[Cite as State v. Roush, 2012-Ohio-6188.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    24759

v.                                                   :            T.C. NO.   10CR4082

DANNY L. ROUSH                                       :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the      28th       day of      December     , 2012.

                                            ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MICHAEL H. HOLZ, Atty. Reg. No. 0031902, 507 Wilmington Avenue, Suite 2, Dayton,
Ohio 45420
      Attorney for Defendant-Appellant

DANNY L. ROUSH, c/o Volunteers of America, 1931 Gettysburg Avenue, Dayton, Ohio
45417
      Defendant-Appellant

                                            ..........
FROELICH, J.

               {¶ 1} Danny L. Roush appeals from a judgment of the Montgomery County

Court of Common Pleas, which overruled his motion to withdraw his guilty plea after he

was convicted of one count of domestic violence. Roush’s offense was a felony of the third

degree because he had two prior convictions for domestic violence. He was sentenced to

two years of incarceration.

       {¶ 2}    Roush’s appellate counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the

record and the law, he found no potentially meritorious issues for appeal. By entry, we

informed Roush that his attorney had filed an Anders brief on his behalf and granted him 60

days from that date to file a pro se brief. Roush did not file a pro se brief or raise any

additional issues for review.

       {¶ 3}     In his motion to withdraw his plea, Roush contended that he should be

allowed to withdraw his plea because he “recently” discovered that the judgment entry for

one of the prior offenses failed to satisfy the requirements of Crim.R. 32(C) and, therefore,

should not have been relied upon to enhance the degree of his offense. The trial court

denied his motion to withdraw the plea. Counsel’s brief focuses on this issue, although

counsel found no arguable error.

       {¶ 4}     Withdrawal of a guilty plea after sentencing is permitted only in the most

extraordinary cases, State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), and a

defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of

establishing manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002-Ohio-2278, ¶ 7, citing Smith at paragraph one of the syllabus.
[Cite as State v. Roush, 2012-Ohio-6188.]
         {¶ 5}     Consideration of a motion to withdraw a plea after sentencing is addressed

to the sound discretion of the trial court. Id., citing Smith at paragraph two of the syllabus.

Thus, an appellate court reviews the trial court’s decision under an abuse of discretion

standard. Id., citing State v. Adams, 62 Ohio St .2d 151, 157, 404 N.E.2d 144 (1980). An

abuse of discretion means that the court’s attitude is unreasonable, arbitrary or

unconscionable. Id.

         {¶ 6}     In accepting Roush’s plea, the trial court found, based on Roush’s

admission, that he had two prior convictions for domestic violence, specifically in Dayton

Municipal Court Case No. 2004 CRB 3864 and in Montgomery County Common Pleas

Court Case No. 2005-CR-1825. Based on the two prior convictions, Roush was charged in

the current case with a felony of the third degree. R.C. 2919.25(D)(4). With only one prior

conviction, he would presumably have been charged with a felony of the fourth degree.

R.C. 2919.25(D)(3).

         {¶ 7}     In his motion to withdraw his plea, Roush challenged his conviction in the

municipal court case, Case No. 2004 CRB 3864, alleging that the judgment in that case

failed to adequately “set forth the plea, the verdict, or findings, upon which [the] conviction

is based, and the sentence,” in violation of Crim.R. 32(C). The entry in that case contained

the abbreviations “N.C., F.G.” which the trial court in this case interpreted to mean that

Roush entered a “no contest” plea and was “found guilty.”            As stated above, Roush

claimed in his motion to withdraw his plea that these notations failed to satisfy Crim.R.

32(C).

         {¶ 8}     On May 27, 2011, which was after Roush filed his motion to withdraw his plea,

but before the trial court ruled on it, the Dayton Municipal Court filed a nunc pro tunc entry that
                                                                                            4

corrected the entry of May 17, 2004, using words, rather than abbreviations, to express its

findings. According to the trial court’s decision and entry on the motion to withdraw the plea,

the trial court’s interpretation of the municipal court’s notations on the May 17, 2004, entry was

“entirely consistent” with the expanded statement in the nunc pro tunc entry.

       {¶ 9} . After discussing the purpose of Crim.R. 32(C) and the proper use of a nunc pro

tunc entry, the trial court concluded that 1) the 2004 judgment entry “essentially complie[d]” with

Crim.R. 32(C) because the abbreviations reveal[ed] that the Defendant entered a plea of no

contest and was found guilty by the court,” and 2) even if the 2004 entry did not comply with

Crim.R. 32(C), the nunc pro tunc entry filed on May 27, 2011, did comply with Crim.R. 32(C)

and eliminated any problem with the court’s reliance on or interpretation of the original

judgment. The court rejected Roush’s argument that the nunc pro tunc entry should not be

recognized because it would violate the principles of ex post facto and retroactive punishment,

observing that Roush was not faced with a more severe penalty as a result of the nunc pro tunc

entry than was contemplated at the time of his plea; Roush had admitted the existence of both

prior convictions when he entered his plea, and he knew at the time of the plea that he was

pleading to a third degree felony due to two prior convictions.

       {¶ 10}    We agree with the trial court’s conclusions related to the effect of the nunc pro

tunc entry and the knowing entry of Roush’s guilty plea in this case. As such, we need not

address whether the municipal court’s original judgment entry in Case No. 2004 CRB 3864

sufficiently stated its findings or “essentially complied” with Crim.R. 32(C). Moreover, a guilty

plea properly entered by a defendant who is represented by competent counsel waives of all

non-jurisdictional defects in prior stages of the proceedings. State v. Evans, 4th Dist. Scioto No.
                                                                                           5

03CA2913, 2004-Ohio-1013, ¶ 12, citing Ross v. Court, 30 Ohio St.2d 323, 285 N.E.2d 25

(1972). Under the facts presented in this case, the form of the conviction in the municipal court

and its clarification by means of a nunc pro tunc entry did not create a manifest injustice or

compel the withdrawal of Roush’s plea, and, in any event, Roush had waived the alleged error.

       {¶ 11}   Pursuant to our duty under Penson v. Ohio, 488 U .S. 75, 109 S.Ct. 346, 102

L.Ed.2d 300 (1988), we have conducted an independent review of the entire record, and we have

found no potential assignments of error having arguable merit.

       {¶ 12}   The trial court’s judgment will be affirmed.

                                          ..........

GRADY, P.J. and DONOVAN, J., concur.

Copies mailed to:

Carley J. Ingram
Michael H. Holz
Danny L. Roush
Hon. Timothy N. O’Connell
