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Date: 05-02-2021
Case Style:
STATE OF OHIO vs. DONALD CONLEY
Case Number: C-200144
Judge: Marilyn Zayas
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense attorney represented Donald Conley with one count of
aggravated possession of drugs charge
{¶2} On November 15, 2019, Donald Conley was indicted on one count of
aggravated possession of drugs in violation of R.C. 2925.11(A), a felony of the fifth
degree. Conley was arraigned and initially pleaded not guilty. On January 30, 2020,
Conley withdrew his plea of not guilty and entered a plea of guilty. He signed a plea
form which explained, among other things, the charge and degree, the potential
sentence range, and the maximum possible fine. The form also expressed an
agreement that he was satisfied with his attorney’s advice, counsel and competence,
that he understood the rights he was giving up as a result of pleading guilty, and that
he understood that the plea was a complete admission of guilt to the charge.
{¶3} Additionally, the trial court addressed Conley personally after
receiving the plea form and before accepting the plea. The court confirmed Conley
was able to read and write and ensured that his attorney went over the form with
him, explained everything to him and answered any questions he had about it.
Conley expressly agreed that he understood everything contained within the form
and that he himself had signed the form. He also agreed that his attorney explained OHIO FIRST DISTRICT COURT OF APPEALS
3
the constitutional rights he would be giving up by entering the plea and that he
understood those rights.
{¶4} Next, the trial court engaged in the following exchange with Conley:
Court: Are you under the influence of any drugs or alcohol today?
Conley: No, ma’am.
Court: Are you on probation, parole or community control for
anything else?
Conley: Yes.
Court: What for?
Conley: Parole.
Court: Parole for what?
Conley: Robbery.
Court: And do you understand this could be a violation of your
parole?
Conley: Yes, ma’am.
Court: And do you still want to proceed with this?
Conley: Yes, ma’am.
Court: Okay. Are you satisfied with the advice, counsel, and
competence of your attorney?
Conley: Yes, ma’am.
Court: Are you entering this plea of your own free will?
Conley: Yes, ma’am.
Court: Has anyone made any threats or promises to you in order
to get you to plead guilty here today?
Conley: No. OHIO FIRST DISTRICT COURT OF APPEALS
4
Court: Okay. And on this kind of charge, the potential sentence
ranges between six and twelve months in the Department
of Corrections and a maximum fine of $2500. Do you
understand that?
Conley: Yes.
Court: And do you understand what it means when you plead
guilty?
Conley: Yes.
Court: It is a complete admission of the facts contained in the
indictment, and you’re saying you’re guilty, and there won’t
be a trial, and I will find you guilty. Do you understand
that?
Conley: Yes, ma’am.
Court: I have to explain to you about post-release control. You
know what that is already, don’t you?
Conley: Yes.
Court: But I have to tell you anyway, all right?
* * *
Court: Do you understand that?
Conley: Yes, ma’am.
Court: Do you understand that you have the right to have me as
the judge or to have a jury determine your guilt or
innocence?
Conley: Yes, ma’am. OHIO FIRST DISTRICT COURT OF APPEALS
5
Court: At trial, the prosecutor would have to prove your guilt
beyond a reasonable doubt for each and every element of
the crime charged. Your attorney could obtain witnesses to
testify on your behalf at trial, and you can also crossexamine any witnesses to testify against you. Do you
understand that?
Conley: Yes, ma’am.
Court: And obviously you could not be forced to testify against
yourself, and finally an appeal has to be filed within 30
days of sentencing. Do you have any questions?
Conley: No, ma’am.
Court: Do you voluntarily give up all of these rights?
Conley: Yes, ma’am.
{¶5} The court accepted Conley’s guilty plea and continued the case for
sentencing. The court ordered a presentence investigation and psychiatric
examination be completed.
{¶6} The sentencing hearing was held on February 27, 2020. At the start of
the hearing, Conley’s counsel made an oral motion to the court to withdraw his guilty
plea. When asked by the court why Conley wanted to withdraw his plea, Conley’s
counsel stated: “Mr. Conley believes that he was not fully advised of the ramifications
of punishment that he was potentially facing as a result of pleading guilty to the
offense.”
{¶7} The court explained everything they previously went over at the plea
hearing, including the potential sentence range. The following exchange then
occurred: OHIO FIRST DISTRICT COURT OF APPEALS
6
Court: So you’re saying what now? You didn’t understand when
you said you understood.
Conley: I wouldn’t sign a plea if I would have knew [sic] that you
would try to give me a year.
Court: Well, I told you that’s the worst that could happen would
be 12 months in the department of corrections. That’s the
worst that could happen.
Conley: I’ve never been convicted of no prior drug charges to even
get the max.
Court: You’re on post release control now, right?
Conley: Yes.
Court: Yeah. So that’s for a felony, right?
Conley: Yes.
Court: Okay. So I’m not going to allow you to withdraw your plea,
because I know I asked you if you are doing this
voluntarily, and I asked you if anybody had made any
threats or promises to you in order to get you to accept the
plea -- or to make the plea of guilty. I went through all of
that with you. I advised you that you have a right to have a
trial. I went through it all with you, didn’t I?
Conley: Yes, but at the end of the day --
Court: Yes?
Conley: -- I told my attorney if you were gonna [sic] give me six to
twelve months I wasn’t going to sign that paper.
Court: Well, that’s always the potential on this fifth degree felony. OHIO FIRST DISTRICT COURT OF APPEALS
7
Conley: But that’s not why I signed it.
Court: I can’t tell you what I’m going to do. That’s just the way it
is. So I’m not going to vacate the plea. So we are going to
proceed with sentencing today.
{¶8} The court then heard arguments in support of mitigation. Conley
offered that he was only in possession of one pill and that he was unaware that he
had the pill on his person at the time he was taken into custody. He explained that
he was using the pill as a mood stabilizer “to mitigate his behavioral and mental
health issues.” He also stated that he did not know the pill contained
methamphetamine.
{¶9} After mitigation, the court discussed Conley’s upcoming hearing for
violating his postrelease control and the three arrests he had had since being placed
on postrelease control. The court then sentenced Conley to 12 months in the
Department of Corrections, with credit for time served.
Law and Analysis
{¶10} In his first assignment of error, Conley argues the trial court abused its
discretion when denying his request to withdraw his guilty plea.
{¶11} We review a trial court’s ruling on a motion to withdraw a guilty plea
for an abuse of discretion. State v. Haywood, 1st Dist. Hamilton No. C-130525,
2014-Ohio-2801, ¶ 5, citing State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715
(1992). “An abuse of discretion ‘connotes more than an error of law or of judgment;
it implies an unreasonable, arbitrary or unconscionable attitude on the part of the
court.’ ” Haywood, quoting Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199
(1982). OHIO FIRST DISTRICT COURT OF APPEALS
8
{¶12} When determining whether a trial court abused its discretion in ruling
on a motion to withdraw a guilty plea, we consider the following factors: (1) whether
the defendant was represented by highly competent counsel; (2) whether the
defendant was accorded a complete Crim.R. 11 hearing before pleading guilty; (3)
whether the trial court held a hearing on the motion to withdraw in which it gave full
and fair consideration to the motion; (4) whether the defendant timely filed the
motion to withdraw and supported it with specific reasons for withdraw; (5) whether
the defendant was possibly not guilty of, or could offer a complete defense to, the
charges, and (6) whether granting the motion would result in prejudice to the state.
Haywood at ¶ 5, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st
Dist.1995), and State v. Sykes, 1st Dist. Hamilton No. C-060277, 2007-Ohio-3086, ¶
10.
{¶13} Presentence motions to withdraw a guilty plea should be freely and
liberally granted; however, a defendant does not have an absolute right to withdraw
his guilty plea. Haywood at ¶ 5, citing Xie at 527. A trial court must conduct a
hearing to determine if there is a reasonable and legitimate basis for the withdrawal
of the plea. Xie at 527. The scope of the hearing “should reflect the substantive merit
of the motion itself.” State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st
Dist.2001). The decision whether to grant the motion is within the sound discretion
of the trial court. Crider v. Maxwell, 174 Ohio St. 190, 191, 187 N.E.2d 875 (1963).
{¶14} Conley argues that the trial court did not conduct a hearing on his
motion to withdraw his plea. We disagree. Conley made the motion to withdraw his
plea orally to the court at the start of the sentencing hearing. Conley’s counsel
explained that he was requesting to withdraw his plea because Conley felt he was not
fully advised of the possible punishment he was facing. The court responded by OHIO FIRST DISTRICT COURT OF APPEALS
9
asking Conley questions to determine the basis for his motion. Although brief, the
court heard Conley’s arguments for the motion and considered the substance of the
motion during a hearing, for which they were already present. There is no indication
the court did anything to foreclose or limit Conley’s ability to be heard on his motion.
Conley had the same opportunity to be heard that he would have had at a separately
scheduled hearing.
{¶15} The crux of Conley’s argument to the trial court in support of his
motion was that he did not think the court would actually sentence him to prison
time. He never argued that he did not understand that a prison term was a possible
punishment or that he did not understand the possible sentence range if a prison
term was imposed. Rather, he did not believe the court would actually impose a
prison sentence.
{¶16} “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.” (Citation omitted.) State v. Lambros,
44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).
{¶17} The record reveals no basis to conclude that the trial court abused its
discretion when denying Conley’s motion to withdraw his guilty plea. Accordingly,
we overrule the first assignment of error.
{¶18} In his second assignment of error, Conley contends the record does not
support the trial court’s sentence of a term of 12 months in prison.
{¶19} Under R.C. 2953.08(A), a defendant who is convicted of or pleads
guilty to a felony may appeal his sentence as a matter of right when his sentence
includes a prison term, and the offense for which it was imposed was a fourth- or
fifth-degree felony or was a felony drug offense in violation of a provision of R.C. OHIO FIRST DISTRICT COURT OF APPEALS
10
Chapter 2925 and is specified as being subject to R.C. 2929.13(B) for purposes of
sentencing.
{¶20} This court reviews sentences 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).
{¶21} In this case, Conley pleaded guilty to one count of aggravated
possession of drugs in violation of R.C. 2925.11(A). Aggravated possession of drugs
is a felony of the fifth degree and is subject R.C. 2929.13(B) in determining whether
to impose a prison term on the offender. R.C. 2925.11(C)(1)(a).
{¶22} R.C. 2929.13(B)(1)(b) provides the trial court with discretion to impose
a prison term “upon an offender who is convicted of or pleads guilty to a felony of the
fifth degree that is not an offense of violence,” if any one of the nine conditions listed
in the statute are met. One of the permissible conditions is that “the offender at the
time of the offense was serving, or the offender previously had served, a prison
term.” R.C. 2929.13(B)(1)(b)(ix). A trial court is not required to make findings
under this section before imposing a prison term. State v. Hamilton, 1st Dist.
Hamilton No. C-140290, 2015-Ohio-334, ¶ 8; accord State v. Henselee, 5th Dist.
Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 15; contra State v. Alicea, 11th
Dist. Ashtabula No. 2017-A-0078, 2018-Ohio-3531, ¶ 17. For a felony of the fifth
degree, the prison term shall be a definite term of six to 12 months. R.C.
2929.14(A)(5). OHIO FIRST DISTRICT COURT OF APPEALS
11
{¶23} Here, the record shows that the trial court was aware that Conley was
on postrelease control for a previously served prison term. Accordingly, the trial
court used its discretion to impose the maximum allowable prison term for a felony
of the fifth degree. There is nothing to indicate that the trial court’s finding under
R.C. 2929.13(B) was not supported by the record or was otherwise contrary to law.
{¶24} Conley argues that the trial court’s sentence was not supported by the
record because the trial court failed to properly consider the statutory sentencing
factors under R.C. 2929.11 and 2929.12. However, the Ohio Supreme Court has
recently held that 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, Slip Opinion
No. 2020-Ohio-6729, ¶ 39.
{¶25} We can presume the trial court considered the statutory factors absent
an affirmative demonstration in the record showing otherwise. State v. Savage, 1st
Dist. Hamilton No. C-180413, 2019-Ohio-4859, ¶ 12. The record shows the trial
court ordered a presentence investigation and a psychiatric report prior to
sentencing and listened to arguments in support of mitigation. Therefore, the record
does not demonstrate that the trial court failed to consider the statutory factors.
Beyond that, under Jones, we are not permitted to independently weigh the statutory
sentencing factors in R.C. 2929.11 and 2929.12 and substitute our judgment for that
of the trial court. Jones at ¶ 30.
{¶26} Upon careful review of the record, we conclude that the sentence was
supported by the record and not contrary to law. Accordingly, we overrule the
second assignment of error. OHIO FIRST DISTRICT COURT OF APPEALS
Outcome: Having considered and overruled Conley’s two assignments of error,
we affirm the judgment of the trial court.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: