[Cite as State v. Staton, 2011-Ohio-4889.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-06
v.
CHAD A. STATON, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court Trial Court No. 10-CR-10755
Judgment Affirmed
Date of Decision: September 26, 2011
APPEARANCES:
John P. Goldenetz for Appellant
Carson L. Slade for Appellee Case No. 4-11-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Chad A. Staton (“Staton”) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County denying his
post-conviction motion to withdraw his guilty plea. For the reasons set forth
below, the judgment is affirmed.
{¶2} On March 5, 2010, the Defiance County Grand Jury indicted Staton on
one count of theft from an elderly person in violation of R.C. 2913.02(A)(1), a
felony of the fifth degree. Staton entered a plea of not guilty to the charge on
March 19, 2010. Pursuant to a plea agreement, Staton appeared before the trial
court on August 16, 2010, to enter a plea of guilty. In exchange for the guilty
plea, the State offered to recommend either a six month terminal sentence or
twelve months reserved sentence with community control. Aug. 16, 2010, Tr. 2.
The trial court accepted the guilty plea and ordered a pre-sentence investigation.
Aug. 19, 2010, Entry. Before the sentencing hearing was held, Staton filed a
motion to withdraw his guilty plea. The sentencing hearing was held on October
4, 2010. At that hearing, the trial court overruled the motion to withdraw the
guilty plea and sentenced Staton to twelve months in prison. Staton filed a notice
of appeal from this judgment on November 3, 2010. A post-sentence motion to
withdraw the guilty plea was filed on December 27, 2010. On January 28, 2011,
the appeal was voluntarily dismissed by Staton. The trial court held a hearing on
-2- Case No. 4-11-06
the post-sentence motion to withdraw the guilty plea on March 29, 2011. The trial
court then denied the motion. Staton appeals from that judgment and raises the
following assignments of error.
First Assignment of Error
The trial court committed abuse of discretion in denying [Staton’s] pre-sentence Motion to Withdraw Guilty Plea.
Second Assignment of Error
The trial court committed prejudicial error in denying [Staton’s] post-sentence Motion to Withdraw Guilty Plea when it was shown by credible evidence that he received ineffective assistance of counsel.
Third Assignment of Error
The trial court committed abuse of discretion in denying the post-sentence Motion of [Staton] to Withdraw his Guilty Plea.
{¶3} In the first assignment of error, Staton alleges that the trial court erred
in denying his pre-sentence motion to withdraw his guilty plea.
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.
Crim.R. 32.1. Staton originally filed his motion to withdraw his guilty plea
before he was sentenced on the offense. Thus, it was a presentence motion to
withdraw his guilty plea. “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from
-3- Case No. 4-11-06
raising and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been
raised by the defendant * * * on an appeal from that judgment.” State v. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104. The merits of the presentence
motion were argued at the sentencing hearing and was thus on the record. Thus,
Staton could have raised this issue on direct appeal and may be barred by the
doctrine of res judicata.
{¶4} Although the appeal on the pre-sentence motion to withdraw the guilty
plea may be barred by the doctrine of res judicata, this court will address the
merits of the assignment of error in the interests of justice. Motions to withdraw a
guilty plea prior to sentencing should be freely and liberally granted. State v. Xie
(1992), 62 Ohio St.3d 521, 584 N.E.2d 715. However, a defendant does not have
an absolute right to withdraw a guilty plea. Id. A trial court must hold a hearing
on the motion and determine whether a reasonable and legitimate basis exists for
withdrawing the pleas. Id. “A trial court will not abuse its discretion in overruling
a motion to withdraw a guilty plea: 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 the court gave full and fair consideration to the plea
-4- Case No. 4-11-06
withdrawal request.” State v. Sylvester, 2d Dist. No. 22289, 2008-Ohio-2901, ¶19.
A change of heart is not sufficient grounds to allow the withdrawal of the guilty
plea, even in a pre-sentence motion to withdraw the plea. Xie, supra.
{¶5} At the hearing, Staton was represented by counsel, satisfying the first
factor. Staton was given a full and complete Crim.R. 11 hearing on August 16,
2010, before his guilty plea was entered. Thus, the second factor is met. Before
being sentenced, the trial court held a hearing on Staton’s motion at which both
Staton’s counsel and Staton were permitted to speak. Staton claimed at the
hearing that he was innocent and that there was a misunderstanding on the part of
the elderly victim. Sentencing Tr. 4-6. The State objected to Staton’s motion
claiming that it was a delaying tactic because he did not want to go to prison and
that the State could be prejudiced because the victim was 94 years of age. Id. at 3.
Since the hearing was held, the third factor was also met. Finally, the trial court
considered the motion and made the following findings.
Well, I see this indictment was from March of this year. Certainly, if that – There isn’t anything that has occurred between the time of your plea which was August 16th. April, May, June, July, certainly, if that, if those matters were – There isn’t any reason that those same issues would not have been known to you well prior to making this plea.
We went, of course, through a complete and thorough Rule 11 inquiry. It was Court’s conclusion that your plea was made knowingly, voluntarily and intelligently. You acknowledged the factual basis for the criminal offenses recited by the State at the
-5- Case No. 4-11-06
time of the Rule 11 inquiry. I acknowledge the State’s position as well that they may be prejudiced by allowing withdrawal of the plea at this time. The motion to withdraw the plea is denied.
Id. at 6. The trial court fully considered the motion and the fourth factor was met.
The trial court agreed with the State that there was no basis for the withdrawal of
the plea. The record does not indicate that the trial court abused its discretion in
making this determination. Thus, the first assignment of error is overruled.
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[Cite as State v. Staton, 2011-Ohio-4889.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-06
v.
CHAD A. STATON, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court Trial Court No. 10-CR-10755
Judgment Affirmed
Date of Decision: September 26, 2011
APPEARANCES:
John P. Goldenetz for Appellant
Carson L. Slade for Appellee Case No. 4-11-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Chad A. Staton (“Staton”) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County denying his
post-conviction motion to withdraw his guilty plea. For the reasons set forth
below, the judgment is affirmed.
{¶2} On March 5, 2010, the Defiance County Grand Jury indicted Staton on
one count of theft from an elderly person in violation of R.C. 2913.02(A)(1), a
felony of the fifth degree. Staton entered a plea of not guilty to the charge on
March 19, 2010. Pursuant to a plea agreement, Staton appeared before the trial
court on August 16, 2010, to enter a plea of guilty. In exchange for the guilty
plea, the State offered to recommend either a six month terminal sentence or
twelve months reserved sentence with community control. Aug. 16, 2010, Tr. 2.
The trial court accepted the guilty plea and ordered a pre-sentence investigation.
Aug. 19, 2010, Entry. Before the sentencing hearing was held, Staton filed a
motion to withdraw his guilty plea. The sentencing hearing was held on October
4, 2010. At that hearing, the trial court overruled the motion to withdraw the
guilty plea and sentenced Staton to twelve months in prison. Staton filed a notice
of appeal from this judgment on November 3, 2010. A post-sentence motion to
withdraw the guilty plea was filed on December 27, 2010. On January 28, 2011,
the appeal was voluntarily dismissed by Staton. The trial court held a hearing on
-2- Case No. 4-11-06
the post-sentence motion to withdraw the guilty plea on March 29, 2011. The trial
court then denied the motion. Staton appeals from that judgment and raises the
following assignments of error.
First Assignment of Error
The trial court committed abuse of discretion in denying [Staton’s] pre-sentence Motion to Withdraw Guilty Plea.
Second Assignment of Error
The trial court committed prejudicial error in denying [Staton’s] post-sentence Motion to Withdraw Guilty Plea when it was shown by credible evidence that he received ineffective assistance of counsel.
Third Assignment of Error
The trial court committed abuse of discretion in denying the post-sentence Motion of [Staton] to Withdraw his Guilty Plea.
{¶3} In the first assignment of error, Staton alleges that the trial court erred
in denying his pre-sentence motion to withdraw his guilty plea.
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.
Crim.R. 32.1. Staton originally filed his motion to withdraw his guilty plea
before he was sentenced on the offense. Thus, it was a presentence motion to
withdraw his guilty plea. “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from
-3- Case No. 4-11-06
raising and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been
raised by the defendant * * * on an appeal from that judgment.” State v. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104. The merits of the presentence
motion were argued at the sentencing hearing and was thus on the record. Thus,
Staton could have raised this issue on direct appeal and may be barred by the
doctrine of res judicata.
{¶4} Although the appeal on the pre-sentence motion to withdraw the guilty
plea may be barred by the doctrine of res judicata, this court will address the
merits of the assignment of error in the interests of justice. Motions to withdraw a
guilty plea prior to sentencing should be freely and liberally granted. State v. Xie
(1992), 62 Ohio St.3d 521, 584 N.E.2d 715. However, a defendant does not have
an absolute right to withdraw a guilty plea. Id. A trial court must hold a hearing
on the motion and determine whether a reasonable and legitimate basis exists for
withdrawing the pleas. Id. “A trial court will not abuse its discretion in overruling
a motion to withdraw a guilty plea: 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 the court gave full and fair consideration to the plea
-4- Case No. 4-11-06
withdrawal request.” State v. Sylvester, 2d Dist. No. 22289, 2008-Ohio-2901, ¶19.
A change of heart is not sufficient grounds to allow the withdrawal of the guilty
plea, even in a pre-sentence motion to withdraw the plea. Xie, supra.
{¶5} At the hearing, Staton was represented by counsel, satisfying the first
factor. Staton was given a full and complete Crim.R. 11 hearing on August 16,
2010, before his guilty plea was entered. Thus, the second factor is met. Before
being sentenced, the trial court held a hearing on Staton’s motion at which both
Staton’s counsel and Staton were permitted to speak. Staton claimed at the
hearing that he was innocent and that there was a misunderstanding on the part of
the elderly victim. Sentencing Tr. 4-6. The State objected to Staton’s motion
claiming that it was a delaying tactic because he did not want to go to prison and
that the State could be prejudiced because the victim was 94 years of age. Id. at 3.
Since the hearing was held, the third factor was also met. Finally, the trial court
considered the motion and made the following findings.
Well, I see this indictment was from March of this year. Certainly, if that – There isn’t anything that has occurred between the time of your plea which was August 16th. April, May, June, July, certainly, if that, if those matters were – There isn’t any reason that those same issues would not have been known to you well prior to making this plea.
We went, of course, through a complete and thorough Rule 11 inquiry. It was Court’s conclusion that your plea was made knowingly, voluntarily and intelligently. You acknowledged the factual basis for the criminal offenses recited by the State at the
-5- Case No. 4-11-06
time of the Rule 11 inquiry. I acknowledge the State’s position as well that they may be prejudiced by allowing withdrawal of the plea at this time. The motion to withdraw the plea is denied.
Id. at 6. The trial court fully considered the motion and the fourth factor was met.
The trial court agreed with the State that there was no basis for the withdrawal of
the plea. The record does not indicate that the trial court abused its discretion in
making this determination. Thus, the first assignment of error is overruled.
{¶6} Staton argues in the second and third assignments of error that the trial
court erred in denying his post-sentence motion to withdraw his guilty plea
claiming that it was shown that he lacked effective assistance of counsel and that
the trial court abused its discretion in denying his post-sentence motion. An
appellate court should only reverse the denial of a post-sentence motion to
withdraw a guilty plea to correct a manifest injustice. State v. Stumpf (1987), 32
Ohio St.3d 95, 512 N.E.2d 598 and Crim.R. 32.1. “The manifest injustice
standard ‘comprehends a fundamental flaw in the path of justice so extraordinary
that the defendant could not have sought redress from the resulting prejudice
through another form of application reasonably available to him or her.’” State v.
Gibson, 11th Dist. No. 2007-P-0021, 2007-Ohio-6926, ¶20 (quoting State v.
Thomson, 6th Dist. No. L-05-1213, 2006-Ohio-1224, ¶48). The defendant has the
burden of establishing the existence of the injustice. State v. Caraballo (1985), 17
Ohio St.3d 66, 477 N.E.2d 627. The determination as to whether to allow the
-6- Case No. 4-11-06
withdrawal of the guilty plea for a manifest injustice is within the sound discretion
of the trial court. Xie, supra. An abuse of discretion implies an unreasonable,
arbitrary, or unconscionable attitude on the part of the trial court. Quonset Hut,
Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 684 N.E.2d 319. Absent an
abuse of discretion, an appellate court may not reverse the trial court’s ruling.
State v. Barnett (1991), 73 Ohio App.3d 244, 596 N.E.2d 1101.
{¶7} In this case, Staton was granted a hearing on his motion to withdraw
his guilty plea. He alleged that his conviction was a manifest injustice because he
was denied effective assistance of counsel. The only evidence presented by Staton
at the hearing was his own testimony. He testified that he was not guilty, but his
trial counsel told him that he was going to be found guilty because of the
sympathetic victim and his prior prison record. March 29, 2011 Hearing, Tr. 7-8.
He claimed that his counsel informed him that he would receive community
control if he entered a guilty plea. Id. at 8. Staton also claimed that his counsel
knew of the potential witness and had interviewed him prior to the change of plea.
Id. at 8-9. However, Staton also testified that he told his attorney he wished to
change his plea after he and his wife determined that the judge was not going to
sentence him to community control, but was instead going to sentence him to
prison. Id. at 9. He claimed that he started asking his prior counsel to file the
motion to withdraw the guilty plea immediately after the change of plea hearing
-7- Case No. 4-11-06
and weekly afterward. Id. at 10. Based upon the evidence presented to the trial
court, the only error that Staton alleges his trial counsel made was not filing the
motion to withdraw the guilty plea in a timely manner. He does not indicate in
any way how he was prejudiced by this alleged error or that a different action
would have changed the outcome. In fact, Staton admits that he did not wish to
change his plea until he realized he was not going to receive community control.
Dissatisfaction with the sentence one receives is not a manifest injustice and is not
a sufficient basis for granting a motion to withdraw a guilty plea. Xie, supra.
Therefore, the trial court did not abuse its discretion in finding no manifest
injustice and overruling the post-sentence motion to withdraw the guilty plea. The
second and third assignments of error are overruled.
{¶8} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Defiance County is affirmed.
SHAW and PRESTON, J.J., concur.
/jlr
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