State v. Reed

[Cite as State v. Reed, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-22-02

        v.

TERENCE REED,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 21 CR 0033

                                      Judgment Affirmed

                              Date of Decision: July 25, 2022




APPEARANCES:

        John M. Kahler for Appellant

        Rebeka Beresh for Appellee
Case No. 13-22-02


ZIMMERMAN, P.J.

       {¶1} Defendant-appellant, Terence Reed (“Reed”), appeals the December

28, 2021 judgment entry of sentence of the Seneca County Court of Common Pleas.

We affirm.

       {¶2} This case stems from a February 22, 2021 dispute between Reed and

the victim—Reed’s former partner—over the wellbeing of their young child.

During the argument, Reed entered the victim’s residence (without permission) to

(according to Reed) ensure the safety of the child. Following his entry into the

residence, an altercation between Reed and the victim ensued during which Reed

restrained the victim causing her physical harm.

       {¶3} On March 25, 2021, the Seneca County Grand Jury indicted Reed on

Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), (B), a first-

degree felony, Count Two of abduction in violation of R.C. 2905.02(A)(2), (C), a

third-degree felony, and Count Three of disrupting public services in violation of

R.C. 2909.04(A)(3), (C), a fourth-degree felony. On April 7, 2021, Reed appeared

for arraignment and entered pleas of not guilty.

       {¶4} On November 8, 2021, Reed withdrew his pleas of not guilty and

entered guilty pleas, under a written plea agreement to an (amended) Count One and

Count Two. In exchange for his change of pleas, the State agreed to amend Count

One to burglary in violation of R.C. 2911.12(A)(3), (D), a third-degree felony, and


                                        -2-
Case No. 13-22-02


dismiss Count Three. Further, as part of the agreement, the State recommended that

the trial court impose a sentence of 30 months in prison as to Count One (as

amended) and 24 months in prison as to Count Two, and order that the sentences be

served consecutively for an aggregate sentence of 54 months in prison. The trial

court conducted a Crim.R. 11 colloquy, accepted Reed’s guilty pleas, and found him

guilty.

           {¶5} On December 9, 2021, Reed filed a motion to withdraw his guilty pleas.

Prior to sentencing Reed on December 27, 2021, the trial court permitted the parties

an opportunity to address Reed’s motion to withdraw his guilty pleas and ultimately

denied Reed’s motion to withdraw his guilty pleas. (Dec. 27, 2021 Tr. at 9-35).

That same day, the trial court imposed the joint-sentencing recommendation and

dismissed Count Three.1 (Doc. No. 42).

           {¶6} Reed filed his notice of appeal on January 24, 2022. (Doc. No. 45). He

raises one assignment of error for our review.

                                         Assignment of Error

           The Trial Court Abused Its Discretion By Denying Appellant’s
           Motion to Withdraw His Guilty Plea Prior to Sentencing.

           {¶7} In his assignment of error, Reed argues that the trial court abused its

discretion by denying his presentence motion to withdraw his guilty pleas. In




1
    The trial court filed its judgment entry of sentence on December 28, 2021. (Doc. No. 42).

                                                      -3-
Case No. 13-22-02


particular, Reed contends that his trial counsel was ineffective by coercing him into

pleading guilty.

                                Standard of Review

       {¶8} It is within the sound discretion of the trial court to determine what

circumstances justify granting a presentence motion to withdraw a guilty plea. State

v. Xie, 

 (1992), paragraph two of the syllabus. Therefore,

appellate review of a trial court’s decision to deny a presentence motion to withdraw

a guilty plea is limited to whether the trial court abused its discretion. State v.

Nathan, 

 (3d Dist.1995), citing State v. Smith, 

 (1977).     An abuse of discretion implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. State v. Adams, 

 (1980). When applying this standard, a reviewing court may not simply

substitute its judgment for that of the trial court. State v. Adams, 3d Dist. Defiance

No. 4-09-16, 

.

                                      Analysis

       {¶9} A defendant may file a presentence motion to withdraw a guilty plea.

Crim.R. 32.1. Although a trial court should freely grant such a motion, a defendant

does not maintain an absolute right to withdraw his plea prior to sentencing. 

. Instead, a trial court must hold a hearing to determine whether a “reasonable

and legitimate basis” exists for the withdrawal. 

 at paragraph one of the syllabus.


                                         -4-
Case No. 13-22-02


       {¶10} We consider several factors when reviewing a trial court’s decision to

grant or deny a defendant’s presentence 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; (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. Allen No. 1-10-10, 

, citing

State v. Griffin, 

 (7th Dist.2001). See also State v. Fish,

 (1st Dist.1995), overruled on other grounds, State v.

Sims, 1st Dist. Hamilton No. C-160856, 

. “None of the factors is

determinative on its own and there may be numerous additional aspects ‘weighed’

in each case.” State v. North, 3d Dist. Logan No. 8-14-18, 

, ¶ 16,

citing Griffin at 554 and 

.

       {¶11} An examination of the reasonable-and-legitimate-basis factors

supports that the trial court’s decision to deny Reed’s presentence motion to

withdraw his guilty pleas was not unreasonable, arbitrary, or unconscionable.




                                         -5-
Case No. 13-22-02


       {¶12} Even though Reed contends that the first factor weights in his favor—

that the State would not be prejudiced should the trial court permit Reed to withdraw

his guilty pleas—the State contends that it would be “unfair to the State as it would

require the State of Ohio to now again secure its witnesses and prepare for trial

within such a limited time when it was at [Reed’s] request to enter such a plea.”

(Appellee’s Brief at 23). However, the prejudice alleged by the State appears to

relate “‘only to the inconvenience of having to prosecute its case, rather than relating

to actual, articulated prejudice.’” State v. Ferdinandsen, 3d Dist. Hancock No. 5-

16-08, 

, quoting State v. Zimmerman, 10th Dist. Franklin No.

09AP-866, 

, ¶ 24. Therefore, we agree that the first factor weighs

in Reed’s favor. Accord 

       {¶13} Next, Reed argues that the sixth factor—the timing of his motion—

weighs in his favor. The State concedes as such and we agree that it weighs in favor

of granting Reed’s presentence motion to withdraw his guilty pleas. Hence, we

agree that factors one and six favor Reed’s position.

       {¶14} However, the remaining seven factors do not weigh in Reed’s favor.

Notably, Reed concedes that the third and eighth factors do not weigh in his favor.

Indeed, the trial court conducted an extensive Crim.R. 11 colloquy and informed

him of all of the rights he was waiving by pleading guilty to the charges. Likewise,




                                          -6-
Case No. 13-22-02


the record reflects that Reed understood the nature of the charges and the potential

sentence.

       {¶15} Moreover, even though Reed argues that fourth and fifth factors—the

extent of the hearing on the motion to withdraw his pleas and whether the trial court

gave full and fair consideration of the motion—weigh in his favor, we disagree.

Contrary to Reed’s argument that “there was no hearing held on the motion to

withdraw guilty plea[s],” the record reflects that the trial court provided Reed an

opportunity to address his motion to withdraw his guilty pleas (to the trial court)

and that the trial court gave full and fair consideration of the motion prior to

proceeding to sentencing.

       {¶16} While the Supreme Court of Ohio has stated “‘that a hearing is

mandatory,’” it has not defined “‘the type of hearing that is required.’” State v.

Elkins, 4th Dist. Lawrence No. 16CA15, 

, ¶ 10, quoting State v.

Wolfson, 4th Dist. Lawrence No. 02CA28, 

, ¶ 16. The purpose of

the hearing is to determine whether a reasonable and legitimate basis exists for a

motion to withdraw a guilty plea. Wolfson at ¶ 15, citing State v. Wright, 4th Dist.

Highland No. 94-CA-853, 

, *5 (June 19, 1995). Thus, a hearing

which comports with “‘at least the minimum mandates of due process’” will

constitute a full and fair hearing on a motion to withdraw a guilty plea. Elkins at ¶

10, quoting Wolfson at ¶ 16. See State v. Griffin, 8th Dist. Cuyahoga No. 82832,


                                         -7-
Case No. 13-22-02

 (noting that “a trial court inviting and hearing oral arguments

on a motion to withdraw a guilty plea at the sentencing hearing, immediately before

sentence is imposed, can constitute a full and fair hearing on that motion”); State v.

Glavic, 

 (11th Dist.2001) (concluding that a trial court

need not “schedule a separate hearing” in order to comply with the minimum

standards of due process”). See also State v. Aleshire, 5th Dist. Licking No. 2011-

CA-73, 

 (stating that “the scope of the hearing upon a

defendant’s motion to withdraw his or her previously entered negotiated guilty plea

is within the trial court’s discretion”).

       {¶17} Here, although we are concerned by the trial court’s decision to permit

the parties to address Reed’s motion to withdraw his guilty pleas after it had already

ruled on his motion to withdraw, we cannot say that the scope of the hearing was

unreasonable, arbitrary, or unconscionable. Importantly, for nearly 24 pages in the

transcript, the trial court inquired as to the reasons why Reed wished to withdraw

his pleas and provided Reed with an ample opportunity to present his case.

Therefore, based on the record before us, the trial court complied with the mandates

of due process. Moreover, since the record reflects that the trial court engaged in a

lengthy exchange with Reed as to the reasons he wished to withdraw his pleas, the

trial court gave full and fair consideration of Reed’s motion. Consequently, even

though we remain concerned by the trial court’s decision to announce its decision


                                            -8-
Case No. 13-22-02


on the motion prior to hearing Reed’s argument, neither the fourth nor the fifth

factors weigh in Reed’s favor.

       {¶18} Turning to the remaining factors, the second, seventh, and ninth

factors—i.e., Reed’s legal representation, the stated reasons for the motion, and

Reed’s claim of innocence—we likewise conclude that those factors do not weigh

in Reed’s favor. In his motion to withdraw his guilty pleas, Reed states that the

reason for his motion is because he is innocent and that he “did not want to plead

guilty to either offense, but [his trial counsel] insisted that [he] ‘had to take’ the plea

bargain offer” and “that if he didn’t take the deal he ‘would be found guilty and go

to prison.’” (Doc. No. 36). Based on that argument, to determine whether the

seventh factor—the stated reasons for the motion—weighs in Reed’s favor, we must

examine it conjunction with his arguments as to the second and ninth factors.

       {¶19} We will first address the ninth factor—Reed’s claim of innocence. “In

weighing the ninth factor, ‘the trial judge must determine whether the claim of

innocence is anything more than the defendant’s change of heart about the plea

agreement.’” State v. Davis, 5th Dist. Richland No. 15CA6, 

,

quoting State v. Davison, 5th Dist. Stark No. 2008-CA-00082, 

, citing State v. Kramer, 7th Dist. Mahoning No. 01-CA-107, 

, ¶

58. “‘A change of heart or mistaken belief about pleading guilty is not a reasonable

basis for withdrawal of a guilty plea.’” State v. Jones, 7th Dist. Mahoning No. 09


                                           -9-
Case No. 13-22-02


MA 50, 

, quoting State v. Smith, 8th Dist. Cuyahoga No.

94419, 

, ¶ 9. Claims of innocence must be substantiated. North,

, at ¶ 27.

       {¶20} In this case, Reed pleaded guilty to the offenses of burglary and

abduction. The offense of burglary is codified under R.C. 2911.12, which provides

in its relevant part, that “[n]o person, by force, stealth, or deception, shall”

“[t]respass in an occupied structure … with purpose to commit in the structure *

… any criminal offense.” R.C. 2911.12(A)(3). “Trespass means knowingly

entering or remaining on the land or premises of another, without a privilege or

permission to be there.” State v. Baker, 2d Dist. Montgomery No. 26703, 2016-

Ohio-315, ¶ 21, citing R.C. 2911.21. “‘Force’ as used in R.C. 2911.12(A) ‘means

any violence, compulsion, or constraint physically exerted by any means upon or

against a person or thing.’” State v. Brock, 2d Dist. Clark No. 2018-CA-112, 2019-

Ohio-3195, ¶ 24, quoting R.C. 2901.01(A)(1). “[T]he requirement of ‘force’ is

satisfied by ‘any effort physically exerted.’” 

 quoting State v. Hudson, 2d Dist.

Montgomery No. 27561, 

.

       {¶21} “To establish the ‘any criminal offense’ prong of the burglary statute,

the State is required to show that the defendant ‘invaded the dwelling for the purpose

of committing a crime or that he formed that intent during the trespass.’” (Emphasis

added.) Hudson at ¶ 22, quoting State v. Gardner, 

, 2008-Ohio-


                                        -10-
Case No. 13-22-02


2787, ¶ 33. “‘The purpose with which a person does an act is determined from the

manner in which it is done, the means or weapon used, and all the other facts and

circumstances in evidence.” 

 quoting State v. Johnson, 11th Dist. Lake No.

2006-L-259, 

, and citing R.C. 2901.22(A) (defining

purposeful mens rea).

       {¶22} Reed also pleaded guilty to the offense of abduction in violation of

R.C. 2905.02, which provides in its relevant part, that “[n]o person, without

privilege to do so, shall knowingly” “[b]y force or threat, restrain the liberty of

another person under circumstances that create a risk of physical harm to the victim

or place the other person in fear.” R.C. 2905.02(A)(2). Physical harm is defined as

“an injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3).

       {¶23} However, Reed argues that he is innocent because he acted in self-

defense. To establish a self-defense claim for the use of non-deadly force, the

defendant must (1) not be “‘“at fault in creating the situation giving rise to the

affray”’” and (2) have an objectively reasonable and subjectively honest bona fide

belief, even if that belief is mistaken, “‘that he was in imminent danger of any bodily

harm … .”’” State v. Wagner, 3d Dist. Seneca No. 13-15-18, 

, quoting State v. Kimmel, 3d Dist. Wyandot No. 16-10-06, 

,

quoting Struthers v. Williams, 7th Dist. Mahoning No. 07 MA 55, 

,


                                         -11-
Case No. 13-22-02


¶ 15. “Under the current version of R.C. 2901.05, while the burden of proof for the

affirmative defense of self-defense has shifted to the state, the burden of production

for all affirmative defenses, including self-defense, remains with the defendant.”

State v. Messenger, 10th Dist. Franklin No. 19AP-879, 

.

       {¶24} Reed argues that he is innocent of the burglary offense because he did

not trespass in the [the victim’s] residence; rather, he “simply entered the home

where he had been living together with [the victim].” (Appellant’s Brief at 11).

Furthermore, Reed argues that “[h]e did not enter with the purpose to commit any

crime,” he “had reason to believe that their young daughter was in danger and went

home to check on her.” (Id.). Reed alleges that “[h]e restrained [the victim] to keep

her from hitting him” and “only used enough force to defend himself.” (Id.).

Notwithstanding his arguments on self-defense, Reed overlooks that he admittedly

entered the victim’s residence without permission. Not only did Reed admittedly

enter the victim’s residence without permission, the State was prepared to present

(at trial) video evidence demonstrating that Reed forcibly entering the residence

without permission. Also, the State was prepared to present evidence that Reed

caused the victim physical harm. Therefore, we conclude that Reed’s claims of

innocence are undermined by the evidence in the record. Consequently, because

Reed did not present any evidence to substantiate a claim of innocence, Reed’s

claim of innocence appears to be more in the nature of a mere change of heart.


                                        -12-
Case No. 13-22-02


Accord State v. Liles, 3d Dist. Allen No. 1-18-69, 

. Therefore,

the ninth factor does not weigh in Reed’s favor.

       {¶25} Finally, in conjunction with the seventh factor, Reed asserts that the

second factor weighs in his favor because his trial counsel was ineffective. A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

the counsel’s performance was deficient or unreasonable under the circumstances;

and (2) the deficient performance prejudiced the defendant. State v. Kole, 

 (2001), citing Strickland v. Washington, 

 (1984).

To establish prejudice when ineffective assistance of counsel relates to a guilty plea,

a defendant must show there is a reasonable probability that but for counsel’s

deficient or unreasonable performance, the defendant would not have pled guilty.

Xie, 

, citing Hill v. Lockhart, 

 (1985) and

.

       {¶26} Specifically, Reed alleges that his trial counsel was ineffective

because he did not “adequately discuss [his] case with him” since he “did not even

get to see or review the discovery in his case until Saturday, November 6, 2021 –

just two days prior to his scheduled jury trial.” (Appellant’s Brief at 9). According

to Reed, despite his trial counsel’s lack of preparation, Reed contends that he “was

prepared to take his case to trial on November 8.” (Id.). Notwithstanding his

intention to proceed to trial, Reed’s trial counsel convinced him “to instead plead


                                         -13-
Case No. 13-22-02


guilty” because his trial counsel “told [him] that he ‘had no shot’ at prevailing at

trial” “[e]ven though [he] insisted that he was innocent.” (Id.). However, based on

our review of the record, Reed cannot sustain his burden of proving that his trial

counsel’s performance was deficient or unreasonable under the circumstances or

that there is a reasonable probability that he would not have pleaded guilty.

       {¶27} First, Reed cannot show that his trial counsel’s advice was deficient or

unreasonable under the circumstances—that is, Reed cannot show that his trial

counsel’s advice was anything more than trial strategy. Tactical or strategic trial

decisions, even if unsuccessful, do not generally constitute ineffective assistance.

State v. Frazier, 

 (1991). Rather, the errors complained of

must amount to a substantial violation of counsel’s essential duties to his client.

State v. Bradley, 

, 141–142 (1989), citing State v. Lytle, 

 (1976). Importantly, “‘an attorney’s advice to take a plea deal is not

ineffective assistance of counsel.’”    State v. Robinson, 12th Dist. Butler No.

CA2013-05-085, 

, quoting State v. Shugart, 7th Dist.

Mahoning No. 08 MA 238, 

, ¶ 37. Instead, Reed’s trial counsel’s

advice “constitute[s] nothing more than counsel’s attempts to provide [Reed] with

informed advice, to relay worst case scenarios to him, and to make

recommendations to him on how to proceed.” 

 citing State v. Eberle, 12th Dist.

Clermont No. CA2009-10-065, 

, ¶ 57.


                                        -14-
Case No. 13-22-02


       {¶28} Furthermore, Reed’s contention that his trial counsel’s advice to

accept the negotiated plea agreement amounted to ineffective assistance of counsel

because his trial counsel failed to prepare for trial is without merit. That is, even if

we assume that Reed’s trial counsel’s trial preparations are deficient or unreasonable

under the circumstances, Reed has not demonstrated that the outcome of the

proceedings would have been different. Indeed, although we do not know what

underscored Reed’s trial counsel’s advice, our review of the record reveals that

Reed’s trial counsel zealously represented Reed throughout the course of the

representation. Importantly, the record reveals that much of the evidence on which

Reed intended to rely in his defense was preliminarily excluded prior to trial.

Likewise, based on our discussion under the ninth factor, Reed cannot demonstrate

that he would have satisfied his burden of production for his self-defense claim. See

Ferdinandsen, 

. In other words, Reed cannot demonstrate

that he would have been entitled to a self-defense instruction. Accord 

 See also

 (“Jury instructions are within the discretion of the trial court.”), citing State v.

Gripper, 10th Dist. Franklin No. 12AP-396, 

, ¶ 17.

       {¶29} Moreover, Reed cannot demonstrate that he was prejudiced by his trial

counsel’s advice. Undeniably, the favorable negotiated plea agreement in which the

State agreed to amend Count One from a first-degree-felony offense to a third-

degree-felony offense; to dismiss Count Three; and to jointly recommend that Reed


                                         -15-
Case No. 13-22-02


serve a consecutive sentence of 54 months in prison (from which he would be

eligible for juridical release after serving 7 months) is evidence that Reed was

represented by competent trial counsel. Accord State v. Wolfe, 3d Dist. Van Wert

No. 15-20-10, 

. Therefore, we conclude that neither the

second nor the seventh factor weighs in Reed’s favor.

       {¶30} In conclusion, even though the first and sixth factors weigh in Reed’s

favor, the remaining factors weigh against granting Reed’s motion to withdraw his

guilty pleas. Accord Liles, 

. Consequently, based on the

totality of the circumstances, Reed does not have a reasonable and legitimate basis

to withdraw his guilty pleas. 

 Accordingly, the trial court did not abuse its

discretion by denying Reed’s motion to withdraw his guilty pleas.

       {¶31} Reed’s assignment of error is overruled.

       {¶32} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -16-