[Cite as State v. Hempfield, 2013-Ohio-1827.]
COURT OF APPEALS LICKING 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. 12-CA-77 BRITTANY A. HEMPFIELD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10-CR-150
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 30, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT DAVID B. STOKES Licking County Prosecutor 21 W. Church St., Suite 206 By: JUSTIN T. RADIC Newark, Ohio 43055 Assistant Prosecutor 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 12-CA-77 2
Hoffman, P.J.
{¶1} Defendant-appellant Brittany A. Hempfield appeals the October 2, 2012
Judgment Entry entered by the Licking County Court of Common Pleas. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On March 26, 2010, the Licking County Grand Jury indicted Appellant,
Brittany Hempfield, on two counts of aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1) and/or (2) and (C)(1)(b) and/or (c), one count of aggravated possession
of drugs in violation of R.C. 2925.11(A) and/or (C)(1)(a), and one count of possession of
drug paraphernalia in violation of R.C. 2925.14.
{¶3} On July 23, 2010, Appellant pled guilty as charged save for the drug
paraphernalia count which was dismissed. By judgment entry filed the same date, the
trial court sentenced Appellant to an aggregate term of six years in prison.
{¶4} Appellant filed an appeal with this Court in State v. Hempfield, Licking
App. No. 10CA87, 2010-Ohio-6570. This Court affirmed Appellant's plea and sentence
via Judgment Entry and Opinion of December 30, 2010.
{¶5} On August 19, 2011, Appellant filed a petition for post-conviction relief. Via
Judgment Entry of September 26, 2011, the trial court denied Appellant's petition.
Appellant again filed an appeal with this Court in State v. Hempfield, Licking App. No.
11-CA-103, 2012-Ohio-2619. Via Judgment Entry of June 11, 2012, this Court affirmed
in part, and reversed in part the trial court decision, remanding the matter to the trial
court for further proceedings. Specifically, this Court held the statute relating to
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Licking County, Case No. 12-CA-77 3
transitional control vested the trial court with the retention of discretion to disapprove
transitional control; however, to do so in the sentencing entry prior to notice from the
adult parole authority was premature. Citing, State v. Spears, Licking App. No. 10CA95,
2011–Ohio–1538. This Court further held Appellant's motion to withdraw her pleas was
filed the same day as the trial court's sentence; therefore, as a trial court speaks
through its docket, Appellant's sentence was not imposed until after Appellant had filed
her motion to withdraw the pleas of guilty. Therefore, the motion was a presentence
motion to withdraw pleas, and the trial court utilized the incorrect standard in addressing
Appellant's motion to withdraw the pleas. See, State v. Hempfield, Licking App. No. 11
CA 103, 2012-Ohio-2619.
{¶6} On remand, the trial court conducted a status conference on July 20,
2012, and on October 1, 2012 conducted an oral hearing. Via Judgment Entry of
October 2, 2012, the trial court again denied Appellant's motion to withdraw her guilty
pleas.
{¶7} Appellant now appeals, assigning as error:
{¶8} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
NOT COMPLYING WITH R.C. 2929.14(D)(3).
{¶9} “II. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES WITHOUT ENGAGING IN JUDICIAL FACT FINDING, NOW REQUIRED
BY H.B. 86.
{¶10} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
DENYING APPELLANT’S MOTION TO WITHDRAW HER PRE-SENTENCE PLEAS. Licking County, Case No. 12-CA-77 4
{¶11} “III. THE TRIAL COURT’S JUDGMENT (SENTENCES) IS CONTRARY
TO LAW R.C. 2953.08(A)(2) AND/OR (4).”
I, II, and IV.
{¶12} Appellant's first, second and fourth assignments of error raise common
and interrelated issues; therefore, we will address the arguments together.
{¶13} The first, second and fourth assigned errors challenge alleged errors in
the sentence imposed by the trial court on July 23, 2010. As set forth in the Statement
of the Case, supra, this Court remanded this case to the trial court for further
proceedings limited to Appellant's motion to withdraw her pleas of guilty. Accordingly,
Appellant's arguments relative to the sentence previously imposed by the trial court are
barred by the doctrine of res judicata as these arguments could have been raised or
were raised on direct appeal.
{¶14} The first, second, and fourth assigned errors are overruled.
III.
{¶15} Appellant's third assignment of error asserts the trial court erred in denying
her motion to withdraw her guilty pleas.
{¶16} As set forth in the Statement of the Case, supra, in State v. Hempfield,
Licking App. No. 11-CA-103, 2012-Ohio-2619, this Court held Appellant's motion to
withdraw her pleas was a presentence motion to withdraw pleas and the trial court
utilized the incorrect standard in addressing Appellant's motion.
{¶17} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides: Licking County, Case No. 12-CA-77 5
{¶18} “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.”
{¶19} 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).
{¶20} The Ohio Supreme Court has stated pre-sentence motions to withdraw a
guilty plea “should be freely and liberally granted.” Id. at 584. 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. The decision to grant or deny a pre-sentence plea
withdrawal motion is within the trial court's sound discretion. Id.
{¶21} 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,
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[Cite as State v. Hempfield, 2013-Ohio-1827.]
COURT OF APPEALS LICKING 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. 12-CA-77 BRITTANY A. HEMPFIELD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10-CR-150
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 30, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT DAVID B. STOKES Licking County Prosecutor 21 W. Church St., Suite 206 By: JUSTIN T. RADIC Newark, Ohio 43055 Assistant Prosecutor 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 12-CA-77 2
Hoffman, P.J.
{¶1} Defendant-appellant Brittany A. Hempfield appeals the October 2, 2012
Judgment Entry entered by the Licking County Court of Common Pleas. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On March 26, 2010, the Licking County Grand Jury indicted Appellant,
Brittany Hempfield, on two counts of aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1) and/or (2) and (C)(1)(b) and/or (c), one count of aggravated possession
of drugs in violation of R.C. 2925.11(A) and/or (C)(1)(a), and one count of possession of
drug paraphernalia in violation of R.C. 2925.14.
{¶3} On July 23, 2010, Appellant pled guilty as charged save for the drug
paraphernalia count which was dismissed. By judgment entry filed the same date, the
trial court sentenced Appellant to an aggregate term of six years in prison.
{¶4} Appellant filed an appeal with this Court in State v. Hempfield, Licking
App. No. 10CA87, 2010-Ohio-6570. This Court affirmed Appellant's plea and sentence
via Judgment Entry and Opinion of December 30, 2010.
{¶5} On August 19, 2011, Appellant filed a petition for post-conviction relief. Via
Judgment Entry of September 26, 2011, the trial court denied Appellant's petition.
Appellant again filed an appeal with this Court in State v. Hempfield, Licking App. No.
11-CA-103, 2012-Ohio-2619. Via Judgment Entry of June 11, 2012, this Court affirmed
in part, and reversed in part the trial court decision, remanding the matter to the trial
court for further proceedings. Specifically, this Court held the statute relating to
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Licking County, Case No. 12-CA-77 3
transitional control vested the trial court with the retention of discretion to disapprove
transitional control; however, to do so in the sentencing entry prior to notice from the
adult parole authority was premature. Citing, State v. Spears, Licking App. No. 10CA95,
2011–Ohio–1538. This Court further held Appellant's motion to withdraw her pleas was
filed the same day as the trial court's sentence; therefore, as a trial court speaks
through its docket, Appellant's sentence was not imposed until after Appellant had filed
her motion to withdraw the pleas of guilty. Therefore, the motion was a presentence
motion to withdraw pleas, and the trial court utilized the incorrect standard in addressing
Appellant's motion to withdraw the pleas. See, State v. Hempfield, Licking App. No. 11
CA 103, 2012-Ohio-2619.
{¶6} On remand, the trial court conducted a status conference on July 20,
2012, and on October 1, 2012 conducted an oral hearing. Via Judgment Entry of
October 2, 2012, the trial court again denied Appellant's motion to withdraw her guilty
pleas.
{¶7} Appellant now appeals, assigning as error:
{¶8} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
NOT COMPLYING WITH R.C. 2929.14(D)(3).
{¶9} “II. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES WITHOUT ENGAGING IN JUDICIAL FACT FINDING, NOW REQUIRED
BY H.B. 86.
{¶10} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
DENYING APPELLANT’S MOTION TO WITHDRAW HER PRE-SENTENCE PLEAS. Licking County, Case No. 12-CA-77 4
{¶11} “III. THE TRIAL COURT’S JUDGMENT (SENTENCES) IS CONTRARY
TO LAW R.C. 2953.08(A)(2) AND/OR (4).”
I, II, and IV.
{¶12} Appellant's first, second and fourth assignments of error raise common
and interrelated issues; therefore, we will address the arguments together.
{¶13} The first, second and fourth assigned errors challenge alleged errors in
the sentence imposed by the trial court on July 23, 2010. As set forth in the Statement
of the Case, supra, this Court remanded this case to the trial court for further
proceedings limited to Appellant's motion to withdraw her pleas of guilty. Accordingly,
Appellant's arguments relative to the sentence previously imposed by the trial court are
barred by the doctrine of res judicata as these arguments could have been raised or
were raised on direct appeal.
{¶14} The first, second, and fourth assigned errors are overruled.
III.
{¶15} Appellant's third assignment of error asserts the trial court erred in denying
her motion to withdraw her guilty pleas.
{¶16} As set forth in the Statement of the Case, supra, in State v. Hempfield,
Licking App. No. 11-CA-103, 2012-Ohio-2619, this Court held Appellant's motion to
withdraw her pleas was a presentence motion to withdraw pleas and the trial court
utilized the incorrect standard in addressing Appellant's motion.
{¶17} Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides: Licking County, Case No. 12-CA-77 5
{¶18} “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.”
{¶19} 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).
{¶20} The Ohio Supreme Court has stated pre-sentence motions to withdraw a
guilty plea “should be freely and liberally granted.” Id. at 584. 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. The decision to grant or deny a pre-sentence plea
withdrawal motion is within the trial court's sound discretion. Id.
{¶21} 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. Licking County, Case No. 12-CA-77 6
{¶22} On remand, the trial court conducted an oral hearing on October 1, 2012.
A review of the record indicates the trial court listened to arguments as to the factors to
be considered. The trial court stated on the record,
{¶23} “The Court: The Court finds that there was no plea agreement. This was
simply made because, again, Ms. Hempfield wasn’t satisfied with the sentence she got.
{¶24} “On the plea forms indicate no - - there was nothing offered to her or
promised to her, there wasn’t any indication, and the State dismissed some count,
which is commonly what one might expect, but the plea forms themselves say no
promise of any sentence. The Court certainly didn’t promise any sentence or agree to
one. It was simply that there was not enough - - she didn’t like the sentence that she
got, felt it was too much, and the Court disagreed on the basis of her prior convictions
for the same things, as I recall.
{¶25} “I’d find the State would be prejudiced based on the length of time and the
lack of evidence remaining presently.
{¶26} “I don’t’ think it is appropriate to grant motions that are just made after a
sentence comes out that you don’t like, which would allow everybody to test the
sentence they get. And I - - I’m not at the point where I can do immediate written
entries right from the Court. So there is always going to be the opportunity for a
Defendant to file a written motion or make a motion to withdraw their plea after the
Court indicates what it’s going to be from the bench.
{¶27} “On that basis, I would deny the Defendant’s presentence motion to
withdraw her guilty pleas here today. And on that basis, I would impose generally a Licking County, Case No. 12-CA-77 7
four-year driver’s license suspension and delete any reference to transitional control or
intensive prison program from the sentencing entry.”
{¶28} Tr. at 10-11.
{¶29} The trial court's October 2, 2012 recited the considerations set forth at the
hearing.
{¶30} Based upon the above, we do not find the trial court abused its discretion
in denying Appellant's motion to withdraw her pleas.
{¶31} The third assignment of error is overruled.
{¶32} Based upon our analysis and disposition set forth above, the October 2,
2012 Judgment Entry entered by the Licking County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Licking County, Case No. 12-CA-77 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRITTANY A. HEMPFIELD : : Defendant-Appellant : Case No. 12-CA-77
For the reasons stated in our accompanying Opinion, the October 2, 2012
Judgment Entry entered by the Licking County Court of Common Pleas is affirmed.
Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________ HON. JOHN W. WISE
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY