[Cite as State v. Baugh, 2018-Ohio-2452.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2017-T-0076
        - vs -                                 :

ANTONIO DELSHAWN BAUGH,                        :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00781.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Antonio Delshawn Baugh, appeals the denial of his

Motion to Vacate Judgment and Withdraw Guilty Plea pursuant to Criminal Rule 32.1.

The issue before this court is whether a trial court abuses its discretion in denying a

postsentence motion to withdraw a guilty plea where the movant failed to file a direct

appeal; waited almost two years before filing the motion; failed to include a transcript of

the plea hearing; the movant’s claims are contradicted by the terms of the signed plea

agreement; and there is no indication that the movant’s purported misunderstanding
that he was eligible to earn credit toward satisfaction of his prison term induced him to

plead guilty. For the following reasons, we affirm the decision of the court below.

       {¶2}   On June 30, 2015, Baugh entered a plea of guilty to Trafficking in Cocaine

(Count 1) and Possession of Cocaine (Count 2), both counts having forfeiture

specifications.

       {¶3}   With respect to Trafficking and Possession, the signed plea agreement

provided:

                     I further understand the consequences of entering this plea,
              including the penalties, which can be from:

              Mandatory prison term of 2, 3, 4, 5, 6, 7, or 8 years and up to
              $15,000.00 fine.

              ***

                    The prison term for this offense is presumed necessary and
              is mandatory.

       (Emphasis sic.)

              The signed plea agreement further provided:

                     I understand that if I am sent to prison, I may be eligible to
              earn one or five days of credit for each completed month during
              which I productively participate in an education program, vocational
              training, employment in prison industries, treatment for substance
              abuse, or any other constructive program developed by the Ohio
              Department of Corrections.        However, these credits are not
              automatically awarded but must be earned.

                    ***

                     I have been informed by the Court, and understand, that I
              am (not) eligible for probation or community control sanction.
              * * * Additionally, I expressly acknowledge and understand, that
              under the terms of this plea agreement and/or relevant law
              regarding Judicial Release, I am not eligible for judicial release.

                    ***



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                     This agreement reflects the entire agreement between the
              State of Ohio and me. No other promises or representations have
              been made to me.

                     ***

                    The State is not bound by the sentencing
              recommendation of the Trumbull County Probation
              Department, and is expressly reserving the right to make a
              sentencing recommendation at the sentencing hearing.

       (Emphasis sic.)

       {¶4}   On August 4, 2015, a sentencing hearing was held. By stipulation, the

Trafficking and Possession counts merged and the State elected to proceed with the

Trafficking count. Baugh was sentenced, inter alia, to serve a mandatory prison term of

four years.

       {¶5}   On June 28, 2017, Baugh filed a Motion to Vacate Judgment and

Withdraw Guilty Plea pursuant to Criminal Rule 32.1. The grounds for withdrawing the

plea were stated in an affidavit as follows:

              2. Before I plead [sic] guilty, I did not want to plead guilty to these
              charges, because I believed that had they tested the purity of the
              cocaine, they would have determined it was not pure cocaine.
              Also, my attorney led me to believe a sentence of 2 years was
              going to be imposed in exchange for my “guilty” plea.

              3. My attorney, Samuel Bluedoen [sic] also led me to believe that
              the F2 was going to be dropped to an F3.

              4. My attorney never advised that this sentence was mandatory.

              5. This Court never advised me that this sentence was mandatory.
              As a matter of fact, Honorable Judge Logan advised me of my
              eligibility for earned credit days.    Being my sentence was
              mandatory, I am eligible for nothing.

       {¶6}   On July 12, 2017, the trial court denied the Motion to Vacate and

Withdraw Guilty Plea.



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       {¶7}   On August 9, 2017, Baugh filed a Notice of Appeal. On appeal, Baugh

raises the following assignment of error: “The trial court erred and abused its discretion

by denying the appellant’s motion to withdraw his guilty plea.”

       {¶8}   “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.

       {¶9}   The phrase “manifest injustice” has been “variously defined,” however, “it

is clear that under such standard, a postsentence withdrawal motion is allowable only in

extraordinary cases.” State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

The reason for such a high standard for granting a post-sentence motion to withdraw a

guilty plea “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); State v. Goist, 11th

Dist. Trumbull No. 2003-T-0135, 2004-Ohio-3926, ¶ 5-6.

       {¶10} “A motion made pursuant to Crim.R. 32.1 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.” Smith at

paragraph two of the syllabus.

       {¶11} Without considering the substance of Baugh’s arguments, we note that

sufficient grounds exist to deny the Motion based solely on Baugh’s failure to raise

these arguments in a direct appeal; the undue delay of almost two years before filing his

Motion; and the failure to provide a transcript of the plea hearing.




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        {¶12} See State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9,

¶ 59 (“Ohio courts of appeals have applied res judicata to bar the assertion of claims in

a motion to withdraw a guilty plea that were or could have been raised at trial or on

appeal”)1; Smith at paragraph three of the syllabus (“[a]n undue delay between the

occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion

under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

militating against the granting of the motion”); State v. Victor, 11th Dist. Geauga No.

2017-G-0116, 2017-Ohio-8805, ¶ 33 (“[a]ppellant’s failure to file a written transcript of

the January 20, 2017 plea hearing or a statement in compliance with App.R. 9(C) or

(D) forces us to overrule her assignment of error [challenging the denial of her Crim.R.

32.1 motion]”); State v. Baker, 9th Dist. Summit No. 27937, 2016-Ohio-8026, ¶ 8

(“because the record does not contain a transcript of his plea hearing, we must presume

regularity with regard to that proceeding”).

        {¶13} With respect to the grounds asserted for withdrawing his plea, Baugh’s

feelings regarding the purity of the cocaine underlying the charges are irrelevant and/or

insufficient to merit withdrawing his plea. State v. Shannon, 11th Dist. Trumbull No.

2017-T-0012, 2017-Ohio-9344, ¶ 22 (“[a] defendant is not entitled to withdraw his plea

because he has a change of heart”).

        {¶14} Baugh’s claims that he believed he would receive a two-year sentence or

was pleading to a third-degree felony, and that he was not informed that his sentence

was mandatory are not credible in light of the signed plea agreement.




1. Baugh’s efforts to file a delayed appeal in this matter were unsuccessful. State v. Baugh, 11th Dist.
Trumbull No. 2016-T-0009, 2016-Ohio-1499.

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       {¶15} It is possible that Baugh (although, in light of Baugh’s claimed ignorance

of the mandatory nature of his sentence, not plausible) did not realize that a mandatory

sentence disqualified him from eligibility for earned jail credit. R.C. 2967.193(A)(2).

Assuming, arguendo, this to be the case, such misunderstanding falls short of creating

the manifest injustice in the absence of affirmative misrepresentation or any indication

that Baugh’s decision to plead guilty was contingent on his eligibility for such credit.

State v. Caputo, 11th Dist. Lake No. 2014-L-010, 2015-Ohio-4829, ¶ 9 (“[n]oticeably

absent from the transcript of appellant’s sentencing hearing and the trial court’s

judgment entry, however, is any reference to appellant being promised he would be

placed in any program while incarcerated”); State v. Fisher, 6th Dist. Lucas No. L-15-

1262, 2016-Ohio-4750, ¶ 24 (“[t]here is nothing that can be gleaned from the transcripts

of both the plea hearing as well as the sentencing hearing that would indicate that

appellant was induced to enter into the plea agreement as a result of the possibility that

he would be entitled to earned time credit”).

       {¶16} We find no abuse of discretion in the denial of Baugh’s Motion to Vacate

and Withdraw Guilty Plea.

       {¶17} The sole assignment of error is without merit.

       {¶18} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas denying Baugh’s Motion to Vacate and Withdraw Guilty Plea is affirmed.

Costs to be taxed against appellant.


THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.


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