[Cite as State v. Edwards,
2023-Ohio-3213.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-11
PLAINTIFF-APPELLEE,
v.
ZACHERY LEE EDWARDS, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2021-CR-0196
Judgment Affirmed
Date of Decision: September 11, 2023
APPEARANCES:
Alison Boggs for Appellant
Andrew M. Bigler for Appellee
Case No. 14-23-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Zachery L. Edwards (“Edwards”) appeals the
judgment of the Union County Court of Common Pleas, alleging that the trial court
erred by denying his motion to withdraw his plea. For the reasons set forth below,
the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On September 30, 2021, Edwards was indicted on seven counts of rape
in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree, and two counts of
rape in violation of R.C. 2907.02(A)(2), felonies of the first degree. On August 11,
2022, Edwards pled guilty to two counts of rape in violation of R.C.
2907.02(A)(1)(b). The remaining seven counts in the indictment were then
dismissed at the request of the State.
{¶3} On October 28, 2022, Edwards appeared for his sentencing hearing and
made an oral motion to withdraw his guilty pleas. In response, the trial court
rescheduled the sentencing hearing. On February 23, 2023, the trial court held a
hearing on Edwards’s motion to withdraw. Neither party presented any testimony
at this hearing. On March 6, 2023, the trial court denied Edwards’s motion to
withdraw his guilty plea. The trial court issued its judgment entry of sentencing on
March 14, 2023.
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Assignment of Error
{¶4} Edwards filed his notice of appeal on April 12, 2023. On appeal, he
raises the following assignment of error:
The trial court erred when it overruled appellant’s oral motion to
withdraw his plea before he was sentenced.
Edwards asserts that the factors courts are to consider in evaluating motions to
withdraw pleas weigh in his favor.
Legal Standard
{¶5} Under Crim.R. 32.1, a defendant may make a motion to withdraw a
guilty plea before his or her sentence is imposed.
‘A presentence motion to withdraw a guilty plea should be freely and
liberally granted.’ … A defendant does not, however, have an
‘absolute right’ to withdraw his or her plea, even when a motion to
withdraw is made before sentencing.
State v. Barnes, --- Ohio St.3d ---, 2022-Ohio-4486, --- N.E.3d ---, ¶ 13, quoting
State v. Xie,
62 Ohio St.3d 521, 527,
584 N.E.2d 715 (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.”
Barnes at ¶ 13.
{¶6} “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. For
this reason, a trial court’s ruling on a motion to withdraw a guilty plea will not be
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reversed in the absence of an abuse of discretion. Id. “An abuse of discretion is not
merely an error of judgment.” State v. Sullivan,
2017-Ohio-8937,
102 N.E.3d 86, ¶
20 (3d Dist.). “Rather, an abuse of discretion is present where the trial court’s
decision was arbitrary, unreasonable, or capricious.” State v. Howton, 3d Dist. Allen
No. 1-16-35,
2017-Ohio-4349, ¶ 23. “When the abuse of discretion standard
applies, an appellate court is not to substitute its judgment for that of the trial court.”
State v. Richey,
2021-Ohio-1461,
170 N.E.3d 933, ¶ 40 (3d Dist.).
Legal Analysis
{¶7} On review, appellate courts have typically relied upon a list of nine
factors to evaluate a trial court’s decision on a motion to withdraw a plea. These
nine factors are as follows:
(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. Bingham, 2019-Ohio-3324,
141 N.E.3d 614, ¶ 42 (3d Dist.). See State v.
Fish,
104 Ohio App.3d 236, 240,
661 N.E.2d 788 (1st Dist. 1995), overruled on
other grounds by State v. Sims,
2017-Ohio-8379,
99 N.E.3d 1056 (1st Dist.); State
v. Peterseim,
68 Ohio App.2d 211,
428 N.E.2d 863 (8th Dist. 1980).
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{¶8} However, in State v. Barnes, the Ohio Supreme Court stated that this
nine-factor analysis was not applicable in a situation where the defendant became
aware of new evidence that would have affected his decision to enter a plea. In the
wake of this decision, several of our sister appellate districts have concluded that
the nine-factor analysis continues to apply outside of the situations that are factually
similar to the distinct set of circumstances described in Barnes. State v. Wroten,
2023-Ohio-966,
211 N.E.3d 842, ¶ 31 (2d Dist.); State v. Kohler, 5th Dist. Delaware
No. 22 CAA 10 0068,
2023-Ohio-1772, ¶ 14-15; State v. Grier, 6th Dist. Lucas No.
L-21-1263,
2023-Ohio-207, ¶ 26; State v. Johnson, 8th Dist. Cuyahoga No. 111448,
2023-Ohio-371, ¶ 43. See also State v. Wallace, 3d Dist. Henry No. 7-23-04, 2023-
Ohio-3014, ¶ 30-33.
{¶9} In reaching this conclusion, our sister districts have noted that the Ohio
Supreme Court did not reject or overrule the nine-factor analysis but simply
concluded that these “factors do not apply here.” Johnson at ¶ 43, quoting Barnes,
supra, at ¶ 24. Finding the reasoning of these other decisions to be persuasive, we
join our sister districts in continuing to apply the nine-factor analysis to cases that
do not present a situation that is factually similar to Barnes.
Wroten at ¶ 31; Kohler
at ¶ 15; Grier at ¶ 26; Johnson at ¶ 44-45. Since Edwards has not alleged that he
became aware of new evidence that would have affected his decision to enter a plea,
we will use the nine-factor analysis to evaluate the trial court’s decision.
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{¶10} Whether withdrawal will prejudice the prosecution: In its brief, the
State concedes that it did not argue the prosecution would be prejudiced by the
withdrawal of the guilty plea and suggests that this factor should weigh in favor of
the defendant. However, the trial court concluded that this factor “adds weight to
the denial of Defendant’s motion.” (Doc. 70).
{¶11} The representation afforded to the defendant by counsel: During the
course of this case, Edwards was represented by attorneys from three different firms.
In its judgment entry, the trial court conducted an extensive summary of Edwards’s
representation, concluding that these attorneys were experienced in criminal law
and were “highly competent.” (Doc. 70).
{¶12} The extent of the hearing held pursuant to Crim.R. 11: On August 12,
2022, the trial court engaged Edwards in a thorough Crim.R. 11 colloquy. When
asked to enter his plea, Edwards hesitated, indicating that he did not feel that he
could proceed. The trial court then gave Edwards time to confer with defense
counsel. After returning to the courtroom, the trial judge explained the substance
of the Crim.R. 11 colloquy again. Edwards then indicated that he wanted to proceed
and enter a plea of guilty. In its decision, the trial judge concluded that Edwards
was given a full Crim.R. 11 hearing.1
1
A visiting judge who did not preside over the Crim.R. 11 colloquy decided the motion to withdraw.
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{¶13} The extent of the hearing on the motion to withdraw the plea: In this
case, the trial court held a hearing on the motion to withdraw, giving the State and
the Defense an opportunity to present evidence. The Defense chose not to present
any testimony. Rather, the parties opted to submit a recording of the Crim.R. 11
colloquy. The trial court reviewed this recording in the process of reaching a
decision on this motion.
{¶14} Whether the trial court gave full and fair consideration of the motion:
The trial court’s judgment entry indicates that it considered the arguments of the
parties and viewed the exhibit submitted at the hearing before reaching a decision.
The judgment entry examines the applicable factors and fully explains the trial
court’s reasons for denying Edwards’s motion.
{¶15} Whether the timing of the motion was reasonable: Edwards made his
motion to withdraw on the date of his sentencing hearing. According to its brief,
the State does not believe that, under the facts of this case, the timing of this motion
was unreasonable. The trial court does not appear to have relied upon this factor in
reaching its decision on this motion.
{¶16} The stated reasons for the motion: The defendant did not give any
reasons for his motion to withdraw at the hearing other than that he “felt rushed to
make the decision ….” (Tr. 4). However, in this case, the trial court gave
Edwards time to confer with defense counsel during the Crim.R. 11 colloquy. After
being allowed time to review the plea agreement with his attorney, the trial court
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explained a second time the consequences of pleading guilty. Edwards then chose
proceed.
{¶17} Whether the defendant understood the nature of the charges and
potential sentences: At the Crim.R. 11 colloquy, the trial court thoroughly
explained the nature of the charges against Edwards and the potential penalties
before giving him time to confer with counsel. After this consultation, the trial court
reviewed most of these details a second time. Edwards affirmed that he understood
the nature of the charges against him and each of the potential penalties he could
face. He also stated that he had no questions about the content of the Crim.R. 11
colloquy.
{¶18} Whether the accused was perhaps not guilty or had a complete defense
to the charges: At the hearing on the motion to withdraw, defense counsel asserted
that Edwards maintained his innocence of the charges. In response, the State
pointed out that he had admitted “to the PSI writer … that he did in fact have
sexual conduct with the victim while she was under the age of 13.” (Tr. 6). The
State then argued that his claim of innocence at the hearing contradicted his own
admissions. At this hearing, Edwards did not identify any evidence or raise any
arguments that would suggest that he has a complete defense to the charges against
him.
{¶19} In this case, Edwards did not provide the trial court with a reasonable
or legitimate basis for his motion to withdraw his guilty plea in this case. Without
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more, “a ‘change of heart’ is not sufficient justification to withdraw a plea.” State
v. Martre, 3d Dist. Allen No. 1-18-61, 2019-Ohio-2072, ¶ 12. See State v. Burress,
4th Dist. Lawrence No. 21CA19,
2022-Ohio-2920, ¶ 7 (“A mere change of heart is
not a legitimate and reasonable basis for the withdrawal of a plea.”). Having
examined the evidence in the record under the applicable nine-factor analysis, we
cannot conclude that the trial court abused its discretion in denying Edwards’s
motion to withdraw his guilty plea in this case. Accordingly, his sole assignment of
error is overruled.
Conclusion
{¶20} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Union County Court of Common Pleas is
affirmed.
Judgment Affirmed
MILLER, P.J. and WALDICK, J., concur.
/hls
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