[Cite as State v. Matthews,
2012-Ohio-1894.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-39
v.
ROBERT L. MATTHEWS, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-40
v.
ROBERT L. MATTHEWS, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-41
v.
ROBERT L. MATTHEWS, OPINION
DEFENDANT-APPELLANT.
Case No. 1-11-39, 1-11-40, 1-11-41
Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2005 0412, CR2006 0056 and CR2005 0330
Judgments Affirmed
Date of Decision: April 30, 2012
APPEARANCES:
Michael J. Short for Appellant
Juergen Waldick for Appellee
SHAW, P.J.
{¶1} Defendant-appellant, Robert L. Matthews (“Matthews”), appeals the
January 31, 2011 judgment of the Allen County Court of Common Pleas
overruling his pre-sentence motion to withdraw his guilty pleas.
{¶2} This consolidated appeal arises from three separate cases, which were
handled together at the trial court level.
{¶3} On September 15, 2005, in case number CR2005 0412, Matthews was
indicted on the following charges, which were alleged to have occurred on various
dates in May and June of 2005. Count One of the indictment alleged that
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Matthews did knowingly sell or offer to sell crack cocaine, a Schedule II
controlled substance, in violation of R.C. 2925.03(A),(C)(4)(a), a felony of the
fifth degree. Count Two of the indictment alleged that Matthews did knowingly
sell or offer to sell crack cocaine, a Schedule II controlled substance, in violation
of R.C. 2925.03(A),(C)(4)(a), a felony of the fifth degree. Count Three of the
indictment alleged that Matthews did knowingly sell or offer to sell crack cocaine,
a Scheduled II controlled substance, in violation of R.C. 2925.03(A),(C)(4)(a), a
felony of the fifth degree. Count Four of the indictment alleged that Matthews did
knowingly sell or offer to sell marijuana, a Schedule I controlled substance, in
violation of R.C. 2925.03(A),(C)(3)(a), a felony of the fifth degree. Count Five of
the indictment alleged that Matthews did knowingly sell or offer to sell crack
cocaine, a Schedule II controlled substance, in violation of R.C.
2925.03(A),(C)(4)(e), a felony of the second degree.
{¶4} The charges stemmed from a series of controlled purchase operations
conducted by the Lima Police Department’s P.A.C.E. unit involving Matthews and
a confidential informant, during which Matthews on three occasions sold crack
cocaine to the confidential informant ranging in amounts from 0.23 grams to 0.28
grams, one occasion during which Matthews sold 115.7 grams of marijuana to the
confidential informant, and one occasion during which Matthews sold 11.5 grams
of crack cocaine to the confidential informant.
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{¶5} On September 15, 2005, in case number CR2005 0330, Matthews was
indicted on the following charges, which were alleged to have occurred on July 5,
2005. Count One of the indictment alleged that Matthews did knowingly sell or
offer to sell cocaine, a Schedule II controlled substance, in violation of R.C.
2925.03(A),(C)(4)(c), a felony of the fourth degree. Count Two of the indictment
alleged that Matthews did knowingly possess crack cocaine, a Schedule II
controlled substance, in violation of R.C. 2925.11(A),(C)(4)(e), a felony of the
first degree. Count Three of the indictment alleged that Matthews did knowingly
possess cocaine, a Scheduled II controlled substance, in violation of R.C.
2925.11(A),(C)(4)(b), a felony of the fourth degree.
{¶6} The charges stemmed from a controlled purchase operation conducted
by the West Central Ohio Crime Task Force involving Matthews and a
confidential informant, during which Matthews sold the confidential informant
4.78 grams of cocaine for $800.00. Shortly after the controlled purchase
operation, the West Central Ohio Crime Task Force executed a search warrant at
Matthews’ residence finding 5.75 grams of cocaine and 48.76 grams of crack
cocaine in the kitchen.
{¶7} On March 16, 2006, in case number CR2006 0056, Matthews was
indicted on the following charges, which were alleged to have occurred on
February 3, 2006. Count One of the indictment alleged that Matthews did
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knowingly sell or offer to sell crack cocaine, a Schedule II controlled substance,
with said transaction taking place in the vicinity of a school, in violation of R.C.
2925.03(A),(C)(4)(b), a felony of the fourth degree. Count Two of the indictment
alleged that Matthews knowingly permitted his vehicle to be used for the
commission of a felony drug abuse offense, that drug abuse offense being
corrupting another with drugs or trafficking, in violation of R.C.
2925.13(A),(C)(3), a felony of the fifth degree. Count Three of the indictment
alleged that Matthews did knowingly possess crack cocaine, a Schedule II
controlled substance, in violation of R.C. 2925.11(A),(C)(4)(a), a felony of the
fifth degree.
{¶8} The charges stemmed from another controlled purchase operation
conducted by the West Central Ohio Crime Task Force, during which Matthews
sold 0.75 grams of crack cocaine to a confidential informant, with the transaction
taking place approximately 710 feet from the location of Liberty Elementary
School in Lima, Ohio. At the time of the transaction, Matthews was driving his
1988 Ford Bronco. After the operation was complete, law enforcement pursued
Matthews in his vehicle. Matthews continued to drive his vehicle and threw a
plastic baggie from the driver’s side window. The baggie was recovered by law
enforcement and crack cocaine was found inside. Once Matthews’ vehicle was
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stopped and searched by law enforcement, another rock of crack cocaine weighing
0.17 grams was found on the driver’s side floor.
{¶9} Matthews subsequently pled not guilty to all the charges listed in each
of the three indictments. The cases proceeded to the discovery and pre-trial
phases, and were scheduled to be tried together.
{¶10} On July 7, 2006, the trial court ordered the revocation of Matthews’
bond and electronic surveillance, and issued a bench warrant for Matthews’ arrest.
The trial court’s order was based upon information it received that Matthews had
violated the conditions of his electronic surveillance by absconding.
{¶11} Matthews did not again appear in court in the three cases until
October 25, 2010, when he waived his right to a speedy trial. On November 18,
2010, Matthews appeared for a pre-trial hearing where he entered negotiated pleas
of guilty to all the charges listed in each of the three indictments in exchange for a
stipulated ten-year prison sentence.
{¶12} On December 3, 2010, Matthews filed a pre-sentence motion to
withdraw the guilty pleas he previously entered in each of the three cases.
Matthews fired his attorney after the pre-sentence motion to withdraw his guilty
pleas was filed.
{¶13} On December 23, 2010, Matthews’ new counsel filed a notice of
appearance.
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{¶14} On January 5, 2011, the trial court issued a judgment entry in all
three cases ordering Matthews to be released from the custody of the Allen County
Jail in order to be placed on a medical furlough due to some medical concerns
which required hospitalization.
{¶15} On January 27, 2011, Matthews and his new counsel appeared for a
hearing on Matthews’ pre-sentence motion to withdraw his guilty pleas. At the
hearing, Matthews and his sister testified in support of Matthews’ motion.
{¶16} On January 31, 2011, the trial court overruled Matthews’ pre-
sentence motion to withdraw his guilty pleas. The trial court scheduled sentencing
to take place on February 18, 2011.
{¶17} On March 7, 2011, the trial court ordered a bench warrant be issued
for Matthews’ arrest. The trial court specified that Matthews had violated the
terms of his bond by failing to appear for sentencing.
{¶18} On July 19, 2011, Matthews appeared for sentencing and the trial
court imposed the following aggregate ten-year prison sentence.
{¶19} In case number CR2005 0412, the trial court ordered Matthews to
serve one year in prison on Count One, a fifth degree felony trafficking in crack
cocaine offense; one year in prison on Count Two, a fifth degree felony trafficking
in crack cocaine offense; one year in prison on Count Three, a fifth degree felony
trafficking in crack cocaine offense; one year in prison on Count Four, a fifth
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degree trafficking in marijuana offense; and five years in prison on Count Five, a
second degree trafficking in crack cocaine offense. The trial court noted that the
prison term imposed on Count Five is a mandatory term, whereas the prison terms
imposed on Counts One thru Four are not mandatory. The trial court ordered the
prison terms in CR2005 0412 be served concurrent to one another, for a total five-
year prison term, but consecutive to the prison terms in case number CR2005
0330.
{¶20} In case number CR2005 0330, the trial court ordered Matthews to
serve one year in prison on Count One, a fourth degree felony trafficking in
cocaine offense; five years in prison on Count Two, a first degree felony
possession of crack cocaine offense; and one year in prison on Count Three, a
fourth degree felony possession of cocaine offense. The trial court noted that the
prison term imposed on Count Two is a mandatory prison term, whereas the prison
terms imposed on Counts One and Three are not mandatory. The trial court
ordered that the prison terms imposed for CR2005 0330 be served concurrent to
one another, for a total five-year prison term, but consecutive to the prison terms
imposed for CR2005 0412.
{¶21} Finally, in case number CR2006 0056, the trial court ordered
Matthews to serve a one year prison term on Count One, a fourth degree felony
trafficking in crack cocaine offense; a one year prison term on Count Two, a fifth
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degree felony permitting drug abuse offense; and a one year prison term on Count
Three, a fifth degree felony possession of crack cocaine offense. The trial court
noted that all of the prison terms imposed on Counts One thru Three are non-
mandatory terms. The trial court ordered the prison terms in CR2006 0056 to be
served concurrent to one another and to also run concurrent to the prison terms
imposed in CR2005 0412 and in CR2005 0330.
{¶22} Matthews subsequently filed this appeal, asserting the following
assignment of error.
THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S PRE-SENTENCE MOTION TO WITHDRAW
HIS GUILTY PLEA WITHOUT A HEARING.
{¶23} In his sole assignment of error, Matthews contends that the trial court
erred in overruling his pre-sentence motion to withdraw his guilty pleas. We also
note that Matthews erroneously states in his assignment of error that he was not
granted a hearing on his motion to withdraw his guilty pleas.
{¶24} On January 27, 2011, Matthews appeared in court for the hearing on
his motion to withdraw his guilty pleas. At this hearing, Matthews was
represented by different counsel than the one who represented him at the change
of plea hearing. As previously mentioned, Matthews and his sister testified at this
hearing in support of Matthews’ motion.
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{¶25} Matthews testified that, prior to the change of plea hearing, his
previous attorney told Matthews that he did not like the plea bargain, but advised
Matthews to plead guilty to the charges in the indictment in exchange for the
stipulated ten-year sentence. Matthews claimed that his then-attorney told him
that after Matthews entered his guilty pleas, he would “litigate” to get Matthews a
three to five year sentence, and that Matthews would then also be eligible for
judicial release. At the hearing on his motion to withdraw his guilty pleas,
Matthews maintained that he did not commit the majority of the offenses listed in
the indictments. Matthews testified that he only pled guilty to the charges because
his attorney at the time assured him that he would only have to serve three to five
years of the ten-year sentence.
{¶26} Matthews explained that he did not feel right after the change of plea
hearing and called his attorney that day to file a motion to withdraw his guilty
pleas. Matthews also claimed that his attorney had stopped “fighting” for his case
and told him that there was little chance of winning his case because Matthews
was facing so many charges.
{¶27} On cross-examination, Matthews recalled the Crim.R. 11 colloquy
conducted by the trial court. Matthews remembered acknowledging on the record
that he understood that by pleading guilty he was admitting to committing the
offenses alleged in the indictments. Matthews also recalled the trial court
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engaging in a lengthy dialogue with him about the stipulated ten-year sentence—
specifically, that some of the charges in the indictments carried a mandatory
prison term, which would mean that Matthews would have to serve those entire
terms before he was eligible for judicial release. Matthews further admitted that
he told the trial court on the record that no one had made him any promises in
exchange for him pleading guilty to the charges. However, Matthews contended
that he hesitated prior to giving his answer, but that his attorney tapped his knee
underneath the table, prompting him to affirm that no one had made him any
promises in exchange for his guilty pleas.
{¶28} Matthews’ sister testified that she spoke to Matthews’ attorney at the
courthouse prior to the change of plea hearing. She testified that Matthews’
attorney told her that Matthews would only have to serve three to five years of the
ten-year sentence. However, she admitted that she was not present during any of
Matthews’ conversations with his attorney regarding the decision to agree to the
plea bargain.
{¶29} Rule 32.1 of the Ohio Rules of Criminal Procedure provides that “[a]
motion to withdraw a plea of guilty … 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.”
Generally, a motion to withdraw a guilty plea that is filed prior to sentencing will
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be freely allowed. State v. Drake, 73 Ohio App.3d 640, (1991); State v. Thomas,
3d Dist. No. 1–08–36, 2008–Ohio–6067, ¶ 6.
{¶30} However, this does not mean that a motion to withdraw a guilty plea
will be granted automatically. Drake, at 645. “A defendant does not have an
absolute right to withdraw a guilty plea prior to sentencing. A trial court must
conduct a hearing to determine whether there is a reasonable and legitimate basis
for the withdrawal of the plea.” State v. Xie, 62 Ohio St.3d 521, at paragraph one
of the syllabus (1992). It is within the sound discretion of the trial court to
determine whether there is a legitimate and reasonable basis for the withdrawal of
a guilty plea and, absent an abuse of discretion, the trial court’s decision on the
matter must be affirmed.
Id. at 527. An abuse of discretion is more than an error
of judgment; it implies that the decision was “unreasonable, arbitrary, or
unconscionable.” State v. Adams,
62 Ohio St.2d 151, 157 (1980).
{¶31} Ohio Appellate Courts consider several factors when reviewing a
trial court’s decision to grant or deny a defendant’s pre-sentence motion to
withdraw a plea, including: (1) whether the withdrawal will prejudice the
prosecution; (2) the representation afforded to the defendant by counsel; (3) the
extent of the hearing held pursuant to Crim.R. 11; (4) the extent of the hearing on
the motion to withdraw the plea; (5) whether the trial court gave full and fair
consideration of the motion; (6) whether the timing of the motion was reasonable;
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(7) the stated 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 charges. State v. Lane, 3d
Dist. No. 1–10–10, 2010–Ohio–4819, ¶ 21, citing State v. Griffin, 141 Ohio
App.3d 551, 554 (2001).
{¶32} In the instant case, the trial court addressed each of these factors in
its decision to overrule Matthews’ motion to withdraw his guilty pleas. The trial
court noted that at the change of plea hearing, Matthews stated on the record that
he understood the nature of the charges against him, that he did not have to plead
guilty, and that if he pled guilty he was admitting to all the charges. Matthews’
affirmation on record that he understood each of these things is supported by the
transcript from the change of plea hearing. The trial court also asked Matthews
several times if he understood that he was stipulating to a ten-year sentence.
Matthews was very clear on the record that he understood he was agreeing to a
ten-year sentence. Moreover, the trial court noted that Matthews indicated on the
record that he had plenty of time to consider the plea bargain with his attorney and
that no promises were made to him in exchange for his guilty pleas.
Trial Court: Okay. Had plenty of time to talk to the attorney
about all these cases?
Matthews: Yes, sir.
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Trial Court: Have any promises been made by anybody that we
haven’t put on the record yet to get you to plead?
Matthews: No, sir.
Trial Court: Have any threats been made upon you to force you
to plead against your will?
Matthews: No, sir.
Trial Court: You feel like you’re being coerced into this? Your
arm being twisted and that you don’t have a choice?
Matthews: No, sir.
Trial Court: And you understand you do have a choice, you can
go to trial. Understood?
Matthews: Yes, sir.
Trial Court: Okay. You feel like you’re being tricked
somehow?
Matthews: No, sir.
(Nov. 18, 2010 Hrg. at 28-29).
{¶33} It is also evident from the transcript of the change of plea hearing
that the trial court took extreme care in explaining to Matthews the potential
sentences he faced if he pled guilty to the charges in the indictments. This was
primarily due to the fact that Matthews was entering guilty pleas in three different
cases, with three different indictments, each listing offenses that carried both
mandatory and non-mandatory prison terms. The trial court explained to
Matthews that at the very least Matthews would have to serve a three-year
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mandatory term with the remaining seven years being a non-mandatory term.
However, the trial court also explained the possibility of Matthews being
sentenced to two, five-year mandatory prison terms, which meant that Matthews
would have to serve all ten years with no possibility for judicial release.
{¶34} The trial court also repeatedly tried to impress upon Matthews that
even though he was pleading guilty in exchange for a stipulated ten-year sentence,
the trial court was not a party to that agreement and could still give Matthews
more than a ten-year sentence. The following is an excerpt from the change of
plea hearing.
Trial Court: What I’m basically telling you, is I’m the judge
and I have to make the decision, and I’m not bound by the
stipulation. The prosecutor’s bound by it; she can’t ask for
more. And by your agreement you’re bound by it; you’re telling
the prosecutor, “I’m not gonna seek less than ten years. I’m
agreeing to ten years.” That’s what the stipulation is, that you
are—I’m speaking for you, but it’s ultimately my decision.
Matthews: Right, I understand.
(Nov. 18, 2010 Hrg. at 8) (emphasis added).
{¶35} The trial court also noted the prejudice to the prosecution if
Matthews’ motion were to be granted. The charges in the indictment occurred in
2005 and in the early part of 2006. Matthews absconded in July 2006 and was not
arrested until October 2010. Thus, over four years had transpired with no progress
in Matthews’ cases. Moreover, in the interim, one of the four confidential
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informants used in the controlled purchase operations involving Matthews had
died. Notably, Matthews was made aware of this fact at the change of plea
hearing in November of 2010 when he decided to enter his guilty pleas. In
addition, the trial court noted that, despite his contentions, the record supported
that Matthews was competently represented by his counsel at the change of plea
hearing. Prior to agreeing to the plea bargain, Matthews faced a possible twenty-
eight and a half years in prison if he was convicted of all the charges pending
against him. The trial court highlighted the fact that Matthews’ attorney was able
to negotiate a ten-year stipulated sentence with the prosecution, giving Matthews
an obvious benefit of the bargain. The trial court concluded that each of these
things weighed heavily against granting Matthews’ motion to withdraw his guilty
pleas.
{¶36} The trial court also gave Matthews ample opportunity to present
evidence in support of his motion to withdraw his guilty pleas. Nevertheless,
Matthews chose to only offer his own self-serving testimony and the testimony of
his sister, who admitted to not being present when Matthews had conversations
about the plea bargain with his attorney. Thus, none of the testimony presented at
the hearing corroborated Matthews’ claims that his attorney’s private
representations regarding a three to five year sentence induced him into entering
his guilty pleas in these cases. Moreover, the trial court was entitled to weigh the
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credibility of Matthews’ testimony and was free to disbelieve all or none
Matthews’ contentions.
{¶37} In sum, the record in this case demonstrates that the trial court
carefully considered all the applicable factors and the competing interests
implicated in allowing Matthews to withdraw his guilty pleas. The record also
supports the trial court’s findings with regard to those factors and its ultimate
conclusion that Matthews failed to demonstrate a legitimate and reasonable basis
for withdrawal of his guilty pleas. Accordingly, we find no abuse of the trial
court’s discretion in its decision to deny Matthews’ motion to withdraw his guilty
pleas.
{¶38} For all these reasons, Matthews’ assignment of error is overruled and
the judgments are affirmed.
Judgments Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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