COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70686 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES SIDNEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JULY 3, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-330782 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public NORMAN KOTOCH, ESQ. Defender Assistant County Prosecutor ROBERT R. CLARICO, ESQ. 8th Floor, Justice Center Assistant Public Defender 1200 Ontario Street 100 Lakeside Avenue Cleveland, OH 44112 1200 West Third Street Cleveland, OH 44113-1569 JAMES SIDNEY Inmate No. 321-813 Lima Correctional Inst. P.O. Box 4571 Lima, OH 45802 - 2 - PATTON, P.J. Defendant-appellant James Sidney appeals the decision of the trial court denying his motion to withdraw a guilty plea. Defendant claims the trial court abused its discretion in denying his motion because he had a legitimate basis to support his motion. On November 29, 1995, defendant was indicted on one count of drug abuse in violation of R.C. 2925.11. At his arraignment on December 29, 1995, defendant pleaded not guilty. Three months later, on March 11, 1996, defendant was in court represented by counsel. Defendant initially expressed a desire to plead no contest but after discussions with counsel, he agreed to enter a plea of guilty. Defendant indicated he was entering his plea freely and voluntarily. The trial court then conducted a Crim.R. 11 inquiry. Defendant was informed of the possible sentences he faced and the following rights he was waiving: jury or bench trial, to summon witnesses on his own behalf, to remain silent, and to confront and question the state's witnesses. Defendant indicated he understood the effect of waiving these rights and sentencing was set for April 9, 1996. On April 3, 1996, defendant filed a motion to withdraw his guilty plea, the trial court denied this motion. At the sentencing hearing defendant again moved the trial court to allow him to withdraw his guilty plea. Defendant asserted that when he pleaded guilty, he was under tremendous stress because his wife was about - 3 - to have surgery for breast cancer and he had to rush home to assist her; therefore, he was not thinking clearly when he pleaded. Defendant also alleged he was promised probation and he went on to explain that he was innocent and wished to go to trial. The trial court denied defendant's motion to withdraw his plea, based on a number of reasons. First, the court had previously explained to defendant in great detail the rights he was waiving via the Crim.R. 11 inquiry. After the court explained in great detail to defendant these rights he was waiving the court summarized as follows: THE COURT: I don't know if you answered that last question, Mr. Sidney, but has anyone suggested you should change your plea for some strange reason, or are you doing this of your own free will? MR. SIDNEY: Own free will. THE COURT: All right. Now, I just want to go over this very quickly with you. You are giving up your right to trial by jury: and you're giving up your right to see, hear and question the witnesses; you're giving up your right to summon witnesses in your own behalf; and you're giving up your right to remain silent; do you understand that? MR. SIDNEY: Yes, sir. THE COURT: And you subject yourself to these penalties that we've already discussed, do you understand that? MR. SIDNEY: Yes, sir. * * * THE COURT: Are you pleading guilty because you are guilty? In other words, you are in fact guilty of the crime of drug abuse? MR. SIDNEY: Yes, sir. THE COURT: All right. James Sidney, how do you plead to the felony crime of drug abuse, a felony of the fourth degree in violation of Revised Code 2925.11 in CR-330782, date of - 4 - offense, June 16, 1995, in that you did unlawfully and knowingly obtain, possess or use a controlled substance, to wit: Cocaine, a Schedule II drug being less than the bulk amount, and how do you plead, guilty or not guilty? MR. SIDNEY: Guilty. THE COURT: You plead guilty? MR. SIDNEY: Yes. Yes. Second, the court stated it had to issue two arrest warrants before defendant appeared in court, which follows a pattern of not appearing in court which was evident from his police report. Third, defendant admitted his guilt when he stated in the probation report that he possessed three rocks of cocaine. Fourth, defendant has an extensive criminal record. Including convictions dating from 1972 through 1976, an active contempt of court warrant in Cleveland Municipal Court for six traffic violations, an outstanding warrant for his arrest in Toledo for unauthorized use of a motor vehicle with a count for trespassing, an outstanding contempt of court traffic warrant in Morrow County from May of 1995, and he was charged and convicted in Shaker Heights of obstructing police and contempt of court in 1992. Defendant was then sentenced to a one year term of incarceration and this appeal timely followed. In his sole assignment of error defendant states as follows: THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA. - 5 - Defendant argues first that he was entitled to a hearing on his initial motion to withdraw a guilty plea. Second, defendant claims the trial court abused its discretion in denying his motion to withdraw a guilty plea. The state argues the trial court did not abuse its discretion in denying defendant's motion to withdraw a guilty plea because defendant merely had a "change of heart" which is not an appropriate basis upon which to grant such a motion. Crim.R. 32.1, which governs motions to withdraw guilty pleas, reads: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." Thus, the rule gives a standard by which postsentence withdrawals of guilty pleas may be evaluated -- the "manifest injustice" standard. However, the rule itself gives no guidelines for a trial court to use when ruling on a presentence motion to withdraw a guilty plea. Ohio's Crim.R. 32.1 is very similar to Fed.R.Crim.P. 32(d). In State v. Xie (1992), 62 Ohio St.3d 521, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, the Ohio Supreme Court discussed the two and stated the standard for granting a pre-sentence motion to withdraw a guilty plea: "Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated - 6 - with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. (Citations omitted.) Id. at 1223, quoted in State v. Peterseim (1980), 68 Ohio App.2d 211, 213-214." Defendant argues he was entitled to a hearing on his initial motion to withdraw his guilty plea. After defendant entered his plea of guilty but before the sentencing hearing defendant filed a motion to withdraw his guilty plea. The court denied this motion and did not hold a hearing, presumably because defendant was due in court for sentencing in two and 1/2 weeks and he could make the motion to withdraw his guilty plea at that time. On April 18, 1996 defendant appeared in court for sentencing with counsel and made an oral motion to withdraw his guilty plea. The court listened as defense counsel explained that defendant's wife was having surgery and because of the pressure of the surgery defendant pleaded guilty. Defendant then addressed the court and reiterated what defense counsel had said. The court denied this motion for the reasons stated above. Defendant was provided a hearing to present his motion to withdraw his guilty plea therefore this argument fails. Lastly, defendant complains the trial court abused its discretion in denying his motion to withdraw his guilty plea. - 7 - Defendant claims the stress of his wife's surgery is what caused him to plead guilty. Yet, at the plea hearing defendant voluntarily entered his guilty plea and made no mention of his wife's surgery or any kind of stress he was experiencing. The record indicates defendant merely had a change of heart based on the fact that he thought he would get probation between the time he entered his plea and sentencing. A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a guilty plea. State v. Lambros (1988), 44 Ohio App.3d 102, 103. Based on the foregoing, defendant's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J. PARRINO, J.*, CONCUR. PRESIDING JUDGE JOHN T. PATTON (*SITTING BY ASSIGNMENT: THOMAS J. PARRINO, RETIRED JUDGE OF COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT). N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .