[Cite as State v. Morris, 2014-Ohio-882.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

) CASE NO. 13 MA 19 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) O P I N I O N 

) 

JOSEPH MORRIS, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Case No. 12CR446. 

JUDGMENT: Affirmed. 

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 Damian Billak 

6715 Tippecanoe Road, 

Building F, Suite 100 

Canfield, Ohio 44406 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: March 5, 2014
[Cite as State v. Morris, 2014-Ohio-882.]

VUKOVICH, J. 

{¶1} Defendant-appellant Joseph Morris appeals the decision of the 

Mahoning County Common Pleas Court which denied his presentence motion to 

withdraw his guilty plea made on the day of sentencing, which was seven weeks after 

the plea had been entered. He urges that the factors weigh in favor of allowing plea 

withdrawal. However, we conclude that the trial court did not abuse its discretion in 

weighing the factors. In accordance, the judgment of the trial court is affirmed. 

STATEMENT OF THE CASE

{¶2} On March 16, 2012, appellant was arrested for possession of cocaine 

after a traffic stop in Struthers, Ohio. Within days, the court appointed an attorney, 

who represented appellant throughout the trial court proceedings. Appellant was 

thereafter indicted for fifth-degree felony possession of drugs in violation of R.C. 

2925.11(A),(C)(4)(a). 

{¶3} On May 20, 2012, his attorney filed a motion for intervention in lieu of 

conviction under R.C. 2951.041, and the court ordered a forensic examination for this 

purpose. However, appellant did not submit to such an evaluation, and when the 

case was called for a status hearing in October, counsel withdrew the motion for 

intervention (on appellant’s request) and asked the court to set the matter for a plea 

hearing on November 13. (Plea Tr. 6). When appellant failed to appear on 

November 13, 2012, the court issued a bench warrant for his arrest, which did not 

occur for a couple of weeks. 

{¶4} On December 4, 2012, the rescheduled plea hearing came before the 

court. The prosecution placed on the record that the offer negotiated by defense 

counsel was that the state would recommend community control if appellant pled to 

the offense but that appellant was rejecting the offer because he wanted new 

counsel. Defense counsel stated that appellant is not comfortable with her and that 

he feels like he does not understand her. (Plea Tr. 3). But, she stated that just 

before the judge walked into the courtroom, appellant may have changed his mind 

and she asked for time to confer with appellant. (Plea Tr. 3-4). 
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{¶5} Appellant then stated that he and his attorney have had communication 

difficulties from the start. He stated, “at this point I think I finally get exactly what the 

options are. I just wanted a few minutes to, you know, review each of them and 

decide what I wanted to do.” (Plea Tr. 4). He expressed that he originally did not 

“understand exactly what was going on step by step along the way” but that “I think I 

finally do, and I just wanted to take a minute and look at the different things and 

decide what I wanted to do.” (Plea Tr. 4-5). 

{¶6} The court thus asked if he wanted time to decide whether he wanted to 

take the state’s offer, but appellant responded, “No, Your Honor, I can’t do that.” 

(Plea Tr. 5). Upon further questioning, he disclosed that he wanted to consider 

refiling his motion for intervention in lieu of conviction. (Plea Tr. 5-6). The state 

objected and asked that the case be set for trial, pointing out that the case has been 

pending since March, the motion was filed months ago but later withdrawn, the 

defendant had enough time to consider his options, and the defendant already had a 

prior felony drug possession offense reduced to a misdemeanor. (Plea Tr. 6-7). The 

court agreed that the intervention in lieu of conviction is no longer an option. (Plea 

Tr. 7). 

{¶7} Appellant then decided that he would maintain his attorney’s 

representation and accept the state’s plea offer, stating: “If that’s off the table, I’d just 

as soon take the other -- the other offer she had today and just be done with it. 

Having another lawyer I don’t think’s going to change anything at this point. I don’t 

want to waste anymore of the court’s time. I’ll go with that then.” (Plea Tr. 7). The 

court still offered to appoint new counsel and continue the matter, but appellant 

clarified that he now wished to proceed to plead with current counsel. (Plea Tr. 8). 

The court then called for a recess so that appellant could further confer with his 

attorney. (Plea Tr. 9). 

{¶8} When the case came back on the record, defense counsel withdrew her 

motion to withdraw as counsel. The state placed the plea agreement on the record. 

The court read the indictment and ensured that appellant understood all of the rights 

he would be waiving by pleading guilty. (Plea Tr. 11-13). The court explained that 
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sentencing is up to the judge and that he could be sentenced that day but would not 

be as the court was ordering a presentence investigation. (Plea Tr. 13-14). The 

court stated that the maximum penalty was 12 months in prison, a $2,500 fine, and a 

license suspension ranging from six months to five years. (Plea Tr. 14). The court 

then detailed post-release control in the event of a prison sentence. (Plea Tr. 14-15). 

The court ensured that appellant was not under the influence of any substance, that 

he could read, that he went over the agreement with his counsel, that he had no 

questions about it, that he signed the agreement, and that he wished his signature to 

stay on it. (Plea Tr. 15-16). 

{¶9} The court then accepted appellant’s guilty plea. The defense requested 

bail be set again as appellant had been held on the bench warrant without bond. The 

state did not object but requested that it not be merely a recognizance bond. The 

court ordered bond of $2,500 with 10% acceptable, and appellant made bail. The 

court set sentencing for January 24, 2013 at 10 a.m. 

{¶10} Around 6 p.m. on January 22, 2013, appellant faxed a letter to his 

attorney, stating, “In reviewing my current situation, I did not fully understand the 

ramifications of my plea.” He then asked counsel to withdraw his plea. The letter 

also told counsel to “file a motion to enter me into Columbiana County’s equivalent of 

Drug Court.” The letter was provided to the (Mahoning County) court just prior to 

sentencing. 

{¶11} At the beginning of the sentencing hearing, defense counsel informed 

the court that appellant wished to withdraw his guilty plea and wanted new counsel. 

Counsel read the letter to the court. (Tr. 3). Counsel stated that appellant claims his 

plea was not entered voluntarily, knowingly, and intelligently and he believed the plea 

was the only way to be released from jail (on the bench warrant). (Tr. 3-4). 

{¶12} The court asked if appellant recalled the reading of the indictment at the 

plea hearing and the explanation of all of the rights he would be waiving, and the 

court then restated those rights. (Tr. 5-6). The court noted that appellant could read 

and that he had assured the court that he read the agreement with his lawyer. (Tr. 6-

7). Appellant agreed that he understood at the plea hearing that he could be 
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sentenced to one year in prison, be fined $2,500, and suffer a license suspension of 

six months to five years. (Tr. 8). The court pointed out that his bond had already 

been reduced due to the guilty plea. (Tr. 7). 

{¶13} The state protested that the case was nearly a year old, was not 

complicated, and there is no claim of actual innocence here, revealing that when the 

officer asked appellant if he had anything else in his car, appellant responded that he 

had a rock of crack which was then discovered. (Tr. 9-10, 13). The state disclosed 

that appellant is familiar with the system and his rights, stating that although he has 

no felony conviction, he has numerous misdemeanor convictions and his last felony 

charge was already reduced to a misdemeanor. (Tr. 10). The state mentioned that 

appellant benefited from the plea as he was provided a bond which he posted and 

that the plea agreement was favorable as the state agreed to recommend community 

control. (Tr. 10-11). 

{¶14} The prosecution opined that appellant’s counsel vigorously advocated 

for him, negotiating the plea, trying to get him into and then back into intervention, 

and asking for an amendment of the charges. The state expressed that the court’s 

plea colloquy was thorough and that there was no question that appellant knew what 

he was doing. (Tr. 11). The state concluded that the only perceivable basis for 

withdrawal was to prolong the case unnecessarily, suggesting that this seems to 

have been appellant’s intent all along. (Tr. 9-10, 12). As for prejudice, the state 

noted that the request for intervention delayed the process by months and then he 

failed to appear twice, causing nearly a year to pass. The state also mentioned that 

officers make many traffic stops and that memories fade as time passes. (Tr. 12). 

{¶15} Defense counsel agreed that the court’s plea colloquy was thorough. 

Counsel stated that appellant wanted another lawyer to file a motion for intervention 

in lieu of conviction. Appellant then added that he had not slept in the four days 

before his plea and that he “wasn’t fully understanding all the ramifications of what 

that involved.” (Tr. 13). The court then overruled the plea withdrawal motion and the 

motion for counsel’s withdrawal. 
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{¶16} The court imposed a jail sentence of 180 days suspended upon one 

year of successful community control which included completion of the in-house 

program at the Community Corrections Association. See 01/29/13 J.E. and 02/04/13 

J.E. The court also suspended appellant’s driver’s license for six months. Appellant 

filed a timely notice appeal. 

ASSIGNMENT OF ERROR

{¶17} Appellant’s sole assignment of error contends: 

{¶18} “The trial court abused its discretion in denying Appellant’s presentence motion to vacate his plea thereby requiring reversal.” 

{¶19} Absent a manifest injustice, a motion to withdraw a guilty plea can only 

be made prior to sentencing. Crim.R. 32.1. The rule provides no standard for ruling 

on a presentence motion to withdraw a plea. The Supreme Court has stated that 

such a motion “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 

521, 527, 584 N.E.2d 715 (1992). Still, the Court recognized that a defendant does 

not have an absolute right to withdraw a guilty plea merely because he makes his 

motion prior to sentencing. Id. There must be a reasonable and legitimate basis for 

plea withdrawal. Id. 

{¶20} Such a decision lies within the sound discretion of the trial court and will 

not be disturbed by a reviewing court absent an abuse of discretion. Id. A mere error 

in judgment is not an abuse of discretion; rather, we only reverse if the denial of plea 

withdrawal was unreasonable, arbitrary, or unconscionable. Id. The good faith, 

credibility, and weight of the movant's assertions in support of a Crim.R 32.1 motion 

are primarily questions for the trial court. Xie, 62 Ohio St.3d at 525 (presentence 

motion case), applying State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 

(1977) (a post-sentence motion case). 

{¶21} This court has set forth a non-exclusive list of factors to be weighed in 

considering whether to allow presentence plea withdrawal: (1) defense counsel’s 

representation, (2) whether the defendant understood the nature of the charges and 

potential sentences, (3) the extent of the plea hearing, (4) the extent of the plea 

withdrawal hearing, (5) whether the trial court gave full and fair consideration to the 
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motion, (6) the reasons for the motion, (7) whether the accused was perhaps not 

guilty or had a complete defense to the charge, (8) whether the timing of the motion 

was reasonable, and (9) whether the state will be prejudiced by withdrawal. State v. 

Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d 197 (7th Dist.2000), citing 

the factors first set forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 

(1st Dist.1995). 

{¶22} As the list is non-exclusive, a court can find other factors relevant as 

well. For instance, the length of time between the charges and the plea and the 

various occurrences on the docket prior to the plea are also relevant considerations 

that can support a determination that there existed thoughtful consideration of the 

plea and the ramifications of it versus taking the case to trial. State v. Lundy, 7th 

Dist. No. 07MA82, 2008-Ohio-1535, ¶ 23. As the evaluation of the factors is a matter 

of weighing, no one factor is conclusive. State v. Leasure, 7th Dist. No. 01BA42, 

2002-Ohio-5019, ¶ 19 (lack of prejudice to state is important, but the mere lack of 

prejudice does not mandate plea withdrawal); Cuthbertson, 139 Ohio App.3d at 899 

(reversing denial of plea withdrawal where no indication of prejudice to the state, 

counsel was not very involved in the request, the defendant claimed he was not 

murderer but was merely a witness, and the motion was timely filed two weeks before 

the sentencing hearing and a mere week after the plea). We proceed to review the 

factors in light of the particular circumstances in this case. 

{¶23} Regarding the representation afforded by defense counsel, appellant’s 

attorney filed the motion for treatment in lieu of conviction as appellant requested; the 

court ordered a forensic examination as a result. However, appellant failed to 

appear, and counsel withdrew the request as appellant requested. The prosecutor 

stated that defense counsel advocated appellant’s case effectively, unsuccessfully 

pressing for amendment to a misdemeanor, trying for the treatment option multiple 

times, and negotiating a recommendation of community control. (Sent. Tr. 11). The 

court inquired into the representation at the plea hearing as well. No specifics as to 

why appellant believed there was miscommunication were voiced at that time. And, 

there is still no explanation as to how exactly the representation was lacking. 
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{¶24} No allegations regarding the sufficiency of the Crim.R. 11 plea hearing 

are made here. It is clear the defendant understood the nature of the charges, his 

rights, and the potential sentences. The plea hearing and plea withdrawal hearing 

show that these matters were explained, and the written plea signed by appellant 

confirms this as well. The plea hearing was thorough as urged by the state and 

admitted by defense counsel. 

{¶25} As to the fourth factor, an acceptable hearing on plea withdrawal was 

also provided where the court reconfirmed that, at the time of the plea, appellant 

understood all of his rights and knew the elements and the maximum sentence. The 

state presented a fairly thorough argument against plea withdrawal, notwithstanding 

that it was not given a chance to prepare for the motion. Appellant was provided the 

opportunity to place his arguments into the record. Defense counsel recited 

appellant’s letter and had already provided the court with a copy. Counsel informed 

the court that appellant did not believe his plea was voluntary, knowing, and 

intelligent, explaining that appellant felt that pleading was the only way to be released 

from jail after his arrest on the bench warrant. Counsel disclosed that appellant 

wanted treated in lieu of conviction. Appellant spoke briefly, stating that he had not 

slept for four days before the plea and that he did not fully understand all of the 

ramifications. 

{¶26} On the fifth factor, appellant claims that the trial court did not give full 

and fair consideration to the motion. However, the court heard arguments by the 

state and by the defense. No one was cut off by the court. The court did not 

prejudge the motion before hearing everything everyone wanted to say. Contrary to 

any suggestion, there is no requirement that the trial court make findings as to its 

weighing of the factors. We also note that after the state presented its arguments 

against plea withdrawal, the court asked the state about prejudice, thus further 

evincing that the court was considering the factors. 

{¶27} As for appellant’s reasons for the motion, the sixth factor, these were 

not clear and could be considered unconvincing. He stated that he did not sleep four 

days before the plea hearing, which is something for the trial court to consider and 
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accept as a true and/or literal statement or not. Appellant said that at the time of his 

plea, he did not understand the ramifications of the plea. However, he did not 

explain what ramifications he did not fully understand at the time of the plea which 

caused him to want to withdraw it, and the court had no duty to attempt to drag 

specifics out of him. 

{¶28} He knew he could get a full year in prison (but he did not receive such a 

sentence of incarceration and instead received one year of community control.) He 

said he was trying to resolve his drug problem (and he received the in-house CCA 

program). He knew the maximum fine was $2,500 (and he received no fine). He 

knew his driver’s license could be suspended for between six months and five years 

(and his license was suspended for the minimum term). He knew the treatment in 

lieu of conviction was off the table. In short, appellant has not explained what 

ramifications he has since discovered that he was previously unaware of. Rather, his 

reasons could be seen as a mere a change of heart, which does not constitute 

grounds to grant a motion to withdraw a plea. See State v. Kramer, 7th Dist. No. 

01CA107, 2002-Ohio-4176, ¶ 50. 

{¶29} As for the seventh factor, there is no suggestion that he was not guilty 

or had a complete defense to the charge. There is no indication of any defense or 

tactic, except maybe the tactic of delay as the state suggests. Moreover, the case 

was not complicated, appellant told an officer during a traffic stop that he had crack 

cocaine, this crack cocaine was then retrieved, and appellant took responsibility and 

admitted what he did was wrong at sentencing. 

{¶30} Under the eighth factor, the timing of the motion was not reasonable. 

We have held that filing a plea withdrawal motion filed on the day of sentencing, six 

weeks after plea was entered, is a last minute motion practice that should be 

discouraged absent unusual circumstances. State v. Lundy, 7th Dist. No. 07MA82, 

2008-Ohio-1535, ¶ 22. Here, appellant faxed his request to counsel after office hours 

and thus essentially did not inform his attorney about his change of heart until the 

day before sentencing. The motion was then filed with the court on the morning of 

sentencing. The sentencing hearing had been set since the day of the plea, which 
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was entered more than seven weeks prior to sentencing. There is no explanation for 

the lateness of the request. 

{¶31} As for prejudice to the state, the prosecution voiced that the request for 

intervention delayed things by months and then he failed to appear twice, causing 

nearly a year to pass. The state mentioned that officers make many traffic stops and 

that memories may fade as time goes by. (Sent. Tr. 12). Also notable to this factor is 

the fact that the motion was not filed until sentencing so the state did not have time to 

fully prepare a response or contemplate all of the various instances of prejudice it 

may suffer. In any event, prejudice is merely one factor. 

{¶32} Finally, this was not a quick plea entered shortly after the charge. 

Appellant had time to consider his options. He wanted treatment in lieu of conviction 

and should have pursued that option when he was originally scheduled for forensic 

examination. By the time of the plea, he had failed to appear twice and his ability to 

engage in said option had passed. Furthermore, appellant had experience with the 

court system. As the state pointed out, he had a prior felony possession charge 

amended to a misdemeanor attempted possession charge in 2011; he also had 

various drug paraphernalia charges and convictions and also convictions for 

disorderly conduct, trespass, obstructing official business, and failure to comply with 

a signal of an officer. 

{¶33} Considering all of the factors, a reasonable trial court could weigh them 

in favor of the state and use its discretion to deny appellant’s presentence plea 

withdrawal motion For the foregoing reasons, the judgment of the trial court is 

hereby affirmed. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.