State v. Conley

         [Cite as State v. Conley, 

.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO



 STATE OF OHIO,                                       :   APPEAL NO. C-240223
                                                          TRIAL NO. B-2301031
         Plaintiff-Appellee,                          :

   vs.                                                :     O P I N I O N.

 JERRED CONLEY,                                       :

     Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 16, 2024




Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Glaser Law and Angela J. Glaser, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

       {¶1}   Defendant appellant Jerred Conley appeals the decision of the Hamilton

County Court of Common Please denying his presentence motion to withdraw his

previously-entered guilty plea. In his sole assignment of error, he contends that the

trial court erred in denying his motion to withdraw his plea. We find merit in his

assignment of error. Therefore, we reverse his conviction and remand the matter to

the trial court to hold a new hearing on his motion.

       {¶2}   Conley was originally charged with one count of having weapons under

a disability under R.C. 2923.13(A)(3), one count of theft under R.C. 2913.02(A)(1), and

one count of assault under R.C. 2903.13(A). Counts one and two were third-degree

felonies and count three was a first-degree misdemeanor. Under the terms of the plea

agreement, Conley agreed to plead guilty to count one, having weapons under a

disability, with an agreed sentence of nine months’ incarceration, and the State agreed

to dismiss the other two counts.

       {¶3}   The trial court held a plea hearing.       It conducted a full colloquy

according to Crim.R. 11 to ensure that Conley’s plea was made knowingly, intelligently,

and voluntarily. The court accepted his plea and scheduled a sentencing hearing.

       {¶4}   Subsequently, Conley’s counsel filed a motion to withdraw, citing a

“breakdown in communication.” At a hearing on that motion, the court addressed

Conley, and he said that he had sent an email to counsel expressing how he felt, and

the next thing he knew counsel had filed a motion to withdraw. Conley said that he

intended no disrespect, and he apologized if counsel had felt disrespected. After a brief

discussion with Conley, counsel told the court that Conley wanted to proceed pro se

on an oral motion to withdraw his plea, and counsel would remain as standby counsel.



                                               2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    The court replied, “You understand they’re lawyers? They know what

they’re doing. You’re not a lawyer, right?” Conley replied, “Yes.” The court further

stated, “There’s legal standards I have to apply. Do you understand that?” Conley said

that he did. Finally, the court asked him if he was sure he wanted to proceed without

counsel, and Conley said, “Yes.”

       {¶6}   The court then asked, “Mr. Conley, what did you want to tell me?” He

responded, “They told me that I am going to explain to you why I would like to change

my plea. . . . And that’s pretty much I strongly feel I do not deserve any charges on my

record let alone probation and prison.” The court asked him if he understood that it

advised him of his constitutional rights when it accepted the plea. Conley replied that

he did, and the court said it was going to deny the motion.

       {¶7}   The court then asked Conley if he wished to have counsel at the

sentencing hearing. He stated, “I would just like to be able to talk to you myself. So, I

think I would like to proceed just representing myself.” The court told him it was a

serious case, and he was “looking at quite a bit of time in the penitentiary.” Conley

confirmed that he still wished to proceed pro se, and he signed a written waiver of

counsel. The court told him that if he changed his mind, counsel could be appointed

for him.

       {¶8}   When Conley did not appear for sentencing, a capias was issued for his

arrest. He was eventually apprehended five days later. At the sentencing hearing, the

court again asked him if he wished to proceed pro se, and he replied that he did. In

mitigation, Conley stated that he had sent a letter to the judge along with what he

claimed was new evidence. He claimed that he was being set-up or framed by the

victim. The court noted that he had picked up new charges related to the same victim.



                                               3
                     OHIO FIRST DISTRICT COURT OF APPEALS



Instead of imposing the agreed sentence of nine months, the court sentenced him to

24 months in prison. This appeal followed.

       {¶9}   In his sole assignment of error, Conley contends that the trial court

abused its discretion in overruling his motion to withdraw his plea. He argues that the

court “acted unjustly and unfairly” when it failed to hold a hearing or weigh any of the

necessary factors before denying the motion. This assignment of error is well taken.

       {¶10} Motions to withdraw guilty pleas are governed by Crim.R. 32.1, which

provides, “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.” Although a presentence motion to withdraw a guilty plea should be freely and

liberally granted, a defendant does not have an absolute right to withdraw a guilty plea

before sentence. State v. Xie, 

 (1992); State v. McCoy, 2023-

Ohio-361, ¶ 10 (1st Dist.). The decision whether to grant the motion lies within the

trial court’s discretion. Xie at paragraph two of the syllabus; State v. Sykes, 2007-

Ohio-3086, ¶ 5 (1st Dist.).

       {¶11} In State v. Fish, 

 (1st Dist. 1995), overruled on

other grounds in State v. Sims, 

 (1st Dist.), this court set forth the

factors to be considered when reviewing the trial court’s denial of a motion to

withdraw a guilty plea. State v. Zachary, 

 (1st Dist.); McCoy at ¶

11. Those factors include:

       (1) whether the defendant was represented by highly competent

       counsel; (2) whether the defendant was afforded a complete Crim.R. 11

       hearing before entering the plea; (3) whether the trial court conducted

       a full and impartial hearing on the motion to withdraw the plea; (4)

                                               4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       whether the trial court gave full and fair consideration to the motion;

       (5) whether the motion was made within a reasonable time; (6) whether

       the motion set out specific reasons for the withdrawal; (7) whether the

       defendant understood the nature of charges and the possible penalties;

       (8) whether the defendant was possibly not guilty of the changes or had

       a complete defense to the charges; and (9) whether the state would have

       been prejudiced by the withdrawal of the plea.

.

       {¶12} These factors are not exhaustive. A reviewing court may consider other

factors as dictated by the circumstances of the particular case. Id. at ¶ 7, quoting 

. No single factor controls the inquiry. The trial court “employs a balancing

test.” Id. at ¶ 7. The ultimate question for the trial court is whether there is a

“reasonable and legitimate basis for the withdrawal of the plea.” 

. Generally,

a “change of heart” is an insufficient justification for the withdrawal of a plea. 

; State v. Conley, 

 (1st Dist.).

       {¶13} Conley admits that factors (1) and (2) do not weigh in his favor because

at the plea hearing, he was represented by counsel, and the court conducted a full

colloquy under Crim.R. 11. But he claims that the remaining factors weigh in his favor.

We need not address that argument because we agree with his assertion that the

hearing on his motion to withdraw his plea was inadequate.

       {¶14} The trial court must conduct a hearing to determine if there is a

legitimate and reasonable basis for the withdrawal of the plea. Xie, 

,

at paragraph one of the syllabus; Conley at ¶ 13. The scope of the hearing “should

reflect the substantive merit of the motion itself.” Conley at ¶ 13, quoting State v.

McNeil, 

 (1st Dist. 2001). The trial court is not required to

                                                5
                       OHIO FIRST DISTRICT COURT OF APPEALS



hold a separate evidentiary hearing, but it must give the defendant or his counsel an

opportunity to explain the motion. See State v. Johnson, 

 (10th

Dist.).

          {¶15} While a brief hearing can satisfy the hearing requirement, in this case

Conley was not given an adequate opportunity to present his reasons for wanting to

withdraw the plea. At the hearing, the court initially discussed counsel’s motion to

withdraw. Subsequently, Conley briefly conferred with counsel, after which counsel

told the court that Conley wanted to proceed pro se with standby counsel. The court

asked Conley a few questions and allowed him to represent himself. We question

whether the court conducted a sufficient inquiry to determine whether the “defendant

fully understood and intelligently relinquished his or her right to counsel.” State v.

Jackson, 

 (1st Dist.), quoting State v. Martin, 

, ¶

39. See State v. Wallace, 

 (1st Dist.) But that issue is not before us.

          {¶16} Conley told the court that he did not deserve the charges.         That

statement was essentially a claim of innocence, which “goes to the very heart of the

right to a trial by jury.” State v. Jefferson, 

, ¶ 8 (1st Dist.). Where a

defendant asserts a claim of innocence as the reason for withdrawing his plea, “the

trial court must compare the interests of and potential prejudice to each party.” Sykes,

 (1st Dist.).

          {¶17} The court then asked Conley if he understood that the court had advised

him of his constitutional rights at the plea hearing. When Conley responded “yes,” the

court said that it was denying his motion. That question only related to the first two

factors. Nothing in the record shows that the court considered any of the other factors.

“[T]he brevity with which the trial court addressed the motion casts doubts on whether

the court carefully considered the merits.” 

.

                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} Consequently, we sustain Conley’s assignment of error. We reverse his

conviction and remand the matter to the trial court to hold a hearing on Conley’s

motion to withdraw his guilty plea and consider all of the relevant factors.

                                              Judgment reversed and cause remanded.



BOCK, P.J., and CROUSE, J., concur.

Please note:
       The court has recorded its own entry this date.




                                               7