[Cite as State v. Hill, 2012-Ohio-1754.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. CT11-0061
TRACY J. HILL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Muskingum County
                                                Common Pleas Court, Case No.
                                                CR2010-0168


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         April 16, 2012


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


ROBERT L. SMITH                                 DAVID A. SAMS
Assistant Prosecuting Attorney                  P.O. Box 40
27 North Fifth Street                           West Jefferson, Ohio 43162
Zanesville, Ohio 43701
Muskingum County, Case No. CT11-0061                                                    2

Hoffman, P.J.


         {¶1}   Defendant-appellant Tracy J. Hill appeals the October 14, 2011 Judgment

Entry entered by the Muskingum County Court of Common Pleas denying her motion to

withdraw plea. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On May 31, 2011, Appellant filed a motion to withdraw her plea stating the

state of Ohio failed to honor the plea bargain agreed upon. Appellant was indicted on

one count of drug possession, and entered a plea of guilty in return for the State’s

agreement to recommend community control. The trial court sentenced Appellant to a

prison term of ten months on November 2, 2010.

         {¶3}   On January 3, 2011, Appellant applied for judicial release. On January

10, 2011, the State filed a responsive pleading indicating it would take no position with

regard to the motion in light of the plea negotiations. Via Judgment Entry of January 12,

2011, the trial court denied Appellant’s application for judicial release.

         {¶4}   On February 7, 2011, Appellant filed another motion for judicial release.

On February 15, 2011, the State filed a response indicating it would take no position

with respect to the motion. Via Judgment Entry dated February 22, 2011, the trial court

denied Appellant’s motion for judicial release.

         {¶5}   On March 8, 2011, Appellant filed another motion for judicial release. The

State did not file a responsive pleading. Via Judgment Entry of March 21, 2011, the trial

court denied Appellant’s motion for judicial release.




1
    A rendition of the facts is unnecessary for our resolution of this appeal.
Muskingum County, Case No. CT11-0061                                                    3


      {¶6}    On May 31, 2011, Appellant moved the trial court to withdraw her plea of

guilty. Via Judgment Entry of October 14, 2011, the trial court denied the motion.

      {¶7}    Appellant now appeals, assigning as error:

      {¶8}    “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS IN

VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS WHEN THE TRIAL

COURT DENIED HER MOTION TO WITHDRAW HER PLEA.”

      {¶9}    Crim. R. 32.1 governs the withdrawal of a guilty plea and states “[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.”

      {¶10} An appellate court reviews a trial court's decision on a motion to withdraw

a plea under an abuse of discretion standard. State v. Francis, 104 Ohio St.3d 490, 820

N.E.2d 355, 2004–Ohio–6894.

      {¶11} On October 4, 2010, Appellant appeared before the trial court and entered

a plea of guilty to the one count set forth in the indictment. In the Change of Plea form,

executed by Appellant, the State agreed to recommend Appellant “be placed on

Community Control and submit to an alcohol/drug evaluation by Pamela Wells-Exline,

successfully complete any recommendations she may make.” The plea agreement did

not contain any agreement with regard to future proceedings. The trial court proceeded

to accept Appellant’s change of plea.

      {¶12} On November 2, 2010, Appellant appeared before the trial court for

sentencing.   The trial court ordered Appellant serve a ten month prison sentence.

Appellant did not appeal the sentence.
Muskingum County, Case No. CT11-0061                                                   4


      {¶13} Appellant repeatedly moved the trial court for judicial release. The State

filed written responses on two occasions, on which it recounted the plea negotiations

and deferred to the Court for ruling on Appellant’s application for judicial release. On

two occasions, the State maintains it did not have an opportunity to respond.

      {¶14} Appellant then moved the trial court to withdraw the plea of guilty asserting

breach of the plea bargain by the State.      Appellant claims the State breached its

promise to recommend community control by deferring to the trial court its determination

of Appellant’s application for judicial release rather than making an additional

recommendation with respect thereto.

      {¶15} A review of the written plea agreement provides there was not an

agreement between the State and Appellant as to a recommendation for judicial release

after sentencing. The State read the terms of the agreement into the record and the

Court reviewed the entire plea agreement with Appellant.        The Court indicated to

Appellant it was not bound by the terms of the agreement and could order any sentence

authorized by law. The plea agreement addressed only the joint recommendation for

purposes of sentencing. It did not address either party’s responsibility in the event the

Court did not abide by their agreement or in the event Appellant was placed on

community control and violated the terms thereof.

      {¶16} Based on the foregoing, we find Appellant has not demonstrated the State

breached the terms of the plea agreement and the trial court did not abuse its discretion

in denying Appellant’s motion to withdraw plea.
Muskingum County, Case No. CT11-0061                                          5


      {¶17} The October 14, 2011 Judgment Entry of the Muskingum County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ Sheila G. Farmer __________________
                                       HON. SHEILA G. FARMER


                                       s/ John W. Wise _____________________
                                       HON. JOHN W. WISE
Muskingum County, Case No. CT11-0061                                              6


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
TRACY J. HILL                             :
                                          :
       Defendant-Appellant                :         Case No. CT11-0061




       For the reasons stated in our accompanying Opinion, the October 14, 2011

Judgment Entry of the Muskingum County Court of Common Pleas is affirmed. Costs

assessed to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
