State v. Hundley

2023 Ohio 3598

• Court: Ohio Court of Appeals
• Decided: September 29, 2023
• Docket: 22 MA 0070
• Status: Published

Opinion

[Cite as State v. Hundley, 2023-Ohio-3598.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

GREGORY HUNDLEY, JR.

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 22 MA 0070

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 21 CR 237

BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. Robert T. McDowall, Jr., Robert T. McDowall Co., LLC, 415 Wyndclift Place, Youngstown, Ohio 44515, for Defendant-Appellant

Dated: September 29, 2023 –2–

WAITE, J.

{¶1} Appellant Gregory Hundley, Jr. was charged with having a weapon under a

disability, obstructing official business, and violating a protection order. Appellant pleaded

guilty to the charges, but filed a motion to withdraw his guilty plea eight months after the

plea was entered and a few weeks before sentencing.

{¶2} Once his motion to withdraw was denied, Appellant was sentenced to four

years in prison. Appellant contends on appeal that his motion to withdraw was timely

filed, that the state would not suffer prejudice if he was allowed to withdraw his plea, and

that the affidavit provided a sufficient reason for the plea withdrawal. As the record shows

Appellant's motion to withdraw his plea was properly denied, the judgment of the trial

court is affirmed.

Case History and Facts

{¶3} On April 16, 2021, Aaliyahia Spivey called the Youngstown Police

Department requesting assistance at 40 East Judson Street in Youngstown, the

residence of Arthaia Barksdale. Spivey is Barksdale's granddaughter, and Spivey and

her child were living in Barksdale’s home. Appellant is the father of Spivey's child. Spivey

told the police that Appellant was trying to kick the front door in and that he was in violation

of a civil protection order. When the police arrived, Spivey or Barksdale told them that

Appellant was gone, and was driving Spivey's black Jeep Liberty SUV. Spivey gave them

the license plate number of her vehicle. She also told them that Appellant might have a

gun.

{¶4} Another police cruiser arrived in the vicinity of Barksdale's home and these

officers spotted the Jeep SUV and began pursuit. Officers attempted to make a traffic

Case No. 22 MA 0070 –3–

stop, but when Appellant pulled the car over and stopped on Sherwood Avenue, he fled

the vehicle on foot. As he ran, police noticed he had a gun in his hand. The police

followed and caught Appellant hiding under a porch a short distance away from where he

fled the SUV. Appellant did not have a weapon in his possession when he was caught,

but police recovered the weapon near the location where he had exited the SUV.

Appellant was immediately arrested and a felony indictment followed on May 6, 2021,

containing four charges along with two firearm specifications. Appellant had a record

containing prior felony convictions.

{¶5} Pursuant to a Crim.R. 11 plea agreement, on August 19, 2021, Appellant

pleaded guilty to having a weapon under a disability in violation of R.C. 2923.13(A)(3), a

third degree felony; obstructing official business pursuant to R.C. 2921.31(A), a fifth

degree felony, along with a one-year firearm specification under R.C. 2941.141(A); and

violating a protection order in violation of R.C. 2919.27(A), a first degree misdemeanor.

The state agreed to dismiss the charge of improperly handling a firearm in a motor vehicle

along with a three-year firearm specification. The parties agreed to recommend a

sentence of three years in prison for the two felonies, to run concurrently, and one year

for the firearm specification which was to run consecutively, for a total of four years in

prison.

{¶6} Sentencing was initially scheduled for October 21, 2021, but was continued

twice at Appellant's request. When Appellant did not appear for a December 16, 2021

sentencing hearing, a bench warrant was issued. Appellant was apprehended and

sentencing was reset for April 11, 2022. It was again continued at Appellant's request,

until May 25, 2022.

Case No. 22 MA 0070 –4–

{¶7} On May 2, 2022, Appellant filed a motion to withdraw his guilty plea. The

motion was based on an affidavit signed by Aaliyahia Spivey dated April 11, 2022, in

which she stated that her original police call was falsely made, and now claiming that

Appellant did not try to break into her home with a gun, the firearm Appellant was caught

with was hers, and that Appellant borrowed her Jeep SUV without knowing she had left

a loaded firearm in the car.

{¶8} A hearing on the motion was held at the beginning of the May 25, 2022

sentencing hearing. It was revealed at the hearing that Arthaia Barksdale (Spivey's

grandmother) had recently passed away. This would prejudice the state's case if the plea

were withdrawn, since Ms. Barksdale was to be a key state’s witness. Appellant's counsel

noted that Spivey's affidavit contained an admission that she lied to the police on April

16, 2021. Counsel also argued that the affidavit amounted to new evidence in the case

that could result in a different plea agreement or modified charges. The court evaluated

the factors for considering a presentence motion to withdraw a guilty plea and concluded

that Spivey's affidavit did not impact the charges that were actually brought against

Appellant, he understood the guilty plea he made, the motion to withdraw was not timely

filed, and that the state would be prejudiced by granting the motion. The motion to

withdraw was overruled.

{¶9} The court sentenced Appellant to three years in prison for having a weapon

while under a disability, one year for obstructing official business, and 180 days for

violating a protection order, to run concurrently, and one year for the firearm specification

to run consecutively, for a total of four years in prison. This timely appeal followed.

ASSIGNMENT OF ERROR

Case No. 22 MA 0070 –5–

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GRANT

DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA ENTERED

ON OR ABOUT AUGUST 20, 2021.

{¶10} Appellant contends the trial court should have allowed him to withdraw his

guilty plea based on new evidence contained in the affidavit of Aaliyahia Spivey, who had

called police on April 16, 2021, requesting assistance at 40 East Judson Street. In her

affidavit she stated that Appellant did not try to break into her home with a gun, he did not

know there was a gun in the car he borrowed, and that the gun belonged to her. Appellant

also believes that the motion to withdraw was filed in a timely manner and that the state

would not be prejudiced by the plea’s withdrawal even though a witness had died.

{¶11} In a criminal case, a plea must be made “knowingly, intelligently, and

voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Failure on

any of these points “renders enforcement of the plea unconstitutional under both the

United States Constitution and the Ohio Constitution.” Id. Crim. R. 32.1 states: “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.”

{¶12} This rule provides a clear and demanding standard for deciding a

postsentence motion to withdraw a guilty plea, but gives no guidelines for deciding a

presentence motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). While

a presentence motion to withdraw a plea shall be freely and liberally granted, Id. at 527,

nevertheless, the trial court must determine “whether there is a reasonable and legitimate

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basis for the withdrawal of the plea.” Id. Furthermore, “a defendant does not have an

absolute right to withdraw a plea prior to sentencing.” Id.

{¶13} A ruling on a presentence motion to withdraw a plea is within the sound

discretion of the trial court. State v. Cuthbertson, 139 Ohio App.3d 895, 898, 746 N.E.2d

197 (2000). An abuse of discretion is more than an error of judgment; it implies a decision

that is unreasonable, arbitrary, or unconscionable. Xie at 528. “[U]nless it is shown that

the trial court acted unjustly or unfairly, there is no abuse of discretion.” Id. at 526.

{¶14} This Court has adopted a list of nine factors which must be weighed when

considering a presentence motion to withdraw a plea: (1) whether the state will be

prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3)

the extent of the Crim.R. 11 plea hearing; (4) whether the defendant understood the

nature of the charges and potential sentences; (5) the extent of the hearing on the motion

to withdraw; (6) whether the trial court gave full and fair consideration to the motion; (7)

whether the timing of the motion was reasonable; (8) the reasons for the motion; and (9)

whether the accused was perhaps not guilty or had a complete defense to the charge.

State v. Scott, 7th Dist. Mahoning No. 08 MA 12, 2008-Ohio-5043, ¶ 13; see also State

v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995) (Fish lists eight

factors). This list is non-exhaustive and other factors may be considered. State v. Lundy,

7th Dist. Mahoning No. 07 MA 82, 2008-Ohio-1535, ¶ 18. Consideration of the factors

involves a balancing test, and no single factor is conclusive. Scott at ¶ 13.

{¶15} Appellant concedes that most of the Scott factors weigh in the state's favor.

Appellant's primary argument is that the existence of Spivey's affidavit of April 11, 2022,

alone, presents a valid reason to withdraw his plea, relying on factor number eight. While

Case No. 22 MA 0070 –7–

Appellant believes Spivey’s affidavit would absolve him of guilt, on closer inspection the

affidavit is not actually relevant to most of the charges brought against Appellant. It is

undisputed that the original call to the police took place. Police responded to Spivey's

call that Appellant was trying to break into Arthaia Barksdale's home and that he was

violating a protection order simply by being there. She also told the police that when

Appellant left he was driving a Jeep SUV and that he may have a gun. Whether or not

she was lying about this information does not change the fact that this is what she told

the police and that they began an investigation based on the information. The police

quickly spotted the SUV and followed it, leading Appellant to flee the vehicle carrying a

gun, dispose of the gun, hide under a porch, and leading to his apprehension by the

police. Appellant’s charges primarily arose from the police chase, Appellant’s brandishing

of the gun and throwing it away, and the fact that he had control of the gun while under a

disability based on his prior felony convictions. Appellant’s charges arose from actions

he took once police followed him, not whether Spivey lied in her 911 call or not. Appellant

pleaded to charges of having a weapon under a disability, obstructing official business

and violating a protective order. The record, even absent Spivey’s assertion in her 911

call, fully supports conviction on these charges. The record also reveals Spivey's claim

in the affidavit that Appellant did not know the gun was in the car is contradicted by the

fact that he took the gun out of the car with him when he fled the vehicle.

{¶16} It appears the trial court determined that Spivey's affidavit was not credible

or relevant. “[A] trial judge need not take an affidavit at face value but may, in the exercise

of discretion, judge the credibility of an affidavit submitted in support of a motion to

withdraw a plea in determining whether to accept the affidavit as true statements of fact.”

Case No. 22 MA 0070 –8–

State v. Kongkeo, 8th Dist. Cuyahoga No. 96691, 2012-Ohio-358, ¶ 4. At hearing on this

matter, the trial judge stated that the “quote, newly discovered evidence, end quote * * *

I'm not sure that has any effect on the case, the way its stated.” (5/25/22 Tr., p. 21.)

{¶17} Even if the affidavit supported, in some small part, a valid reason for

Appellant’s request to withdraw his plea, none of the other factors in Scott or Fish support

such withdrawal. Appellant raises only two factors that may be favorable to his request.

Appellant argues that the timing of the motion to withdraw was reasonable. Appellant

signed his plea agreement on August 19, 2021, and it was accepted by the court on

August 20, 2021. The motion to withdraw was filed on May 2, 2022, more than eight

months after the plea was entered and just three weeks before sentencing. Sentencing

had been delayed until May 25, 2022 only due to multiple requests for continuances by

Appellant and also by his failure to appear at the December 16, 2021 sentencing hearing.

We have held that as much as three months and as little as six weeks were unreasonable

amounts of time to wait before filing a motion to withdraw a plea. State v. Williams, 7th

Dist. Mahoning No. 09-MA-74, 2010-Ohio-1292; State v. Calloway, 7th Dist. Mahoning

No. 10 MA 147, 2011-Ohio-4257; State v. Christian, 7th Dist. Mahoning No. 16 MA 0148,

2017-Ohio-9373. Therefore, this factor does not weigh in his favor, as he suggests.

{¶18} To buttress his claim in this regard, Appellant argues that Spivey's affidavit

was filed on April 11, 2022. Using this date, instead of the date on which the court

accepted his plea, Appellant believes only a little over a month elapsed from the time the

“new evidence” was presented to the date he requested to withdraw his plea. However,

the record does not reflect that the affidavit was actually filed on April 11, 2022. The

affidavit was attached to Appellant's May 2, 2022 motion to withdraw. In any event, as it

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is clear the trial court did not believe the assertions in the affidavit were credible or entirely

relevant, this does not support Appellant’s timeliness argument.

{¶19} Appellant also contends that the state would not be prejudiced by granting

the motion to withdraw despite the death of Arthaia Barksdale, because she was not a

victim and was otherwise not particularly relevant to this case. It is difficult to understand

Appellant's argument, as the call to police originated at Barksdale's home and consisted

of a request for police to assist her and her granddaughter at her residence. The call

involved the violation of a civil protection order that was also to protect Barksdale and her

home. The state argues that Barksdale's testimony would have been crucial, as she

would have rebutted Spivey's altered version of events set forth in her affidavit, further

eroding the credibility of the affidavit. Appellant proposed at oral argument that one of

the purposes of seeking to withdraw his plea was to allow him to file a motion to suppress,

assumedly to suppress the 911 call. Appellant’s contention supports the state’s position

that Barksdale would have provided key evidence about the initiation of police

involvement in this case, particularly if Spivey continued to recant her initial statements

to the police. Loss of this witness weighs heavily in favor of the state.

{¶20} Based on this record, Appellant has not shown that the trial court abused

its discretion in overruling his motion to withdraw the guilty plea. Appellant’s assignment

of error is overruled and the judgment of the trial court is affirmed.

Conclusion

{¶21} Appellant seeks reversal of the trial court's decision to deny a presentence

motion to withdraw his guilty plea. The motion was primarily based on the affidavit of

Aaliyahia Spivey, who initially called the police. In the affidavit she essentially recanted

Case No. 22 MA 0070 – 10 –

the information she told police in the call. The trial court denied the motion to withdraw.

Appellant contends on appeal that his motion to withdraw was timely filed, that the state

would not suffer prejudice if it was granted, and the affidavit provided a sufficient reason

to allow withdrawal. The record shows that the motion to withdraw was not timely filed,

the state would be prejudiced due to the intervening death of a witness, and the affidavit

would have no effect on the charges that were filed against Appellant. The judgment of

the trial court is affirmed.

Robb, J. concurs.

D’Apolito, P.J. concurs.

Case No. 22 MA 0070 [Cite as State v. Hundley, 2023-Ohio-3598.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignment of

error is overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.