State v. Rosemond , 2023 Ohio 848 ( 2023 )

[Cite as State v. Rosemond, 2023-Ohio-848.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220235
TRIAL NO. B-2002483
Plaintiff-Appellee, :
vs. : O P I N I O N.
DEMETRIUS ROSEMOND, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 17, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Demetrius Rosemond appeals his conviction for having a weapon while
under a disability after a guilty plea. In two assignments of error, Rosemond argues
that the trial court abused its discretion by overruling his presentence motion to
withdraw his plea and erred by imposing a maximum sentence. For the following
reasons, we affirm the trial court’s judgment.
Factual Background
{¶2} Demetrius Rosemond was charged with having weapons while under a
disability, carrying concealed weapons, and improperly handling firearms in a motor
vehicle. Rosemond agreed to plead guilty to the weapons-under-a-disability charge,
and in exchange, the state agreed to dismiss the other two charges. After accepting
the guilty plea, the trial court continued the matter for sentencing.
{¶3} When Rosemond failed to appear for sentencing, the trial court issued
a warrant for his arrest and allowed defense counsel to withdraw from the case. One
month later, Rosemond turned himself in, and at the next hearing, Rosemond’s new
counsel represented to the court that Rosemond missed the sentencing hearing
because he was hospitalized for Covid at Christ Hospital or Jewish Hospital. The
sentencing was continued to allow counsel to procure Rosemond’s medical records to
establish the hospitalization. The trial court issued subpoenas to the hospitals to
obtain the medical records, but Rosemond was unable to produce any medical records
of a hospitalization.
{¶4} At the next hearing, Rosemond moved to withdraw his plea due to
“representations * * * dealing with his old attorney.” Defense counsel further
explained that Rosemond “didn’t understand the full ramifications and consequences
of his plea at that time based upon representations of counsel.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The trial court overruled the motion because the court conducted “a
thorough evaluation and examination at each and every plea. The defendant was fully
notified. The defendant is no stranger to court proceedings. The defendant
understood the ramifications of entering that plea.” The court noted that an
exhaustive search of the local hospitals failed to yield any medical documents
establishing a Covid hospitalization. The court further found that “the defendant was
never [hospitalized] during the time of his sentencing; thus validating my suspicion
that he simply capiased and did not appear and is now having second thoughts because
he got caught and has been picked up.” The trial court sentenced Rosemond to a
prison term of three years.
Motion to Withdraw Plea
{¶6} In his first assignment of error, Rosemond contends that the trial court
abused its discretion by overruling his presentence motion to withdraw his plea.
{¶7} “A presentence motion to withdraw a guilty plea should be freely and
liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
However, a defendant does not have an “absolute right” to withdraw his plea, even
when a motion to withdraw is made before sentencing. Id. at paragraph one of the
syllabus.
{¶8} Before ruling on a presentence motion to withdraw a plea, the trial court
must conduct a hearing to determine whether the defendant has a reasonable and
legitimate basis for withdrawing the plea. Id. 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.” Id. at paragraph two of the syllabus. Absent an abuse of
discretion on the part of the trial court in making its ruling, its decision must be
affirmed. Id. at 526.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In determining whether the court abused its discretion, we consider the
following factors: (1) whether the defendant was represented by highly competent
counsel; (2) whether the defendant was afforded a complete Crim.R. 11 hearing when
entering the plea; (3) whether the trial court conducted a full and impartial hearing on
the motion to withdraw; (4) whether the trial court gave full and fair consideration to
the motion to withdraw; (5) whether the motion was made within a reasonable time;
(6) whether the motion included specific reasons for withdrawing the plea; (7) whether
the defendant understood the charges and possible penalties; (8) whether the
defendant had a complete defense to the charges; and (9) whether the state would be
prejudiced by the withdrawal. State v. Jefferson, 1st Dist. Hamilton No. C-020802,
2003-Ohio-4308, ¶ 7, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788(1995).
{¶10} Here, the court conducted a hearing and considered the relevant factors.
Rosemond’s counsel represented that there was a misunderstanding of “the full
ramifications and consequences of his plea at that time based upon representations of
counsel,” but did not specify the nature of the alleged misunderstanding. Moreover,
the trial court engaged in a thorough colloquy with Rosemond before accepting the
plea to ensure that he knew the consequences of the plea.
{¶11} The trial court concluded that Rosemond did not have a reasonable and
legitimate basis to withdraw the plea. Rather, he was motivated by the potential
consequences of missing the sentencing hearing and failing to provide proof that he
missed the hearing because he was hospitalized. “A defendant who has a change of
heart regarding his guilty plea should not be permitted to withdraw his plea just
because he is made aware that an unexpected sentence is going to be imposed.” State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Conley, 1st Dist. Hamilton No. C-200144, 2021-Ohio-837, ¶ 16, citing State v.
Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).
{¶12} Based on this record, the trial court did not abuse its discretion in
overruling the motion to withdraw the plea. We overrule the first assignment of error.
Sentence
{¶13} In his second assignment of error, Rosemond asserts that the trial court
erred by imposing a maximum sentence. Specifically, Rosemond argues the record
does not support his sentence under R.C. 2929.11 and 2929.12.
{¶14} Sentences are reviewed under the standard set forth in R.C.
2953.08(G)(2). Under this standard, an appellate court may increase, reduce or
otherwise modify a sentence, or may vacate the sentence and remand the matter to the
sentencing court for resentencing, if the court clearly and convincingly finds that (1)
the record does not support the sentencing court’s findings under R.C. 2929.13(B) or
other relevant statutes, or (2) if the sentence is contrary to law. R.C. 2953.08(G)(2)(a).
However, R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by the
record under R.C. 2929.11 or 2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 39.
{¶15} Rosemond argues that the sentence on the felony was not supported by
the record. However, Jones precludes an appellate court from modifying or vacating
a sentence based on its view that the sentence is not supported by the record. See id.
at ¶ 30. Therefore, we overrule the second assignment of error.
Conclusion
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Having overruled Rosemond’s two assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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