State v. Fisher , 2019 Ohio 3925 ( 2019 )

[Cite as State v. Fisher, 2019-Ohio-3925.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1162
Appellee Trial Court No. CR0201702729
v.
David Zacharius Fisher DECISION AND JUDGMENT
Appellant Decided: September 27, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Sarah Haberland, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, David Fisher appeals from the June 27, 2018 judgment of the
Lucas County Court of Common Pleas convicting him, following acceptance of his guilty
plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970), to a reduced charge of sexual battery, a violation of R.C. 2907.03(A)(1) and (B).
Appellant was sentenced to a six-year prison term. For the reasons which follow, we
affirm.
{¶ 2} On appeal, appellant asserts the following assignments of error:
I. The Trial Court erred when is [sic] found victim competent to
testify.
II. The Trial Court erred when it accepted an Alford plea that was
not made voluntarily by Defendant.
III. The Trial Court erred when it failed to allow Defendant to
withdraw his Alford Plea.
{¶ 3} In his first assignment of error, appellant argues that the trial court erred
when it found the six-year-old victim was competent to testify at trial. Appellant does
not assert on appeal that the ruling on the competency issue affected the voluntariness of
his Alford plea. Because appellant entered an Alford plea, he has waived any error
related to the trial court’s determination of the competency of a child witness. State v.
Turski, 6th Dist. Lucas No. L-18-1217, 2019-Ohio-3604, ¶ 6. Therefore, we find
appellant’s first assignment of error not well-taken.
{¶ 4} In his second assignment of error, appellant argues the trial court erred when
it accepted an Alford plea to the charge of sexual battery that was not voluntary because
appellant had only 24 minutes to discuss the plea with counsel after the court ruled that
the child was competent to testify.
2.
{¶ 5} The record does not support appellant’s assertion. After consulting with
counsel, appellant indicated on the record that he had reviewed the plea and had enough
time to discuss his defense with counsel and was satisfied with his attorney’s advice.
Therefore, we find the trial court did not err by accepting the plea.
{¶ 6} Appellant’s second assignment of error is found not well-taken.
{¶ 7} In his third assignment of error, appellant argues the trial court abused its
discretion when it denied appellant’s motion to withdraw his Alford plea. Prior to
sentencing, appellant moved to withdraw his plea on the grounds that his counsel failed
to provide him with or explain a defense to the charges. He asserted that his counsel
appeared to work with the prosecutor to obtain a plea.
{¶ 8} There is no absolute right to withdraw a guilty plea after conviction, but
prior to sentencing, and the matter is left to the sound discretion of the trial court. State v.
Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraphs one and two of the syllabus.
We will not reverse the trial court’s denial of the motion unless the defendant can
establish that the trial court abused its discretion. Id. at 525.
{¶ 9} While Crim.R. 32.1 does not give criteria for determining when withdrawal
of a plea is justified, the Ohio Supreme Court has held that “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” Xie at 526. The Ohio
Supreme that has held the denial of a motion to withdraw a guilty plea is not an abuse of
discretion:
3.
[w]here the record affirmatively discloses that: (1) defendant’s guilty plea
was not the result of coercion, deception or intimidation; (2) counsel was
present at the time of the plea; (3) counsel’s advice was competent in light
of the circumstances surrounding the indictment; (4) the plea was made
with the understanding of the nature of the charges; and, (5) defendant was
motivated either by a desire to seek a lesser penalty or a fear of the
consequences of a jury trial, or both, the guilty plea has been voluntarily
and intelligently made.
State v. Piacella, 27 Ohio St.2d 92, 92, 271 N.E.2d 852 (1971), syllabus. We have
previously identified the key factual considerations a trial court should make prior to
ruling on a motion to withdraw a plea:
(1) whether the state will be prejudiced by withdrawal; (2) the
representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to
withdraw; (5) whether the trial court gave full and fair consideration to the
motion; (6) whether the timing of the motion was reasonable; (7) the
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 charge.
State v. Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th
Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001).
4.
A change of heart is an insufficient reason to permit withdrawal of the plea. State v.
Williams, 6th Dist. Lucas No. L-15-1259, 2016-Ohio-4905, ¶ 13.
{¶ 10} When the motion for withdrawal of the plea was asserted in the case, the
trial court questioned appellant’s appointed counsel. Counsel indicated that he had
explored appellant’s potential legal defenses and determined the only viable action was to
file a motion regarding the competency of the child. Counsel provided copies of all
documents to appellant which the state had provided to counsel. Counsel discussed the
state’s evidence with appellant and the pros and cons of the case. Appellant
acknowledged he had a change of heart because he did not want to serve a prison term.
Appellant was unable to provide any explanation for the evidence against him in this
case. The trial court continued the matter for further hearing.
{¶ 11} At a follow-up hearing, appellant indicated that he desired to have the
motion granted so that he could enter a plea which would result in probation because he
pled guilty to an offense which would result in a mandatory prison sentence. The state
responded that a therapist working with the child was concerned that allowing a change
in plea could disrupt the healing process which began after the conviction and the child
knew she would not have to testify. The child had developed serious sleeping disorders
which started to be resolved after the conviction. The therapist is also concerned that
appellant would become involved in the child’s life again before her healing is complete
because he is the father of her half-sibling. Furthermore, the state indicated that even if
the plea was withdrawn, there would not be any offer that would result in an offer to
5.
plead to an offense which would lead to probation. The current plea was the state’s best
and final way to resolve this case short of a trial.
{¶ 12} At a third hearing, the state indicated that if the plea was withdrawn, the
state would proceed to trial. Appellant then discuss the matter for ten minutes with his
counsel. Afterward, appellant at first indicated that he did not want to withdraw his plea
although he reasserted his claim of innocence. When questioned further by the judge,
appellant again requested that the trial court rule on his motion to withdraw his plea.
{¶ 13} Applying the nine considerations noted above, the trial court found: 1) the
state has indicated this young victim was greatly relieved when the plea had been entered
and that her mental health recovery would be negatively affected by allowing appellant to
withdraw his plea; 2) appellant’s counsel is highly competent and was chosen because of
the serious nature of the charge; 3) appellant was given a full Crim.R. 11 hearing before
entering his plea; 4) a full hearing was given on the motion to withdraw the plea; 5) the
trial court gave full and fair consideration of the motion to withdraw the plea; 6) the
motion was made within a reasonable time; 7) the motion set forth the specific reasons
for withdrawing the plea; 8) appellant had understood the nature of the charges and
possible penalties before entering the plea; 9) while appellant asserts that he is innocent,
he has not presented any evidence of that fact in light of the compelling evidence of the
state. Furthermore, the court found that a change of heart is not a legitimate basis for
granting a motion to withdraw a plea.
6.
{¶ 14} On appeal, appellant argues that the state would not have been prejudiced
by a withdrawal of the plea. Appellant asserts it was improper in this case to deny the
motion because of the impact it would have upon the victim.
{¶ 15} Upon a review of the record, and the trial court’s analysis, we find that the
trial court did not abuse its discretion in denying the motion to withdraw. We find the
trial court considered all nine factors. The victim’s mental health in this case was a
relevant fact regarding the issue of whether there would be prejudice to the state because
the victim’s mental health could affect her ability to testify. Therefore, we find
appellant’s third assignment of error not well-taken.
{¶ 16} Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgment of the Lucas County
Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
7.
State v. Fisher
C.A. No. L-18-1162
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.