[Cite as State v. Kopnitsky, 2019-Ohio-5066.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                          STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                    v.

                                        DAVID KOPNITSKY,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 19 MA 0019


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 17 CR 205

                                       BEFORE:
     Carol Ann Robb, Cheryl L. Waite, Judges and Timothy P. Cannon, Judge of the
               Eleventh District Court of Appeals, Sitting by Assignment.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee and
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 Atty. Christopher P. Lacich, Roth, Blair, Roberts, Strasfeld & Lodge, 100 East Federal
 Street, Suite 600, Youngstown, Ohio 44503, for Defendant-Appellant
 .

                                 Dated: December 5, 2019


 Robb, J.

       {¶1}   Defendant-Appellant David Kopnitsky appeals from the judgment of the
Mahoning County Common Pleas Court sentencing him on four offenses after he pled
guilty. He contends the court erred in denying his motion to withdraw the guilty plea which
he made orally after the court announced the sentence. He states his guilty plea was not
made knowingly, voluntarily, or intelligently because he did not anticipate the harsh
sentence and the court led him to believe at the plea hearing that incarceration was
unlikely. For the following reasons, the trial court’s judgment is affirmed.
                                    STATEMENT OF THE CASE
       {¶2}   On March 23, 2017, Appellant was indicted on four counts for conduct
occurring on December 18, 2016. First, he was charged with third-degree felony failure
to comply with an order or signal of a police officer for operating a motor vehicle so as to
willfully elude or flee a police officer after receiving an audible or visible signal to stop and
thereby causing a substantial risk of serious physical harm to persons or property in
violation of R.C. 2921.331(B).       Second, he was charged with fourth-degree felony
vehicular assault for recklessly causing serious physical harm to his passenger while
operating a motor vehicle in violation of R.C. 2903.08(A)(2). He was also charged with
two fifth-degree felony drug counts:         aggravated possession of drugs for having
oxycodone and possession of cocaine. See R.C. 2925.11(A),(C)(1)(a),(4)(a).
       {¶3}   A June 2017 pretrial resulted in a continuance due to ongoing plea
negotiations. After the second pretrial, a forensic examination was ordered to evaluate
Appellant’s sanity at the time of the offense. A motion hearing was held in November
2017 to discuss the forensic report concluding Appellant was sane at the time of the
offense; defense counsel asked for additional time to evaluate the report.
       {¶4}   On December 29, 2017, Appellant entered a Crim.R. 11 agreement,
agreeing to plead guilty to the four offenses as charged, while the state agreed to


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recommend a term of incarceration deemed appropriate by the court, substance abuse
treatment, and a driver’s license suspension for the mandatory minimum of 3 years.
Before memorializing the plea at the hearing, other matters were discussed. For instance,
defense counsel withdrew any request regarding psychological evaluation and any
potential challenge on sanity or competency. On the latter topic, he said Appellant was
extremely intelligent and understood everything that was occurring.
       {¶5}    Defense counsel also sought to reinstate bond (which was revoked in
October 2017 due to a violation) and asked the court to refrain from issuing a no-contact
order so Appellant could have contact with his boyfriend, who was listed as the victim in
the vehicular assault charge. The victim was present to confirm that he did not wish the
court to impose a no-contact order. Defense counsel said he had no objection to the
court questioning the victim, who said he was hospitalized as a result of the accident and
now has a metal pole and screws in his leg. (Plea Tr. 21-22). The court carried on a
lengthy colloquy with both the victim and Appellant who disclosed:               he was off his
medication but self-medicating by using “a bunch of substances”; “it would have been
better to pull over, go to jail * * * but I didn’t. It resulted in a car accident”; “I did die that
day. If it wasn’t for the fast response of Boardman Fire Rescue, I would be dead”; and the
victim “was trapped in the car for an hour, and it was a very severe traumatic incident * *
*.” (Plea Tr. 14).
       {¶6}    The written plea agreement signed by Appellant explained the ramifications
of the plea. For instance, he was informed: the maximum sentence on count one was
36 months with prison presumed necessary and with a mandatory consecutive term if
prison was imposed; the maximum sentence was 18 months for count two and 12 months
for counts three and four; and he would be subject to mandatory post-release control for
3 years if sentenced to prison (with details for any violations). The court repeated this
information at the plea hearing, noting the prison sentence could total 6.5 years and could
be imposed immediately. (Sent.Tr. 39-41). The court reviewed and ensured Appellant
understood the constitutional rights he would be waiving. (Sent.Tr. 42-43).
       {¶7}    The court accepted the plea, granted the request for release on bond,
instructed Appellant to remain in treatment pending sentencing, lifted any no-contact
order, and ordered a pre-sentence investigation to be prepared for the sentencing hearing



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set for February 1, 2018. However, Appellant failed to appear for sentencing on that date,
and the court issued a bench warrant.
       {¶8}   On November 27, 2018, nearly 10 months after failing to appear at
sentencing, Appellant was apprehended in Cuyahoga County (where Appellant says he
turned himself in), and he was returned to Mahoning County the next month. Sentencing
was set for January 9, 2019 and continued until January 11, 2019 to ensure victim
notification. A different judge presided at the sentencing hearing (due to the retirement
of the judge presiding at the plea).
       {¶9}   As to why he failed to appear for sentencing, Appellant said: he and a
female friend provided information about a drug dealer; he “ran” to Cleveland to save his
life and live with the victim; and the female friend was the victim of an unsolved homicide
in Youngstown. (Sent.Tr. 6-8). His attorney said Appellant’s apartment appeared to have
been ransacked when he went looking for him after his failure to appear. (Sent.Tr. 5).
When Appellant spoke of his past success with supervision, he noted, “I’ve never been
given a break. I’ve always been sent to prison.” (Sent.Tr. 9). He asked for treatment at
a community corrections facility. Defense counsel said he did not dispute the record or
rendition of facts in the presentence investigation report. (Sent.Tr. 10).
       {¶10} The trial court discussed Appellant’s lengthy adult record starting in 1997
and made reference to a juvenile record as well. The court acknowledged the many lives
put at risk by Appellant’s vehicular flight from police, including the lives of the officers and
the public on the road at the time, noting Appellant “blew through one of the busiest
intersections on Market Street.”       (Sent Tr. 13).     The resulting accident was also
mentioned. The court voiced its consideration of the presentence report, the purposes
and principles of sentencing under R.C. 2929.11, the seriousness and recidivism factors
in R.C. 2929.12, and other statutory considerations.
       {¶11} The court then imposed 36 months in prison on count one and 12 months
on counts two, three, and four to be served concurrent with each other but consecutive
to the first count (as required by statute when a prison term is imposed for the particular
offense in count one). The total prison sentence was thus 48 months. Appellant’s driver’s
license was suspended for 5 years and a mandatory post-release control term of 3 years
was imposed.



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        {¶12} After this sentence was announced, Appellant made an oral motion to
withdraw his plea “to correct a manifest injustice” stating: he was innocent of two charges;
the victim’s statement at the plea hearing showed he was innocent of vehicular assault;
he did not think he would receive “such an astronomical sentence”; and he was promised
he would not receive a sentence of this nature. (Sent.Tr. 21-22). The court denied his
post-sentence plea withdrawal motion. (Sent.Tr. 23). Appellant filed a timely notice of
appeal from the January 17, 2019 sentencing entry.
                                          ASSIGNMENT OF ERROR
        {¶13} Appellant’s sole assignment of error alleges:
        “THE TRIAL ERRED AND IMPOSED A SENTENCE CLEARLY AND
CONVINCINGLY CONTRARY TO LAW, BY FAILING TO ALLOW THE DEFENDANT-
APPELLANT TO WITHDRAW HIS GUILTY PLEA TO COUNT ONE BASED ON HIS
ORAL MOTION AFTER SENTENCING.”
        {¶14} Appellant contends the court erred in denying his post-sentence motion to
withdraw the guilty plea because he demonstrated a manifest injustice. Arguing the plea
was not voluntarily, knowingly, or intelligently made, Appellant says he interpreted the
“sugar-coated dialogue” and the “optimistic picture painted” by the trial judge at the plea
hearing as an implied promise that incarceration was unlikely, leading him to believe he
would not be sentenced to prison. Although he failed to appear for the scheduled
sentencing, he points to the claim he made at sentencing that his life would have been at
risk by staying in town. His brief also cites to the claim made during the plea withdrawal
motion that he was innocent on “count one.”1 He believes the trial court should not have
denied the oral motion without calling a recess so he could confer with his attorney, setting
the motion for a further hearing, or making an inquiry about the claimed manifest injustice.



1 While moving for plea withdrawal, Appellant claimed he was “innocent of two of the charges” but only
specifically mentioned vehicular assault, which was count two. He said his innocence of this count was
supported by the victim’s statement at the plea hearing, and defense counsel referred to the victim’s injuries
as “minor.” (Sent.Tr. 4, 21). If Appellant intended to refer to the vehicular assault element of serious
physical harm, then we note the victim’s injury resulted in the implantation of a metal pole and screws in
his leg. (Plea Tr. 21-22). We also note count one (failure to comply with order or signal of police officer)
required a substantial risk of serious physical harm and there was no hint of what his argument would be
as to that count or if he was even referring to that count.



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      {¶15} “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. “The motion is addressed to the sound discretion of the trial court, and the
good faith, credibility and weight of the movant's assertions in support of the motion are
matters to be resolved by that court.” State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d
1324 (1977). In reviewing whether a court abused its discretion in denying a plea
withdrawal motion, the appellate court considers whether the trial court's ruling was
unreasonable, arbitrary, or unconscionable. State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992).
      {¶16} “[A] postsentence withdrawal motion is allowable only in extraordinary
cases.” Smith, 49 Ohio St.2d at 264. The burden of establishing a manifest injustice is
on the defendant. Id. The defendant must show withdrawal is “necessary” to correct
manifest injustice. State v. Stumpf, 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987). “The
logic behind this precept is to discourage a defendant from pleading guilty to test the
weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly
severe.” State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
       {¶17} In addition to appealing the denial of plea withdrawal, a guilty plea that is
not knowing, intelligent, and voluntary can be challenged in the direct appeal from the
sentence. See generally State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71
N.E.3d 180, ¶ 40. A plea is invalid if it was not knowingly, intelligently, and voluntarily
made. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25.
Appellant does not cite to a violation of Crim.R. 11 but argues his plea was not made
knowingly, voluntarily, or intelligently because the judge presiding at the plea hearing
impliedly promised, by leading him to believe, a non-prison sanction would be imposed.
       {¶18} The transcript of the plea hearing does not support this argument. At the
plea hearing, the judge reminded Appellant: “These are serious charges. * * * They are
penitentiary-type charges.    You know that right?”       Appellant responded that he
understood this fact. (Plea Tr. 10). Appellant recognized his future was uncertain, noting
he was waiting to make certain plans “until the sentencing and then we are going to see
what happens with your Honorable Court, see what it is that you decided with regards to



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whether you want to send me to prison or not.” (Plea Tr. 17). The court explained that it
had not yet made a decision whether prison would be imposed and warned: “at some
point if I do send you to prison, it will not be for a weekend vacation.” (Plea Tr. 21, 36).
The court informed Appellant of the maximum sentences on each of the four felonies (36
months, 18 months, 12 months, and 12 months), the presumption that prison was
necessary for the second-degree felony, the statutory requirement of a consecutive
sentence if the court imposed a prison term on that offense, and the potential of receiving
6.5 years in prison total. (Plea Tr. 39-40). Consequently, the record on appeal does not
support an allegation that the trial court impliedly indicated Appellant would not be
sentenced to prison.
       {¶19} Regarding his plea withdrawal motion, the defendant moving for post-
sentence plea withdrawal has the burden of showing the necessity of a plea withdrawal
due to a manifest injustice. Stumpf, 32 Ohio St.3d at 104; Smith, 49 Ohio St.2d at 264.
Therefore, the defendant must provide evidence to support his claim that he was
promised a certain sentence. State v. Thomas, 8th Dist. Cuyahoga No. 85294, 2005-
Ohio-4145, ¶ 5, 9. And, he cannot withdraw his plea because he received a harsher
sentence than expected. Id. In other words, a defendant’s statement that he did not
actually expect to receive the sentence the court told him he could receive does not
approach a showing of manifest injustice. As for the allegation of an implied promise, the
sentencing judge was different than the judge at the plea hearing. The December 29,
2017 written plea agreement was filed in the record case and showed: the maximum
sentences, specifying prison was presumed necessary for the second-degree felony and
would statutorily result in a consecutive sentence if a prison term was imposed; the state
recommended a term of incarceration deemed appropriate by the court; and Appellant
was not induced into making the plea by any promises (other than the state’s
recommendation).
       {¶20} This court has ruled that a hearing is not required on a Crim.R. 32.1 post-
sentence plea withdrawal motion if the facts alleged are not sufficient to prove a manifest
injustice. State v. Snyder, 7th Dist. Jefferson No. 08-JE–27, 2009-Ohio-4813, ¶ 15 (where
a written motion was filed). Here, Appellant orally moved for plea withdrawal at a hearing,
and he did not request a continuance for a further hearing on his motion. One risk of



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orally moving to withdraw the plea immediately after the sentence is imposed is that the
oral motion will not contain sufficient allegations or cite to relevant evidence. Appellant
claimed to the sentencing court that a promise of non-incarceration occurred at the plea
hearing without providing evidence of this. If a motion is based on a plea hearing, the
movant should produce the transcript of the plea hearing (which occurred over a year
before the sentencing) when making his motion. (In any event, as noted above, the plea
transcript demonstrated there was no promise of community control or a minimum
sentence.)
       {¶21} Additionally, the defense acknowledged to the sentencing court that any
inclination of the prior judge toward community control was with the expectation of and
dependent upon Appellant’s appearance at sentencing with continued treatment.
(Sent.Tr. 7). Yet, Appellant did not appear at his February 1, 2018 sentencing hearing,
did not show continued treatment between the plea and February 1, 2018, and did not
make himself available for drug testing (which the court planned to do on the day of
sentencing). Appellant’s claim that he feared for his life as a result of a statement he may
have given in an unrelated situation and felt it necessary to move to Cleveland (to live
with his known boyfriend) need not be accepted as true or as a valid reason for failing to
appear before a court for sentencing after pleading guilty; a rational fact-finder could
conclude that even if there was a rational fear explaining his move, it does not explain or
excuse his failure to appear at sentencing (or failure to seek a continuance or an escort
to court).
       {¶22} Furthermore, Appellant’s oral plea withdrawal motion generally said he was
innocent of vehicular assault. However, he did not explain this declaration, and he
entered his plea more than a year before he asked to withdraw it. No new evidence was
cited as to the elements of the offense or any defense. Undue delay between the motion
and the reason for withdrawal negatively affects credibility and militates against allowing
plea withdrawal. Smith, 49 Ohio St.2d at 264. As stated supra, a harsh sentence is not
a valid reason for withdrawal.
       {¶23} Contrary to the suggestion in Appellant’s brief, there was no requirement
for the court to call a recess for Appellant to consult with his attorney. Appellant did not
request a recess, and the record suggests defense counsel already knew of Appellant’s



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plan to move to withdraw the plea if he was unsatisfied with the sentence. After the court
announced its sentence and asked if counsel had anything further to add, defense
counsel said Appellant had a request to make after the court was finished, at which point
Appellant voiced his oral plea withdrawal motion. Notably, Appellant was prepared with
the proper legal terminology, asking to withdraw the plea based on a “manifest injustice.”
As Appellant’s brief recognizes, this was not a presentence plea withdrawal motion, which
does not have as stringent parameters. The sentencing court allowed Appellant to voice
his motion at a hearing on the record. The court was not required to examine him to help
him develop his allegations, and Appellant cites nothing supporting such a suggestion. If
he had more to say or evidence to submit, he should have filed a written motion and
asked for a separate hearing. Appellant placed his credibility before the court on the
record when he made his motion, and he provided no support for his claim of promise or
innocence (on the vehicular assault charge or the other three charges). See Smith, 49
Ohio St.2d at 264 (credibility, good faith, and weight are subjects for the trial court when
ruling on the withdrawal motion).
       {¶24} Appellant’s apparent strategy was what the rigorous standard in Crim.R.
32.1 was designed to prevent: a plan to “test the weight of potential reprisal, and later
withdraw the plea if the sentence was unexpectedly severe.” Caraballo, 17 Ohio St.3d at
67. See also Smith, 49 Ohio St.2d at 264 (the strict post-sentence withdrawal rule “seeks
to avoid the possibility of a defendant pleading guilty to test the weight of potential
punishment”). Appellant’s motion for post-sentence plea withdrawal did not demonstrate
this was an “extraordinary” case. See Smith, 49 Ohio St.2d at 264. Appellant failed to
demonstrate a manifest injustice, and the trial court did not abuse its discretion by denying
the plea withdrawal motion as presented to the court.
       {¶25} For the foregoing reasons, Appellant’s assignment of error is overruled, and
the trial court’s judgment is affirmed.

Waite, P.J., concurs.

Cannon, J., concurs.




Case No. 19 MA 0019
[Cite as State v. Kopnitsky, 2019-Ohio-5066.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.

                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
