[Cite as State v. Reed,
2025-Ohio-2753.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 23CA4041
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
ROGER D. REED, :
:
Defendant-Appellant. : RELEASED: 07/29/2025
______________________________________________________________________
APPEARANCES:
Gene Meadows, Jackson, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant
Scioto County Prosecutor, Portsmouth, Ohio for appellee.
______________________________________________________________________
Wilkin, J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas judgment
entry of conviction resulting from appellant, Roger D. Reed’s (“Reed”), plea to
aggravated possession of drugs, a third-degree felony. On appeal, Reed asserts he
was denied effective assistance of counsel, which caused him to enter a guilty plea that
was not knowing, voluntary or intelligent. In addition, Reed claims the trial court abused
its discretion in overruling his oral motion to withdraw his guilty plea.
{¶2} After reviewing the record, the parties’ briefs, and the applicable law, we
find Reed did not receive ineffective assistance of counsel, and that his plea was
knowing, voluntary and intelligent. Further, we find the trial court acted within its
discretion by denying Reed’s motion to withdraw his guilty plea. Thus, we affirm the trial
court.
Scioto App. No. 23CA4041 2
BACKGROUND
{¶3} On February 28, 2020, a Scioto County Grand Jury indicted Reed with two
felony counts: Count 1, aggravated possession of drugs (methamphetamine) in
violation of R.C. 2925.11(A) and R.C. 2925.11(C)(1)(b), a third-degree felony, and
Count 2, possession of drugs (Buprenorphine), in violation of R.C. 2925.11(A) and R.C.
2925.11(C)(2)(a) (also alleging Adkins had been convicted of three previous drug
offense convictions), a fifth-degree felony, for drugs recovered during a traffic stop.
{¶4} On July 22, 2020, the State served upon defense counsel a Bill of
Particulars and a “Response to Defendant’s Request for Discovery Pursuant to Criminal
Rule 16,” which it also filed with the trial court. On July 23, 2020, defense counsel filed
a “Response to State’s Demand for Discovery.”
{¶5} On July 31, 2020, Reed entered a plea of guilty to Count 1, aggravated
possession of drugs, the third-degree felony, and Count 2 was dismissed by the
agreement of the parties. The parties recommended a nine-month prison sentence,
and the trial court engaged in the requisite plea colloquy. During the plea colloquy,
Reed indicated he was satisfied with the assistance of his court-appointed counsel.
Pending sentencing, the trial court granted the defense request to allow Reed to be
released on his own recognizance so that he could spend time with a terminally ill
relative. However, the trial court specifically informed Reed, “[d]o you understand that
[the court’s] willingness to follow this joint recommendation will depend upon you
complying [with] the terms and conditions of you[r] bond between now and the time set
for your sentencing?”, to which Reed answered affirmatively. The court set a
sentencing date for September 2, 2020.
Scioto App. No. 23CA4041 3
{¶6} Despite Reed’s acknowledgement that he could face an additional felony
if he failed to appear and the court’s admonition that its following the joint
recommendation depended upon the conditions of bond, Reed failed to appear at
sentencing in September 2020. Therefore, bench warrants were issued. Reed finally
appeared for sentencing on July 12, 2023. Sometime between the plea and his
sentencing hearing, he was also charged with failure to appear. On the same day, but
prior to, sentencing, Reed made an oral motion to withdraw his plea – nearly three
years after the plea hearing in July 2020. The trial court held a full hearing in which it
permitted Reed to testify. After full consideration, the trial court denied the oral motion
to withdraw the plea. Instead, the trial court sentenced Reed to 36 months in prison
with a fine of $1,000, and optional post-release control for a period of 2 years. From
this conviction, Reed asserts two assignments of error.
ASSIGNMENTS OF ERROR
I. THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AT THE PLEA HEARING CAUSING THE
DEFENDANT-APPELLANT TO ENTER A PLEA OF GUILTY THAT WAS
NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY MADE IN
VIOLATION OF THE SIXTH AND FOURTH AMENDMENTS OF THE
UNTIED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF
THE OHIO CONSTITUTION.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
DEFENDANT-APPELLANT’S MOTION TO WITHDRAW HIS GUILTY
PLEA.
I. First Assignment of Error
{¶7} In his first assignment of error, Reed claims his court-appointed counsel
was ineffective and thus, his plea was not knowing, voluntary and intelligent.
Specifically, he contends that his counsel did not provide a copy of discovery to him
Scioto App. No. 23CA4041 4
despite his request, and further, that nothing in the record indicates he had talked with
trial counsel about the contents of that discovery. Reed claims that had he received the
discovery, he would not have entered a plea and would have proceeded to trial instead.
The State counters that Reed has not met his burden to show the plea is infirm, and the
sentence imposed was authorized by law. Additionally, the State argues that Reed has
failed to overcome the presumption of effective representation of counsel, or that trial
counsel was not acting within the parameters of sound trial strategy. Further, the State
asserts that Reed’s claims of prejudice are speculative and points out that the trial court
would have sentenced Reed to nine months instead of 36 months if he had simply
shown up at sentencing when ordered to do so.
A. Law
{¶8} “Generally, a guilty plea waives most appealable errors, except, for
example, that a plea was not knowing, intelligent and voluntary.” State v. Wheeler,
2016-Ohio-5503, ¶ 5, quoting State v. Robinson,
2015-Ohio-2635, ¶ 45 (4th Dist.).
Therefore, a guilty plea “waives the right to assert ineffective assistance of counsel
unless the counsel’s errors affected the knowing and voluntary nature of the plea.”
State v. McMichael,
2012-Ohio-3166, ¶ 14 (10th Dist.), citing State v. Hill, 2011-Ohio-
2869, ¶ 15 (10th Dist.), citing State v. Spates,
64 Ohio St.3d 269, 272 (1992).
{¶9} “To establish constitutionally ineffective assistance of trial counsel, a
criminal defendant must show that (1) his counsel's performance was deficient, and (2)
such deficient performance prejudiced his defense and deprived him of a fair trial.”
Wheeler at ¶ 4, citing Strickland v. Washington,
466 U.S. 668, 687 (1984) and State v.
Issa,
93 Ohio St.3d 49, 67 (2001). “ ‘In order to show deficient performance, the
Scioto App. No. 23CA4041 5
defendant must prove that counsel's performance fell below an objective level of
reasonable representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's error, the result of the proceeding would have been
different.’ ” (emphasis omitted)
Id. quoting State v. Conway,
2006-Ohio-2815, ¶ 95.
{¶10} “In considering whether an attorney's performance fell below an objective
standard of reasonableness, a reviewing court ‘must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.’ ”
State v. Jackson, 2025-Ohio-369, ¶ 34 (8th Dist.), citing
Strickland at 689. In addition to
establishing deficient performance, a defendant must show he was prejudiced as a
result of counsel’s actions. State v. Fluhart,
2021-Ohio-2153, ¶ 34 (12th Dist.), citing
State v. Patrick,
2016-Ohio-995, ¶ 13 (12th Dist.), citing
Strickland at 687. In the
context of a guilty plea, “prejudice will not be found unless a defendant demonstrates
there is a reasonable probability that, if not for counsel’s errors, he would not have
entered the plea.”
Id. citing State v. Tribune,
2017-Ohio-1407, ¶ 7 (12th Dist.).
{¶11} Reed asserts that he received ineffective assistance of counsel because
he allegedly did not receive nor discuss discovery with counsel. Therefore, Reed must
show that there is a reasonable probability that he would not have entered his guilty
plea if his trial counsel had provided him with the State's discovery. See State v.
Perkins, 2023-Ohio-139, ¶ 17 (6th Dist.) (where defendant’s claims that he was unable
to review the state’s video evidence prior to entering his guilty plea failed because the
record in the case did not support his claim).
Scioto App. No. 23CA4041 6
B. Analysis
{¶12} Specifically, Reed alleges on appeal that prior to his plea his counsel did
not provide him with discovery, nor did his counsel discuss discovery with him. In the
trial court his claim appears to be that he never saw discovery at any time, despite his
requests, either before or after the plea. However, it is somewhat unclear as to whether
his assertions in the trial court were that his trial counsel did not discuss the contents of
discovery with him at any time. Further, other than his own statements, the record does
not support his claim that he never received discovery.
{¶13} “A defendant’s own self-serving declaration or affidavits are insufficient to
rebut a record that demonstrates that the plea was voluntary.” State v. Jones, 2011-
Ohio-2903, ¶ 35 (7th Dist.), citing State v. Lett, 2010-Ohio-4188, ¶ 33 (7th Dist.). In the
trial court, Reed asserted the basis for his motion to withdraw the plea was that counsel
had not provided him with discovery. However, a thorough review of the record does
not support that claim. First, Reed’s trial counsel at no time indicated she had not
provided or reviewed the discovery with Reed. Second, Reed never mentioned the
issue of not receiving discovery during the pendency of the case (which exceeded three
years) until after he was picked up on a longstanding warrant. Third, the record
indicates that defense counsel sought discovery and the State provided discovery to
defense counsel. Finally, and most importantly, Reed indicated he was satisfied with
his counsel’s advice at the plea hearing.
{¶14} In addition to not affirmatively showing how his counsel was ineffective,
Reed has not established prejudice. At the plea hearing, Reed’s counsel negotiated a
favorable resolution wherein the second count of the indictment was dismissed, for
Scioto App. No. 23CA4041 7
Reed’s plea to the first count. The joint recommendation for sentence was nine months,
and Reed’s counsel also convinced the trial court to allow Reed to report for sentencing
several weeks in the future so he could be with a terminally ill relative. Reed claims on
appeal that his maximum exposure was 48 months, and that since he received 36
months, he may have been willing to risk the additional 12 months had he been
convicted at trial. However, at the plea hearing, the trial court indicated its intentions to
follow the recommended sentence for nine months if Reed showed up for sentencing.
The trial court noted Reed’s sentence was increased to 36 months only after he failed to
appear at the original sentencing and also picked up more felony charges.
{¶15} Further, neither in the trial court nor on appeal does Reed specifically
point to what exactly in discovery would support his claims of “innocence” or that a
motion to suppress would have been successful. Instead, Reed’s claims constitute
mere speculation. “As we have repeatedly recognized, speculation is insufficient to
demonstrate the prejudice component of an ineffective assistance of counsel claim.”
See e.g., State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio-
3123, ¶ 22 (4th Dist.); State v. Simmons,
2013-Ohio-2890, ¶ 25 (4th Dist.). Courts have
overruled similar defense claims of ineffective assistance of counsel when defendants
did not demonstrate prejudice. See, e.g., State v. Perkins,
2023-Ohio-139 (6th Dist.)
(where defendant argued he received ineffective assistance of counsel when his
counsel failed to review with him the State’s video surveillance evidence but failed to
demonstrate prejudice); State v. Reed,
2022-Ohio-2538 (3d Dist.) (where defendant
claimed that his trial counsel was ineffective because he did not discuss the case with
Scioto App. No. 23CA4041 8
him, or timely review discovery with him, but defendant did not show affirmatively how
he was prejudiced). For these reasons, we overrule Reed’s first assignment of error.
II. Second Assignment of Error
{¶16} In his second assignment of error, Reed asserts that the trial court abused
its discretion by denying his pre-sentence oral motion to withdraw his guilty plea entered
almost three years prior. Reed addresses nine factors and claims after consideration of
all those factors, the trial court abused its discretion by denying his motion. He asserts
that certain factors support the withdrawal of the plea, including his claims that (1) he
received ineffective assistance of counsel, (2) he was not guilty, (3) he had not received
discovery such that his plea was not knowing, intelligent and voluntary, and (4) the
State would not be prejudiced by the withdrawal. He further claims he was not given a
full hearing because new counsel should have been appointed for him so that his
previous counsel could have been a witness for him.
{¶17} The State responds that the record reflects the trial court made the correct
findings and applied the appropriate law to deny Reed’s plea. Further, the State asserts
the findings weigh in the State’s favor for denying Reed’s motion. In essence, the State
emphasizes that Reed has not established prejudice because if he had appeared for his
original sentencing hearing, he would have received a lesser sentence. Thus, the
essence of Reed’s motion to withdraw the plea was actually a change of heart.
A. Law
{¶18} Crim.R. 32.1 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
Scioto App. No. 23CA4041 9
to withdraw his or her plea.” “ ‘While trial courts should ”freely and liberally” grant a
presentence motion to withdraw a guilty plea, a defendant does not ”have an absolute
right to withdraw a guilty plea prior to sentencing.” ’ ” State v. Estep, 2024-Ohio-58, ¶ 16
(4th Dist.), quoting State v. Howard,
2017-Ohio-9392, ¶ 21 (4th Dist.), quoting State v.
Xie,
62 Ohio St.3d 521, 527 (1992). “Before ruling on a defendant's presentence motion
to withdraw his plea, the trial court must conduct a hearing to determine whether there
is a reasonable and legitimate basis for withdrawing the plea.” State v. Barnes, 2022-
Ohio-4486, ¶ 13, citing
Xie at 527. “The determination whether there is a reasonable
and legitimate basis for the defendant's request to withdraw his plea is ‘within the sound
discretion of the trial court.’ ” Barnes at ¶ 13, quoting Xie at paragraph two of the
syllabus.
{¶19} A trial court therefore has broad discretion to grant or deny a presentence
motion to withdraw a plea, and appellate courts will not reverse a trial court’s decision
absent an abuse of discretion. Estep at ¶ 17, citing State v. Delaney,
2020-Ohio-7036,
¶ 19 (4th Dist.). “Abuse of discretion” “implies that the court’s attitude is unreasonable,
unconscionable, or arbitrary.”
Estep at ¶ 17, quoting State v. Brown,
2017-Ohio-2647,
¶ 12, citing State v. Adams,
62 Ohio St.2d 151, 157 (1980).
{¶20} Generally, “courts have identified nine factors an appellate court should
consider when it reviews a decision that involves a presentence motion to withdraw a
guilty plea.” Estep. at ¶ 18, citing State v. Smith, 2021-Ohio-4028, ¶ 18 (4th Dist.).
These factors include:
(1) whether “highly competent counsel” represented the defendant; (2)
whether the trial court afforded the defendant “a full Crim.R. 11 hearing
before entering the plea”; (3) whether the trial court held “a full hearing”
regarding the defendant's motion to withdraw; (4) “whether the trial court
Scioto App. No. 23CA4041 10
gave full and fair consideration to the motion”; (5) whether the defendant
filed the motion within a reasonable time; (6) whether the defendant's
motion gave specific reasons for the withdrawal; (7) whether the defendant
understood the nature of the charges, the possible penalties, and the
consequences of his [or her] plea; (8) whether the defendant is “perhaps
not guilty or ha[s] a complete defense to the charges”; and (9) whether
permitting the defendant to withdraw his [or her] plea will prejudice the state.
Estep at ¶ 18, citing State v. Howard,
2017-Ohio-9392 at ¶ 24 (4th Dist.). We have
observed that consideration of these factors is a balancing test wherein no one factor is
conclusive, and further that the list is “non-exhaustive.”
Smith at ¶ 18, citing State v.
Ganguly,
2015-Ohio-845, ¶ 14 (10th Dist.). The ultimate question is whether there is a
“reasonable and legitimate basis for the withdrawal of the plea.”
Id. quoting Xie,
62 Ohio
St.3d at 527. Thus, “[a] mere change of heart is not a legitimate and reasonable basis
for the withdrawal of a plea.”
Id., quoting
Howard at ¶ 24, citing State v. Campbell,
2009-Ohio-4992, ¶ 7 (4th Dist.).
{¶21} In State v. Barnes, 2022-Ohio-4486, the Supreme Court of Ohio
“referenced the nine-factor test” but “neither applied it nor rejected it.”
Estep at ¶ 20.
Instead, the Supreme Court of Ohio 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.” State v. Gutierrez,
2025-Ohio-1884
(4th Dist.), ¶ 46, citing
Barnes at ¶ 24. After Barnes, this court, along with other
districts, have continued “to apply the nine-factor test for withdrawal motions that do not
involve the discovery of evidence that would have affected a defendant's decision to
plead guilty.”
Gutierrez at ¶ 46,
Estep at ¶ 20-21. Thus, we must first determine
whether this case is more similar to Barnes or more consistent with other cases that do
not involve “newly discovered evidence.”
Scioto App. No. 23CA4041 11
{¶22} In Barnes, the accused had always asserted he acted in self-defense but
plead guilty to involuntary manslaughter. Barnes, 2022-Ohio-4486, ¶ 6. At the hearing
on the motion to withdraw, Barnes’ attorneys testified they could not remember
reviewing with him the video footage with audio, and Barnes testified he had not seen
the footage with audio. Additionally, Barnes testified that because of his military
training, the audio supported his claim of self-defense--a complete defense to the
charge.
Barnes at ¶ 8. Barnes moved to withdraw his plea the day of sentencing
(about six weeks after the plea) and did not fail to appear at that sentencing.
Id.
{¶23} In contrast, in the instant case, Reed made an oral motion to withdraw his
plea almost two and a half to three years after sentencing. Reed testified at his hearing
that he did not receive discovery before the plea; however, the trial court determined his
testimony “did not make sense.” Reed’s testimony at the hearing when asked why he
was moving to withdraw his plea is illustrative:
Reed: Well, I asked three years ago for discovery, and I was just blew off,
pretty much. And—because—because I know it—he—there was no right
to even pull me over. . . . And I was on private property.
Defense Attorney: And do you maintain that you are innocent of that
charge?
Reed: Yes.
Defense Attorney: And did—that is the basis for why you’re seeking to
withdraw your former plea of guilty?
Reed: Yes. Because you advised me that—well, you won’t be able to get
off on that. That’s what you told me.
Defense Attorney: Other—any other information—
Reed: And I feel I’ve been greatly misrepresented.
Scioto App. No. 23CA4041 12
Defense Attorney: --like—you would like the Judge to know in support of
your motion?
Reed: Excuse me?
Defense Attorney: Anything else you’d like the Judge to know in support of
your motion to withdraw that plea?
Reed: No, ma’am.
…
Prosecutor: So, the sole basis, as I understand it, and tell me if I’m wrong,
is that you feel that you did not have an opportunity to go over discovery; is
that correct?
Reed: Yes, sir. I asked her three years ago, I said, I would like to have—
have discovery. And she—she didn’t say anything.
…
Court: Well, Mr. Reed, let me ask you a couple questions. So, in 2020 you
thought you’d worked out a good deal and you told me you were guilty;
right?
Reed: Um hmm.
Court: Is that right?
Reed: Yes, sir.
Court: All right. So, you don’t show up for sentencing and now you’ve
caught two more felonies and you’re looking at more time, potentially, and
now you think it’s not a good deal; is that right?
Reed: Yes, Your Honor. Which [sic] all—all due respect to the Court—
Court: I mean, that’s—that’s the difference, right? You told me you were
guilty, and now you want to say you’re not guilty, but the only thing that’s
changed is you didn’t show to court and you got--picked up on two more
felonies?
Reed: Well, see, that’s why I’m asking for discovery. [Well], I’ve been
asking. I asked her last week too.
Court: Well, when I—when you entered your guilty plea you had discovery,
because it was filed a week—over a week before.
Reed: I haven’t seen nothing.
Scioto App. No. 23CA4041 13
Court: Okay. But you still told me you were guilty after it was filed. So
what’s changed?
Reed: Well, being clear mind now. I haven’t used any—
Court: Well, I asked you before if you’d had any drugs or alcohol to use and
you told me, no. Are you telling me now you were lying to me?
Reed: No, sir. I was—
Court: All right. So you—
Reed: --I was under drugs back then, you know, but—but
Court: But at the time of your plea I would have asked you if you’d had
anything to use in the 24 hours before, and you told me, no.
Reed: Because I’d been in jail.
Court: So, your change of heart is based on looking at more time?
Reed: No, sir. That—the trooper had no right to pull me over in the first
place.
Court: Well you – you knew that when – that—if that was your position, you
knew that when you told me you were guilty. So what’s changed –
Reed: No, I did not.
Court: --from the time you told me you were guilty?
Reed: I did not know that, sir.
Court: What’s changed from the time you told me you were guilty?
Reed: I’ve got a clear mind. I know what happened now.
After hearing from Reed, and arguments of counsel, the trial court applied a nine-factor
test and denied the motion to withdraw. Specifically, the trial court determined that
Reed’s stated reason for withdrawal “doesn’t make sense,” and was not a reasonable
basis for withdrawing his plea, because the information was available to Reed at the
time he entered his plea. The court later noted that Reed provided nothing to the court
Scioto App. No. 23CA4041 14
that suggested he was perhaps not guilty of the charges; rather, Reed’s testimony was
that he now wanted to argue grounds for the traffic stop, which was an issue Reed knew
at the time he entered the guilty plea. The court found that the discovery was filed
approximately eight days before the plea, and Reed’s testimony that he “didn’t see it”
was not “credible.”
{¶24} Thus, the instant case differs substantially from Barnes. First, Reed does
not assert a complete defense to the charge, or profess his innocence, instead he
asserts the “trooper had no right” to pull him over, which would involve a suppression
issue. Also, unlike Barnes, Reed’s counsel did not assert that Reed might not have
received discovery. The record shows the discovery was provided timely by the State
and given to defense counsel. Further, from his testimony, it appears Reed addressed
suppression issues with counsel, and his counsel explained that a suppression motion
would probably not be successful (defense counsel told him, “well, you won’t be able to
get off on that”). In fact, Reed claimed he had still not seen discovery before the July
2023 sentencing hearing, even after asking for it a “week before,” yet he claimed he
now knew “what happened.” Finally, the trial court in the instant case found that Reed’s
testimony was not credible, so as matter of fact, the trial court did not believe Reed’s
bald assertion regarding not seeing the discovery or discussing it with counsel. Nothing
other than Reed’s self-serving, conflicting testimony indicates he did not review the
discovery or State’s evidence with his trial counsel.
{¶25} In similar circumstances, other courts have addressed Barnes but also
applied a multi-factored evaluation in instances where the allegation of failure to provide
discovery was the basis for the motion to withdraw the plea and that allegation was
Scioto App. No. 23CA4041 15
questionable. See, e.g., State v. Shepherd, 2025-Ohio-1779 (9th Dist.) (where the Ninth
District found Barnes to be inapposite because in Barnes it was undisputed that
evidence had been withheld from the defendant before he entered his plea, stating that
“[t]he Supreme Court did not address whether Barnes applies when the existence of
newly discovered evidence has been alleged but not established.”); State v. Kendricks,
2024-Ohio-1779 (8th Dist.) (where the Eighth District upheld the application of a multi-
factored evaluation of the trial court’s denial of motion to withdraw plea when defendant
claimed he was innocent and moved to withdraw his plea because he had claimed he
had never been provided discovery (among other complaints about counsel) but the
record reflected discovery had been served).
{¶26} On appeal, both Reed and the State address the nine factors, and we
shall also discuss those in conjunction with his claims that he now “knows what
happened.”
1.
{¶27} The first factor is whether Reed received “highly competent counsel.”
Although Reed claims counsel was ineffective at the plea hearing in his first assignment
of error, he specifically responded at the time of the plea that he was satisfied with the
advice of counsel, and counsel had managed to negotiate a nine-month plea deal for a
third-degree felony for Reed, who had several priors. We addressed this claim in
Reed’s first assignment of error. As noted, Reed claimed counsel did not provide him
with discovery, but counsel did not testify to that effect. In addition, the trial court also
addressed this issue and stated, “Mr. Reed was and is represented by highly effective
Scioto App. No. 23CA4041 16
[c]ounsel,” noting that his attorney had “been an experienced trial lawyer in this county
for a number of years.”
{¶28} The Third District addressed both ineffective assistance of counsel and a
challenge to a motion to withdraw guilty plea upon claims similar to Reed’s, State v.
Pettaway, 2015-Ohio-226, ¶ 13-17, 37-39 (3d Dist.). Like Reed, Pettaway testified that
his counsel had never shared discovery with him in the case. Id. at ¶ 14. Also, like
Reed, Pettaway testified he had requested discovery from his counsel multiple times
without success. Id. Pettaway claimed he first saw the discovery five months after he
had entered his guilty plea, whereas Reed claimed he had never seen it. The Third
District observed that the only evidence in the record that Pettaway had not seen the
discovery came from his own “self-serving testimony.” Like in Reed’s case, the record
indicated that Pettaway’s counsel had received discovery by the State prior to the plea,
and there was no evidence anywhere in the record that during prior court hearings
Pettaway’s counsel failed to show him discovery. Id. at ¶ 15. On the contrary, at the
plea hearing, Pettaway responded to the trial court that he understood the nature of the
charges against him. Id. Pettaway did not inform the trial court he had not received
discovery at that time. Like Reed, Pettaway told the trial court that he was satisfied with
his counsel’s representation at the time he entered his guilty plea. The Third District
therefore overruled Pettaway’s claims of ineffective assistance of counsel and further
overruled his assignment of error involving withdrawal of the plea.
{¶29} The facts in the instant case are almost identical to Pettaway. At no time
during the plea hearing, despite several opportunities to do so, did Reed indicate he had
not received or reviewed the discovery with counsel. Similarly, rather than claim
Scioto App. No. 23CA4041 17
possible innocence of the charges, Pettaway claimed the State lacked probable cause
for a search warrant and other suppression issues (“[Pettaway] testified that “basically
the State doesn’t even have anything,” and claimed “the State lacked probable cause
for the search warrant because in his understanding ‘you can’t get the search warrant
off a hearsay’ or a ‘covert operation on somebody else.’ ” Id. at ¶ 37). The instant case
differs from Pettaway, however, because here, Reed claimed he had never received
discovery. Thus, Reed’s claim that “I know what happened now,” at least two and a half
to three years later, is inconsistent with his claim that the discovery would somehow
show a suppression issue. Such claim was mere speculation, even if one believes
Reed’s claims that he never actually received the discovery. We therefore conclude
that this factor weighs in the State’s favor.
2.
{¶30} The second factor is whether the trial court afforded the defendant a full
Crim.R. 11 hearing before entering the plea. Reed does not challenge this factor on
appeal. A review of the July 31, 2020 transcript of the plea hearing shows that the full
hearing was held on the plea in which the trial court complied with Crim.R. 11. Further,
the trial court discussed this factor in its findings regarding the motion to withdraw the
plea and determined that Reed “was given a full Rule 11 colloquy.” After that colloquy,
Reed clearly stated he was guilty of the charges. Thus, the second factor weighs in the
State’s favor.
3.
{¶31} The third factor is whether the trial court held a “full hearing” on his motion
to withdraw. While it did not schedule a separate hearing on a separate day, Reed did
Scioto App. No. 23CA4041 18
not file a formal motion and the trial court still fully addressed Reed’s oral motion when it
heard testimony from Reed the day of sentencing. Reed asserts on appeal that he was
not given a full hearing because his current counsel should have withdrawn and new
counsel should have been appointed so that current counsel could have been a witness
for Reed’s motion. He does not point to anything in the record to which his new counsel
would have testified that would have supported his motion; counsel did not comment on
Reed’s claims that he did not receive discovery one way or the other.
{¶32} This court has held that “[w]hile Xie states that a hearing is mandatory, it
does not define the type of hearing that is required.” State v. Harmon, 2021-Ohio-2610,
¶ 18 (4th Dist.), quoting State v. Wolfson,
2003-Ohio-4440, ¶ 16 (4th Dist.). Although a
trial court must hold a hearing that complies with at least a minimum mandate of due
process, including meaningful notice and a meaningful opportunity to be heard, the
court still retains discretion to define the scope of the hearing to “reflect the substantive
merits of the motion.”
Id. citing Wolfson at ¶ 16 and State v. Wright,
1995 WL 368319
*6 (4th Dist. June 19, 1995). In addition, “a trial court need not ‘schedule a separate
hearing’ to comply with minimum due process standards.” Id. at ¶ 19, quoting State v.
Glavic,
143 Ohio App.3d 583, 589 (11th Dist. 2001). Instead, a defendant has been
given a full and actual hearing on the merits as long as he has the “opportunity at a
hearing to assert to the court the reasons why [he] should be able to withdraw his plea.”
Id. quoting State v. Maistros,
1982 WL 5253, *3 (8th Dist. Mar. 25, 1982) (internal
citation omitted).
{¶33} The record reflects that Reed did not provide anything other than a self-
serving statement that he did not receive discovery. Despite this fact, his attorney, the
Scioto App. No. 23CA4041 19
State and the trial court itself questioned him at length to determine the basis for his
motion. On appeal, Reed only speculates that had he been given new trial counsel,
then his previous counsel would have testified in a way to support this motion. Reed’s
claim therefore had dubious merit. As a result, the hearing the court held was sufficient,
and this factor weighs in the State’s favor.
4.
{¶34} The fourth factor is whether the trial court gave full and fair consideration
to this motion, and the transcript reveals that the trial court specifically applied the
factors set forth above in determining whether a withdrawal of the plea was appropriate.
This factor also weighs in the State’s favor.
5.
{¶35} Whether the defendant filed the motion within a reasonable time is the fifth
factor. Here, it is clear that Reed entered his guilty plea on July 31, 2020. Although the
negotiated plea was nine months in prison, the trial court allowed a bond modification
before sentencing so that Reed could spend time with a terminally ill relative. The
sentencing was then set for September 2, 2020. At the time of sentencing, Reed failed
to appear, warrants were issued, and Reed did not appear before the court for
sentencing until July 12, 2023. At that time, Reed made an oral motion to withdraw his
plea.
{¶36} The trial court considered this factor and noted that the motion to withdraw
the plea was not made in a timely manner. The trial court found that the first time Reed
even raised the issue was right before the parties came into the courtroom before
sentencing, or, at best, perhaps shortly after the 2023 sentencing hearing was set. The
Scioto App. No. 23CA4041 20
court acknowledged Reed had not appeared before the court for over two and a half
years. The court determined that he had ample time to withdraw the plea, but instead
he chose “to run from the law, run from the jurisdiction of the court to try to put off the
consequences of his actions.” The trial court carefully considered this factor, and it, too,
weighs in the State’s favor.
6.
{¶37} As to the sixth factor, whether the defendant’s motion gave specific
reasons for the withdrawal, weighs in Reed’s favor. Reed stated that he had not
reviewed discovery prior to making the plea, and that he believed law enforcement did
not have the authority to initiate a traffic stop. This factor weighs in Reed’s favor;
however, it does not carry significant weight because he did not indicate with specificity
why he felt a suppression motion would have been successful, and further, he did not
provide anything other than self-serving statements to support his claims.
7.
{¶38} The seventh factor also weighs in favor of the State. Reed at no time
claimed he did not understand the charges, the possible penalties, or the consequences
of the plea.
8.
{¶39} The eighth factor is whether the defendant is “perhaps not guilty” or “has a
complete defense to the charges.” While defense counsel at one point asked Reed in a
leading question whether he was “innocent” of the charges, and Reed answered
affirmatively, his testimony does not bear this out. Instead, it bears out that he did not
believe law enforcement had a legitimate reason to pull him over, and consisted
Scioto App. No. 23CA4041 21
therefore of a suppression issue, even though he stated his defense counsel told him
“well, you won’t be able to get off on that.”
{¶40} As the trial court observed after hearing Reed testify, “I’m going to find the
[d]efendant’s stated reason doesn’t make sense. It’s not a reasonable legal basis for
withdrawing his plea, because his basis for withdrawing his plea would have been
information he had at the time he entered his plea. There was nothing changed since
then, except him having a change of heart because now he’s picked up two more
felonies, and he’s potentially facing more time than what he was originally when he
plead guilty to . . . this charge.” The trial court found as a matter of fact that Reed’s
reasons given constituted a “change of heart,” and that his claims of newly discovered
evidence were not credible. This factor also weighs against Reed, and in the State’s
favor.
9.
{¶41} The ninth and final factor is whether permitting the defendant to withdraw
his plea will prejudice the State. The trial court commented, “[c]ertainly, any time the
State is in a position --two and a half years ago they’re in a position to present a case to
a jury where the recollection was fresh in the minds of the witnesses and the troopers
that were involved in this case, the lab analyst that was involved in this case,” would
cause some prejudice. While the State did not specifically argue at the hearing it would
be prejudiced, such lack of evidence is understandable given the fact that Reed did not
make his motion to withdraw until the shortly before the resentencing hearing.
However, nothing in the record indicates that any witnesses would be unavailable or
that the State would suffer prejudice “beyond the ordinary impact of any defendant’s
Scioto App. No. 23CA4041 22
subsequent withdrawal of a guilty plea.” Gutierrez, 2025-Ohio-1884, ¶ 59 (4th Dist.),
quoting State v. Harris,
2010-Ohio-4127, ¶ 26 (10th Dist.). This factor therefore weighs
in favor of Reed.
{¶42} At the conclusion of the trial court’s consideration of these factors, the
court asked Reed whether he had anything else to say. Reed responded, “I haven’t
seen no discovery of anything. I haven’t seen nothing. I mean, I was there, I know
what happened and the trooper had no reason to pull me over, whatsoever. It was
11:30 at night and when he did hit his lights, I was in my mother’s driveway already.”
Thus, even assuming arguendo Reed had never seen the discovery, he was aware of
any potential suppression issues at the time he was pulled over. These were not newly
discovered “facts,” they were only facts Reed brought to the court’s attention after he
failed to appear for a lengthy period of time.
{¶43} After reviewing these factors, as well as placing special emphasis on the
factor of an allegation of “newly discovered evidence,” we find the trial court did not
abuse its discretion when it denied the motion to withdraw. The trial court’s decision
was not unreasonable, arbitrary, or unconscionable. The only factors which weigh in
favor of granting the motion are that Reed gave specific reasons for the withdrawal, and
the fact there is no evidence in the record that the State would be prejudiced by the
withdrawal. In the instant case, the trial court observed that Reed was not credible, and
the motivation was nothing other than a simple change of heart. The case at bar is
distinguishable from Barnes in that Reed showed neither that he discovered evidence
that (1) his attorney withheld from him or (2) would have negated his decision to plead
guilty had he known about it. The trial court did not abuse its discretion.
Scioto App. No. 23CA4041 23
{¶44} The record supports the finding that the motion to withdraw the plea was
consistent with Reed simply having a “change of heart,” because of the timing of his
motion. When he failed to appear for almost three years, picked up new charges, and
learned he may receive a greater penalty of 36 months, he then requested to withdraw
his plea. For these reasons we overrule the second assignment of error.
CONCLUSION
{¶45} Having overruled both of Reed’s assignments of error, we affirm his
conviction and sentence.
JUDGMENT AFFIRMED.
Scioto App. No. 23CA4041 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
