[Cite as State v. Magby, 2019-Ohio-877.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                           STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                   v.

                                           RONALD MAGBY,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                           Case No. 17 MA 0006


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                      Case No. 16 CR 38

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                                Affirmed



 Atty. Paul Gains, Prosecuting Attorney, Atty. Ralph Rivera, Assistant Prosecutor,
 Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
 Youngstown, Ohio 44503, for Plaintiff-Appellee and

 Atty. Lynn Maro, Maro & Schoenike Co., 7081 West Boulevard, Suite 4, Youngstown,
 Ohio 44512, for Defendant-Appellant.
                                                                                        –2–



                                          Dated:
                                       March 5, 2018

 Donofrio, J.

       {¶1}   Defendant-appellant, Ronald Magby, appeals his convictions in the
Mahoning County Common Pleas Court following guilty pleas for aggravated arson,
domestic violence, kidnapping, felonious assault, and attempted murder.
       {¶2}   On January 13, 2016, a fire broke out at appellant’s house. Appellant and
his girlfriend were present in the home when the fire occurred. Only appellant sustained
injuries and he was taken to the hospital. Upon appellant’s release from the hospital, he
was arrested for intentionally causing the fire with his girlfriend in the house.
       {¶3}   On February 11, 2016, a Mahoning County Grand Jury indicted appellant
on four counts: count one for aggravated arson in violation of R.C. 2909.02(A)(1)(B)(1)(2),
a first-degree felony; count two for kidnapping in violation of R.C. 2905.01(A)(3)(C), a
first-degree felony; count three for attempted aggravated murder in violation of R.C.
2903.01(B)(F) and R.C. 2923.02(A), a first-degree felony; and count four for domestic
violence in violation of R.C. 2919.25(A)(D), a fourth-degree felony.
       {¶4}   On March 31, 2016, a superseding indictment was issued. In addition to the
original four counts, the superseding indictment charged appellant with another three
counts: count five for kidnapping in violation of R.C. 2905.01(A)(2)(C), a first-degree
felony; count six for felonious assault in violation of R.C. 2903.11(A)(2)(D), a second-
degree felony; and count seven for attempted murder in violation of R.C. 2903.02(A)(D)
and R.C. 2923.02(A), a first-degree felony.
       {¶5}   Appellant initially entered a not guilty plea to the charges. On November 30,
2016, appellant reached a plea agreement with plaintiff-appellee, the State of Ohio.
Appellant was to plead guilty to counts one, four, five, six, and seven. In exchange, the
state agreed to dismiss counts two and three. The state also agreed to recommend a
sentence of eight years. Appellant was also to register as an arson offender.
       {¶6}   On the same day appellant and the state reached the plea agreement, the
trial court held a change of plea hearing. During the plea colloquy at the hearing, the trial
court asked appellant, “[d]o you also understand that by pleading guilty to the charges



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you’re admitting that you committed each of those crimes?” (Plea Tr. 6). Appellant
responded, “[n]o. No, I didn’t commit none of the crimes.” (Plea Tr. 6). The trial court
informed appellant that, in order to receive the plea agreement, he had to plead guilty to
the amended indictment. (Plea Tr. 6-7). When discussing the potential sentence if
appellant was found guilty on all seven counts, both appellant’s counsel and the state
informed the trial court that the potential cumulative sentence was 64 and one half years
of incarceration. (Plea Tr. 14). Eventually, appellant accepted the plea agreement. The
trial court accepted appellant’s guilty plea and the trial court set the matter for sentencing.
       {¶7}   On December 20, 2016, prior to appellant’s sentencing date, appellant filed
a pro se motion to withdraw his guilty plea. Appellant argued that he never consented to
a recommended sentence of eight years of incarceration. Appellant also argued that his
counsel misled him concerning his plea agreement.
       {¶8}   The trial court addressed appellant’s motion at the December 28, 2016
sentencing hearing. Appellant and his counsel both confirmed that appellant was
withdrawing his pro se motion to withdraw his guilty plea.
       {¶9}   For purposes of sentencing, the trial court merged the kidnapping and
felonious assault convictions with the attempted murder conviction. The trial court
sentenced appellant to eight years for aggravated arson, six months for domestic
violence, and eight years for attempted murder. The trial court ordered these sentences
to be served concurrently for a total of eight years in prison.
       {¶10} On January 4, 2017, appellant filed another pro se motion to withdraw his
guilty plea. In this motion, appellant argued that the victim in this case lied about material
facts related to the charges. Appellant also argued that the injuries he sustained as a
result of the fire affected his ability to think rationally and that his court-appointed counsel
informed him that in order to get medical treatment for his burns, he had to plead guilty.
       {¶11} Prior to the trial court ruling on appellant’s motion, appellant filed a notice of
appeal on January 13, 2017. On January 18, 2017, the trial court denied appellant’s
motion to withdraw his guilty plea. On February 8, 2017, this court ordered the record
supplemented with all judgment entries up to January 18, 2017. Appellant now raises
three assignments of error.
       {¶12} Appellant’s first assignment of error states:



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               THE TRIAL COURT ERRED IN PROVIDING INACCURATE
        INFORMATION AS TO THE POTENTIAL MAXIMUM SENTENCE FACED
        IF APPELLANT PROCEEDED TO TRIAL RENDING [sic.] HIS PLEA
        INVOLUNTARILY IN VIOLATION OF THE FIFTH, SIXTH, AND
        FOURTEENTH          AMENDMENT           TO     THE      UNITED        STATES
        CONSTITUTION.

        {¶13} Appellant argues that his guilty plea was not knowing, intelligent, or
voluntary for two reasons. First, appellant argues that the trial court misadvised him of his
potential sentence if found guilty on all seven charges. Second, appellant argues that the
trial court failed to advise him about the lifetime arsonist registration if he were convicted.
        {¶14} Crim.R. 11(C) states that a trial court must make certain advisements prior
to accepting a defendant's guilty plea to ensure that the plea is entered into knowingly,
intelligently and voluntarily. State v. Wright, 7th Dist. No. 09 MA 1, 2009-Ohio-4636, ¶ 13.
These advisements are typically divided into constitutional rights and non-constitutional
rights. Id.
        {¶15} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses
against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the
state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the
defendant cannot be compelled to testify against himself. Id., citing Crim.R. 11(C)(2)(c).
If the trial court fails to strictly comply with these requirements, the defendant's plea is
invalid. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31.
        {¶16} The non-constitutional rights that the defendant must be informed of are: (1)
the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,
an advisement on post-release control; (3) if applicable, that the defendant is not eligible
for probation or the imposition of community control sanctions; and (4) that after entering
a guilty plea or a no contest plea, the court may proceed directly to judgment and
sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-constitutional
advisement).
        {¶17} For the non-constitutional rights, the trial court must substantially comply
with Crim.R. 11's mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474


Case No. 17 MA 0006
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(1990). “Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the
basis that the advisement for the non-constitutional rights did not substantially comply
with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would
not have been otherwise entered. Veney at ¶ 15.
       {¶18} Appellant only argues that the trial court did not substantially comply with
informing him of non-constitutional rights pursuant to Crim.R. 11(C)(2). He argues that
the trial court misadvised him regarding his potential sentence. The trial court advised
appellant that he faced a potential sentence of: 11 years for aggravated arson; 18 months
for domestic violence; 11 years for the first kidnapping charge; 8 years for felonious
assault; 11 years for attempted murder; 11 years for the second kidnapping charge; and
11 years for attempted aggravated murder. (Plea Tr. 14). Both appellant’s counsel and
the state agreed that the potential maximum sentence appellant faced, with no merger
and no concurrent sentences, was 64 and one-half years. (Plea Tr. 14).
       {¶19} After hearing the potential sentence, appellant consulted with his counsel
off the record. Appellant then pled guilty to all counts of the amended indictment. (Plea
Tr. 14-15).
       {¶20} Appellant argues the advisement of 64 and one-half years was incorrect
because many of the counts would have merged for sentencing purposes. Appellant
argues that this is evidenced by the fact that the trial court merged counts five and six
with count seven at the sentencing hearing. (Sent. Tr. 14). Appellant argues that the
actual potential sentence he faced, including the merging of all offenses, was 45 and one-
half years.
       {¶21} In support of his argument, appellant cites State v. Calvillo, 76 Ohio App.3d
714, 603 N.E.2d 325 (8th Dist.1991). In Calvillo, Calvillo pleaded guilty to felonious
assault and having a weapon under a disability. Id. at 716. At the plea hearing, the trial
court informed Calvillo that the potential sentence for felonious assault was five, six,
seven, eight, or nine to twenty years of incarceration. Id. at 720. The court also informed
Calvillo that the potential sentence for having a weapon under disability was six months,
one year, or one and a half years of incarceration. Id.



Case No. 17 MA 0006
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         {¶22} On appeal, the Eighth District noted that the correct potential sentence for
felonious assault was three, four, five, six, seven, or eight to fifteen years and the correct
potential sentence for having a weapon under disability was one and one-half years, two
years, two and one-half years, or three to five years. Id. The Eighth District concluded
that Calvillo’s guilty plea was not knowing, intelligent, or voluntary because he was not
informed of the maximum penalty involved. Id. at 720-721.
         {¶23} Appellant also cites this court’s decision in State v. Eckles, 173 Ohio App.3d
606, 2007-Ohio-6220, 879 N.E.2d 829 (7th Dist.). In Eckles, this court vacated Eckles’
guilty plea to an OVI charge because the trial court did not substantially comply with the
non-constitutional requirements of Crim.R. 11(C). Id. at ¶ 70. The trial court’s advisements
were not in substantial compliance because the trial court failed to inform Eckles of the
20-year look back provision for OVI offenses. Id. at ¶ 70.
         {¶24} Calvillo is not applicable because the trial court incorrectly informed Calvillo
of the potential sentence for each charge. Eckles is also not applicable because the trial
court omitted an entire sentencing enhancement. In both of these cases, the trial court
relayed incorrect information to the defendant. In this case, appellant was properly
advised of the potential sentence on each charge and the cumulative total of all charges,
not including merger or the possibility of concurrent sentences, was 64 and one-half
years.
         {¶25} The maximum penalty referred to in Crim.R. 11(C)(2)(a) refers to the
sentence for each charge rather than the cumulative total of all sentences for all charges
to which the defendant is pleading. State v. Williams, 7th Dist. No 11 MA 131, 2012-Ohio-
6277 citing State v. Johnson, 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 (1988).
Because the trial court properly informed appellant of the maximum sentence for each
individual count pursuant to R.C. 2929.14, the trial court substantially complied with the
non-constitutional advisements of Crim.R. 11(C).
         {¶26} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
         {¶27} We will address appellant’s third assignment of error next because its
resolution affects the resolution of his second assignment of error. It states:




Case No. 17 MA 0006
                                                                                        –7–


                 APPELLANT DID NOT ENTER A KNOWING, INTELLIGENT, AND
       VOLUNTARY PLEA BECAUSE THE TRIAL COURT FAILED TO FULLY
       ADVISE HIM AT THE TIME OF HIS PLEA OF THE LIFETIME ARSON
       REGISTRATION REQUIREMENT IN VIOLATION OF THE FIFTH, SIXTH,
       AND       FOURTEENTH      AMENDMENT          TO   THE     UNITED     STATES
       CONSTITUTION.

       {¶28} Appellant argues that, under Crim.R. 11(C), the trial court was required to
fully inform him about his lifetime arson offender registration requirement prior to
accepting his guilty plea.
       {¶29} As this assignment of error concerns appellant’s guilty plea, it is subject to
the same standard of review previously set forth.
       {¶30} Appellant argues that offender registration requirements fall under one of
the following two categories: remedial and punitive. With remedial registrations, the trial
court is not required to inform defendants of the registration and notification requirements
pursuant to Crim.R. 11. With punitive registrations, the trial court is required to inform
defendants of the registration and notification requirements pursuant to Crim.R. 11.
Appellant argues that the arson registration requirement is punitive in nature.
       {¶31} Only one reference to the arson offender registration requirement was made
at appellant’s change of plea hearing:

       THE COURT: Did you also go over the notice of duties to register as an
       arson offender?

       THE DEFENDANT: Yes.

(Plea Tr. 16).
       {¶32} The state points out that notice of arson registration is governed by R.C.
2909.14. Pursuant to R.C. 2909.14(A)(2), the trial court is only required to notify a
defendant of the arson registration requirement if the judge does not sentence the
defendant to a term of incarceration. Pursuant to R.C. 2909.14(A)(1), if the trial court does
sentence a defendant to a term of imprisonment, the official in charge of the jail or prison




Case No. 17 MA 0006
                                                                                        –8–


where an arson offender is sentenced is required to inform the arson offender of the
registration requirement.
       {¶33} The Eighth District has analyzed this statute specifically. In State v. Rogers,
8th Dist. Nos. 105335, 105518, 2017-Ohio-9161, the Eighth District concluded that an
arson registration does not fall under the “maximum penalty” notification proscribed in
Crim.R. 11(C)(2) because R.C. 2909.14 does not require the trial court to notify the
defendant if the defendant is sentenced to a term of incarceration. Id. at ¶ 22-24. Based
on Rogers and because appellant was sentenced to a term of incarceration, the trial court
substantially complied with the non-constitutional advisements of Crim.R. 11(C) when it
did not fully notify appellant of the lifetime arson registration requirement.
       {¶34} Accordingly, appellant’s third assignment of error lacks merit and is
overruled.
       {¶35} Appellant’s second assignment of error states:

              THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
       APPELLANT’S POST SENTENCE MOTION TO WITHDRAW HIS GUILTY
       PLEA WITHOUT A HEARING WHEN APPELLANT PRESENTED FACTS
       SUPPORTING HIS CLAIM OF INNOCENCE.

       {¶36} Appellant argues the trial court should have granted his motion to vacate
his guilty plea for two reasons. First, appellant argues that the advisements the trial court
gave him addressed in his first and third assignments of error render his guilty plea not
knowing, intelligent, or voluntary. Second, appellant argues that he put forth sufficient
facts which, if taken as true, would render his guilty plea a manifest injustice.
       {¶37} Appellant entered his guilty plea on November 30, 2016. On December 20,
2016, appellant filed a pro se motion to withdraw his guilty plea. At the sentencing hearing
on December 28, 2016, appellant orally withdrew his motion to vacate his guilty plea.
(Sent. Tr. 7-8). Appellant then filed another pro se motion to withdraw his guilty plea on
January 4, 2017. As such, his motion is a post-sentence motion to withdraw.
       {¶38} 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;


Case No. 17 MA 0006
                                                                                            –9–


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).
       {¶39} 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.
       {¶40} 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 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).
       {¶41} Appellant first argues that his motion to withdraw his guilty plea should have
been granted due to incorrect advisements by the trial court regarding his potential
sentence and the arson registration. These arguments were previously addressed and
lack merit. As such, they also lack merit regarding this assignment of error.
       {¶42} As for the motion itself, it set forth two reasons for wanting to withdraw his
guilty plea. First, he argued that the victim in this case, his girlfriend at the time, lied about
material facts. Second, appellant argued that due to the burns he received from the house
fire, approximately 70% of his body was burned and he was in a constant state of agony.
He argued that this pain prevented him from thinking clearly and that he was told he would
only receive proper treatment if he pleaded guilty.
       {¶43} Appellant argues that the allegations in his motion to withdraw, if accepted
as true, entitled him to at least a hearing on the motion. An evidentiary hearing is not
warranted on a post-sentence motion to withdraw a guilty plea 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. McFarland, 7th Dist.
No. 08 JE 25, 2009-Ohio-4391, ¶ 22, citing State v. Bari, 8th Dist. No. 90370, 2008-Ohio-



Case No. 17 MA 0006
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3663, ¶ 9. Appellant bears the burden of demonstrating a manifest injustice. Crim.R. 32.1;
State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ¶ 11.
       {¶44} Appellant’s motion to withdraw had no evidentiary documents attached to
it. The motion relied solely on appellant’s allegations that he is innocent, the victim lied,
and he would only receive proper medical care if he pleaded guilty. Moreover, a claim of
innocence does not provide a reasonable basis for withdrawing the plea; otherwise
withdrawal would effectively be an automatic right. State v. Holin, 174 Ohio App.3d 1,
2007-Ohio-6255, 880 N.E.2d 515, ¶ 20 (11th Dist.) citing U.S. v. Barker, 514 F.2d 208
(D.C. Cir.1975).
       {¶45} There is a tangential issue that appellant raises in this assignment of error.
During the plea colloquy, appellant declared his innocence. First, appellant proclaimed,
“[n]o. No, I didn’t commit none of the crimes. (Plea Tr. 6).
       {¶46} After appellant proclaimed his innocence, the trial court informed him that
the plea agreement was conditioned upon him pleading guilty. (Plea Tr. 6-7). After
appellant indicated that he understood he had to plead guilty in order to receive the plea
agreement, the trial court continued with a standard Crim.R. 11 colloquy. (Plea Tr. 7-12).
Appellant again proclaimed his innocence stating “I can’t do it. No. It’s a big lie. I don’t - -
I’m not pleading to them charges. It’s crazy. This is outrageous.” (Plea Tr. 12).
       {¶47} The trial court then informed appellant that he had two choices: he could
accept the plea agreement or continue with his scheduled trial where he would be tried
on all counts. (Plea Tr. 13-14). The trial court informed appellant again of the potential
sentence on each charge and the state and appellant’s counsel informed the trial court
that it was a combined potential sentence of 64 and one-half years of incarceration. (Plea
Tr. 14). After a discussion off the record with his counsel, appellant accepted the plea
agreement and entered his guilty plea. (Plea Tr. 15).
       {¶48} Appellant contends that his claims of innocence both at his hearing and in
his post-sentence motion are sufficient cause to withdraw his plea. However, as
previously stated, a claim of innocence does not provide a reasonable basis to withdraw
a plea of guilty. Id. Because appellant did not satisfy his burden in his motion to withdraw
his guilty plea, the trial court’s judgment denying the motion was proper.




Case No. 17 MA 0006
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      {¶49} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
      {¶50} For the reasons stated above, the trial court’s judgment is hereby affirmed.




Waite, P. J., concurs.

Robb, J., concurs.




Case No. 17 MA 0006
[Cite as State v. Magby, 2019-Ohio-877.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                           NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
