[Cite as State v. Campbell,
2023-Ohio-1626.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-060
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
TODD D. CAMPBELL, SR.,
Trial Court No. 2021 CR 001156
Defendant-Appellant.
OPINION
Decided: May 15, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Todd D. Campbell, Sr., appeals the denial of his
Motion to Withdraw Guilty Plea. For the following reasons, we affirm the decision of the
court below.
{¶2} On September 3, 2021, the Lake County Grand Jury returned an Indictment
against Campbell charging him with: Aggravated Vehicular Homicide (Count 1), a felony
of the first degree in violation of R.C. 2903.06(A)(1)(a); Aggravated Vehicular Homicide
(Count 2), a felony of the second degree in violation of R.C. 2903.06(A)(2)(a); Operating
a Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them
(Count 3), a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a);
Criminal Trespass (Count 4), a misdemeanor of the first degree in violation of R.C.
2911.21(A)(5); Prohibited Acts (Count 5), an unclassified misdemeanor in violation of
R.C. 4519.40(A)(2); and Prohibited Acts (Count 6), an unclassified misdemeanor in
violation of R.C. 4519.40(A)(4).
{¶3} On April 21, 2022, Campbell “entered a plea of ‘Guilty’ to a Lesser Included
Offense of Count 1, Aggravated Vehicular Homicide, a Felony of the Second degree, in
violation of Section 2903.06(A)(1) of the Ohio Revised Code; and Count 3, Operating a
Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them, a
Misdemeanor of the First degree, in violation of Section 4511.19(A)(1)(a) of the Ohio
Revised Code.”
{¶4} At the plea hearing, the prosecutor made the following proffer of what the
State would have proven at trial:
Your honor, the evidence would show in the early morning
hours of September 13, 2020, in Lake County, Ohio, the Defendant,
Todd Campbell, was driving a four-wheel ATV, all terrain vehicle.
This was a gas powered, self-propelled machine that he was driving.
He was driving it on a strip adjacent to the … CSX railroad tracks
in the vicinity of Route 20 and Mantle Road. He had a passenger on
the back, Ms. Bianca Pizzie. And the Defendant at that time was
operating it under the influence of alcohol.
In the hours preceding the Defendant driving it at this time,
and in the evening before, he had attended a retirement party, had
consumed alcohol at that party and thereafter which impaired his
ability to drive.
And as a result of that impairment, the Defendant crashed the
ATV into an angle iron guardrail causing Ms. Pizzie to be ejected
from the ATV and to land on the roadway beneath. She suffered
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severe and instant skull fractures, thoracic spine fractures, rib
fractures, that caused her death on scene there.
{¶5} On May 4, 2022, Campbell filed a Motion to Withdraw Guilty Plea.
{¶6} On June 6, 2022, a hearing was held on the Motion to Withdraw. Sonja
Marie Blackwell, Campbell’s girlfriend since 2015, testified that, as a result of the accident
that killed Pizzie, Campbell suffered traumatic brain injury. Following his release from the
hospital, she noted that Campbell had a different personality as well as issues with anxiety
and memory loss. Campbell’s defense attorney advised that, if the case went to trial, it
was likely to attract media attention. Concerned about how the media attention would
affect her and her children, Blackwell urged Campbell to enter a plea.
{¶7} Melissa Blake, a public defender, undertook her representation of Campbell
at the beginning of April and trial was scheduled for May 6. Prior to her representation,
Campbell was represented by other public defenders. Blake met with and/or spoke with
Campbell three times prior to the change of plea and discussed the evidence in the case
against him. After having an expert review the State’s accident reconstruction report,
Blake made the decision not to retain an expert and instead to challenge the credibility of
the State’s report at trial. Blake interviewed a potential witness identified by Campbell,
but concluded the witness’ testimony would not benefit Campbell. Blake had represented
Campbell on other occasions prior to the present charges. She did not have any concerns
about Campbell’s competency or ability to enter a knowing, voluntary, and intelligent plea.
{¶8} At the conclusion of the hearing, the trial court denied Campbell’s Motion to
Withdraw. The court began by reviewing certain factors1 identified by the courts as
1. These factors are the “Peterseim factors” which are discussed, infra, at ¶ 12.
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important in considering a request to withdraw a guilty plea prior to sentencing. Whether
the defendant was represented by highly competent counsel: “[T]here’s no question in
this case that Ms. Blake is a highly competent attorney who reviewed everything involved
in this case” and “was fully prepared to try the case if necessary.” Whether the defendant
was afforded a full hearing at the time of the plea pursuant to Criminal Rule 11: “[T]his
Court fully complied with the Criminal Rule 11 requirements and the colloquy.” Whether
the defendant was given an opportunity to have a complete, impartial hearing on the
motion to withdraw: The change of plea hearing “lasted over two hours” and the “Court
allowed the Defendant to present whatever evidence and testimony [he] wanted to
present with complete leeway in examining the witnesses.” Whether the court hearing
the motion gave full and fair consideration to the request: the court proceeded to explain
its decision as follows:
[T]here was … a lot of arguments made [that] … [Campbell]
wasn’t given enough time, that he was threatened, pressured into
this plea. … The evidence didn’t bear that out. In fact, Ms. Blake’s
own testimony was that the Defendant’s main concern about not
having enough time had nothing to do with the plea. … [H]e was
concerned about having his bond revoked because he feared that he
would test positive and knew what the conditions of the bond were *
…. Even through his own attorney, it had to do with wanting more
time because of the risk of having bond revoked.
The Defendant was then asked during this plea by the Court
if he had enough time to go over the case with his lawyer, have her
review all the reports with him, discuss all the legal issues and
answer all of his questions and he acknowledged that he did. He
was then asked if he was satisfied with the advice and counsel of his
attorney and he said he was. He was then asked by the Court: “Have
you been threatened or coerced in any way to enter the plea of
guilty?” He said, “No.” He was then asked, “Are you entering the
plea freely and voluntarily?” And he said, “Yes.” Now, if the court’s
not … permitted to accept a defendant’s responses during a Rule
11 colloquy, to accept them and hold the Defendant to those
responses, then we might as well get rid of Rule 11.
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…
Defense also makes an issue about [an] accident
reconstruction expert, and the evidence was clear [that] the public
defender’s office reached out to an accident reconstruction expert.
They didn’t retain them because once they retain them, then a report
gets generated and if a report’s generated that isn’t beneficial to the
Defendant’s interest they still are required to turn that report over to
the State then. So they contacted an accident reconstructionist, their
investigator did, provided him with information and he provided an
opinion that would not have been beneficial to the Defendant; that
was the testimony. … They handled this issue exactly how you’re
supposed to handle it.
…
But also of significance to this Court is the fact of how this plea
all came about. We had a suppression hearing in this case and at
the time of the suppression hearing, the Defendant was advised that
there was an offer being made by the State, it was contingent on the
Defendant accepting it at that time and not going forward with the
suppression hearing. The Defendant chose to go forward with the
suppression hearing and … not accept the offer. So there was no
offer on the table. The only way the plea ever came about was
because the defendant approached the prosecutor saying, “I want to
plea to the offer that you originally gave me.” He made the decision
to do that and it was clear through Ms. Blake … that she was not
going to contact the prosecutor’s office unless he was one hundred
percent on board with entering the plea. … And she specifically
asked him what he wanted to do before she would even contact the
prosecutor’s office and ask them if they would be willing to put the
plea back on the table …. And he made the decision that that’s
what he wanted to do and it was his decision. And that’s how this
whole plea materialized.
So while, again, the law states that motions to withdraw a
guilty plea should be freely granted prior to sentencing, … that’s
not automatic. The changing of … your mind, change of heart, is
an insufficient basis for withdrawing a plea, and that’s what we have
here. The Defendant has changed his mind and that’s not a sufficient
basis.
{¶9} On June 15, 2022, the sentencing hearing was held. The trial court ordered
Campbell to serve an indefinite sentence of between five and seven and a half years for
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Count 1 consecutive to a sentence of one hundred eighty days for Count 3, “totaling a
stated indefinite term of imprisonment of a minimum of five and one half (5.5) years up to
a maximum of eight (8) years.” Additionally, the court imposed a $525 fine on Count 3
and a lifetime and a five-year license suspension on Counts 1 and 3 respectively.
{¶10} On July 7, 2022, Campbell filed a Notice of Appeal. On appeal, he raises
the following assignment of error: “The trial court erred when it denied Campbell’s pre-
sentence motion to withdraw his guilty plea.”
{¶11} “A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed ….” Crim.R. 32.1. As a general rule, “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d
521, 527,
584 N.E.2d 715 (1992). However, “[a] defendant does not have an absolute
right to withdraw a guilty plea prior to sentencing.”
Id. at paragraph one of the syllabus.
“A trial court must conduct a hearing to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea.”
Id. “The decision to grant or deny a
presentence motion to withdraw a guilty plea is within the sound discretion of the trial
court.”
Id. at paragraph two of the syllabus. Thus, it is for the trial court “to determine
what circumstances justify granting such a motion,” and for the reviewing court to affirm
that decision unless it is unreasonable, arbitrary, or unconscionable. (Citation omitted.)
Id. at 526-527.
{¶12} This court has often held that a trial court does not abuse its discretion when
denying a presentence motion to withdraw a guilty plea: “(1) where the accused is
represented by highly competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to
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withdraw is filed, the accused is given a complete and impartial hearing on the motion,
and (4) where the record reveals that the court gave full and fair consideration to the plea
withdrawal request.” State v. Taylor, 2015-Ohio-2080,
33 N.E.3d 123, ¶ 32 (11th Dist.),
quoting State v. Peterseim,
68 Ohio App.2d 211,
428 N.E.2d 863 (8th Dist.1980),
paragraph three of the syllabus. We also acknowledge that there exist other
enumerations of factors to be considered when analyzing such motions. See, e.g., State
v. Fish,
104 Ohio App.3d 236,
661 N.E.2d 788 (1st Dist.1995), overruled on other
grounds, State v. Sims,
2017-Ohio-8379,
99 N.E.3d 1056 (1st Dist.); State v. Heisa, 8th
Dist. Cuyahoga No. 101877,
2015-Ohio-2269. While this court has not been entirely
consistent in the factors identified when considering motions to withdraw a plea under
Criminal Rule 32.1, it has demonstrated a preference for the Peterseim factors when
these are the factors adopted by the trial court. See, e.g., State v. Shaibi, 11th Dist. Lake
No. 2020-L-096,
2021-Ohio-660, ¶ 7 (“this court has generally applied the four-prong test
set forth … in Peterseim rather than the nine-factor test … in State v. Fish”); State v.
Field, 11th Dist. Geauga No. 2011-G-3010,
2012-Ohio-5221, ¶ 11 (since the “trial court
stated that it considered those factors before rendering its judgment … we will apply the
Peterseim factors here in order to determine whether the trial court erred in denying
appellant’s motion”).
{¶13} The Supreme Court of Ohio has recently reiterated, however, that the
determinative considerations in deciding a presentence motion to withdraw a guilty plea
are those established by Criminal Rule 32.1 and the Xie decision: “a defendant’s
presentence motion to withdraw his guilty plea should be freely and liberally granted”
although “a defendant does not have an absolute right to withdraw his guilty plea” and
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the denial of “a defendant’s motion to do so has been upheld in various circumstances.”
State v. Barnes, __ Ohio St.3d __, 2022-Ohio-4486, __ N.E.3d __, ¶ 21-22. The various
factors identified by Ohio’s appellate courts may (or may not) be useful in guiding a trial
court’s exercise of its discretion in deciding a motion to withdraw, but they do not dictate
the outcome. Id. at ¶ 40 (Brunner, J., concurring) (“[t]he nine-factor analysis should not
overshadow the exercise of judicial discretion needed to analyze a presentence plea
withdrawal in accordance with the basic principles established by Xie and Crim.R. 32.1”).
In Barnes, the Supreme Court flatly asserted that “the Peterseim factors and the Heisa
factors do not apply here.” Id. at ¶ 24. Instead, it held “that when a defendant discovers
evidence that would have affected his decision to plead guilty, he has a reasonable and
legitimate basis to withdraw his guilty plea before sentencing.” Id.
{¶14} On appeal, Campbell asserts that he presented a reasonable and legitimate
reason for withdrawing his guilty plea, particularly in light of the factors commonly applied
in analyzing this issue. In particular, he emphasizes that trial counsel failed to perform
competently by not retaining an accident reconstruction expert and by filing a motion to
suppress that was meritless and/or immaterial; he had suffered a traumatic brain injury
and smoked marijuana before entering his plea; his Motion was filed within a reasonable
time; there were no witnesses that he was driving the ATV; and the State would suffer no
prejudice by granting the Motion.
{¶15} The weight and relevance of these considerations are dubious. The trial
court found counsel’s decision not to retain an expert to be reasonable and no substantive
argument has been advanced that calls this finding into question. The relative merits of
the motion to suppress that was filed on Campbell’s behalf did not have any evident
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bearing on his decision to plead guilty. At the plea hearing, the trial court asked Campbell
if the marijuana or his other psychiatric medications impacted his ability to understand or
appreciate the proceedings and he replied that they did not. Trial counsel advised the
court that she did not believe that he was under the influence or incapable of making
rational decisions: “he’s appeared in this manner to me every time I’ve met with him and
if anything … he’s probably had a greater understanding today than at … some of our
earlier meetings and earlier discussions.” Barnes at ¶ 22 (the trial court’s denial of the
defendant’s motion to withdraw his guilty plea was upheld when the defendant asserted
that his antianxiety medication rendered his plea unknowing, unintelligent, and
involuntary) (citation omitted). As to whether he was driving the ATV, Campell had no
independent recollection.
{¶16} The fundamental defect in Campbell’s Motion to Withdraw is the one
identified by the trial court: his reason for wanting to withdraw his plea is a change of heart
and that is not a legitimate reason for doing so, even when the motion is made before
sentencing. Here, Campbell cites several factors that could support the withdrawal of his
plea but fails to articulate a compelling reason for wanting to do so. Campbell was fully
aware of the circumstances regarding his case when he entered his plea and those
circumstances remained thus at the time he moved to withdraw that plea. The only
apparent motivation for desiring to withdraw the plea from the record before this court is
that Campbell changed his mind in favor of going to trial. It is no abuse of discretion for
a trial court to find such justification insufficient to merit the withdrawal of a plea. State v.
Silver, 8th Dist. Cuyahoga No. 111578, 2023-Ohio-451, ¶ 6; State v. Depetro, 9th Dist.
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Medina No. 21CA0053-M, 2022-Ohio-2249, ¶ 8; State v. Garcia, 11th Dist. Ashtabula
Nos. 2020-A-0034 and 2020-A-0035,
2021-Ohio-4480, ¶ 33.
{¶17} The sole assignment of error is without merit.
{¶18} For the foregoing reasons, the denial of Campbell’s Motion to Withdraw
Guilty Plea is affirmed. Costs to be taxed against the appellant.
MARY JANE TRAPP, J.,
EUGENE A. LUCCI, J.,
concur.
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