[Cite as State v. Williams, 2010-Ohio-5193.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, CASE NO. 1-10-24 

 PLAINTIFF-APPELLEE, 

 v. 

KURT WILLIAMS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2002 0109 

Judgment Reversed and Cause Remanded 

Date of Decision: October 25, 2010 

 

APPEARANCES: 

Michael J. Short, for Appellant 

Jana E. Emerick, for Appellee 
Case No. 1-10-24 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Kurt Williams (“Williams”) brings this appeal 

from the judgment of the Court of Common Pleas of Allen County denying his 

motion to withdraw his guilty plea. For the reasons set forth below, the judgment 

is reversed. 

{¶2} On January 5, 2004, Williams entered a guilty plea to one count of 

trafficking in crack cocaine. Pursuant to the negotiated plea, Williams was 

sentenced to ten years in prison. On December 18, 2009, Williams filed a motion 

for a new sentencing hearing alleging that the trial court had failed to properly 

advise him of his post-release control. Williams then filed a motion to withdraw 

his guilty plea on January 15, 2010. The trial court overruled the motion to 

withdraw his guilty plea without a hearing. On January 21, 2010, a new 

sentencing hearing was held and Williams was again sentenced to ten years in 

prison. Williams appeals from the denial of his motion to withdraw his guilty plea 

without a hearing and raises the following assignment of error. 

The trial court erred in overruling [Williams’] pre-sentence 

motion to withdraw his guilty plea without a hearing. 

{¶3} This court notes that this is an unusual case in that the State concurs 

with Williams’ assignment of error. Since the trial court erred in failing to 

properly advise Williams about post-release control at his first sentencing hearing, 

the first sentence is a nullity. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-
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1197, 884 N.E.2d 568. Thus, the motion to withdraw the guilty plea should have 

been treated as one filed prior to sentencing. State v. Boswell, 121 Ohio St.3d 

575, 2009-Ohio-1577, 906 N.E.2d 422. 

[A] presentence motion to withdraw a guilty plea should be 

freely and liberally granted. Nevertheless, it must be recognized 

that a defendant does not have an absolute right to withdraw a 

plea prior to sentencing. Therefore, the trial court must 

conduct a hearing to determine whether there is a reasonable 

and legitimate basis for the withdrawal of the plea. 

State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. Although the 

scope of the hearing might be limited to the substantive merits of the 

motion, the defendant is “at least entitled to a determination as to whether 

there was a reasonable and legitimate basis for withdrawing his plea.” State 

v. Robinson, 8th Dist. No. 89651, 2008-Ohio-4866, ¶33. 

{¶4} In this case, both Williams and the State agree that the motion to 

withdraw the guilty plea was a pre-sentence motion. The trial court also 

recognized that the motion was a pre-sentence motion. However, the trial court 

then proceeded to use a post-sentence standard for determining whether a hearing 

should be held. No hearing of any kind was held. Williams is at least entitled to 

an opportunity to present evidence as to why he should be allowed to withdraw 

his plea. Pursuant to Xie, the trial court was required to hold a hearing to 
Case No. 1-10-24 

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determine whether the pre-sentence motion to withdraw the guilty plea should 

have been granted.1

 For this reason, the assignment of error is sustained. 

{¶5} The judgment of the Court of Common Pleas of Allen County is 

reversed and the matter is remanded for further proceedings. 

Judgment Reversed and Cause Remanded 

PRESTON, J., concurs. 

/jnc 

ROGERS, J., dissents. 

{¶6} I respectfully dissent from the majority opinion. I would find that 

the trial court was not required to hold an oral hearing on Williams’ motion; that 

the trial court utilized the appropriate standard for a pre-sentence motion to 

withdraw a guilty plea; and, consequently, that the trial court did not abuse its 

discretion in denying Williams’ motion. 

{¶7} In its thorough six-page judgment entry, the trial court appropriately 

identified that the motion at issue was a pre-sentence motion to withdraw a guilty 

plea. Consequently, the trial court cited State v. Xie (1992), 62 Ohio St.3d 521, 

syllabus, for the propositions that “[a] defendant does not have an absolute right 

to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing 

to determine whether there is a reasonable and legitimate basis for the withdrawal 

 

1

 Although the dissent discusses reasons why the motion could be overruled, all of the factors raised by 

the dissent are appropriate for consideration by the trial court at the oral hearing it must hold. 
Case No. 1-10-24 

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of the plea,” and that “[t]he decision to grant or deny a presentence motion to 

withdraw a guilty plea is within the sound discretion of the trial court.” 

{¶8} Courts have found that pre-sentence motions to withdraw a guilty 

plea “should be ‘freely and liberally granted,’ and a hearing is ordinarily required 

to determine whether a reasonable and legitimate basis exists on which the plea 

may be withdrawn. While the Xie court failed to specifically set forth what type 

of hearing is required, it is axiomatic that such hearing must comport with the 

minimum standards of due process, i.e., meaningful notice and an opportunity to 

be heard. Xie, however, does not require that a full evidentiary hearing be held in 

all cases.” (Internal citations omitted) State v. Robinson, 8th Dist. No. 89651, 

2008-Ohio-4866, ¶24, citing Xie, supra, Fuentes v. Shevin (1972), 407 U.S. 67, 

80. Additionally, courts have held that “the scope of a hearing on an appellant’s 

motion to withdraw his guilty plea should reflect the substantive merits of the 

motion.” Robinson, 2008-Ohio-4866, at ¶25, citing State v. Smith, 8th Dist. No. 

61464, 1992 WL 369273 (finding that “bold assertions without evidentiary 

support simply should not merit the type of scrutiny that substantiated allegations 

would merit”). Cf. Buckeye Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio 

App.3d 134 (finding that “[i]t is acceptable practice * * * for trial courts to 

dispose of motions without formal hearing, so long as due process rights are 

afforded”). But see State v. Conschafsky, 4th Dist. No. 95CA2345, 1995 WL 

702531 (finding that “[i]t is not an abuse of discretion for the trial court to rule on 
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a post-sentence motion without first conducting an oral hearing when a colorable 

claim has not been made in the motion[,]” but that, “[i]n cases involving 

presentence motions to withdraw a guilty plea, the trial court must conduct a 

hearing”). 

{¶9} Additionally, when deciding a motion to withdraw a plea, courts 

have found the following list of non-exhaustive factors pertinent: “(1) whether the 

prosecution would be prejudiced if the plea was vacated; (2) whether the accused 

was represented by highly competent counsel; (3) whether the accused was given 

a full Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5) 

whether the trial court gave full and fair consideration to the motion; (6) whether 

the motion was made within a reasonable time; (7) whether the motion set forth 

specific reasons for the withdrawal; (8) whether the accused understood the nature 

of the charges and possible penalties; and (9) whether the accused was perhaps 

not guilty or had a complete defense to the crime.” State v. Fish (1995), 104 Ohio 

App.3d. 236, 240. See also State v. Lane, 3d Dist. No. 1-01-69, 2001-Ohio-2299. 

{¶10} Here, the judgment entry reflects that the trial court appropriately 

considered all nine factors in deciding Williams’ motion. Additionally, the trial 

court found that Williams sought withdrawal of his plea based on a claim that was 

conclusively and irrefutably contradicted by the record. I would find that, given 

the clear lack of substantive merit of the motion and lack of evidentiary support, 

the trial court did not err in refusing to hold an oral hearing. I would find that the 
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trial court’s thorough consideration of Williams’ arguments in its judgment entry 

gave him meaningful notice and an opportunity to be heard. Consequently, I 

would affirm the judgment of the trial court.