State v. Kohler

2023 Ohio 1772

• Court: Ohio Court of Appeals
• Decided: May 25, 2023
• Docket: 22 CAA 10 0068
• Status: Published

Opinion

[Cite as State v. Kohler, 2023-Ohio-1772.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 22 CAA 10 0068 TOD KOHLER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 21 CR I 04 0237

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 25, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL MICHAEL A. MARROCCO Prosecuting Attorney Saia and Piatt Law Firm Delaware County, Ohio 98 North Union Street Delaware, Ohio 43015 KATHERYN L. MUNGER Assistant Prosecuting Attorney Delaware County, Ohio 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 22 CAA 10 0068 2

Hoffman, P.J. {¶1} Defendant-appellant Tod C. Kohler appeals the judgment entered by the

Delaware County Common Pleas Court convicting him following his pleas of guilty to two

counts of sexual battery (R.C. 2907.03(A)(5)) and two counts of gross sexual imposition

(R.C. 2907.05(A)(4)), and sentencing him to an aggregate prison term of eight years.

Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On April 30, 2021, Appellant was indicted by the Delaware County Grand

Jury with two counts of rape, two counts of attempted gross sexual imposition, and four

counts of gross sexual imposition. Trial date was originally set for July 20, 2021. After

six continuances, trial was finally scheduled to go forward on June 28, 2022.

{¶3} On the morning of trial, counsel for Appellant and the State discussed trial-

related issues with the visiting judge in chambers. The prosecutor asked Appellant’s

attorney if there were any more plea discussions to be had now that Appellant was

present.2 The prosecutor offered to dismiss the remaining charges in exchange for a no

contest plea to the two counts of rape. Appellant’s counsel rejected the offer, but

suggested a possible plea of no contest to two counts of gross sexual imposition. The

prosecutor responded he would be willing to discuss two counts of sexual battery and two

counts of gross sexual imposition with the victims.

{¶4} Appellant’s attorney left the courtroom at 8:49 a.m. to discuss a plea with

Appellant. Appellant offered to plead no contest to two counts of sexual battery and two

1A rendition of the facts is unnecessary to our resolution of the issues raised on appeal. 2Although these discussions were not held on the record, they were recorded by the courtroom recording system, and recounted in the court’s judgment entry of October 5, 2022. Delaware County, Case No. 22 CAA 10 0068 3

counts of gross sexual imposition. The State rejected the offer, and told Appellant a guilty

plea would be required instead of a no contest plea.

{¶5} At 11:41 a.m. the court went on the record and conducted a plea hearing,

at which Appellant pled guilty to two counts of sexual battery and two counts of gross

sexual imposition. Sentencing was scheduled for August 12, 2022.

{¶6} On July 29, 2022, Appellant filed a motion to withdraw his guilty pleas. The

trial court held an evidentiary hearing, at which Appellant testified. Appellant testified

when he showed up for trial, he was unprepared for plea negotiations. While he

acknowledged he accepted the State’s plea offer, he testified he only pled to the

negotiated charge to get the case over quickly. He testified he felt rushed and did not

have time to discuss the plea with his family. He testified he answered the court’s

questions during the plea hearing under duress because he could not enter a no contest

plea as he wished, but instead was required to plead guilty. During the hearing on the

motion to withdraw the plea, the trial court questioned Appellant about his feelings he

entered the plea claiming he was under duress. Appellant acknowledged there was no

external force or threat made against him to coerce him to enter a guilty plea. Rather, he

was experiencing internal pressure from being forced to consider plea negotiations when

he expected the trial to begin. The trial court overruled the motion to withdraw the guilty

pleas on October 5, 2022.

{¶7} The case proceeded to sentencing on October 17, 2022. Appellant was

sentenced to 48 months incarceration on each count, with the sentences for sexual

battery to run consecutively to one another, and the sentences for gross sexual imposition Delaware County, Case No. 22 CAA 10 0068 4

to run concurrently to each other and to the sentences for sexual battery, for an aggregate

term of incarceration of eight years.

{¶8} It is from the October 5, 2022 and October 17, 2022 judgments of the trial

court Appellant prosecutes his appeal, assigning as error:

THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S

PRE-SENTENCE REQUEST TO WITHDRAW HIS PLEA.

{¶9} In his sole assignment of error, Appellant argues the trial court abused its

discretion in overruling his presentence motion to withdraw his guilty pleas.

{¶10} A motion to withdraw a plea is governed by Crim. R. 32.1, which provides:

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.

{¶11} “A presentence motion to withdraw a guilty plea should be freely and

liberally granted.” State v. Barnes, 2022-Ohio-4486, ¶ 13, citing State v. Xie, 62 Ohio St.

3d 521, 584 N.E.2d 715 (1992). However, a defendant does not have an absolute right

to withdraw his or her plea, even when a motion to withdraw is made before sentencing.

Id. Before ruling on a defendant's presentence motion to withdraw his plea, the trial court Delaware County, Case No. 22 CAA 10 0068 5

must conduct a hearing to determine whether there is a reasonable and legitimate basis

for withdrawing the plea. Id. The determination of whether there is a reasonable and

legitimate basis for the defendant's request to withdraw a plea is within the sound

discretion of the trial court, and must be affirmed on appeal absent an abuse of discretion

on the part of the trial court. Id.

{¶12} The Ohio Supreme Court has recently restated its past precedent in Xie that

a presentence motion to withdraw a plea should be freely and liberally granted, while

recognizing there are situations in which a denial of a presentence motion to withdraw a

plea is not an abuse of discretion:

We begin by repeating what this court established three decades ago

in Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715: a defendant's presentence

motion to withdraw his guilty plea should be freely and liberally granted. This

standard makes clear that when a defendant pleads guilty to one or more

crimes and later wants to withdraw that plea before he has been sentenced,

the trial court should permit him to withdraw his plea. This is the

presumption from which all other considerations must start.

As previously noted, a defendant does not have an absolute right to

withdraw his guilty plea, id., and denying a defendant's motion to do so has

been upheld in various circumstances, id. at 524-525, 584 N.E.2d 715 (the

trial court's denial of the defendant's presentence motion to withdraw his

guilty plea was upheld when the defendant relied on his defense attorney's

erroneous advice regarding parole eligibility). See also State v. Drake, 73 Delaware County, Case No. 22 CAA 10 0068 6

Ohio App.3d 640, 645-646, 598 N.E.2d 115 (8th Dist. 1991) (the trial court's

denial of the defendant's presentence motion to withdraw his guilty plea was

upheld when the defendant pleaded guilty on a mistaken belief that his

aggravated-robbery charge would be reduced to robbery); State v.

Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist. 1988) (the

trial court's denial of the defendant's presentence motion to withdraw his

guilty plea was upheld when the defendant pleaded guilty because he

thought that in exchange for pleading guilty, he would be sentenced to

probation); State v. Ganguly, 10th Dist. Franklin, 2015-Ohio-845, 29 N.E.3d

375, ¶ 15 (the trial court's denial of the defendant's presentence motion to

withdraw his guilty plea was upheld when the defendant asserted that his

antianxiety medication rendered his plea unknowing, unintelligent, and

involuntary).

{¶13} Barnes, supra, at ¶¶21-22.

{¶14} In Barnes, the defendant claimed he acted in self-defense throughout the

proceedings. The State gave Barnes’s attorney video footage from the scene, which

counsel did not share with Barnes prior to his plea. After viewing the footage subsequent

to his plea but prior to sentencing, Barnes believed based on his military training the

footage supported his claim of self-defense. The Ohio Supreme Court found the trial

court erred in overruling Barnes’s motion to withdraw his plea under these circumstances.

Id. The Eighth District Court of Appeals had developed a set of factors under which to

evaluate whether there is a reasonable and legitimate basis for withdrawal of a plea. The Delaware County, Case No. 22 CAA 10 0068 7

Ohio Supreme Court declined to apply those factors in Barnes, holding “when a defendant

discovers evidence that would have affected his decision to plead guilty, he has a

reasonable and legitimate basis to withdraw his guilty plea before sentencing.” Id. at ¶24.

However, the court did not hold the factors would be inapplicable in every case where a

presentence motion to withdraw a plea is made. See Brunner, concurring (“I would go

further and would discard the nine-factor analysis that has been created and adopted by

Ohio's courts of appeals in favor of a renewed focus on Crim.R. 32.1 and the guiding

standards set forth by this court in State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715

(1992.”)). Id. at ¶28.

{¶15} The instant case does not involve discovery of evidence which would

support a defense to the charges against Appellant. Rather, Appellant based his motion

on feeling internal pressure to make a decision on the plea, and his wish to plead no

contest rather than guilty. As such, we find the factors set forth by this Court in prior

cases to be applicable to the trial court’s evaluation of Appellant’s motion, as well as our

review of the trial court’s decision. This Court set forth these factors in State v. Gilmore,

5th Dist. Perry No. 15CA17, 2016-Ohio-2654, ¶14, as follows:

Some factors a trial court may consider when making a decision on

a motion to withdraw a guilty plea are: (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 Delaware County, Case No. 22 CAA 10 0068 8

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); Accord, State

v. Pitts, 5th Dist. Stark No. 2012CA00234, 2014–Ohio–17, ¶ 21. No one

Fish factor is conclusive. Cuthbertson, supra. In addition, when weighing

the ninth factor, “the trial judge must determine whether the claim of

innocence is anything more than the defendant's change of heart about the

plea agreement.” State v. Davison, 5th Dist. Stark No. 2008–CA–00082,

2008–Ohio–7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01–

CA–107, 2002–Ohio–4176, ¶ 58. The good faith, credibility and weight of a

defendant's assertions in support of a motion to withdraw guilty plea are

matters to be resolved by the trial court, which is in a better position to

evaluate the motivations behind a guilty plea than is an appellate court in

reviewing a record of the hearing. Xie, supra, 62 Ohio St.3d at 525, citing

State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

{¶16} Prejudice to the State: The change of plea hearing in the instant case

was made on the morning of trial. The State was prepared to proceed to trial, having

prepared the young victims to testify. Both victims in the instant case were young girls

who alleged they were sexually abused by Appellant when they were under the age of

ten. The memories of young witnesses tend to fade with time more than the memories

of adult witnesses, causing prejudice to the State by time delay. See State v. O'Neill, 7th Delaware County, Case No. 22 CAA 10 0068 9

Dist. Mahoning No. 03 MA 188, 2004-Ohio-6805, ¶ 33 (“prejudice to the State's case can

be seen in that the victim was appellant's daughter, who was a ten-year-old child when

the molestation began and whose memory is more likely to dim with time than the typical

adult witness's memory”); State v. Martre, 3rd Dist. Allen No. 1-18-61, 2019-Ohio-2072,

¶ 14 (finding prejudice to the State in sex offense case involving a minor child because

the nature of sex offense cases with minor child victims involves memories which do not

improve with age, and all State witnesses were present and ready to proceed on the day

of trial prior to acceptance of the negotiated plea agreement).

{¶17} In the instant case, Appellant entered the plea on the morning of trial, when

the State’s witnesses were prepared and ready to testify. The victims in this case are

Appellant’s young stepdaughters. As discussed in the case law cited above, the

memories of children tend to fade in ways the memories of adult witnesses do not fade.

Nearly a year had passed from the date Appellant was indicted to the time of trial. We

find the trial court did not abuse its discretion in finding prejudice to the State.

{¶18} Timeliness of the motion to withdraw the plea: Appellant’s motion was

filed prior to sentencing, and the trial court found the motion to be timely.

{¶19} Counsel’s representation: Appellant testified he had no objections or

concerns about his attorney’s representation. Appellant does not argue on appeal the

trial court erred in its finding there were no problems with counsel’s representation.

{¶20} Adequacy of plea hearing: The trial court found the plea hearing met the

requirements of Crim. R. 11, and Appellant makes no argument to this Court challenging

this finding. Delaware County, Case No. 22 CAA 10 0068 10

{¶21} Extent of plea withdrawal hearing and attention given to the motion:

Appellant does not argue on appeal the trial court erred in its consideration of the motion.

The record demonstrates the trial court held an evidentiary hearing on the motion, and

issued a fourteen-page judgment setting forth its reasons for overruling the motion.

{¶22} Reasons for wanting to withdraw the plea, potential defenses, and

whether defendant may be not guilty: The trial court addressed these factors together,

rejecting Appellant’s claim he felt rushed to make a decision on the plea offer and did not

have time to make a decision before entering his plea. The trial court found Appellant

had a change of heart, which is not a sufficient basis to withdraw a plea. The trial court

further found while Appellant continued to maintain his innocence, he had no evidence to

offer to prove his innocence or call his guilt into question other than his denial of the

charges. The trial court found while Appellant most likely felt some pressure when

contemplating plea negotiations on the morning of trial, it is the “uncommon defendant

who does not feel some sort of pressure” on the morning of trial. Judgment entry, 10/5/22,

p. 13. Appellant argues the trial court abused its discretion in finding he merely had a

change of heart, arguing he felt “situational distress” having to decide on a plea deal the

morning of trial, and he continues to maintain his innocence.

{¶23} Although Appellant testified at the plea withdrawal hearing he wanted to

enter a no contest plea, he also admitted the State did not make such an offer. The

record is clear Appellant understood the offer was contingent upon a plea of guilty. While

Appellant argues he did not have time to make an informed decision, the record reflects

he had several hours during which he could confer with counsel, and he was not in

custody during this time. He testified he was not able to talk with his father before Delaware County, Case No. 22 CAA 10 0068 11

changing his plea, but admitted he did not ask to telephone his father while considering

the plea offer.

{¶24} While Appellant preferred to enter a no contest plea, it was clear to him the

offer was contingent on a guilty plea, and he does not make any argument he did not

understand the ramifications of a guilty plea. Although he maintained he was innocent

throughout, he had no defense or evidence to present to demonstrate his innocence.

Unlike the defendant in Barnes, supra, there was no new evidence to support his claim

of innocence discovered subsequent to the plea hearing. The trial court was in a better

position than this Court to evaluate Appellant’s testimony at the change of plea hearing

and to determine whether Appellant simply had a change of heart regarding his plea as

opposed to a reasonable, legitimate reason for withdrawing the plea. See Gilmore, supra,

citing Xie, supra.

{¶25} After individually examining each of the factors set forth by this Court in

Gilmore, the trial court summarized:

Kohler has presented no valid argument for withdrawing his plea. He

had more than competent counsel, his plea hearing was lengthy and

covered all the required topics, he was properly advised of his constitutional

rights, and told the Court he understood the charges and penalties, and had

had sufficient time to discuss the matter with his counsel, and was

proceeding voluntarily. Delaware County, Case No. 22 CAA 10 0068 12

Fundamentally, what is left is merely Kohler’s change of heart. In the

weeks following his plea he wished he had not pled guilty. This is legally

insufficient to allow a plea to be withdrawn.

{¶26} Judgment Entry, 10/5/22, p. 13.

{¶27} We find the trial court did not abuse its discretion in finding Appellant’s

motion was based on a change of heart, which is insufficient to demonstrate a reasonable

and legitimate reason for withdrawing a plea.

{¶28} The assignment of error is overruled. The judgment of the Delaware County

Common Pleas Court is affirmed.

By: Hoffman, P.J. Delaney, J. and Baldwin, J. concur.