[Cite as State v. Hawke, 2020-Ohio-511.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case Nos. 2019-CA-24 and
                                                :   2019-CA-25
 v.                                             :
                                                :   Trial Court Case Nos. 2018-CR-1031
 DAVID A. HAWKE                                 :   and 2019-CR-46
                                                :
         Defendant-Appellant                    :   (Criminal Appeal from
                                                :   Common Pleas Court)

                                           ...........

                                           OPINION

                          Rendered on the 14th day of February, 2020.

                                           ...........

MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
     Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

                                           .............




TUCKER, P.J.
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       {¶ 1} Defendant-appellant David A. Hawke appeals from a judgment of the Greene

County Court of Common Pleas denying his motion to withdraw his guilty plea. For the

reasons that follow, we conclude that the trial court did not abuse its discretion in denying

the motion. Accordingly, the judgment is affirmed.



                           I.     Facts and Procedural Background

       {¶ 2} On December 21, 2018, Hawke was indicted on four counts of identity fraud

in violation of R.C. 2913.49(B)(2) and two counts of forgery in violation of R.C.

2913.31(A)(3) in Greene C.P. No. 2018-CR-1031. On January 25, 2019, Hawke was

indicted in Greene C.P. No. 2019-CR-46 on one count of identity fraud in violation of R.C.

2913.49(B)(2) and one count of receiving stolen property in violation of R.C. 2913.51(A).

       {¶ 3} Following negotiations, a plea agreement was reached whereby Hawke

agreed to plead guilty to two counts of identity fraud in Case No. 2018-CR-1031 and one

count of identity fraud in Case No. 2019-CR-46.         In exchange, the State agreed to

dismiss the remaining five counts and to recommend a two-year prison term.

       {¶ 4} A plea hearing was conducted on March 1, 2019. At that time, the trial court

informed Hawke of the charges against him, the maximum sentence that he faced, and

the constitutional rights that he waived by foregoing a trial. Prior to accepting the plea,

the trial court asked Hawke whether he understood what he was doing and whether he

was acting of his own free will and not as the result of any promises aside from those

incorporated in the plea agreement.        Hawke responded to these questions in the

affirmative. Hawke acknowledged that he had discussed his case with his attorney,

including the facts relevant to the offenses with which he was charged and his potential
                                                                                      -3-


defenses. Hawke stated that his attorney had gone over the plea forms with him and

that he was “extremely” satisfied with his attorney's representation. Plea Tr. p. 6. The

trial court discussed prison, post-release control and community control sanctions.

Thereafter, the trial court accepted the plea and determined that Hawke had entered into

the agreement knowingly, voluntarily and intelligently.     A sentencing hearing was

scheduled for April 26, 2019.

      {¶ 5} On the day of the sentencing hearing, the prosecutor and defense counsel

were in the trial court’s chambers when the judge indicated his intent to impose a three-

year sentence rather than the recommended two-year sentence. Afterward, defense

counsel informed Hawke of the in-chambers discussion. When the hearing started,

defense counsel informed the trial court that Hawke wished to withdraw his plea and to

obtain new counsel. The trial court stated it would treat the matter as an oral motion to

withdraw the plea and would immediately hear arguments and testimony related to the

motion.

      {¶ 6} The trial court and Hawke engaged in a colloquy during which Hawke

explained that he believed a three-year sentence was not “appropriate” because he did

not “destroy anybody’s life.” Sent. Tr. p. 7. Hawke noted he had cooperated with law

enforcement, and he stated he believed that he was being “crucified because they did not

catch” another person involved with the offense. Sent Tr. p. 8. He also claimed he had

not been provided with a copy of his discovery packet and had only met with counsel a

few times. He noted that he was a drug addict and stated he had been admitted into a

“six-month program” in Columbus. Sent. Tr. p. 7-8. Finally, he claimed his attorney told

him he would receive a two-year sentence.
                                                                                          -4-


       {¶ 7} The trial court then noted it had clearly informed Hawke that it was not bound

by the two-year sentence recommendation. Hawke admitted the court had so informed

him, but stated his attorney had told him the sentence would be limited to two years. The

court again reminded Hawke that it had informed him it was not bound by any sentence

agreement, and Hawke again acknowledged he was aware of that admonition at the time

of the plea. Hawke also admitted that the claimed guarantee of a two-year sentence

made by his attorney occurred after the plea hearing was concluded.

       {¶ 8} The trial judge denied the motion to withdraw the plea, stating that Hawke

was never promised a two-year prison sentence, and further that when he entered his

plea he was told that his sentence would be at the sentencing judge's discretion.

       {¶ 9} Hawke appeals.



                                          II.    Analysis

       {¶ 10} Hawke’s sole assignment of error states:

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED

       HAWK’S [SIC] MOTION TO WITHDRAW HIS PLEA BECAUSE IT WAS

       NOT VOLUNTARILY, INTELLIGENTLY, OR KNOWINGLY ENTERED.

       {¶ 11} Hawke asserts the trial court abused its discretion when it overruled his

motion to withdraw his guilty plea. In support, he argues the trial court erred by failing to

conduct a hearing. Additionally, while not expressly argued, Hawke’s assignment of

error implicitly claims the trial court did not comply with Crim.R. 11.

       {¶ 12} The Rules of Criminal Procedure permit a defendant to withdraw a guilty

plea. Such a withdrawal is governed by Crim.R. 32.1, which states:
                                                                                           -5-


       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} A presentence motion to withdraw a guilty plea should be freely and liberally

granted, but a postsentence motion to withdraw a guilty plea requires a showing of

manifest injustice. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “A

manifest injustice is a clear or openly unjust act; an extraordinary and fundamental flaw

in the plea proceeding.” (Citation omitted.) State v. Yapp, 2015-Ohio-1654, 32 N.E.3d

996 (8th Dist.), ¶ 8. Thus, “[w]ithdrawal of a guilty plea after sentencing is permitted only

in ‘extraordinary cases.’ ” State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571,

2009-Ohio-295, ¶ 8, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324

(1977).

       {¶ 14} “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.” Yapp at

¶ 9, citing Smith at paragraph two of the syllabus. “Consequently, an appellate court's

review of a trial court's denial of a postsentence motion to withdraw a guilty plea is limited

to a determination of whether the trial court abused its discretion.” (Citations omitted.)

Id. “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary,

or unconscionable.     Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d

1248 (1985). A decision is unreasonable if there is no sound reasoning process that

would support that decision.       AAAA Ents., Inc. v. River Place Community Urban
                                                                                           -6-


Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990); Feldmiller v.

Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.

       {¶ 15} This court has consistently held that a motion made after a defendant has

learned of the imminent sentence is considered to be made postsentence. McComb at

¶ 7. This is consistent with the objective of the stricter manifest-injustice standard for

postsentence motions, which is aimed at discouraging defendants “from pleading guilty

to test the weight of potential reprisal, and later withdraw[ing] the plea if the sentence was

unexpectedly severe.” State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).

       {¶ 16} In this case, the record demonstrates Hawke learned of the trial court’s

sentencing decision prior to the sentencing hearing. Thus, his motion was appropriately

treated as a postsentence motion, thereby triggering the stricter manifest injustice

standard.

       {¶ 17} Hawke argues that he should have been permitted to withdraw his guilty

plea because he was not provided with his discovery packet and had only met with

counsel a few times. The trial court was in the best position to assess this claim, and we

cannot say that it constituted an abuse of discretion to give it no credence since Hawke,

during the plea hearing, confirmed he had had enough time with counsel, had thoroughly

discussed his case with counsel, and was satisfied with counsel's representation.

Additionally, the fact that he cooperated with authorities and had a drug addiction were

matters he was aware of at the time of the plea. Also, his claim that he had gained

admittance to a “six-month program” was of no relevance since he was aware, at the time

of the plea, he would be sentenced to at least a two-year sentence. Finally, Hawke’s

claim that counsel led him to believe that he would receive only a two-year sentence
                                                                                          -7-


would be troublesome were it not for the fact Hawke admitted counsel made the alleged

statement after the plea hearing was concluded. Thus, we cannot say that the plea was

induced by any promise made by counsel.

       {¶ 18} A review of the record leads us to agree with the trial court that Hawke

merely had a change of heart upon learning that the trial court intended to sentence him

to three years in prison. The record makes it very clear that, on the day of the sentencing

hearing, the trial court informed counsel of its decision to issue a three-year sentence

rather than the two-year recommended sentence. It is also clear that counsel then

conferred with Hawke just prior to the hearing and informed him of the trial court’s

decision. Only then did Hawke desire to withdraw his plea. Thus, we conclude that

Hawke has failed to demonstrate a manifest injustice necessitating the withdrawal of his

plea and that the trial court did not abuse its discretion in denying the motion.

       {¶ 19} We also conclude that the trial court did not err by failing to hold a separate

evidentiary hearing on the motion. A hearing on a postsentence motion to withdraw a

guilty plea is not required if the facts alleged by the defendant and accepted as true by

the trial court would not require the court to allow the withdrawal of the plea. Xenia v.

Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. Accord State v. Brown,

1st Dist. Hamilton No. C-010755, 2002-Ohio-5813, ¶ 20; State v. Chandler, 2018-Ohio-

1081, 109 N.E.3d 616 (8th Dist.). The trial court did consider the motion and heard

arguments from Hawke. However, as stated, the facts relied upon by Hawke in support

of his motion did not demonstrate manifest injustice.

       {¶ 20} Finally, we address the implicit claim that the trial court failed to conduct a

proper hearing on the plea. In order to satisfy the requirements of due process, a guilty
                                                                                         -8-


plea must be knowingly, intelligently, and voluntarily made. State v. Bateman, 2d Dist.

Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238,

242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).         “Compliance with the procedures

mandated by Crim.R. 11(C) when a defendant enters a plea of guilty or no contest to a

felony charge, absent any indicia of coercion, creates a presumption that the plea was

knowing, intelligent, and voluntary.” State v. Ogletree, 2d Dist. Montgomery No. 21995,

2008-Ohio-772, ¶ 7.     “Literal compliance with Crim.R. 11 is certainly the preferred

practice, but the fact that the trial judge did not do so does not require vacation of the

defendant's guilty plea if the reviewing court determines that there was substantial

compliance.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (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.” Id.

       {¶ 21} Other than the claims raised in his motion to withdraw his plea, Hawke does

not actually make an argument to support his claim that his plea was not made knowingly,

voluntarily and intelligently. Further, he does not point to any portion of the plea hearing

to support a claim that the trial court failed to comply with the mandates of Crim.R. 11.

Based upon our review of the record as set forth above, we conclude the trial court did

comply with Crim.R. 11. We further conclude the trial court did not err when it found

Hawke knowingly, intelligently, and voluntarily entered into the plea agreement.

       {¶ 22} Hawke has not alleged any facts to reasonably support his claim that

withdrawal of his guilty plea was necessary to correct a manifest injustice. Accordingly,

the trial court did not abuse its discretion in denying the postsentence motion to withdraw

the guilty plea without a hearing.
                                                                                      -9-


       {¶ 23} Hawke’s assignment of error is overruled.



                                      III.   Conclusion

       {¶ 24} Hawke’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.



                                    .............



DONOVAN, J. and FROELICH, J., concur.




Copies sent to:

Marcy Vonderwell
Ben M. Swift
Hon. Stephen Wolaver
