[Cite as State v. Gaston,
2019-Ohio-4611.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1150
Appellee Trial Court No. CR0201702084
v.
James L. Gaston DECISION AND JUDGMENT
Appellant Decided: November 8, 2019
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
…
OSOWIK, J.
{¶ 1} This is an appeal from a June 1, 2018 judgment of the Lucas County Court
of Common Pleas, denying appellant’s April 23, 2018 Crim.R. 32.1 motion to withdraw
appellant’s negotiated guilty plea, entered on January 8, 2018, to one count of burglary,
in violation of R.C. 2911.11, a felony of the second degree, as amended from a felony of
the first degree. For the reasons set forth below, this court affirms the judgment of the
trial court.
{¶ 2} In exchange for the plea, appellee dismissed the remaining offenses pending
against appellant, including one count of grand theft with a firearm specification, in
violation of R.C. 2913.02, a felony of the third degree, and one count of domestic
violence, in violation of R.C. 2919.25(A), as enhanced to a felony of the fourth degree
based upon appellant’s past convictions.
{¶ 3} The case was scheduled for sentencing on February 27, 2018. It was
continued at appellant’s request. On March 13, 2018, the trial court granted appellant’s
motion for a copy of the change of plea transcript. On April 23, 2018, approximately
four months after the voluntary plea was entered, appellant filed the underlying Crim.R.
32.1 motion to withdraw the January 8, 2018 plea.
{¶ 4} The substantive basis presented in support of the motion constituted a
change-of- heart, rooted in appellant’s concern that he may face incarceration given that
he was on community control at the time the instant offenses occurred. On April 25,
2018, appellee filed a memorandum in opposition.
{¶ 5} On June 1, 2018, the trial court conducted an evidentiary hearing on the
contested motion to withdraw the plea to the amended, lesser offense. The motion
hearing transcripts reflect that the motion was fundamentally driven by appellant’s
perception that he would not be assured community control, as was being recommended,
versus incarceration.
2.
{¶ 6} Counsel for appellee stated in opposition to the motion, “[I]n this particular
case, it’s just a change of heart with respect to the idea that [appellant] may end up in jail.
The victim has expressed … that she does not wish him to go to prison.” The court
further noted that, “[Appellant] was on community control. He had previously been sent
to the penitentiary, was released … [appellant committed] a community control
violation that was unrelated to any of these matters … [appellant] has a rather lengthy
criminal history.” In addition, the court referenced appellant’s numerous positive drug
screens while on community control. The trial court denied appellant’s motion to
withdraw.
{¶ 7} Subsequently, the victim presented a lengthy, largely disjointed statement on
appellant’s behalf. The motivation driving the statement advocating on appellant’s behalf
can most clearly be discerned by the victim’s lamentation that if appellant were to be
incarcerated, the victim would lose support from appellant. Appellant provides support
to the victim as the parties have a minor daughter together.
{¶ 8} This underlying motivation is reflected when the victim conveys, “I’m here
to try to do whatever I need to do because I need the help.” (Emphasis added). The
victim concluded, “I don’t feel like he deserves any prison time or anything like that. At
the most, maybe, like a house arrest or something like that to where I can still have that
support that I need.”
{¶ 9} Due to the victim’s statement on appellant’s behalf, during which the victim
changed course on some of her prior representations of the events, while simultaneously
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conceding her motivation was driven by her desire to not lose support from appellant
were he to be incarcerated, the trial court ultimately determined that these unique
circumstances required a reconsideration of the denial of the motion to withdraw.
{¶ 10} The trial court determined, “I’m going to reconsider the motion …
[given] the question of whether or not the accused is, perhaps, not guilty or had a
complete defense.”
{¶ 11} Upon reconsideration of the motion, undertaken in the context of abundant
evidence before the court which implicated appellant, but also a subsequent partial
recanting by the victim suggesting that appellant had permission to be present in her
home during the incident, the trial court identified the key determination to be, “So the
question in this case would turn to whether or not the evidence before the court suggests
that the [arguable] privilege was revoked [by the victim].”
{¶ 12} The court noted that appellant did not reside at the residence and that the
parties were estranged. In addition, appellant retained a key to the residence that the
victim mistakenly thought she had surreptitiously recovered from appellant at the onset of
their recent estrangement.
{¶ 13} The court emphasized that at some point after the victim was awoken and
confronted by appellant in her bedroom during the middle of the night, the victim, “went
for her gun,” to protect herself from appellant. The trial court reasoned that this action
clearly constituted revocation of any arguable implied permission or consent for appellant
to be present in the victim’s residence.
4.
{¶ 14} Accordingly, in the context of these particular facts and circumstances, the
trial court concluded, “[A]lthough there’s some evidence that would help [appellant] at
trial, it does not establish that he is not guilty or has a complete defense to charge of
burglary to which he’s entered his plea.” (Emphasis added). As such, the trial court then
held, “I reaffirm my denial of the motion to withdraw the plea.”
{¶ 15} Given the denial of the motion and affirmation of the prior plea, the trial
court proceeded to sentencing. Appellant was sentenced to a five-year term of
community control, with a suspended term of eight-year incarceration. This appeal
ensued.
{¶ 16} Appellant, James Gaston, sets forth the following assignment of error:
The trial court abused its discretion in denying Appellant’s motion to
withdraw his plea prior to sentencing.
{¶ 17} The following facts are relevant to this appeal. On June 21, 2017, at
approximately 2:45 a.m., the Toledo Police Department received an emergency call
regarding shots fired at a home in North Toledo.
{¶ 18} Upon arrival at the scene, the responding officers were met by the victim,
who has a minor child with appellant. Appellant and the victim are not married, did not
reside together, and were estranged at the time of these events.
{¶ 19} Shortly after the incident, while the victim was still in an excited state, the
victim told the officers that appellant had entered her home without her knowledge in the
middle of the night, confronted her with a knife, physically assaulted her, took possession
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of the victim’s gun that she kept in her residence, fired the weapon inside the residence
where their child was asleep, and then fled the scene.
{¶ 20} The 9 mm shell casing fired by appellant was recovered by the
investigating officers. The victim secured her child, left the residence, and called for
emergency assistance.
{¶ 21} Shortly thereafter, appellant walked into the Toledo Police headquarters
building downtown and falsely maintained that the victim had just entered his residence
and assaulted him. Appellant was on community control for prior felony convictions at
the time of these events.
{¶ 22} On June 27, 2017, appellant was indicted on one count of aggravated
burglary with a firearm specification, in violation of R.C. 2911.11, a felony of the first
degree, one count of grand theft with a firearm specification, in violation of R.C.
2913.02, a felony of the third degree, and one count of domestic violence, in violation of
R.C. 2919.25, as enhanced to a felony of the fourth degree based upon appellant’s prior
convictions.
{¶ 23} On January 8, 2018, appellant entered a voluntary plea of guilty to one
amended count of burglary, in violation of R.C. 2911.11, a felony of the second degree.
In exchange, the two remaining felony offenses were dismissed. On April 23, 2018,
appellant filed a Crim.R. 32.1 motion to withdraw the guilty plea prior to sentencing.
6.
{¶ 24} On June 1, 2018, the trial court conducted an extensive evidentiary hearing,
denied the motion, and sentenced appellant to a five-year term of community control.
This appeal ensued.
{¶ 25} In the sole assignment of error, appellant asserts that the trial court abused
its discretion in the denial of appellant’s Crim.R. 32.1 motion to withdraw the negotiated,
voluntary plea. We do not concur.
{¶ 26} Pursuant to Crim.R. 32.1, a motion to withdraw a plea of guilty or no
contest may be submitted before the sentence is imposed. Courts uniformly hold that the
decision to grant or deny such motions lies squarely within the sound discretion of the
trial court. State v. Xie, 62 Ohio St.3d 521,
584 N.E.2d 715 (1992).
{¶ 27} In the course of resolving such motions, the trial court conducts a hearing
in order to ascertain whether there is a reasonable and legitimate basis in support of the
contested motion to withdraw the plea. Xie at paragraph one of the syllabus.
{¶ 28} In conjunction with the above, it is well-established that a disputed denial
of a Crim.R. 32.1 motion cannot be reversed absent demonstration that it was an abuse of
discretion. Id. at paragraph two of the syllabus. In addition, there is no absolute right to
withdraw a plea prior to sentencing.
Id. at paragraph one of the syllabus.
{¶ 29} An abuse of discretion requires demonstrating that the disputed trial court
determination was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217,
450 N.E.2d 1140 (1983).
7.
{¶ 30} Lastly, the factors for review by the appellate court in reaching a
determination on the propriety of a trial court denial of a motion to withdraw the plea
includes whether the prosecution would be prejudiced by the plea being vacated, whether
appellant was represented by competent counsel, whether the trial court properly
conducted the Crim.R. 11 change of plea hearing, whether a full hearing on the motion
was conducted, whether the motion was made within a reasonable timeframe, whether the
motion set forth specific reasons in support of the request, whether appellant understood
the charges and potential penalties, and whether the record shows that appellant had a
complete defense to the crime. State v. Craighead, 6th Dist. Lucas No. L-11-1172, 2012-
Ohio-3109, ¶ 11.
{¶ 31} In applying controlling legal standards to the instant case, we note that the
record of evidence reflects that appellant’s Crim.R. 32.1 motion to withdraw was
prefaced upon appellant’s assertion that although he initially believed the voluntary plea
was the best, “hope of resolving a difficult situation,” appellant subsequently perceived
that he could establish a complete defense to the crime in light of the victim’s above-
described statement on appellant’s behalf.
{¶ 32} Accordingly, our review of this matter focuses upon consideration of
whether the record reflects that appellant demonstrated a complete defense to the offense.
{¶ 33} Appellant’s position is rooted in the fact that he utilized a key, previously
given to appellant by the victim given that they have a child together, for entry into the
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victim’s home. However, an examination of the record of evidence refutes appellant’s
position.
{¶ 34} The record reflects that although the victim had previously given appellant
the key, the victim had surreptitiously removed a key from appellant’s key ring following
their estrangement believing it to be the key to her home. Stated differently, the victim
took proactive steps to repossess her house key from appellant, thereby reflecting her
intent that appellant no longer have access to her residence.
{¶ 35} The victim attempted to do this without appellant’s knowledge due to
worsening conflict that had arisen between the parties. However, the victim mistakenly
removed the wrong key. Unbeknownst to the victim, appellant retained possession of the
key to the victim’s residence.
{¶ 36} The record reflects that appellant entered the victim’s home in the middle
of the night without in any way notifying her of his intent to enter the residence or
providing her an opportunity to object.
{¶ 37} The record further reflects that upon entering the home in the middle of the
night armed with a knife, appellant entered the victim’s bedroom, and confronted the
victim and her overnight adult guest with a knife. In response to the threat posed, the
victim attempted to get ahold of a gun that she maintained in the residence.
{¶ 38} Appellant struggled with the victim and forcibly took possession of her
gun, shot the gun off inside the residence, and fled the scene. As discussed above, any
arguable privilege that appellant had to enter the residence, which is far from convincing,
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was revoked when the victim felt so threatened by appellant’s presence that she went for
her gun to protect herself from appellant.
{¶ 39} Appellant has not demonstrated, and the record does not reflect, that these
circumstances constitute a complete defense so as to negate appellant’s culpability for his
otherwise criminal actions.
{¶ 40} Based upon the foregoing, we find that the trial court’s denial of appellant’s
Crim.R. 32.1 motion to withdraw the plea was not unreasonable, arbitrary or
unconscionable.
{¶ 41} Wherefore, appellant’s assignment of error is found not well-taken. The
judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
10.
State v. Gaston
C.A. No. L-18-1150
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
CONCUR. _______________________________
JUDGE
Gene A. Zmuda, J.,
DISSENTS.
ZMUDA, J., dissenting:
{¶ 42} I find that the trial court abused its discretion when it denied appellant’s
presentence motion to withdraw his plea. Because the majority concludes otherwise, I
must respectfully dissent.
{¶ 43} It is axiomatic that presentence motions to withdraw are to be freely and
liberally granted. State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992). In
evaluating a defendant’s presentence motion to withdraw his or her plea, Ohio courts
consider several factors. As relevant here, one of the factors to be considered by the trial
court is whether the accused was perhaps not guilty or had a complete defense to the
charge. State v. Richey, 6th Dist. Sandusky No. S-09-028,
2011-Ohio-280, ¶ 43. “When
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a defendant claims he is innocent and wishes to withdraw his plea of guilt prior to
sentencing, a comparison of the interests and potential prejudice to the respective parties
weigh heavily in the interests of the accused.” State v. Hartman, 6th Dist. Huron No.
H-17-014,
2018-Ohio-4452, ¶ 29.
{¶ 44} Here, the trial court rejected appellant’s presentence motion to withdraw
his plea based upon its finding that the exculpatory evidence offered by appellant did not
establish his innocence. Indeed, the trial court acknowledged that “there’s some evidence
that would help Mr. Gaston at trial,” but nonetheless found that the evidence “does not
establish that he is not guilty or has a complete defense to the charge of burglary.”
{¶ 45} In essence, the trial court rejected appellant’s motion because it found that
appellant had not proven his innocence. However, appellant is not required to prove his
innocence in order to withdraw his plea prior to sentencing. Rather, the trial court must
consider whether appellant is perhaps not guilty or has a complete defense.
{¶ 46} In this case, the victim acknowledged during the hearing that appellant
“didn’t break in. … I gave him a key, he did not break in. So he had a key but I forgot
about it.” The court then asked the victim whether appellant had her permission to enter
the residence, and the victim responded in the affirmative. The victim explained that she
tried to remove the key from appellant’s key ring without his knowledge. Moreover, the
victim denied that appellant brought a knife into the bedroom, and stated that “[t]he knife
part is not true.” As to the firearm, the victim stated that “[t]here was a tussle over the
12.
gun. Basically, before I could get to it – it was me trying to get to it before he could get
to it.”
{¶ 47} In responding to the victim’s statement, appellant maintained that he was
innocent of the charges that he was facing. Specifically, appellant stated:
I went for – like, I would have got shot, my life was in danger. I was
never told that I – like she [says], I was never told that I couldn’t come
there, you know, the key was on the ring. As I had been using it, I used it.
You know, I never broke into no home or never had a knife at her bedside
or anything like that, like she said. When the tussle went down over the
gun I feared for my life.
{¶ 48} Appellant’s claim of innocence, paired with the statements provided to the
court by the victim, cast legitimate doubt as to whether appellant (1) knowingly
trespassed when he entered the victim’s residence with a key, and (2) entered into the
residence with the purpose to commit a criminal offense therein. On this record, I find
that appellant has demonstrated that he is perhaps not guilty or has a complete defense to
the burglary charge.
{¶ 49} It must be stressed that appellant does not need to affirmatively prove that
he is innocent at this juncture. Whether appellant’s claim of innocence will actually
prevail is a consideration for the trier of fact at the trial. The trial court went beyond the
appropriate level of scrutiny in this case by requiring appellant to prove that he was
innocent as a prerequisite to granting the motion to withdraw the plea. Because the trial
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court relied upon this erroneous standard in denying appellant’s motion to withdraw his
plea, I find that the trial court’s decision was unreasonable and thus an abuse its
discretion. Therefore, I would reverse.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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