[Cite as State v. Thomas,
2023-Ohio-3903.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 22 COA 028
TAVIAN THOMAS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 22 CRI 029
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: October 26, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL BENJAMIN R. SORBER
PROSECUTING ATTORNEY HANNA CAMPBELL & POWELL
NADINE HAUPTMAN 3737 Embassy Parkway
ASSISTANT PROSECUTOR Suite 100
119 Cottage Street, Third Floor Akron, Ohio 44333
Ashland, Ohio 44805
Ashland County, Case No. 22 COA 028 2
Wise, J.
{¶1} Appellant Tavian Thomas appeals his conviction and sentence entered in
the Ashland County Court of Common Pleas. Appellee is State of Ohio. The relevant facts
leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 11, 2022, Appellee filed a thirteen-count indictment for one
count of Kidnapping in violation of R.C. §2905.01(A)(3), one count of Abduction in
violation of R.C. §2905.02(A)(1), two counts of Carrying a Concealed Weapon in violation
of R.C. §2923.12(A)(2) and (1), two counts of Improper Handling of a Firearm in a Motor
Vehicle in violation of R.C. §2923.16(B), one count of Menacing by Stalking in violation
of R.C. §2903.211(A)(1), two counts of Intimidation of an Attorney, Victim or Witness in
Criminal Case in violation of R.C. §2921.04(B)(2), one count of Possessing Criminal Tools
in violation of R.C. §2923.24(A), two counts of Aggravated Menacing in violation of R.C.
§2903.21(A), and one count of Domestic Violence in violation of R.C. §2919.25(A).
{¶3} On April 6, 2022, pursuant to a plea agreement, Appellant entered a plea of
guilty to Kidnapping, in violation of R.C. §2905.01(A)(3), Intimidation of an Attorney,
Victim, or Witness in a Criminal Case in violation of R.C. §2921.04(B), and Domestic
Violence in violation of R.C. §2929.25(A). All other remaining charges were dismissed.
{¶4} On May 2, 2022, Appellant filed a Motion to Obtain New Counsel.
{¶5} On May 4, 2022, Appellant filed a Motion to Withdraw Plea.
{¶6} Appellant’s original counsel withdrew from representation.
{¶7} On June 5, 2022, Appellant’s new counsel entered his appearance and filed
a formal motion in support of Appellant’s request to withdraw guilty plea.
Ashland County, Case No. 22 COA 028 3
{¶8} On June 28, 2022, the trial court held a hearing on Appellant’s motion to
withdraw guilty plea. At the hearing, Appellant testified he only met his previous attorney
two or three times, counsel did not have discovery during their first meeting and did not
bring all discovery to the second meeting. Appellant does not feel like it was his decision
to plead guilty.
{¶9} On July 18, 2022, the trial court denied Appellant’s motion to withdraw guilty
plea.
ASSIGNMENTS OF ERROR
{¶10} Appellant filed a timely notice of appeal. He herein raises the following
Assignment of Error:
{¶11} “I. THE TRIAL COURT ERRED IN OVERRULING MR. THOMAS’ MOTION
TO WITHDRAW HIS GUILTY PLEA.”
I.
{¶12} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by overruling Appellant’s motion to withdraw his guilty plea. We agree.
{¶13} Crim.R. 32.1 governs withdrawals of guilty pleas. It provides that “[a] motion
to withdraw a plea of guilty or no contest 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.”
{¶14} Our review of a trial court’s decision under Crim.R. 32.1 is limited to a
determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio
St.3d 66,
477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must
determine the trial court’s decision was unreasonable, arbitrary or unconscionable and
Ashland County, Case No.
22 COA 028 4
not merely an error of law or judgment. Blakemore v. Blakemore,
5 Ohio St.3d 217,
450
N.E.2d 1140 (1983). “… [T]he good faith, credibility and weight of the movant’s
assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]
court.” State v. Smith,
49 Ohio St.2d 261,
361 N.E.2d 1324 (1977), paragraph two of the
syllabus.
{¶15} The Supreme Court of Ohio has stated a pre-sentence motion to withdraw
a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). That does not mean, however, a defendant has an absolute right
to withdraw a guilty plea prior to sentencing.
Id. at paragraph one of the syllabus. There
must be “a reasonable and legitimate basis for withdrawal of the plea.”
Id. “[T]he trial court
must conduct a hearing to determine whether there is a reasonable and legitimate basis
for the withdrawal of the plea.”
Id. Whether a “reasonable and legitimate basis” for the
withdrawal of a plea exists also lies within the trial court’s sound discretion. State v.
Rosemark,
116 Ohio App.3d 306, 308,
688 N.E.2d 22 (9th Dist.1996).
{¶16} During the hearing on Appellant’s motion to withdraw his guilty plea, the trial
court found that, “he didn’t see where there is any manifest injustice under the
circumstance.” Tr. 23. As set forth in the rule, the manifest injustice standard applies to
post-sentence plea withdrawals. Therefore, we find the trial court abused its discretion by
analyzing the information gathered at the hearing on Appellant’s motion to withdrawal his
guilty plea using the manifest injustice standard instead of determining whether or not
there is a reasonable and legitimate basis to withdraw his plea.
{¶17} Appellant’s sole Assignment of Error is well taken.
Ashland County, Case No. 22 COA 028 5
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,
Ashland County, Ohio, is vacated and the matter is remanded for further proceedings
consistent with this Opinion.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/br 1024
