[Cite as State v. Reeder, 2014-Ohio-2233.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                         CASE NOS. CA2013-05-075
        Plaintiff-Appellee,                        :               CA2013-07-126

                                                   :           OPINION
    - vs -                                                      5/27/2014
                                                   :

FRED D. REEDER,                                    :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                           Case No. CR12-09-1454



Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Fred D. Reeder, appeals his conviction in the Butler

County Court of Common Pleas following his guilty plea to one count of rape, a felony of the

first degree. For the reasons set forth below, we affirm.

        {¶ 2} On October 17, 2012, appellant was indicted on one count of rape and one

count of sexual battery. On January 23, 2013, appellant entered a guilty plea to one count of
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rape, and the state agreed to merge the sexual battery charge. During the plea hearing, the

following exchange occurred:

            THE COURT: And Mr. Reeder is it your understanding that you will
            be pleading guilty to one count of felony 1 rape?

            [APPELLANT]: Yes, sir.

            THE COURT: And do you understand, sir, that this carries with it a
            maximum of 11 years in prison and a $20,000 fine and that a prison
            term is presumed necessary?

            [APPELLANT]: Yes, sir.

            ***

            THE COURT: Every 90 days for the rest of your life you have to
            report to the sheriffs of the county in which you're living in, to inform
            them where you're living and working and that sort of thing. Do you
            understand that? * * * And if you don't report then that could be the
            bases [sic] of another criminal charge.

            [APPELLANT]: Yes, sir.

            ***

            THE COURT: And is anyone forcing you or threatening you to
            enter this plea of guilty?

            [APPELLANT]: No, sir.

            THE COURT: Has anyone made you any promises in exchange for
            this plea?

            [APPELLANT]: No, sir.

            ***

            THE COURT: Okay. I'm holding up a form called plea of guilty and
            a jury waiver. Did you, in fact, sign this document?

            [APPELLANT]: Yes, sir.

            ***

            THE COURT: And again, you understand what you're signing?

            [APPELLANT]: Yes, sir.

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             THE COURT: Okay. And if you have questions about this form or
             your case in general, [your attorney] was able to answer them for
             you?

             [APPELLANT]: Yes, sir.

             THE COURT: And you are satisfied with his advice and counsel?

             [APPELLANT]: Yes, sir.

       {¶ 3} After this exchange, the state read the statement of facts, which included all of

the elements of rape under R.C. 2907.02(A)(1)(c), and appellant agreed that the facts recited

were true and accurate. The trial court then conducted a colloquy with appellant that strictly

complied with Crim.R. 11(C)(2)(c) regarding the waiver of appellant's constitutional rights. At

no time did either appellant or his counsel make mention of any alleged promises regarding a

lenient sentence.

       {¶ 4} Before adjournment, there was one further exchange between the trial court

and appellant:

             THE COURT: Now, do you have any questions about anything we
             covered for either myself or your attorney?

             [APPELLANT]: No, sir.

             THE COURT: Are you giving this plea freely and voluntarily?

             [APPELLANT]: Yes, sir.

             THE COURT: What is your plea then on one count of rape?

             [APPELLANT]: I'm guilty.

             THE COURT: The court finds efficient [sic] evidence to find you
             guilty and will so find.

       {¶ 5} At the sentencing hearing on February 27, 2013, appellant's counsel implored

the court to consider the fact that appellant pled guilty rather than force the victim to undergo

trial and litigate the facts of the case. Appellant himself then apologized to the victim and her

family. However, neither appellant nor his counsel mentioned any promise made by the trial
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court regarding appellant's sentence.

       {¶ 6} Before announcing the sentence, the court noted that appellant's guilty plea

was "something that goes on your side of the ledger" because it spared the victim the

experience of testifying. The court then sentenced appellant to nine years imprisonment,

informed him of his status and obligations as a Tier III sex offender, and notified him that he

was subject to mandatory postrelease control for five years after being released from prison.

The court did not advise appellant that the failure to pay court costs as ordered may result in

a requirement that he perform community service.

       {¶ 7} Immediately after the trial court announced the sentence, appellant's counsel

requested a sidebar at which he recounted to the trial court a conversation regarding

sentencing that counsel allegedly had with the court prior to the hearing:

               That discussion we had was, I said * * * but if he goes to trial,
               he's looking at eight, nine, ten, 11 years. And you said yeah, it's
               going to be, but if he doesn't, that he's going to be looking at five,
               six, seven years, based on his priors.

The trial court did not recall having the conversation counsel referred to, and encouraged

counsel to arrange a meeting involving counsel, the court, and the state to discuss whether

any corrective action needed to be taken regarding appellant's sentence. It is not clear from

the record when that meeting took place, but the trial court journalized its judgment entry on

March 1, 2013.

       {¶ 8} On March 5, 2013, appellant moved to withdraw his guilty plea, arguing that the

basis of his plea was the understanding that he would receive a sentence between four and

seven years.     Appellant did not testify at the hearing on the motion to withdraw, but

appellant's trial counsel again recounted the alleged conversation and noted its effect on

appellant:

             * * * My recollection is that I was in the waiting room of your
             chambers, there for something else and happen to mention hey, * *
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              * here's what I think the evidence is. Here's what I think my client's
              record is. Is it fair to say that with a plea, my client is probably
              looking at somewhere around four to seven and is it fair to say that
              if we went to trial, then he'd probably be looking at nine, ten, 11? * *
              * [M]y client relied upon that conversation and as a result of that –
              partially as a result of that, entered a plea.

The state disagreed with counsel's interpretation of any conversations with the court as

"promises."

       {¶ 9} The trial court considered the arguments of both sides, and ultimately found

that the motion was a post-sentence motion that may have been motivated by appellant's

remorse at the sentence he received. Without reaching an express conclusion as to whether

or not it had made an earlier promise to appellant's counsel, the court also found that the

thorough Crim.R. 11 colloquy demonstrated appellant understood the nature of the charge

and the possible sentences. Accordingly, the court overruled the motion to withdraw.

       {¶ 10} Appellant now appeals, raising four assignments of error.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ITS

ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT KNOWING, INTELLIGENT AND

VOLUNTARY, IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶ 13} "When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio

Constitution." State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 8,

citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. Crim.R. 11(C)(2) governs

the process a trial court must follow to ensure a guilty plea to a felony charge is knowing,


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intelligent, and voluntary. Ackley at ¶ 8. According to Crim.R. 11(C)(2):

            In felony cases the court may refuse to accept a plea of guilty or a
            plea of no contest, and shall not accept a plea of guilty or no
            contest without first addressing the defendant personally and doing
            all of the following:

            (a) Determining that the defendant is making the plea voluntarily,
            with understanding of the nature of the charges and of the
            maximum penalty involved, and if applicable, that the defendant is
            not eligible for probation or for the imposition of community control
            sanctions at the sentencing hearing.

            (b) Informing the defendant of and determining that the defendant
            understands the effect of the plea of guilty or no contest, and that
            the court, upon acceptance of the plea, may proceed with judgment
            and sentence.

            (c) Informing the defendant and determining that the defendant
            understands that by the plea the defendant is waiving the rights to
            jury trial, to confront witnesses against him or her, to have
            compulsory process for obtaining witnesses in the defendant's
            favor, and to require the state to prove the defendant's guilt beyond
            a reasonable doubt at a trial at which the defendant cannot be
            compelled to testify against himself or herself.

       {¶ 14} The trial court must maintain strict compliance with the notification requirements

for constitutional rights identified in Crim.R. 11(C)(2)(c), otherwise the defendant's plea is

invalid. Veney at ¶ 31. However, with respect to the nonconstitutional notifications required

by Crim.R. 11(C)(2)(a) and (b), including notification of the maximum penalty involved, the

trial court need only substantially comply. Id. at ¶ 14.

       {¶ 15} "Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is waiving."

State v. Nero, 56 Ohio St.3d 106, 108 (1990). To show that a trial court did not substantially

comply with Crim.R. 11(C)(2)(a) and (b) – and therefore that the he did not enter his plea

knowingly, intelligently, and voluntarily – appellant must demonstrate both that he failed to

subjectively understand the consequences of his plea, and that he was prejudiced by this

failure. Veney at ¶ 16-17. A determination of whether or not appellant has met this burden is
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based upon a review of the record. State v. Messer, 12th Dist. Clermont No. CA2008-04-

039, 2009-Ohio-929, ¶ 39, citing State v. Spates, 64 Ohio St.3d 269, 272 (1992).

       {¶ 16} Appellant asserts two bases for his argument that his guilty plea was not

knowing, intelligent, and voluntary. First, he contends he lacked a subjective understanding

of the consequences of his guilty plea because he relied upon the advisement of his counsel

that the trial court would issue a sentence not to exceed seven years. Second, appellant

argues his subjective understanding was deficient because the trial court did not fully explain

the sex offender registration requirements that would arise as a consequence of the plea.

       {¶ 17} After a thorough review of the record, we find the totality of circumstances

indicate that appellant subjectively understood the consequences of his plea. At the plea

hearing, the trial court conducted a full plea colloquy that strictly complied with Crim.R.

11(C)(2)(c) and substantially complied with Crim.R. 11(C)(2)(a) and (b). Appellant answered

in the affirmative when the trial court asked whether he understood that he was charged with

rape, and that a guilty plea carried with it the potential for a maximum sentence of eleven

years in prison and a $20,000 fine. Additionally, he indicated he understood the "Plea of

Guilty and Jury Waiver" form that he signed, which also indicated the maximum penalty is

eleven years imprisonment and a $20,000 fine. He admitted the truth of the statement of

facts, and he affirmed that his guilty plea was given freely and voluntarily.

       {¶ 18} Further, at the sentencing hearing, both appellant and his counsel again had

the opportunity to mention the alleged promise of a four-to-seven-year sentence. Yet

counsel described the motivation behind appellant's plea as the desire to spare the victim the

trauma of prolonged litigation, and appellant himself only expressed remorse for the crime.

Neither mentioned a promise of a lenient sentence. Despite appellant's assertion that his

guilty plea was the product of his counsel's advisement that he would receive a sentence of

no more than seven years, the overwhelming evidence in the record indicates that he
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understood the maximum sentence for the offense to which he pled was 11 years

imprisonment and a $20,000 fine.1

        {¶ 19} With respect to the sex offender requirements, this court has recently stated

that although the basic registration requirements under R.C. Chapter 2950 are part of the

nonconstitutional notifications required by Crim.R. 11, "a trial court is not required to review

each of the numerous individual restrictions and requirements set forth in R.C. Chapter 2950

to substantially comply with [the rule]." State v. Butcher, 12th Dist. Butler No. CA2012-10-

206, 2013-Ohio-3081, ¶ 11. As noted above, prior to accepting appellant's plea the trial court

instructed appellant that a guilty plea to rape would make him a Tier III sex offender, and that

he would be required to report every 90 days for the rest of his life to the sheriff's office of the

county in which he lives to inform them where he is living and working. The trial court's

failure to specify that appellant would also be required to register with the sheriff of the

county in which he works, attends school, or "temporarily resides" does not invalidate

appellant's plea. Id. at ¶ 13. Rather, the totality of the circumstances indicates appellant

subjectively understood that by pleading guilty to rape, he would be subjected to certain

restrictions as a Tier III sex offender. Id. at ¶ 13.

        {¶ 20} In light of the foregoing, appellant's first assignment of error is overruled.

        {¶ 21} Assignment of Error No. 2:

        {¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

DECLINING TO IMPOSE A PRISON SENTENCE WITHIN THE PROMISED RANGE AND IN




1. We note that this court has previously stated that "[a] trial judge who intimately participates in plea
negotiations runs the risk of binding the court to impose a certain sentence." State v. Schreiber, 12th Dist. Butler
No. CA2006-09-237, 2007-Ohio-6030, ¶ 38. For this reason, we reiterate that it is the better practice for trial
courts to refrain from speculating for counsel regarding a possible range of sentences prior to a full consideration
of the relevant facts and circumstances before the court at the sentencing hearing. However, we also note that
Schreiber is distinguishable from the present case. In Schreiber, we found that the trial court's repeated
assurances of a six-year sentence on the record during the plea hearing influenced appellant's decision to enter
a guilty plea. Id. at ¶ 40. We find no such "intimate participation" in plea negotiations in the present case.

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THEN OVERRULING A MOTION TO WITHDRAW HIS GUILTY PLEA.

       {¶ 23} Crim.R. 32.1 governs the withdrawal of guilty pleas and provides that a "motion

to withdraw a plea of guilty * * * 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." The trial court's consent to a pre-sentence

motion to withdraw is not an absolute right, but it "should be freely and liberally granted" if

there is a reasonable and legitimate basis for the motion. State v. Manis, 12th Dist. Butler

No. CA2011-03-059, 2012-Ohio-3753, ¶ 24, citing State v. Xie, 62 Ohio St.3d 521, 527

(1992). On the other hand, "[a] defendant who seeks to withdraw a plea of guilty after the

imposition of sentence has the burden of establishing the existence of a manifest injustice."

State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing

State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus.

       {¶ 24} Appellant contends that his motion to withdraw was a pre-sentence motion

because the issue was brought to the trial court's attention prior to journalization of its

judgment of conviction. He further argues that since the trial court became involved in plea

negotiations by indicating appellant's sentence would be within a specified range, the court's

only options were to impose the promised sentence of four to seven years or to permit

appellant to withdraw his plea on the basis of his purported reliance on the promise.

       {¶ 25} We disagree with appellant's characterization of his motion to withdraw as a

pre-sentence motion. "[T]he axiomatic rule is that a court speaks through its journal entries."

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 12, citing State v. Middleton, 12th

Dist. Preble No. CA2004-01-003, 2005-Ohio-681, ¶ 9. Here, the trial court journalized its

judgment entry on March 1, 2013, while appellant did not file his motion to withdraw until four

days later, on March 5, 2013. Appellant did bring the issue to the trial court's attention

immediately after pronouncement of the sentence and prior to the conclusion of the
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sentencing hearing, but we are aware of no authority that would require the trial court to

construe that discussion as a motion to withdraw appellant's guilty plea. See, e.g., State v.

Neeley, 12th Dist. Clinton No. CA2008-08-034, 2009-Ohio-2337, ¶ 5-6 (appellant's motion to

withdraw was not considered pre-sentence where it came after pronouncement of the

sentence but before the journal entry). Therefore, we find the court properly treated the

motion as post-sentence.

       {¶ 26} A defendant who seeks to withdraw a guilty plea after the imposition of the

sentence has the burden of establishing the existence of a manifest injustice. Manifest

injustice relates to a fundamental flaw in the proceedings that results in a miscarriage of

justice or is inconsistent with the demands of due process. State v. Hendrix, 12th Dist. Butler

No. CA2012-05-109, 2012-Ohio-5610, ¶ 13. The burden is such that "[a] post-sentence

withdrawal motion is allowable only in extraordinary cases." Williams, 2013-Ohio-1387, at ¶

12, citing Smith, 49 Ohio St.2d at 264. Indeed, the difficulty of demonstrating a manifest

injustice is meant to discourage a defendant from pleading guilty to test the weight of the

potential reprisal, and later attempting to withdraw the plea if the sentence was unexpectedly

severe. Williams at ¶ 12; Neeley at ¶ 6.

       {¶ 27} Appellate courts review the trial court's decision on a motion to withdraw under

an abuse of discretion standard. Williams at ¶ 14. Hence, to prevail appellant must show

that the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely

an error of law or judgment. Id., citing State v. Barnes, 94 Ohio St.3d 21, 23 (2002).

       {¶ 28} After a thorough review of the record, we find that the trial court acted within its

discretion when it denied appellant's motion to withdraw his guilty plea. The trial court

afforded appellant due process by granting a hearing on the motion. See State v. McMahon,

12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 8 (the trial court was only obliged

to hold an evidentiary hearing if the defendant had established a reasonable likelihood that a
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withdrawal of the plea was necessary). Additionally, the record from that hearing indicates

the trial court gave due consideration to the arguments of both sides before rendering a

deliberate, reasoned decision on the motion. See State v. McGlosson, 12th Dist. Butler No.

CA2012-03-057, 2013-Ohio-774, ¶ 11 (the allegation of manifest injustice was without merit

where the trial court carefully considered all arguments in support of defendant-appellant's

motion). "We defer to the trial court's finding in this respect, where 'the good faith, credibility

and weight of the movant's assertions in support of the motion [to withdraw a guilty plea] are

matters to be resolved by that court.'" Manis, 2012-Ohio-3753 at ¶ 30, quoting Xie, 62 Ohio

St.3d at 525.

       {¶ 29} Appellant's second assignment of error is overruled.

       {¶ 30} Assignment of Error No. 3:

       {¶ 31} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION,

WHICH DENIAL RESULTED IN PREJUDICE.

       {¶ 32} In Ohio, an appellant must satisfy a two-prong test established by the United

States Supreme Court to establish that he was denied the effective assistance of trial

counsel. State v. Bradley, 42 Ohio St.3d 136, 142 (1989), citing Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984). For the first prong, an appellant must establish that

counsel's representation "fell below an objective standard of reasonableness." Strickland at

687-88. For the second prong, appellant must show that there was a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694. A reviewing court may approach this analysis starting with either prong,

and it need not examine the effectiveness of counsel's performance if appellant fails to prove

prejudicial effect. Bradley, 42 Ohio St.3d at 143.
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       {¶ 33} Appellant here asserts that trial counsel's representation was deficient during

the plea and sentencing process because counsel advised appellant of a promised

sentencing range, and then failed to take steps to ensure that the promised sentence was

fulfilled at sentencing. Appellant also contends that counsel failed to move the trial court to

impose the promised term after the issue came to light at sentencing. Finally, appellant

argues that counsel's deficient representation continued at the hearing on the motion to

withdraw the plea where counsel failed to offer appellant's testimony about the effect of the

trial court's alleged promise on appellant's understanding of the implications of his guilty plea.

       {¶ 34} It is questionable whether appellant satisfies either prong of the test. During his

plea colloquy, appellant affirmed that he was satisfied with the representation afforded him by

counsel. At the sentencing hearing, counsel took immediate steps on appellant's behalf once

the sentence was announced, and followed through with a cogent argument at the hearing to

withdraw the plea. In addition, appellant did benefit from his plea: during sentencing the trial

court acknowledged that the plea counted on appellant's side of the ledger, and accordingly

gave him a sentence two years less than the maximum. But we need not rule on the effect of

these facts because "[i]t is well-established that a guilty plea waives the right to claim the

defendant was prejudiced by the ineffective assistance of counsel, except to the extent that

the defects complained of caused the plea to be less than knowing and voluntary." Neeley,

2009-Ohio-2337 at ¶ 33, citing State v. Spates, 64 Ohio St.3d 269, 272 (1992).

       {¶ 35} As discussed in the first assignment of error, we find that appellant's guilty plea

was knowing and voluntary. The record indicates that by the time of the plea hearing

appellant clearly understood the maximum term of imprisonment he faced. Appellant signed

a guilty plea form that stated the maximum prison term the judge could impose was eleven

years, and that gave no indication of a promise of a lesser sentence. Appellant also

acknowledged in open court that he did not receive a promise in exchange for his plea, and
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that he understood that his plea could potentially lead to a maximum sentence of eleven

years in prison. See, e.g., State v. Bryant, 10th Dist. Franklin No. 12AP-703, 2013-Ohio-

5105, ¶ 32 (where the maximum sentence was stated in open court and the sentencing

range was set forth in the signed form entering a guilty plea, appellant's contention that he

did not have knowledge of the potential sentence was unpersuasive). The trial court also

substantially complied with the notification requirements regarding appellant's sex offender

status. Therefore appellant is precluded from claiming ineffective assistance of counsel.

See State v. Thomas, 8th Dist. Cuyahoga No. 85294, 2005-Ohio-4145, ¶ 12, citing Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602 (1973).

       {¶ 36} Appellant's third assignment of error is overruled.

       {¶ 37} Assignment of Error No. 4:

       {¶ 38} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN THE

IMPOSITION OF COURT COSTS.

       {¶ 39} Appellant asserts that although the trial court ordered him to pay court costs at

sentencing, the order is invalid due to the court's failure to advise him that failing to pay the

court costs as ordered may result in a community service requirement. Appellant therefore

requests that the judgment be modified to eliminate the potential for community service.

       {¶ 40} The statute governing court costs, R.C. 2947.23(A)(1), has recently undergone

multiple revisions. See State v. Brown, 12th Dist. Butler No. CA2013-03-043, 2014-Ohio-

1317, ¶ 29. The statute was first revised by 2012 Am.Sub.S.B. 337 (S.B. 337), effective

September 28, 2012, and then later revised by 2012 Am.Sub.H.B. 247 (H.B. 247), effective

March 22, 2013. Brown at ¶ 30. Appellant was sentenced on February 27, 2013, while the

S.B. 337 version of the statute was effective.

       {¶ 41} The S.B. 337 version of the statute did include a requirement that the trial court

notify a defendant that the failure to pay the imposed court costs could result in an order
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requiring community service. However, the statute also provided that:

              The failure of a judge or magistrate to notify the defendant
              [regarding potential community service requirements under this
              statute] does not negate or limit the authority of the court to order
              the defendant to perform community service if the defendant fails
              to pay the judgment described in that division or to timely make
              payments towards that judgment under an approved payment
              plan.

Former R.C. 2947.23(A)(1)(b) (S.B. 337 version).

       {¶ 42} In other words, the trial court's failure in the present case to notify appellant at

sentencing that he may be ordered to perform community service if he fails to pay court costs

does not prevent the court from ordering him to perform community service if he fails to pay

in the future. Brown at ¶ 31. We therefore conclude that the trial court did not err in failing to

notify appellant at the sentencing hearing that it could order him to perform community

service in the event he failed to pay imposed court costs.

       {¶ 43} Appellant's fourth assignment of error is overruled.

       {¶ 44} Judgment affirmed.


       S. POWELL and HENDRICKSON, JJ., concur.




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