[Cite as State v. Ybarra, 2019-Ohio-4824.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio/City of Perrysburg Court of Appeals No. WD-19-006
Appellee Trial Court No. CRB 1801581
v.
Ricardo Ybarra DECISION AND JUDGMENT
Appellant Decided: November 22, 2019
*****
Chynna L. Fifer, City of Perrysburg Prosecutor, for appellee.
Michael B. Kelley, for appellant.
MAYLE, P.J.
{¶ 1} Defendant-appellant, Ricardo Ybarra, appeals the February 4, 2019
judgment of the Perrysburg Municipal Court denying his motion to withdraw his plea of
no contest. For the reasons that follow, we affirm the trial court judgment.
I. Background
{¶ 2} On December 4, 2018, Ricardo Ybarra was charged in Perrysburg Municipal
Court with domestic violence, a violation of R.C. 2919.25(A), a first-degree misdemeanor, and unauthorized use of a vehicle, a violation of R.C. 2913.03(A), also a
first-degree misdemeanor. He entered a plea of not guilty on December 12, 2018. On
December 14, 2018, the matter was set for a pretrial, however, Ybarra elected that day to
enter a plea of no contest to the domestic-violence charge, in exchange for dismissal of
the charge of unauthorized use of a vehicle. The Perrysburg Municipal Court judge
accepted Ybarra’s plea and made a finding of guilt. She continued the case for
sentencing so that a presentence investigation report (“PSI”) could be prepared.
{¶ 3} On December 21, 2018, Ybarra moved to withdraw his plea of no contest.
Soon thereafter, a new judge was appointed to the Perrysburg Municipal Court.
Following a hearing on January 4, 2019, the new Perrysburg Municipal Court judge
denied Ybarra’s motion. The matter proceeded to sentencing, and the court imposed a
jail term of 180 days in the Wood County Justice Center.
{¶ 4} Ybarra appealed. We determined that the January 4, 2019 judgment entry
was not final and appealable because it failed to state that Ybarra was found guilty and
convicted of the offense. We remanded the case to the trial court for entry of a final
appealable order. The court entered an amended judgment on February 4, 2019, and we
reinstated the appeal to our docket.
{¶ 5} Ybarra assigns the following errors for our review:
I. Appellant’s motion to withdraw his no contest plea should have
been granted, and the court abused its discretion.
2. II. Appellant’s no contest plea was not knowingly, intelligently and
voluntarily entered.
II. Law and Analysis
{¶ 6} Ybarra argues in his first assignment of error that the trial court abused its
discretion in denying his motion to withdraw his no-contest plea. He argues in his second
assignment of error that his plea should be vacated because it was not entered knowingly,
intelligently, and voluntarily. We consider each of these assignments in turn.
A. The trial court did not abuse its discretion in denying Ybarra’s motion to withdraw his no-contest plea.
{¶ 7} The trial court denied Ybarra’s motion to withdraw his plea of no contest. It
found that Ybarra understood the court process and what was happening at the time of his
plea, and it concluded that Ybarra had exhibited mere “buyer’s remorse.” In his first
assignment of error, Ybarra argues that the trial court abused its discretion.
{¶ 8} Crim.R. 32.1 governs the withdrawal of a plea of guilty or no contest and
provides that such motion “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).
Nevertheless, “[a] defendant does not have an absolute right to withdraw a guilty plea
prior to sentencing.” Id. at paragraph one of the syllabus.
3. {¶ 9} While Crim.R. 32.1 does not specify the circumstances under which a
presentence motion to withdraw may be granted, Ohio courts typically evaluate nine
factors when considering such a motion:
(1) whether the state will 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 the 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 charge.
State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th
Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001)
(“Griffin factors”). A mere change of heart is not a sufficient reason to permit
withdrawal of a plea. (Citations omitted.) State v. Acosta, 6th Dist. Wood No.
WD-15-066, 2016-Ohio-5698, ¶ 18.
{¶ 10} Upon the filing of a motion to withdraw a plea, the trial court “must
conduct a hearing to determine whether there is a reasonable and legitimate basis for the
withdrawal of the plea.” Xie at paragraph one of the syllabus. It is then left to the
discretion of the trial court whether to allow the defendant to withdraw his or her plea.
4. Id. at paragraph two of the syllabus. We will reverse the trial court’s decision only where
there has been an abuse of that discretion. Id. at 527.
{¶ 11} Ybarra maintains that at the plea hearing, he responded that he understood
the effect of his plea only after the court explained it to him four times. Even after that,
he claims, he told the judge that he did not understand that he may be prohibited under
federal law from owning or possessing firearms. Ybarra explains that while he speaks
English, he does not read or write English, and he signed a rights form without reading it.
He insists that he is innocent and he maintains that at the time he entered his plea, he was
nervous, confused, and embarrassed. Ybarra contends that his confusion by the court
process was further demonstrated when, at the motion hearing, he “babble[d] senselessly”
about double jeopardy, indicated that he only “kind of” understood the effects of
withdrawing his plea, asked the court to amend the charges at an inappropriate time, and
requested OR bond at an inappropriate time.
{¶ 12} The city maintains that the newly-appointed municipal court judge
reviewed the video recordings from the arraignment and plea hearing, held a hearing, and
considered the relevant case law and factors before denying Ybarra’s motion. While it
concedes that the motion was timely filed and that it would not be prejudiced by
withdrawal of the plea, it insists that Ybarra had competent counsel who stopped the
hearing when necessary to explain things to him, the court ensured that Ybarra
understood the difference between the possible pleas, and the court explained the
potential sentence that could be imposed. The city claims that Ybarra did not assert
5. innocence at the plea hearing, and was concerned only with whether it would be “better”
to enter a plea of guilty or no contest. It contends that the court properly concluded that
Ybarra understood the plea and had merely experienced “buyer’s remorse” after entering
the plea.
{¶ 13} After reviewing the hearing transcripts, the video recordings, and the
arguments of the parties, we resolve the nine Griffin factors as follows.
{¶ 14} Prejudice to the state. While the city objected to Ybarra’s motion, it did
not indicate that it would be prejudiced if Ybarra were permitted to withdraw his plea. It
concedes on appeal that it would not be prejudiced. This factor, therefore, weighs in
favor of allowing Ybarra to withdraw his plea.
{¶ 15} Representation afforded to the defendant by counsel. The trial court found
that Ybarra was represented by competent defense counsel who reviewed Ybarra’s rights
with him, including his right to a trial. We agree with the court’s conclusion, and we find
that this factor weighs against allowing Ybarra to withdraw his plea.
{¶ 16} The extent of the Crim.R. 11 plea hearing and whether the defendant
understood the nature of the charges and potential sentences. Ybarra initially planned to
enter a plea of guilty to the domestic violence charge. The trial court told him that it
would be a complete admission to the charge, so Ybarra asked if he could plead no
contest because he just wanted “to resolve the matter.” He asked whether that would be
the same thing. A brief recess was taken, during which the city consented to allowing
6. Ybarra to enter a no-contest plea instead of a guilty plea. The court and Ybarra engaged
in the following exchange:
The court: Mr. Ybarra, do you understand that with a no contest
plea, you’re not admitting guilt, but you are accepting as true any
statements contained in the charge or stated in court?
The defendant: Yes, ma’am.
The court: And based on that plea then, the Court would – could
find you guilty and sentence you up to 180 days in the Wood County
Justice Center, up to a $1,000 fine, do you understand that?
The defendant: Not really. I just want the best thing and I want this
resolved. * * * So, I mean, I don’t know what is better, the no contest or
just pleading guilty.
The court: I’m just telling you the effect of the plea. The no contest
plea would not be used against you in a later civil or criminal matter. Even
though the plea would not be used against you, a conviction on this charge
could be used in the future to enhance a similar offense to a felony. Do you
understand that a domestic violence charge is an enhanceable offense? If
you’re convicted of the charge and in the future charged with a similar
offense, that similar offense would be enhanced to a felony.
The defendant: I will just plead guilty.
***
7. The court: The difference between a guilty plea is that is a complete
admission, yes, I did it. The difference between a no contest plea is, you’re
not admitting that you did it, but you’re not going to argue the facts of the
case.
The defendant: Then that’s what I want to do.
The court: So, just let me – for the record – go through once again
the no contest plea. You’re not admitting guilt, but you are accepting as
true the statements contained in the charge or stated in court. The no
contest plea would not be used against you in a later civil or criminal
matter, do you understand.
The court: All right. The effect of the plea. I do need to go over
that this is an enhanceable offense. The plea would not be used against
you, but a conviction could be used against you to enhance a future
domestic violence or similar offense to a felony, do you understand?
The court: With this charge and a conviction on this charge, you
could be prohibited under federal law from owning or possessing any
firearms or weapons, do you understand that?
The defendant: I don’t. Yes, ma’am.
8. The trial court also confirmed that Ybarra is an American citizen and that he was not
under the influence of any illegal drugs or alcohol.
{¶ 17} The trial court concluded that the only concern exhibited by Ybarra during
the plea hearing was the difference between a no contest and a guilty plea. We agree
with that assessment, and we conclude that the judge who accepted Ybarra’s plea
patiently described the difference to Ybarra until he understood. There appeared to be no
language barrier affecting Ybarra’s understanding of the proceedings. And to the extent
that Ybarra initially responded “I don’t” when the judge asked him if he understood that
he could be prohibited from owning or possessing a firearm, our review of the video
recording convinces us that Ybarra was responding that he does not own or possess a
firearm—not that he did not understand that he may be prohibited from owning or
possessing them if convicted. In fact, he interrupted the court, such that the exchange
that took place more accurately reads as follows:
The court: With this charge and a conviction on this charge, you
could be prohibited under federal law from owning or possessing any
firearms or weapons * * *
[Defendant interrupts]: I don’t.
[Court continues]: * * * do you understand that?
[Defendant responds]: Yes, ma’am.
9. {¶ 18} We, therefore, conclude that Ybarra’s Crim.R. 11 plea hearing was
extensive, and that he understood the nature of the charges, the potential sentence, and
the effect of his plea. These factors weigh against allowing Ybarra to withdraw his plea.
{¶ 19} The extent of the hearing on the motion to withdraw and whether the trial
court gave full and fair consideration to the motion. The newly-appointed municipal
court judge conducted a full hearing at which both Ybarra and his counsel were permitted
to speak. The court had clearly reviewed all materials pertinent to Ybarra’s motion,
including video recordings of the arraignment and plea hearing, and it asked thoughtful
questions. It ultimately concluded that Ybarra’s only confusion was over whether it was
more beneficial for him to enter a plea of “guilty” or “no contest,” and observed that the
trial judge who accepted his plea explained this to him “ad nauseam” until Ybarra
understood. Having reviewed the same materials reviewed by the trial judge, we agree
with the court’s conclusion and we find that these factors weigh against allowing Ybarra
to withdraw his plea.
{¶ 20} The timing of the motion. The motion was filed one week after Ybarra
entered his plea and ten days before the date originally scheduled for the sentencing
hearing. The city concedes that the timing of his motion was reasonable. This factor
weighs in favor of allowing Ybarra to withdraw his plea.
{¶ 21} The reasons for the motion. Ybarra claimed in his motion that he did not
know what was going on at the time of entering his plea. He maintained that he was
confused as to the nature of the plea and “did not understand he was admitting guilt.”
10. Ybarra insisted that he was too embarrassed and nervous to ask too many questions of
defense counsel, so “he agreed at times with Counsel and the Court out of a desire to be
socially pleasing.” He indicated that after returning to the jail, speaking with other
inmates, reading in the library, and meeting with probation, it became clear to him “that
he made admissions.” Ybarra also summarily stated that “[he] is innocent and wishes to
have a trial,” without any further explanation.
{¶ 22} At the plea hearing, however, Ybarra demonstrated eagerness to resolve the
charges. Indeed, Ybarra never wavered in his desire to enter a plea that would resolve the
case; he merely questioned whether he should plead guilty or no contest. The court fully
explained the difference to Ybarra until he understood. And despite Ybarra’s contention
that it was not until later that it became clear to him “that he made admissions,” the court
specifically advised him that by his plea, he would not be admitting guilt, but rather
would be “accepting as true any statements contained in the charge or stated in court.”
We agree with the trial court that Ybarra exhibited a mere change of heart, or, in the
court’s words, “buyer’s remorse.” This factor weighs against allowing Ybarra to
withdraw his plea.
{¶ 23} Whether the accused was perhaps not guilty or had a complete defense to
the charge. As stated, at the plea hearing, Ybarra made clear that he entered the plea
because he wished to resolve the matter quickly. He did not profess his innocence, or
make any equivocal statements in that regard, on the record. This case is unlike State v.
Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 6, in which the defendant
11. repeatedly disputed the state’s version of events at the plea hearing and, when asked how
he wished to plead to the charge of felonious assault, attempted to explain that he was
“[j]ust trying to get away from him. Guilty, I guess.”
{¶ 24} Regardless, a court’s consideration of this factor is not limited to whether
the accused maintained his innocence but, rather, whether the “accused was perhaps not
guilty or had a complete defense to the charge.” Here, Ybarra never admitted assaulting
the victim. He ultimately maintained that she inflicted injury upon herself while under
the influence of drugs in order to blackmail him into staying with her and to convince
him to obtain more drugs for her. The issue of Ybarra’s guilt is entirely factual and, if
this matter went trial, would depend largely upon the jury’s determinations of witness
credibility. We therefore find that this factor weighs neither for nor against Ybarra.
{¶ 25} Considering the Griffin factors as a whole, we conclude that the trial court
did not abuse its discretion when it denied Ybarra’s motion to withdraw his plea. Ybarra
was represented by competent counsel, his Crim.R. 11 plea hearing and hearing on his
motion to withdraw his plea were extensive, he understood the nature of the charges and
potential sentence, and the trial court gave full and fair consideration to his motion. We
agree with the trial court that Ybarra exhibited a mere change of heart. We find that the
trial court did not abuse its discretion in denying his motion, and we find his first
assignment of error not well-taken.
12. B. Ybarra’s plea was entered knowingly, intelligently, voluntarily.
{¶ 26} In his second assignment of error, Ybarra argues that the trial court erred in
accepting his plea because it was not entered knowingly, intelligently, and voluntarily.
For the most part, his arguments mirror those made in support of his first assignment of
error. But he also adds that the trial court failed to advise him of his trial rights, including
the “right to jury or court trial, cross-exam, subpoena own witnesses, presumption of
innocence, right to remain silent, State burden of proof [sic].”
{¶ 27} Ybarra cites Crim.R. 11(C) as setting forth the advisements necessary to
render his plea knowing, intelligent, and voluntary. But Crim.R. 11(C) governs pleas of
guilty and no contest in felony cases. Ybarra entered a plea to a misdemeanor.1
{¶ 28} The advisements required for misdemeanors under Crim.R. 11 depend on
whether the misdemeanor is a “serious offense” or a “petty offense.” Crim.R. 2(C)
defines “serious offense” as “any felony, and any misdemeanor for which the penalty
prescribed by law includes confinement for more than six months.” A petty offense is
defined under Crim.R. 2(D) as “a misdemeanor other than [a] serious offense.” Because
Ybarra entered a plea to a first-degree misdemeanor, punishable by up to 180 days in jail,
the offense at issue is considered “petty” and Crim.R. 11(E) sets forth the necessary
advisements.
{¶ 29} Under Crim.R. 11(E), “the court may refuse to accept a plea of guilty or no
contest, and shall not accept such pleas without first informing the defendant of the effect
1 The city also incorrectly cites the rule applicable to felony cases.
13. of the plea of guilty, no contest, and not guilty.” Under the plain language of the rule, the
trial court was required “to do one thing before accepting a plea of guilty or no contest in
a petty offense case, ‘inform[ ] the defendant of the effect of the plea[.]’” See State v.
Higby, 9th Dist. Wayne No. 10CA0054, 2011-Ohio-4996, ¶ 4, quoting State v. Jones, 116
Ohio St.3d 211, 2007-Ohio-6093, paragraph one of the syllabus.
{¶ 30} Crim.R. 11(B)(2) explains the effect of a no-contest plea: “The plea of no
contest is not an admission of defendant’s guilt, but is an admission of the truth of the
facts alleged in the indictment, information, or complaint, and the plea or admission shall
not be used against the defendant in any subsequent civil or criminal proceeding.” See
Higby at ¶ 4, quoting Jones at paragraph two of the syllabus (“Criminal Rule 11(E)’s
‘effect of the plea’ language refers to Criminal Rule 11(B), which is titled ‘[e]ffect of
guilty or no contest pleas[.]’”).
{¶ 31} As fully explained in our discussion of Ybarra’s first assignment of error,
the trial court explained to Ybarra the effect of his plea. Ybarra expressed that he
understood the effect of his plea. We, therefore, conclude that the trial court made the
advisements necessary under Crim.R. 11(E) to render Ybarra’s plea knowing, intelligent,
and voluntary.
{¶ 32} We find Ybarra’s second assignment of error not well-taken.
III. Conclusion
{¶ 33} Our review of the nine Griffin factors leads us to conclude that the trial
court did not abuse its discretion when it denied Ybarra’s motion to withdraw his guilty
14. plea. We also conclude that the trial court properly explained the effect of his no contest
plea as required under Crim.R. 11(E) and ensured Ybarra’s understanding of the effects
of his plea, thus his plea was entered knowingly, intelligently, and voluntarily.
{¶ 34} Accordingly, we find Ybarra’s two assignments of error not well-taken.
We affirm the February 4, 2019 judgment of the Perrysburg Municipal Court. Ybarra is
ordered to pay the costs of this appeal under App.R. 24.
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.
Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, P.J. CONCUR. _______________________________ JUDGE
Gene A. Zmuda, J., DISSENTS.
ZMUDA, J., dissenting:
{¶ 35} Because I conclude that the trial court abused its discretion by denying
Ybarra’s presentence motion to withdraw his guilty plea without exploring his claim of
innocence at the change of plea hearing, I must respectfully dissent.
15. {¶ 36} In State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), the Supreme
Court of Ohio directed that a trial court “must conduct a hearing to determine whether
there is a reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph
one of the syllabus. In the motion to withdraw that Ybarra filed with the trial court, he
asserted that he wished to withdraw his guilty plea because he felt pressured to enter into
it despite being innocent. Importantly, Ybarra has consistently maintained his innocence
throughout the duration of these proceedings.
{¶ 37} Despite the claim of innocence articulated in Ybarra’s motion to withdraw,
defense counsel did not raise Ybarra’s innocence at the withdrawal hearing, and the trial
court did not question Ybarra on the innocence issue. Instead, the trial court focused
exclusively on the extent to which Ybarra understood the plea proceedings. Admittedly,
defense counsel indicated at the beginning of the withdrawal hearing that Ybarra did not
understand what he was doing at the time of the plea, so I find that the trial court
appropriately examined that issue. However, entitlement to withdraw a plea presentence
is not limited to situations in which the plea was the product of a defendant’s
misunderstanding. Such a motion may also be granted for other reasons, including a
defendant’s claim of innocence.
{¶ 38} Trial counsel did not articulate the innocence claim at the hearing, but that
claim was prominent within the written motion to withdraw. Moreover, Ybarra’s claim
of innocence is clearly articulated in the presentence investigation report, which was not
referenced by the trial court at the hearing. Thus, I find it problematic that the trial court
16. failed to also address Ybarra’s claim of innocence, which was the most persuasive basis
for Ybarra’s motion to withdraw.
{¶ 39} I find that the trial court’s failure to consider Ybarra’s claim of innocence is
especially troubling given the fact that Ybarra’s motion to withdraw was filed
presentence. As noted by the majority in its analysis, presentence motions to withdraw
are to be freely and liberally granted. Xie at 527. Under this liberal standard, trial courts
should be required to at least address a movant’s claim of innocence. Indeed, we have
previously stated that “[w]hen a defendant claims he is innocent and wishes to withdraw
his plea of guilt prior to sentencing, a comparison of the interests and potential prejudice
to the respective parties weigh heavily in the interests of the accused.” State v. Hartman,
6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 29. Failing to address a defendant’s
claim of innocence renders the withdrawal hearing mandated by Xie ineffective, because
the court has not satisfied its obligation to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea. Id. at ¶ 21; see also State v. Eversole, 6th
Dist. Erie Nos. E-05-073, 2006-Ohio-3988, ¶ 14 (“The scope of a hearing on an
appellant’s motion to withdraw his guilty plea should reflect the substantive merits of the
motion.”).
{¶ 40} Our decision in Hartman is compelling because the trial court in that case
actually “conducted an extensive hearing on the substantive merits of Hartman’s motion,
by hearing arguments from both sides, and personally questioning Hartman and
Hartman’s former counsel regarding the asserted basis for the motion to withdraw.”
17. Hartman at ¶ 21. Despite that hearing, this court correctly found that the trial court failed
to give full and fair consideration to the motion. Id. at ¶ 23.
{¶ 41} Here, the trial court’s hearing consisted of confirming that the Crim.R. 11
plea colloquy was proper. Indeed, the record reveals that the trial court failed to ask
Ybarra or his counsel why he was seeking to withdraw his plea. The trial court concluded
that Ybarra’s motion to withdraw was motivated by a change of heart, without first
addressing the reasons offered by Ybarra in support of his request to withdraw his plea.
In its analysis of the Griffin factors, the majority examines Ybarra’s claim of innocence,
ultimately concluding that it rests upon factual considerations that neither weigh for or
against Ybarra. While the majority’s conclusion may be reasonable, it does not
overcome the fact that the trial court failed to conduct the proper analysis. Without an
inquiry into Ybarra’s claim of innocence, I find that the trial court’s change of heart
conclusion was arbitrary and unreasonable. See Hartman at ¶ 28 (rejecting the notion
that a defendant merely had a change of heart where he maintained his innocence
throughout the proceedings). Consequently, I would hold that the trial court abused its
discretion in denying Ybarra’s motion and reverse.
{¶ 42} Because the majority holds otherwise, I must respectfully dissent.
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/.
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