[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 

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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 CR 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 the 

December 30, 2020 judgment entry of the Hancock County Court of Common Pleas 

denying his motion to withdraw his guilty plea. For the reasons 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 

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{¶2} On December 29, 2015, in case number 2015-CR-349 (hereinafter 

“2015 case”), Smith was indicted by the Hancock County Grand Jury on two 

criminal counts of aggravated possession of controlled substances 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 guilty 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 June 2, 

2017 through October 3, 2017 in the 2015 case. (Case No. 2015-CR-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 indicted 

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, 2017. (Case No. 2015-CR-349, Doc. No. 

47). 
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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 cases, 

Smith was indicted by the Hancock Grand Jury in case number 2018-CR-55 (“2018 

case”, hereafter) on February 27, 2018 on one count of aggravated possession of a 

controlled substance in violation of R.C. 2925.11(A), a fifth-degree 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, 2018 Tr. at 10-11); (Case 

No. 2018-CR-55, Doc. No. 10). That same day, Smith and the State 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 sanctions with 

reserved prison terms in his sentences in his 2015, 2017, and 2018 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 scheduled 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 committed on or around June 2, 2017 and while 

Smith was under supervision in his 2015 case. (Case No. 2018-CR-55, Doc. No. 1). (See 2015-CR-349, 

Doc. No. 33). 
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{¶6} On January 21, 2020, Smith was indicted in case number 2020-CR-16 

(hereinafter “2020 case”) on Count One for aggravated trafficking 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, Smith 

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 Smith’s case for 

sentencing. 

{¶8} On November 5, 2020, the State filed a notice requesting a hearing on 

the basis that Smith had violated the terms and conditions of his 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); (Case No. 2018-CR55, Doc. Nos. 44, 46, 47). At the hearing scheduled on November 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 

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{¶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 oral motion. (Nov. 

9, 2020 Tr. at 26, 34). Nevertheless, the trial court immediately 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 court 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 to 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 No. 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, Doc. No. 100); (Case 

No. 2017-CR-349, Doc. No. 59); (Case No. 2018-CR-55, Doc. No. 59); (Case No. 

2020-CR-16, Doc. No. 67). First, the trial court revoked Smith’s community control 
Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08 

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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-month prison term in 

his 2017 case to be served consecutively to the prison terms imposed 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 trial 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 consecutively to the prison 

term imposed in case number 2017-CR-349 for a total aggregate prison 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, and 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 

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Appeals 5-21-05, 5-21-07, and 5-21-08 

{¶12} Before we address the merits of Smith’s appeals, we note that Smith 

(in his brief) does not present any arguments challenging the voluntariness 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 agreement and the 

voluntariness of his guilty pleas in his 2020 case. Since there are no issues raised 

or error assigned below in the 2015, 2017, and 2018 cases, those 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 appeal 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 presentence 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 court 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 granted his request to 

withdraw his guilty pleas since he misunderstood the scope of the negotiated plea 

agreement, and because his motion was unopposed. 

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

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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 abuse 

of discretion suggests the trial court’s decision is unreasonable, 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 of 

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, Smith’s argument 

relates to the scope of the negotiated plea agreement in his 2020 case. 

{¶16} The record reveals the terms of the agreement that was placed on 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 Honor. 

I went back over with him the plea 

documents. The, essentially, slightly new 

deal, understanding that before the Court 
Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08 

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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 

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[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 were 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 his 

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 withdraw 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 opportunity 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 

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{¶18} Here, the trial court construed Smith’s oral and written motions as 

post-sentence motions to withdraw his guilty pleas. (Case No. 2020-CR-16, Doc. 

No. 61). The trial court based this determination upon the timing of the motions 

being that they were made at the sentencing hearing and after the State and defense 

counsel asserted their positions as to sentence. (Id.). However, when ultimately 

considering the motion in its judgment entry, the trial court evaluated 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, Doc. No. 61). 

{¶19} Moreover, on appeal, Smith acknowledges and raises no error with 

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

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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 have an 

absolute right to withdrawal of a guilty plea prior to sentencing. Xie, paragraph one 

of syllabus; Spivey at 415. Instead, a trial court must hold a hearing to determine 

whether a “reasonable and legitimate basis” exists to allow a defendant 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 demonstrating 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 flaw in 

the path of justice so extraordinary that the defendant could not have sought redress 

from the resulting prejudice through another form of application 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 motion to withdraw 

guilty plea is not mandatory. It is required only ‘if the facts alleged by the defendant 

and accepted as true would require the court to permit that plea 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 

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Hamed, 63 Ohio App.3d 5, 7 (8th Dist.1989). Put more plainly, before 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 defendant, if taken as true, 

demonstrates a “manifest injustice”. Moore at ¶ 13. 

{¶22} Based on our review of the record, we conclude that Smith’s motions 

are presentence motions to withdraw his guilty pleas. Hence, we consider the 

following factors when reviewing a trial court’s decision to grant or deny a 

presentence motion to withdraw a plea. Those factors are: (1) whether the 

withdrawal will prejudice the prosecution; (2) the representation afforded the 

defendant by counsel; (3) the extent of the hearing held pursuant 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) whether 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 sentence; and (9) 

whether the accused was perhaps not guilty or had a complete defense 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 one factor is 
Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08 

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determinative and each factor must be weighed by the trial court. Griffin at 554; 

Fish at 240. 

{¶23} With these factors in mind, we are cognizant that Ohio Courts have 

consistently held that a “change of heart” is not sufficient justification 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 based 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-andlegitimate-basis factors one and seven in his written motion. However, the trial 

court considered all of the factors in reaching its determination. Indeed, our 

examination of the reasonable-and-legitimate-basis factors supports 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 trial court was not 

unreasonable, arbitrary, or unconscionable. 
Case Nos. 5-21-05, 5-21-06, 5-21-07 and 5-21-08 

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Factor One: Prejudice to the State 

{¶25} Prejudice to the State is not presumed, and this factor, “is often 

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 because no material 

witnesses were unavailable, and there were no speedy-trial issues. Undeniably, the 

State did not argue that it has suffered any prejudice as a result 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 characterizing the 

change in Smith’s plea agreement as a “slight difference”. Smith attempts to bolster 

his argument by highlighting that there had been tension in the attorney-client 

relationship. Indeed, the trial court addressed Smith’s concerns and his desire to 

privately retain counsel at his change-of-plea hearing and prior 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 follows: 

[Trial Court] Okay. So it was your intention then to proceed 

with Mr. Kelley today? 

[Smith] Yes. 
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[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, which 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 favor. He 

asserts that these factors go to the core of his understanding of the plea agreement 
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(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 factors together, since, 

they relate to the change-of-plea hearing and Crim.R. 11 colloquy. 

{¶28} The trial court conducted an appropriate change-of-plea hearing. (Id. 

at 1-53). At that hearing, the trial court engaged in a thorough Crim.R. 11 colloquy 

with Smith informing him of all the rights he was waiving in pleading guilty to the 

charges. (Id. at 22-42). Further, the trial court gave Smith a detailed explanation 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 confront witnesses, his right 

to subpoena witnesses to appear on his behalf, his privilege against selfincrimination, and the right to have the State prove all the elements 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 Crim.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. 
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Factor Four: Extent of motion to withdraw hearing 

{¶29} Smith presents no argument regarding the fourth factor. Certainly, 

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 imposition of sentence. 

Consequently, we conclude this factor also weighs against withdrawal. 

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 factors 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 legalese. Indeed, in our view 

of the record and based upon our conclusion as to the fourth factor, the trial court 

gave full and fair consideration to Smith’s oral and written motions. 

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 weigh 

against withdrawal. 

Factor Six: Reasonableness of timing of the motion 

{¶31} Smith did not specifically address the sixth factor in his brief. He did, 

however, address aspects of the sixth factor in his arguments made relative to factors 
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three and eight. Given the premise of Smith’s argument, he would appear to have 

raised his motion to withdraw his guilty plea at the earliest available 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 innocence 

or that he had a complete defense to his case. Instead, he raises a mistake-of-fact 

argument. This factor weighs against withdrawal of Smith’s guilty 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 withdraw his pleas, we 

conclude that the trial court did not abuse its discretion in denying such requests. 

{¶34} Accordingly, Smith’s sole assignment of error is overruled. 

{¶35} For the reasons stated above, we dismiss appellant’s appeals related to 

appellate case numbers 05-21-05, 05-21-07, and 05-21-08 and having 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.