[Cite as State v. Blankenship,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29068 : v. : Trial Court Case No. 2019-CR-2703 : STEVEN BLANKENSHIP : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 8th day of October, 2021.

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MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45422 Attorney for Defendant-Appellant

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EPLEY, J. -2-

{¶ 1} Defendant-Appellant Steven Blankenship appeals from his convictions

following his guilty plea to robbery, misdemeanor assault, and misdemeanor domestic

violence. He claims that the court erred in denying his pre-sentence motion to withdraw

his guilty plea. For the reasons that follow, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} On August 14, 2019, Thomas Jones was mowing the lawn of Carole Crow,

his elderly, wheelchair-bound neighbor, when Crow’s son, Blankenship, came outside

and confronted him. Blankenship demanded that Jones stop mowing and, when he did

not immediately stop, Blankenship threw a punch. The swing missed Jones, who hurled

a punch of his own at Blankenship. Blankenship then pulled a knife on Jones and

threatened to “gut” him. Jones retreated to his residence.

{¶ 3} Blankenship stormed into his mother’s house and stated that he was going

to get his Aryan Nation brothers to kill both her and Jones. He then went into Crow’s

bedroom and took a revolver from her nightstand. As she attempted to take the firearm

away from her son, Blankenship grabbed Crow by the wrists and twisted her arms until

she relented. Blankenship then left the house with the gun.

{¶ 4} Less than two weeks later, Blankenship was indicted on four counts: robbery,

a second-degree felony; theft of a firearm, a third-degree felony; first-degree

misdemeanor assault; and first-degree misdemeanor domestic violence. Crow was

identified as the victim of the robbery, theft, and domestic violence counts, while Jones

was listed as the victim of the assault. According to the record, a suppression hearing

was held, but not finished, on September 27, 2019. Before the hearing could be -3-

completed, Blankenship agreed to plead guilty to the robbery, assault, and domestic

violence charges; the State agreed to dismiss the theft count.

{¶ 5} A pre-sentence investigation was ordered by the court, and a sentencing

hearing was scheduled for January 27, 2020. Before the case reached its disposition,

however, Crow passed away. Resultantly, on January 21, 2020, Blankenship filed a

motion to withdraw his guilty plea, but only as to the robbery and domestic violence

charges – the counts of which Crow was the victim. The stated reason: “the passing of

the complaining witness/mother and the consequential lack of evidence.” Appellant’s

January 21, 2020 Motion to Withdraw Plea. He remained willing to plead guilty to the

assault charge of which Jones was the victim.

{¶ 6} On May 29, 2020, the parties returned to court for a hearing on Blankenship’s

motion. Blankenship, however, waived his presence at the hearing. The State and

defense counsel agreed that there was no need for evidentiary presentations. Rather, in

lieu of a full hearing on the matter, the sides agreed to submit written memoranda. The

State also conceded, after questioning by the court, that it would be very difficult to meet

its burden at trial without Crow, the now-deceased witness/alleged victim.

{¶ 7} As agreed, the parties submitted memoranda, and on October 21, 2020, the

trial court made its decision to overrule Blankenship’s motion to withdraw his guilty plea.

He now appeals from his conviction, challenging the denial of the motion to withdraw his

guilty plea.

II. Motion to Withdraw Guilty Plea

{¶ 8} In his lone assignment of error, Blankenship asserts that the trial court -4-

abused its discretion when it denied his motion to withdraw his guilty plea, arguing that

because his motion was made before sentencing, it should have been “freely and liberally

granted.” We disagree.

{¶ 9} Crim. R. 32.1 states that “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct a manifest injustice the

court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.” The Supreme Court of Ohio has held that a pre-sentence

motion to withdraw a plea “should be freely and liberally granted.” State v. Xie,

,

(1992). Nevertheless, withdrawing a pre-sentence plea

is not a given because “a trial court retains discretion to overrule a presentence plea-

withdrawal motion.”

{¶ 10} To constitute an abuse of discretion, a trial court’s decision must be

arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ.,

,

(1984). When applying the abuse of discretion

standard, an appellate court must not substitute its judgment for that of the trial court.

Pons v. Ohio State Med. Bd.,

,

(1993). “The mere

fact that a reviewing court would have reached a different result is not enough, without

more, to find error.” State v. Beechler, 2d Dist. Clark No. 99-CA-54,

,

¶ 67.

{¶ 11} In evaluating whether a trial court has abused its discretion in overruling a

pre-sentence motion to withdraw a plea, we have adopted the nine factors set forth in

State v. Fish,

,

(1st Dist. 1995), overruled on

other grounds, State v. Sims,

,

(1st Dist.): (1) whether -5-

the accused is represented by highly competent counsel, (2) whether the accused was

given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was

held on the motion, (4) whether the trial court gave full and fair consideration to the motion,

(5) whether the motion was made within a reasonable time, (6) whether the motion sets

out specific reasons for the withdrawal, (7) whether the accused understood the nature

of the charges and possible penalties, (8) whether the accused was perhaps not guilty of

or had a complete defense to the charge or charges, and (9) whether the State is

prejudiced by withdrawal of the plea.

{¶ 12} Consideration of the factors involves a balancing test and no single factor

is dispositive. State v. Massey, 2d Dist. Champaign No. 2015-CA-1,

.

{¶ 13} At the outset, it should be noted that Blankenship concedes that several

factors weigh against him. He admits that he was represented by competent counsel

(factor 1), that he was given a full Crim.R. 11 hearing before entering his guilty plea (factor

2), and that he understood the charges and possible penalties (factor 7). We agree that

those factors militate against allowing the withdrawal of Blankenship’s plea.

{¶ 14} Blankenship, however, believes that he was not given a full hearing on the

motion, and thus that factor 3 weighed in his favor. We disagree. The trial court set May

29, 2020 as the hearing date for Blankenship’s motion to withdraw his guilty plea. Counsel

for the State and Blankenship were present, but Blankenship himself waived appearance.

The court gave both parties opportunities to submit relevant evidence, but Blankenship,

through counsel, declined. Instead, because both parties agreed that this was purely a

legal issue, the court ordered briefing in lieu of a hearing on the matter. Based on the -6-

legal arguments presented by the parties, the trial court made its determination.

{¶ 15} To the extent that Blankenship argues he should have been afforded a

physical hearing on his motion, he waived that opportunity on May 29, 2020. Even without

him in attendance, Blankenship’s counsel could have presented evidence had he wanted

to. Instead, he chose to submit his arguments via a written memorandum. Blankenship

cannot take advantage of an alleged error he invited the court to make. See State v.

Jones, 2d Dist. Montgomery No. 28977,

. In addition, the three

rounds of briefing afforded to the parties was the functional equivalent in this case of a

full hearing. This factor weighed against Blankenship.

{¶ 16} The trial court also gave the motion full and fair consideration, satisfying

factor 4. The record reflects that the court fully considered the arguments of the parties

presented in the briefs. It issued a five-page decision on the motion, making findings of

fact and conclusions of law and weighing all nine factors. This factor weighed against

finding that the trial court abused its discretion.

{¶ 17} The fifth factor, whether the motion was made within a reasonable time,

weighed in favor of Blankenship. The record indicates that Blankenship entered his guilty

plea on December 19, 2019 and then moved to withdraw the plea on January 21, 2020,

six days before the scheduled final disposition. The motion was timely.

{¶ 18} The sixth factor to consider is whether the motion set out specific reasons

for the withdrawal of the plea. Blankenship’s motion did give at least one reason for

wanting to withdraw the plea – the death of his mother, the sole witness to the robbery

and domestic violence charges. His motion argued that because the complaining witness

was deceased, there was, consequentially, a lack of evidence. The trial court found that -7-

while Blankenship set forth specific reasons, they were illegitimate and amounted to

nothing more than a change of heart. We agree. It appears that Blankenship was merely

attempting to take advantage of the unfortunate passing of his mother and the inevitable

damage that would do to the State’s case against him. This factor weighed against finding

an abuse of discretion.

{¶ 19} The next factor to consider is the eighth – whether the accused was perhaps

not guilty or had a complete defense to the charge or charges. To support this factor,

Blankenship argues that “innocent individuals plead guilty to crimes they did not commit

on a daily basis for a multitude of reasons. As such, Defendant-Appellant may have not

been guilty of the criminal charges against him[.]” Appellant’s brief at 11. There was,

however, no evidence in the record that Blankenship was not guilty or had a complete

defense to the charges. He never argued that he was not guilty; rather, he asserted that

he wished to withdraw the plea because, due to his mother’s dying, there was a “lack of

evidence.” This factor militated against finding an abuse of discretion.

{¶ 20} The final factor to consider is whether the withdrawal of the guilty plea would

result in prejudice to the prosecution. For obvious reasons, we conclude that it would. The

charges for which Blankenship wished to withdraw his guilty plea were the crimes

allegedly perpetrated against his mother – in her house – without any other witnesses.

He correctly reasoned that without testimony from the only witness in the case, the State

would have a difficult time obtaining a conviction. We have previously held that, due to

the death of the only witness of a crime who would have testified against the defendant,

“the State would be prejudiced if [the defendant’s] guilty plea was withdrawn and the

matter went to trial.” State v. Rozell,

,

(2d Dist.). -8-

We affirm that holding today. This factor weighs in favor of finding the trial court did not

abuse its discretion.

{¶ 21} Having considered all the Fish factors, we conclude that the trial court did

not abuse its discretion when it overruled Blankenship’s motion to withdraw his guilty plea.

The assignment of error is overruled.

III. Conclusion

{¶ 22} The judgment of the trial court will be affirmed.

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TUCKER, P. J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Elizabeth A. Ellis Kristin L. Arnold Hon. Michael W. Krumholtz