[Cite as State v. Delpinal, 2016-Ohio-5646.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellate Case Nos. 2015-CA-97 Plaintiff-Appellee : Appellate Case Nos. 2015-CA-98 : v. : Trial Court Case Nos. 14-CR-770 : Trial Court Case Nos. 15-CR-46 TRAVIS DELPINAL : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :
...........
OPINION
Rendered on the 2nd day of September, 2016.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, Post Office Box 231, Harveysburg, Ohio 45032 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Travis Delpinal appeals from his conviction and sentence following
negotiated guilty pleas to charges of felonious assault and third-degree-felony OVI with a -2-
related specification.
{¶ 2} In his sole assignment of error, Delpinal contends the trial court erred in
overruling a presentence motion to withdraw his guilty pleas.
{¶ 3} The record reflects that Delpinal was charged in two separate cases with (1)
two counts of felony OVI with prior-offense specifications and (2) felonious assault and
abduction. The cases were being tracked together but on April 20, 2015, Delpinal entered
a negotiated plea of guilty on the OVI case to one count of OVI and the specification in
exchange for dismissal of the other count and its specification. That case was set for
sentencing on May 27, 2015, but upon Delpinal’s motion, the sentencing was reset for
July 28, 2016 to coincide with his trial on the felonious assault case. On July 28th, the
cases were continued until August 5th, 2016 because Delpinal had been arrested at 3:30
or 4:00 that morning for domestic violence and other charges and when he was brought
to court he was still “highly intoxicated.” On August 4th, 2016, he separately pled guilty to
felonious assault in exchange for dismissal of the abduction charge and an agreement
for a three-year prison sentence to be served concurrently with whatever sentence he
received in the OVI case. The sentencing was set for August 11, 2016 in both cases. The
record reveals that the trial court conducted complete Crim.R. 11 plea hearings in both
cases, accepted the pleas, and found Delpinal guilty.
{¶ 4} During the sentencing hearing for both cases, but before Delpinal’s sentence
was announced, defense counsel advised the trial court that his client wanted to withdraw
the guilty pleas. Upon being prompted by his attorney, Delpinal stated, “Yeah, I want to.”
(Disposition Tr. at 6). Defense counsel then told his client to “speak up,” and Delpinal
added, “I want to talk to another attorney.” (Id.). The trial court responded by finding -3-
“[i]nsufficient grounds” and overruling the oral motion. (Id.). The trial court then asked
Delpinal “is there anything you want to say at this time, sir?” (Id.). Delpinal shook his head.
The court inquired “No? Okay,” and he shook his head again. (Id.). The court proceeded
to impose a three-year prison sentence for the OVI, a consecutive two-year prison
sentence for the related specification, and a concurrent three-year prison sentence for
the felonious assault.
{¶ 5} On appeal, Delpinal challenges the trial court’s denial of his plea-withdrawal
motion. He asserts that the trial court “virtually ignored” his request and “refused to
investigate” the basis for his motion. (Appellant’s brief at 4). He argues that the trial court’s
apparent “impatience” with his motion and its “summary manner of dispatching” his
request reflect an abuse of the trial court’s discretion. (Id. at 5).
{¶ 6} Criminal Rule 32.1 governs motions to withdraw a plea. It provides: “A motion
to withdraw a plea of guilty or no contest may be made only before sentence is imposed;
but to correct a manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.”
{¶ 7} A presentence motion to withdraw a guilty plea “should be freely and liberally
granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). But even under
the presentence standard, the right to withdraw a plea is not absolute. A trial court retains
discretion to overrule a presentence motion. Id. We review a trial court’s ruling on a
presentence motion to withdraw a plea for an abuse of discretion. State v. Massey, 2d
Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 10, citing State v. DeJesus, 2d Dist.
Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16.
{¶ 8} When reviewing a trial court’s denial of a presentence motion to withdraw a -4-
plea, this court frequently has examined the following factors:
(1) whether the accused [was] represented by highly competent counsel,
(2) whether the accused was given a full Crim.R. 11 hearing before entering
the plea, (3) whether a full hearing was held on the motion, (4) whether the
trial court gave full and fair consideration to the motion, (5) whether the
motion was made within a reasonable time, (6) whether the motion sets out
specific reasons for the withdrawal, (7) whether the accused understood the
nature of the charges and possible penalties, (8) whether the accused was
perhaps not guilty of or had a complete defense to the charge or charges,
and (9) whether the state is prejudiced by withdrawal of the plea.
Massey at ¶ 11, quoting State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st
Dist. 1995); see also State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390,
¶ 29; State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶ 16.
{¶ 9} A balancing test applies to the foregoing factors, and no single factor in
isolation is dispositive. Massey at ¶ 11. The ultimate question is whether there exists a
“reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio St.3d at
527. A “change of heart” is not enough. Spurgeon at ¶ 18.
{¶ 10} Here the record supports a finding that Delpinal was represented by
competent counsel, and Delpinal himself acknowledged below that he was satisfied with
counsel’s representation. He also received a full Crim.R. 11 hearing before entering his
guilty pleas. Among other things, Delpinal was advised of the nature of the charges and
the penalties, and he indicated that he understood. Nothing in the record suggests that
Delpinal had a defense to the charges or was in fact not guilty. The OVI charge involved -5-
him crashing a vehicle, fleeing the scene, and being found under the influence of alcohol.
The felonious assault charge involved him hitting a woman and causing a facial fracture.
The record also supports a finding that Delpinal’s oral plea-withdrawal motion was not
made within a “reasonable time” because he did not raise the issue until after his
sentencing hearing had commenced. See, e.g., State v. Hill, 7th Dist. Carroll No. 12 CA
881, 2013-Ohio-2552, ¶ 29.
{¶ 11} With regard to the other factors, Delpinal did receive a hearing on his plea-
withdrawal motion. Indeed, he broached the subject during a hearing. See State v.
Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 20 (citing case law for the
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[Cite as State v. Delpinal, 2016-Ohio-5646.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellate Case Nos. 2015-CA-97 Plaintiff-Appellee : Appellate Case Nos. 2015-CA-98 : v. : Trial Court Case Nos. 14-CR-770 : Trial Court Case Nos. 15-CR-46 TRAVIS DELPINAL : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :
...........
OPINION
Rendered on the 2nd day of September, 2016.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, Post Office Box 231, Harveysburg, Ohio 45032 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Travis Delpinal appeals from his conviction and sentence following
negotiated guilty pleas to charges of felonious assault and third-degree-felony OVI with a -2-
related specification.
{¶ 2} In his sole assignment of error, Delpinal contends the trial court erred in
overruling a presentence motion to withdraw his guilty pleas.
{¶ 3} The record reflects that Delpinal was charged in two separate cases with (1)
two counts of felony OVI with prior-offense specifications and (2) felonious assault and
abduction. The cases were being tracked together but on April 20, 2015, Delpinal entered
a negotiated plea of guilty on the OVI case to one count of OVI and the specification in
exchange for dismissal of the other count and its specification. That case was set for
sentencing on May 27, 2015, but upon Delpinal’s motion, the sentencing was reset for
July 28, 2016 to coincide with his trial on the felonious assault case. On July 28th, the
cases were continued until August 5th, 2016 because Delpinal had been arrested at 3:30
or 4:00 that morning for domestic violence and other charges and when he was brought
to court he was still “highly intoxicated.” On August 4th, 2016, he separately pled guilty to
felonious assault in exchange for dismissal of the abduction charge and an agreement
for a three-year prison sentence to be served concurrently with whatever sentence he
received in the OVI case. The sentencing was set for August 11, 2016 in both cases. The
record reveals that the trial court conducted complete Crim.R. 11 plea hearings in both
cases, accepted the pleas, and found Delpinal guilty.
{¶ 4} During the sentencing hearing for both cases, but before Delpinal’s sentence
was announced, defense counsel advised the trial court that his client wanted to withdraw
the guilty pleas. Upon being prompted by his attorney, Delpinal stated, “Yeah, I want to.”
(Disposition Tr. at 6). Defense counsel then told his client to “speak up,” and Delpinal
added, “I want to talk to another attorney.” (Id.). The trial court responded by finding -3-
“[i]nsufficient grounds” and overruling the oral motion. (Id.). The trial court then asked
Delpinal “is there anything you want to say at this time, sir?” (Id.). Delpinal shook his head.
The court inquired “No? Okay,” and he shook his head again. (Id.). The court proceeded
to impose a three-year prison sentence for the OVI, a consecutive two-year prison
sentence for the related specification, and a concurrent three-year prison sentence for
the felonious assault.
{¶ 5} On appeal, Delpinal challenges the trial court’s denial of his plea-withdrawal
motion. He asserts that the trial court “virtually ignored” his request and “refused to
investigate” the basis for his motion. (Appellant’s brief at 4). He argues that the trial court’s
apparent “impatience” with his motion and its “summary manner of dispatching” his
request reflect an abuse of the trial court’s discretion. (Id. at 5).
{¶ 6} Criminal Rule 32.1 governs motions to withdraw a plea. It provides: “A motion
to withdraw a plea of guilty or no contest may be made only before sentence is imposed;
but to correct a manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.”
{¶ 7} A presentence motion to withdraw a guilty plea “should be freely and liberally
granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). But even under
the presentence standard, the right to withdraw a plea is not absolute. A trial court retains
discretion to overrule a presentence motion. Id. We review a trial court’s ruling on a
presentence motion to withdraw a plea for an abuse of discretion. State v. Massey, 2d
Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 10, citing State v. DeJesus, 2d Dist.
Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16.
{¶ 8} When reviewing a trial court’s denial of a presentence motion to withdraw a -4-
plea, this court frequently has examined the following factors:
(1) whether the accused [was] represented by highly competent counsel,
(2) whether the accused was given a full Crim.R. 11 hearing before entering
the plea, (3) whether a full hearing was held on the motion, (4) whether the
trial court gave full and fair consideration to the motion, (5) whether the
motion was made within a reasonable time, (6) whether the motion sets out
specific reasons for the withdrawal, (7) whether the accused understood the
nature of the charges and possible penalties, (8) whether the accused was
perhaps not guilty of or had a complete defense to the charge or charges,
and (9) whether the state is prejudiced by withdrawal of the plea.
Massey at ¶ 11, quoting State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st
Dist. 1995); see also State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390,
¶ 29; State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶ 16.
{¶ 9} A balancing test applies to the foregoing factors, and no single factor in
isolation is dispositive. Massey at ¶ 11. The ultimate question is whether there exists a
“reasonable and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio St.3d at
527. A “change of heart” is not enough. Spurgeon at ¶ 18.
{¶ 10} Here the record supports a finding that Delpinal was represented by
competent counsel, and Delpinal himself acknowledged below that he was satisfied with
counsel’s representation. He also received a full Crim.R. 11 hearing before entering his
guilty pleas. Among other things, Delpinal was advised of the nature of the charges and
the penalties, and he indicated that he understood. Nothing in the record suggests that
Delpinal had a defense to the charges or was in fact not guilty. The OVI charge involved -5-
him crashing a vehicle, fleeing the scene, and being found under the influence of alcohol.
The felonious assault charge involved him hitting a woman and causing a facial fracture.
The record also supports a finding that Delpinal’s oral plea-withdrawal motion was not
made within a “reasonable time” because he did not raise the issue until after his
sentencing hearing had commenced. See, e.g., State v. Hill, 7th Dist. Carroll No. 12 CA
881, 2013-Ohio-2552, ¶ 29.
{¶ 11} With regard to the other factors, Delpinal did receive a hearing on his plea-
withdrawal motion. Indeed, he broached the subject during a hearing. See State v.
Burnett, 2d Dist. Montgomery No. 20496, 2005-Ohio-1036, ¶ 20 (citing case law for the
proposition that allowing argument on a plea-withdrawal motion during a sentencing
hearing can constitute a full hearing on the withdrawal issue). Whether Delpinal received
a “full” hearing, and whether the trial court gave “full and fair” consideration to his plea-
withdrawal motion is perhaps debatable. In resolving these questions, however, we
cannot ignore another of the factors mentioned above, namely whether Delpinal’s oral
motion identified specific reasons for his withdrawal request. As set forth above, Delpinal
received an opportunity to identify the basis for the request. He responded by stating, in
general terms, that he wanted “to talk to another attorney.” Given the non-specific nature
of this response, the trial court’s own cursory response of “insufficient grounds” was
permissible. Although the better practice would have been for the trial court to inquire why
he wanted to consult new counsel, Delpinal, as the moving party, bore the responsibility
to make his reasons known when given the opportunity to do so. In our view, the trial
court’s finding of “insufficient grounds” was an adequate, even if less than ideal, response
to Delpinal’s non-specific explanation for his plea-withdrawal request. -6-
{¶ 12} We recognize that we just recently decided State v. Bush, 2d Dist. Clark
Nos. 2015-CA-39 through -42, 2016-Ohio-5536 where we remanded that Appellant’s
request to withdraw his plea, made at the sentencing, for a hearing. We noted that “the
ultimate question is whether Bush had a ‘reasonable and legitimate basis’ to withdraw his
plea, other than a change of heart.” Id., ¶ 12. The trial court had overruled Bush’s request
to withdraw before he was given an opportunity to speak. When he was asked if he had
anything to say at allocution, Bush indicated his reasons to withdraw his pleas were the
victim of some of the offenses had changed her story, that he had other information that
would provide a defense and he had paperwork to prove everything. We distinguish the
result in Bush, where we were unable to determine if Bush’s stated reasons to withdraw
his plea were simply a change of heart. Consequently we remanded for a hearing. Here,
the defendant did not articulate any factual or legal reason to withdraw his pleas, one of
which had been made over three months earlier without expression of discontent in the
interim. His stated desire to speak with another lawyer was simply insufficient.
{¶ 13} The only remaining factor is whether withdrawal of Delpinal’s pleas would
have prejudiced the State. Although nothing in the record indicates that prejudice would
have resulted, we are convinced, based on our consideration of all of the pertinent factors,
that the trial court did not abuse its discretion in overruling Delpinal’s motion.
{¶ 14} The assignment of error is overruled, and the judgment of the Clark County
Common Pleas Court is affirmed.
............. -7-
FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Megan M. Farley Thomas W. Kidd, Jr. Hon. Richard J. O’Neill