[Cite as State v. Bruce, 2016-Ohio-7132.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                    No. 16AP-31
v.                                                :             (C.P.C. No. 13CR-55)

Michael R. Bruce,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                   Rendered on September 30, 2016


                 On brief: Ron O'Brien, Prosecuting             Attorney,    and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Michael R. Bruce, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.
        {¶ 1} Defendant-appellant, Michael R. Bruce, appeals the October 19, 2015
judgment of the Franklin County Court of Common Pleas that denied his motion to
withdraw his guilty plea.
I. Facts and Procedural History
        {¶ 2} On January 4, 2013, a Franklin County Grand Jury filed an indictment
charging appellant with six criminal counts: three counts of rape, in violation of R.C.
2907.02, felonies of the first degree; two counts of kidnapping, in violation of R.C.
2905.01, felonies of the first degree; and one count of gross sexual imposition, in violation
of R.C. 2907.05, a felony of the third degree. On October 21, 2013, appellant entered a
plea of guilty to two counts of unlawful sexual conduct with a minor, in violation of R.C.
2907.04, both felonies of the third degree. The entry of guilty plea specified that both
No. 16AP-31                                                                               2


offenses were lesser-included offenses of the counts of rape. On November 26, 2013, the
trial court filed a judgment entry finding appellant guilty of the charges to which the plea
was entered and imposing a sentence of five years incarceration on each count, to be
served concurrently. The trial court also imposed a Tier II sexual offender classification
and a mandatory five year period of postrelease control.
       {¶ 3} On July 31, 2015, appellant filed a motion to withdraw his guilty plea. On
October 19, 2015, the trial court filed a decision and entry denying appellant's motion to
withdraw his guilty plea. On November 24, 2015, appellant filed a notice of appeal from
the October 19, 2015 judgment. On December 10, 2015, this court dismissed appellant's
appeal for being filed outside the time allowed by App.R. 4(A). On January 15, 2016,
appellant filed, pursuant to App.R. 5(A), a motion for leave to appeal the October 15, 2015
judgment. On March 29, 2016, we granted appellant's motion for leave to appeal. State v.
Bruce, 10th Dist. No. 16AP-31 (Mar. 29, 2016) (memorandum decision).
II. Assignment of Error
       {¶ 4} Appellant appeals and assigns the following single assignment of error for
our review:
              THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT DENIED APPELLANT'S MOTION
              TO WITHDRAW HIS GUILTY PLEA WITHOUT A
              HEARING.

III. Discussion
       {¶ 5} In his assignment of error, appellant asserts the trial court abused its
discretion by denying appellant's motion to withdraw his guilty plea without a hearing.
       {¶ 6} Crim.R. 32.1 governs motions to withdraw pleas and provides that "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." A defendant seeking to
withdraw a guilty plea after a sentence has been imposed bears the burden of establishing
that manifest injustice exists with reference to specific facts contained in the record or
supplied through affidavits submitted in support of the motion. State v. Chandler, 10th
Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 6; State v. Nelson, 10th Dist. No. 11AP-720, 2012-
Ohio-1918, ¶ 11, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the
syllabus. " 'Manifest injustice relates to some fundamental flaw in the proceedings which
No. 16AP-31                                                                                   3


result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' "
Nelson at ¶ 11, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5.
       {¶ 7} "A trial court is not automatically required to hold a hearing on a post-
sentence motion to withdraw a guilty plea." Chandler at ¶ 7, citing State v. Spivakov,
10th Dist. No. 13AP-32, 2013-Ohio-3343, ¶ 11, citing State v. Barrett, 10th Dist. No. 11AP-
375, 2011-Ohio-4986, ¶ 9. "A hearing must only be held if the facts alleged by the
defendant, accepted as true, would require that the defendant be allowed to withdraw the
plea." Chandler at ¶ 7. The decision of whether to hold a hearing on a post-sentence
motion to withdraw a guilty plea is left to the sound discretion of the trial court. Id. at ¶ 8,
citing Smith at paragraph two of the syllabus.
       {¶ 8} We review the denial of a post-sentence motion to withdraw a guilty plea for
abuse of discretion. State v. Porter, 10th Dist. No. 11AP-514, 2012-Ohio-940, ¶ 20;
Nelson at ¶ 12. "The term 'abuse of discretion' connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
       {¶ 9} In the present case, appellant contends he was entitled to an evidentiary
hearing because the offenses to which he entered a plea of guilty were not lesser-included
offenses of the offenses charged in the indictment. In response, plaintiff-appellee, State of
Ohio, contends that appellant voluntarily waived his right to indictment by entering a
guilty plea.
       {¶ 10} In State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio-7363, this court
reviewed a claim that the defendant's constitutional rights were violated because "the
crimes to which he pled guilty, corruption of a minor under R.C. 2907.04, are not lesser-
included offenses of the crimes for which he was indicted, rape under R.C. 2907.02." Id.
at ¶ 11. In that case, we noted that corruption of a minor under R.C. 2907.04 was not a
lesser-included offense of the crime for which the defendant was indicted, rape under R.C.
2907.02. Nevertheless, we applied the Supreme Court of Ohio's holding in Stacy v. Van
Coren, 18 Ohio St.2d 188 (1969), to find that the "[defendant's] actions in voluntarily
entering a plea of guilty to two counts of corruption of a minor while represented by
counsel, constituted a waiver of his constitutional right to indictment." Wooden at ¶ 15.
No. 16AP-31                                                                          4


      {¶ 11} Here, like in Wooden, appellant knowingly, intelligently, and voluntarily
entered a plea to the two counts of unlawful sexual conduct with a minor while
represented by counsel. At the plea hearing on October 21, 2013, the following dialogue
occurred:
              [Assistant Prosecutor]: The original indictment was three
              counts of rape, felonies of the first degree; two counts of
              kidnapping, felony of the first degree; and one count of gross
              sexual imposition, a felony of the third degree. [Appellant]
              entered a general plea of not guilty at arraignment and wishes
              to withdraw it and plead guilty to a stipulated lesser included
              offense of Count 1, unlawful sexual conduct with a minor in
              violation of [R.C.] 2907.04, it's a felony of the third degree.
              He's also pleading guilty to the stipulated lesser included
              offense of Count 4, unlawful sexual conduct with a minor, in
              violation of [R.C.] 2907.04, also a felony of the third degree.

              ***

              [The Court]: [Appellant], did you sign this plea form, sir?

              [Appellant]: Yes, ma'am.

              [The Court]: Did you read and understand it and have your
              attorney explain it to you before you signed it?

              [Appellant]: Yes, ma'am.

              [The Court]: So you know when you sign this form, you're
              changing your previously entered not guilty plea and pleading
              guilty to two F-3s, each carry a maximum possible prison
              sentence of five years, maximum possible fine on each count
              of $10,000. Do you understand that?

              [Appellant]: Yes, ma'am.

              ***

              [The Court]: These are a rendition of your rights as a
              Defendant in this case, do you understand them?

              [Appellant]: Yes, ma'am.

              [The Court]: Do you understand you're waiving these rights
              when you enter a guilty plea?

              [Appellant]: Yes, ma'am.
No. 16AP-31                                                                               5


               [The Court]: Are you waiving these rights and entering this
               plea knowingly, intelligently and voluntarily?

               [Appellant]: Yes, ma'am.

(Oct. 21, 2015 Tr. at 7-10.) Thus, appellant knowingly, intelligently, and voluntarily
entered a plea of guilty to the offenses of unlawful sexual conduct with a minor as
stipulated. Furthermore, in the entry of guilty plea, which was signed by appellant and his
counsel, appellant stated that "I understand that my guilty plea(s) to the crime(s)
specified constitute(s) both an admission of guilt and a waiver of any and all
constitutional, statutory, or factual defenses with respect to such crime(s) and this case."
(Oct. 21, 2013 Entry of Guilty Plea.)
       {¶ 12} Therefore, we find appellant's actions in knowingly, intelligently, and
voluntarily entering a plea to two counts of unlawful sexual conduct with a minor while
represented by counsel constituted a waiver of his constitutional right to an indictment on
the offenses to which he pled. Wooden at ¶ 15; State v. Green, 12th Dist. No. CA2014-12-
247, 2015-Ohio-2576, ¶ 25 (finding that the "appellant's actions in voluntarily entering a
plea of guilty to two counts of rape in violation of R.C. 2907.02(A)(1)(c) while represented
by counsel constituted a waiver of his constitutional right to indictment"). As a result, we
find the trial court did not abuse its discretion in denying appellant's motion to withdraw
his guilty plea.
       {¶ 13} Accordingly, we overrule appellant's sole assignment of error.
IV. Conclusion
       {¶ 14} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                      BROWN and LUPER SCHUSTER, JJ., concur.
