State v. Sain

2020 Ohio 5542

• Court: Ohio Court of Appeals
• Decided: December 4, 2020
• Docket: 28720
• Status: Published

Opinion

[Cite as State v. Sain, 2020-Ohio-5542.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28720 : v. : Trial Court Case No. 2019-CR-388 : LARRY SAIN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 4th day of December, 2020.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 820, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Larry Sain was convicted in the Montgomery County

Court of Common Pleas of murder (with a firearm specification) and tampering with

evidence, after the trial court overruled his motion to withdraw his guilty pleas. Sain

appeals from the trial court’s judgment. Sain filed a timely notice of appeal.

{¶ 2} The incident which formed the basis for Sain’s conviction occurred on

September 13, 2018, when 17-year-old Sain drove two of his friends, J.T. and A.H., to

purchase marijuana from the victim, Jayren Graham, at the hotel in Dayton where

Graham was employed.1 After meeting in the parking lot of the hotel and purchasing the

marijuana, Sain, J.T., and A.H. left and drove to another friend’s residence. Graham

remained at the hotel.

{¶ 3} Upon arriving at their friend’s residence, Sain realized that Graham had

accidentally left his cellphone in Sain’s vehicle. J.T. and A.H. contacted Graham and

informed him that he had left his cellphone in Sain’s car. Graham informed them that if

they brought his phone back to him, he would give them some marijuana for free.

Although he had been drinking alcohol, Sain agreed to drive back to the hotel. When

Sain returned to the hotel, Graham got into the backseat of Sain’s vehicle, and a struggle

ensued between Sain and Graham.

{¶ 4} Sain testified that at the motion to withdraw hearing that he kept a loaded

handgun in his vehicle between the driver’s seat and the middle console. Tr. 39, 45. Sain

testified that, after getting into the backseat, Graham reached for Sain’s gun, and the two

began struggling over the gun in the backseat of the vehicle. After J.T., who was sitting

1 J.T. and A.H. were juveniles at the time of the offenses. Therefore, we will refer to them by only their initials. -3-

in the backseat, opened the door and got out, Sain and Graham both fell out of the vehicle

though the open door while fighting over control of the gun. Sain testified that once he

gained control of the gun, he pulled the trigger and the gun fired, killing Graham.

{¶ 5} J.T. initially supported Sain’s version in her written statement to the police.

However, at a probable cause hearing held in the juvenile court before the case was

bound over to the general division of the common pleas court, J.T. and A.H. testified that

Sain kept his gun in the console/map area of his driver’s side door. J.T. and A.H. both

testified that Sain got into the backseat with Graham, pointed the gun at Graham, and

demanded money and/or drugs from him; only after Sain attempted to rob Graham at

gunpoint did the two individuals begin to struggle for the weapon. At that point, they fell

out of the vehicle onto the ground, and Sain shot and killed Graham in the parking lot of

the hotel. After the shooting, Sain and J.T. got back in the vehicle with A.H., who had

never moved from the front passenger seat where she was sitting during the incident, and

they drove back to the friend’s house. Sain testified that he threw his gun into a lake on

the way back to the friend’s house in order to dispose of it. The day after the shooting,

Sain informed detectives that he was at a friend’s house watching movies when the

shooting occurred.

{¶ 6} The record establishes that on January 31, 2019, Sain’s case was transferred

from the Montgomery County Juvenile Court to the Montgomery County Court of

Common Pleas, General Division, pursuant to a mandatory bindover proceeding. On

February 21, 2019, Sain was indicted for the following offenses: four counts of murder

(proximate cause), in violation of R.C. 2903.02(B), all unclassified felonies; one count of

aggravated robbery (deadly weapon), in violation of R.C. 29011.01(A)(1), a felony of the -4-

first degree; one count of aggravated robbery (serious harm); in violation of R.C.

2911.01(A)(3), a felony of the first degree; one count of felonious assault (serious harm),

in violation of R.C. 2903.11(A)(1), a felony of the second degree; one count of felonious

assault (deadly weapon), in violation 2903.11(A)(2), a felony of the second degree; one

count of carrying a concealed weapon (loaded/ready at hand), in violation of R.C.

2923.12(A)(2), a felony of the fourth degree; one count of improper handling of a firearm

in a motor vehicle (loaded/no license), in violation of R.C. 2923.16(B), a felony of the

fourth degree; and two counts of tampering with evidence (alter/destroy), in violation of

R.C. 2921.12(A)(1), both felonies of the third degree. With the exception of the last four

counts involving weapons and tampering with evidence offenses, all of the counts were

accompanied by a mandatory three-year firearm specification. At his arraignment on

February 26, 2019, Sain pled not guilty to the charges contained in the indictment.

{¶ 7} On March 18, 2019, Sain filed motion to suppress any statements he made

to police after being arrested and taken into custody. After a suppression hearing on

May 17, 2019, the trial court overruled Sain’s motion to suppress in a decision issued on

June 25, 2019. Thereafter, a trial date was scheduled for September 3, 2019.

However, on August 30, 2019, Sain pled guilty to one count of murder with a mandatory

three-year firearm specification and one count of tampering with evidence. The other

counts and specifications were dismissed. Sentencing was scheduled for September

11, 2019, and the trial court requested a presentence investigation report (PSI).

{¶ 8} At the opening of his sentencing hearing, defense counsel informed the trial

court that Sain wanted to withdraw his guilty pleas. Sain informed the trial court that he

felt that he was forced into pleading guilty, that his mother had been telling him to plead -5-

guilty, and that he felt like he did not want to plead guilty. Accordingly, the trial court

dismissed Sain’s first attorney, appointed new counsel, and scheduled a hearing on

Sain’s motion to withdraw his guilty pleas on December 11, 2019. Sain’s new counsel

filed a motion to withdraw his guilty pleas on September 24, 2019, and then an amended

motion on November 30, 2019. A hearing was held on Sain’s motion to withdraw his

guilty pleas on December 11, 2019, as scheduled.

{¶ 9} On February, 11, 2020, the trial court overruled Sain’s motion to withdraw his

pleas. On the following day, February 12, 2020, the trial court sentenced Sain to the

original agreed upon aggregate sentence of 18 years to life in prison.

{¶ 10} It is from this judgment that Sain now appeals.

{¶ 11} Sain’s sole assignment of error is as follows:

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S AMENDED

MOTION TO WITHDRAW PLEAS IN THAT HIS REQUEST WAS MADE

PRIOR TO SENTENCING AND DEFENDANT PROVIDED SUFFICIENT

EVIDENCE THAT HIS REQUEST WAS BEING MADE FOR FAR MORE

THAN A CHANGE OF HEART.

{¶ 12} Sain contends that the trial court erred when it overruled his motion to

withdraw his guilty pleas.

{¶ 13} Crim.R. 32.1 provides that “[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.” Under Crim.R. 32.1, a presentence motion to

withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d -6-

521, 527, 584 N.E.2d 715 (1992). However, “[a] defendant does not have an absolute

right to withdraw his plea, even if the motion is made prior to sentencing.” Id.; State v.

Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-961, ¶ 18.

{¶ 14} In reviewing a trial court's decision on a defendant's presentence motion to

withdraw his or her plea, we apply the following nine factors: (1) whether the accused was

represented by highly competent counsel, (2) whether the accused was given a full

Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the

motion, (4) whether the trial court gave full and fair consideration to the motion, (5)

whether the motion was made within a reasonable time, (6) whether the motion sets out

specific reasons for the withdrawal, (7) whether the accused understood the nature of the

charges and possible penalties, (8) whether the accused was perhaps not guilty of or had

a complete defense to the charge or charges, and (9) whether the state is prejudiced by

withdrawal of the plea. E.g., State v. Becraft, 2017-Ohio-1464, 89 N.E.3d 218, ¶ 53 (2d

Dist.); State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29.

{¶ 15} “In considering these factors, the trial court employs a balancing test; no

single factor is dispositive.” Warrix at ¶ 30, citing State v. Preston, 2d Dist. Montgomery

No. 25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is

whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id.,

quoting Xie at 527. A change of heart or mistaken belief about the plea is not a

reasonable basis requiring a trial court to permit the defendant to withdraw his or her plea.

State v. Maddickes, 2d Dist. Clark No. 2013-CA-7, 2013-Ohio-4510, ¶ 15. However, in

considering whether to allow withdrawal of the plea, it is not simply sufficient for the trial

court to find that the Crim.R. 11 colloquy satisfied the requirements of that rule and the -7-

United States and Ohio Constitutions; if it were, even a presentence plea could never be

withdrawn. Id.

{¶ 16} Relevant to the instant case, in State v. Simpson, 2d Dist. Montgomery No.

24266, 2011-Ohio-6181, we stated the following:

When a defendant discovers before sentencing the particular

sentence a trial court intends to impose, we have held that a pre-sentence

motion to vacate his plea ordinarily should be treated as a post-sentence

motion. This is so because a defendant cannot test the sentencing waters

and then move to vacate his plea just before sentencing if he receives an

unpleasant surprise. State v. Wallen, Montgomery App. No. 21688, 2007-

Ohio-2129, ¶ 22. We also have recognized, however, that this reasoning

does not apply to agreed sentences. “Where a sentence is agreed to as

part of a plea bargain, and the trial court has indicated that it is joining in the

agreement, there has been no ‘unpleasant surprise’ to the defendant after

‘testing the sentencing waters,’ which is the rationale for the stricter

standard for a post-sentence motion to withdraw a plea.” Id. Therefore,

when a defendant files a pre-sentence motion to vacate a plea entered as

part of a plea deal with an agreed sentence, the motion still should be

treated as a pre-sentence motion and judged under the more lenient

standard. Id.; see, also, State v. Williamson, Montgomery App. No. 21965,

2008-Ohio-4727, ¶ 11. On the other hand, the fact that the defendant knew

what the ultimate sentence would be may be a factor that the trial court

could consider to determine whether the defendant's request to withdraw is -8-

simply a change of heart.

(Emphasis added.) Id. at ¶ 8.

{¶ 17} It is within the sound discretion of the trial court to grant or deny a motion to

withdraw a plea. Xie at 526. We will not reverse a trial court's decision to deny a motion

to withdraw a guilty or no contest plea absent an abuse of discretion. Id. at 527, citing

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Hence, we will not

usually find an “abuse of discretion in denying a pre-sentence motion to withdraw a guilty

plea” in a case in which “(1) the [defendant] is represented by highly competent counsel,

(2) the [defendant is] afforded a full hearing, pursuant to Crim.R. 11, before entering the

plea, (3) * * * the [defendant] is given a complete and impartial hearing on the motion, and

(4) the record reveals that the trial court gave full and fair consideration to the

[defendant's] request.” State v. Donaldson, 2d Dist. Greene No. 06-CA-110, 2007-Ohio-

5756, ¶ 7, citing State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).

Sain’s Attorney

{¶ 18} The record establishes that Sain was represented by highly competent

counsel during the course of the proceedings leading up to his motion to withdraw his

guilty pleas. Specifically, the record establishes that Sain hired Attorney L. Patrick

Mulligan to represent him immediately after his arrest. Attorney Mulligan testified that

had been a practicing attorney in the State of Ohio for over 35 years and had significant

criminal law experience. Mulligan testified that he had represented defendants,

conservatively, in approximately 25 to 35 murder cases in his career, including a death

penalty case. In addition to Ohio, Mulligan is licensed to practice law in Kentucky and

the federal courts. -9-

{¶ 19} Sain testified that Mulligan never provided him with a copy of the discovery

in his case. Rather, Sain testified that he was only able to look over the discovery packet

one time with Mulligan. Sain testified that while his case was still pending in Juvenile

Court, he and Mulligan discussed his case, as well as Sain’s version of the events. Sain

also testified that Mulligan informed him that he had a “good case” but failed to discuss

any possible defenses to the charges.

{¶ 20} Conversely, Mulligan testified that, although he “always” provided the

discovery packet to his clients, the Montgomery County Juvenile Court judge had a policy

which prohibited any juveniles from receiving their discovery packets while detained in

juvenile detention. Mulligan testified that he objected to the juvenile court’s policy in that

regard and contacted the court in an effort to provide Sain with the discovery packet but

was rebuffed by the court. However, Mulligan testified that once Sain was transferred to

the Montgomery County Jail after his bindover, he was provided with his complete

discovery packet, including all pertinent evidence except criminal histories, which

defendants are prohibited from having.

{¶ 21} Additionally, Mulligan testified that he and Sain actively discussed self-

defense during their meetings; he and Sain reviewed the elements of self-defense as they

applied to the underlying charges. Mulligan also explained to Sain that if the State was

able to prove that he robbed Graham, then self-defense “goes out the window.” Tr. 92-

93. Mulligan also testified that he discussed jury nullification with Sain. Lastly, we note

that Mulligan was able to negotiate a favorable plea deal for Sain, in which the State

agreed to dismiss several felony counts and their accompanying firearm specifications

for an agreed mandatory minimum sentence of 18-years to life in prison. Sain testified -10-

that Mulligan informed him that if he went to trial and was convicted on all counts, he

would potentially face approximately 38 years to life in prison.

{¶ 22} In our view, the record supports a finding that Sain was represented by

competent and capable counsel, and this factor weighs against a finding that the trial

court erred when it overruled Sain’s motion to withdraw his guilty pleas.

Sain’s Crim.R. 11 Plea Hearing & Motion to Withdraw Hearing

{¶ 23} Sain does not contend that he was not provided a full Crim.R.11 plea

hearing. Rather, he argues that his guilty pleas were improperly induced by his attorney,

who incorrectly informed him that he would never be placed on parole and that he would

be released after serving 17 years in prison. Therefore, Sain asserts that his pleas were

involuntary and he should have been allowed to withdraw them. We note that Sain did

not raise this argument until after he made his initial oral motion to withdraw his guilty

pleas at his original sentencing. Sain also argues that he was on prescribed medication

for anxiety at the time he entered his pleas, but the trial court failed to inquire about any

medications he was taking at the plea hearing.

{¶ 24} The record establishes that the trial court complied with the requirements of

Crim.R. 11. The trial court reviewed the maximum possible prison sentences, financial

obligations, post-release control sanctions, and informed Sain that he would not be

receiving community control sanctions as a result of his pleas. The trial court advised

Sain that the murder count and the firearm specification were mandatory consecutive

sentences. When the trial court inquired if Sain had any questions or concerns regarding

any of the material they had reviewed, he did not mention any of the issues he raised at

the hearing on his motion to withdraw his guilty pleas. Significantly, when the trial court -11-

asked Sain if he was under the influence of any drugs or alcohol, he stated that he was

not, making no mention of his anti-anxiety medication.

{¶ 25} Additionally, the trial court advised Sain of the constitutional rights he was

waiving as a result of his guilty pleas, including his right to a jury trial, that the State must

prove his guilt beyond a reasonable doubt, his right to confront witnesses, his right to

compulsory process, and his right not to testify. The record establishes that Sain

indicated to the trial court that he understood all of his rights and was willing to give up

those rights by pleading guilty.

{¶ 26} As noted by the trial court in its decision overruling Sain’s motion to

withdraw his guilty pleas, the record also establishes that Sain responded appropriately

to the trial court’s inquiries and never indicated that he did not understand the implications

of his guilty pleas or that any promises had been made to him to induce his pleas.

Therefore, in our view, the record establishes that the trial court complied with all of the

requirements of Crim.R. 11 and that Sain’s pleas were entered knowingly, intelligently,

and voluntarily.

{¶ 27} As previously stated, at his original sentencing hearing, Sain indicated that

he felt he was being forced to pleading guilty, that his mother was telling him to do it, and

that he felt that he did not want to enter a plea. At the motion to withdraw hearing, Sain

alleged that he wanted to withdraw his pleas because Attorney Mulligan promised him

that he would be eligible for release from prison after 17 years in prison, and therefore his

pleas were not knowing, intelligent, and voluntary. Sain also stated that he believed he

had a complete defense to the charges based upon self-defense. Sain admitted that

Mulligan did not tell him that it was his only option to enter a plea, but that he (Sain) “felt -12-

as if it [was] his only option.” Tr. 63. Sain also testified that his mother “forced” him to

enter a plea because she told him that she thought it was in his best interest. A review

of the entire hearing and the testimony outlined above, viewed in context, reveals that

Sain agreed to accept the plea deal because he was aware that he faced a greater penalty

if he went to trial. Sain’s various statements that he felt forced to sign the plea agreement

were nothing more than acknowledgements that he was choosing what he believed to be

the better of two possible negative outcomes he faced. When a defendant is “faced with

the stark reality of either pleading guilty pursuant to the plea bargain offered by the State,

or going to trial,” the fact that he has been “openly presented with unpleasant alternatives”

does not render his guilty plea involuntary. State v. Shannon, 11th Dist. Trumbull No.

2017-T-0012, 2017-Ohio-9344, ¶ 22, citing Bordenkircher v. Hayes, 434 U.S. 357, 365,

98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

{¶ 28} Notably, Sain’s written plea forms indicated that he would serve a definite

prison term of 18-years to life. The State and trial court clearly stated on the record that

Sain’s sentence would be 18-years to life. Significantly, the State introduced a recording

of a phone call between Sain and his mother while he was in jail awaiting trial. On the

recording, Sain can be heard telling his mother that he was going to take the guilty pleas

and that “he would get out eventually.” Furthermore, when discussing the potential life

sentence (life tail) attached to his conviction for murder, Sain informed his mother that

there was “no guarantee” that he was ever going to get out of prison.

{¶ 29} Mulligan testified that he reviewed the plea forms with Sain, including that

the murder charge had a life tail, and he believed that Sain understood the nature of the

sentence. Mulligan also testified that he explained to Sain that a life tail meant that it -13-

would be the decision of the parole authority regarding when he would be released from

prison. However, Mulligan testified that he informed Sain that he had a good chance of

being released at his first parole eligibility hearing based upon his age, limited juvenile

record, and the facts in the case. Contrary to Sain’s allegations, the record establishes

that Mulligan did not promise Sain that he would be released after serving 17 years in

prison, but rather that he could be released.2 Mulligan also wrote a letter on behalf of

Sain as part of the PSI that was “specifically done to be in the file for the Parole Authority

to look at.”

{¶ 30} The record establishes that, after a full hearing on Sain’s motion to

withdraw his guilty pleas, the trial court found Mulligan’s testimony to be credible. The

evidence adduced at the hearing established that Sain understood the nature of the

charges, the possible defenses or lack thereof, and the consequences of a sentence of

18 years to life. Mulligan provided Sain with correct legal advice, informed him of the

worst-case scenarios, and gave him professional recommendations on how to proceed.

Timing of the Motion

{¶ 31} As previously stated, Sain argues that he made his presentence plea-

withdrawal motion within a reasonable time because he made it before sentencing, as

required by Crim.R. 32.1. In our view, this merely establishes that Sain made the motion

within a permissible time. The trial court still was entitled to consider the fact that Sain

made the motion weeks after entering his pleas and literally the day of sentencing. See

State v. Greenlee, 2d Dist. Montgomery Nos. 28467 & 28468, 2020-Ohio-2957, ¶ 17.

2 Sain had jail-time credit of more than a year at the time of the motion to withdraw hearing, which would have made him eligible for parole after approximately 17 years rather than 18 years. -14-

Self-Defense Claim

{¶ 32} , Sain admitted that he shot and killed Graham on September 13, 2018. At

his motion to withdraw hearing, Sain claimed that he believed that he could claim self-

defense and that he could have successfully raised that defense at trial. Sain argues

that Mulligan never discussed any defense with him, including self-defense.

{¶ 33} Mulligan testified that he and Sain actively discussed self-defense during

their meetings. Mulligan testified that he and Sain reviewed the elements of self-defense

as they applied to the underlying charges. Mulligan also explained to Sain that if the

State were able to prove that he robbed Graham, then self-defense “goes out the

window.” Tr. 92-93. Although he discussed potential defenses with Sain, including self-

defense, Mulligan testified that he noted that the potential defenses were weak. Tr. 101.

{¶ 34} The elements of a valid claim of self-defense are as follows: (1) the

defendant was not at fault in creating the situation giving rise to the affray; (2) the

defendant had a bona fide belief that he or she was in imminent danger of death or great

bodily harm and that his or her only means of escape from such danger was in the use of

such force; and (3) the defendant did not violate any duty to retreat or avoid the danger.

State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002), citing State v. Robbins,

58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus. Furthermore,

the elements of self-defense are cumulative, meaning that all of the elements must be

present to establish to self-defense. See State v. Jackson, 22 Ohio St.3d 281, 284, 490

N.E.2d 893 (1986).

{¶ 35} The basis for Sain’s self-defense claim was his own testimony at the motion

to withdraw hearing that he kept a loaded handgun in his vehicle located between the -15-

driver’s seat and the middle console. Tr. 39, 45. Sain testified that after getting into the

backseat, Graham reached for Sain’s gun, and the two began struggling over the gun in

the backseat of the vehicle. After J.T., who was sitting in the backseat, opened the door

and got out, Sain and Graham both fell out of the vehicle though the open door, still

fighting over control of the gun. Sain testified that once he gained control of the gun, he

pulled the trigger, and the gun fired, killing Graham.

{¶ 36} As previously stated, J.T. initially supported Sain’s version of events in her

written statement to police immediately after the shooting. However, after writing the

witness statement, J.T. reversed her account of events and admitted that Sain robbed

Graham, the two men then struggled for the control of the gun, and Sain shot Graham in

the parking lot of the hotel. Additionally, A.H. never wavered in her account of the events,

and was “clear from the very beginning” that Sain robbed and then shot Graham. Tr. 91.

{¶ 37} Mulligan testified that he showed Sain J.T. and A.H.’s statements prior to

the juvenile bindover hearing. Accordingly, Sain was aware of the statements early in

his case; they were not new information that he learned after his plea. Where a

defendant is aware of the factual basis for an alleged defense at the time of the plea, he

or she is “presumed to have taken this defense into consideration” when deciding to enter

a plea and to have “conclud[ed] that the possibility of succeeding with that defense was

not worth the risk of a greater sentence if the defense would fail, resulting in a conviction

and a greater sentence.” State v. Warrix, 2d Dist. Montgomery 26556, 2015-Ohio-5390,

¶ 36.

{¶ 38} In light of the foregoing, we find that the record supports the trial court’s

finding that Sain failed to set forth any evidence that would demonstrate a complete -16-

defense to the charges against him or that he was unaware of the evidence upon which

he could rely in support of that potential defense.

{¶ 39} “[A] change of heart, without some additional justification, is not a sufficient

basis for the withdrawal of a guilty or no contest plea.” State v. Deloach, 2d Dist.

Montgomery No. 21422, 2006-Ohio-6303, ¶ 17; see also State v. Delpinal, 2d Dist. Clark

Nos. 2015-CA-97, 2015-CA-98, 2016-Ohio-5646, ¶ 9 (“[a] ‘change of heart’ is not

enough”). “[W]here the only reason given by the defendant is a change of heart,” “[a]

trial court that denies a pre-sentence motion to withdraw a guilty plea does not abuse its

discretion.” State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶ 18.

{¶ 40} On these facts, the trial court reasonably found that Sain did not have a

sufficient reason to withdraw his plea but merely had a change of heart. Therefore, we

cannot say that the trial court abused its discretion by denying Sain's motion to withdraw

his guilty pleas.

{¶ 41} Sain’s assignment of error is overruled.

{¶ 42} The judgment of the trial court is affirmed.

FROELICH, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Kyle J. Lennen Hon. Barbara P. Gorman