Judge Collier Allows Kenneth Grad to Withdraw Plea

On March 31, 2010, Judge Christopher Collier granted Mr. Kenneth Grad's motion to withdraw his previous entered pleas of no contest to nine felony counts involving injuries to his son. Previously, Mr. Grad had entered a change of plea in front of Judge Kimbler, but, before sentencing, filed a motion to withdraw those pleas and proceed to trial.

After filing the motion to withdraw the plea, Mr. Grad's attorney filed an affidavit of bias against Judge Kimbler in the Ohio Supreme Court. Upon receiving notice of the filing of the affidavit of bias, but before the Ohio Supreme Court could rule on the motion, Judge Kimbler recused himself from the case and transferred the case to Judge Collier.

Judge Collier conducted a hearing on Mr. Grad's motion. In his journal entry granting the Mr. Grad's motion, Judge Collier wrote that a motion to withdraw a plea made prior to imposition of sentence, is to, according to the Ohio Supreme Court, be "liberally and freely" granted. The Ohio Supreme Court, in the same decision, also made it clear that a defendant does not have an absolute right to withdraw a plea prior to sentencing.

The withdrawal of plea motion is to be granted if there is a reasonable basis to withdraw the plea. The Ohio Supreme Court outlined factors to be considered in deciding whether there is a reasonable basis for the withdrawal of the plea. Those factors include whether the State will be prejudiced by the withdrawal; the representation afforded to the defendant by his or her attorney; the extent of the Criminal Rule 11 change of plea hearing; the extent of the hearing on the motion to withdraw the plea; whether the timing of the motion was reasonable; whether the defendant understood the nature of the charges and the potential sentences; and whether the accused has a complete defense or is perhaps not guilty of the charges.

In Mr. Grad's case, Judge Collier found that while the change of plea hearing was conducted properly, Mr. Grad did not understand the effect of his "no contest" plea. Mr. Grad testified that he believed that he would have an opportunity to call witnesses to establish his innocence at the sentencing hearing. Judge Collier found that it wasn't until after his attorneys explained to him that he wouldn't have that opportunity that he wanted to withdraw his pleas.

After granting the motion to withdraw the pleas, Judge Collier set the case down for a status hearing on April 23, 2010, at 9:00 am.