State v. Spigner

2022 Ohio 3171

• Court: Ohio Court of Appeals
• Decided: September 9, 2022
• Docket: E-21-054
• Status: Published

Opinion

[Cite as State v. Spigner, 2022-Ohio-3171.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-21-054

Appellee Trial Court No. 2019-CR-468

v.

David Spigner DECISION AND JUDGMENT

Appellant Decided: September 9, 2022

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

Matthew A. Craig, for appellant.

MAYLE, J.

I. Introduction

{¶ 1} The defendant-appellant, David Spigner, appeals the November 23, 2021

judgment of the Erie County Court of Common Pleas, entered after the trial court denied

Spigner’s motion to withdraw his guilty plea. For the following reasons, we affirm the

judgment. II. Background

{¶ 2} The indictment in this case, dated January 15, 2020, alleges that Spigner

conspired to commit three offenses: burglary, grand theft of a motor vehicle, and theft.

Nearly one year later, the parties reached an agreement whereby Spigner pled guilty to an

amended charge of attempted burglary, in violation of R.C. 2923.02(A) and

2911.12(A)(2) and (D), a felony of the third degree (Count 1) and complicity in the

commission of grand theft of a motor vehicle, in violation of R.C. 2923.03(A)(2) and

2913.02(A)(1) and (B)(5), a felony of the fourth degree (Count 2), and the state agreed

not to prosecute the complicity to commit theft offense (Count 3). As part of the plea

agreement, the parties also made a joint recommendation that Spigner be ordered to

spend 180 days in jail—which, at that time, he had nearly already served—plus a

suspended prison sentence of three years. The trial court accepted the plea, entered

findings of guilt, and ordered a presentence investigation in preparation for sentencing.

{¶ 3} The sentencing hearing was held 11 months later, on November 22, 2021.

As the hearing began, defense counsel indicated that Spigner had “asked [counsel] to

verbally move the court to withdraw [Spigner’s guilty] plea.” After a hearing, limited to

that issue, the trial court denied the motion and proceeded to sentence Spigner.

{¶ 4} By judgment entry dated November 23, 2021, the court sentenced Spigner to

serve 30 months in prison as to the burglary offense (Count 1) and 17 months as to the

2. grand theft auto offense (Count 2), to be served concurrently, for a total prison term of 30

months. It also sentenced Spigner to a mandatory three-year term of post-release control.

{¶ 5} Spigner appealed and raises a single assignment of error for our review.

I. The trial court abused its discretion and committed reversible error

in denying defendant/appellant’s motion to withdraw his plea and this court

should, therefore, reverse defendant/appellant’s conviction.

III. Discussion

{¶ 6} Under Crim.R. 32.1, “[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.” The Ohio Supreme Court has recognized that a presentence

motion to withdraw a guilty plea should be freely and liberally granted. State v. Xie, 62

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992), citing State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). But, a defendant does not have an absolute right to

withdraw a plea prior to sentencing. Id. Withdrawal of a plea will not be permitted

merely because a defendant has experienced a change of heart. See, e.g., State v. Posey,

6th Dist. Ottawa No. OT-12-028, 2014-Ohio-1994, ¶ 9.

{¶ 7} Upon the filing of a motion to withdraw a plea, the trial court must conduct a

hearing and exercise its discretion in determining whether there is a reasonable and

legitimate basis for withdrawal of the plea. Xie at paragraphs one and two of the

3. syllabus. We review the trial court’s decision for an abuse of that discretion, i.e. we

review the record to determine whether the trial court’s ruling was “unreasonable,

arbitrary or unconscionable.” Id. at 527. “What constitutes an abuse of discretion in

over-ruling a motion to withdraw a guilty plea will vary with the facts and circumstances

of each case.” (Quotation omitted.) State v. Hartman, 6th Dist. Huron No. H-17-014,

2018-Ohio-4452, ¶ 13 citing State v. Preston, 2d Dist. Montgomery No. 25393, 2013-

Ohio-4404, ¶ 19.

{¶ 8} Appellate courts evaluate a trial court’s decision to grant or deny a pre-

sentence motion to withdraw a plea based upon the following factors (the “Fish factors”):

(1) whether the state would 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 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 crime.

State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995), overruled on other

grounds. “Consideration of the factors is a balancing test, and no one factor is

4. conclusive.” State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, ¶

13.

A. The hearing on Spigner’s motion and the trial court’s findings

{¶ 9} The trial court conducted a hearing immediately upon Spigner’s oral motion

to withdraw. According to the transcript, defense counsel told the court that Spigner

stood a “reasonable chance of being acquitted” if the case was tried because Spigner was

“actually innocent of the charges” and because the state’s case against him was

“defensible,” given “some triable questions of fact” and “some double jeopardy issues.”

The state opposed the motion, arguing that it would be prejudiced if forced to try the case

because, after two and a half years since the crimes were committed, “people [including

victims] are moving on from this case.”

{¶ 10} After hearing the arguments, the court evaluated the factors, outlined

above. Beginning with prejudice, the court noted that the alleged offenses had occurred

“over two years ago” and that the state was “concern[ed] about * * * prejudice with the

victim.”

{¶ 11} Regarding Spigner’s legal representation, the trial court noted that defense

counsel had successfully negotiated a plea resulting in one count being dismissed (Count

3), another count being reduced from a second degree to a third degree felony offense

(Count 1), and a joint sentencing recommendation calling for community control in lieu

of prison. The court added that defense counsel “got the state to agree” to such a

5. favorable plea, despite Spigner’s significant criminal history, including 14 juvenile

delinquency adjudications and several adult convictions for the same or similar offenses

as the case at bar. The court concluded that Spigner had been represented by “highly

competent” counsel.

{¶ 12} To address the adequacy of Spigner’s Crim.R. 11 hearing, the court

“play[ed] back” the entire 21-minute plea hearing in open court. Based upon that

recording, the trial court concluded that Spigner received a “complete Criminal Rule 11

hearing.” It made particular mention to the fact that, at the time of the plea, Spigner had

affirmed his understanding of, and agreement with, the terms of the plea agreement and

had also indicated that he was “pleading guilty because he was guilty.” (Nov. 22, 2021

Tr. at 12).

{¶ 13} Next, the court noted its obligation to conduct a full and impartial hearing,

which it noted it “[was] doing now.”

{¶ 14} Regarding the timeliness of Spigner’s motion, the court noted that Spigner

filed his motion to withdraw “almost a year” after entering his plea and “only after”

being rejected for a community based correctional facility and after “new” convictions”

(for “assaults”) and “new charges” against him were added (for aggravated riot and

abduction).

{¶ 15} With regard to Spigner’s claim of innocence, the court made the following

observations: Spigner was alleged to have stolen a car and wallet belonging to the sister

6. of his accomplice. At the time of Signer’s arrest, near a gas station, the victim’s credit

card and a receipt from a recent purchase were found on Spigner’s person. Video

surveillance from the gas station showed Spigner making the purchase there, which

refuted his statement to police that he “was just handed” the credit card by his

accomplice. Other surveillance video showed Spigner riding in the stolen vehicle in

Franklin County. Finally, the trial court noted that the accomplice told police that

Spigner had “pointed [a gun] at him [and] made him * * * take the card and * * * go to

the ATM to try to get money out * * * [and] put gasoline in the car.” Based upon the

evidence, the trial court rejected the argument that the state’s case against Spigner was

“defensible [with] triable facts.” Further, in considering “all [the Fish] factors, the Court

[concluded] that [Spigner does not have] a reasonable and legitimate basis to withdraw

his plea.” Accordingly, it denied the motion.

B. Our review of the Fish factors

{¶ 16} We will now review the trial court’s decision by considering the Fish

factors, while “remember[ing] that the ultimate question to be answered by the trial court

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

and the ultimate question to be answered by the court of appeals is whether the trial court

abused its discretion in making this determination.” State v. Burns, 12th Dist. Butler No.

CA2004-07-084, 2005-Ohio-5290, ¶ 25, quoting Xie.

7. (1) Prejudice to the state by withdrawal of Spigner’s guilty plea

{¶ 17} Prejudice to the state “[g]enerally * * * involves one or more witnesses

becoming unavailable due to the delay in the trial resulting from the plea withdrawal.”

State v. Preston, 2d Dist. Montgomery No. No. 25393, 2013-Ohio-4404, ¶ 31, quoting

State v. Boyd, 10th Dist. Franklin No. 97APA12-1640, 1998 WL 733717, *6 (Oct. 22,

1998). Prejudice “[must be] articulated and [will not] be presumed.” State v. Griffin, 141

Ohio App.3d 551, 554-555, 752 N.E.2d 310 (7th Dist.2001).

{¶ 18} Here, the state complains that it no longer has any leverage over Spigner’s

accomplice because the case against him has resolved. But, the state does not claim that

the accomplice—or any other witness—is now unavailable to testify. Instead, the state’s

prejudice argument is premised solely on the passage of time between the commission of

the offenses and the filing of Spigner’s motion (“two-and-a-half years”). Under the facts

of this case, we find that the mere passage of time, without more, does not establish that

the state would be prejudiced if Spigner’s motion to withdraw was granted. Accordingly,

we find that this factor weighs in Spigner’s favor.

(2) The representation afforded to Spigner by counsel

{¶ 19} In his brief, Spigner agrees that his counsel was not “deficient.” Similarly,

at the time of his plea, he told the court that he was satisfied with his attorney’s

representation. As set forth above, the trial court thoroughly addressed this factor, and

8. we agree that Spigner was represented by “highly competent” counsel. Therefore, we

find that this factor weighs in favor of the state and against granting Spigner’s motion.

(3) The extent of Spigner’s Crim.R. 11 plea hearing and (8) whether Spigner understood the nature of the charges against him and the potential sentence

{¶ 20} Crim.R. 11 sets forth the procedural requirements for accepting a guilty

plea. These procedural requirements are consistent with constitutional protections

afforded a defendant. State v. Stewart, 51 Ohio St.2d 86, 88, 364 N.E.2d 1163 (1977).

Here, the record demonstrates that the trial court complied with the formal requirements

of the rule and that Spigner understood the substance of the Crim.R. 11 questions. We

reach that determination based on the fact that, at the conclusion of the colloquy, Spigner

communicated his willingness to accept the plea, and he demonstrated that he understood

the rights he was waiving, the level of the offenses, and the possible penalties.

Importantly, Spigner also “concedes” on appeal that these “factors,” i.e. the plea hearing

and his understanding of the charges and potential sentence, “do not support his motion

to withdraw his plea.” (Appellant’s Brief at 11). For all of these reasons, we agree with

the trial court’s resolution of the third and eighth factors and find that they weigh in favor

of the state and against granting Spigner’s motion.

(4)The extent of the hearing on Spigner’s motion and (5) whether the trial court gave full and fair consideration to the motion

{¶ 21} As this court has previously observed, “while the Xie court failed to

specifically set forth what type of hearing [on a motion to withdraw a plea] is required, it

9. is axiomatic that such [a] hearing must comport with the minimum standards of due

process, i.e., meaningful notice and opportunity to be heard.” State v. Eversole, 6th Dist.

Erie Nos. E-05-073, 2006-Ohio-3988, ¶ 14. Moreover, “[t]he scope of [the] hearing * * *

should reflect the substantive merits of the motion.” Id.

{¶ 22} The basis for Spigner’s motion was his claim that he was “actually

innocent of the charges” and the presence of “some double jeopardy issues” as to the

Count 3, i.e. the theft offense that was dismissed as part of the plea. On appeal, Spigner

faults the trial court for holding a “relatively brief” and “truncated hearing” during which

the court failed to receive any “testimony or other evidence.”

{¶ 23} As previously described, the trial court thoroughly discussed the evidence

in the record before it concluded that Spigner lacked a legitimate basis to withdraw his

plea. While Spigner criticizes the court for not, sua sponte, receiving any “testimony or

other evidence” on these issues, Spigner offered none himself. Instead, Spigner sat silent

while the court described the evidence in the record, all of which was suggestive of his

guilt. “Xie does not require that a full evidentiary hearing be held in all cases.” Id., citing

State v. Mercer, 6th Dist. Nos. L-98-1317, L-98-1318 (Jan. 14, 2000). “[B]old assertions

without evidentiary support simply should not merit the type of scrutiny that substantial

allegations would merit. * * *. This approach strikes a fair balance between fairness for

an accused and preservation of judicial resources.” (Citations omitted.) Id. In short, we

find nothing in the record to suggest that the trial court did not give Spigner’s motion full

10. and fair consideration. Therefore, we find that the fourth and fifth factors weigh in favor

(6) Whether the timing of Spigner’s motion was reasonable

{¶ 24} Spigner concedes that ten months elapsed between the time of his plea and

the filing of his motion. He claims that this delay was not “unreasonable” because he

“was down in Franklin County dealing with several other criminal charges.”

{¶ 25} Upon review, the record strongly suggests that it was Spigner’s legal

troubles in Franklin County—and not his “actual innocence”—that motivated him to seek

withdrawal of the plea. According to the transcript in this case, the parties originally

agreed that Spigner would serve his jail time in a “community-based correctional facility

[CBCF].” But, while awaiting sentencing, Spigner was convicted of aggravated rioting

and abduction in Franklin County, after which he was denied placement in the CBCF.

{¶ 26} On appeal, Spigner argues that his “mistaken belief that a CBCF would be a

sentencing option” supports his motion to withdraw. (Emphasis added.) However, the

only conclusion to be drawn from the transcript is that Spigner’s ineligibility for a CBCF

was not a function of any “mistaken belief” but rather a change of circumstances, i.e. his

continued law-breaking, which resulted in more convictions. Because Spigner bears

responsibility for this change in circumstances, we cannot say that his ten month delay in

filing the motion was reasonable. Accordingly, we find that the timing of Spigner’s

motion weighs in favor of the state and against granting Spigner’s motion.

11. (7) The reasons for Spigner’s motion and (9) whether Spigner was perhaps not guilty or had a complete defense to the charge.

{¶ 27} “In weighing the ninth factor, ‘the trial judge must determine whether the

claim of innocence is anything more than the defendant’s change of heart about the plea

agreement.’” Hartman at ¶ 27, quoting State v. Davis, 5th Dist. Richland No. 15CA6,

2015-Ohio-5196, ¶ 19. “A mere change of heart is not a reasonable basis for a defendant

to withdraw his guilty plea.” Id. citing State v. Lambros, 44 Ohio App.3d 102, 103, 541

N.E.2d 632 (8th Dist.1988).

{¶ 28} As discussed, Spigner did not maintain his innocence until the day of

sentencing, which was after the time he was convicted of other offenses and after

learning that he was no longer eligible for community control. And, at the hearing on

Spigner’s motion to withdraw plea, he did not submit any testimony or evidence to

suggest that he is innocent of the charges in this case.

{¶ 29} We find that the record in this case suggests that Spigner exhibited a mere

“change of heart,” and accordingly, we find that the seventh and ninth factors also weigh

in favor of the state and against granting Spigner’s motion.

IV. Conclusion

{¶ 30} Having reviewed the record, we find that, on the whole, the Fish factors

weigh in favor of the state and against granting Spigner’s motion to withdraw his guilty

plea. Spigner’s arguments in support of his motion evince a mere change of heart rather

than a reasonable and legitimate basis for withdrawing the plea. Therefore, we conclude

12. that the trial court did not abuse its discretion in denying his motion. Accordingly, we

find Spigner’s assignment of error not well-taken.

{¶ 31} We therefore we affirm the November 23, 2021 judgment of the Erie

County Court of Common Pleas. Spigner is ordered to pay the costs of this appeal

pursuant to App.R. 24. It is so ordered.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Christine E. Mayle, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.