[Cite as State v. Cobb, 2023-Ohio-4115.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2023 CA 0010 BRYANT KEITH COBB
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2022 CR 0147 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER RANDALL E. FRY PROSECUTING ATTORNEY 90 Darby Drive 38 South Park Street, Second Floor Lexington, Ohio 44904 Mansfield, Ohio 44902 Richland County, Case No. 2023 CA 0010 2
Wise, J.
{¶1} Appellant Bryant Keith Cobb appeals his conviction and sentence entered
in the Richland County Court of Common Pleas. Appellee is State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 11, 2022, Appellant was arrested on suspicion of theft. Upon
his arrest Appellant was advised of the consequences of bringing drugs into the jail.
Appellant became combative and was placed in a restraint chair where he was observed
attempting to hide a substance under the arm of the chair.
{¶3} Appellee then indicted Appellant for Illegal Conveyance of Drugs of Abuse
onto Grounds of a Specified Governmental Facility in violation of R.C. §2921.36(A)(2)
and R.C. §2921.36(G)(2) and Possession of Cocaine in violation of R.C.
§2925.11(C)(4)(a).
{¶4} On June 22, 2022, Appellant entered a plea of guilty to Illegal Conveyance
of Drugs of Abuse onto Grounds of a Specified Governmental Facility.
{¶5} On September 16, 2022, counsel for Appellant withdrew from the case.
{¶6} On November 2, 2022, Appellant filed a Motion to Withdraw Plea.
{¶7} On November 28, 2022, after a hearing the trial court denied the motion.
{¶8} On November 30, 2022, Appellant’s second counsel withdrew from
representation.
{¶9} On December 13, 2022, Appellant received a third appointed counsel.
{¶10} On January 18, 2023, Appellant was sentenced to eighteen months in
prison. Richland County, Case No. 2023 CA 0010 3
ASSIGNMENTS OF ERROR
{¶11} Appellant filed a timely notice of appeal. He herein raises the following
Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE APPELLANT
TO WITHDRAW HIS GUILTY PLEA TO THE CHARGE OF ILLEGAL CONVEYANCE OF
DRUGS OF ABUSE ONTO GROUNDS OF A SPECIFIED GOVERNMENTAL FACILITY.”
I.
{¶13} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by overruling Appellant’s motion to withdraw his guilty plea. We disagree.
{¶14} Crim.R. 32.1 governs withdrawals of guilty pleas. It provides that “[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.”
{¶15} Our review of a trial court’s decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must
determine the trial court’s decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983). “* * * [T]he good faith, credibility and weight of the movant’s
assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]
court.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the
syllabus. Richland County, Case No. 2023 CA 0010 4
{¶16} The Supreme Court of Ohio has stated a pre-sentence motion to withdraw
a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). 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 and legitimate basis for withdrawal of the plea.” Id. “[T]he trial court
must conduct a hearing to determine whether there is a reasonable and legitimate basis
for the withdrawal of the plea.” Id. Whether a “reasonable and legitimate basis” for the
withdrawal of a plea exists also lies within the trial court’s sound discretion. State v.
Rosemark, 116 Ohio App.3d 306, 308, 688 N.E.2d 22 (9th Dist.1996).
{¶17} The factors which may be considered by a trial court when making a
decision on a motion to withdraw a guilty plea include: (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. Fish, 104 Ohio
App.3d 236, 661 N.E.2d 788 (1st Dist.1995) No one Fish factor is conclusive. State v.
Cuthbertson, 139 Ohio App.3d 895, 899, 746 N.E.2d 197 (7th Dist.2000); State v. Shields,
5th Dist. Delaware No. 22 CAA 110079, 2023-Ohio-1561, 213 N.E.3d 1285, ¶11.
{¶18} In the case sub judice, granting the motion would not prejudice the State;
however, the other factors weigh against Appellant’s argument. Appellant was
represented by counsel at the time he pled guilty and there was an adequate Crim.R. 11
plea hearing. The trial court held a hearing on Appellant’s Motion to Withdraw Guilty Plea. Richland County, Case No. 2023 CA 0010 5
It is undisputed that the substance in question was tested by the Mansfield Police
Department Crime Lab and was positive for cocaine. Appellant seeks to independently
test the substance. During this hearing, Appellant opted not to present any testimony or
evidence calling into question the lab results or provide any reason to indicate the
substance was not cocaine. The trial court considered the Motion and the stated reasons
for the motion. The motion came over four months after Appellant entered a plea of guilty.
There is no indication Appellant was unaware of the nature and charges against him, and
Appellant did not present an argument that he is perhaps not guilty.
{¶19} After careful review of the record before us, we find Appellant has failed to
demonstrate a reasonable and legitimate basis to withdraw his plea, and the trial court
did not abuse its discretion in denying his request.
{¶20} Appellant’s sole Assignment of Error is overruled.
{¶21} For the foregoing reasons, the judgment of the Richland County Court of
Common Pleas, Ohio, is hereby, affirmed.
By: Wise, J.
Delaney, J., concurs.
Hoffman, P. J., dissents.
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[Cite as State v. Cobb, 2023-Ohio-4115.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2023 CA 0010 BRYANT KEITH COBB
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2022 CR 0147 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER RANDALL E. FRY PROSECUTING ATTORNEY 90 Darby Drive 38 South Park Street, Second Floor Lexington, Ohio 44904 Mansfield, Ohio 44902 Richland County, Case No. 2023 CA 0010 2
Wise, J.
{¶1} Appellant Bryant Keith Cobb appeals his conviction and sentence entered
in the Richland County Court of Common Pleas. Appellee is State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 11, 2022, Appellant was arrested on suspicion of theft. Upon
his arrest Appellant was advised of the consequences of bringing drugs into the jail.
Appellant became combative and was placed in a restraint chair where he was observed
attempting to hide a substance under the arm of the chair.
{¶3} Appellee then indicted Appellant for Illegal Conveyance of Drugs of Abuse
onto Grounds of a Specified Governmental Facility in violation of R.C. §2921.36(A)(2)
and R.C. §2921.36(G)(2) and Possession of Cocaine in violation of R.C.
§2925.11(C)(4)(a).
{¶4} On June 22, 2022, Appellant entered a plea of guilty to Illegal Conveyance
of Drugs of Abuse onto Grounds of a Specified Governmental Facility.
{¶5} On September 16, 2022, counsel for Appellant withdrew from the case.
{¶6} On November 2, 2022, Appellant filed a Motion to Withdraw Plea.
{¶7} On November 28, 2022, after a hearing the trial court denied the motion.
{¶8} On November 30, 2022, Appellant’s second counsel withdrew from
representation.
{¶9} On December 13, 2022, Appellant received a third appointed counsel.
{¶10} On January 18, 2023, Appellant was sentenced to eighteen months in
prison. Richland County, Case No. 2023 CA 0010 3
ASSIGNMENTS OF ERROR
{¶11} Appellant filed a timely notice of appeal. He herein raises the following
Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE APPELLANT
TO WITHDRAW HIS GUILTY PLEA TO THE CHARGE OF ILLEGAL CONVEYANCE OF
DRUGS OF ABUSE ONTO GROUNDS OF A SPECIFIED GOVERNMENTAL FACILITY.”
I.
{¶13} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by overruling Appellant’s motion to withdraw his guilty plea. We disagree.
{¶14} Crim.R. 32.1 governs withdrawals of guilty pleas. It provides that “[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.”
{¶15} Our review of a trial court’s decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must
determine the trial court’s decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983). “* * * [T]he good faith, credibility and weight of the movant’s
assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]
court.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the
syllabus. Richland County, Case No. 2023 CA 0010 4
{¶16} The Supreme Court of Ohio has stated a pre-sentence motion to withdraw
a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). 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 and legitimate basis for withdrawal of the plea.” Id. “[T]he trial court
must conduct a hearing to determine whether there is a reasonable and legitimate basis
for the withdrawal of the plea.” Id. Whether a “reasonable and legitimate basis” for the
withdrawal of a plea exists also lies within the trial court’s sound discretion. State v.
Rosemark, 116 Ohio App.3d 306, 308, 688 N.E.2d 22 (9th Dist.1996).
{¶17} The factors which may be considered by a trial court when making a
decision on a motion to withdraw a guilty plea include: (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. Fish, 104 Ohio
App.3d 236, 661 N.E.2d 788 (1st Dist.1995) No one Fish factor is conclusive. State v.
Cuthbertson, 139 Ohio App.3d 895, 899, 746 N.E.2d 197 (7th Dist.2000); State v. Shields,
5th Dist. Delaware No. 22 CAA 110079, 2023-Ohio-1561, 213 N.E.3d 1285, ¶11.
{¶18} In the case sub judice, granting the motion would not prejudice the State;
however, the other factors weigh against Appellant’s argument. Appellant was
represented by counsel at the time he pled guilty and there was an adequate Crim.R. 11
plea hearing. The trial court held a hearing on Appellant’s Motion to Withdraw Guilty Plea. Richland County, Case No. 2023 CA 0010 5
It is undisputed that the substance in question was tested by the Mansfield Police
Department Crime Lab and was positive for cocaine. Appellant seeks to independently
test the substance. During this hearing, Appellant opted not to present any testimony or
evidence calling into question the lab results or provide any reason to indicate the
substance was not cocaine. The trial court considered the Motion and the stated reasons
for the motion. The motion came over four months after Appellant entered a plea of guilty.
There is no indication Appellant was unaware of the nature and charges against him, and
Appellant did not present an argument that he is perhaps not guilty.
{¶19} After careful review of the record before us, we find Appellant has failed to
demonstrate a reasonable and legitimate basis to withdraw his plea, and the trial court
did not abuse its discretion in denying his request.
{¶20} Appellant’s sole Assignment of Error is overruled.
{¶21} For the foregoing reasons, the judgment of the Richland County Court of
Common Pleas, Ohio, is hereby, affirmed.
By: Wise, J.
Delaney, J., concurs.
Hoffman, P. J., dissents.
JWW/br 1101 Richland County, Case No. 2023 CA 0010 6
Hoffman, P.J., dissenting
{¶22} I respectfully dissent from the majority opinion. Giving credence to the Ohio
Supreme Court's directive motions to withdraw a plea prior to sentencing should be freely
and liberally granted, I would prepare an alternative disposition for this appeal.
{¶23} Appellant had a right to have the confiscated evidence independently
tested. Such testing would provide objective evidence of guilt or innocence, unlike an
appellant’s mere self-serving claim of general innocence. If the result of such testing
showed the confiscated evidence was not illegal drugs, and if such test was found by the
trier of fact to be accurate, Appellant would be exonerated of the charges. As noted by
the majority, granting the motion would not (otherwise) prejudice the state.
{¶24} Therefore, I would vacate the trial court's ruling denying Appellant's motion
to withdraw his plea and allow Appellant to independently test the evidence. If the result
of the testing confirmed the confiscated evidence contained illegal drugs, the trial court
would then simply re-enter its judgment denying Appellant's motion. If the result
determined the confiscated evidence did not contain illegal drugs, the trial court should
then grant Appellant's motion pursuant to the Ohio Supreme Court's pronouncement in
Xie.