[Cite as State v. Williams, 2014-Ohio-5727.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2013 AP 04 0020
MARK A. WILLIAMS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. CRB1100413


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 26, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RONALD L. COLLINS                              JACOB WILL
PROSECUTING ATTORNEY                           116 Cleveland Avenue NW
150 East High Avenue                           Suite 808
New Philadelphia, Ohio 44663                   Canton, Ohio 44702
Tuscarawas County, Case No. 2013 AP 04 0020                                                 2

Wise, J.

        {¶1} Appellant Mark Williams appeals the decision of the New Philadelphia

Municipal Court denying his motion to vacate his plea of guilty.

        {¶2} Appellee is the State of Ohio. No Appellee’s brief was filed in this matter.

                       STATEMENT OF THE FACTS AND CASE

        {¶3}   On March 28, 2011, Appellant Mark Williams was charged with one count

of Violating a Protection Order, in violation of R.C. §2919.27, a fourth degree

misdemeanor.

        {¶4} On July 24, 2012, Appellant entered a plea of guilty. The trial court

sentenced Appellant to 180 days in jail, suspended, forty (40) hours of community

service, 18 months of community control sanctions and court costs.

        {¶5} On September 7, 2012, Appellant filed a motion to withdraw his guilty

plea.

        {¶6} On March 18, 2013, the trial court held a hearing on Appellant’s motion.

        {¶7} By Judgment Entry filed April 1, 2013, the trial court denied Appellant’s

motion.

        {¶8} It is from this denial Appellant now appeals, assigning the following error

for review:

                               ASSIGNMENT OF ERROR

        {¶9}   “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO VACATE HIS GUILTY PLEA.”
Tuscarawas County, Case No. 2013 AP 04 0020                                            3


                                            I.

      {¶10} In his sole Assignment of Error, Appellant claims that the trial court erred

in denying his motion to vacate his guilty plea. We disagree.

      {¶11} In the instant case, Appellant did not move the court to allow him to

withdraw his guilty plea until approximately six (6) weeks after sentencing.

      {¶12} Crim.R. 32.1 reads as follows: “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.”

      {¶13} Under the manifest injustice standard, a post-sentence withdrawal motion

is allowable only in extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132,

2010–Ohio–2566, ¶ 60, citing State v. Smith (1977), 49 Ohio St.2d 261, 264, 361

N.E.2d 1324. We have previously looked to the decision of the Second District Court of

Appeals in Xenia v. Jones, which defined a manifest injustice as “a clear or openly

unjust act” that involves “extraordinary circumstances.” State v. Weaver, 5th Dist.

Holmes No. 11 CA023, 2012–Ohio–2788, at ¶ 3, citing Xenia v. Jones, 2nd Dist.

Greene No. 07–CA104, 2008–Ohio–4733, ¶ 6. “A manifest injustice comprehends a

fundamental flaw in the path of justice so extraordinary that the defendant could not

have sought redress from the resulting prejudice through any form of application

reasonably available to him.” State v. Shupp, 2nd Dist. Clark No. 06CA62, 2007–Ohio–

4896, at ¶ 6. 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. Hummell, 5th Dist.
Tuscarawas County, Case No. 2013 AP 04 0020                                             4

Richland No. 12CA64, 2013–Ohio–2422 at ¶ 13, citing State v. Orris, 10th Dist.

Franklin No. 07AP390, 2007–Ohio–6499.

      {¶14} The length of passage of time between the entry of a plea and a

defendant's filing of a Crim.R. 32.1 motion is a valid factor in determining whether a

“manifest injustice” has occurred. See State v. Copeland–Jackson, Ashland App. No.

02COA018, 2003–Ohio–1043, ¶ 7.

      {¶15} Appellate review of a trial court's decision under Crim.R. 32.1 is limited to

a determination of whether the trial court abused its discretion. See State v. Caraballo

(1985), 17 Ohio St.3d 66, 67, 477 N.E.2d 627. In order to find an abuse of discretion,

we must determine the trial court's decision was unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,

5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). “A motion made pursuant to Crim.R. 32.1 is

addressed to the sound discretion of the trial court, and the good faith, credibility and

weight of the movant's assertions in support of the motion are matters to be resolved

by that court.” State v. Pepper, 2014–Ohio–364, ¶ 31 quoting State v. Smith, 49 Ohio

St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus.

      {¶16} In support of its arguments, appellant cites to the case of Fish, supra,

paragraph two of the syllabus, wherein the First District set forth factors to consider in

determining whether to grant a Crim.R. 32.1 motion:

      {¶17} A motion to withdraw a plea of no contest, made prior to the imposition of

sentence, should be freely granted in the exercise of the trial court's discretion; one

extremely important factor bearing on the exercise of the court's discretion is whether

withdrawal will result in prejudice to the prosecution, but there are others to be weighed
Tuscarawas County, Case No. 2013 AP 04 0020                                               5


as well, including (1) the representation afforded to the defendant by counsel; (2) the

extent of the hearing conducted pursuant to Crim.R. 11; (3) the extent of the hearing on

the motion to withdraw; (4) the amount of consideration given to the motion by the

court; (5) the timing of the motion; (6) the reasons given for withdrawal; (7) the

defendant's understanding of the charges and penalties; and (8) the existence of a

meritorious defense.

      {¶18} We note the Fish court involved a Crim.R. 32.1 motion “made prior to the

imposition of sentence.” However, as stated by appellee in his brief at page 29:

“Nonetheless, many of the Fish factors are useful in guiding a trial court's exercise of

discretion regarding the existence of manifest injustice.”

      {¶19} Appellant herein argues that he was denied the effective assistance of

counsel in this matter because his attorney failed to attend a scheduled pre-trial due to

illness and never requested that another pretrial be set.

      {¶20} In its April 1, 2013, Judgment Entry denying Appellant’s motion to

withdraw his guilty plea, the trial court found the following: Appellant had three different

attorneys during the pendency of the lower court case: a public defender, whom he

orally asked the trial court to remove at the final pretrial. The trial court granted

Appellant additional time to hire private counsel. Attorney Stephan was retained but

then asked to be removed, which was denied by the trial court. Attorney Gaffney was

then hired and substituted for Attorney Stephan.             Attorney Gaffney entered his

appearance on April 30, 2012, the date the jury trial was originally scheduled. The jury

trial date was converted to a status conference. Settlement discussions took place, but

the matter was not resolved so a new jury trial was set for July 10, 2012. Atty. Gaffney
Tuscarawas County, Case No. 2013 AP 04 0020                                               6


was ill on July 10, 2012, so the trial was reset for July 23, 2012. On July 23, 2012, the

prosecutor renewed the plea offer. Appellant accepted the negotiated plea and entered

a guilty plea to the charge of violating a protection order..

      {¶21} The trial court further found that prior to accepting Appellant’s change of

plea, the court conducted an extensive colloquy with Appellant on the record pursuant

to Crim.R. 11. The trial court also found that Appellant executed a written Waiver of

Jury trial and an explanation of “Your Rights” form, which he also acknowledged in

open court.

      {¶22} While Appellant did file a transcript of the hearing on his motion to

withdraw, Appellant has not provided this Court with a transcript of the change of plea

and sentencing hearing. In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197,

199, 400 N.E.2d 384, the Supreme Court of Ohio held the following: “[t]he duty to

provide a transcript for appellate review falls upon the appellant. This is necessarily so

because an appellant bears the burden of showing error by reference to matters in the

record. See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This

principle is recognized in App.R. 9(B), which provides, in part, that ‘ * * * the appellant

shall in writing order from the reporter a complete transcript or a transcript of such parts

of the proceedings not already on file as he deems necessary for inclusion in the

record.* * *.’ When portions of the transcript necessary for resolution of assigned errors

are omitted from the record, the reviewing court has nothing to pass upon and thus, as

to those assigned errors, the court has no choice but to presume the validity of the

lower court's proceedings, and affirm.” (Footnote omitted.)
Tuscarawas County, Case No. 2013 AP 04 0020                                               7


      {¶23} Without a transcript of the proceedings, Appellant cannot demonstrate any

error or irregularity in connection with the trial court's decision. Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384. A presumption of

regularity applies to the trial court's acceptance of Appellant's plea, and Appellant has

shown us nothing to overcome the presumption.

      {¶24} Further, under the doctrine of “invited error,” it is well settled that “a party

will not be permitted to take advantage of an error which he himself invited or induced

the trial court to make.” State ex rel. Smith v. O'Connor (1995), 71 Ohio St.3d 660, 663,

646 N.E.2d 1115, citing State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359,

626 N.E.2d 950. See, also, Lester v. Leuck (1943), 142 Ohio St. 91, 50 N.E.2d 145,

paragraph one of the syllabus. As the Ohio Supreme Court has stated:

      {¶25} “The law imposes upon every litigant the duty of vigilance in the trial of a

case, and even where the trial court commits an error to his prejudice, he is required

then and there to challenge the attention of the court to that error, by excepting thereto,

and upon failure of the court to correct the same to cause his exceptions to be noted. It

follows, therefore, that for much graver reasons, a litigant cannot be permitted, either

intentionally or unintentionally, to induce or mislead a court into the commission of an

error and then procure a reversal of the judgment for an error for which he was actively

responsible.” Lester at 92-93, 50 N.E.2d 145, quoting State v. Kollar (1915), 142 Ohio

St. 89, 91, 49 N.E.2d 952; Walker v. State, Stark App. No. 2007CA00037, 2007-Ohio-

5262 at ¶ 48-52.
Tuscarawas County, Case No. 2013 AP 04 0020                                            8


      {¶26} Upon review, we find Appellant was represented at the change of plea

hearing. Appellant was sentenced in accordance with his agreement and in

accordance with Crim.R. 11.

      {¶27} We find that Appellant has failed to point to anything in the record to

support his claim of ineffective assistance of counsel or his claim that he did not

understand the plea proceedings.

      {¶28} Upon review of the entirety of Appellant's claims in support of his motion to

withdraw plea, we are unpersuaded the trial court in the case sub judice abused its

discretion in declining to find a manifest injustice warranting the extraordinary step of

negating Appellant's plea.

      {¶29} For the foregoing reasons, the judgment of the New Philadelphia

Municipal Court, Tuscarawas County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Gwin, J., concur.




JWW/d 1217
Tuscarawas County, Case No. 2013 AP 04 0020   9
