State v. Zachary

2024 Ohio 422

• Court: Ohio Court of Appeals
• Decided: February 7, 2024
• Docket: C-230435
• Status: Published

Opinion

[Cite as State v. Zachary, 2024-Ohio-422.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230435 TRIAL NO. B-2205240 Plaintiff-Appellee, :

: VS. O P I N I O N. :

WILLIAM ZACHARY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 7, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan R. Perkins, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} A prior juvenile offense and a traffic stop led to a four-count indictment

on firearm and drug charges. Defendant-appellant William Zachary pleaded guilty to

having weapons while under disability in exchange for the dismissal of the other three

counts. But he subsequently moved to withdraw his guilty plea, which the trial court

denied. He now appeals, maintaining that the trial court abused its discretion when it

denied his motion to withdraw his guilty plea because changes in Second Amendment

jurisprudence provided him with a complete defense. Because he was afforded the

proper procedural protections, and the law and facts giving rise to his alleged defense

existed at the time he pleaded guilty, we reject his argument and affirm the trial court’s

judgment.

I.

{¶2} In 2014, Mr. Zachary was adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been aggravated

robbery. Because of this offense, he was under a disability. In 2022, Cincinnati police

officers stopped Mr. Zachary as part of a traffic stop. During the encounter, he

disclosed to an officer that he had a firearm. The firearm was on his body (and

accessible to him from the driver’s seat). But he had not yet been relieved of the 2014

disability.

{¶3} He was indicted on four counts: having weapons while under disability,

in violation of R.C. 2923.13(A)(2), carrying concealed weapons, in violation of R.C.

2923.12(A)(2), improper handling of firearms in a motor vehicle, in violation of R.C.

2923.16(B), and aggravated possession of drugs, in violation of R.C. 2925.11(A). He

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pleaded guilty to having weapons while under disability in exchange for the dismissal

of the three remaining counts.

{¶4} Prior to sentencing, Mr. Zachary filed a motion to withdraw his guilty

plea, insisting that changes in Second Amendment jurisprudence provided him with a

complete defense. After a full hearing, the trial court denied his request and

subsequently sentenced him to two years of community control, imposed a fine of

$100, and ordered him to complete a cognitive thinking class and to perform 100

hours of community service. He now appeals.

II.

{¶5} In Mr. Zachary’s sole assignment of error, he maintains that the trial

court abused its discretion by denying his presentence motion to withdraw his guilty

plea. “[A] presentence motion to withdraw a guilty plea should be freely and liberally

granted,” but the right to withdraw a guilty plea is not absolute. State v. Xie, 62 Ohio

St.3d 521, 527, 584 N.E.2d 715 (1992); see State v. Howell, 1st Dist. Hamilton No. C-

200360, 2021-Ohio-2957, ¶ 9. Ohio appellate courts review a denial of a motion to

withdraw a guilty plea for an abuse of discretion. Howell at ¶ 9, citing State v.

Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 16. An abuse of

discretion occurs when “a court exercis[es] its judgment, in an unwarranted way, in

regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,

166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶6} This court considers the factors set forth in State v. Fish, 104 Ohio

App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995), overruled on other grounds, State

v. Sims, 2017-Ohio-8379, 99 N.E.3d 1056 (1st Dist.), when reviewing a trial court’s

denial of a motion to withdraw a guilty plea. The factors include:

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(1) whether the defendant was represented by highly competent

counsel; (2) whether the defendant was afforded a complete Crim.R. 11

hearing before entering the plea; (3) whether the trial court conducted

a full and impartial hearing on the motion to withdraw the plea; (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 set out specific reasons for the withdrawal; (7) whether the

defendant understood the nature of charges and the possible penalties;

(8) whether the defendant was possibly not guilty of the changes or had

a complete defense to the charges; and (9) whether the state would have

been prejudiced by the withdrawal of the plea.

State v. McCoy, 1st Dist. Hamilton Nos. C-220279 and C-220281, 2023-Ohio-361, ¶

11, quoting Howell at ¶ 10.

{¶7} The Fish factors are non-exhaustive—trial and appellate courts may

consider other factors as dictated by the circumstances of the particular case. Fish at

240. And no single factor controls the inquiry; “the trial court employs a balancing

test.” State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, citing State

v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, ¶ 20.

{¶8} Mr. Zachary concedes that he was represented by highly competent

counsel, that he received a proper Crim.R. 11 hearing before entering his plea, and that

he was given a hearing on his motion to withdraw his guilty plea. He contends,

however, that the remaining factors weigh heavily in favor of permitting him to

withdraw his guilty plea.

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{¶9} But he fails to adequately contest that the trial court gave full and fair

consideration to the motion or that he understood the nature of the charges and the

possible penalties. While he does not concede these factors, he does not discuss them

in his brief. And, as evidenced by the record, he acknowledged his understanding of

the charges against him and the possible penalties at the time of his guilty plea.

Further, the trial court analyzed each of the Fish factors when denying the motion,

demonstrating a full and fair consideration. Therefore, both factors weigh in favor of

the denying his motion to withdraw.

{¶10} The state, on the other hand, acknowledges that the timeliness and

prejudice factors may be resolved in favor of Mr. Zachary. The trial court found the

motion to be timely and the state would have suffered little, if any, prejudice had the

trial court granted the motion to withdraw the guilty plea.

{¶11} Thus, the two disputed factors—reasons for withdrawal and lack of guilt

or complete defense—are the focus of the appeal (and of our analysis). Because Mr.

Zachary’s sole reason for withdrawal is his alleged complete defense, we address these

factors together. He maintains that recent changes in Second Amendment

jurisprudence provide him with a complete defense that gives rise to his innocence,

specifically citing a United States Supreme Court case (issued before he entered his

guilty plea), New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111,

213 L.Ed.2d 387 (2022), and a trial court decision (issued after he entered his guilty

plea), State v. Moore, Hamilton C.P. No. B-2202520 (June 30, 2023). Seizing on this

pair of cases, he maintains that a firearms disability conviction predicated on a

juvenile adjudication can no longer pass constitutional muster.

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{¶12} This argument runs headlong into a threshold problem: the Ohio

Supreme Court, prior to Bruen, determined that a juvenile adjudication for a felony

offense of violence may serve as the basis for a firearms disability. See, e.g., State v.

Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 21.

{¶13} But Mr. Zachary assures us that we can safely ignore Carnes now,

pointing to Moore and Bruen. In Moore, the trial court, applying the Bruen standard,

dismissed an indictment for having weapons while under disability when the disability

was predicated upon a pending pre-conviction indictment. See R.C. 2923.13(A)(2).

However, as emphasized by the trial court in the case before us, Moore is not

controlling and is factually distinguishable—unlike the defendant in Moore, Mr.

Zachary had been adjudicated of an offense, not merely indicted. And Moore did not

involve any interplay with the juvenile system.

{¶14} Because Moore does not provide a basis for his defense, he must

necessarily retreat to Bruen. The United States Supreme Court’s decision shifted the

burden in firearm regulation challenges to the government to demonstrate that the

regulation at issue is “consistent with the Nation’s historical tradition of firearm

regulation.” Bruen, 597 U.S. at 24, 142 S.Ct. 2111, 213 L.Ed.2d 387. Mr. Zachary,

wielding the Bruen rationale, posits that the statutory disability imposed because of

his juvenile adjudication is incompatible with the rationale of the juvenile justice

system. Further, he emphasizes the alleged lack of a long-standing national tradition

that precludes adults who were adjudicated delinquent as juveniles from exercising

their Second Amendment rights.

{¶15} We need not ponder the intricacies of this Second Amendment claim,

however, to decide this appeal. Bruen was decided nearly a year before Mr. Zachary

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entered his guilty plea, and, although he had ample opportunity, he never filed a

motion to dismiss the indictment against him based on a Second Amendment defense

or otherwise raised the defense in any fashion. And “[w]here 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. Sain, 2d Dist. Montgomery No. 28720, 2020-Ohio-5542,

¶ 37, quoting Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, at ¶ 36.

{¶16} Mr. Zachary does not explain why he failed to raise this defense prior to

entering his guilty plea. And generally, “ ‘[a] change of heart or mistaken belief about

pleading guilty is not a reasonable basis for withdrawal of a guilty plea.’ ” State v.

Reed, 3d Dist. Seneca No. 13-22-02, 2022-Ohio-2538, ¶ 19, quoting State v. Jones, 7th

Dist. Mahoning No. 09 MA 50, 2011-Ohio-2903, ¶ 20.

{¶17} The trial court fully considered the Fish factors, finding nearly all of the

factors weighed in favor of denying the plea withdrawal, and reasonably concluded, on

these facts, that Mr. Zachary did not have a sufficient reason to withdraw his plea. We

accordingly find the trial court’s decision was not an abuse of discretion and overrule

the sole assignment of error.

* * *

{¶18} In light of the foregoing analysis, we overrule Mr. Zachary’s sole

assignment of error and affirm the judgment of the trial court.

Judgment affirmed. BOCK, P.J., and WINKLER, J., concur.

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Please note:

The court has recorded its entry on the date of the release of this opinion.