[Cite as State v. Shields, 2023-Ohio-1561.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : DERRELL SHIELDS : Case No. 22 CAA 110079 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21 CR I 11 0639
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 9, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MELISSA A. SCHIFFEL SAMUEL SAUL RICHARDSON KATHERYN L. MUNGER 2621 Dryden Road 145 North Union Street, 3rd Floor Suite 306 Delaware, OH 43015 Dayton, OH 45439 Delaware County, Case No. 22 CAA 110079 2
King, J.
{¶ 1} Plaintiff-Appellant the state of Ohio appeals the October 20, 2022 judgment
of the Delaware County Court of Common Pleas. Defendant-Appellee is Derrell Shields.
Facts and Procedural History
{¶ 2} A recitation of the underlying facts is unnecessary to our resolution of this
appeal. On November 4, 2021, the Delaware County Grand Jury returned an indictment
charging Shields with five counts of aggravated robbery, felonies of the first degree. Each
count included a firearm specification.
{¶ 3} On September 13, 2022, following negotiations with the state, Shields
entered pleas of guilty to three counts of aggravated robbery as contained in counts 1, 4,
and 5 of the indictment and the attendant firearm specifications. In exchange for Shields'
pleas, the state dismissed counts 2 and 3. The parties jointly recommended a 12-year
prison term.
{¶ 4} Shields filed a motion to withdraw his guilty pleas before sentencing took
place. On October 19, 2022, a hearing was held on the motion. At the conclusion of the
hearing the trial court granted Shields' motion. The trial court additionally vacated its order
dismissing counts two and three of the indictment and the attendant firearm
specifications.
{¶ 5} The state filed an appeal and the matter is now before this court for
consideration. It raises one assignment of error as follows:
I Delaware County, Case No. 22 CAA 110079 3
{¶ 6} "THE COURT ABUSED ITS DISCRETION IN ALLOWING DEFENDANT
TO WITHDRAW HIS GUILTY PLEA AS DEFENDANT OFFERED NO EVIDENCE OR
TESTIMONY AT THE HEARING TO MEET HIS BURDEN OF PROOF."
{¶ 7} In its sole assignment of error, the state argues the trial court abused its
discretion when it granted Shields' motion to withdraw his guilty plea. We disagree.
{¶ 8} 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 that discretion, we must
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.
{¶ 9} 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."
{¶ 10} 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. Whether a Delaware County, Case No. 22 CAA 110079 4
“reasonable and legitimate basis” for the withdrawal of a plea exists also lies within the
trial court's sound discretion. State v. Rosemark, 116 Ohio App.3d 306, 308, 688 N.E.2d
22 (9th Dist. 1996).
{¶ 11} The factors which may considered by a trial court when making a decision
on a motion to withdraw a guilty plea include: (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).
{¶ 12} The state first argues the trial court abused its discretion by granting Shields'
motion because Shields presented no evidence or affidavit during the hearing to support
his motion, and therefore the trial court could not have fairly considered the relevant
factors when making its decision. We are unaware of any requirement for an affidavit or
testimony from a defendant requesting to withdraw his plea. Rather, the scope of a
hearing on a motion to withdraw a guilty plea is "dependent upon the facial validity of the
motion itself." State v. Wittine, 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 8
{¶ 13} The record here reflects the reason behind Shields' desire to withdraw his
guilty pleas was narrow and straight forward. Shields' motion to withdraw his guilty plea
indicated that on the day of his plea hearing, he was fully prepared to enter a no contest
plea. On that day, however, he learned that in order to take advantage of the agreed upon Delaware County, Case No. 22 CAA 110079 5
sentence, he had to enter a plea of guilty. Shields' motion stated he did so without
appreciating the ramifications of a guilty plea as opposed to a no contest plea, specifically
the impact on his ability to challenge the trial court's adverse ruling on his motion to
suppress. Motion to Withdraw Plea filed October 11, 2022, docket at 129.
{¶ 14} The motion is unclear as to who advised Shields' of this requirement.
However, an examination of the transcript of the hearing on Shields' motion to withdraw
his guilty plea lead us to a conclusion that this was a requirement of the state and not the
trial court. The record further indicates the trial court's position that the reason for
Shields's motion was reasonable and legitimate rather than merely a change of heart.
The trial court stated:
I frankly was expecting a no contest plea in this case. I figured the
parties would want the Court of Appeals to take a look at an issue
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[Cite as State v. Shields, 2023-Ohio-1561.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : DERRELL SHIELDS : Case No. 22 CAA 110079 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21 CR I 11 0639
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 9, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MELISSA A. SCHIFFEL SAMUEL SAUL RICHARDSON KATHERYN L. MUNGER 2621 Dryden Road 145 North Union Street, 3rd Floor Suite 306 Delaware, OH 43015 Dayton, OH 45439 Delaware County, Case No. 22 CAA 110079 2
King, J.
{¶ 1} Plaintiff-Appellant the state of Ohio appeals the October 20, 2022 judgment
of the Delaware County Court of Common Pleas. Defendant-Appellee is Derrell Shields.
Facts and Procedural History
{¶ 2} A recitation of the underlying facts is unnecessary to our resolution of this
appeal. On November 4, 2021, the Delaware County Grand Jury returned an indictment
charging Shields with five counts of aggravated robbery, felonies of the first degree. Each
count included a firearm specification.
{¶ 3} On September 13, 2022, following negotiations with the state, Shields
entered pleas of guilty to three counts of aggravated robbery as contained in counts 1, 4,
and 5 of the indictment and the attendant firearm specifications. In exchange for Shields'
pleas, the state dismissed counts 2 and 3. The parties jointly recommended a 12-year
prison term.
{¶ 4} Shields filed a motion to withdraw his guilty pleas before sentencing took
place. On October 19, 2022, a hearing was held on the motion. At the conclusion of the
hearing the trial court granted Shields' motion. The trial court additionally vacated its order
dismissing counts two and three of the indictment and the attendant firearm
specifications.
{¶ 5} The state filed an appeal and the matter is now before this court for
consideration. It raises one assignment of error as follows:
I Delaware County, Case No. 22 CAA 110079 3
{¶ 6} "THE COURT ABUSED ITS DISCRETION IN ALLOWING DEFENDANT
TO WITHDRAW HIS GUILTY PLEA AS DEFENDANT OFFERED NO EVIDENCE OR
TESTIMONY AT THE HEARING TO MEET HIS BURDEN OF PROOF."
{¶ 7} In its sole assignment of error, the state argues the trial court abused its
discretion when it granted Shields' motion to withdraw his guilty plea. We disagree.
{¶ 8} 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 that discretion, we must
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.
{¶ 9} 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."
{¶ 10} 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. Whether a Delaware County, Case No. 22 CAA 110079 4
“reasonable and legitimate basis” for the withdrawal of a plea exists also lies within the
trial court's sound discretion. State v. Rosemark, 116 Ohio App.3d 306, 308, 688 N.E.2d
22 (9th Dist. 1996).
{¶ 11} The factors which may considered by a trial court when making a decision
on a motion to withdraw a guilty plea include: (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).
{¶ 12} The state first argues the trial court abused its discretion by granting Shields'
motion because Shields presented no evidence or affidavit during the hearing to support
his motion, and therefore the trial court could not have fairly considered the relevant
factors when making its decision. We are unaware of any requirement for an affidavit or
testimony from a defendant requesting to withdraw his plea. Rather, the scope of a
hearing on a motion to withdraw a guilty plea is "dependent upon the facial validity of the
motion itself." State v. Wittine, 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 8
{¶ 13} The record here reflects the reason behind Shields' desire to withdraw his
guilty pleas was narrow and straight forward. Shields' motion to withdraw his guilty plea
indicated that on the day of his plea hearing, he was fully prepared to enter a no contest
plea. On that day, however, he learned that in order to take advantage of the agreed upon Delaware County, Case No. 22 CAA 110079 5
sentence, he had to enter a plea of guilty. Shields' motion stated he did so without
appreciating the ramifications of a guilty plea as opposed to a no contest plea, specifically
the impact on his ability to challenge the trial court's adverse ruling on his motion to
suppress. Motion to Withdraw Plea filed October 11, 2022, docket at 129.
{¶ 14} The motion is unclear as to who advised Shields' of this requirement.
However, an examination of the transcript of the hearing on Shields' motion to withdraw
his guilty plea lead us to a conclusion that this was a requirement of the state and not the
trial court. The record further indicates the trial court's position that the reason for
Shields's motion was reasonable and legitimate rather than merely a change of heart.
The trial court stated:
I frankly was expecting a no contest plea in this case. I figured the
parties would want the Court of Appeals to take a look at an issue
that I'm sure is going to come up again and again in other cases and
so getting some settled law from a higher court would I think be
beneficial to everyone, not necessarily Mr. Shields himself
depending on how the outcome came out but the parties I expect,
the attorneys would be seeing this issue over and over in other
cases, so I thought the parties would want to get that resolved and
that that would perhaps happen in a no contest plea. So that's on my
mind too that it is the kind of case where one might reasonably
expect that and I confess I was surprised when I received the plea
paperwork and saw it was a guilty plea and wondered how in the Delaware County, Case No. 22 CAA 110079 6
world that had happened. I didn't question it that day of course; it was
an agreement, but its not shocking to me that that is an outcome that
a person in Mr. Shields's position might have reasonably hoped for.
***
But again, this was a motion before sentencing and my
understanding of the relevant Criminal Rule is that I am generally
supposed to be open to that kind of motion at this point.
{¶ 15} Transcript of hearing T. 16-17.
{¶ 16} While the state argues Shields failed to present evidence on each Fish
factor and provides us with argument on each of those factors, we find it is not necessary
for a defendant to present evidence on irrelevant factors. The factors set forth in Fish are
those that a trial court may consider. The reason for Shields's motion was his realization
that he lost the ability to challenge the trial court's ruling on his motion to suppress through
his guilty plea. The trial court found that reason compelling enough to grant the motion,
even expressing its surprise that guilty pleas were entered at all. The court further found
granting the motion did not prejudice the state. T. 15.
{¶ 17} We find the trial court's decision to grant Shields' motion to withdraw his
guilty plea was not unreasonable, arbitrary or unconscionable. The sole assignment of
error is overruled. Delaware County, Case No. 22 CAA 110079 7
{¶ 18} The judgment of the Delaware County Court of Common Pleas is affirmed.
By King, J.,
Delaney, P.J. and
Baldwin, J. concur.
AJK/rw