing

to do that.” Id. Counsel also stated: Candy believes he has “legal reasons not - - for the state not to be able to prosecute him. He also believes he has a defense in that he has paid child support pretty regularly since 2013 and that has been deducted from his pay for, I want to say, Darke and Montgomery County. For some reason, Miami County has managed not to be able to collect money but other counties have.” Id. The trial court continued the matter in order to permit Candy time to fil e motions regarding withdrawal of the plea and substitution of counsel. {¶ 6} On February 21, 2019, Mulligan filed a motion to withdraw the p lea. The matter was set for a hearing on March 15, 2019. At the hearing , Mulligan appeared and-4- stated that he had spoken to Candy the prior evening at which t ime Candy informed him that he would not appear for the hearing. Mulligan also filed a motion to withdraw as counsel on that date. On March 19, 2019, the trial court denie d the motion to withdraw the plea. On the same date, an order was filed permitting Mull igan to withdraw as counsel. Another order was entered revoking bond and issuing a capias for Candy’s

arrest. {¶ 7} A sentencing hearing was conducted on July 26, 2019. Candy app eared with new counsel. The trial court imposed a prison sentence of 16 months. Candy appeals.

II. Withdrawal of Guilty Plea {¶ 8} Candy’s first assignment of error states:

THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION TO

WITHDRAW HIS GUILTY PLEA WA S AN ABUSE OF DISCRETION. {¶ 9} Candy contends his motion to withdraw his plea should have been granted. {¶ 10} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty o r no contest may be made only before sentence is imposed; but to correct man ifest injustice the court after sentence may set aside the judgment of conviction and per mit the defendant to withdraw his or her plea.” A presentence motion to withdraw a guilty plea “should be freely and liberally granted.” State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Nevertheless, the right to withdraw a plea is not absolute, and a trial court retains discretion to overrule a presentence motion to withdraw a plea. Id. {¶ 11} We review trial court decisions on motions to withdraw pleas fo r abuse of-5- discretion. State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions t hat are unconscionable or arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning pr ocess that would support that decision.” Id. {¶ 12} This court has adopted nine factors to consider when evaluating whether a trial court has abused its discretion in overruling a presenten ce motion to withdraw a plea.

State v. Warrix , 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29. Those f actors,

which are 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.), are: (1) whether the accused is represented by highly competent coun sel, (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 motio n sets out specific reasons for the withdrawal, (7) whether the accused un derstood the nature of the charges and possible penalties, (8) whether the a ccused was perhaps not guilty of or had a complete defense to the charge o r charges, and (9) whether the state is prejudiced by withdrawal of the pl ea.-6- {¶ 13} None of these factors is accorded more weight than the others. Warwix at ¶ 30, citing State v. Preston , 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, ¶ 20. Instead, “[t]he ultimate question for the trial court is whethe r there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id. , quoting Xie , 62 Ohio St.3d at 527,

584 N.E.2d 715. {¶ 14} In this case, the trial court discussed three of the above fac tors in reaching its decision to deny the motion to withdraw. First, the trial court found Candy was provided a full Crim.R. 11 hearing prior to entering his plea o f guilty. The court further found Candy was aware of, and fully understood, the nature of t he charges against him as well as the possible penalties and that Candy was “quite fam iliar with the criminal justice system as he has at least 29 criminal convictions in fi ve different states, including two prior prison terms. Additionally, at least one of [Candy’s ] prison terms where he served 11 months was for the same offense he pled guilty to in this case.” 1 Entry Denying Motion to Withdraw Plea. Finally, the trial court con cluded Candy did not have a defense to the charge and that he further could not support t he claim that he was not guilty of the charge. Importantly, the trial court noted that Candy was aware the plea agreement provided for the imposition of community control sanc tions only if he paid the sum of $4,689.17 by the date of the sentencing hearing. As Can dy did not make the required payment by the required date, the court found “[t]he o nly reasonable conclusion

the Court can draw from the evidence before the Court is that t he Defendant thought it was likely he would receive prison time as he had paid nothing toward the amount he

1 The record indicates Candy also had unpaid accrued child suppor t arrearages in Darke County and Montgomery County.-7- agreed to in order to be considered for community control.” Th e trial court found no basis for granting the motion. {¶ 15} We agree with the assessment made by the trial court. We furth er note two more factors are implicated herein: (1) Candy was represent ed by competent counsel, and (2) the record supports a finding that the trial c ourt gave full and fair consideration to the motion to withdraw despite the fact that C andy did not appear. Thus, we conclude that the majority of the factors in Fish , 104 Ohio App.3d 236, 240, 661 N.E.2d 788, did not support the withdrawal of Candy’s guilty plea. {¶ 16} We further conclude the record does not establish that Candy ha d a reasonable, legitimate basis to withdraw his plea. The State s ubmitted a child support audit for calendar years 2001 through February 28, 2019. The a udit shows no child support payments were made during 2010, 2011 and 2012. The aud it also showed that, as of December 2012, Candy’s total child support arrearage, for Miami County only, was $26,122.07. Candy submitted no documentation to support his cl aim that he had paid support during the dates in question. The only documentation h e provided to counsel was for payments made to other counties for different children. 2 {¶ 17} Based upon this record, we conclude the trial court did not abu se its discretion in overruling Candy’s presentence motion to withdraw his guilty plea. The first assignment of error is overruled.

III. Ineffective Assi stance of Counsel

2 Indeed, when Candy was ultimately sentenced in this case, he ad mitted that he had not made payments during the periods set forth in the indictment.-8- {¶ 18} The second assignment of error asserted by Candy states:

APPELLANT’S COUNSEL’S AFFIRMATIVE REPRESENTATION THAT

HE DID NOT INTEND TO ADVOCATE FOR HIS CLIENT AND HIS DELAY

IN PRESENTING APPELLANT’S MOTION TO WITHDRAW HIS PLEA

RENDERED ASSISTANCE OF COUNSEL INEFFECTIVE. {¶ 19} In this assignment of error, Candy asserts he was denied the ef fective assistance of counsel. Specifically, he claims Mulligan did no t timely file the motion and did not otherwise effectively advocate for him with regard ther eto. {¶ 20} “Reversal of a conviction for ineffective assistance of counsel requires that the defendant show first that counsel's performance was deficie nt and second that the deficient performance prejudiced the defense so as to deprive t he defendant of a fair trial.”

State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 74, citin g Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We “indulge a strong presumption that counsel's conduct falls within the wi de range of reasonable professional assistance[.]” Strickland at 689. {¶ 21} Candy correctly notes that at the February 7, 2019 hearing, Mul ligan informed the court that he did not agree with, nor wish to purs ue, Candy’s plan to attempt a plea withdrawal and that he might, therefore, be required to withdraw as counsel. However, Candy ignores the fact that two weeks later, Mulligan filed a motion to withdraw the plea which appears to accurately set forth Candy’s claims i n relation thereto. Further, Mulligan appeared at the March 15, 2019 hearing on the motion. Counsel’s inability to present evidence was not due to any reluctance on his part, but rather was based upon the fact that Candy intentionally failed to appear and the fact that Candy had not provided-9- documents supporting his claims. It was not until this point t hat Mulligan filed a motion

to withdraw as counsel. {¶ 22} We note the trial court did not make any finding that the motio n was untimely, thus this argument is unfounded. We also note that C andy did not express any dissatisfaction with counsel, nor did he seek to terminate Mull igan’s representation or obtain new counsel at any point during the month between the Fe bruary 7 and March 15 hearing dates. {¶ 23} Further, Mulligan was able to negotiate a plea agreement provid ing for the imposition of one year of community control sanctions despite t he fact that Candy was subject to a prison term of up to 18 months. See R.C. 2929.14(A)(4) and R.C. 2929.21. The agreement also permitted Candy to pay almost $600 less in r estitution than the actual child support arrearage for the indicted period. Indeed, Candy ’s third attorney, who represented him during the sentencing, argued for the implement ation of the plea agreement negotiated by Mulligan. {¶ 24} Based upon this record, we find no support for the claim that c ounsel’s representation fell below an objective standard of reasonablene ss. The second assignment of error is overruled.

IV. Knowing, Intelligent and Voluntary Nature of Guilty Plea {¶ 25} Candy’s third assignment of error provides: APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY ENTER HIS PLEA OF GUILTY {¶ 26} Candy contends the trial court failed to inform him of the poss ible-10- consequences of violating post-release control and that his ple a, therefore, was not knowingly, intelligently, and voluntarily entered. {¶ 27} Due process mandates that a guilty plea be knowing, intelligen t, and voluntary. Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);

State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Co mpliance with Crim.R. 11(C) ensures that a plea meets this constitutiona l mandate. State v. Cole , 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12. Strict co mpliance with the Crim.R. 11(C)(2)(c) constitutional advisements is necessary to establish that a plea is consistent with due process. State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, citing State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 261, ¶ 18. But substantial compliance with the Crim.R. 11(C)(2)(a) and (b) non-constitutional requirements is sufficient to allow the conclusion that a plea is knowing, intelligent, and voluntary. Substantial compliance exists when the “totality of circumstances” permits the conclusion the defendant “subjectively understands” the non-con stitutional plea requirements. Clark at ¶ 31, quoting State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E. 2d 474 (1990). “Furthermore, when non-constitutional rights are a t issue, a defendant who challenges his guilty plea on the basis that it was not knowing ly, intelligently, and voluntarily made generally must show a prejudicial effect.” State v. Jennings , 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307, ¶ 7, citing Veney at ¶ 17. “Prejudice in this context means that the plea would otherwise not have been enter ed.” Id. {¶ 28} In the instant case, the trial court advised Candy at the plea hearing that he could be required to serve a three-year period of post-release control. The trial court also informed him that violation of any of the conditions of su ch post-release control could-11- result in his return to prison for up to a maximum of half of h is original prison sentence. The trial court further informed Candy that if a person violate s post-release control by committing a new felony, the offender may be sentenced to a pri son term, the maximum term being 12 months or the time remaining on post-release cont rol, whichever is greater, to be served consecutively to any sentence imposed for the new felony. {¶ 29} Despite these advisements, Candy claims his guilty pleas were n ot knowingly, intelligently, and voluntarily entered because “he d id not understand and was not informed by counsel that he was subject to up [sic] punishm ent of up to fifty percent of his original sentence if he violated post-release control.” In support, Candy notes that when asked by the trial court whether he understood a violation of post-release control could result in imprisonment for up to a maximum of fifty perce nt of his prison sentence, he answered, “I do now.” Plea Tr. p. 8. {¶ 30} A review of the record shows that, on the date of the plea, Can dy executed a guilty plea form which clearly set forth an explanation of po st-release control and the penalties for violations of the conditions thereof. Both Candy and his attorney signed the form. When asked by the trial court, Candy affirmed that he ha d read the form and discussed it with his attorney. He further affirmed that he ha d no questions about the information set forth on the plea form or about any of the info rmation provided by the trial

court. {¶ 31} The record affirmatively shows the trial court completely and p roperly explained that Candy could be subject to post-release control, the length of the possible post-release control as well as the punishments for violations of post-release control. Candy indicated he understood the trial court’s explanation and that he had no questions-12- regarding the explanation. {¶ 32} We have reviewed the entirety of the transcript and conclude th e court engaged in a detailed plea colloquy that was sufficient to meet the requirements of Ohio Crim.R. 11. Candy responded appropriately to all questions ask ed throughout the plea colloquy, and there is no evidence in the transcript to indicat e any confusion or misunderstanding on his part. Given this record, we cannot rea ch the conclusion urged by Candy. Accordingly, the third assignment of error is overru led.

V. Conclusion {¶ 33} All of Candy’s assignments of error being overruled, the judgme nt of the

trial court is affirmed.

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

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

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Janna L. Parker Michael T. Columbus Hon. Stacy M. Wall