[Cite as State v. Driscol, 2022-Ohio-1810.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-21-36
v.
MICHAEL L. DRISCOL, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Trial Court No. CR 21 04 0080
Judgment Affirmed
Date of Decision: May 31, 2022
APPEARANCES:
Samantha L. Berkhofer for Appellant
Stacia L. Rapp for Appellee Case No. 8-21-36
SHAW, J.
{¶1} Defendant-appellant, Michael Driscol (“Driscol”), brings this appeal
from the November 4, 2021, judgment of the Logan County Common Pleas Court
sentencing him to three years of community control after he pled no contest to, and
was convicted of, Failure to Comply with an Order or Signal of a Police Officer in
violation of R.C. 2921.331(B), a third degree felony, and Menacing in violation of
R.C. 2903.22(A), a fourth degree misdemeanor. On appeal, Driscol argues that the
trial court erred by denying his presentence motion to withdraw his no contest pleas.
Background
{¶2} On March 28, 2021, Driscol allegedly threatened a woman with a knife
while he was in his home.1 The woman left in a vehicle and Driscol followed her
in his own vehicle. Driscol tailed the woman, passed her, and stopped in front of
her. At the time, the woman believed Driscol was going to harm her.
{¶3} Law enforcement attempted to initiate a traffic stop of Driscol’s vehicle,
activating lights and sirens. Driscol fled from law enforcement, driving at speeds
over 70 mph through Belle Center in Logan County. While pursuing Driscol, a law
enforcement officer traveled as fast as 92 mph and Driscol was still pulling away.
Pursuit was terminated when Driscol left the county. Driscol was arrested upon
returning home.
1 Driscol disputes threatening anyone with a knife; however, it is not the basis of his convictions in this case and we cite it only to show the escalation of events on the day in question.
-2- Case No. 8-21-36
{¶4} On April 13, 2021, Driscol was indicted for Failure to Comply with an
Order or Signal of a Police Officer (“Failure to Comply”) in violation of R.C.
2921.331(B), a third degree felony, Domestic Violence in violation of R.C.
2919.25(C), a fourth degree misdemeanor, and Aggravated Menacing in violation
of R.C. 2903.21(A), a first degree misdemeanor. Driscol originally pled not guilty
to the charges.
{¶5} On August 11, 2021, Driscol was scheduled to proceed to a bench trial.
However, on the date of the trial, Driscol entered into a written, negotiated plea
agreement. Pursuant to the agreement, Driscol agreed to plead no contest to Failure
to Comply as indicted, and Driscol agreed to plead no contest to the amended,
reduced charge of Menacing in violation of R.C. 2903.22(A), a fourth degree
misdemeanor. In exchange for his no contest pleas to the two charges, the Domestic
Violence charge would be dismissed and the parties agreed to jointly recommend a
sentence of three years of community control.
{¶6} A Crim.R. 11 hearing was held wherein the trial court determined that
Driscol was entering knowing, intelligent, and voluntary pleas. As part of the plea
dialogue, Driscol indicated that he only recalled sporadic events from the time in
question, but he did not contest what was alleged in the indictment. Driscol
indicated he had received a head injury on the night in question after being kicked
repeatedly. He also claimed he was only pursuing the woman in his vehicle because
-3- Case No. 8-21-36
she stole his cat. However, in the end, Driscol reiterated that he wanted to enter his
no contest pleas. His pleas were accepted, and he was found guilty of Failure to
Comply and Menacing.
{¶7} On August 27, 2021, prior to sentencing, Driscol filed a motion to
withdraw his no contest pleas. His attorney also filed a motion to withdraw as
counsel, stating that Driscol had indicated he had lost confidence in his attorney. A
new attorney was appointed for Driscol and a hearing was scheduled on the motion
to withdraw.
{¶8} On September 21, 2021, the trial court held a hearing on Driscol’s
motion to withdraw his no contest pleas. As his basis for the motion, Driscol’s new
attorney indicated that Driscol had limited contact with his prior attorney, and that
Driscol was surprised coming to court in August—for his trial date—to “learn” that
he was going to enter a plea. Further, Driscol’s counsel indicated that Driscol
wanted to pursue the affirmative defense of involuntary intoxication.
{¶9} Driscol expounded on the involuntary intoxication issue, stating that on
the date in question the alleged victim gave him a “sports drink” and told him to
take a drink. Driscol thought the drink was unpalatable; however, the alleged victim
then purportedly told Driscol he needed “down it,” so he did. Driscol claimed that
-4- Case No. 8-21-36
the drink must have been “laced with meth and other drugs because I tested for a
high amount.”2
{¶10} The State opposed Driscol’s motion to withdraw his pleas, contending
that his proposed defense of involuntary intoxication was not “new” as Driscol’s
prior attorney had “broached that from the very beginning” of the case. (Sept. 21,
2021, Tr. at 8). The State contended that in spite of this purported defense,
numerous plea deals were discussed with Driscol and the State actually accepted a
counter-offer that had been proposed by the defense.
{¶11} The trial court took the matter under advisement and issued a lengthy
written journal entry denying Driscol’s motion on October 27, 2021. In its entry,
the trial court noted that Driscol had a thorough Crim.R. 11 hearing, that Driscol
was represented by competent counsel who had secured a beneficial deal for
Driscol, that a full hearing was held on the motion to withdraw the pleas, and that
Driscol understood the penalties against him when he entered his pleas.
{¶12} The trial court did acknowledge that the State would likely not be
prejudiced by a withdrawal. However, the trial court noted that the only indication
that Driscol would have any type of defense in the case was his own self-serving
statement that he was, in effect, drugged by the victim in this matter. As to Driscol’s
self-serving claim, the trial court noted that Driscol was not charged with impaired
2 These quotes are taken from Driscol’s presentence investigation.
-5- Case No. 8-21-36
driving, he had produced no actual drug tests, and there was no evidence he was
under the influence at the time of his arrest. Ultimately the trial court found that
Driscol was merely having a change of heart, and he did not have a reasonable and
legitimate basis for withdrawing his pleas. Thus his motion was denied.
{¶13} On November 4, 2021, the matter proceeded to sentencing. The
agreed, recommended sentence was imposed and Driscol was placed on three years
of community control. A judgment entry memorializing his sentence was filed that
same day. It is from this judgment that Driscol appeals, asserting the following
assignment of error for our review.
Assignment of Error The trial court erred in refusing to allow the defendant to withdraw his no contest plea prior to sentencing.
{¶14} In his assignment of error, Driscol argues that the trial court erred by
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Driscol, 2022-Ohio-1810.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-21-36
v.
MICHAEL L. DRISCOL, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Trial Court No. CR 21 04 0080
Judgment Affirmed
Date of Decision: May 31, 2022
APPEARANCES:
Samantha L. Berkhofer for Appellant
Stacia L. Rapp for Appellee Case No. 8-21-36
SHAW, J.
{¶1} Defendant-appellant, Michael Driscol (“Driscol”), brings this appeal
from the November 4, 2021, judgment of the Logan County Common Pleas Court
sentencing him to three years of community control after he pled no contest to, and
was convicted of, Failure to Comply with an Order or Signal of a Police Officer in
violation of R.C. 2921.331(B), a third degree felony, and Menacing in violation of
R.C. 2903.22(A), a fourth degree misdemeanor. On appeal, Driscol argues that the
trial court erred by denying his presentence motion to withdraw his no contest pleas.
Background
{¶2} On March 28, 2021, Driscol allegedly threatened a woman with a knife
while he was in his home.1 The woman left in a vehicle and Driscol followed her
in his own vehicle. Driscol tailed the woman, passed her, and stopped in front of
her. At the time, the woman believed Driscol was going to harm her.
{¶3} Law enforcement attempted to initiate a traffic stop of Driscol’s vehicle,
activating lights and sirens. Driscol fled from law enforcement, driving at speeds
over 70 mph through Belle Center in Logan County. While pursuing Driscol, a law
enforcement officer traveled as fast as 92 mph and Driscol was still pulling away.
Pursuit was terminated when Driscol left the county. Driscol was arrested upon
returning home.
1 Driscol disputes threatening anyone with a knife; however, it is not the basis of his convictions in this case and we cite it only to show the escalation of events on the day in question.
-2- Case No. 8-21-36
{¶4} On April 13, 2021, Driscol was indicted for Failure to Comply with an
Order or Signal of a Police Officer (“Failure to Comply”) in violation of R.C.
2921.331(B), a third degree felony, Domestic Violence in violation of R.C.
2919.25(C), a fourth degree misdemeanor, and Aggravated Menacing in violation
of R.C. 2903.21(A), a first degree misdemeanor. Driscol originally pled not guilty
to the charges.
{¶5} On August 11, 2021, Driscol was scheduled to proceed to a bench trial.
However, on the date of the trial, Driscol entered into a written, negotiated plea
agreement. Pursuant to the agreement, Driscol agreed to plead no contest to Failure
to Comply as indicted, and Driscol agreed to plead no contest to the amended,
reduced charge of Menacing in violation of R.C. 2903.22(A), a fourth degree
misdemeanor. In exchange for his no contest pleas to the two charges, the Domestic
Violence charge would be dismissed and the parties agreed to jointly recommend a
sentence of three years of community control.
{¶6} A Crim.R. 11 hearing was held wherein the trial court determined that
Driscol was entering knowing, intelligent, and voluntary pleas. As part of the plea
dialogue, Driscol indicated that he only recalled sporadic events from the time in
question, but he did not contest what was alleged in the indictment. Driscol
indicated he had received a head injury on the night in question after being kicked
repeatedly. He also claimed he was only pursuing the woman in his vehicle because
-3- Case No. 8-21-36
she stole his cat. However, in the end, Driscol reiterated that he wanted to enter his
no contest pleas. His pleas were accepted, and he was found guilty of Failure to
Comply and Menacing.
{¶7} On August 27, 2021, prior to sentencing, Driscol filed a motion to
withdraw his no contest pleas. His attorney also filed a motion to withdraw as
counsel, stating that Driscol had indicated he had lost confidence in his attorney. A
new attorney was appointed for Driscol and a hearing was scheduled on the motion
to withdraw.
{¶8} On September 21, 2021, the trial court held a hearing on Driscol’s
motion to withdraw his no contest pleas. As his basis for the motion, Driscol’s new
attorney indicated that Driscol had limited contact with his prior attorney, and that
Driscol was surprised coming to court in August—for his trial date—to “learn” that
he was going to enter a plea. Further, Driscol’s counsel indicated that Driscol
wanted to pursue the affirmative defense of involuntary intoxication.
{¶9} Driscol expounded on the involuntary intoxication issue, stating that on
the date in question the alleged victim gave him a “sports drink” and told him to
take a drink. Driscol thought the drink was unpalatable; however, the alleged victim
then purportedly told Driscol he needed “down it,” so he did. Driscol claimed that
-4- Case No. 8-21-36
the drink must have been “laced with meth and other drugs because I tested for a
high amount.”2
{¶10} The State opposed Driscol’s motion to withdraw his pleas, contending
that his proposed defense of involuntary intoxication was not “new” as Driscol’s
prior attorney had “broached that from the very beginning” of the case. (Sept. 21,
2021, Tr. at 8). The State contended that in spite of this purported defense,
numerous plea deals were discussed with Driscol and the State actually accepted a
counter-offer that had been proposed by the defense.
{¶11} The trial court took the matter under advisement and issued a lengthy
written journal entry denying Driscol’s motion on October 27, 2021. In its entry,
the trial court noted that Driscol had a thorough Crim.R. 11 hearing, that Driscol
was represented by competent counsel who had secured a beneficial deal for
Driscol, that a full hearing was held on the motion to withdraw the pleas, and that
Driscol understood the penalties against him when he entered his pleas.
{¶12} The trial court did acknowledge that the State would likely not be
prejudiced by a withdrawal. However, the trial court noted that the only indication
that Driscol would have any type of defense in the case was his own self-serving
statement that he was, in effect, drugged by the victim in this matter. As to Driscol’s
self-serving claim, the trial court noted that Driscol was not charged with impaired
2 These quotes are taken from Driscol’s presentence investigation.
-5- Case No. 8-21-36
driving, he had produced no actual drug tests, and there was no evidence he was
under the influence at the time of his arrest. Ultimately the trial court found that
Driscol was merely having a change of heart, and he did not have a reasonable and
legitimate basis for withdrawing his pleas. Thus his motion was denied.
{¶13} On November 4, 2021, the matter proceeded to sentencing. The
agreed, recommended sentence was imposed and Driscol was placed on three years
of community control. A judgment entry memorializing his sentence was filed that
same day. It is from this judgment that Driscol appeals, asserting the following
assignment of error for our review.
Assignment of Error The trial court erred in refusing to allow the defendant to withdraw his no contest plea prior to sentencing.
{¶14} In his assignment of error, Driscol argues that the trial court erred by
denying his motion to withdraw his no contest pleas.
Relevant Authority
{¶15} Criminal Rule 32.1 provides that a defendant is permitted to file a
presentence motion to withdraw a no-contest plea. State v. Bingham, 3d Dist. Allen
No. 1-18-71, 2019-Ohio-3324, ¶ 41. Generally, “presentence motion[s] to withdraw
* * * [no contest] plea[s] should be freely and liberally granted.” State v. Xie, 62
Ohio St.3d 521, 527 (1992). However, “[a] defendant does not have an absolute
right to withdraw a [no contest] plea prior to sentencing.” Id. at paragraph one of
-6- Case No. 8-21-36
the syllabus. As a result, a “trial court must conduct a hearing to determine whether
there is a reasonable and legitimate basis for withdrawal of the plea.” Id.
{¶16} When reviewing a trial court’s denial of a presentence motion to
withdraw a no contest plea, this Court considers several factors, including, but not
limited to: (1) whether the withdrawal will prejudice the prosecution; (2) the
representation afforded to the defendant by counsel; (3) the extent of the hearing
held pursuant to Crim.R. 11; (4) the extent of the hearing on the motion to withdraw
the plea; (5) whether the trial court gave full and fair consideration to the motion;
(6) whether the timing of the motion was reasonable; (7) the stated reasons for the
motion; (8) whether the defendant understood the nature of the charges and potential
sentences; and (9) whether the accused was perhaps not guilty or had a complete
defense to the charges. Bingham at ¶ 42 citing State v. Lane, 3d Dist. Allen No. 1-
10-10, 2010-Ohio-4819, ¶ 21. None of the factors is determinate on its own and
there may be numerous additional aspects weighed in each case. State v. North, 3d
Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 16.
{¶17} Ultimately, “[t]he decision to grant or deny a presentence motion to
withdraw a [no contest] plea is within the sound discretion of the trial court.” Xie
at paragraph two of the syllabus. “Therefore, appellate review of a trial court’s
decision to deny a presentence motion to withdraw a [no contest] plea is limited to
whether the trial court abused its discretion.” Bingham at ¶ 43. An abuse of
-7- Case No. 8-21-36
discretion connotes that a decision is unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). When applying this standard,
a reviewing court may not simply substitute its judgment for that of the trial court.
State v. Adams, 3d Dist. Defiance No. 4-09-16, 2009-Ohio-6863, ¶ 33.
Analysis
{¶18} In addressing the factors to be considered when evaluating a
presentence motion to withdraw a plea listed above, Driscol focuses his argument
on factors five and nine, contending that the trial court erred by failing to give full
and fair consideration to his motion to withdraw his pleas (factor five), and that the
trial court erred by failing to determine that he had a complete defense to the charges
through his claim of involuntary intoxication (factor nine).
{¶19} Notably, Driscol does not contest or make arguments regarding his
representation (factor two); the extent of his Crim.R. 11 hearing (factor three); the
extent of the hearing on the motion to withdraw his pleas (factor four); or whether
he understood the nature of the charges and potential sentences (factor eight).
Regardless, in the interests of justice we will address each of the factors above in
turn.
{¶20} As to the first factor, there was no indication that the State would be
prejudiced by allowing the pleas to be withdrawn. The trial court found as much,
-8- Case No. 8-21-36
and we do not find that there was any abuse of discretion in making this
determination. Thus this factor actually weighs in Driscol’s favor.
{¶21} As to the second factor above, the record indicates that Driscol was
afforded competent representation. Although his relationship with his original
attorney may have deteriorated, Driscol’s original attorney negotiated a deal
wherein Driscol would face less possible incarceration, and the original attorney
negotiated a plea deal wherein there would be a joint sentencing recommendation
of community control. Moreover, at the Crim.R. 11 hearing, Driscol expressed
satisfaction with his attorney and he indicated that he had enough time to speak with
his attorney. This factor weighs against Driscol.
{¶22} As to the third factor, it is essentially undisputed that the trial court
held a thorough Crim.R. 11 hearing, explaining penalties and answering questions
that Driscol had during the hearing. When repeatedly pressed, Driscol affirmatively
indicated he wanted to proceed with his pleas. This factor weighs against Driscol.
{¶23} Regarding the fourth factor, the trial court held a full hearing on
Driscol’s motion to withdraw his no contest pleas, permitting him to make any
arguments that he wanted. Due to the fact that he received a full and fair hearing,
this factor weighs against Driscol.
{¶24} As to the fifth factor, Driscol contends that the trial court did not give
full and fair consideration to his motion. The record reflects otherwise. The trial
-9- Case No. 8-21-36
court heard Driscol’s arguments at the hearing, then took the matter under
advisement. Over a month later, the trial court issued a lengthy journal entry
analyzing all of Driscol’s arguments. This factor weighs against Driscol.
{¶25} Regarding factor six and whether the timing of the motion was
reasonable, the motion was made less than a month after the plea hearing. Although
the trial court found that the timing could be unreasonable, there is case authority
indicating that the motion to withdraw was filed within a reasonable time. See State
v. Chatman, 2d Dist. Montgomery No. 25766, 2014-Ohio-134, ¶ 10 (indicating that
roughly two weeks after the plea was accepted was a reasonable time to file a motion
to withdraw, but ultimately finding that there was no legitimate basis to permit
withdraw of the plea). Thus this factor could weigh in Driscol’s favor.
{¶26} As to factor seven, the stated reasons for the motion to withdraw, this
factor touches upon factor nine in this case—whether the accused had a complete
defense to the charges. Driscol’s primary reason for his motion to withdraw was
his claim that he had a complete defense to the charges through involuntary
intoxication. He argued that he was drugged by the victim in this matter, possibly
with, at least, methamphetamine.
{¶27} While involuntary intoxication is an affirmative defense, State v.
Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 25, there are
numerous issues with Driscol’s argument. First and foremost, as noted by the State,
-10- Case No. 8-21-36
Driscol and his attorney were both aware of this potential defense at the time the
plea was negotiated, which, again, was made on the date trial was scheduled to
begin.
{¶28} Second, there is no actual evidence in the record that Driscol was
intoxicated on the evening in question beyond his own self-serving statements. He
was not arrested for any intoxication-related crimes and we do not have any test
results before us. See State v. Powers, 4th Dist. Pickaway No. 03CA21, 2004-Ohio-
2720, ¶ 19 (presentence motion to withdraw properly denied where defendant only
presented “bald assertions” and self-serving statements supporting claim of
innocence).
{¶29} Third, it would be Driscol’s burden to establish involuntary
intoxication, and we find it, at best, questionable that he remembers the events
before and after his criminal acts, but he conveniently cannot recall his criminal
actions. Moreover, even by his own self-serving statement, Driscol apparently
willingly consumed the whole beverage that he claims was purportedly spiked.
Given all these reasons, we do not find that the trial court abused its discretion by
determining that Driscol’s stated reasons for his motion (factor five) and his claim
to a complete defense (factor nine) were not valid reasons supporting a withdrawal
of his plea.
-11- Case No. 8-21-36
{¶30} Finally, as to the eighth factor, it is essentially undisputed that Driscol
fully understood the nature of the charges and potential sentences. Thus this factor
also weighs against Driscol.
{¶31} In sum, Driscol arguably had two factors weighing in his favor: the
lack of prejudice to the prosecution and the timing of his motion. The remaining
factors all weigh against granting his motion—or at the very least, we could not find
that the trial court abused its discretion in finding that the factors weighed against
him. For these reasons, we do not find that the trial court abused its discretion by
denying Driscol’s presentence motion to withdraw his no contest pleas. State
v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 27 (concluding that the trial
court did not abuse its discretion by overruling presentence motion to withdraw
guilty plea even though there was a lack of prejudice to the prosecution and the
timing of his motion was reasonable); see also State v. Rickman, 3d Dist. Seneca
No. 13-13-15, 2014-Ohio-260, ¶ 13; State v. Fields, 1st Dist. Hamilton No. C-
090648, 2010-Ohio-4114, ¶ 14. Therefore, Driscol’s assignment of error is
overruled.
-12- Case No. 8-21-36
Conclusion
{¶32} For the foregoing reasons, Driscol’s assignment of error is overruled
and the judgment of the Logan County Common Pleas Court is affirmed.
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
-13-