The Akron Legal News

Prison sentence affirmed by appeals court for man who owned guns on probation

ANNIE YAMSON
Special to the Legal News
Published: January 16, 2014

The 5th District Court of Appeals affirmed the judgment of the Stark County Court of Common Pleas last week when it ruled that a defendant was properly denied his request to withdraw his guilty plea and that his probation revocation was not against the manifest weight of the evidence.

The defendant, Keith Pitts, was placed on one year of intensive probation after a traffic stop that occurred on June 14, 2012.

Massillon Police Officer Curtis Ricker observed Pitts run a red light and pulled him over.

Ricker found that Pitts was driving under suspension and that he was carrying a loaded .40 caliber Glock handgun concealed in his waistband.

Pitts pleaded guilty to carrying a concealed weapon but later filed a motion to withdraw that plea.

The trial court denied the motion and imposed the year-long probation.

On Jan. 8, 2013, Pitts was taken into custody for an alleged community control violation and a hearing was held on the state’s motion to revoke his probation.

During the hearing, Officer Aaron Williams of the Canton Police Department testified that he was dispatched to a home for an assault complaint on Jan. 7, 2013.

At the home, a woman named Amanda reported that Pitts was her boyfriend and he had assaulted her.

Williams told the court that he noticed a bite mark on her arm and scratch marks on her neck.

Amanda gave Williams a .25 caliber firearm and a 9mm firearm from the home and said that they belonged to Pitts.

Williams noted that Pitts was not present during this time and he was unsure whether the guns were operable.

Pitts was taken into custody when both Amanda and Williams called his probation officer to report the incident.

Pitts also testified during the hearing where he admitted that he knew he was not allowed to possess firearms while on community control.

He claimed he gave the weapons to his girlfriend to keep while he was on probation.

According to him, the guns were emptied of ammunition and fitted with a gunlock and Amanda was instructed to take the weapons to a relative’s home.

Pitts stated that, on the day of the assault complaint, he had been in an escalated argument with Amanda.

He held that the fight was the reason for Amanda’s 911 call and he adamantly denied the presence of guns at his address when the police responded.

The Stark County court subsequently found that Pitts violated the terms of his probation by owning a firearm and he was sentenced to 12 months in prison.

Upon appeal to the 5th District, Pitts argued that the trial court erred when it denied his motion to withdraw his guilty plea at his original trial.

“The Ohio Supreme Court has stated pre-sentence motions to withdraw a guilty plea ‘should be freely and liberally granted,’” wrote Presiding Judge Scott Gwin on behalf of the district’s three-judge appellate panel. “That does not mean, however, a defendant has an absolute right to withdraw a guilty plea prior to sentencing.”

Judge Gwin held that there must be a “reasonable and legitimate basis” for the plea withdrawal and that the decision to grant the motion was within the trial court’s sound discretion.

Pitts’ justification for his motion to withdraw his plea was his work as a security guard.

He stated that he had obtained a certificate from the Ohio Peace Officer Training Commission which he believed gave him the right to carry concealed weapons.

However, the appellate panel determined that the alleged permit was never admitted into evidence or offered into the trial court or appellate record.

Judge Gwin also cited R.C. 4749.10, which states that licensed security guards are only permitted to carry a concealed weapon if they obtain a concealed-carry permit.

Simply the fact that someone is a security guard does not allow them to carry a concealed weapon, Gwin determined.

“Thus, the trial court did not err when it overruled Pitts’ motion to withdraw his previously entered guilty plea because Pitts was not able to establish he perhaps was not guilty or has a complete defense to the charge,” wrote Judge Gwin.

In his second assignment of error, Pitts argued that his probation revocation was against the manifest weight and sufficiency of the evidence.

The appellate panel, however, noted that a community control revocation hearing is not a criminal trial.

Therefore, “the state need not establish a community control violation by proof beyond a reasonable doubt.”

“Once a court finds a defendant violated the terms of probation, the decision whether to revoke probation lies within the court’s sound discretion,” wrote Judge Gwin. “Thus, a reviewing court will not reverse a trial court’s decision absent an abuse of discretion.”

Although the evidence that Pitts possessed the guns was circumstantial, the court of appeals held that the evidence had just as much value as direct evidence.

It also found that Pitts lived in the house where the weapons were held and he admitted that they were his.

“We find that this is not an exceptional case in which the evidence weighs heavily against conviction,” Judge Gwin concluded. “Based upon the record, we find there was sufficient credible evidence Pitts violated the terms of his community control, and the trial court did not abuse its discretion in its decision to revoke Pitts’ community control sanction.”

Judges William Hoffman and Patricia Delaney concurred.

The case is cited State v. Pitts, 2014-Ohio-17.

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