[Cite as State v. Aquila, 2016-Ohio-5140.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103889


                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   THOMAS AQUILA II
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-97-353950-ZA

               BEFORE:           Blackmon, J., Boyle, P.J., and Laster Mays, J.

              RELEASED AND JOURNALIZED:                     July 28, 2016
ATTORNEY FOR APPELLANT

Daniel J. Misiewicz
Law Office of Daniel J. Misiewicz
614 W. Superior Avenue
Suite 1300
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Thomas Aquila II (“Aquila”) appeals the trial court’s denial of

his motion to withdraw his guilty plea and assigns the following error for our review:

       I. The trial court erred in denying appellant’s motion to withdraw his
       guilty plea because appellant has suffered a manifest injustice.

       {¶2} Having reviewed the record and pertinent law, we affirm Aquila’s

conviction. The apposite facts follow.

       {¶3} In August 1997, the Cuyahoga County Grand Jury indicted Aquila for

aggravated murder and abuse of a corpse. The charges arose from Aquila strangling the

victim with a belt and attempting to burn the body.

       {¶4}    In November 1997, Aquila entered a plea to an amended count of murder.

The abuse of the corpse count was dismissed. The trial court sentenced Aquila to “life in

prison without the possibility of parole for 15 years.” Aquila did not file an appeal. On

February 29, 2009, the trial court entered an order stating that it had advised Aquila at his

sentencing that he was subject to a mandatory five years of postrelease control but had

neglected to include it in the sentencing entry.

       {¶5} After Aquila served 15 years of his sentence, he was brought before the

parole board. The parole board sent notice to the trial court. The trial court informed

the parole board as follows:

       The court is in receipt of the Ohio Adult Parole Authority’s 3/22/12 notice

       of offender’s hearing before the parole board. The court imposed sentence

       after due consideration of all relevant factors and opposes any reduction or
       modification of sentence by the Ohio Parole Board from that which was

       imposed.

April 6, 2012, Journal Entry.

       {¶6} On September 10, 2015, Aquila filed a pro se motion to withdraw his guilty

plea. He contended that the trial court erred by imposing five years of postrelease

control because his sentence was indefinite.       Aquila also stated that the trial court

breached the plea agreement by opposing his parole. Aquila contended the possibility of

parole was his only inducement in pleading guilty.

       {¶7} On November 4, 2015, Aquila’s appointed counsel filed a motion to correct

an illegal sentence arguing that the trial court erred by imposing postrelease control

because Aquila’s 15 years to life in prison constituted an indefinite sentence.

       {¶8} On November 16, 2015, the trial court conducted a hearing regarding the

motions. The trial court granted Aquila’s motion to correct an illegal sentence and

entered a nunc pro tunc entry removing the imposition of postrelease control.         In a

separate entry, the trial court denied Aquila’s motion to withdraw his guilty plea after

concluding Aquila had not shown a “manifest injustice, per [R.C.] 5149.101(B).”




                       Denial of Motion to Withdraw Guilty Plea

       {¶9} In his sole assigned error, Aquila argues that the trial court erred by denying

his motion to withdraw his guilty plea.
       {¶10} Pursuant to Crim.R. 32.1, the trial court can set aside a judgment of

conviction after it imposes sentence, and may allow the defendant to withdraw his or her

plea, only “to correct a manifest injustice.” State v. Bell, 8th Dist. Cuyahoga No. 87727,

2007-Ohio-3276, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

The individual seeking vacation of the plea bears the burden of establishing the existence

of a “manifest injustice.” Smith at paragraph one of syllabus.

       {¶11} “Manifest injustice” is an extremely high standard that permits the court to

allow a plea withdrawal only in “extraordinary cases.”         State v. Malone, 8th Dist.

Cuyahoga No. 91439, 2009-Ohio-1364, citing State v. Herrera, 3d Dist. Allen No.

1-01-126, 2001-Ohio-2341. A manifest injustice is defined as a “clear or openly unjust

act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998).

       {¶12} A postsentence motion to vacate a guilty plea is addressed to the sound

discretion of the trial court. State v. Blatnik, 17 Ohio App.3d 201, 202, 478 N.E.2d 1016

(6th Dist.1984). Absent an abuse of discretion on the part of the trial court in making the

ruling, its decision must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715 (1992). Aquila has failed to demonstrate that the trial court’s denial of his motion to

withdraw his plea was an abuse of discretion.

       {¶13} Aquila maintains that the trial court’s opposition to his receiving parole

modified the sentence that was subject of the plea. Although the state argues otherwise,

we agree with Aquila that the trial court’s statement to the parole board was a statement

against him receiving parole.       Nonetheless, the trial court’s opposition to Aquila

receiving parole did not change the sentence that Aquila had agreed to as part of his plea.
      {¶14} Aquila agreed to and was sentenced to “life in prison without the possibility

of parole for 15 years.” According to that sentence, parole was only a “possibility at 15

years.” We would conclude otherwise if the trial court at the plea hearing had promised

to not oppose parole after 15 years. However, our review of the plea hearing transcript

shows the trial court did not become involved in the plea agreement and made no

representation that it would recommend parole.

      {¶15} Aquila also argues that the trial court erred by referencing R.C.

5149.101(B) in denying his motion because that section applies to the trial court’s

providing a “written statement” to the parole board when there is a full board hearing, and

a full board hearing was not conducted in the instant case. The trial court’s referencing

the wrong statutory authority did not result in a manifest injustice when the trial court’s

entry did nothing to change the agreed- upon sentence.

      {¶16} Aquila also argues that the trial court’s order in the instant case fails to

contain a statement of facts as required by R.C. 2967.03. Although the trial court’s

response to the parole board does not contain a statement of facts as required by the

statute, the statute does not provide a remedy for noncompliance. Clearly, the failure to

comply with the statute does not result in a manifest injustice that would require the

vacation of a plea. Accordingly, Aquila’s assigned error is overruled.

      {¶17} Judgment is affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
