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State of Ohio v. Tomma M. Ellis

October 7, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TOMMA M. ELLIS DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 10-CR-0070

The opinion of the court was delivered by: Farmer, J.

JUDGES: Hon. Sheila G. Farmer, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed

{¶1} On October 1, 2010, the Perry County Grand Jury indicted appellant, Tomma Ellis, on three counts of aggravated trafficking in drugs with forfeiture specifications in violation of R.C. 2925.03(A)(1)(a) and (b). On February 16, 2011, appellant pled guilty as charged. The trial court accepted the pleas and ordered a presentence investigation.

{¶2} On March 24, 2011, appellant filed a motion to withdraw her guilty pleas. A hearing was held on March 29, 2011. By judgment entry filed April 11, 2011, the trial court denied the motion.

{¶3} A sentencing hearing was held on April 21, 2011. By termination judgment entry filed April 27, 2011, the trial court sentenced appellant to eighteen months in prison.

{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

{¶5} "THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION IN DENYING TOMMA ELLIS' PRE-SENTENCE MOTION TO VACATE HER PLEA THEREBY DEPRIVING HER OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION."

I

{¶6} Appellant claims the trial court erred in denying her motion to withdraw her guilty pleas pursuant to Crim.R. 32.1. We disagree.

{¶7} Crim.R. 32.1 governs withdrawal of guilty plea and states "[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 right to withdraw a plea is not absolute and a trial court's decision on the issue is governed by the abuse of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. In order to find an abuse of 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 (1983), 5 Ohio St.3d 217.

{ΒΆ8} "It is well established that, even though a defendant does not have an absolute right to withdraw a plea prior to sentencing, a presentence motion to withdraw a guilty plea should be 'freely and liberally granted.'***Although such a motion is to be treated liberally, the trial court's decision is still ultimately one of discretion. In determining whether the trial court has properly exercised its discretion, this court is aided by the following factors: (1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the withdrawal motion, and (4) whether the trial court gave full and fair consideration to the motion.***In addition to these factors, there are other considerations, including (1) whether the motion was made within a reasonable time; (2) whether the motion set out specific reasons for the withdrawal; (3) whether ...


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