IN THE COURT OF COMMON PLEAS OF GALLIA COUNTY , OHIO

STATE OF OHIO ,
PLAINTIFF,

CASE NO . 11 CR 4

VS.

RICKY L. GLEASON ,
DEFENDANT.
DEFENDANTS MOTION FOR COURT TO ACCEPT DEFENDANTS PLEA CHANGE AND
THE PLEA AGREEMENT SIGNED BY THE DEFENDANT AND RECOMMENDED BY THE
PROSECUTING ATTORNEY
Now comes the Defendant Ricky L. Gleason, by and through Counsel, and hereby moves the
Court to accept the plea agreement which he voluntarily, knowingly and intelligently signed on July
14, 2011.1
FACTS AND DETAILS REGARDING THE PLEA AGREEMENT AND PLEA CHANGE HEARING
That plea agreement was signed with the advice of Counsel Robert W. Bright and the
Defendant entered into that plea agreement voluntarily, knowingly, intelligently and in good faith
with the Gallia County Prosecuting Attorney. That plea agreement required the Defendant to plead
to Counts I and IV of the indictment and, in exchange, the prosecuting attorney agreed to move to
dismiss Counts II and III of the indictment. Further, the prosecuting attorney agreed to dismiss the
probation violation in Case No. 09 CR 258 and the Prosecuting Attorney would recommend four (4)
years in prison.
On July 20, 2011, a plea change hearing and sentencing hearing were scheduled for July 25,
2011. At that plea change hearing the Defendant met with his Counsel on two occasions to discuss

Defense Counsel has attached an affidavit in which Defense Counsel has affirmed the facts and
details relating to this case.

the plea agreement. Counsel advised the Defendant that the Defendant should go forward with the
hearing and enter the plea change because of the significant risk at trial of conviction on all counts
based on the evidence against the Defendant. The Defendant expressed reservations that morning
concerning entering a guilty plea because - until that morning - the Defendant did not realize that he
was going to be immediately sentenced and ordered to go to prison. The Defendants hesitation to
enter the plea was not based in any way on the terms of the plea agreement. His hesitation was based
on that fact that, prior to being sent to prison, he had very much wished to be able to go home to see
family members and to get some money to take to prison with him - and he had been under the
impression that he would likely be released from jail for multiple weeks before his sentencing and
before being sent off to prison. The Defendant was so conflicted about the shock of finding out that
he was being sent to prison that very day, the Defendant was in tears in the conference with his
Counsel. After two discussions with Counsel, the Defendant advised his Counsel that he would go
ahead and enter the plea change and proceed to sentencing.
The Defendant and his Counsel then went into the Courtroom and sat down at the
Defendants table. As the Judge walked into the room, the Defendant emotionally whispered to
Counsel that he could not go to prison today and did not want to go forward with the plea change
that day because he was hoping to go home before his prison sentence.
Counsel again advised the Defendant that it was in the Defendants interest to accept the plea
and go forward with the plea change hearing, but the Defendant was still conflicted and Counsel
informed the Court of the Defendants change of heart and that the reason for the Defendants
change of heart was the Defendant had wanted to go home before going to prison.
The Court then stated that the matter would be scheduled for jury trial. Mere seconds later,
the Defendant informed Counsel that he wanted to accept the plea offer and go forward with the plea

hearing. Counsel informed the Court that the Defendant would like to go forward with the plea
change, and the Court addressed Defense Counsel directly and curtly stated that, No, were not
going to play games and refused to allow the Defendant to enter the plea change. The Courts curt
statement alleging that games were being played was made directly to Defense Counsel and was in
response to Counsels mere statement that the Defendant would like go forward with the plea change
hearing and accept the plea agreement which the Defendant had already signed.
Defendants Counsel was not in any way playing games with the Court. Further, the
Defendant was not in any way playing games with the Court. The Defendant was legitimately
conflicted as a result of his surprise at the fact that he was going to be sent to prison immediately
after the hearing, and the Defendant was not expecting that until right before the hearing. At no
point after signing the plea agreement did the Defendant ever want to go to trial and always desired
to accept the terms of the guilty plea - he just didnt want to have to go to prison that day.
It is notable that after the Defendants brief case of waffling, the Defendant instruct his
Counsel to inform the Court on the record that he was willing to go forward the plea change hearing
- and Counsel did, in fact, inform the Court of the same. Thus, the Defendant - through Counsel attempted to change his plea to guilty and to accept the prosecutors recommendation of four (4)
years in prison. The Court did not inquire further of the Defendant or of Defense Counsel.
The fact that the Defendant was conflicted and having difficulty with the decision to go to
prison that very morning did briefly inconvenience the Court, and the Defendant has apologized for
that in his statement attached to this motion. However, to Defense Counsels remembrance, that
inconvenience lasted for less than five (5) minutes - the length of the hearing at which the Defendant
briefly waffled and at which the Court then refused to accept the Defendants plea.

At the very end of the hearing, the Court stated that it would have difficulty accepting the
Defendants plea because the Defendant had changed his mind and the Court could not know
whether or not the Defendant was voluntarily, knowingly and intelligently entering the plea.
This argument by the Court is without basis in law or fact, given the uncontrovertible fact
that the Court did not ask a single question of the Defendant during the plea change hearing. It is
not possible for the Court to know whether or not the Defendant was voluntarily, knowingly and
intelligently entering a plea without inquiring of the Defendant. The Defendants conflicted state
at the hearing was not caused by the terms of the plea agreement, but rather, by the fact that the
Defendant was going to be going to prison much sooner than he had expected and would not be
permitted to go home before he was sent to prison.
In State v. Langley (2003), Not Reported in N.E.2d, 2003 WL 203584 (Ohio App. 4 Dist.),
2003-Ohio-463, the 4th District Court of Appeals considered a case in which the Defendant waffled
at the plea change hearing for the very reasons that the Defendant in this case waffled - namely,
that the Defendant wished to go home for several days before being sent to prison. The 4th District
Court of Appeals stated (emphasis added):
During the plea hearing, Langley requested that he be released on
recognizance bond prior to going to prison. When imposing sentence, the trial
court denied Langley's request to be released on a recognizance bond.
Immediately thereafter, Langley asked the court if he could withdraw his
pleas. The court denied his request. When permitted to speak, Langley stated:
The reason I was going to take this is because I was getting out. It was
because I was going to get out for seven days. But if not, I want to go to the
box. The following exchange then took place between Langley and the
court: LANGLEY: I tried to come to court last week to come in here to talk.
I asked last week, I said I wasn't taken [sic] two years. * * * Well, now they
come up and they tell me that I'm going to get an O.R. Bond till the 1st.
COURT: Are you telling me that your big hangup is you want three days
out before you go? LANGLEY: Yes sir. COURT: That's the big
hangup? LANGLEY: That's my big hangup.

It appears that Langley asked to withdraw his guilty pleas only because the
court denied his request for a recognizance bond. Apparently, Langley
initially rejected the plea agreement but then decided to accept it after he
learned that he could be released on recognizance bond before going to
prison. Only after the court denied his request for a recognizance bond did
Langley express a desire to withdraw his guilty pleas. Following its exchange
with Langley, the court changed its mind and granted Langley a recognizance
bond.
The difference between this case and Langley is that in this case, the Court refused (and is
refusing) to accept the Defendants guilty plea based on a variety of reasons, not least of which is
the Courts position that (even though the Court did not inquire of the Defendant), because the
Defendant had brief second thoughts at the plea change hearing, the Court could not know whether
or not the Defendant was voluntarily, knowingly and intelligently entering the plea change.
On the other hand, the Court in Langley refused to allow the Defendant to withdraw his
guilty pleas (and the Langley Court very reasonably granted the Defendant an OR bond so that the
Defendant could, indeed, go home for several days as he desired, thereby resolving the only issue
that the Defendant had with entering the plea change - and the very same reason that the Defendant
in this case has asserted was the only reason that he had brief second thoughts at the plea change
hearing.).
When confronted with a Defendant who was having second thoughts concerning his guilty
plea, the Langley Court took the reasonable and circumspect step of inquiring as to the details of the
Defendants difficulties with accepting the plea. In contrast, this Court chose to simply refuse to
hear any more from the Defendant and to schedule the matter for trial with no further consideration
of the Defendants situation.
The 4th District Court of Appeals in Langley implicitly found that - in spite of the
Defendants waffling at the plea change hearing - the Defendants plea of guilty under the terms

of the plea agreement was voluntarily, knowingly and intelligently entered. Likewise, this Court
could easily determine whether or not the Defendant was voluntarily, knowingly and intelligently
entering a plea of guilty by simply holding a hearing at which the Court inquired of the Defendant.
It is arbitrary and unreasonable for the Court to refuse to do so.
FACTS AND DETAILS REGARDING EVENTS AFTER THE PLEA CHANGE HEARING
After the plea change hearing, the Gallia County Prosecuting Attorney and Defendants
Counsel met to discuss the case. Both Attorneys agreed that it would be in everyones interest to go
forward with the plea agreement which had previously been entered into, and the two Counsel agreed
to meet together with the Judge on July 28, 2011 in order to ask the Judge to accept the Defendants
plea in order to minimize the amount of time and money spent in preparation for a jury trial, as well
as to re-affirm to the Court that the Defendant was willing to accept the plea and that the Prosecuting
Attorney was still recommending the plea agreement. The Defendant, in good faith, voluntarily,
knowingly and intelligently entered into a plea agreement and did eventually ask his Counsel to
inform the Court that he was willing to accept that plea.
After the plea change hearing and before the meeting with the Judge, the Court entered a
schedule change in which the Court moved up the trial date from September 12, 2011 to August 15,
2011. That Journal Entry was filed on July 27, 2011 - setting the trial a mere nineteen (19) days
from the date of the entry - which, given the case load Defense Counsel and the Prosecuting Attorney
are carrying - will make it difficult for both the Prosecuting Attorney and the Defendant to be
sufficiently prepared for trial.
In a conference in chambers with the Gallia County Prosecuting Attorney and the Judge on
the morning of July 28, 2011, Counsel for the Defendant presented the Court with the Defendants
statement which is attached to this motion and pleaded with the Court to allow the Defendant to

enter the plea. The Gallia County Prosecuting Attorney expressed his willingness to allow the
Defendant to do so - and the Prosecuting Attorney remains willing to recommend that the Court go
forward with the plea agreement (See attached affidavit of Prosecuting Attorney).
The Court refused and is still refusing to allow the Defendant to enter a plea change. The
Courts position is that when the Defendant had stated that he had hoped to go home and visit with
family, the Defendant really intended to abscond and not appear for his sentencing - and thereby
attempt to avoid going to prison completely.
This reason given by the Court for refusing to allow the Defendant to enter his plea is also
without support. If the Defendant intended to abscond, then why didnt the Defendant run while he
was out on an OR bond a week before the plea hearing was held? Why didnt the Defendant run
after his mother called the police on him in relation to an alleged domestic violence offense on July
19, 2011? The Defendant was present when his mother called the police regarding his alleged
domestic violence, and the Defendant remained at the residence until the police arrived and he was
arrested. There was a significant amount of time between the time his mother called the police and
the time that the police arrived2. The Defendant did not run - even though he knew he would likely
be incarcerated - in fact, the Defendant voluntarily walked over to the police and allowed them to
handcuff and arrest him. There is no evidence whatsoever that the Defendant had an intention to run
prior to his sentencing - and there is significant circumstantial evidence that the Defendant was NOT,
in fact, going to run.

See attached affidavit of Defendants Mother who is also the complaining witness/alleged
victim in Gallipolis Municipal Court case number CRB 1100757 - which was the domestic violence case
which resulted in Defendants arrest and incarceration on the 19th day of July, 2011. It is notable that the
Complaining witness has not alleged that the Defendant ever actually made physical contact with her or
that he would cause imminent physical harm to her, and that she wishes to withdraw the complaint which
she filed. Therefore, there is no basis for a domestic violence case against the Defendant.

Further, while current Defense Counsel is the Defendants second Counsel in this matter,
current Counsel is unaware of any instance in this case in which the Defendant failed to appear for
a hearing without excuse/good cause. This is further evidence in the Defendants favor concerning
the issue of whether or not the Defendant intended to abscond if released from jail prior to
sentencing.
And, finally, if the Defendant was intending to run before sentencing in order to avoid prison,
then why did the Defendant agree - through his Counsel - to accept the guilty plea and thereby
voluntarily agree to go to prison for four (4) years?
THE COURTS ARBITRARY BLANKET POLICIES/PRACTICES
It is also notable that this Court has a blanket policy of a drop dead date concerning plea
agreements. The Courts policy is to set a date in every case - typically 3-4 weeks before trial - and
any/all plea agreements must be submitted by that drop dead date. Any plea agreement entered
after that date will be categorically refused. Further, the Courts policy does not permit a
nolle/dismissal of the indictment after the drop dead date. This Court has repeatedly stated to
Counsel that one of the primary reasons for its drop dead date policy is the fact that waiting until
near the trial date requires the expenditure of significantly more time and money by the Court
personnel and County, respectively, and the drop dead date prevents that cost and inconvenience.
The Court has further stated that a purpose of the drop dead date is to avoid creating conflicts and
confusion in the Courts schedule.
It is ironic that the Court has before it a Defendant who is willing to accept a guilty plea, and
the Court has thus far chosen to require the expenditure of significant amounts of unnecessary time
in preparation for trial by the Prosecuting Attorney, Defense Counsel, the Courts personnel, twentyone (21) witnesses on the Prosecutors witness list, and possibly other persons - as well as calling

a jury who will all be significantly inconvenienced for two to three days by having to sit on the jury
in this case - even though both parties wish to submit a negotiated plea agreement to which the
victim has consented.
Further, the Courts current position will require the unnecessary expenditure of a significant
amount of County money in order to prepare for and conduct the trial of a case which no one
involved (except the Court) wants to take to trial.
It appears that the Court wishes to teach the Defendant and/or Defendants Counsel a lesson3.
Given that the Defendant is currently being held on a bond he cannot afford to pay and, therefore,
the Defendant cannot go home before he is sent to prison as he had wished, it is the Defendant and
Defendants Counsels position that the Defendant has learned a lesson from this situation. Further
the Defendant has apologized to the Court in writing and asked for the Court to allow him to plead
guilty under the terms of the plea agreement. The Prosecuting Attorney is still recommending that
the Court accept the plea agreement as being in the publics best interest and in the interest of
judicial economy.
The Courts position on this matter and the matter of the drop dead date constitutes an
abuse of discretion because the Courts position and attitude is unreasonable and/or arbitrary and/or
unconscionable.
The Courts entry in this case states:
Any negotiated plea agreement shall be filed with the Clerk of Courts on or
before August 15, 2011 at 4:00 p.m. with a file stamped copy delivered to the

As the Courts statement that Were not going to play games was addressed directly to
Defense Counsel and not to the Defendant, Defense Counsel has little choice but to assume that the Court
was addressing Defense Counsel and that the Court is somehow upset with Defense Counsel failing to be
sufficiently convincing to the Defendant.

Court. . . If no written plea agreement is filed by the cut off date above noted,
this case shall be tried as scheduled. No nolle/dismissal by the State shall be
permitted after the cut off date above mentioned.
With the exception of the dates, which vary from case to case, this is the standard language
in the scheduling entry in every felony criminal case prepared by this Court.
As noted above, the drop dead date in this case is August 15, 2011 - two and one half (2
) weeks from the date of the conference held in Judges chambers on July 28, 2011. Even though
the drop dead date in this case has not yet passed, the Court is unwilling to accept this Defendants
plea - apparently only because the Defendant inconvenienced the Court for a few minutes as a result
of his shock and surprise at being informed he was going to prison immediately.
It is notable that various Courts across the State of Ohio - including the 4th District Court of
Appeals - as well as Federal Courts, have held that such categorical drop dead dates and other,
similar categorical policies by a Trial Court are an abuse of discretion by the Trial Court.
In State v. Hunt (1985), 1985 WL 8359 (Ohio App. 4 Dist.), the 4th District Court of Appeals
stated (emphasis added):
The court gave the following reasons for its refusal to accept the plea
agreement:
Fellows, let me tell you this. You know, we operate a Court here for the
citizens of the County, and we try to operate the Court as efficiently as we
can. *** Out of the money allotted to us not only are there salaries for the
employees, but there are witness fees for Court cases, and witness fees for
Grand Jury, and juror fees. *** my policy is that I won't . . . we don't plea
bargain once those jury cards go out unless there's an awfully good reason.
*** my position at this time is, I don't want to be a party to a plea of a
misdemeanor at this point. I would have been gladly a party last Thursday or
last Friday. ***
Appellant offered to pay the court costs in the matter, but the court still
refused to accept the plea bargain. (The 4th District Court of Appeals then
referred to three cases)

Akron v. Ragsdale (1978), 61 Ohio App. 2d 107; State v. Jackson (1980),

68 Ohio App. 2d 35; State v. Mathews (1982), 8 Ohio App. 3d 145. In Akron
the court recognized that trial courts have sometimes exercised their
discretion erroneously. The court emphasized When a recommended plea
bargain is rejected, the court ought to state reasons for his rejection. In
Jackson, the court warned that courts must exercise their discretion
cautiously and reasonably. The Jackson court noted that a guilty plea made
voluntarily and intelligently should not be rejected without a good
reason.
Federal courts have similarly required courts to exercise sound discretion and
state reasons when rejecting proposed plea agreements. In U.S. v. Ammidown
(D.C. Cir. 1974), 497 F. 2d 61, the court carefully reviewed the reasons
behind Fed. R. Crim. P. 48(a) which requires prosecutors to obtain leave of
court in order to dismiss an indictment, and Fed. R. Crim. P. 11 which grants
the court discretion to decide whether to accept or reject proposed plea
bargains. The court held on pg. 622:
*** (T)rial judges are not free to withhold approval of guilty pleas ***
merely because their conception of the public interest differs from that of the
prosecuting attorney. The question is not what the judge would do if he were
the prosecuting attorney, but whether [the Judge] can say that the action
of the prosecuting attorney is such a departure from sound prosecutorial
principle as to make it an abuse of prosecutorial discretion.
*3 The Ammidown court reversed and remanded the case with instructions
to the court to accept the defendant's guilty plea to the lesser included
offense. See also U.S. v. Salinas (5th Cir. 1982), 693 F. 2d 348, 351; U.S. v.
Noble (1st Cir. 1981), 653 F. 2d 34, 36; U.S. v. Barker (D.C. Cir. 1975), 514
F. 2d 208, 211.
In another recent federal case, U.S. v. Miller (9th Cir. 1983), 722 F. 2d 562,
the court encountered a trial court's practice of categorically refusing to
accept plea agreements which left only one count of a multi-count indictment
standing. The court cautioned against any categorical refusal to accept certain
types of plea agreements.
In the case at bar the court gave no reason for rejecting the plea agreement
other than the court's policy of refusing to accept plea agreements after
the jury cards are mailed to prospective jurors in a case. We do not
believe the court's policy is a good reason for categorically rejecting a
sensible plea agreement negotiated in good faith between the parties. We
find the trial court abused its discretion when rejecting the plea
agreement in this case.

As is noted in Hunt, the 4th District Court of Appeals has found that drop dead dates
similar to this Courts drop dead date are an abuse of discretion by the Court. The Defendant
would argue that this Court is being even more arbitrary than the Courts referred to in Hunt because
this Court is refusing the plea recommended by the Prosecuting Attorney more than two (2) weeks
before the Courtsdrop dead date.
The 8th District Court of Appeals considered a similar issue in State v. Switzer (2010), Slip
Copy, 2010 WL 2206399 (Ohio App. 8 Dist.), 2010-Ohio-2473. The Court stated (emphasis added):
A trial court, however, abuses its discretion when it rejects a plea agreement
by relying on a blanket policy rather than considering the facts and
circumstances of the particular case. State v. Raymond, Franklin App. No.
05AP-1043, 2006-Ohio-3259, at 15; State v. Graves (Nov. 19, 1998),
Franklin App. No. 98AP-272 (finding an abuse of discretion after trial court
refused the defendant's plea based upon its blanket policy of not accepting no
contest pleas); State v. Hunt (Oct. 22, 1985), Scioto App. No. 1536 (finding
abuse of discretion when the trial court refused to accept a plea agreement
because it had a policy of rejecting agreements after jury cards were mailed
to prospective jurors in a case). See, also, United States v. Miller (C.A.9,
1983), 722 F.2d 562, 565 (finding categorical rules limiting the type of plea
bargains a court can accept impermissible).
In State v. Raymond, supra, . . . the Tenth District reasoned the following:
Under those circumstances, the trial court's refusal to accept appellant's plea
was an abuse of discretion, or more precisely, it was a refusal to exercise the
court's discretion. The trial court arbitrarily refused to consider the facts and
circumstances presented, but instead relied on a fixed policy established
at its whim. State v. Graves (Nov. 19, 1998), 10th Dist. No. 98AP-272, *
* * quoting [State v.] Carter [ (1997), 124 Ohio App.3d 423, 428, 706
N.E.2d 409]. The Graves court held, [a]lthough the trial court has the
discretion to refuse to accept a no-contest plea, it must exercise its discretion
based on the facts and circumstances before it, not on a blanket policy that
affects all defendants regardless of their circumstances. Graves, supra,
at *10. Id.
Here, the trial court refused to accept the plea agreement reached by the
state and appellant based on its unvaried policy of not accepting plea

agreements on the day of trial. Under these circumstances, the trial court
abused it discretion when it employed its blanket policy rather than
examining the particular facts and circumstances of the case.
See also State v. Fitzgerald (2010), 188 Ohio App.3d 701, 936 N.E.2d 585 (Ohio
App. 8 Dist.).
Further, the 4th District Court of Appeals in State v. Jewell (1995), 1995 WL 34792
(Ohio App. 4 Dist.), considered the issue of plea agreements and abuses of discretion. The
Jewell Court stated (emphasis added):
The term abuse of discretion connotes more than an error of law or of
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co.
(1991), 60 Ohio St.3d 120, 122; State v. Moreland (1990), 50 Ohio St.3d 58,
61; State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Xie (1992),
62 Ohio St.3d 521, 527. . .
Plea bargaining is a recognized fact of life in today's criminal justice system.
It is accepted and approved as a method of disposing of criminal cases. . .
We agree with the defendant that the prosecution's recommendations
ought not to be summarily rejected and that the trial judge ought to
exercise a sound discretion before refusing to accept or departing from such
recommendations. . .
When a recommended plea bargain is rejected the court ought to state
reasons for his rejection. . .
See also: Griffin v. U.S. (1968), 405 F.2d 1378, 132 U.S.App.D.C. 108.
The only reasons stated on the record by this Court for refusing this plea agreement is that
the Court would have difficulty determining whether or not the Defendants plea was voluntarily,
knowingly and intelligently entered into. However, as noted above, the Court has never asked this
Defendant any questions concerning the plea agreement. Thus, the Court cannot possibly know
whether or not the Defendant voluntarily, knowingly and intelligently entered into the plea
agreement.

The Court has stated reasons off the record for its refusal to accept the Defendants plea
change - and, given that the Court did not inquire of the Defendant at the plea change hearing - those
reasons would appear to be the real reasons the Court is unwilling to accept the plea change.
However, a mere allegation by the Court that the Defendant intended to run if released on an OR
bond is not a sufficient reason for refusing the plea - and the Court knows this, as the Court chose
to resolve the issue of the possibility of the Defendant absconding by placing a $50,000.00, 10%
bond on the Defendant in order to keep the Defendant incarcerated until trial - without any argument
on the issue of bond on the record.
Further, the Courts belief that the Defendant and/or Defendants Counsel were playing
games with the Court is also not a sufficient basis to refuse to accept the plea agreement. After all,
the Court never questioned the Defendant or Defendants Counsel on the record about the detailed
reasons for the Defendants mere minutes long change of heart concerning the plea agreement.
Had the Court actually done so, the Court would have learned that the Defendant was not concerned
at all about the terms of the plea agreement, but rather, the fact that the Defendant was going to be
sent off to prison that very day.
If the Court had learned that fact, the Court could have informed the Defendant that the
Defendant would not be released to go home at any point prior to sentencing and being sent to prison
because the Court was going to place a substantial bond on the Defendant.4 Had the Defendant or
Defendants Counsel been aware of the fact that the Court was going to issue a 10% bond, the
Defendant would certainly have gone ahead with the plea change hearing, as the Defendants only

It is also notable that the Court did not address the issue of bond at all at the plea change
hearing held on July 25, 2011, and issued the bond by entry without discussion or argument on the
record. As such, the Defendant was given no notice of the same at any point during that hearing and still
had the expectation that if he could resolve the Municipal Court misdemeanor charge against him, he
would be allowed to go home until trial in this case.

reasons for having a brief change of heart concerning the hearing were the fact that he wanted to go
see his family and that he was very surprised that he was going off to prison that very day. Note that
immediately after the Defendant became aware of the $50,000.00, 10% bond, the Defendant signed
the attached statement apologizing to the Court and asked the Court to accept his plea change.
Further, when the Court became aware that the Defendant was conflicted concerning the plea
agreement, the Court could have inquired of the Defendant or could have rescheduled the plea
change hearing for later that day or for the following day in order to give the Defendant time to sort
out his thoughts and adjust to the idea of going to prison immediately. And, of course, that is
essentially all the Defendant is asking the Court to do now - to reschedule the plea change hearing
and allow the Defendant to accept the plea agreement.
In State v. Carey (2011), Slip Copy, 2011 WL 1598646 (Ohio App. 3 Dist.), the 3rd District
Court of Appeals considered a case in which the Defendant twice waffled at the plea change
hearing. Please note the different and certainly non-arbitrary approach that the Trial Court took in
Carey starting at Paragraph 9 - and it is also notable that the Trial Court in Carey accepted the plea
AFTER the jury was already seated:
. . . in this case, Carey did recant her denial of guilt and completely pled
guilty to everything thereafter. . .
Carey's statements did not contain any qualification wherein she stated that
she did not commit the acts, but was going to plead guilty anyway. Carey
unequivocally admitted to committing the offenses.
The trial court then posed ten more questions to Carey, asking her specifically
how do you plead? as to each group of like-counts in the indictment (and
specifically enumerating the number of each count, the revised code number,
and the degree of the felony or misdemeanor). Carey responded, Guilty, ten
times. . .
Furthermore, at the sentencing hearing, when Carey began to equivocate as
to her complicity in all the offenses, the trial court immediately inquired,

You did the ones you plead guilty to, right? Carey again acknowledged that
she did.
The Carey Court managed to determine that the Defendants plea was knowingly, voluntarily
and intelligently accepted even though the Defendant in Carey twice waffled at the plea change
hearing - which, again, was accepted after the jury was already seated. Given the fact that the 4th
District Court of Appeals (and other districts) has/have held that categorical drop dead dates are
impermissible - and that the drop dead date in this case has still not passed - the Defendant asserts
that the Courts refusal to inquire into his willingness to accept the recommended plea agreement
is arbitrary and unreasonable.
It is also notable that this Court has at least one other5 arbitrary rule and practice which from
the relevant case law appear on their face to be an abuse of discretion. In Defense Counsels
admittedly limited experience with this Court (and further based on Defense Counsels knowledge
gained from other attorneys who have practiced in this Court for a longer period of time as well as
conversations with the Judge), this Court has a one strike and youre out policy on community
control violations by which every person found to have violated the terms of their community control
is sentenced to a prison term. At their initial sentencing on the crime for which they were indicted,
every Defendant being sentenced to community control is informed that they WILL be sentenced to
prison for a community control violation and that if the Defendant appears in front of the Court on

Based on conversations with the Court and other Counsel, it is Defense Counsels
understanding that the Court also categorically refuses Alford/no contest pleas. If true, such a categorical
refusal is impermissible under various federal and Ohio Court of Appeal cases. Further, the Court
apparently sentences all or virtually all Defendants convicted at trial to a maximum sentence. If true,
such a policy would appear to be non-compliant with the public policy of the State of Ohio as noted in
State v. Hood (2001), Not Reported in N.E.2d, 2001 WL 1479242 (Ohio App. 4 Dist.), 2001-Ohio-2620,
and several other cases which can be made available to the Court for review upon request. Surely not
every Gallia County Defendant convicted at trial can be one of the most deserving offenders in the
State of Ohio. But those are issues to be considered on another day.

a community control violation, the Court will take that as an indication that the Defendant wants to
or has chosen to go to prison.
As, in those cases, the Court is making such a determination prior to any community control
violation ever being committed, the Court appears to be pre-sentencing community control violations
and not considering the necessary factors and making a determination that the penalty for the
community control violation is commensurate with the offense committed. The Court appears to
therefore not be in compliance with the requirements found in State v.McPherson (2001), 142 Ohio
App.3d 274, 755 N.E.2d 426, 2001-Ohio-2373 (Ohio App. 4 Dist.); State v. Lawrence (2001), Not
Reported in N.E.2d, 2001 WL 504245 (Ohio App. 3 Dist.), 2001-Ohio-2211 See also: State v.
Beverly (2002), Not Reported in N.E.2d, 2002 WL 59643 (Ohio App. 4 Dist.), 2002-Ohio-118; State
v. Gilliam (1999), Not Reported in N.E.2d, 1999 WL 740248 (Ohio App. 4 Dist.); State v. Evans
(2000), Not Reported in N.E.2d, 2000 WL 33538779 (Ohio App. 4 Dist.), 2000-Ohio-2025; State
v. Cossin (2003), Not Reported in N.E.2d, 2003 WL 21904790 (Ohio App. 4 Dist.),
2003-Ohio-4246; State v. Grodhaus (2001), 144 Ohio App.3d 615, 761 N.E.2d 80 (Ohio App. 4
Dist.), 2001-Ohio-2511; State v. Catron (2001), Not Reported in N.E.2d, 2001 WL 1567238 (Ohio
App. 12 Dist.).
The Court appears to be making arbitrary rules in two (2) different situations which are not
permissible under the holdings of the Appeals Court cases cited above. Similarly, the Defendant
asserts that the Courts refusal to accept the Defendants plea change in this matter is arbitrary and/or
unreasonable based on a review of the relevant case law.
CONCLUSION
It is clear that the 4th District Court of Appeals, as well as other Appellate Districts in Ohio
do not favor Trial Courts making rules that are arbitrary in attitude and practice. This Courts

approach and attitude is arbitrary on the issue of refusing to accept the plea recommended by the
Prosecuting Attorney and which the Defendant desires to accept.
WHEREFORE, the Defendant moves the Court to schedule this matter for plea change
hearing, accept the plea agreement and recommendations of the Gallia County Prosecuting Attorney
in that plea agreement and schedule the matter for sentencing.
Respectfully submitted,

______________________________
Robert W. Bright (0081612)
530 2nd Ave.
Gallipolis, Ohio 45631
740-304-0688
Attorney for Defendant

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon Gallia County Prosecuting
Attorney Jeff Adkins, by hand delivery, on this 3rd day of August, 2011.

Robert W. Bright (00891612)

Attorney for Defendant