[Cite as State v. Smith , 2022-Ohio-742.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 5-21-05

v. RODNEY D. SMITH, JR., O P I N I O N

DEFENDANT-APPELLANT.

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 5-21-06

v. RODNEY D. SMITH, JR., O P I N I O N

DEFENDANT-APPELLANT.

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 5-21-07

v. RODNEY D. SMITH, JR., O P I N I O N

DEFENDANT-APPELLANT.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-2- STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 5-21-08

v. RODNEY D. SMITH, JR., O P I N I O N

DEFENDANT-APPELLANT.

Appeals from Hancock County Common Pleas Court Trial Court Nos. 2018 CR 55, 2020 CR 16, 2017 CR 349 and 2015 C R 349 Appeals Dismissed in Part and Judgments Affirmed in Part Date of Decision: March 14, 2022

APPEARANCES:

Michael H. Stahl for Appellant Phillip A. Riegle for Appellee

ZIMMERMAN, P.J. {¶1} Defendant-appellant, Rodney D. Smith, Jr. (“Smith”), appeals th e December 30, 2020 judgment entry of the Hancock County Court of Common Pleas denying his motion to withdraw his guilty plea. For the reason s set forth below, we dismiss in part and affirm in part.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-3- {¶2} On December 29, 2015, in case number 2015-CR-349 (hereinafter “2015 case”), Smith was indicted by the Hancock County Grand Ju ry on two criminal counts of aggravated possession of controlled substanc es in violation of R.C. 2925.11(A), both fifth-degree felonies. (Case No. 2015-CR -349, Doc. No. 1). On April 21, 2016, Smith entered guilty pleas to both counts in the indictment, and the trial court found him eligible for intervention in lieu of conviction (“ILC”). (Case No. 2015-CR-349, Doc. Nos. 16, 18). ( See Case No. 2015-CR-349, Doc. Nos. 8, 10, 11, 13, 14, 15). The trial court held Smith’s guil ty pleas in abeyance, and granted his request for ILC placing Smith as if under community control sanctions. ( Id. ). {¶3} Nevertheless, Smith had a series of probation violations from J une 2, 2017 through October 3, 2017 in the 2015 case. (Case No. 2015-C R-349, Doc. Nos. 33, 34, 36, 40, 41, 42, 47). Smith admitted to the violations and requested a presentence investigation report to be prepared in anticipation of his sentencing hearing. 1 (Doc. No. 47). {¶4} However, prior to being sentenced in his 2015 case, Smith was i ndicted on November 14, 2017, in case number 2017-CR-349 (“2017 case”, hereafter), for failing to appear (“FTA”) for a court hearing (in his 2015 case ) in violation of R.C.

1 The judgment entry of conviction was filed on November 14, 201 7. (Case No. 2015-CR-349, Doc. No. 47).Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-4- 2937.29 and R.C. 2937.99(A), a fourth-degree felony. 2 (Case No. 2017-CR-349, Doc. No. 1). On January 11, 2018, Smith entered a guilty plea to the FTA. 3 (Case No. 2017-CR-349, Doc. Nos. 11, 13). {¶5} Thereafter, and prior to being sentenced on the 2015 and 2017 c ases, Smith was indicted by the Hancock Grand Jury in case number 201 8-CR-55 (“2018 case”, hereafter) on February 27, 2018 on one count of aggravat ed possession of a controlled substance in violation of R.C. 2925.11(A), a fifth-d egree felony. 4 (Case No. 2018-CR-55, Doc. No. 1). On March 8, 2018, Smith withdrew his plea of not guilty and entered a guilty plea in his 2018 case. (Mar. 8, 20 18 Tr. at 10-11); (Case No. 2018-CR-55, Doc. No. 10). That same day, Smith and the Sta te presented a joint sentencing recommendation to the trial court in his 2015, 2017, and 2018 cases. Smith was sentenced to a five-year term of community control sa nctions with reserved prison terms in his sentences in his 2015, 2017, and 2 018 cases, respectively. ( Id. ); (Case No. 2015-CR-349, Doc. No. 57); (Case No. 2017-CR349, Doc. No. 17); (Case No. 2018-CR-55, Doc. No. 15).

2 The facts supporting the State’s indictment against Smith (in his 2017 case) are his failure to appear before the Hancock County Common Pleas Court for an ILC hearing schedu led on September 28, 2017 after his release from jail on an own recognizance bond. (Case No. 2017- CR-349, Doc. No. 1). ( See 2015-CR-349, Doc. Nos. 41, 47). 3 The judgment entry of conviction was filed on February 6, 2018 . (Case No. 2017-CR-349, Doc. No. 13). 4 The facts supporting the State’s indictment against Smith (in his 2018 case) for Smith’s Aggravated Possession of controlled substances are that an offense was com mitted on or around June 2, 2017 and while Smith was under supervision in his 2015 case. (Case No. 2018-C R-55, Doc. No. 1). ( See 2015-CR-349, Doc. No. 33).Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-5- {¶6} On January 21, 2020, Smith was indicted in case number 2020-CR- 16 (hereinafter “2020 case”) on Count One for aggravated trafficki ng in drugs in violation of R.C. 2925.03(A), a third-degree felony, and Count Two of aggravated trafficking in drugs in violation of R.C. 2925.03(A), a fourth- degree felony. (Case No. 2020-CR-16, Doc. No. 1). {¶7} On October 5, 2020, pursuant to a negotiated plea agreement, Sm ith withdrew his pleas of not guilty and entered guilty pleas to an amended Count One and Count Two (as indicted) for aggravated trafficking in drugs in violation of R.C. 2925.03(A), now both fourth-degree felonies. (Case No. 2020-CR-16, Doc. Nos. 46, 48). The trial court accepted his pleas and continued Smit h’s case for sentencing. {¶8} On November 5, 2020, the State filed a notice requesting a hear ing on

the basis that Smith had violated the terms and conditions of h is community control sanctions in his 2015, 2017, and 2018 cases. (Case No. 2015-CR -349, Doc. Nos. 84, 85, 86); (Case No. 2017-CR-349, Doc. Nos. 44, 46, 47); (Cas e No. 2018-CR55, Doc. Nos. 44, 46, 47). At the hearing scheduled on Novembe r 9, 2020, Smith entered admissions to community control violations in his 2015, 2017, and 2018 cases. (Case No. 2015-CR- 349, Doc. No. 88); (Case No. 2017-CR-349, Doc. No. 49); (Case No. 2018-CR-55, Doc. No. 49); (Nov. 9, 2020 Tr. at 3 -12). ( See Case No. 2020-CR-16, Doc. No. 61).Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-6- {¶9} Following the trial court’s acceptance of Smith’s admissions in those cases, the trial court proceeded to a sentencing hearing (as to all four cases). At that hearing and prior to being sentenced by the trial court, Smith made an oral motion to withdraw his guilty plea in his 2020 case. (Nov. 9, 2020 Tr . at 25-30); (Case No. 2020-CR-16, Doc. No. 51). The State did not oppose Smith’s ora l motion. (Nov. 9, 2020 Tr. at 26, 34). Nevertheless, the trial court immediat ely entertained the arguments of the parties as to the reasons for the withdrawal. At the conclusion of arguments, Smith’s attorney requested to supplement the record with a written presentence motion to withdraw his guilty plea. The trial cour t granted his request. (Case No. 2020-CR-16, Doc. No. 51); (Nov. 9, 2020 Tr. at 45, 47 ). ( See also Case No. 2015-CR-349, Doc. No. 88); (Case No. 2017-CR-349, Doc. No. 49); (Case No. 2018-CR-55, Doc. No. 49). Smith submitted his written motion t o withdraw his guilty pleas to the trial court on November 12, 2020. (Case No . 2020-CR-16, Doc. No. 53). On December 30, 2020, the trial court denied Smith’s oral and written motions to withdraw his guilty pleas in his 2020 case. (Case N o. 2020-CR-16, Doc. No. 61). {¶10} On February 8, 2021, the trial court proceeded to sentencing on all four cases. (Feb. 8, 2021 Tr. at 3); (Case No. 2015-CR-349, Do c. No. 100); (Case No. 2017-CR-349, Doc. No. 59); (Case No. 2018-CR-55, Doc. No. 5 9); (Case No. 2020-CR-16, Doc. No. 67). First, the trial court revoked Smith ’s community controlCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-7- sanctions, terminated him unsuccessfully, and sentenced him to an 11-month prison

term on both counts in his 2015 case to be served concurrent to one another and concurrent to the prison term imposed in case number 2018-CR-55 . ( Id. at 25-26); (Case No. 2015-CR-349, Doc. No. 100). ( See also Case No. 2018-CR-55, Doc. No. 59). Next, the trial court sentenced Smith in his 2018 case to an 11-month prison term to be served concurrently to the sentence imposed in case number 2015-CR349. ( Id. ); (Case No. 2018-CR-55, Doc. No. 59). ( See also Case No. 2015-CR-349, Doc. No. 100). Then, the trial court sentenced Smith to a 17-m onth prison term in his 2017 case to be served consecutively to the prison terms im posed in case number 2020-CR-16. ( Id. at 26); (Case No. 2017-CR-349, Doc. No. 59). ( See also Case No. 2020-CR-16, Doc. No. 67). Finally, in his 2020 case, the t rial court sentenced Smith to serve (two) 17-month prison terms as to amended Count One and indicted Count Two to be served consecutively to one another and consecu tively to the prison term imposed in case number 2017-CR-349 for a total aggregate p rison term (in all cases) of 51-months. ( Id. at 26-27); (Case No. 2020-CR-16, Doc. No. 67). ( See

also Case No. 2017-CR-349, Doc. No. 59). {¶11} Smith filed timely notices of appeal in his 2015, 2017, 2018, a nd 2020 cases, which we have consolidated. Smith raises one assignment of error for our

review.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-8- Appeals 5-21-05, 5-21-07, and 5-21-08 {¶12} Before we address the merits of Smith’s appeals, we note that S mith (in his brief) does not present any arguments challenging the v oluntariness of his pleas or admissions in his 2015, 2017, and 2018 cases. Rather, his assignment of error only challenges the scope of his negotiated plea agreemen t and the voluntariness of his guilty pleas in his 2020 case. Since ther e are no issues raised or error assigned below in the 2015, 2017, and 2018 cases, thos e appeals are

dismissed. See State v. Taylor , 3d Dist. Seneca Nos. 13-19-21 and 13-19-22, 2019- Ohio-4719, ¶ 8. Therefore, we will only consider Smith’s appe al as it pertains to his 2020 case in appellate case number 05-21-06. Appeal 5-21-06 Assignment of Error The trial court erred in not granting Mr. Smith’s unopposed pre

sentence motion to withdraw his plea because he misunderstood the terms of the agreement with the prosecution. {¶13} In his first assignment of error, Smith argues that the trial c ourt erred by denying his presentence motion to withdraw his guilty plea in his 2020 case. In particular, Smith argues that the trial court should have grant ed his request to withdraw his guilty pleas since he misunderstood the scope of t he negotiated plea agreement, and because his motion was unopposed

.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-9- Standard of Review {¶14} Appellate review of the trial court’s denial of a Crim.R. 32.1 motion to withdraw a guilty plea is limited to whether the trial court abused its discretion.

State v. Artis , 3d Dist. Logan Nos. 8-19-52 and 8-19-53, 2020-Ohio-4018, ¶ 10 ; see State v. Smith , 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. An a buse of discretion suggests the trial court’s decision is unreasonab le, arbitrary, or

unconscionable. Artis at ¶ 10, citing State v. Adams , 62 Ohio St.2d 151, 157 (1980). Analysis {¶15} Recently, the Supreme Court of Ohio emphasized the “necessity o f placing” an underlying plea agreement on the record. See State v. Azeen , 163 Ohio St.3d 447, 2021-Ohio-1735, ¶ 36, citing Crim.R. 11(F). Here, S mith’s argument relates to the scope of the negotiated plea agreement in his 20 20 case. {¶16} The record reveals the terms of the agreement that was placed o n the record (in open court) at Smith’s change-of-plea hearing are as follows: [Trial Court] It’s my understanding then, from talking with counsel, that the parties have today reached agreements. They wish to proceed with a change of plea. Mr. Kelley, is that still your client’s intention? [Smith’s Trial Counsel] May it please the Court, it is Your Hon or. I went back over with him the plea documents. The, essentially, slightly new deal, understanding that before the CourtCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-10- was -- that the Prosecutor was going to defer, but now they’re going to be free to recommend, based on the PSI, which we understand that slight difference, and my client is prepared to proceed with the plea, based upon that recommendation

. [Trial Court] All right. Ms. Limerick, you have the 11(F) negotiations as you understand them? [State] Yes, Your Honor. Please the Court: At this time, I would ask for leave of Court to amend count one in the indictment from a charge of aggravated trafficking in drugs, a felony of the third degree, to that of aggravated trafficking in drugs, a felony of the fourth degree, in violation of the same code section, 2925.03(A), but by striking reference to this happening in the vicinity of a juvenile. It is my understanding the Defendant would consent to that amendment, waive any defects in the amendment process and all allied rights, and will be tendering a guilty plea to the amended count one, as well as a guilty plea to count two, a charge of aggravated trafficking in drugs, a felony of the fourth degree. As already stated, the parties will be requesting a PSI, and the parties are free to argue in the appropriate sentence

. The Defendant also agrees to admit to any related probation violations and make $100 in reimbursement to the METRICH Drug Task Force.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-11- [Trial Court] $100, Ms. Limerick? [State] Yes, sir. [Trial Court] Okay, Mr. Kelley? [Smith’s Trial Counsel] Yes, Your Honor. That is our understanding of the agreement, and we are ready to proceed. [Trial Court] All right. Mr. Smith was that your understanding about how you we re going to proceed today? [Smith] Yes. (Emphasis added.) (Oct. 5, 2020 Tr. at 3-6). {¶17} At Smith’s sentencing hearing on November 9, 2020 (following hi s admissions to his community-control-sanction violations and the State’s and defense counsel’s arguments as to sentencing in all four cases) , Smith made an oral

motion to withdr aw his guilty pleas. (Nov. 9 , 2020 Tr. at 44- 45). He told the trial court that he misunderstood that the State was going to “argue” for prison terms rather than probation. ( Id. ). In response, the trial court stopped the sentencing hearing and entertained arguments giving the parties an opportu nity to present evidence in support of their respective positions. Thereafter, Smith’s counsel submitted a supplemental written motion to withdraw his guilty pleas specifically asserting that the first factor (i.e., as to prejudice) and the seventh factor (i.e., his basis for the motions) favored his request. (Case No. 2020-CR- 16, Doc. No. 53).Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-12- {¶18} Here, the trial court construed Smith’s oral and written motion s as post-sentence motions to withdraw his guilty pleas. (Case No. 2020-CR-16, D oc. No. 61). The trial court based this determination upon the tim ing of the motions being that they were made at the sentencing hearing and after t he State and defense counsel asserted their positions as to sentence. ( Id. ). However, when ultimately considering the motion in its judgment entry, the trial court e valuated the motion through the lense of State v. Ferdinandsen , 3d Dist. Hancock No. 5-16-08, 2016- Ohio-7172, a presentence -motion-to-withdraw-a-guilty-plea case. Nevertheless,

the trial court denied Smith’s motions both as presentence and post-sentence motions to withdraw his guilty pleas. (Case No. 2020-CR-16, Do c. No. 61). {¶19} Moreover, on appeal, Smith acknowledges and raises no error wit h respect to the trial court’s construction of his motions as post-sentence motions to withdraw. Rather, he directs our attention to the trial court’ s analysis of those reasonable-and-legitimate-basis factors. ( See Appellant’s Brief at 4). Thus, in our view, Smith has waived any potential error under Crim.R. 52(B) relating to the trial

court’s construction of his motion as a post-sentence motion to withdraw. See State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. Presentence and Post-sentence Motions to Withdraw Guilty Pleas {¶20} Crim.R. 32.1 provides that a defendant is permitted to file a

presentence motion to withdraw a guilty plea. The general rule is that a trial courtCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-13- should freely grant such a motion. State v. Xie , 62 Ohio St.3d 521, 526 (1992); State v. Spivey , 81 Ohio St.3d 405, 415 (1998). However, defendants do not ha ve an absolute right to withdrawal of a guilty plea prior to sentenci ng. Xie , paragraph one of syllabus; Spivey at 415. Instead, a trial court must hold a hearing to determi ne whether a “reasonable and legitimate basis” exists to allow a d efendant to withdraw that plea. Id .; Id

. {¶21} A post-sentence motion to withdraw a guilty plea, in contrast, occurs after sentence is imposed, and the defendant bears burden of de monstrating a “manifest injustice”. State v. James , 3d Dist. Hancock No. 5-19-30, 2020-Ohio720, ¶ 11, citing State v. Smith , 49 Ohio St.3d 261 (1977), paragraph one of the syllabus. “[A] post[-]sentence withdrawal motion is allowable only in extraordinary

cases.” Smith at 264. “‘A “manifest injustice” comprehends a fundamental fl aw in the path of justice so extraordinary that the defendant could n ot have sought redress from the resulting prejudice through another form of applicatio n reasonably

available to him or her.’” State v. Brooks , 2d Dist. Montgomery No. 23385, 2010- Ohio-1682, ¶ 8, quoting State v. Hartzell , 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999). “A hearing on a post-sentence m otion to withdraw guilty plea is not mandatory. It is required only ‘if the fact s alleged by the defendant and accepted as true would require the court to permit that ple a to be withdrawn.’”

State v. Moore , 3d Dist. Allen No. 1-11-29, 2012-Ohio-657, ¶ 13, quoting State v.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-14- Hamed , 63 Ohio App.3d 5, 7 (8th Dist.1989). Put more plainly, befor e a defendant is entitled to a hearing on a post-sentence motion to withdraw guilty plea, the trial court must conclude that the allegations raised by the defendan t, if taken as true, demonstrates a “manifest injustice”. Moore at ¶ 13. {¶22} Based on our review of the record, we conclude that Smith’s mot ions

are presentence motions to withdraw his guilty pleas. Hence, we consider the following factors when reviewing a trial court’s decision to gr ant or deny a presentence motion to withdraw a plea. Those factors are: (1) whether the withdrawal will prejudice the prosecution; (2) the representati on afforded the defendant by counsel; (3) the extent of the hearing held pursua nt to Crim.R. 11; (4) the extent of the hearing on the motion to withdraw the plea; ( 5) whether the trial court gave full and fair consideration of the motion; (6) wheth er the timing of the motion was reasonable; (7) the stated reasons for the motion; ( 8) whether the defendant understood the nature of the charges and potential se ntence; and (9) whether the accused was perhaps not guilty or had a complete de fense to the charge. State v. Maney , 3d Dist. Defiance Nos. 4-12-16 and 4-12-17, 2013-Ohio-2261, ¶ 18, citing State v. Griffin , 141 Ohio App.3d 551, 554 (7th Dist.2001) and State v. Fish , 104 Ohio App.3d 236, 240 (1st Dist.1995), overruled on other grounds , State v.

Sims , 1st Dist. Hamilton No. C-160856, 2017-Ohio-8379, ¶ 10. No on e factor isCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-15- determinative and each factor must be weighed by the trial cour t. Griffin at 554;

Fish at 240. {¶23} With these factors in mind, we are cognizant that Ohio Courts h ave consistently held that a “change of heart” is not sufficient ju stification to withdraw a plea. State v. Davis , 2d Dist. Montgomery No. 18172, 2001 WL 10037, ¶ 2 (Jan. 5, 2001), citing State v. Drake , 73 Ohio app.3d 640, 645, 598 N.E.2d 115 (8th Dist.1991). See also State v. Mooty, 2d Dist. Greene No. 2000 CA 72, 2001-Ohio1464, *4 (defendant’s motion to withdraw his guilty plea “was b ased solely on an unexpected incarceration sentence, a mere change of heart,” and as such was an insufficient rationale to withdraw a guilty plea). State v. Griffin , 8th Dist. Cuyahoga No. 82832, 2004-Ohio-1246, ¶ 18, citing State v. Holloman , 2d Dist. Greene No. 2000CA82, *3 (June 22, 2001) and Mooty at *4. {¶24} In our review of the factors, we note Smith raised reasonable-a ndlegitimate-basis factors one and seven in his written motion. However, the trial court considered all of the factors in reaching its determinati on. Indeed, our examination of the reasonable-and-legitimate-basis factors supp orts the trial court’s

denial of Smith’s presentence motions to withdraw his guilty pleas. Therefore, for the reasons that follow, we conclude that the decision of the t rial court was not unreasonable, arbitrary, or unconscionable.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-16- Factor One: Prejudice to the State {¶25} Prejudice to the State is not presumed, and this factor, “is of ten classified as the most important factor in the balancing test.” State v. Cuthbertson , 139 Ohio App. 3d 895, 899 (7th Dist.2000), citing Fish , 104 Ohio App.3d at 240. Here, Smith argues that there was no prejudice to the State bec ause no material witnesses were unavailable, and there were no speedy-trial issu es. Undeniably, the State did not argue that it has suffered any prejudice as a res ult of Smith’s request. Hence, we conclude the first factor weighs in favor of Smith. Factor Two: Representation afforded to Defendant {¶26} Smith argues that factor two weighs in his favor. We disagree. Smith alludes that his trial counsel’s performance was deficient by c haracterizing the change in Smith’s plea agreement as a “slight difference”. Smi th attempts to bolster his argument by highlighting that there had been tension in the attorney-client relationship. Indeed, the trial court addressed Smith’s concer ns and his desire to privately retain counsel at his change-of-plea hearing and prio r to his Crim.R. 11 colloquy. (Oct. 5, 2020 Tr. at 5-7). Smith stated that he had met with two different attorneys, but decided not to hire them. ( Id. at 7). Thereafter, the trial court inquired as to Smith and his court-appointed counsel’s relationship as f ollows: [Trial Court] Okay. So it was your intention then to proceed with Mr. Kelley today? [Smith] Yes.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-17- [Trial Court] Okay. Understanding that, again, has that left you with enough time to discuss the issues related to this case which [sic] Mr. Kelley? [Smith] Yes. We discussed everything. [Trial Court] Okay. So, and I know you had some additional time this morning to discuss the proposed plea, the changes in the -- in the offer from the State of Ohio, you had time to go over all of that with him? [Smith] Yes, sir. [Trial Court] Okay. And again, has he answered all of your questions to your satisfaction? [Smith] Yes, sir. [Trial Court] Anything else you need time to discuss with him, before I go any further? [Smith] No, sir. I don’t think so. ( Id. at 7-8). Then, the trial court addressed Smith regarding the nature of Smith’s charges and the maximum penalties involved for each offense, wh ich Smith acknowledged he understood. ( Id. at 25-27, 31-32). We conclude that this factor weighs against withdrawal of Smith’s guilty pleas. Factors Three & Eight: Extent of the hearing held pursuant to Crim.R. 11 & Defendant’s understanding of the nature of the charges and potential sentences {¶27} Smith argues that the third and eighth factors weigh in his fav or. He asserts that these factors go to the core of his understanding of the plea agreementCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-18- (i.e., his mistake of fact) that did not become apparent until the execution of the agreement at his sentencing hearing. Thus, his request was not a “change of heart”. For ease of discussion, we will address the third and eighth fa ctors together, since, they relate to the change-of-plea hearing and Crim.R. 11 colloq uy. {¶28} The trial court conducted an appropriate change-of-plea hearing . ( Id

. at 1-53). At that hearing, the trial court engaged in a thorou gh Crim.R. 11 colloquy with Smith informing him of all the rights he was waiving in pl eading guilty to the charges. ( Id . at 22-42). Further, the trial court gave Smith a detailed ex planation of the charges against him, the consequences of his plea to those charges, and ample opportunities to ask questions. ( Id . at 22-42). Lastly, the trial court informed Smith that he was giving up his right to a jury trial, his right to c onfront witnesses, his right to subpoena witnesses to appear on his behalf, his privilege ag ainst selfincrimination, and the right to have the State prove all the el ements of each offense beyond a reasonable doubt. ( Id . at 42-47). Indeed, the trial court provided Smith with a proper change-of-plea hearing making no error in its Cri m.R. 11 colloquy or in assessing Smith’s understanding of the nature of his charges and potential sentences. Upon our review, we conclude that factors three and eight weigh against Smith’s withdrawal request.Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-19- Factor Four: Extent of motion to withdraw hearing {¶29} Smith presents no argument regarding the fourth factor. Certai nly, both Smith and the State were given the opportunity to address the trial court and present evidence. What’s more, the trial court permitted Smith ’s counsel to submit a supplemental written motion at a later date–deferring imposit ion of sentence. Consequently, we conclude this factor also weighs against withd rawal. Factors Five & Seven: Trial court’s full and fair consideration of the motion & stated reasons for the motion {¶30} Smith raises no arguments relating to the fifth and seventh fac tors in his brief. However, he did assert arguments related to factor seven to the trial court by arguing that he (Smith) is a lay person untrained in legales e. Indeed, in our view of the record and based upon our conclusion as to the fourth fa ctor, the trial court gave full and fair consideration to Smith’s oral and written mo tions. Notwithstanding Smith’s argument that he is a lay person, Smith was (at all times) represented by counsel with whom he discussed “everything” and with whom he was satisfied. ( Id. at 7-8). Thus, we conclude that both factors five and seven w eigh against withdrawal. Factor Six: Reasonableness of timing of the motion {¶31} Smith did not specifically address the sixth factor in his brie f. He did, however, address aspects of the sixth factor in his arguments m ade relative to factorsCase Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08

-20- three and eight. Given the premise of Smith’s argument, he wou ld appear to have raised his motion to withdraw his guilty plea at the earliest a vailable time. We conclude that this factor weighs in favor of the Smith. Factor Nine: Whether the accused was perhaps not guilty or had a complete defense to the charges {¶32} It is important to note that Smith never promoted his actual in nocence or that he had a complete defense to his case. Instead, he rai ses a mistake-of-fact argument. This factor weighs against withdrawal of Smith’s gui lty pleas.

Conclusion {¶33} Upon our review of the reasonable-and-legitimate-basis factors as to whether the trial court erred by denying Smith’s motions to wit hdraw his pleas, we

conclude that the trial court did not abuse its discretion in d enying such requests. {¶34} Accordingly, Smith’s sole assignment of error is overruled. {¶35} For the reasons stated above, we dismiss appellant’s appeals re lated to appellate case numbers 05-21-05, 05-21-07, and 05-21-08 and hav ing found no error prejudicial to the appellant herein in the particulars assigned and argued in appellate case number 05-21-06, affirm the judgment of the trial court in appellate case

number 5-21-06. Appeals Dismissed in Part, and Judgments Affirmed in Part SHAW and WILLAMOWSKI, J.J., concur.