[Cite as State v. Baker,
2016-Ohio-8026.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27937
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JUSTIN D. BAKER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014-05-1242A
DECISION AND JOURNAL ENTRY
Dated: December 7, 2016
HENSAL, Judge.
{¶1} Defendant-Appellant, Justin Baker, appeals from the judgment of the Summit
County Court of Common Pleas, denying his presentence motion to withdraw his plea. This
Court affirms.
I.
{¶2} A grand jury indicted Mr. Baker on (1) one count of the illegal manufacturing of
methamphetamine within the vicinity of a school; (2) one count of the illegal assembly or
possession of chemicals to manufacture methamphetamine; (3) two counts of aggravated
possession; (4) two counts of the illegal use or possession of drug paraphernalia; and (5) one
count of driving under financial suspension or cancellation. Mr. Baker initially pleaded not
guilty to all seven charges, and the matter was set for trial. Several days before the scheduled
trial date, Mr. Baker pleaded guilty to reduced charges. Specifically, he agreed to plead guilty to
one count of the illegal manufacturing of methamphetamine and two counts of aggravated
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possession. In exchange for his plea, the State amended the illegal manufacturing count to
exclude that it occurred within the vicinity of a school and dismissed the remaining counts.
{¶3} After the trial court accepted Mr. Baker’s plea, Mr. Baker retained new counsel.
The day before his scheduled sentencing hearing, he filed a motion to withdraw his plea. At Mr.
Baker’s request, the court held a hearing on his motion. Following a full evidentiary hearing,
Mr. Baker filed a supplement to his motion, and the State filed a brief in opposition to Mr.
Baker’s motion. The trial court then denied Mr. Baker’s motion and proceeded to sentencing.
The court sentenced Mr. Baker to serve a total of three years in prison.
{¶4} Mr. Baker now appeals from the court’s denial of his motion to withdraw his plea
and raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEAS.
{¶5} In his assignment of error, Mr. Baker argues that the trial court erred when it
denied his presentence motion to withdraw his plea. He argues that he was entitled to relief
because he showed that his plea was coerced and that the attorney who originally represented
him acted incompetently. We disagree.
{¶6} Criminal Rule 32.1 allows a defendant to seek the withdrawal of his or her plea
either before or after sentence is imposed. If the motion is made before sentencing, it “should be
freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527 (1992). Even so, “[a]
defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.”
Id. at
paragraph one of the syllabus. The trial court must hold a hearing on the defendant’s motion and
“determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.”
Id.
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“A motion made pursuant to [Criminal Rule] 32.1 is addressed to the sound discretion of the trial
court, and the good faith, credibility and weight of the movant’s assertions in support of the
motion are matters to be resolved by that court.” State v. Smith, 49 Ohio St.2d 261 (1977),
paragraph two of the syllabus.
{¶7} This Court will review a trial court’s ruling on a presentence motion to withdraw
under an abuse of discretion standard of review. See State v. Lopez, 9th Dist. Lorain No.
10CA009771, 2014-Ohio-5089, ¶ 7. We have recognized that,
where the trial court considers “the facts and circumstances of [the] case[,]” it
typically does not abuse its discretion in denying a motion to withdraw a guilty
plea when the following elements are present:
“(1) the defendant is represented by competent counsel; (2) the trial court
provides the defendant with a full hearing before entering the guilty plea; and (3)
the trial court provides the defendant with a full hearing on the motion to
withdraw the guilty plea, where the court considers the defendant’s arguments in
support of his motion to withdraw the guilty plea.”
(Alterations sic.) State v. Jeffery, 9th Dist. Summit No. 26639, 2013-Ohio-2985, ¶ 7, quoting
State v. Robertson, 9th Dist. Medina No. 10CA0030-M,
2011-Ohio-4300, ¶ 6. This Court also
has “recognized several additional factors which may be relevant to the inquiry of whether the
trial court properly ruled on a motion to withdraw a guilty plea.” State v. Stopar, 9th Dist.
Summit No. 25828,
2012-Ohio-2177, ¶ 11 citing State v. Wheeland, 9th Dist. Medina No.
06CA0034-M,
2007-Ohio-1213, ¶ 12. Those factors are
1) whether the state will be prejudiced by withdrawal; 2) the representation
afforded to the defendant by counsel; 3) the extent of the [Criminal Rule] 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.
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(Internal quotations and citations omitted.) Wheeland at ¶ 12. The defendant bears the burden of
demonstrating that he has a “reasonable and legitimate basis for withdrawing [his or her] plea.”
(Internal quotations and citation omitted.) State v. Jones, 9th Dist. Wayne No. 12CA0024, 2012-
Ohio-6150, ¶ 37.
{¶8} Mr. Baker does not dispute that he received a full hearing before entering his
guilty plea. See Robertson at ¶ 6. Indeed, because the record does not contain a transcript of his
plea hearing, we must presume regularity with regard to that proceeding. See Cuyahoga Falls v.
Doskocil, 9th Dist. Summit No. 26553, 2013-Ohio-2074, ¶ 16. He also does not dispute that the
court held a full evidentiary hearing on his motion to withdraw his plea. See Robertson at ¶ 6.
Mr. Baker was present at that hearing with counsel, and the court listened to his testimony, as
well as the testimony of his former counsel and a police officer who testified for the State.
{¶9} The crux of Mr. Baker’s argument is that he entered his plea without the benefit
of competent counsel. See id. According to Mr. Baker, his former counsel failed to keep him
apprised of the evidence or the possibility that his co-defendant might testify against him. He
avers that his former counsel waited until the eve of trial to arrange a meeting with the State and
inform him that, absent a plea, he would likely be convicted and sentenced to a significant prison
term. He argues that he felt compelled to accept the State’s plea offer once his former counsel
“gave up on him and the case.” Additionally, he argues that his former counsel was incompetent
because he never filed a motion to suppress.
{¶10} “A plea will not be considered voluntary if it is the result of ineffective assistance
of counsel.” State v. Spears, 9th Dist. Medina No. 07CA0036-M, 2008-Ohio-4045, ¶ 9. The
two-part test set forth in Strickland v. Washington,
466 U.S. 668 (1984), applies when a
defendant who seeks to withdraw his plea claims that his counsel was incompetent. Xie,
62 Ohio
5
St.3d at 524. The defendant must show that (1) “counsel’s performance was deficient,” and (2)
“there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
….” (Internal citations and quotations omitted.)
Id. There is a strong presumption that
licensed attorneys in Ohio are competent. State v. Smith,
17 Ohio St.3d 98, 100 (1985).
{¶11} At the hearing on his motion to withdraw his plea, Mr. Baker testified that he was
innocent of the charges against him and that his former attorney was aware that he wanted to
take his case to trial. According to Mr. Baker, he met with his former attorney several times
leading up to his scheduled trial date, but his former attorney never explained the evidence
against him. He testified that, at one point, the two discussed a plea offer, but Mr. Baker rejected
the offer in favor of trial.
{¶12} Mr. Baker stated that, the Friday before his Monday trial date, his former attorney
called him in the afternoon and told him come to the courthouse. He testified that his former
attorney did not say why they were meeting, but, when he arrived, the prosecutor and two police
officers were present. According to Mr. Baker, the prosecutor, the two officers, and his former
attorney kept him in a room for three hours in an attempt to convince him to accept a new plea
offer that the State had made. He denied that he was able to speak privately with his former
attorney before the meeting. He estimated that the two talked alone for about 20 to 30 minutes
over the course of the three hours that the meeting spanned. He testified that he was crying
during the meeting and did not want to accept the plea because it was a less favorable than the
State’s original offer and he knew he was innocent.
{¶13} It was Mr. Baker’s position that he was innocent of the charges against him
because he was absent from his home for a period of time before the police searched it. He
testified that the police arrested him the day before their search. He was still in jail when the
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police went to his house, searched it, and found an active methamphetamine lab inside. Mr.
Baker testified that the police told him the lab was smoldering when they found it. He, therefore,
argued that another individual, likely his co-defendant, was responsible for the lab. Mr. Baker
insisted that his alibi (i.e., the fact that he had been in jail) would have prevented the State from
proving his guilt beyond a reasonable doubt at trial.
{¶14} Despite his professed innocence, Mr. Baker testified that he eventually felt that he
had no option but to take the State’s plea offer because his former attorney kept telling him that
“this is as good as it’s gonna get[.]” He stated that, before that point, he understood that his co-
defendant had not implicated him and that he could prevail on his alibi at trial. During the
discussion at the courthouse, however, he learned that his co-defendant would be testifying
against him. He testified that his former attorney made him feel that he would not prevail if the
matter went to trial. According to Mr. Baker, the group presented him with three options: (1)
take the plea that day; (2) take a less favorable plea after that day, but before the start of trial; or
(3) go to trial and, if convicted, receive a lengthy sentence. Mr. Baker claimed that his former
attorney told him that “all the charges would be run wild and that [he] would have mandatory
time on them” if he lost.
{¶15} Mr. Baker’s plea hearing occurred the same day that he met with his former
attorney, the prosecutor, and the two police officers. Mr. Baker admitted that, during the plea
colloquy, the court asked him whether anyone had threatened or forced him to enter into his plea,
and he responded no. He admitted that, when asked whether he was satisfied with the advice his
former attorney had given him, he said that he was. Further, he admitted that, when the court
asked him whether he had any questions, he indicated that he did not. The court questioned Mr.
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Baker directly at the evidentiary hearing on his motion to withdraw, and the following exchange
took place:
THE COURT: [] I didn’t rush you, did I?
[MR. BAKER]: No, you did not.
THE COURT: So when I asked you, … you know, I do remember you crying
and, you know, I gave you a tissue and I said “Do you want to proceed,” and you
said, “Yes,” and I said, “Are you satisfied with [your attorney],” because I knew
this case had been going on for nine months, and I knew that every time [your
former attorney] would talk to the Court – to myself and the prosecutor he would
say that you believed you had a defense because you had been in jail.
He brought all of that stuff to our attention, which is why I took my time and
asked you those questions. I asked you to make sure you were doing this because
this is what you wanted to do.
[MR. BAKER]: And, Your Honor, … I’m sorry. … I know I should have
spoke up, but like I said, I been in trouble before and I know -- you know, I would
not speak to the judge like that.
THE COURT: But when I’m talking directly to you and I’m asking you those
questions --
[MR. BAKER]: I know. I’m sorry.
THE COURT: -- why didn’t you answer?
[MR. BAKER]: I was scared. I didn’t know.
THE COURT: What are you scared of?
[MR. BAKER]: I’m sorry.
THE COURT: That’s okay. Go ahead.
[MR. BAKER]: The way they were presenting it back there in the room …, I
didn’t want to get no more time that they were trying to already give me for
something I didn’t do.
So I didn’t want to speak up, you know what I mean, and have to get more time
because, you know, I pretty much stepped on my own toes or something.
I didn’t know what to do. I was backed into a corner.
8
According to Mr. Baker, his former attorney told him that he was not allowed to leave while the
three-hour plea discussion was occurring. He testified that the officers in the room “interrogated
[him] for information,” and his former attorney just kept telling him to answer the officers.
{¶16} Mr. Baker’s former attorney also testified at the hearing on Mr. Baker’s motion to
withdraw his plea. He testified that he has been a practicing attorney for almost 14 years and has
practiced criminal defense for the last 12 years. According to Mr. Baker’s former attorney, he
had numerous discussions with Mr. Baker either in person or over the phone where they talked
about the facts of his case, the evidence, and the strengths and weaknesses of any defense they
might present at trial. He described Mr. Baker as “amenable to pleading[, but not] excited about
it.”
{¶17} Mr. Baker’s former attorney admitted that he called Mr. Baker to the courthouse
that Friday afternoon to discuss the possibility of a plea. He testified, however, that he spoke
privately with Mr. Baker before the plea discussion started and explained to him the possible
advantages and disadvantages of cooperating with the State. He acknowledged that Mr. Baker
was not inclined to meet with the State, but said that he encouraged him to do so because of the
nature of the evidence against him and the amount of time he could potentially receive if
convicted. He testified that Mr. Baker then decided to have the meeting. He denied ever forcing
Mr. Baker to engage in the meeting and agreed that Mr. Baker could have left the meeting or
stopped to consult with him at any time. He recalled that he and Mr. Baker did, in fact, step out
and discuss things “at least once if not more times.”
{¶18} Mr. Baker’s former attorney described the plea discussion as frank, but not
coercive or pressured. He testified that the plea the State was offering guaranteed Mr. Baker less
than the mandatory minimum sentence he would receive if he lost. He further testified that,
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given Mr. Baker’s criminal history, he did not expect that Mr. Baker would receive the minimum
sentence on his counts if convicted. He stated that he was concerned about his ability to prevail
on Mr. Baker’s defense at trial, but that he was prepared to go forward. He stated that he never
told Mr. Baker that trial was not an option and that, had Mr. Baker still wanted to go to trial, he
would have defended him.
{¶19} Mr. Baker’s former attorney denied that anyone ever threatened Mr. Baker during
the meeting on the plea offer. He admitted that the State’s offer was time sensitive because the
trial was scheduled to go forward that Monday. Further, he admitted telling Mr. Baker that he
would likely receive a sentence of 7-10 years if he went to trial and lost. He testified that the
evidence against Mr. Baker remained consistent throughout discovery, except that Mr. Baker’s
co-defendant then decided to testify for the State. He explained that the threat of the co-
defendant’s testimony was a factor in his decision to recommend a plea to Mr. Baker, but that
there were other factors as well. He confirmed that he had previously discussed with Mr. Baker
his concerns about prevailing, should the matter go to trial. He testified that, ultimately, he told
Mr. Baker that he would take whichever course of action Mr. Baker decided upon. He stated that
he simply “gave [Mr. Baker] [his] best analysis of the case.”
{¶20} Officer David Christopher Crockett also testified at the hearing on Mr. Baker’s
motion to withdraw his plea. Officer Crocket testified that he was present at Mr. Baker’s
residence on May 3, 2014, when the police decided to knock on the door and investigate. He
testified that the police detected a chemical smell when someone answered the door, so they
came inside and searched the residence. Once inside, they discovered a methamphetamine lab in
the portion of the house where Mr. Baker resided. Officer Crockett stated that, based on his
experience with the one-pot method, he could estimate how recently someone had used a
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particular pot to produce methamphetamine. He testified that he observed numerous pots in the
residence, some of which were very new and some of which appeared to be several weeks old.
Officer Crockett testified that, when he spoke with Mr. Baker later that same day, Mr. Baker
admitted that he had cooked methamphetamine at his home. Although Mr. Baker claimed that
his statement to Officer Crockett was the result of coercion, Officer Crockett denied that he ever
threatened Mr. Baker or threatened to arrest his parents if he refused to claim ownership of the
methamphetamine.
{¶21} Officer Crockett testified that he also was present when Mr. Baker came to the
courthouse to discuss the possibility of a plea. He testified that everyone at the meeting
discussed the matter calmly and cordially and no one ever threatened Mr. Baker. He stated that
Mr. Baker’s former attorney was present the entire time and Mr. Baker was free to either consult
with him or leave at any point. Officer Crockett denied that he, his fellow officer, or the
prosecutor ever issued Mr. Baker an ultimatum or threatened to seek a higher penalty if he took
the matter to trial.
{¶22} The trial court determined that Mr. Baker was not entitled to withdraw his plea
because the evidence showed that he simply had a change of heart once the sentencing date was
upon him. The court noted that Mr. Baker’s and his former attorney’s testimony conflicted in
several respects and found the former attorney to be the more credible witness. Although Mr.
Baker professed his innocence due to his alibi, the court noted that the evidence showed that his
home contained several methamphetamine labs, some of which were several weeks old. The
court further noted that the State had evidence that Mr. Baker confessed to producing
methamphetamine. The court found that Mr. Baker’s former attorney had kept him apprised of
the evidence leading up to the plea discussion. It also found that, on the day of the plea
11
discussion, Mr. Baker’s former attorney simply explained to him that the plea would ensure a
more lenient sentence than he could expect if he were to be convicted at trial. The trial court
determined that Mr. Baker’s former attorney acted as competent counsel and that Mr. Baker
received a full plea hearing and a full evidentiary hearing on his motion to withdraw.
Consequently, the court denied Mr. Baker’s motion.
{¶23} Having reviewed the record, we cannot conclude that the trial court abused its
discretion when it denied Mr. Baker’s presentence motion to withdraw his plea. Mr. Baker failed
to show that he was not represented by competent counsel. His former attorney testified that he
kept Mr. Baker apprised of all the evidence leading up to trial, that he consulted with him both
before the plea discussion began and amidst the discussion, and that he presented Mr. Baker with
his options in a clear manner and recommended the better course of action. He further testified
that, before that date, he had expressed to Mr. Baker his concerns about prevailing at trial.
Although his testimony conflicted with Mr. Baker’s in several respects, “the good faith,
credibility and weight of the movant’s assertions in support of the motion [to withdraw] are
matters to be resolved by [the trial] court.” Smith, 49 Ohio St.2d 261, at paragraph two of the
syllabus. The trial court specifically found Mr. Baker’s former attorney to be the more credible
witness.
{¶24} While Mr. Baker claims that his alibi would have established his innocence, it
would not have refuted Officer Crockett’s testimony that his residence contained multiple pots of
methamphetamine, some of which were several weeks old. Mr. Baker failed to offer any
explanation for those older items. Further, there was evidence that he confessed to having
manufactured methamphetamine. Although Mr. Baker faults his former attorney for not seeking
the suppression of his purportedly coerced confession, Officer Crockett specifically denied that
12
he threatened Mr. Baker to induce his confession. Accordingly, Mr. Baker has not shown either
that he possessed evidence in support of his claim of innocence or that his former attorney was
ineffective for failing to file a motion to suppress. See Robertson, 2011-Ohio-4300, at ¶ 9 (claim
of innocence insufficient to warrant plea withdrawal, absent evidence to support the claim); State
v. Downing, 9th Dist. Summit No. 22012,
2004-Ohio-5952, ¶ 20 (“[T]he decision of whether or
not to file a motion to suppress is a trial strategy.”).
{¶25} Mr. Baker bore the burden of demonstrating that he had a “reasonable and
legitimate basis for withdrawing [his] plea.” (Internal quotations and citation omitted.) Jones,
2012-Ohio-6150, at ¶ 37. The trial court’s determination that he failed to meet his burden is not
unreasonable, arbitrary, or unconscionable. See State v. Watson, 9th Dist. Summit No. 25401,
2011-Ohio-4227, ¶ 13-14. Because no transcript of Mr. Baker’s plea hearing exists, we must
presume regularity in that proceeding. See Doskocil,
2013-Ohio-2074, at ¶ 16. Further, the
record reflects that the court conducted a full evidentiary hearing on Mr. Baker’s motion to
withdraw and considered his arguments in support of his motion. See Robertson, 2011-Ohio-
4300, at ¶ 6. Finally, Mr. Baker failed to demonstrate that he received ineffective assistance of
counsel at any point before he discharged his former attorney because there is no evidence that
his former attorney’s performance was deficient. See Xie,
62 Ohio St.3d at 524. The record
supports the trial court’s conclusion that Mr. Baker simply had a change of heart regarding his
plea. See State v. Brown, 9th Dist. Summit No. 23759,
2007-Ohio-7028, ¶ 23 (“A mere ‘change
of heart’ does not constitute a legitimate basis for the withdrawal of a guilty plea.”).
Consequently, the trial court did not abuse its discretion by denying his motion. Mr. Baker’s
sole assignment of error is overruled.
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III.
{¶26} Mr. Baker’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
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RONALD T. GATTS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
