[Cite as State v. Tate, 2012-Ohio-1503.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 11 MA 78 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

JAUWAN TATE, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

 Court, Case No. 10CR430. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul Gains 

 Prosecuting Attorney 

 Attorney Ralph Rivera 

 Assistant Prosecuting Attorney 

 21 West Boardman Street, 6th Floor 

 Youngstown, Ohio 44503 

For Defendant-Appellant: Attorney John Ams 

 134 Westchester Drive 

 Youngstown, Ohio 44515 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 Dated: March 30, 2012 
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VUKOVICH, J. 

{¶1} Defendant-appellant Jauwan Tate appeals the decision of the Mahoning 

County Common Pleas Court denying his presentence motion to withdraw his guilty 

plea. He argues that the trial court abused its discretion as the factors weigh in favor 

of allowing plea withdrawal. For the following reasons, the judgment of the trial court 

is reversed and the case is remanded with orders to allow plea withdrawal. 

STATEMENT OF THE CASE

{¶2} On April 19, 2010, a firearm was discharged from a motor vehicle into a 

residence on Hudson Avenue in Youngstown, Ohio. The resident stated that appellant 

was the shooter. Appellant was indicted for improper discharge of a firearm at a 

habitation, improper handling of a firearm in a motor vehicle, and felonious assault, all 

with firearm specifications. The case was set for a March 14, 2011 trial. 

{¶3} On the day of the scheduled trial, a plea agreement was reached 

whereby the state dismissed the improper handling of a firearm in a motor vehicle and 

felonious assault charges in exchange for appellant’s guilty plea to complicity to 

improper discharge of a firearm at a habitation. The state also amended the type of 

firearm specification so that the mandatory sentence was only three years instead of 

five years. The state agreed to recommend a two-year sentence plus three years for 

the firearm specification. A presentence investigation report was ordered, and 

sentencing was set for April 28, 2011. 

{¶4} On March 31, 2011, appellant filed a motion to withdraw his guilty plea 

claiming that he had a valid defense to the charge. His attorney also asked to 

withdraw as counsel. The state responded with a memorandum in opposition arguing 

that appellant entered a favorable plea agreement, that he had experienced counsel, 

and that the state was prejudiced because they have not been in contact with the 

witnesses. 

{¶5} The court heard the motions prior to the sentencing hearing. Defense 

counsel noted that the victim recently wrote a letter recanting his statement that 

appellant was the shooter. Counsel argued that the motion was timely filed and urged 

that the state’s claim of prejudice is not credible because the motion was filed two 
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weeks after the plea and a month before sentencing. The court noted that appellant 

pled to complicity and opined that his valid defense must be balanced against the 

favorable plea bargain that he struck. (Tr. 5-7). 

{¶6} The court then denied the plea withdrawal motion. Appellant orally 

withdrew his request for new counsel, and the court proceeded to sentence appellant 

to the agreed upon sentence of two years for the discharge of a firearm into a 

habitation plus three years for the firearm specification. Appellant filed a timely notice 

of appeal. 

ASSIGNMENT OF ERROR

{¶7} Appellant’s sole assignment of error provides: 

{¶8} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING 

APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA.” 

{¶9} Pursuant to Crim.R. 32.1, a criminal defendant can move to withdraw a 

guilty plea. After sentencing, such a motion can only be granted to correct a manifest 

injustice. Crim.R. 32.1. However, presentence motions shall be freely and liberally 

granted. State v. Xie, 62 Ohio St.3d 521, 526-527, 584 N.E.2d 715 (1992). Still, there 

is no absolute right to presentence plea withdrawal, the decision to grant or deny the 

motion is within the trial court’s discretion, and such decision is not reversed absent an 

abuse of discretion. Id. 

{¶10} Some of the factors to be weighed in making a decision on a motion to 

withdraw a guilty plea are as follows: (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 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). 

{¶11} Although lack of prejudice to the state is an important factor, none of the 

factors is absolutely conclusive. Id. at 899. See also State v. Leasure, 7th Dist. No. 

01BA42, 2002-Ohio-5019, ¶ 19. With respect to the final factor, the court must ensure 
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the claim is more than a change of heart about the plea agreement. State v. Kramer, 

7th Dist. No. 01CA107, 2002-Ohio-4176, ¶ 58. Plea withdrawal is more appropriate 

where there has been a material change of fact or circumstance since the plea 

hearing. See State v. Moore, 7th Dist. No. 06CO74, 2008-Ohio-1039, ¶ 13. 

{¶12} In Cuthbertson, we reversed the trial court’s denial of the defendant’s 

plea withdrawal motion as there was no allegation of prejudice to the state, counsel 

was not very involved in the plea withdrawal request, the motion was filed two weeks 

before the scheduled sentencing hearing and one week after the plea hearing, and the 

defendant claimed that he was present for the murder but was not the perpetrator. 

Cuthbertson, 139 Ohio App.3d at 899-900. 

{¶13} In Griffin, we reversed the trial court’s denial of a the defendant’s motion 

to withdraw his guilty plea where prejudice to the state was not articulated, the motion 

was filed two weeks after the guilty plea and one month before the scheduled 

sentencing hearing, the defendant said his attorney did not interview witnesses and 

pressured him into pleading, and the defendant learned while in jail that a witness that 

he believed was going to testify against him was now stating that she saw the victim 

draw first. State v. Griffin, 141 Ohio App.3d 551, 555-556, 752 N.E.2d 310 (7th 

Dist.2001). 

{¶14} We now apply the factors to the case before us. As for the second and 

third factors, appellant agrees with the state’s argument that defense counsel rendered 

effective assistance and that the Crim.R. 11 plea hearing was adequate. (Still, it is 

worth noting that the court ruled on the plea withdrawal motion while the motion to 

withdraw as counsel was still pending.) Appellant also agrees with the state’s 

assessment, under the eighth factor, that he understood the nature of the charges and 

the potential sentences. Thus, these three factors weigh in favor of the state. 

{¶15} As for prejudice, the state originally claimed in their response 

memorandum that they would suffer prejudice because they had not spoken to 

witnesses since the plea and that evidence may have been destroyed. However, this 

latter statement is conjecture, and appellant sought to withdraw his plea a mere two 

weeks after the plea hearing. Thus, no memories would have faded. Moreover, the 

victim was still very much in the picture, sending letters to the court and the defendant. 
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Notably, the state set forth no arguments at the withdrawal hearing. In any event, on 

appeal, the state concedes that the prejudice factor weighs in appellant’s favor. 

{¶16} The state also agrees that the motion was timely filed as it was 

presented nearly a month prior to sentencing and two weeks after the plea hearing. It 

was also based upon a new item of evidence obtained by the defendant after the plea 

hearing, being the victim’s new statement. The victim sent his statement to the clerk 

for filing weeks prior to the plea hearing, but it was not discovered by the defense until 

after the plea hearing. Although it was not provided to the state either, this does not 

change the fact that it was not revealed to the defense until after the plea hearing. 

{¶17} The parties disagree on the fourth and fifth factors, i.e. whether the 

hearing on the motion to withdraw was adequate and whether the court gave full and 

fair consideration to the motion. Appellant notes that the court interrupted his 

attorney’s argument and denied the motion without permitting his counsel to finish his 

statement. (Tr. 5, 7). He points out that the court seemed to only focus on its 

impression that appellant received a favorable deal in the plea bargain. Appellant also 

believes that the court was not interested in reading the victim’s new statement. These 

factors weigh in appellant’s favor, or at the very least they do not weigh in favor of the 

state. 

{¶18} The parties also disagree on the seventh and ninth factors: the reason 

for plea withdrawal and whether there is a complete defense. Appellant emphasizes 

the fact that the victim previously claimed appellant was the shooter and later stated 

that appellant was not the shooter, but was merely a passenger in the vehicle. 

Although he pled guilty to complicity, complicity is present in every indictment, and the 

victim’s new statement at least makes appellant’s case more compelling as it is easier 

for the state to show intent for the actual shooter than for just an occupant of a vehicle. 

That is, a complicity case would be harder to prove than a case where the victim saw 

appellant fire a weapon. Consequently, the changed statement from the victim, 

denying that appellant was the shooter, is the type of occurrence that is material to a 

plea withdrawal motion and causes these two factors to weigh in favor of appellant. 

{¶19} In conclusion, the important factors of prejudice and timing weigh in 

appellant’s favor. Moreover, his reason for withdrawal is valid, and the victim’s new 
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statement places appellant’s defense in a better position than before. This is more 

than a mere change of heart. See Kramer, 7th Dist. No. 01CA107 at ¶ 58. Rather, 

there was a material change of fact or circumstance disclosed since the plea hearing. 

See Moore, 7th Dist. No. 06CO74 at ¶ 13. Finally, the trial court did not ensure that 

defense counsel and appellant were finished presenting their case for withdrawal, and 

it is uncertain whether the court even read the victim’s new statement. 

{¶20} For the foregoing reasons, the judgment of the trial court is hereby 

reversed and the case is remanded with orders to allow plea withdrawal. 

Donofrio, J., concurs. 

Waite, P.J., concurs.