Singer, Judge.
{¶ 1} Appellant appeals the judgment of the Ottawa County Court of Common Pleas, denying his motion to withdraw his guilty plea. Because we conclude that the trial court abused its discretion, we reverse and remand.
{¶ 2} On June 17, 2006, a township police officer observed an eastbound pickup truck drive off the road several times. The officer stopped the pickup. When he approached the vehicle, he detected a strong odor of an alcoholic beverage. When he asked the driver, appellant Tim E. Murphy, whether he had been drinking, appellant responded, “a couple.” The officer then requested that appellant perform a series of field sobriety tests, all of which appellant failed. An inquiry into appellant’s record revealed multiple prior intoxicated-driving convictions.
{¶ 3} Appellant was indicted for operating a motor vehicle while under the influence of alcohol (“OMVI”) in violation of R.C. 4511.19(A)(1)(a). The indictment included a specification that appellant had been previously found guilty six times of operating a vehicle while intoxicated. On January 4, 2007, appellant pleaded not guilty. On March 21, 2007, however, appellant agreed to withdraw his not-guilty plea and plead guilty to the indictment, pursuant to an agreement in which the state would drop related charges in the municipal court.
{¶ 4} During the plea colloquy, the trial court questioned appellant regarding the plea agreement:
{¶ 5} “[THE COURT]: Would you tell me in your own words, please, what your [plea] agreement is?
{¶ 6} “[APPELLANT]: My agreement was for [a community based drug and alcohol treatment facility,] CROSSWAEH.
{¶ 7} “[APPELLANT’S TRIAL COUNSEL]: No.
{¶ 8} “[APPELLANT]: What is he talking about?”
{¶ 9} (Conference held off the record between appellant and his trial counsel).
{¶ 10} “[APPELLANT]: Yes, I do now understand it, Your Honor.
{¶ 11} “[THE COURT]: What is the agreement?
{¶ 12} “[APPELLANT]: The agreement is for dismissing the open container and fourth degree felony for the DUI.
{¶ 13} “[THE COURT]: Open container?
{¶ 14} “[PROSECUTOR]: The State is going to dismiss those Municipal Court cases as part of the plea.
{¶ 15} “[THE COURT]: All right. And then you are pleading to the entire indictment here, including the specifications?
{¶ 16} “[APPELLANT]: Yes, Your Honor.
{¶ 17} “[THE COURT]: Is that correct, Mr. Schimmel [appellant’s trial counsel]?
{¶ 18} “[APPELLANT’S TRIAL COUNSEL]: That is correct.
{¶ 19} “[THE COURT]: Ms. Croy [prosecutor]?
{¶ 20} “[PROSECUTOR]: Yes, it is.
{¶ 21} “[THE COURT]: * * * I heard the word CROSSWAEH, which compels me to ask whether there has been any representations to [appellant] regarding what the punishment will be in this case?
{¶ 22} “[APPELLANT’S TRIAL COUNSEL]: There have been no agreements, Your Honor.
{¶ 23} “[THE COURT]:
CROSSWAEH is a possibility,
but the Court has not agreed that it would sentence [appellant] to CROSSWAEH.
{¶ 24} “[APPELLANT’S TRIAL COUNSEL]: Right.
{¶ 25} “[THE COURT]: Do you understand that?
{¶ 26} “[APPELLANT’S TRIAL COUNSEL]: Yes, I do.
{¶ 27} “[APPELLANT]: Yes.” (Emphasis added.)
{¶ 28} The court continued the colloquy by explaining the elements of the charge and the specification that the state would have had to prove beyond a reasonable doubt if the case had gone before a jury. Next, the court detailed the possible penalties; the court stated, “There is a mandatory term from one to five years in the State Prison System. You are not eligible for probation. You are not later eligible for judicial release. If I give you, or I must give you, at least one year. I could give you up to five years. But whatever I do give you must be served completely without any possibility of probation or judicial release. That is a mandatory term of imprisonment.” Appellant indicated that he understood.
{¶ 29} The court continued by explaining that it could sentence appellant immediately. Finally, after determining that appellant understood that he was waiving specified constitutional rights, the court accepted appellant’s guilty plea and ordered a presentence investigation.
{¶ 30} During his presentence investigation interview, appellant was informed that he was ineligible for CROSSWAEH. Because of this discovery, on May 4, 2007, the date originally scheduled for sentencing, appellant moved to withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant argued that his primary motivation for entering a guilty plea was that he wished to participate in CROSSWAEH for six months in lieu of serving six months of his sentence. Appellant maintained that the trial court stated during the plea colloquy that CROSSWAEH was a possibility, and had he known that he was ineligible for CROSSWAEH, he would not have entered a guilty plea.
{¶ 31} The trial court held a hearing on appellant’s motion to withdraw his guilty plea. The state opposed appellant’s motion, contending that the plea agreement clearly stated that appellant could not change his plea once he entered into the agreement and that appellant’s rethinking his agreement was not a reasonable and legitimate basis for withdrawal of the plea. The court reviewed the transcript of the plea colloquy and concluded that the possible sentences were clearly spelled out during the colloquy. The trial court found that there was “no possibility for misunderstanding” and denied appellant’s motion to withdraw his plea. The court did not address its incorrect statements regarding appellant’s eligibility for community placement. Appellant was sentenced on August 31, 2007.
{¶ 32} Appellant now presents two assignments of error:
{¶ 33} “I. The trial court erred and abused its discretion in denying appellant’s pre-sentencing motion to withdraw his guilty plea.
{¶ 34} “II. Appellant did not receive the effective assistance of counsel in entering a guilty plea and therefore his constitutional rights were violated.”
{¶ 35} In support of his first assignment of error, appellant points to the fact that the court incorrectly informed him that he was eligible for a community-based program during his plea colloquy. Accordingly, appellant claims that the trial court abused its discretion in denying his motion to withdraw a guilty plea.
{¶ 36} Crim.R. 32.1 provides:
{¶ 37} “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.”
{¶ 38} While a presentence motion to withdraw a guilty plea “should be freely and liberally grantedf,] * * * a defendant does not have an absolute right to withdraw a plea prior to sentencing.”
State v. Xie
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Singer, Judge.
{¶ 1} Appellant appeals the judgment of the Ottawa County Court of Common Pleas, denying his motion to withdraw his guilty plea. Because we conclude that the trial court abused its discretion, we reverse and remand.
{¶ 2} On June 17, 2006, a township police officer observed an eastbound pickup truck drive off the road several times. The officer stopped the pickup. When he approached the vehicle, he detected a strong odor of an alcoholic beverage. When he asked the driver, appellant Tim E. Murphy, whether he had been drinking, appellant responded, “a couple.” The officer then requested that appellant perform a series of field sobriety tests, all of which appellant failed. An inquiry into appellant’s record revealed multiple prior intoxicated-driving convictions.
{¶ 3} Appellant was indicted for operating a motor vehicle while under the influence of alcohol (“OMVI”) in violation of R.C. 4511.19(A)(1)(a). The indictment included a specification that appellant had been previously found guilty six times of operating a vehicle while intoxicated. On January 4, 2007, appellant pleaded not guilty. On March 21, 2007, however, appellant agreed to withdraw his not-guilty plea and plead guilty to the indictment, pursuant to an agreement in which the state would drop related charges in the municipal court.
{¶ 4} During the plea colloquy, the trial court questioned appellant regarding the plea agreement:
{¶ 5} “[THE COURT]: Would you tell me in your own words, please, what your [plea] agreement is?
{¶ 6} “[APPELLANT]: My agreement was for [a community based drug and alcohol treatment facility,] CROSSWAEH.
{¶ 7} “[APPELLANT’S TRIAL COUNSEL]: No.
{¶ 8} “[APPELLANT]: What is he talking about?”
{¶ 9} (Conference held off the record between appellant and his trial counsel).
{¶ 10} “[APPELLANT]: Yes, I do now understand it, Your Honor.
{¶ 11} “[THE COURT]: What is the agreement?
{¶ 12} “[APPELLANT]: The agreement is for dismissing the open container and fourth degree felony for the DUI.
{¶ 13} “[THE COURT]: Open container?
{¶ 14} “[PROSECUTOR]: The State is going to dismiss those Municipal Court cases as part of the plea.
{¶ 15} “[THE COURT]: All right. And then you are pleading to the entire indictment here, including the specifications?
{¶ 16} “[APPELLANT]: Yes, Your Honor.
{¶ 17} “[THE COURT]: Is that correct, Mr. Schimmel [appellant’s trial counsel]?
{¶ 18} “[APPELLANT’S TRIAL COUNSEL]: That is correct.
{¶ 19} “[THE COURT]: Ms. Croy [prosecutor]?
{¶ 20} “[PROSECUTOR]: Yes, it is.
{¶ 21} “[THE COURT]: * * * I heard the word CROSSWAEH, which compels me to ask whether there has been any representations to [appellant] regarding what the punishment will be in this case?
{¶ 22} “[APPELLANT’S TRIAL COUNSEL]: There have been no agreements, Your Honor.
{¶ 23} “[THE COURT]:
CROSSWAEH is a possibility,
but the Court has not agreed that it would sentence [appellant] to CROSSWAEH.
{¶ 24} “[APPELLANT’S TRIAL COUNSEL]: Right.
{¶ 25} “[THE COURT]: Do you understand that?
{¶ 26} “[APPELLANT’S TRIAL COUNSEL]: Yes, I do.
{¶ 27} “[APPELLANT]: Yes.” (Emphasis added.)
{¶ 28} The court continued the colloquy by explaining the elements of the charge and the specification that the state would have had to prove beyond a reasonable doubt if the case had gone before a jury. Next, the court detailed the possible penalties; the court stated, “There is a mandatory term from one to five years in the State Prison System. You are not eligible for probation. You are not later eligible for judicial release. If I give you, or I must give you, at least one year. I could give you up to five years. But whatever I do give you must be served completely without any possibility of probation or judicial release. That is a mandatory term of imprisonment.” Appellant indicated that he understood.
{¶ 29} The court continued by explaining that it could sentence appellant immediately. Finally, after determining that appellant understood that he was waiving specified constitutional rights, the court accepted appellant’s guilty plea and ordered a presentence investigation.
{¶ 30} During his presentence investigation interview, appellant was informed that he was ineligible for CROSSWAEH. Because of this discovery, on May 4, 2007, the date originally scheduled for sentencing, appellant moved to withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant argued that his primary motivation for entering a guilty plea was that he wished to participate in CROSSWAEH for six months in lieu of serving six months of his sentence. Appellant maintained that the trial court stated during the plea colloquy that CROSSWAEH was a possibility, and had he known that he was ineligible for CROSSWAEH, he would not have entered a guilty plea.
{¶ 31} The trial court held a hearing on appellant’s motion to withdraw his guilty plea. The state opposed appellant’s motion, contending that the plea agreement clearly stated that appellant could not change his plea once he entered into the agreement and that appellant’s rethinking his agreement was not a reasonable and legitimate basis for withdrawal of the plea. The court reviewed the transcript of the plea colloquy and concluded that the possible sentences were clearly spelled out during the colloquy. The trial court found that there was “no possibility for misunderstanding” and denied appellant’s motion to withdraw his plea. The court did not address its incorrect statements regarding appellant’s eligibility for community placement. Appellant was sentenced on August 31, 2007.
{¶ 32} Appellant now presents two assignments of error:
{¶ 33} “I. The trial court erred and abused its discretion in denying appellant’s pre-sentencing motion to withdraw his guilty plea.
{¶ 34} “II. Appellant did not receive the effective assistance of counsel in entering a guilty plea and therefore his constitutional rights were violated.”
{¶ 35} In support of his first assignment of error, appellant points to the fact that the court incorrectly informed him that he was eligible for a community-based program during his plea colloquy. Accordingly, appellant claims that the trial court abused its discretion in denying his motion to withdraw a guilty plea.
{¶ 36} Crim.R. 32.1 provides:
{¶ 37} “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.”
{¶ 38} While a presentence motion to withdraw a guilty plea “should be freely and liberally grantedf,] * * * a defendant does not have an absolute right to withdraw a plea prior to sentencing.”
State v. Xie
(1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715. “[T]he trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. Further, the trial court’s decision is reviewed under an abuse-of-discretion standard. Id. An abuse of discretion is more than an error of judgment or a mistake of law; the term connotes that the court’s attitude is arbitrary, unreasonable, or unconscionable.
Berk v. Matthews
(1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.
{¶ 39} “Some of the factors that are weighed in considering the trial court’s decision on a presentence motion to withdraw a plea are as follows: (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) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the 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 charge.”
State v. Griffin
(2001), 141 Ohio App.3d 551, 554, 752 N.E.2d 310. See also
State v.
Klotz, 6th Dist. No. WD-04-079, 2005-Ohio-3864, 2005 WL 1793755, ¶ 15;
State v. Dellinger,
6th Dist. No. H-02-007, 2002-Ohio-4652, 2002 WL 31002813, ¶ 18.
{¶ 40} The record is clear that at the time of the plea colloquy, appellant, appellant’s counsel, the court, and likely the prosecutor believed that a community-based treatment sentencing option was available. The content of the colloquy reveals that the availability of this option was important to appellant. Whether this importance was because appellant wished to spend part of his incarceration in what he perceived was a less restrictive environment or because he genuinely wished for an opportunity for substance-abuse treatment is immaterial. It is not unreasonable that appellant valued this portion of the court’s sentencing options. Consequently, when it was determined that the existence of this option was erroneous, it was reasonable that appellant sought to undo the plea agreement.
{¶ 41} Concerning prejudice that this election might visit upon the state, “prejudice to the state [must be] articulated and will not be presumed.”
Griffin,
141 Ohio App.3d at 554-555, 752 N.E.2d 310. The state has not articulated any specific prejudice that it would encounter if appellant’s motion is granted.
{¶ 42} Although the regularity of the hearing that the trial court held on appellant’s motion to withdraw is not at issue, the court did fail to address
appellant’s argument regarding the court’s erroneous statement that a community sentencing option was a possibility. The timing of the motion was reasonable; appellant made the motion prior to sentencing, immediately after he discovered that he was not eligible for community control. Appellant had an important reason for making the motion. Eligibility for community control is a significant factor in making a plea agreement, as evidenced by the requirement in Crim.R. 11 that a court must inform a defendant of his eligibility for community control during a plea colloquy. Crim.R. 11(C)(2)(a).
{¶ 43} After applying the
Griffin
factors to this matter, we conclude that they weigh in favor of allowing appellant to withdraw his plea. Consequently, the trial court’s decision to deny appellant’s motion to withdraw his plea was unreasonable. Accordingly, appellant’s first assignment of error is well taken.
{¶ 44} Our decision in appellant’s first assignment of error renders appellant’s second assignment of error moot.
{¶ 45} On consideration whereof, the judgment of the Ottawa County Court of Common Pleas is reversed and vacated. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Ottawa County.
Judgment reversed and vacated.
Handwork, J., dissents.