[Cite as State v. Bailey, 2013-Ohio-2852.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2012 CA 00183 MATTHEW W. BAILEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 00459(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE O'BYRNE PROSECUTING ATTORNEY 101 Central Plaza South RENEE M. WATSON Canton, Ohio 44702 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2012 CA 00183 2
Wise, P. J.
{¶1} Appellant Matthew W. Bailey appeals the decision of the Stark County
Court of Common Pleas denying his motion to withdraw his guilty pleas.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On April 24, 2012, Appellant, Matthew W. Bailey, was indicted by the
Stark County Grand Jury on one count of Felonious Assault, in violation of R.C.
§2903.11(A)(2), a second degree felony with a firearm specification pursuant to R.C.
§2941.145; one count of Illegal Cultivation of Marijuana, in violation of R.C.
§2925.04(A)(C)(5)(D), a second degree felony; and four counts of Endangering
Children, in violation of R.C. §2919.22(B)(6), third degree felonies.
{¶4} These charges arose out of an incident which occurred on March 3, 2012.
Two co-defendants, Jessica Brown and Rhonda Bailey were also charged as result of
the events which occurred on March 3, 2012.1
{¶5} On July 17, 2012, Appellant changed his plea to guilty to all indicted
charges. The trial court ordered a presentence investigation and set sentencing for
August 13, 2012.
{¶6} Appellant subsequently hired new counsel and on August 10, 2012,
Appellant filed a Motion to Withdraw Plea with the trial court. In said motion, Appellant
argued that he should be permitted to withdraw his pleas because he did not have the
benefit of his own independent legal counsel when he entered his pleas and allegedly
did not understand the ramifications of his pleas.
1 For purposes of this appeal, this Court finds that a recitation of the facts is unnecessary. Stark County, Case No. 2012 CA 00183 3
{¶7} The presentence investigation hearing was continued from August 13,
2012 to August 20, 2012. The trial court then scheduled the presentence investigation
hearing to August 27, 2012, and also set hearing on Appellant’s Motion to Withdraw for
the same day.
{¶8} On August 27, 2012, the trial court held a hearing on Appellant’s motion to
withdraw guilty pleas. During the hearing, counsel for Appellant advised the trial court
that Appellant had no issues with Attorney Pitinii’s representation, that he had done
nothing to jeopardize Appellant’s rights and that "everything was fine" in regard to their
attorney-client relationship. (T. 3-8). Appellant, through counsel, argued that while
Appellant was not challenging the drug charges, he did want to challenge the charge of
felonious assault with a firearm, arguing that he should have been charged with using
weapons while intoxicated instead. Id.
{¶9} Before taking the matter under advisement, the trial court pointed out that
using weapons while intoxicated is not a lesser included offense to felonious assault
with a firearm. Appellant acknowledged and agreed with the trial court. (T. at 13-14).
{¶10} By Judgment Entry filed August 30, 2012, the trial court overruled
Appellant's Motion to Withdraw Plea.
{¶11} The trial court sentenced Appellant to four (4) years on the felonious
assault charge, with three years to be served consecutive and prior to any other
sentence for the firearm specification. Appellant was sentenced to four (4) years on the
illegal cultivation of marijuana charge to be run concurrent with the felonious assault
sentence. On the child endangering charges, Appellant was sentenced to twelve Stark County, Case No. 2012 CA 00183 4
months for each count to be served concurrent with the drug charge, but consecutive to
the felonious assault charge, for an aggregate sentence of eight (8) years in prison
{¶12} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING
APPELLANT TO WITHDRAW HIS PLEA UPON HIS MOTION PRIOR TO
SENTENCING.”
I.
{¶14} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his pre-sentence motion to withdraw his guilty pleas. We disagree.
{¶15} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:
{¶16} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.”
{¶17} This rule establishes a fairly strict standard for deciding a post-sentence
motion to withdraw a guilty plea, but provides no guidelines for deciding a presentence
motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).
{¶18} The Ohio Supreme Court has stated pre-sentence motions to withdraw a
guilty plea “should be freely and liberally granted.” Id. at 584, 584 N.E.2d 715. That
does not mean, however, a defendant has an absolute right to withdraw a guilty plea
prior to sentencing. Id. at paragraph one of the syllabus. There must be “a reasonable Stark County, Case No. 2012 CA 00183 5
and legitimate basis for withdrawal of the plea.” Id. The decision to grant or deny a pre-
sentence plea withdrawal motion is within the trial court's sound discretion. Id.
{¶19} The factors to be considered when making a decision on a motion to
withdraw a guilty plea are as follows: (1) prejudice to the state; (2) counsel's
representation; (3) adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea
withdrawal hearing; (5) whether the trial court gave full and fair consideration to the
motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of
the nature of the charges and the potential sentences; and (9) whether the defendant
was perhaps not guilty or has a complete defense to the charge. State v. Cuthbertson,
139 Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish,
104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). No one Fish factor is absolutely
conclusive. Cuthbertson, supra.
{¶20} The trial court in this matter announced its decision on Appellant’s motion
on August 30, 2012, prior to sentencing. The trial court stated that it had given
Appellant's motion full consideration and found that he was represented by highly
competent counsel during his plea hearing and had been given a full Crim.R. 11 hearing
prior to the court’s acceptance of his guilty pleas. Next, the trial court noted it had
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[Cite as State v. Bailey, 2013-Ohio-2852.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2012 CA 00183 MATTHEW W. BAILEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 00459(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE O'BYRNE PROSECUTING ATTORNEY 101 Central Plaza South RENEE M. WATSON Canton, Ohio 44702 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2012 CA 00183 2
Wise, P. J.
{¶1} Appellant Matthew W. Bailey appeals the decision of the Stark County
Court of Common Pleas denying his motion to withdraw his guilty pleas.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On April 24, 2012, Appellant, Matthew W. Bailey, was indicted by the
Stark County Grand Jury on one count of Felonious Assault, in violation of R.C.
§2903.11(A)(2), a second degree felony with a firearm specification pursuant to R.C.
§2941.145; one count of Illegal Cultivation of Marijuana, in violation of R.C.
§2925.04(A)(C)(5)(D), a second degree felony; and four counts of Endangering
Children, in violation of R.C. §2919.22(B)(6), third degree felonies.
{¶4} These charges arose out of an incident which occurred on March 3, 2012.
Two co-defendants, Jessica Brown and Rhonda Bailey were also charged as result of
the events which occurred on March 3, 2012.1
{¶5} On July 17, 2012, Appellant changed his plea to guilty to all indicted
charges. The trial court ordered a presentence investigation and set sentencing for
August 13, 2012.
{¶6} Appellant subsequently hired new counsel and on August 10, 2012,
Appellant filed a Motion to Withdraw Plea with the trial court. In said motion, Appellant
argued that he should be permitted to withdraw his pleas because he did not have the
benefit of his own independent legal counsel when he entered his pleas and allegedly
did not understand the ramifications of his pleas.
1 For purposes of this appeal, this Court finds that a recitation of the facts is unnecessary. Stark County, Case No. 2012 CA 00183 3
{¶7} The presentence investigation hearing was continued from August 13,
2012 to August 20, 2012. The trial court then scheduled the presentence investigation
hearing to August 27, 2012, and also set hearing on Appellant’s Motion to Withdraw for
the same day.
{¶8} On August 27, 2012, the trial court held a hearing on Appellant’s motion to
withdraw guilty pleas. During the hearing, counsel for Appellant advised the trial court
that Appellant had no issues with Attorney Pitinii’s representation, that he had done
nothing to jeopardize Appellant’s rights and that "everything was fine" in regard to their
attorney-client relationship. (T. 3-8). Appellant, through counsel, argued that while
Appellant was not challenging the drug charges, he did want to challenge the charge of
felonious assault with a firearm, arguing that he should have been charged with using
weapons while intoxicated instead. Id.
{¶9} Before taking the matter under advisement, the trial court pointed out that
using weapons while intoxicated is not a lesser included offense to felonious assault
with a firearm. Appellant acknowledged and agreed with the trial court. (T. at 13-14).
{¶10} By Judgment Entry filed August 30, 2012, the trial court overruled
Appellant's Motion to Withdraw Plea.
{¶11} The trial court sentenced Appellant to four (4) years on the felonious
assault charge, with three years to be served consecutive and prior to any other
sentence for the firearm specification. Appellant was sentenced to four (4) years on the
illegal cultivation of marijuana charge to be run concurrent with the felonious assault
sentence. On the child endangering charges, Appellant was sentenced to twelve Stark County, Case No. 2012 CA 00183 4
months for each count to be served concurrent with the drug charge, but consecutive to
the felonious assault charge, for an aggregate sentence of eight (8) years in prison
{¶12} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING
APPELLANT TO WITHDRAW HIS PLEA UPON HIS MOTION PRIOR TO
SENTENCING.”
I.
{¶14} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his pre-sentence motion to withdraw his guilty pleas. We disagree.
{¶15} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:
{¶16} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.”
{¶17} This rule establishes a fairly strict standard for deciding a post-sentence
motion to withdraw a guilty plea, but provides no guidelines for deciding a presentence
motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).
{¶18} The Ohio Supreme Court has stated pre-sentence motions to withdraw a
guilty plea “should be freely and liberally granted.” Id. at 584, 584 N.E.2d 715. That
does not mean, however, a defendant has an absolute right to withdraw a guilty plea
prior to sentencing. Id. at paragraph one of the syllabus. There must be “a reasonable Stark County, Case No. 2012 CA 00183 5
and legitimate basis for withdrawal of the plea.” Id. The decision to grant or deny a pre-
sentence plea withdrawal motion is within the trial court's sound discretion. Id.
{¶19} The factors to be considered when making a decision on a motion to
withdraw a guilty plea are as follows: (1) prejudice to the state; (2) counsel's
representation; (3) adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea
withdrawal hearing; (5) whether the trial court gave full and fair consideration to the
motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of
the nature of the charges and the potential sentences; and (9) whether the defendant
was perhaps not guilty or has a complete defense to the charge. State v. Cuthbertson,
139 Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish,
104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). No one Fish factor is absolutely
conclusive. Cuthbertson, supra.
{¶20} The trial court in this matter announced its decision on Appellant’s motion
on August 30, 2012, prior to sentencing. The trial court stated that it had given
Appellant's motion full consideration and found that he was represented by highly
competent counsel during his plea hearing and had been given a full Crim.R. 11 hearing
prior to the court’s acceptance of his guilty pleas. Next, the trial court noted it had
reviewed the transcript of Appellant's plea hearing and found he understood the nature
of the charges and the possible penalties when he entered his pleas. Finally, the court
stated that there was no question as to Appellant's guilt on the marijuana and child
endangering charges, and even if Appellant believed he had a defense to the charge of
felonious assault, that issue had previously been brought to the attention of the court
and discussed when Appellant was represented by former counsel. The trial court Stark County, Case No. 2012 CA 00183 6
concluded by remarking that there was no pressure on Appellant to plead to the
charges, and that he had been afforded at least six (6) pre-trials prior to his decision to
enter his guilty pleas.
{¶21} Based upon the above, we do not find the trial court abused its discretion
in denying Appellant's motion to withdraw his pleas.
{¶22} Appellant’s sole Assignment of Error is overruled.
{¶23} For the foregoing reasons, the decision of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, P. J.
Baldwin, J., and
Delaney, J., concur
___________________________________
JUDGES JWW/d 0614 Stark County, Case No. 2012 CA 00183 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MATTHEW W. BAILEY : : Defendant-Appellant : Case No. 2012 CA 00183
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES