[Cite as State v. Walsh, 2015-Ohio-4135.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 14-CA-110
ANGELA M. WALSH                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No. 2014
                                                   CR 00458

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            October 1, 2015


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KENNETH OSWALT                                     CHRISTOPHER SHOOK
20 South Second Street, 4th Floor                  33 West Main Street, P.O. Box 4190
Newark, OH 43055                                   Newark, OH 43058-4190
Licking County, Case No. 14-CA-110                                                        2

Gwin, P.J.

       {¶1}   Defendant-appellant Angela M. Walsh appeals the December 2, 2014

judgment entry of the Licking County Court of Common Pleas denying her motion to

withdraw guilty plea. Appellee is the State of Ohio.

                                   Facts & Procedural History

       {¶2}   On June 19, 2014, appellant was indicted on one count of endangering

children, violation of R.C. 2919.22, a felony of the third degree. The bill of particulars

filed on July 8, 2014 alleged that appellant, as parent or guardian of a child, recklessly

created a substantial risk to the health of the safety of a two (2) year old child. Further,

that appellant became aware that the child got into prescription drugs used to treat

schizophrenia and had pills in his mouth, but failed to obtain medical attention for the

child until twenty-two (22) hours later and that appellant told others not to call for

medical attention because she was afraid she would lose custody of the child.

       {¶3}   On July 10, 2014, appellee filed a motion to amend indictment to include

the culpable state of recklessness. The trial court granted this motion on July 14, 2014.

The trial court conducted a change of plea hearing on September 3, 2014. At the

hearing, appellant confirmed that she understood she was making a complete

admission to the allegations contained in the indictment, that she was aware of the

potential penalties for the offense up to a maximum prison sentence of thirty-six (36)

months and a potential maximum fine of up to $10,000, and stated that no one

threatened or coerced her in any way to get her to plead guilty.

       {¶4}   The trial court stated, "It's my understanding there's a recommendation

here with respect to sentencing if certain conditions are met?" The prosecutor read
Licking County, Case No. 14-CA-110                                                      3


these conditions into the record: the State of Ohio would not oppose release on bond

pending sentencing; if no violations of her conditions of bond occur and she complies

with the orders and instructions of the Juvenile Court and Children's Services as it

relates to parenting, the State of Ohio would then recommend community control. The

prosecutor stated that if, between the change of plea hearing and the sentencing, there

are violations by appellant such as not following the rules of the Juvenile Court,

Children's Services, and the trial court, the State of Ohio retained the right to

recommend any sentence it then deemed appropriate.            Appellant and her counsel

confirmed this was their understanding of the agreement and appellant confirmed she

wanted to proceed to change her plea to guilty. The trial court found appellant made a

knowing, intelligent, and voluntary decision to enter a plea of guilty; that she had been

informed of her constitutional rights; that she understood the nature of the charge, the

effect of the guilty plea, as well as the potential penalties which could be imposed.

       {¶5}   Appellant's attorney requested that appellant be released on bond so,

"she [could] start working her case plan with Job and Family Services and demonstrate

that she can comply with the bond conditions set forth by the probation department * * *

[as] these are essential qualifications for her to obtain a recommendation from the

Prosecutor's office for community control in this matter."        The trial court granted

appellant's request to be released on bond, with certain conditions, including that she be

ordered to comply with all terms of the case plan from Licking County Job and Family

Services and any obligations by the Licking County Juvenile Court.

       {¶6}   On September 3, 2014, appellant also signed a Entry of Guilty Plea, which

provides as follows:
Licking County, Case No. 14-CA-110                                                   4


       I am entering these pleas as a result of a negotiated agreement reached

       by my attorney on my behalf and the Licking County Prosecutor's Office.

       This agreement is as follows: The Prosecutor's Office has agreed to

       recommend that I be released on bond following my change of plea and

       pending a pre-sentence investigation. If I comply with my bond conditions

       and any case plan from Licking County Job and Family Services, the

       Prosecutor's Office will recommend community control sanctions at

       sentencing.

       {¶7}   The trial court entered judgment of conviction on September 3, 2014.

       {¶8}   A sentencing hearing was held on October 30, 2014. The prosecutor

stated that, when appellant pled, the State of Ohio agreed to recommend community

control if, during the time appellant was released on bond prior to the sentencing

hearing, she complied with the bond conditions and the case plan.         Further, that

appellant had not done many of the things she was expected to do through Job and

Family Services, such as following through with alcohol and drug counseling and

comply with mental health recommendations. Additionally, that appellant is living in a

hotel with someone she recently met. The prosecutor stated that the Court "needs to do

something to get her attention. Now, if that means sending her to prison, then send her

to prison."

       {¶9}   Appellant's counsel stated that he was unaware of the State of Ohio's

concerns and issues, but he did get a copy of the presentence investigation report.

Further, that appellant had been attempting to comply with the case plan requirements.

Appellant's counsel requested appellant be placed on community control. Appellant
Licking County, Case No. 14-CA-110                                                     5


indicated to the trial court that she was living at the EconoLodge with a man she met

two months prior to the sentencing hearing. Further, that Job and Family Services

never gave her the chance to work a case plan.

      {¶10} The trial court stated that it considered the statements of the parties, the

overriding purposes of felony sentencing, and the relevant seriousness and recidivism

factors. Taking all of that into consideration, the trial court found appellant was not

amenable to a community control sanction.         The trial court noted her lackluster

performance while released on bond, including her attitude towards Children's Services.

In a judgment of sentence filed on October 30, 2014, the trial court stated it considered

the record, statements of the parties, pre-sentence investigation, victim impact

statement, the purposes and principles of sentencing in R.C. 2929.11 and balanced the

seriousness and recidivism factors in R.C. 2929.13. The trial court found a prison term

was consistent with the purposes and principles of sentencing under R.C. 2929.11 and

appellant was not amenable to a community control sanction.

      {¶11} Appellant filed a motion to withdraw guilty plea and/or motion for

resentencing on October 31, 2014, arguing that appellee breached its plea agreement

when it recommended prison time. Further, that appellee presented no evidence that

appellant did not meet her case plan and bond conditions.

      {¶12} Appellee filed a response, stating that the plea was conditional, and

appellant failed to meet the conditions.     In their response, appellee submitted an

affidavit by appellant’s social worker, Kelsey Weinstein (“Weinstein”) stating that:

appellant was informed of the minimum case plan requirements, including drug and

alcohol assessment and counseling, mental health counseling, parenting classes, and
Licking County, Case No. 14-CA-110                                                      6


obtaining stable housing; she provided appellant with contact information to assist her

on September 8, 2014; she met with appellant on October 16, 2014 and she had taken

no steps to follow through with drug and/or alcohol counseling, mental health counseling

or parenting classes; appellant had moved to a local hotel with a person she recently

met; she reviewed the audio of the sentencing hearing and the prosecutor’s

representations at the hearing with respect to appellant’s performance in meeting

expectations of her case plan are, in her opinion, accurate; and appellant had the ability

to take substantial initiative toward each case plan goal in seven weeks when she was

released from jail in September, but she did not do so. Appellee also submitted the

affidavit of Paul Burke (“Burke”), the officer at the Licking County Department of Adult

Court Services who completed appellant’s PSI. Burke stated that he made contact with

Weinstein and she informed him of the concerns with appellant not following through

with her case plan; that he was present at the sentencing hearing; and that the

representations made by the prosecutor were accurate.

      {¶13} The trial court issued a judgment entry on December 2, 2014 denying

appellant’s motion to withdraw plea. The trial court indicated that, based upon the

factors submitted at the sentencing hearing, the trial court would have imposed a prison

sentence even if appellee recommended community control.

      {¶14} Appellant appeals the December 2, 2014 judgment entry of the Licking

County Common Pleas Court and assigns the following as error:

      {¶15} “I. THE TRIAL COURT ERRED BY NOT ALLOWING THE DEFENDANT-

APPELLANT TO WITHDRAW HER GUILTY PLEA AFTER THE STATE OF OHIO
Licking County, Case No. 14-CA-110                                                      7


BREACHED ITS PLEA AGREEMENT TO RECOMMEND COMMUNITY CONTROL

SANCTIONS AT THE SENTENCING HEARING.”

                                               I.

      {¶16} Appellant argues the trial court erred in failing to grant his motion to

withdraw based upon the State’s breach of the plea agreement. A motion to withdraw

plea is governed by the standards set forth in Criminal Rule 32.1, which provides that a

trial court may grant a defendant’s post-sentence motion to withdraw a guilty plea only

to correct a manifest injustice. Therefore, “[a] defendant who seeks to withdraw a plea

of guilty after the imposition of sentence has the burden of establishing the existence of

manifest injustice.”   State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

Although no precise definition of “manifest injustice,” exists, in general, “manifest

injustice relates to some fundamental flaw in the proceedings which result in a

miscarriage of justice or is inconsistent with the demands of due process.” State v.

Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588. Under this standard, a

post-sentence withdrawal motion is allowable only in extraordinary cases.        State v.

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). A defendant seeking to withdraw a

post-sentence guilty plea bears the burden of establishing manifest injustice based on

specific facts contained in the record or supplied through affidavits attached to the

motion. State v. Graham, 5th Dist. Delaware No. 12 CAA 11 0082, 2013-Ohio-600.

      {¶17} A plea agreement is generally “contractual in nature and subject to

contract-law standards.” State v. Butts, 112 Ohio App.3d 683, 679 N.E.2d 1170 (8th

Dist. Cuyahoga 1996).      Plea agreements should be construed strictly against the

government. United States v. Fitch, 282 F.3d 364 (6th Cir. 2002). “When a plea rests
Licking County, Case No. 14-CA-110                                                       8


in any significant degree on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be fulfilled.”

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “When an

allegation is made that a plea agreement has been broken, the defendant must merely

show that the agreement was not fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573

N.E.2d 687 (6th Dist. Lucas 1988). A prosecutor’s failure to comply with the terms of

the plea agreement may, in some circumstances, render a defendant’s plea involuntary

and undermine the constitutionality of a conviction based upon that plea. Blackledge v.

Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

      {¶18} It is the duty of the trial court as a trier of fact to determine whether there

has been compliance with the plea agreement. State v. Winfield, 5th Dist. Richland No.

2005-CA-32, 2006-Ohio-721.      The intent of the parties to a contract presumptively

resides in the ordinary meaning of the language employed in the agreement. Kelly v.

Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987). Contractual language

giving rise to doubt or ambiguity must be interpreted against the party who used it.

Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949 (1996). In order to

determine whether a plea agreement has been breached, courts must examine what

the parties reasonably understood at the time the defendant entered his guilty plea.

See United States v. Partida-Parra, 859 F.2d 629 (9th Cir. 1988). Therefore, we must

identify the terms of the plea agreement before we can determine if the state breached

the agreement. State v. Winfield, 5th Dist. Richland No. 2005-CA-32, 2006-Ohio-721.

      {¶19} At appellant’s entry of plea hearing, the prosecutor described the State of

Ohio’s obligation under the plea agreement as follows: the State of Ohio would not
Licking County, Case No. 14-CA-110                                                     9


oppose release on bond pending sentencing; if she does not violate the conditions of

bond and she complies with the orders and instructions of the Juvenile Court and

Children's Services as it relates to parenting, the State of Ohio would then recommend

community control.    The prosecutor continued that if between the change of plea

hearing and the sentencing, appellant did not follow the rules of the Juvenile Court,

Children's Services, and the trial court, the State of Ohio retained the right to

recommend any sentence it then deemed appropriate.

      {¶20} In addition, the entry of plea form provided, “If I comply with my bond

conditions and any case plan from Licking County Job and Family Services, the

Prosecutor’s Office will recommend community control sanctions at sentencing.” When

appellant was specifically asked by the trial court whether this was her understanding of

the plea agreement, appellant confirmed this was her understanding of the agreement

and appellant confirmed she wanted to proceed to change her plea to guilty.

      {¶21} Thus, appellant was expressly informed, by the prosecutor at the plea

hearing and in the plea form, that she had to abide by specific conditions in order to

obtain a recommendation of community control by the prosecutor.          There was an

unequivocal statement in the plea entry or at the plea hearing by the prosecutor and the

conditional language modifies the State of Ohio’s actions. See State v. Ford III, 4th

Dist. Lawrence No. 97 CA 32, 1998 WL 79885 (Feb. 18, 1998). At the sentencing

hearing, the prosecutor detailed specifically how appellant failed to meet these specific

conditions. Though appellant argues that her counsel was not aware of these issues

prior to the sentencing hearing and that there was no testimony by an individual with

actual knowledge of her compliance with the case plan, appellant did not request a
Licking County, Case No. 14-CA-110                                                       10


continuance of the sentencing hearing to review the issues or to obtain testimony of the

social worker. Further, in appellee’s response to appellant’s motion, appellee submitted

an affidavit by appellant’s social worker stating that she reviewed the audio of the

sentencing hearing and the prosecutor’s representations at the hearing with respect to

appellant’s performance in meeting expectations of her case plan are, in her opinion,

accurate.

       {¶22} Accordingly, appellee did not breach the plea agreement because the

agreement was conditional. It was appellant who breached the plea agreement by

failing to abide by the specific conditions. The prosecutor did not breach the agreement

because appellant’s failure to satisfy a condition on which the recommendation was

promised relieved the prosecutor of his duty to perform. See State v. Gilroy, 195 Ohio

App.3d 173, 2011-Ohio-4163,959 N.E.2d 19 (2nd Dist. Montgomery); State v. Adkins,

161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729 (4th Dist. Athens). This does

not render the guilty plea other than knowing and voluntary. Furthermore, it is clear

from the record that appellant knew that the prosecutor’s recommendation was

conditional and entered her guilty plea on that basis. State v. Gilroy, 195 Ohio App.3d

173, 2011-Ohio-4163,959 N.E.2d 19 (2nd Dist. Montgomery). Our review of appellant’s

plea reveals that appellant was afforded a thorough hearing prior to entering her plea,

and, the trial court complied with Criminal Rule 11 in accepting her guilty plea by

advising her of all the constitutional rights she was giving up by pleading guilty. There is

no indication that a “manifest injustice” has occurred warranting the withdrawal of

appellant’s plea.
Licking County, Case No. 14-CA-110                                                        11


         {¶23} Further, the trial court specifically stated that, even if the prosecutor had

recommended a community control sentence, based upon the factors submitted at the

sentencing hearing, the trial court still would have imposed a prison sentence. Thus,

even absent the prosecutor’s comments, appellant’s sentence would not have been any

different. State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574; State v.

Namack, 7th Dist. Belmont No. 01 BA 46, 2002-Ohio-5187. “A defendant whose plea

agreement has been broken will not always be able to show prejudice, either because

he obtained the benefits contemplated by the deal anyway or because he likely would

not have obtained those benefits in any event." U.S. v. Keller, 665 F.3d 711 (6th Cir.

2011).

         {¶24} Appellant finally argues the trial court erred in not holding a hearing on her

motion to withdraw plea. A trial court is not automatically required to hold a hearing on

a post-sentence motion to withdraw a guilty plea. State v. Spivakov, 10th Dist. No.

13AP-32, 2013-Ohio-3343. 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.     State v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633.

Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest

injustice. State v. Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16. Further, a

hearing is not required if the record indicates that the movant is not entitled to relief and

the movant has failed to submit evidentiary documents sufficient to demonstrate a

manifest injustice. State v. Cargill, 9th Dist. Summit No. 27590, 27011, 2015-Ohio-661.

         {¶25} The decision whether to hold a hearing on a post-sentence motion to

withdraw a guilty plea is left to the discretion of the trial court. State v. Smith, 49 Ohio
Licking County, Case No. 14-CA-110                                                      12


St.2d 261, 361 N.E.2d 1324 (1977). Therefore, this Court’s review of the trial court’s

decision not to hold a hearing is limited to a determination of whether the trial court

abused its discretion. State v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-

Ohio-2633.

      {¶26} In this case, we find the trial court did not abuse its discretion in ruling on

appellant’s motion to withdraw without conducting a hearing on the motion.            The

allegations contained in the motion were insufficient in this case to demonstrate a

manifest injustice or demonstrate a breach of the conditional plea agreement.

      {¶27} Based upon the foregoing, appellant’s assignment of error is overruled.

The December 2, 2014 judgment entry of the Licking County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
