[Cite as State v. Curtis , 2021-Ohio-1145.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY

State of Ohio, : Case No. 20CA6 Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY Melody D. Curtis, : Defendant-Appellant. : RELEASED 3/23/2021

_______________________________________________________________ _______ APPEARANCES: Timothy Young, Ohio Public Defender, and Victoria Bader, Assist ant State Public Defender, Columbus, Ohio, for appellant. James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, O hio, for appellee.

_______________________________________________________________ _______ Hess, J. {¶1} Melody D. Curtis appeals her conviction for one count of illega l cultivation of marihuana. In her sole assignment of error, Curtis contends that the Meigs County Common Pleas Court abused its discretion when it denied her pre sentence motion to withdraw her guilty plea. Because the trial court’s decision w as not unreasonable, arbitrary, or unconscionable, we overrule the assignment of err or and affirm the trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY {¶2} In July 2017, the Meigs County grand jury indicted Curtis on on e count of illegal cultivation of marihuana in violation of R.C. 2925.04(A ) and (C)(5)(c) and one count of possession of marihuana in violation of R.C. 2925.11(A ) and (C)(3)(c), both fifth-degree felonies. Curtis initially pleaded not guilty to the charges, but on DecemberMeigs App. No. 20CA6 2

14, 2017, she pleaded guilty to the illegal cultivation count i n exchange for dismissal of the possession count. The state agreed to recommend a sentence of five years of community control and a six-month license suspension. Curtis si gned a statement acknowledging that her attorney “advised me of my rights, of th e nature of the allegations against me, of the possible penalties, possible def enses which I might have and of the consequences of any admissions or pleas of guilty,” that she was “satisfied” with counsel’s competence and advice, that she understood “the nature of these charges and the possible defense(s) I might have,” that she und erstood “that the Court and the Court alone does sentencing and that the plea agreement is only a recommendation, and is not binding upon the Court,” and that sh e understood “the Court alone determines the appropriate sentence” and could impo se “the maximum sentence(s).” During the plea colloquy, the trial court gave C urtis information about the illegal cultivation charge and possible penalties, and Curtis t old the court that she understood the nature of the charge, the possible penalties, th e fact that a guilty plea was a complete admission to the allegations, and that the court was not bound by the agreed sentencing recommendation and could impose the maximum s entence prescribed by law. The trial court accepted the plea, found Cu rtis guilty, ordered a presentence investigation, and set the matter for a sentencing hea ring on January 24,

2018. {¶3} At the January 24th hearing, defense counsel suggested that Cur tis had been growing marihuana for personal, medicinal use and had abou t eight plants. The trial court pointed out that one of the investigating officers had written a statement indicating Curtis had around 50 to 60 plants. Defense counsel claimed about eightMeigs App. No. 20CA6 3

plants were “maturing” and the rest were “like little seedlings .” The court pointed out that seedlings grow and said, “It almost sounds like to me that maybe I, you know, I’ve got some illnesses but maybe I was taking care of illnesses for , you know, three or four hundred * * * other people.” However, the court later acknowle dged it should look at the pictures of the grow operation. The court also indicated that it wanted clarification regarding a statement an investigating officer made about Curti s pulling out a gun in his presence and about a possible prior arrest of Curtis in Tenness ee. {¶4} The court rescheduled the sentencing hearing for February 21, 2 018, and 26 minutes before the hearing, Curtis filed a motion to withdra w her guilty plea pursuant to Crim.R. 32.1. Curtis claimed that she had painful medical p roblems and that she had

“received information from numerous sources that she could find pain relief by natural sources, such as marijuana.” She “believed that she would be a ble to grow her own marijuana for medicinal purposes, and that such marijuana would be considered a minor misdemeanor for legal purposes.” She “had no intent to p ossess or grow more marijuana than could be used for medicinal purposes” and claime d the plants seized by the Rutland Police Department “were mostly baby seedlings that could not be used for any illegal purpose.” She also claimed that police seized evid ence against her “by

duress.” {¶5} The trial court denied the motion and sentenced Curtis. She app ealed, and we reversed the trial court’s judgment on the basis that it abused its discretion by not holding a mandatory hearing on the motion to withdraw and r emanded for the trial court to conduct a hearing that complied with due process stand ards. State v. Curtis , 4th Dist. Meigs No. 18CA12, 2019-Ohio-1108, ¶ 15.Meigs App. No. 20CA6 4

{¶6} On remand, the trial court conducted a hearing on the motion to withdraw.

Curtis testified that she was concerned about statements the tr ial court made at the January 24, 2018 hearing. She did not think the court understo od that she only had five or six mature plants for personal, medicinal use and that she h ad 30 or 40 cuttings (which did not contain THC or CBD) to replace the mature plants as they died. Curtis

testified that she “didn’t understand that the law read that I could have been charged

with a misdemeanor.” Curtis also testified that she “came to r ealize” that the trial court could impose whatever sentence it wanted and heard that the jud ge who was presiding over her case at the time she filed the motion to withdraw gave “very severe” sentences and “usually does the maximum penalty.” In addition, Curtis te stified that she did not want a felony on her record. She explained, “I had no idea * * * what a felony can do to you. * * * I did not understand fully what all of the repercus sions of signing that piece of paper were.” {¶7} The trial court denied the motion to withdraw, stating: The Court understands that the Defendant, based upon the questi ons from [the previous trial judge], was having second thoughts abo ut the plea of guilty she made. However, this Court finds that there is no legitimate or reason able basis to set aside the plea of guilty other than the Defendant simply changed her mind or got cold feet after she entered the plea. A review of the plea indicates no abnormity of lack of knowingly, voluntari ly and intelligently entering into the guilty plea. At the June 12, 2 019 hearing Defendant argued that after she entered the plea of guilty, she felt the Judge may have had “a tinge of bias”. Subsequently, the court resentenced Curtis.Meigs App. No. 20CA6 5

II. ASSIGNMENT OF ERROR {¶8} Curtis presents one assignment of error: “The trial court abuse d its discretion when it denied Melody Curtis’ pretrial motion to wit hdraw her guilty plea.”

III. LAW AND ANALYSIS {¶9} In the sole assignment of error, Curtis asserts that the trial court abused its discretion when it denied her motion to withdraw her guilty plea. {¶10} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty * * * may be made only before sentence is imposed * * *.” Although “a prese ntence motion to withdraw a guilty plea should be freely and liberally granted,” “a defendant does not have an absolute right to withdraw a plea prior to sentencing.” State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). “ ‘The decision to gran t or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court’ and will

not be reversed absent an abuse of that discretion.” State v. McCoy , 4th Dist. Gallia No. 19CA4, 2020-Ohio-3088, ¶ 12, quoting Xie at paragraph two of the syllabus. An “abuse of discretion” is “an unreasonable, arbitrary, or uncons cionable use of discretion” or “a view or action that no conscientious judge could honestly have taken.” State v. Brady , 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. {¶11} Nine factors we consider when reviewing a trial court’s ruling on a presentence motion to withdraw a guilty plea are: (1) whether “highly competent counsel” represented the defendan t; (2) whether the trial court afforded the defendant “a full Crim.R. 11 hearing before entering the plea”; (3) whether the trial court held “a full hearing” regarding the defendant’s motion to withdraw; (4) “whether the trial court gave full and fair consideration to the motion”; (5) whether th e defendant filed the motion within a reasonable time; (6) whether the defe ndant’s motion gave specific reasons for the withdrawal; (7) whether th e defendant understood the nature of the charges, the possible pe nalties,Meigs App. No. 20CA6 6

and the consequences of his plea; (8) whether the defendant is “perhaps not guilty or ha[s] a complete defense to the charges”; and (9) whether permitting the defendant to withdr aw his plea will prejudice th e state. (Alteration in Howard .) State v. Howard , 2017-Ohio-9392, 103 N.E.3d 108, ¶ 24 (4th Dist.), quoting State v. McNeil , 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st Dist.). “ ‘ “Consideration of the factors is a balancing test, and no o ne factor is conclusive.” ’ ”

Id. , quoting State v. Jones , 10th Dist. Franklin No. 15AP-530, 2016-Ohio-951, ¶ 14, quoting State v. Zimmerman , 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶ 13. “ ‘The ultimate question is whether there exists a “reasonable and legitimate basis for the withdrawal of the plea.” ’ ” Id. , quoting State v. Delpinal , 2d Dist. Clark Nos. 2015- CA-97 & 2015-CA-98, 2016-Ohio-5646, ¶ 9, quoting Xie at 527. “A mere change of heart is not a legitimate and reasonable basis for the withdraw al of a plea.” Id. {¶12} Curtis implicitly concedes that factors one through four weigh against granting the motion to withdraw, i.e., that she was represented by highly competent counsel, that she had a full Crim.R. 11 hearing, that she had a full hearing on her motion to withdraw, and that the court gave her motion full and fair consideration. She asserts that only factors five through nine weigh in her favor. {¶13} The fifth factor (whether the defendant filed the motion within a reasonable time) weighs against granting the motion to withdraw. “An ‘und ue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibil ity of the movant and militating against the granting of the motion.’ ” State v. Burke , 4th Dist. Lawrence Nos. 19CA1 & 19CA2, 2019-Ohio-4744, ¶ 16, quoting State v. Bush , 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14. Curtis asserts that the impetus for the motionMeigs App. No. 20CA6 7

to withdraw was the trial court’s statements at the January 24, 2018 hearing. While the four weeks that elapsed between this event and the filing of th e motion is not a long period in itself, the brevity of the motion (the memorandum in support is just over a page long) and its lack of legal complexity (the only legal authorit y cited is Crim.R. 32.1)

indicate it could have been filed more than 26 minutes before t he sentencing hearing. See generally State v. Collins , 2020-Ohio-3356, 155 N.E.3d 232, ¶ 26 (7th Dist.), quoting State v. Perez , 7th Dist. Mahoning No. 12 MA 110, 2013-Ohio-3587, ¶ 17 (“ ‘Generally, the timing of a motion to withdraw a plea presented on the day of sentencing is treated as being unreasonable’ ”). {¶14} With regard to the sixth factor (whether the defendant’s motion gave specific reasons for the withdrawal), the fact that Curtis prov ided specific reasons for why she wanted to withdraw her guilty plea weighs in favor of g ranting the motion to withdraw. However, “[w]hen reviewing a trial court’s ruling on a motion to withdraw a plea, ‘the good faith, credibility and weight of the movant’s a ssertions in support of the motion are matters to be resolved by that court.’ ” Burke at ¶ 17, quoting State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. In this case, as we will discuss under the seventh factor, it is eviden t that the trial court did not find the specific reasons fo r withdrawal credible. {¶15} The seventh factor (whether the defendant understood the nature of the charges, the possible penalties, and the consequences of the pl ea) weighs against granting the motion to withdraw. Curtis maintains that her tes timony shows she did not understand the legal basis for the charges or the consequences of a felony conviction. Specifically, Curtis claims her testimony demonstrates that whe n she pleaded guilty,Meigs App. No. 20CA6 8

she “was not aware that the Revised Code provides an affirmativ e defense when an individual establishes that the marijuana was for personal use under R.C. 2925.04(F),” that she “did not fully comprehend” that the trial court did no t have to follow the agreed sentencing recommendation, and that she “did not realize the co nsequences of having a felony conviction.” However, the trial court rejected these reasons, finding that Curtis “simply changed her mind or got cold feet.” This finding is bo lstered by Curtis’s signed statement acknowledging that her attorney advised her of the na ture of the allegations, the possible penalties, the possible defenses, and the conseque nces of a guilty plea and that she understood the nature of the charges, her possible defenses, and that the court was not bound by the recommended sentence. It is also su pported by her statements during the plea colloquy acknowledging that she unde rstood the nature of the charges, the possible penalties, the fact that a guilty ple a was a complete admission to the allegations, and the trial court’s role in sentencing. In addition, some of Curtis’s testimony at the hearing on the motion to withdraw suggests she wanted to withdraw her plea because she feared that the trial court was going to i mpose a harsher sentence than she anticipated when she entered the guilty plea. “ ‘[A] c hange of heart due to knowledge that an unexpected sentence will be imposed is not a sufficient ground to vacate a plea.’ ” State v. Delaney , 4th Dist. Jackson No. 19CA9, 2020-Ohio-7036, ¶ 21, quoting State v. Terrell , 2d Dist. Greene No. 2004 CA 119, 2005-Ohio-4523, ¶ 23. {¶16} The eighth factor (whether the defendant is perhaps not guilty or has a complete defense to the charges) is entitled to little weight i n favor of granting the motion to withdraw. Curtis perhaps has a personal use affirmat ive defense to the fifthdegree felony illegal cultivation charge. See R.C. 2925.04(F) (“It is an affirmativeMeigs App. No. 20CA6 9

defense * * * to a charge under this section for a fifth degree felony violation of illegal cultivation of marihuana that the marihuana that gave rise to t he charge is in an amount, is in a form, is prepared, compounded, or mixed with substances that are not controlled substances in a manner, or is possessed or cultivated under any other circumstances that indicate that the marihuana was solely for personal use”). But even if she could sustain “the burden of going forward with evidence of” and esta blish “by a preponderance of the evidence the affirmative defense,” she “ma y be prosecuted for and may be convicted of or plead guilty to a misdemeanor violat ion of illegal cultivation

of marihuana.” Id. Moreover, the personal use affirmative defense does not apply to the fifth-degree felony possession charge. {¶17} The ninth factor (whether permitting the defendant to withdraw the plea will prejudice the state) weighs in favor of granting the motio n to withdraw. The state suggests it could have difficulty locating the investigating of ficers because they are no longer employed by the Village of Rutland. However, the state admits that “the record does not support the claim of prejudice to the State,” so “it i s understandable if this factor is weighed in favor of [Curtis].” {¶18} After balancing the above factors, the majority of which weigh against granting the motion to withdraw, we cannot conclude that the tr ial court’s determination that there was no reasonable and legitimate basis for the withd rawal of the guilty plea was unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion when it denied the presentence motion to withdraw th e guilty plea. Accordingly, we overrule the assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.Meigs App. No. 20CA6 10

Abele, J., concurring in judgment and opinion:

{¶19} I concur in both the judgment and the opinion. I write separate ly to dispel appellant’s belief that a reasonable possibility exists that sh e could have somehow successfully established the R.C. 2925.04(F) personal use affir mative defense for marijuana cultivation, and thereby could have received a misdem eanor conviction rather than a felony conviction. {¶20} Appellant argues that to alleviate pain from medical issues, sh e cultivated several mature plants. This number appears to range from six, e ight or ten mature plants, along with fifty to sixty “seedlings,” or, in other wor ds, future mature plants. The trial court aptly noted that it is difficult to accept appellan t’s assertion that her crop would be used solely for her personal use. I agree with the trial cou rt’s view. {¶21} I recognize that R.C.2925.04(F), Ohio’s personal use affirmativ e defense, does not specify a certain quantity of cultivated marijuana pla nts. Nevertheless, the quantity that appellant cultivated exceeds any reasonable possi bility for the personal use defense. Also, the personal use defense is limited to the s ole personal use of the named defendant, not personal use generally. State v. Sacks , 86 Ohio App.3d 29, 619 N.E.2d 1135 (1993). {¶22} In November 2015, Ohio voters, by a two to one margin, rejected Issue 3, a proposed amendment to the Ohio Constitution to permit the use of recreational marijuana. Ohio and many other states flatly prohibit marijuana cultivation, although some states do offer a personal use defense. Some states permit persons to cultivate a limited number of plants for medical purposes for approved medi cal patients. However,Meigs App. No. 20CA6 11

even in states that permit the recreational use of marijuana, s trict limits are imposed on the number of plants that a landowner may cultivate for persona l use (See, e.g., Vermont - two plants; Oregon - four; California and Colorado - six). {¶23} Consequently, I agree with the trial court that the personal us e defense would not have application here. I do believe, however, that in the interest of judicial economy, and to eliminate guesswork concerning the actual numbe r of plants permitted under Ohio’s personal use defense, the Revised Code should spec ify the parameters of the personal use defense. Thus, appellant would have had notice of the number of plants that she could maintain for medical issues and then risk the commission of a misdemeanor offense rather than a felony offense.Meigs App. No. 20CA6 12

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Meigs County Court of Common Pleas to carry this judgment into execut ion.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upo n the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the Appellant to file a not ice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursu ant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additional ly, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J.: Concurs in Judgment a nd Opinion with Concurring Opin ion. Wilkin, J.: Concurs in Judgment and Opinion.

For the Court

BY : ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.