[Cite as State v. Pickering, 2021-Ohio-2579.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : KENNETH PICKERING : Case No. 20-CA-00019 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19-CR-0074
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 27, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT RICHARD A. L. PIATT 111 North High Street 713 South Front Street P.O. Box 569 Columbus, OH 43206 New Lexington, OH 43764-0569 Perry County, Case No. 20-CA-00019 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Kenneth Pickering appeals the November 25, 2020
Judgment of the Perry County Court of Common Pleas which denied his motion to
withdraw his pleas of guilty. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 19, 2019, Appellant drove his Jeep left of center on Tunnel Hill
Road in Perry County and struck the victim, driving her white Nissan Rouge, head on.
The victim suffered serious physical harm as a result. After being transported from the
scene of the crash to the hospital, Appellant was found to be in possession of oxycodone,
a schedule two substance, and alprazolam, a schedule four substance.
{¶ 3} On October 30, 2019, the Perry County Grand Jury returned an indictment
charging Appellant with one count of aggravated possession of drugs for the oxycodone,
one count of possession of drugs for the alprazolam, two counts of operating a vehicle
under the influence of alcohol, drugs, or a combination of them, and two counts of
aggravated vehicular assault.
{¶ 4} Appellant was arraigned on November 22, 2019 and was appointed counsel
on November 25, 2019. A jury trial was set for March 26, 2020. The state provided
discovery to Appellant on January 14, 2020. The jury trial was continued twice before
Appellant's first counsel was permitted to withdraw on July 22, 2020 due to a conflict of
interest. New counsel was appointed to represent Appellant the same day.
{¶ 5} On July 31, 2020, the state again filed discovery with a notice of service to
Appellant's newly appointed counsel. The jury trial was continued two more times before
the Appellant and the state negotiated a plea agreement. On October 20, 2020, two days Perry County, Case No. 20-CA-00019 3
before his scheduled jury trial, Appellant pled guilty to aggravated possession of drugs a
felony of the fifth degree, possession of drugs, a felony of the fifth degree, and vehicular
assault, a felony of the third degree. The state agreed to dismiss the remaining charges.
A presentence investigation was ordered and sentencing set for October 30, 2020, but
was continued to November 16, 2020.
{¶ 6} Three days before the sentencing hearing, through a third attorney,
Appellant moved to withdraw his guilty pleas. On November 16, 2020, the trial court
provided Appellant with a hearing on his motion to dismiss before denying the same.
Appellant was then sentenced to an aggregate prison term of five years.
{¶ 7} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error for our consideration as follows:
I
{¶ 8} "THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S
MOTION TO WITHDRAW GUILTY PLEA"
{¶ 9} In his sole assignment of error Appellant argues the trial court erred in failing
to grant his motion to withdraw his guilty pleas. We disagree.
{¶ 10} Crim.R. 32.1 states as follows: "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} Our review of a trial court's decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of discretion, we must Perry County, Case No. 20-CA-00019 4
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983). " * * * [T]he good faith, credibility and weight of the movant's
assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]
court." State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the
syllabus.
{¶ 12} The Supreme Court of Ohio has stated a pre-sentence motion to withdraw
a guilty plea "should be freely and liberally granted." State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). 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.
{¶ 13} The factors to be considered 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 the potential sentences; and (9) whether the defendant was perhaps not guilty or has
a complete defense to the charge. State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788
(1st Dist.1995). No one Fish factor is conclusive. State v. Cuthbertson, 139 Ohio App.3d
895, 899, 746 N.E.2d 197 (7th Dist.2000).
{¶ 14} In the instant matter, the state does not argue it would be prejudiced if
Appellant had been permitted to withdraw his plea. We do note, however, Appellant's
case had been pending for 13 months and trial dates continued several times. He opted Perry County, Case No. 20-CA-00019 5
to plead guilty 2 days before his scheduled jury trial and then to file his motion to withdraw
his pleas 3 days before his sentencing hearing.
{¶ 15} Appellant makes numerous claims of ineffective assistance of counsel,
alleging he had the same problems with two different attorneys, each failing to provide
him with discovery and each failing to meet with him to discuss trial strategy or file motions
Appellant believed should be filed.
{¶ 16} To demonstrate ineffective assistance, Appellant needed to show (1)
deficient performance by counsel, i.e., that counsel's performance fell below an objective
standard of reasonable representation, and (2) that counsel's errors prejudiced Appellant,
i.e., a reasonable probability that but for counsel's errors, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668
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[Cite as State v. Pickering, 2021-Ohio-2579.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : KENNETH PICKERING : Case No. 20-CA-00019 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19-CR-0074
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 27, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT RICHARD A. L. PIATT 111 North High Street 713 South Front Street P.O. Box 569 Columbus, OH 43206 New Lexington, OH 43764-0569 Perry County, Case No. 20-CA-00019 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Kenneth Pickering appeals the November 25, 2020
Judgment of the Perry County Court of Common Pleas which denied his motion to
withdraw his pleas of guilty. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 19, 2019, Appellant drove his Jeep left of center on Tunnel Hill
Road in Perry County and struck the victim, driving her white Nissan Rouge, head on.
The victim suffered serious physical harm as a result. After being transported from the
scene of the crash to the hospital, Appellant was found to be in possession of oxycodone,
a schedule two substance, and alprazolam, a schedule four substance.
{¶ 3} On October 30, 2019, the Perry County Grand Jury returned an indictment
charging Appellant with one count of aggravated possession of drugs for the oxycodone,
one count of possession of drugs for the alprazolam, two counts of operating a vehicle
under the influence of alcohol, drugs, or a combination of them, and two counts of
aggravated vehicular assault.
{¶ 4} Appellant was arraigned on November 22, 2019 and was appointed counsel
on November 25, 2019. A jury trial was set for March 26, 2020. The state provided
discovery to Appellant on January 14, 2020. The jury trial was continued twice before
Appellant's first counsel was permitted to withdraw on July 22, 2020 due to a conflict of
interest. New counsel was appointed to represent Appellant the same day.
{¶ 5} On July 31, 2020, the state again filed discovery with a notice of service to
Appellant's newly appointed counsel. The jury trial was continued two more times before
the Appellant and the state negotiated a plea agreement. On October 20, 2020, two days Perry County, Case No. 20-CA-00019 3
before his scheduled jury trial, Appellant pled guilty to aggravated possession of drugs a
felony of the fifth degree, possession of drugs, a felony of the fifth degree, and vehicular
assault, a felony of the third degree. The state agreed to dismiss the remaining charges.
A presentence investigation was ordered and sentencing set for October 30, 2020, but
was continued to November 16, 2020.
{¶ 6} Three days before the sentencing hearing, through a third attorney,
Appellant moved to withdraw his guilty pleas. On November 16, 2020, the trial court
provided Appellant with a hearing on his motion to dismiss before denying the same.
Appellant was then sentenced to an aggregate prison term of five years.
{¶ 7} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error for our consideration as follows:
I
{¶ 8} "THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S
MOTION TO WITHDRAW GUILTY PLEA"
{¶ 9} In his sole assignment of error Appellant argues the trial court erred in failing
to grant his motion to withdraw his guilty pleas. We disagree.
{¶ 10} Crim.R. 32.1 states as follows: "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} Our review of a trial court's decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of discretion, we must Perry County, Case No. 20-CA-00019 4
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983). " * * * [T]he good faith, credibility and weight of the movant's
assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]
court." State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the
syllabus.
{¶ 12} The Supreme Court of Ohio has stated a pre-sentence motion to withdraw
a guilty plea "should be freely and liberally granted." State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). 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.
{¶ 13} The factors to be considered 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 the potential sentences; and (9) whether the defendant was perhaps not guilty or has
a complete defense to the charge. State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788
(1st Dist.1995). No one Fish factor is conclusive. State v. Cuthbertson, 139 Ohio App.3d
895, 899, 746 N.E.2d 197 (7th Dist.2000).
{¶ 14} In the instant matter, the state does not argue it would be prejudiced if
Appellant had been permitted to withdraw his plea. We do note, however, Appellant's
case had been pending for 13 months and trial dates continued several times. He opted Perry County, Case No. 20-CA-00019 5
to plead guilty 2 days before his scheduled jury trial and then to file his motion to withdraw
his pleas 3 days before his sentencing hearing.
{¶ 15} Appellant makes numerous claims of ineffective assistance of counsel,
alleging he had the same problems with two different attorneys, each failing to provide
him with discovery and each failing to meet with him to discuss trial strategy or file motions
Appellant believed should be filed.
{¶ 16} To demonstrate ineffective assistance, Appellant needed to show (1)
deficient performance by counsel, i.e., that counsel's performance fell below an objective
standard of reasonable representation, and (2) that counsel's errors prejudiced Appellant,
i.e., a reasonable probability that but for counsel's errors, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus. "Reasonable probability" is "probability
sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct.
2052.However, as noted above, "the good faith, credibility and weight of the movant's
assertions in support of the motion are matters to be resolved by that court." State v.
Smith, 49 Ohio St.2d 261, 264, 3 O.O.3d at 404, 361 N.E.2d at 1326 (1977).
{¶ 17} During the hearing Appellant testified his first attorney had failed to provide
him with the discovery in this matter, and had failed to meet with him outside of scheduled
court dates. Transcript of Hearing to Withdraw Pleas and Sentencing 14, 16. Appellant
further testified he had the same issues with his second attorney, eventually receiving his
discovery through the mail 30 days before trial. Id. 16-19. Appellant also indicated his
second attorney had failed to file motions he had requested him to file, and had failed to Perry County, Case No. 20-CA-00019 6
meet with him to discuss trial strategy. Id. 21-23. Finally, Appellant stated he was scared
to go to trial with a lawyer he felt was unprepared and further, had been advised by his
attorney that if he rejected the plea agreement his penalty could double. Appellant
testified he therefore felt he had no choice but to enter guilty pleas. Id. 37.
{¶ 18} The trial court specifically found Appellant less than credible. Judgment
Entry November 25, 2020 at 5. We will not disturb the trial court's credibility
determinations on appeal. We additionally note that during his change-of-plea hearing,
Appellant indicted he was satisfied with his counsel's representation and that he had gone
over his Criminal Rule 11 plea form with his attorney, read it, and understood it. Transcript
of Plea at 5, 7. Further, advising a client he could be facing more time following a trial
than what he would receive by accepting the state's plea offer in no way constitutes
deficient performance. We find Appellant has failed to demonstrate deficient performance
by counsel or prejudice thereby.
{¶ 19} Upon review of Appellant's plea hearing, we find he was provided with a
thorough Crim.R. 11 change-of-plea hearing. Appellant indicted his understanding of the
nature of the charges against him as well as the potential penalties. Transcript of plea 5-
14.
{¶ 20} The record also reflects Appellant was provided with a thorough hearing on
his motion to withdraw his pleas. The trial court denied Appellant's motion on the record
and additionally issued a judgment entry outlining its reasoning for denying the motion.
While Appellant accuses the trial court of deciding the matter based only on the age of
the case, the trial court addressed the appropriate factors in its November 25, 2020 Perry County, Case No. 20-CA-00019 7
judgment entry. We find the trial court gave full and fair consideration to Appellant's
motion.
{¶ 21} Appellant did not directly allege he was not guilty or had a complete defense
to the charges. During the hearing and here on appeal, however, Appellant did allude to
some possible improper handling issues concerning vials of Appellant's blood which were
sent to the crime lab. However, as the state points out, the plea agreement dismissed all
charges pertaining to the presence of drugs or alcohol in Appellant's blood. Appellant
presented no evidence to support a conclusion that he was not guilty of the remaining
charges. Indeed, Appellant lodged no objection to the state's recitation of the facts during
his plea hearing and indicated they were in fact substantially correct. Transcript of Plea,
13-14.
{¶ 22} We conclude the trial court did not abuse its discretion by denying
Appellant's motion to withdrawal his guilty pleas as the record supports a finding that
appellant understood the nature of the charges and possible penalties, was given a full
Crim.R. 11 hearing, a full and fair hearing and consideration to his motion to withdraw his
plea, and because Appellant failed to demonstrate either of his first two attorneys had
rendered ineffective assistance. Appellant's sole assignment of error is overruled. Perry County, Case No. 20-CA-00019 8
{¶ 23} The judgment of the Perry County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/rw