[Cite as State v. Bisson, 2013-Ohio-2141.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2012-P-0050

 - vs - :

JOHN R. BISSON, :

 Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 

0793. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

Leonard J. Breiding, II, 4825 Almond Way, Ravenna, OH 44266 (For DefendantAppellant). 

THOMAS R. WRIGHT, J. 

{¶1} This appeal is from the final judgment in a criminal proceeding before the 

Portage County Court of Common Pleas. Appellant, John R. Bisson, contests the 

denial of his presentencing motion to withdraw his guilty plea and sentence. 

{¶2} In December 2011, appellant was indicted on charges of felonious assault, 

aggravated possession of drugs, and disruption of public services. Regarding felonious 

assault, the indictment alleges appellant threatened his wife’s well being by pointing a 

shotgun at her. Initially, he entered a not guilty plea to all three charges, and his pre-
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trial bond was set at $50,000, cash or surety. The parties then engaged in discovery 

over the next two months. 

{¶3} Appellant’s trial counsel negotiated a plea agreement with the state. As 

part of the terms, the state agreed to dismiss the counts of aggravated drug possession 

and disruption of public services. In response, appellant agreed to plead guilty to the 

lesser offense of attempted aggravated assault, a felony of the fifth degree under R.C. 

2903.11 and 2923.02. 

{¶4} The trial court conducted an oral hearing on the plea agreement, during 

which the court fully explained to appellant the legal ramifications of entering the guilty 

plea. During this proceeding, the trial court heard testimony from appellant’s wife as to 

whether she would fear for her safety if the requirements for appellant’s release on bond 

were altered. 

{¶5} At the conclusion of the “plea” hearing, the trial court accepted appellant’s 

guilty plea and referred the case to the adult probation department for preparation of a 

presentencing report. The trial court also reset appellant’s bond to “$50,000 Personal 

Recognizance.” 

{¶6} The final sentencing hearing was set for April 16, 2012. Three days prior 

to the hearing, appellant filed a motion to withdraw his guilty plea under Crim.R. 32.1. 

As the sole basis for the motion, he asserted that the plea should be set aside because 

he did not “feel” that he was guilty of attempted aggravated assault. 

{¶7} At the outset of the sentencing hearing, the trial court allowed appellant to 

testify as to the reasons for his request to withdraw the guilty plea. Upon the conclusion 

of this testimony, the trial court overruled the motion to withdraw, holding that relief was 

not warranted because appellant was only concerned with the ramifications of having a 
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felony conviction on his record. The court then proceeded to hear oral arguments from 

both sides in regard to sentencing and appellant’s relinquishment of certain firearms. At 

the close of the hearing, the trial court ordered him to serve 100 days in the county jail, 

and placed him on probation for a total of 60 months. As to the probation, the court also 

ordered that the first nine months would involve intensive supervision by the probation 

department. Moreover, appellant’s violation of community control sanctions would 

result in more severe community control sanctions or a specific prison term of one year. 

Finally, as part of his community control, appellant was required to continue counseling 

and find full-time employment within six months. 

{¶8} After the trial court issued its final written judgment concerning the motion 

to withdraw and the imposition of sentence, appellant filed a timely notice of appeal. He 

now raises the following two assignments of error for review: 

{¶9} “[1.] The trial court erred in sentencing the appellant by imposing more 

than the minimum sentence and by imposing an improper sentence. 

{¶10} “[2.] The trial court erred in overruling appellant’s pre-sentence motion to 

withdraw his guilty plea.” 

{¶11} Under his first assignment, appellant contests the length of his community 

control/probation. Specifically, he maintains that the trial court abused its discretion in 

imposing a “greater than the minimum” period in which he will be subject to supervision 

of the adult probation department. According to appellant, the trial court erred in failing 

to base its determination of 60 months on the relevant statutory factors governing felony 

sentencing. 

{¶12} In essence, appellant submits that the length of his “probation” sentence 

must be reversed because there is no indication in the record that the trial court actually 
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considered the necessary factors. As both sides aptly note, whether a trial court has an 

obligation to render findings of fact in a sentencing context has been the topic of 

substantial analysis in recent years. In summarizing the present state of the law on this 

point, this court has said: 

{¶13} “Our review of the relevant case law readily shows that, since the demise 

of ‘judicial fact-finding’ in [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856], Ohio 

courts have been mandated to follow a two-prong test in reviewing the legal propriety of 

a felony sentence. See, generally, State v. Kirkpatrick, 11th Dist. No. 2010-T-0025, 

2010-Ohio-6578, at ¶16-22. Under the first prong of this test, the imposed sentence is 

examined to determine if it complies with all applicable rules and statutes; in performing 

this purely legal analysis, an appellate court can only strike down the sentence when it 

is clearly and convincingly contrary to law. State v. Bever, 11th Dist. No. 2010-L-022, 

2010-Ohio-6443, at ¶40, citing [State v.] Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

* * *. If the first prong is met, it must then be determined whether, even though the term 

was within the permissible statutory range, its imposition still resulted in an abuse of 

discretion by the trial court. Kirkpatrick, 2010-Ohio-6578, at ¶21. In the context of 

sentencing, this court has indicated that an abuse of discretion occurs when the trial 

court’s judgment does not comport with reason or the record. Bever, 2010-Ohio-6443, 

at ¶40. 

{¶14} “In applying the foregoing test, we have also stated that R.C. 2929.11 and 

2929.12 delineate specific factors which a trial court is required to consider as a general 

guide for imposing a sentence. Id. at ¶41. However, in satisfying this obligation, the 

trial court does not have a corresponding duty to divulge its analysis of the various 

factors: 
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{¶15} “‘It is well-settled that R.C. 2929.12 does not require a sentencing court to 

discuss the statutory criteria on the record or even to state on the record that it has 

considered them. State v. Chapdelaine, 11th Dist. No. 2009-L-166, 2010-Ohio-2683, at 

¶14. In fact, the Court in Kalish noted that where a sentencing court does not 

memorialize on the record that it considered the factors, a presumption arises that the 

factors were properly considered. (Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912), at ¶27, 

* * *, f.n. 4. “By implication, as long as there is some indication that the factors were 

considered, a reviewing court is bound to uphold the sentence.” Chapdelaine, supra.’ 

Id. at ¶42. 

{¶16} “See, also, State v. Tenney, 11th Dist. No. 2009-A-0015, 2010-Ohio-6248, 

at ¶14, in which this court concluded that a silent record raises a presumption that the 

relevant statutory factors were duly considered before the sentencing determination was 

made.” State v. Vargo, 11th Dist. No. 2010-P-0065, 2011-Ohio-6690, ¶21-24. 

{¶17} In this case, the transcript of the sentencing hearing demonstrates that the 

trial court never expressly discussed any of the statutory factors for felony sentencing 

under R.C. 2929.11 and 2929.12. Similarly, even though the trial court stated in its final 

judgment that it considered the relevant statutory factors, it did not provide an analysis 

as to any individual factor. However, in light of the Vargo precedent, the absence of any 

discussion of the factors does not warrant the conclusion that trial court failed to employ 

the appropriate analysis. Rather, given the silent record, it must be presumed that the 

trial court followed the proper procedure and fully considered all relevant statutory 

factors before imposing appellant’s sentence. 

{¶18} Furthermore, the record before this court does not contain statements by 

the trial court rebutting the foregoing presumption. That is, there were no statements 
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indicating that the trial court ignored the statutory sentencing factors. 

{¶19} In challenging the propriety of his sentence, appellant does not contest 

that the length of both his jail term and “community control” period lies within the 

statutory parameters for a fifth-degree felony. Since his sentence was clearly not 

contrary to the law, he can only obtain reversal of his sentence by establishing that the 

trial court abused its discretion. To this end, he only argues that the record supports the 

conclusion that the trial court did not base its sentencing determination upon the 

statutory factors in R.C. 2929.11 and 2929.12 which has already been addressed 

above. Moreover, we find no abuse of discretion. 

{¶20} Appellant threatened his wife by pointing a shotgun at her. Moreover, 

during the sentencing hearing, the assistant prosecutor presented letters appellant 

wrote while being held in the county jail showing he was trying to conceal the number of 

firearms he owned in order to avoid forfeiture. 

{¶21} Taken as a whole, the trial court did not abuse its discretion in ordering 

appellant to serve 100 days in jail and placing him on community control/probation for 

60 months. The first assignment lacks merit. 

{¶22} Appellant’s second assignment pertains to the denial of his presentence 

motion to withdraw his guilty plea. He submits that withdrawal of the plea was justified 

because his decision to plead guilty was not made under optimal circumstances. 

{¶23} Crim.R. 32.1 expressly allows for the submission of a motion to withdraw a 

guilty plea prior to the imposition of sentence. When the motion is made in a timely 

manner, it should be granted liberally. State v. Johnson, 11th Dist. No. 2007-L-195, 

2008-Ohio-6980, ¶20. Nevertheless, there is no absolute right to withdraw a guilty plea 

before sentencing, and the motion may be overruled when there is no reasonable and 
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legitimate basis for allowing withdrawal of the plea. State v. Parham, 11th Dist. No. 

2011-P-0017, 2012-Ohio-2833, ¶17, quoting State v. Xie, 62 Ohio St.3d 521, paragraph 

one of the syllabus (1992). Moreover, since the determination of a motion to withdraw 

lies within the trial court’s sound discretion, the scope of our appellate review is limited 

to an “abuse-of-discretion” analysis. State v. Shaffer, 11th Dist. No. 2006-P-0115, 

2007-Ohio-6404, ¶15. 

{¶24} This court employs a four-prong standard for determining whether an 

abuse of discretion has occurred. Under this standard, the denial should be upheld: 

“‘(1) where the accused is represented by highly competent counsel, (2) where the 

accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, 

(3) when, after the motion to withdraw is filed, the accused is given a complete and 

impartial hearing on the motion, and (4) where the record reveals that the court gave full 

and fair consideration to the plea withdrawal request.’” Parham, 2012-Ohio-2833, at 

¶19, quoting State v. Peterseim, 68 Ohio App.2d 211, paragraph three of the syllabus 

(8th Dist.1980). 

{¶25} Appellant maintains that his plea was not made knowingly because the 

trial court did not go to any “unusual lengths” to ensure that he fully understood the 

ramifications of his guilty plea. 

{¶26} However, during cross-examination, appellant specifically replied “yes” 

when he was asked if he understood the explanation of the rights he waived by pleading 

guilty. Furthermore, when the prosecutor asked whether he was subjected to coercion 

rendering his plea involuntary, appellant answered “no.” Therefore, appellant’s 

testimony establishes that he was not seeking to withdraw his guilty plea because he 

unknowingly or involuntarily entered into the plea. In addition, the trial court fully 
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complied with the requirements of Crim.R. 11(C) in addressing appellant regarding the 

legal effect of entering a guilty plea. 

{¶27} As his second challenge under the Peterseim standard, appellant submits 

that his trial counsel was not competent because counsel did not file pre-trial motions. 

{¶28} However, trial counsel filed motions for discovery and for a bill of 

particulars. Additionally, there is nothing before this court indicating that trial counsel 

failed to file other warranted motions or fully pursue defenses to the charges before 

appellant entered the guilty plea. Accordingly, appellant fails to establish that he was 

denied representation by competent counsel. 

{¶29} Regarding the remaining Peterseim factors, a complete and impartial 

hearing was held on his motion to withdraw, and the trial court fairly considered the 

merits of the motion before rendering its decision. Thus, appellant fails to demonstrate 

an abuse of discretion in the denial of his motion to withdraw his plea. Appellant’s 

second assignment also lacks merit. 

{¶30} Since neither of appellant’s two assignments have merit, it is the judgment 

and order of this court that the judgment of the Portage County Court of Common Pleas 

is affirmed. 

TIMOTHY P. CANNON, P.J., 

CYNTHIA WESTCOTT RICE, J., 

concur.