The Seventh District Court of Appeals has ruled that a lower court did not abuse its discretion when it denied a man’s pre-sentence motion to withdraw a guilty plea.

Luis S. Perez, Sr. appealed the decision made by the Mahoning County Court of Common Pleas after he was sentenced to 8 years in prison for attacking a sheriff’s deputy while he was in jail on other charges and allegedly flinging his HIV-positive blood at two other officers.

In May 2011, Perez pleaded guilty to one count felonious assault and two counts of harassment with a bodily substance. At the sentencing hearing two months later, Perez wanted to withdraw his plea and fire his attorney claiming he was innocent and his attorney failed to share evidence with him, among other complaints.

In his appeal, Perez said the trial court should have allowed him to withdraw his plea under State v. Cuthbertson, 139 Ohio App.3d 895, 746 N.E.2d 197. A man indicted in Cuthbertson for aggravated murder was allowed to withdraw a guilty plea because he said he was innocent and was pressured into making a plea deal.

Judge Cheryl L. Waite wrote the Seventh District Court of Appeals opinion, which affirmed the trial court’s decision, and said: “A pre-sentence motion to withdraw a plea is reviewed for abuse of discretion, and there is no absolute right to withdraw a plea prior to sentencing. Contrary to Appellant’s contentions, no one factor is conclusive in determining whether an abuse of discretion has taken place.”

The Seventh District Court of Appeals applied a set of nine factors for trial courts to consider when deciding a pre-sentence motion to withdraw a plea that was first established in a First District Court of Appeals case in 1995 and adopted by the Seventh District in 2000 in State v Cuthbertson.

Judge Waite wrote that Perez only met one of those factors, which is that the state is not prejudiced by the withdrawal of the guilty plea. Waite wrote that this alone was not sufficient to require the trial court to grant the motion to withdraw.  

“The state concedes that it did not allege that it would be prejudiced if the plea was withdrawn. Despite Appellant’s contention to the contrary, this is not fatal to the state’s argument,” Judge Waite wrote.

In examining the other eight factors in Cuthbertson, Judge Waite wrote that Perez had a fair plea hearing, was well represented throughout the process, and that the timing of the motion was not reasonable. Perez was sentenced to 8 years of a possible 20-year prison term.

“Most of the Cuthbertson factors weigh in the state’s favor,” Judge Waite wrote. “The late timing of the motion and the utter failure to establish any reasonable basis for withdrawing the plea weigh heavily against Appellant’s argument. Since the trial court had numerous reasons for denying the motion, no abuse of discretion is indicated by the record and the assignment of error is overruled.”

Judges Joseph J. Vukovich and Mary DeGenaro concurred in the August 14 opinion that affirmed the judgment of the trial court.

State v. Perez, 2013-Ohio-3587
Opinion: http://www.sconet.state.oh.us/rod/docs/pdf/7/2013/2013-ohio-3587.pdf
Criminal Appeal From: Mahoning County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 14, 2013

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