Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court, Trial Court Case Nos.
2014-CR-3632, 2014-CR-1637, 2014-CR-1721
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Assistant
Prosecuting Attorney, Attorney for Plaintiff-Appellee
ALAN BRENNER, Atty. Attorney for Defendant-Appellant
1} Defendant-appellant, William T. Brown, appeals
from his convictions in Case No. 2014 CR 01637, Case No. 2014
CR 01721 and Case No. 2014 CR 03632, in each of which he
pleaded guilty to two or more charges in lieu of a trial.
Brown argues that the trial court erred by accepting his
pleas, and again by overruling his subsequent motions to
withdraw pursuant to Crim.R. 32.1, because he did not enter
the pleas intelligently, knowingly and voluntarily.
Additionally, Brown argues that the court erred by ordering
him to pay costs, and in Case No. 2014 CR 03632, to pay
restitution. We find that Brown's arguments lack merit,
and therefore, we affirm the trial court.
Facts and Procedural History
2} In Case No. 2014 CR 01637, a Montgomery County
grand jury issued an indictment against Brown on May 29,
2014, charging him with one count of aggravated robbery in
violation of R.C. 2911.01(A)(1), plus a firearm
specification; one count of theft in violation of R.C.
2913.02(A)(1), plus a firearm specification; and one count of
having a weapon while under disability in violation of R.C.
2923.13(A)(2). Brown pleaded guilty to the charges of
aggravated robbery and having a weapon while under
disability. Tr. of Plea Hr'g 4.
3} In Case No. 2014 CR 01721, a Montgomery County
grand jury issued an indictment against Brown on June 12,
2014, charging him with one count of aggravated robbery in
violation of R.C. 2911.01 (A)(1), plus a firearm
specification; and one count of having a weapon while under
disability in violation of R.C. 2923.13(A)(2). Brown pleaded
guilty as charged. Tr. of Plea Hr'g 4.
4} In Case No. 2014 CR 03632, a Montgomery County
grand jury issued an indictment against Brown on December 5,
2014, charging him with two counts of felony murder in
violation of R.C. 2903.02(B), plus firearm specifications;
one count of aggravated robbery in violation of R.C.
2911.01(A)(1), plus a firearm specification; one count of
felonious assault in violation of R.C. 2903.11(A)(2), plus a
firearm specification; one count of discharge of a firearm on
or near prohibited premises in violation of R.C.
2923.162(A)(3), plus a firearm specification; and one count
of having a weapon while under disability in violation of
R.C. 2923.13(A)(2). Brown pleaded guilty to one count of
felony murder, with the attached firearm specification, as
well as to the charges of aggravated robbery and having a
weapon while under disability. Tr. of Plea Hr'g at 3-4.
5} At his final pretrial hearing on October 9, 2015,
Brown and the State informed the court that they had reached
a plea agreement in the foregoing three cases. Id.
at 3-6. The court discussed the agreement with Brown as
required by Crim.R. 11(C)(2), and he formally entered his
pleas into the record. Id. at 6-21.
6} On October 21, 2015, Brown appeared for
sentencing. Before the hearing began, Brown notified his
counsel that he wanted to withdraw his pleas, at least in
part on the basis of certain alleged deficiencies in
counsel's performance. Id. at 23-24. Counsel
informed the court, but the court nevertheless proceeded to
sentence Brown because he had not yet filed a motion pursuant
to Crim.R. 32.1. See id at 24-26. The court
sentenced Brown to an aggregate term of 24 years to life, in
accord with his plea agreement. Id. at 6, 27 and 30. It
also ordered him to pay costs, and in Case No. 2014 CR 03632,
to pay restitution.
7} On October 23, 2015, Brown filed motions to
withdraw his pleas in all three cases, and his trial attorney
sought leave to withdraw as counsel. In a pair of decisions
entered on October 29, 2015, the court overruled Brown's
motions, allowed his trial attorney to withdraw, and
appointed substitute counsel. Brown then submitted a second
series of motions to withdraw his pleas on November 17, 2015.
The court held a hearing on December 7, 2015, and in a
decision filed two days later, it again overruled Brown's
motions to withdraw. In considering Brown's motions, the
court applied "the pre-sentencing withdrawal
standard" because it had been notified before sentencing
that he wanted to withdraw his pleas. Decision Overruling
Def.'s Mot. to Withdraw Guilty Plea 4, Dec. 22,
8} Assignment of Error Number One:
THE TRIAL COURT ERRED BY OVERRULING BROWN'S MOTION TO
WITHDRAW HIS GUILTY PLEAS.
9} In this assignment of error, Brown argues that he
"had two legitimate and reasonable bases on which to
withdraw his plea[s]." Appellant's Br. 7, Feb. 21,
2017. First, he faults his trial counsel for "not fully
shar[ing] the discovery [materials produced by the State]
with him, " and second, he maintains that he did not
understand a material term of his comprehensive plea
agreement-the aggregate term of imprisonment to which he
would be sentenced. Id. On the latter point, Brown
contends that he believed "that he could be sentenced to
a flat 20 year prison term even though his counsel, the
State, and the judge all believed [that he] would be
sentenced to a term of 24 years to life." Id.
In response, the State argues that Brown had no valid reason
for withdrawing his pleas, and that the trial court did not
abuse its discretion by overruling Brown's motions to
withdraw. See Appellee's Br. 13-17, May 9, 2017.
10} A "presentence motion to withdraw a guilty
plea should be freely and liberally granted, " although
"a defendant does not have an absolute right to withdraw
a plea prior to sentencing." State v. Xie, 62
Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Instead, after
conducting a hearing on the motion, the trial court must
"determine whether [the defendant] has a reasonable and
legitimate basis" for the withdrawal, rather than
"[a] mere change of heart." Id.; State v.
Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th
Dist.1988). Some of the factors that a trial court may weigh
in considering a presentence motion to withdraw a plea are
(1) whether the state will be prejudiced * * *, (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 [or charges].
(Citations omitted.) State v. Cuthbertson, 139 Ohio
App.3d 895, 898-899, 746 N.E.2d 197 (7th Dist.2000), citing
State v. Thomas, 7th Dist. Mahoning Nos. 96 CA 223,
96 CA 225 & 96 CA 226, 1998 WL 934645 (Dec. 17, 1998),
and State v. Fish,104 Ohio App.3d 236, 240, 661
N.E.2d 788 (1st Dist.1995); see also State v. Askew,
2d Dist. Montgomery No. 20110, 2005-Ohio-4026, ¶ 10-11,
quoting Cuthbertson, 139 Ohio App.3d at 898-899.
Absent "an abuse of discretion on the part of the trial
court, " its decision on a presentence motion to
withdraw "must be ...