[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, Assistant State Public 

Defender, Columbus, Ohio, for appellant. 

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee. 

______________________________________________________________________ 

Hess, J. 

{¶1} Melody D. Curtis appeals her conviction for one count of illegal 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 presentence motion to 

withdraw her guilty plea. Because the trial court’s decision was not unreasonable, 

arbitrary, or unconscionable, we overrule the assignment of error and affirm the trial 

court’s judgment. 

I. FACTS AND PROCEDURAL HISTORY 

{¶2} In July 2017, the Meigs County grand jury indicted Curtis on one 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 December 
Meigs App. No. 20CA6 2 

14, 2017, she pleaded guilty to the illegal cultivation count in 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 signed a statement 

acknowledging that her attorney “advised me of my rights, of the nature of the 

allegations against me, of the possible penalties, possible defenses 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 understood “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 she understood “the 

Court alone determines the appropriate sentence” and could impose “the maximum 

sentence(s).” During the plea colloquy, the trial court gave Curtis information about the 

illegal cultivation charge and possible penalties, and Curtis told the court that she 

understood the nature of the charge, the possible penalties, the 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 sentence 

prescribed by law. The trial court accepted the plea, found Curtis guilty, ordered a presentence investigation, and set the matter for a sentencing hearing on January 24, 

2018. 

{¶3} At the January 24th hearing, defense counsel suggested that Curtis had 

been growing marihuana for personal, medicinal use and had about 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 eight 
Meigs 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 acknowledged 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 Curtis pulling out a gun in his 

presence and about a possible prior arrest of Curtis in Tennessee. 

{¶4} The court rescheduled the sentencing hearing for February 21, 2018, and 

26 minutes before the hearing, Curtis filed a motion to withdraw her guilty plea pursuant 

to Crim.R. 32.1. Curtis claimed that she had painful medical problems 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 able 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 possess or grow more 

marijuana than could be used for medicinal purposes” and claimed 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 evidence against her “by 

duress.” 

{¶5} The trial court denied the motion and sentenced Curtis. She appealed, 

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 remanded for the trial 

court to conduct a hearing that complied with due process standards. 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 trial court made at the 

January 24, 2018 hearing. She did not think the court understood that she only had five 

or six mature plants for personal, medicinal use and that she had 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 realize” that the trial court 

could impose whatever sentence it wanted and heard that the judge 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 testified 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 repercussions 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 questions 

from [the previous trial judge], was having second thoughts about the plea 

of guilty she made. 

However, this Court finds that there is no legitimate or reasonable 

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, voluntarily and 

intelligently entering into the guilty plea. At the June 12, 2019 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 abused its 

discretion when it denied Melody Curtis’ pretrial motion to withdraw 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 presentence 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 grant 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 unconscionable 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 defendant; (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 the defendant 

filed the motion within a reasonable time; (6) whether the defendant’s 

motion gave specific reasons for the withdrawal; (7) whether the 

defendant understood the nature of the charges, the possible penalties, 
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 withdraw his plea will prejudice the 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 one 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 withdrawal 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 ‘undue 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 credibility 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 motion 
Meigs 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 the 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 authority cited is Crim.R. 32.1) 

indicate it could have been filed more than 26 minutes before the 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 provided specific reasons for 

why she wanted to withdraw her guilty plea weighs in favor of granting 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 assertions 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 evident that the trial court did not 

find the specific reasons for withdrawal credible. 

{¶15} The seventh factor (whether the defendant understood the nature of the 

charges, the possible penalties, and the consequences of the plea) weighs against 

granting the motion to withdraw. Curtis maintains that her testimony 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 when she pleaded guilty, 
Meigs App. No. 20CA6 8 

she “was not aware that the Revised Code provides an affirmative 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 not have to follow the agreed 

sentencing recommendation, and that she “did not realize the consequences 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 bolstered by Curtis’s signed 

statement acknowledging that her attorney advised her of the nature of the allegations, 

the possible penalties, the possible defenses, and the consequences 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 supported by her 

statements during the plea colloquy acknowledging that she understood the nature of 

the charges, the possible penalties, the fact that a guilty plea 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 impose a harsher sentence 

than she anticipated when she entered the guilty plea. “ ‘[A] change 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 in favor of granting the 

motion to withdraw. Curtis perhaps has a personal use affirmative defense to the fifthdegree felony illegal cultivation charge. See R.C. 2925.04(F) (“It is an affirmative 
Meigs 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 the 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 establish “by a 

preponderance of the evidence the affirmative defense,” she “may be prosecuted for 

and may be convicted of or plead guilty to a misdemeanor violation 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 motion to withdraw. The state 

suggests it could have difficulty locating the investigating officers 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 is 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 trial court’s determination 

that there was no reasonable and legitimate basis for the withdrawal 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 the 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 separately to dispel 

appellant’s belief that a reasonable possibility exists that she could have somehow 

successfully established the R.C. 2925.04(F) personal use affirmative defense for 

marijuana cultivation, and thereby could have received a misdemeanor conviction rather 

than a felony conviction. 

{¶20} Appellant argues that to alleviate pain from medical issues, she cultivated 

several mature plants. This number appears to range from six, eight or ten mature 

plants, along with fifty to sixty “seedlings,” or, in other words, future mature plants. The 

trial court aptly noted that it is difficult to accept appellant’s assertion that her crop would 

be used solely for her personal use. I agree with the trial court’s view. 

{¶21} I recognize that R.C.2925.04(F), Ohio’s personal use affirmative defense, 

does not specify a certain quantity of cultivated marijuana plants. Nevertheless, the 

quantity that appellant cultivated exceeds any reasonable possibility for the personal 

use defense. Also, the personal use defense is limited to the sole 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 medical patients. However, 
Meigs App. No. 20CA6 11 

even in states that permit the recreational use of marijuana, strict limits are imposed on 

the number of plants that a landowner may cultivate for personal use (See, e.g., 

Vermont - two plants; Oregon - four; California and Colorado - six). 

{¶23} Consequently, I agree with the trial court that the personal use defense 

would not have application here. I do believe, however, that in the interest of judicial 

economy, and to eliminate guesswork concerning the actual number of plants permitted 

under Ohio’s personal use defense, the Revised Code should specify 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 directing the Meigs 

County Court of Common Pleas to carry this judgment into execution. 

 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 upon 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 notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, 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 pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion with Concurring Opinion. 

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 final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.