[Cite as State v. Martin, 2012-Ohio-4394.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 11CA0116
CARLOS MARTIN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 09 CR 0162


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         September 24, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            BRIAN G. JONES
PROSECUTING ATTORNEY                           The Law Office of Brian Jones
RICHLAND COUNTY, OHIO                          2211 U.S. Higway 23 North
                                               Delaware, Ohio 43015
BY: JILL M. COCHRAN
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11CA0116                                                        2

Hoffman, P.J.


       {¶1}   Defendant-appellant Carlos Martin appeals the November 8, 2011 Order

entered by the Richland County Court of Common Pleas, which overruled his motion to

withdraw guilty plea. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On July 15, 2008, while Appellant was an inmate at the Richland County

Correction Institution, his girlfriend, Rochelle Carter, brought marijuana into the facility

with the intent to deliver the same to Appellant during an inmate visitation. Prison

officials stopped Carter prior to the visit and found eight balloons filled with marijuana

concealed in her mouth and bra. Carter admitted she had engaged in this behavior on

three other occasions, and indicated the drugs had been given to her by Appellant’s

brother.

       {¶3}   On March 6, 2009, the Richland County Grand Jury indicted Appellant on

one count of aiding and abetting illegal conveyance of drugs of abuse on grounds of a

detention facility, in violation of R.C. 2921.39(A)(2), a felony of the third degree.

Appellant appeared for arraignment on April 2, 2009, and entered a plea of not guilty to

the charge. Although the trial court originally scheduled the matter for jury trial on July

9, 2009, the trial was continued and rescheduled at least seven times due to the trial

court’s trial schedule as well as the unavailability of witnesses for both sides, with the

final trial date being June 17, 2010.

       {¶4}   During jury voir dire, Attorney Edward LaRue, Appellant’s trial counsel,

approached the bench and informed the trial court Appellant wished to enter a guilty

plea. The trial court retired to chambers with the prosecutor, Attorney LaRue, and
Richland County, Case No. 11CA0116                                                         3


Appellant. The trial court commenced a Crim. R. 11 colloquy with Appellant. Appellant

advised the trial court he had taken the prescription drug, Paxil, that morning, but, after

further discussion, indicated the drug did not affect his ability to think clearly. The trial

court noted Appellant did not appear to be under the influence.             The trial court

completed the Crim. R. 11 colloquy then provided Appellant and his attorney with an

opportunity to review the change of plea form.         Appellant ultimately executed the

change of plea form and entered a plea of guilty. The trial court accepted the plea,

found Appellant guilty, and sentenced him to a four year term of incarceration.

Appellant did not file a direct appeal.

       {¶5}   On October 10, 2011, Appellant filed a motion to withdraw guilty plea.

Therein, Appellant asserted he should be permitted to withdraw his guilty plea as such

was not made knowingly and intelligently due to several adverse circumstances at the

time of the plea, including the fact he had taken a prescription medication with the

potential side effect of depression-like symptoms.

       {¶6}   Via Judgment Entry filed November 8, 2011, the trial court overruled

Appellant’s motion to withdraw guilty plea. The trial court found Appellant failed to

demonstrate a manifest injustice would occur should he not be permitted to withdraw his

plea. The trial court cited extensive portions of the change of plea hearing to establish

the flaws of Appellant’s arguments.

       {¶7}   It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:
Richland County, Case No. 11CA0116                                                    4


      {¶8}     “I. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE

OF CARLOS MARTIN WHEN IT OVERRULED HIS MOTION TO WITHDRAW GUILTY

PLEA WITHOUT A HEARING.”

                                                I

      {¶9}     Herein, Appellant contends the trial court abused its discretion in

overruling his motion to withdraw guilty plea without a hearing because he was taking a

prescription medication which affected his ability to make a knowing and voluntary plea.

We disagree.

      {¶10} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which 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.”

      {¶11} “Manifest injustice relates to some fundamental flaw in the proceedings

which result[s] in a miscarriage of justice or is inconsistent with the demands of due

process.” State v. Williams, 10th Dist. No. 03AP–1214, 2004–Ohio–6123, ¶ 5. “ ‘[I]t is

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

extraordinary cases.’ “ State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656, ¶

7, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). A defendant seeking to

withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice

based on specific facts either contained in the record or supplied through affidavits

attached to the motion. State v. Orris, 10th Dist. No. 07AP–390, 2007–Ohio–6499.
Richland County, Case No. 11CA0116                                                         5


       {¶12} A trial court is not automatically required to hold a hearing on a post-

sentence motion to withdraw a plea of guilty. 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. Williams, supra at ¶ 6, citing State v. Kent, 10th Dist. No. 03AP–

722, 2004–Ohio–2129, ¶ 8.

       {¶13} A trial court's decision to deny a post-sentence motion to withdraw a plea

of guilty and the decision whether to hold a hearing on the motion are subject to review

for abuse of discretion. Smith, supra. “The term ‘abuse of discretion’ connotes more

than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶14} In deciding a Crim.R. 32.1 motion, the good faith, weight, and credibility of

a moving party's assertions are a matter for resolution by the trial court. Smith, supra.

Thus, the trial court has great discretion in assessing the credibility of affidavits used to

support a Crim.R. 32.1 motion. State v. Roberts, 8th Dist. No. 93439, 2010–Ohio–1436.

We note Appellant's motion to withdraw his guilty pleas was filed almost 16 months after

his sentencing. Although not dispositive on its own, “[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.” Smith, supra at paragraph three of the

syllabus.

       {¶15} Appellant asserts he should be permitted to withdraw his guilty plea

because such was not entered knowingly and voluntarily. The following dialogue during

the June 17, 2010 Change of Plea Hearing belies Appellant's assertion.
Richland County, Case No. 11CA0116                                                       6


      {¶16} “The Court: Before you were brought here to court this morning, have you

had any medicine or anything that would interfere with your clear thinking?

      {¶17} “The Defendant: I just take Paxil.

      {¶18} “The Court: Does that make you feel fuzzy headed?

      {¶19} “The Defendant: It is like a depression…

      {¶20} “The Court: Antidepressant?

      {¶21} “The Defendant: Yeah.

      {¶22} “The Court: Okay. Well, I am asking you that, because I want to be sure

that you are clear headed enough to make decisions about your life. Do you feel clear

headed this morning?

      {¶23} “The Defendant: Everything just came at me, so I just - - I just learned…

      {¶24} “The Court: I understand that you just learned they got letters that you

wrote during January and February, I guess it was. Other than you have some difficult

decisions to make, what I am asking you is, is there anything about this Paxil you take

or anything you ingested that would keep you from thinking clearly because of the drugs

you took?

      {¶25} “The Defendant: No. I am not… No. Right now I am just baffled.

      {¶26} “The Court: Okay.

      {¶27} “Mr. LaRue: You are overwhelmed. Is that fair to say? But the question

that the judge is asking - - and I am sorry, but I believe the question the judge is asking

you is: Are you of sound mind? Do you understand what is going on? Do you know

you are in a courtroom at Richland County Common Pleas Court, Judge DeWeese’s

court specifically, and that you are set to go to trial? We have a jury out there, and you
Richland County, Case No. 11CA0116                                                     7


are confronted now with that. I understand you are wishing to change your plea. Is that

right, Carlos?

       {¶28} “The Defendant: I don’t - - I don’t uhm, I don’t want to stand no chance of

getting the maximum time at all if I go to trial.

       {¶29} “Mr. LaRue: Well, the judge would make a decision, no matter what, on

punishment, whether you go to trial or whether you enter a plea.          * * * Do you

understand? You understand what you are doing?

       {¶30} “The Defendant: Yeah.

       {¶31} “Mr. LaRue: Yes?

       {¶32} “The Defendant: Yeah.

       {¶33} “* * *

       {¶34} “Mr. LaRue: Carlos, do you know what is going on and what you are

doing?

       {¶35} “The Defendant: I am seeing what is about to happen to me.

       {¶36} “Mr. LaRue: Okay. And that is of your own free will? You do that of your

own free choice?

       {¶37} “The Defendant: Yes.

       {¶38} “The Court: The reason we are asking these questions, Mr. Martin, is , if

you are not, if you are not understanding what is going on, then I can’t take a plea from

you. That doesn’t stop us from going ahead with the trial. But, I can’t take a plea from

you if you are saying that you are so perplexed that you can’t understand what you are

doing. Do you understand what you are doing?

       {¶39} “The Defendant: Yes.
Richland County, Case No. 11CA0116                                                      8


       {¶40} “The Court: Just sitting and looking at you, I don’t think that there is

anything wrong with you, other than you are upset with the situation you are in. But, I

mean, you are coherent. You don’t have any trouble walking around. You have no

trouble moving. You appear to understand what I am saying.

       {¶41} “The Defendant: Yes.

       {¶42} “The Court: I see intelligence in your eyes. I don’t see there is a problem.

So I am assuming that is the case then, and we will proceed.

       {¶43} “* * *

       {¶44} Tr. June 17, 2010 Change of Plea at 5-8.

       {¶45} We find the record clearly establishes Appellant was not coerced in any

manner into entering his plea and understood what he was doing. Although he may

have wished for additional time to ponder the decision, there is no evidence of duress or

lack of a clear mind. Appellant’s feelings of bafflement are not due to his taking Paxil,

but rather due to the fact Appellant had just learned the State had new evidence which

could potentially be the basis for additional charges against him. We find no abuse of

discretion in the trial court’s denial of Appellant’s motion to withdraw guilty plea.
Richland County, Case No. 11CA0116                                                  9


      {¶46} Appellant’s sole assignment of error is overruled. The decision of the

Richland County Court of Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

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


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


                                              s/ Julie A. Edwards___________________
                                              HON. JULIE A. EDWARDS
Richland County, Case No. 11CA0116                                              10


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


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CARLOS MARTIN                              :
                                           :
       Defendant-Appellant                 :         Case No. 11CA0116


       For the reasons stated in our accompanying Opinion, the decision of the

Richland County Court of Pleas is affirmed. Costs to Appellant.




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


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


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
