The answer is yes. However, it is not a right and rests firmly within the discredtion of the Court to grant the motion after a hearing.
Crim.R. 32.1 provides that a motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
“Crim.R. 32.1 does not prescribe a time limitation on filing a motion, but an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” State v. McMahon, 2010-Ohio-2055, CA2009-06-008 (OHCA12).
“[A] presentence motion to withdraw a guilty plea should be freely and liberally granted. Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing. Therefore, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” State v. Xie (1992), 62 Ohio.St.3d 521, 527.
“Some of the factors that are weighed in considering the trial court’s decision on a presentence motion to withdraw a plea are as follows: (1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge.” State v. Griffin (2001), 141 Ohio.App.3d 551, 554.
The Court in Griffin granted the defendant’s motion where they found that: a) the prejudice to the state was not articulated and will not be presumed; b) a timely motion to withdraw was filed two weeks after defendant pled guilty and more than a month before the scheduled sentencing hearing; c) defendant’s motion stated that he is not guilty and sets forth the reasons for plea withdrawal; d) defendant alleged that his attorney failed to properly investigate the case in that he failed to interview the eyewitness; e) defendant claimed that he felt pressured to plead by his attorney, f) defendant claimed self-defense; g) defendant told the court that he felt pressure from his attorney to plead guilty.
Time is always important in legal matters and could be critically short in your case acting as a complete bar to your objectives. Contact us immediately if you have a question about your case.
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