[Cite as State v. Pudder, 2014-Ohio-68.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-P-0045 - vs - :
TRENTON D. PUDDER, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0873.
Judgment: Sentence vacated, and judgment reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Neil P. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224 (For Defendant- Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Trenton D. Pudder appeals from the judgment entry of the Portage County
Court of Common Pleas sentencing him to prison for gross sexual imposition.
Principally, Mr. Pudder asserts the trial court erred by not granting his presentence
motion to withdraw a plea of guilty to that crime. We vacate his sentence, and reverse
and remand. {¶2} December 21, 2012, a secret indictment from the Portage County Grand
Jury was filed against Mr. Pudder, charging him with one count of rape, a felony of the
first degree, in violation of R.C. 2907.02(A)(2). The rape allegedly occurred November
20, 2012, or November 21, 2012. Mr. Pudder was arraigned December 24, 2012, and
entered a plea of not guilty. Being indigent, the trial court appointed Mr. Pudder
counsel. February 13, 2013, a change of plea hearing was held before the trial court.
The state amended the indictment to a single count of gross sexual imposition, a felony
of the third degree, in violation of R.C. 2907.05(A)(2), to which Mr. Pudder entered a
guilty plea. The trial court accepted the plea, and ordered preparation of a presentence
report. The judgment entry on the change of plea was filed the next day.
{¶3} April 10, 2013, Mr. Pudder moved the trial court to withdraw his plea,
pursuant to Crim.R. 32.1, alleging he had discovered exculpatory witnesses, who could
not be found previously. Hearing was held April 22, 2013. Mr. Pudder testified on his
own behalf. It appears that the charge against him stemmed from an incident at a party.
Mr. Pudder testified he did not even know the name of the complainant until meeting
with his attorney before the change of plea hearing. He testified that, since that hearing,
two other girls at the party had contacted him, offering to testify in his favor, Desiree and
Katie. He testified that, at the time of the change of plea hearing, he thought one of
these girls, Desiree, was in Florida. Mr. Pudder admitted he could not detail the
testimony these girls would give, but was emphatic it would support his contention he
had not committed any sexual assault. He admitted that he changed his plea because
he was scared, and tired of being in jail, and hoped for community control sanctions.
Nevertheless, he denied that his motion to withdraw stemmed from a change in heart,
2 but was premised on the belief that, before the change of plea hearing, he had nobody
to testify on his behalf, whereas now, he knew he did.
{¶4} The state noted that Desiree’s full name was contained in the police
report, submitted to Mr. Pudder’s counsel in discovery.
{¶5} The trial court denied the motion to withdraw. Sentencing hearing went
forward April 29, 2013. By a judgment entry filed the next day, the trial court sentenced
Mr. Pudder to 30 months imprisonment; imposed a $500 fine, court costs, and other
fees; and designated him a Tier I sex offender.1 This appeal timely ensued, Mr. Pudder
assigning six errors:
{¶6} “[1.] The Trial Court committed reversible and plain error in denying
Pudder’s pre-sentence motion to withdraw his guilty plea.
{¶7} “[2.] The Trial Court committed reversible and plain error in imposing court
costs against Pudder without complying with R.C. 2947.23(A)(1)(a).
{¶8} “[3.] The Trial Court committed reversible and plain error by ordering
Pudder to pay an ‘assessment and recoupment fee.
{¶9} “[4.] The Trial Court committed reversible error in assessing fines,
assessment and recoupment fee, and court costs without any regard to Pudder’s ability
to pay said fines and costs.
{¶10} “[5.] The Trial Court committed reversible and plain error when it ordered
Pudder to have ‘no contact’ with the complaining witness.
{¶11} “[6.] Pudder was denied his constitutional right to effective assistance of
counsel at trial when his trial counsel failed to argue that the Trial Court’s order of
having ‘no contact’ with the complaining witness was unlawful.”
1. The trial court filed a nunc pro tunc judgment entry of sentence May 14, 2013.
3 {¶12} “Crim.R. 32.1 governs the withdrawal of a guilty plea prior to sentencing
and 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.’ ‘However, the rule itself gives no guidelines for a trial court to use when ruling
on a presentence motion to withdraw a guilty plea.’ State v. Xie, 62 Ohio St.3d 521,
526, * * * (1992).’
{¶13} “A motion to withdraw a guilty plea filed before sentencing should be freely
and liberally granted. Xie at 526. However, there is no absolute right to withdraw a
guilty plea. Id. ‘Appellate review of a trial court’s denial of a motion to withdraw is
limited to a determination of abuse of discretion, regardless whether the motion to
withdraw is filed before or after sentencing.’ State v. Peterseim, 68 Ohio App.2d 211, *
* *, paragraph two of the syllabus (8th Dist. 1980).” (Parallel citations omitted.) State v.
Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶9-10.
{¶14} The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record. State v. Ferranto, 112
Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court
“applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-
Ohio-1720, ¶15 (8th Dist.2008).
4 {¶15} When evaluating motions to withdraw guilty pleas, this court has
traditionally applied the four part test formulated by the Eighth District Court of Appeals
in Peterseim, at paragraph three of the syllabus:
{¶16} “A trial court does not abuse its discretion in overruling a motion to
withdraw: (1) where the accused is represented by highly competent counsel, (2) where
the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the
plea, (3) when, after the motion to withdraw is filed, the accused is given a complete
and impartial hearing on the motion, and (4) where the record reveals that the court
gave full and fair consideration to the plea withdrawal request.”
{¶17} Peterseim does not provide the exclusive test whereby appellate courts
evaluate presentence motions to withdraw guilty pleas. The Third Appellate District
recently summarized the other test current in Ohio:
{¶18} “We consider several factors when reviewing a trial court’s decision to
grant or deny a defendant’s pre-sentence motion to withdraw a plea. Those factors
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Pudder, 2014-Ohio-68.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-P-0045 - vs - :
TRENTON D. PUDDER, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0873.
Judgment: Sentence vacated, and judgment reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Neil P. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224 (For Defendant- Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Trenton D. Pudder appeals from the judgment entry of the Portage County
Court of Common Pleas sentencing him to prison for gross sexual imposition.
Principally, Mr. Pudder asserts the trial court erred by not granting his presentence
motion to withdraw a plea of guilty to that crime. We vacate his sentence, and reverse
and remand. {¶2} December 21, 2012, a secret indictment from the Portage County Grand
Jury was filed against Mr. Pudder, charging him with one count of rape, a felony of the
first degree, in violation of R.C. 2907.02(A)(2). The rape allegedly occurred November
20, 2012, or November 21, 2012. Mr. Pudder was arraigned December 24, 2012, and
entered a plea of not guilty. Being indigent, the trial court appointed Mr. Pudder
counsel. February 13, 2013, a change of plea hearing was held before the trial court.
The state amended the indictment to a single count of gross sexual imposition, a felony
of the third degree, in violation of R.C. 2907.05(A)(2), to which Mr. Pudder entered a
guilty plea. The trial court accepted the plea, and ordered preparation of a presentence
report. The judgment entry on the change of plea was filed the next day.
{¶3} April 10, 2013, Mr. Pudder moved the trial court to withdraw his plea,
pursuant to Crim.R. 32.1, alleging he had discovered exculpatory witnesses, who could
not be found previously. Hearing was held April 22, 2013. Mr. Pudder testified on his
own behalf. It appears that the charge against him stemmed from an incident at a party.
Mr. Pudder testified he did not even know the name of the complainant until meeting
with his attorney before the change of plea hearing. He testified that, since that hearing,
two other girls at the party had contacted him, offering to testify in his favor, Desiree and
Katie. He testified that, at the time of the change of plea hearing, he thought one of
these girls, Desiree, was in Florida. Mr. Pudder admitted he could not detail the
testimony these girls would give, but was emphatic it would support his contention he
had not committed any sexual assault. He admitted that he changed his plea because
he was scared, and tired of being in jail, and hoped for community control sanctions.
Nevertheless, he denied that his motion to withdraw stemmed from a change in heart,
2 but was premised on the belief that, before the change of plea hearing, he had nobody
to testify on his behalf, whereas now, he knew he did.
{¶4} The state noted that Desiree’s full name was contained in the police
report, submitted to Mr. Pudder’s counsel in discovery.
{¶5} The trial court denied the motion to withdraw. Sentencing hearing went
forward April 29, 2013. By a judgment entry filed the next day, the trial court sentenced
Mr. Pudder to 30 months imprisonment; imposed a $500 fine, court costs, and other
fees; and designated him a Tier I sex offender.1 This appeal timely ensued, Mr. Pudder
assigning six errors:
{¶6} “[1.] The Trial Court committed reversible and plain error in denying
Pudder’s pre-sentence motion to withdraw his guilty plea.
{¶7} “[2.] The Trial Court committed reversible and plain error in imposing court
costs against Pudder without complying with R.C. 2947.23(A)(1)(a).
{¶8} “[3.] The Trial Court committed reversible and plain error by ordering
Pudder to pay an ‘assessment and recoupment fee.
{¶9} “[4.] The Trial Court committed reversible error in assessing fines,
assessment and recoupment fee, and court costs without any regard to Pudder’s ability
to pay said fines and costs.
{¶10} “[5.] The Trial Court committed reversible and plain error when it ordered
Pudder to have ‘no contact’ with the complaining witness.
{¶11} “[6.] Pudder was denied his constitutional right to effective assistance of
counsel at trial when his trial counsel failed to argue that the Trial Court’s order of
having ‘no contact’ with the complaining witness was unlawful.”
1. The trial court filed a nunc pro tunc judgment entry of sentence May 14, 2013.
3 {¶12} “Crim.R. 32.1 governs the withdrawal of a guilty plea prior to sentencing
and 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.’ ‘However, the rule itself gives no guidelines for a trial court to use when ruling
on a presentence motion to withdraw a guilty plea.’ State v. Xie, 62 Ohio St.3d 521,
526, * * * (1992).’
{¶13} “A motion to withdraw a guilty plea filed before sentencing should be freely
and liberally granted. Xie at 526. However, there is no absolute right to withdraw a
guilty plea. Id. ‘Appellate review of a trial court’s denial of a motion to withdraw is
limited to a determination of abuse of discretion, regardless whether the motion to
withdraw is filed before or after sentencing.’ State v. Peterseim, 68 Ohio App.2d 211, *
* *, paragraph two of the syllabus (8th Dist. 1980).” (Parallel citations omitted.) State v.
Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶9-10.
{¶14} The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record. State v. Ferranto, 112
Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court
“applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-
Ohio-1720, ¶15 (8th Dist.2008).
4 {¶15} When evaluating motions to withdraw guilty pleas, this court has
traditionally applied the four part test formulated by the Eighth District Court of Appeals
in Peterseim, at paragraph three of the syllabus:
{¶16} “A trial court does not abuse its discretion in overruling a motion to
withdraw: (1) where the accused is represented by highly competent counsel, (2) where
the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the
plea, (3) when, after the motion to withdraw is filed, the accused is given a complete
and impartial hearing on the motion, and (4) where the record reveals that the court
gave full and fair consideration to the plea withdrawal request.”
{¶17} Peterseim does not provide the exclusive test whereby appellate courts
evaluate presentence motions to withdraw guilty pleas. The Third Appellate District
recently summarized the other test current in Ohio:
{¶18} “We consider several factors when reviewing a trial court’s decision to
grant or deny a defendant’s pre-sentence motion to withdraw a plea. Those factors
include: (1) whether the withdrawal will prejudice the prosecution; (2) the representation
afforded to the defendant by counsel; (3) the extent of the hearing held pursuant to
Crim.R. 11; (4) the extent of the hearing on the motion to withdraw the plea; (5) whether
the trial court gave full and fair consideration of the motion; (6) whether the timing of the
motion was reasonable; (7) the stated 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 charges. State v.
Griffin, 141 Ohio App.3d 551, 554, * * * (7th Dist.2001); State v. Fish, 104 Ohio App.3d
5 236, 240, * * * (1st Dist.1995).” State v. Maney, 3d Dist. Defiance Nos. 4-12-16 and 4-
12-17, 2013-Ohio-2261, ¶18. (Parallel citations omitted.)
{¶19} In support of his first assignment of error, Mr. Pudder only argues the
Peterseim test in his brief, in deference to our precedent, but urges us to adopt the
Maney test. We shall analyze his case under each standard.
{¶20} Mr. Pudder does not argue the first and second Peterseim factors.
Rather, he contends that under the third and fourth factors, he presented evidence that
his decision to withdraw his plea of guilty was premised on the newly discovered
witnesses, who gave him hope of maintaining a defense, and that the trial court abused
its discretion in failing to account for this evidence.
{¶21} In Field, 2012-Ohio-5221, at ¶20, this court held that failure by a
defendant to present evidence of an alleged defense supports a trial court’s denial of a
motion to withdraw a guilty plea under the third and fourth Peterseim factors. The
converse is true, as well: presentation of evidence supporting a defense inclines the
analysis in favor of withdrawal. The factors in this case indicate the trial court abused
its discretion in failing to grant Mr. Pudder’s motion to withdraw his plea. Such motions,
made presentencing, are to be granted freely and liberally. Xie, 62 Ohio St.3d at 526.
Further, “it is a fundamental tenet of judicial review in Ohio that courts should decide
cases on the merits.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192 (1982).
The rule announced in DeHart is fully applicable in criminal cases, as well. See, e.g.,
State v. Davis, 5th Dist. Stark No. 2005CA00061, 2005-Ohio-4845, ¶8; State v. Young,
6th Dist. Erie No. E-95-026, 1995 Ohio App. LEXIS 4216, *5 (Sept. 29, 1995).
6 {¶22} Thus, under Peterseim, the motion to withdraw should have been granted.
{¶23} Application of the Maney factors leads to the same conclusion. We also
note that Maney appears to be a more detailed and specific list of factors that could also
be incorporated under the third and fourth Peterseim factors and are therefore not
inconsistent with the Peterseim test. Factors militating against grant of the motion
include the able representation of counsel; the fullness of the Crim.R. 11 hearing, and
that on the motion to withdraw; and the fact Mr. Pudder appears to have understood the
nature of the charge to which he was pleading, and the potential sentence, at the time
he entered his plea of guilty. All of the other Maney factors support a grant of the
motion. Nothing in the record indicates the prosecution would be prejudiced if the plea
was withdrawn. The motion was made within a reasonable time. The testimony of the
two young women who contacted Mr. Pudder might convince a jury he was not guilty of
any sexual assault. The trial court’s summary conclusion from the bench that Mr.
Pudder could have informed his counsel at any time of the existence of these
witnesses, and that the motion would be denied, does not indicate that full and fair
consideration was given to the motion.
{¶24} The first assignment of error has merit.
{¶25} We decline to reach the remaining assignments of error, finding them
moot. App.R. 12(A)(1)(c).
7 {¶26} Mr. Pudder’s sentence is vacated, and the judgment of the Portage
County Court of Common Pleas is reversed, this matter being remanded for further
proceedings not inconsistent with this opinion. It is the further order of this court that
appellee is assessed costs herein taxed. The court finds there were reasonable
grounds for this appeal.
THOMAS R. WRIGHT, J., concurs,
CYNTHIA WESTCOTT RICE, J., concurs in judgment only.