[Cite as State v. Bailey, 2017-Ohio-5.]



                            STATE OF OHIO, JEFFERSON COUNTY
                                   IN THE COURT OF APPEALS
                                          SEVENTH DISTRICT

STATE OF OHIO,                                     )
                                                   )
        PLAINTIFF-APPELLEE,                        )
                                                   )             CASE NO. 16 JE 0003
V.                                                 )
                                                   )                    OPINION
CAREY L. BAILEY, JR.,                              )
                                                   )
        DEFENDANT-APPELLANT.                       )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Court of Common
                                                   Pleas of Jefferson County, Ohio
                                                   Case No. 13 CR 75(C)

JUDGMENT:                                          Affirmed

APPEARANCES:
For Plaintiff-Appellee                             Samuel A. Pate
                                                   Assistant Prosecuting Attorney
                                                   16001 State Route 7
                                                   Steubenville, Ohio 43952

For Defendant-Appellant                            Carey L. Bailey, Jr. – Pro-se
                                                   Lake Erie Correctional Institution
                                                   501 Thompson Road
                                                   P.O. Box 8000
                                                   Conneaut, Ohio 44030


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                   Dated: January 3, 2017
[Cite as State v. Bailey, 2017-Ohio-5.]
DONOFRIO, P.J.

        {¶1}     Defendant-appellant, Carey Bailey, Jr., appeals from a Jefferson
County Common Pleas Court judgment overruling his motion to withdraw his guilty
plea, for a new trial, and for a jury trial.
        {¶2}     We set forth the facts as follow in appellant’s direct appeal. State v.
Bailey, 7th Dist. No. 13 JE 36C, 2014-Ohio-5720.
        {¶3}     On April 16, 2013, appellant, along with Marlin Hartman, and David
Hanlin, Jr. got into a verbal altercation with Zachary Willis, Demarcus Meeks, and
possibly others at the Avalon Bar in Mingo Junction. Appellant, Hartman, and Hanlin
left the bar and drove to Meeks' house where they threatened to shoot Meeks' house
and dog. Neighbors heard the threats and called Meeks, who was still at the Avalon
Bar, to inform him of the threats.
        {¶4}     Meeks, along with Willis, then left the bar and headed toward his house.
On the way, Meeks and Willis encountered appellant, Hartman, and Hanlin who were
on their way back to the Avalon Bar. The two vehicles stopped. Hanlin remained in
the car while the other occupants of the two vehicles exited.            Appellant then
produced a 9 mm handgun and fired seven shots at Willis, striking him twice. His
injuries left him paralyzed.
        {¶5}     Appellant, Hartman, and Hanlin fled the scene. They hid the car they
were driving and two guns. They were later arrested.
        {¶6}     A Jefferson County Grand Jury indicted appellant on one count of
attempted murder, a first-degree felony in violation of R.C. 2903.02(A) and R.C.
2923.02(A), with a firearm specification; one count of felonious assault, a second-
degree felony in violation of R.C. 2903.11(A)(2), with a firearm specification; and one
count of tampering with evidence, a third-degree felony in violation of R.C.
2921.12(A)(1).
        {¶7}     Appellant initially entered a not guilty plea. Several months later,
however, appellant reached a plea deal with plaintiff-appellee, the State of Ohio.
Pursuant to the plea deal, the state dismissed the attempted murder charge and
accompanying firearm specification. In exchange, appellant entered a guilty plea to
                                                                               -2-


the remaining charges.
       {¶8}   The trial court subsequently sentenced appellant to eight years in
prison for felonious assault, three mandatory years for the firearm specification, and
30 months for tampering with evidence. The court ordered the sentences to be
served consecutively for a total of 13 and one-half years in prison.
       {¶9}   Appellant filed a direct appeal challenging his sentence. This court
affirmed the trial court’s judgment on December 23, 2014. Bailey, 2014-Ohio-5720.
       {¶10} On September 14, 2015, appellant filed a pro se “Motion for Leave to
File a Delayed Motion for a Withdraw of Guilty Plea Pursuant to Crim.R. 32.1; Motion
for a New Trial Pursuant to Crim.R. 33; and Jury Trial Demand Pursuant to Crim.R.
23(A).”   Appellant claimed he did not enter his plea knowingly, voluntarily, and
intelligently based on the fact that his defense counsel would not object to prejudicial
joinder with his co-defendants and counsel failed to advise him regarding the defense
of “mere presence” at the scene of the crime.
       {¶11} The trial court overruled appellant’s motion without a hearing.         The
court cited appellant’s sentencing judgment entry and stated:

       The sentencing Order of October 28, 2013 goes into great detail of
       Defendant’s personal involvement with two (2) other Co-defendants in
       the Commission of the Offense. It was this Defendant who personally
       produced a 12 shot 9 mm handgun and fired seven (7) shots at the
       victim, striking his [sic.] twice.    That was Defendant’s personal
       involvement not “mere presence.”         Based on the evidence and
       statements at the plea hearing the Court also held in the Sentencing
       Order that “the Court specifically finds that all three (3) Co-defendants
       acted in concert, aiding, encouraging and inciting the others.”

(Dec. 30, 2015 Judgment Entry).
       {¶12} Appellant filed a notice of appeal on February 8, 2016. He then filed a
motion to file a delayed appeal, which this court granted.
                                                                                  -3-


       {¶13} Appellant, still acting pro se, now raises two assignments of error.
       {¶14} Appellant’s first assignment of error states:

                THE SENTENCING COURT ERRED TO THE PREJUDICE OF
       THE APPELLANT AND ABUSED ITS DISCRETION BY DENYING
       THE MOTION TO WITHDRAW HIS GUILTY PLEA; MOTION FOR
       NEW TRIAL WITH JURY TRIAL DEMAND, WITHOUT A HEARING.

       {¶15} Appellant argues the trial court erred by not holding a hearing on his
motion to withdraw his plea and motion for a new trial with jury demand. Appellant
claims he pleaded guilty because his counsel advised him, “there is no way the court
is going to believe you were not involved, you were present when the crime happen
[sic.]” Appellant asserts that pleas induced by errors of defense counsel are invalid.
He goes on to argue that he re-asserted his right to a jury trial and the trial court was
required to hold a hearing on his motions.
       {¶16} The decision whether to grant or deny a defendant's motion to withdraw
a guilty plea is within the trial court's discretion. State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). Abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶17} Crim.R. 32.1 provides: “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.” This rule establishes a fairly stringent
standard for deciding a post-sentence motion to withdraw a guilty plea. Xie, 62 Ohio
St.3d at 526.
       {¶18} The burden of establishing the existence of manifest injustice is on the
individual seeking to vacate the plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977), paragraph one of the syllabus. Under the manifest injustice standard, a
post-sentence motion to withdraw a plea is allowed only in extraordinary cases. Id. at
                                                                                -4-


264.   “The standard rests upon practical considerations important to the proper
administration of justice, and seeks to avoid the possibility of a defendant pleading
guilty to test the weight of potential punishment.” Id., citing Kadwell v. United States,
315 F.2d 667, 670 (9th Cir. 1963).
       {¶19} Furthermore, although there is no time limit to make this motion after a
sentence is imposed, an undue delay between the time when the motion is filed and
the reason for filing the motion is a factor adversely affecting the credibility of the
movant. Id. at paragraph three of the syllabus.
       {¶20} A hearing is not required on a post-sentence Crim.R. 32.1 motion if the
facts alleged by the defendant and accepted as true by the trial court would not
require the court to permit a guilty plea to be withdrawn. State v. Snyder, 7th Dist.
No. 08-JE-27, 2009-Ohio-4813, ¶ 15, citing State v. Blatnik, 17 Ohio App.3d 201,
204, 478 N.E.2d 1016 (6th Dist.1984). Thus, a defendant is only entitled to a hearing
on a motion to withdraw if the trial court determines the defendant alleged facts
sufficient to prove a manifest injustice. Id.
       {¶21} Appellant admits in his brief that the trial court complied with Crim.R.
11(C)(2) in accepting his plea. Thus, appellant concedes that the trial court informed
him of all necessary information and ensured that he was entering his plea
knowingly, voluntarily, and intelligently.
       {¶22} Appellant contends that he was entitled to a hearing on his motion
because he was “merely present” at the scene of the crime and did not participate in
the shooting.    But appellant’s own statements at his sentencing hearing directly
contradict his argument here. At his sentencing hearing, appellant stated: “The only
reason why I started shooting, which I am not denying that I did, was because I
feared for my life. Everybody was talking about shooting each other, and, you know,
I was drunk. I did what I thought was necessary.” (Sentencing Tr. 28). Thus,
appellant admitted he was not “merely present.”
       {¶23} Additionally, the trial court sentenced appellant on October 22, 2013.
He did not file his motion to withdraw his plea until September 14, 2015, nearly two
                                                                                -5-


years after being sentenced and nearly nine months after this court decided his direct
appeal. This was an undue delay affecting appellant’s credibility.
       {¶24} Based on the above, appellant did not allege facts sufficient to prove a
manifest injustice. Therefore, the trial court did not abuse its discretion in overruling
appellant’s motion without a hearing.
       {¶25} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶26} Appellant’s second assignment of error states:

                APPELLANT’S MERE PRESENCE AT THE SCENE OF A
       CRIME AND THE FACT THAT HE WAS ACQUAINTED WITH THE
       PERPETRATOR IS NOT SUFFICIENT PROOF, IN AND OF ITSELF,
       THAT APPELLANT WAS INVOLVED IN ANY CRIMINAL ACTS.

       {¶27} Here appellant attempts to rehash the underlying facts of the case. He
contends it was one of his co-defendants, and not him, who brandished a gun and
fired the shots at Willis. He goes on to again claim that he was “merely present” with
his co-defendants at the scene of the crime and there was no evidence that he aided
or abetted them.
       {¶28} Again, appellant ignores his own statements at his sentencing hearing
where he plainly admitted that he shot the victim. Moreover, appellant would have
been well aware of the facts of the case all along. He provides no explanation as to
why he waited almost two years after his sentence was imposed to file his motion to
withdraw his guilty plea.
       {¶29} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
                                                                      -6-


      {¶30} For the reasons stated above, the trial court’s judgment is hereby
affirmed.


Waite, J., concurs.

DeGenaro, J., concurs.
