[Cite as State v. Hummell, 2013-Ohio-2422.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :
                                              :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :     Hon. Patricia A. Delaney, J.
                                              :     Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
RONALD HUMMELL, III                           :     Case No. 12CA64
                                              :
                                              :
        Defendant - Appellant                 :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    2008 CR 0761




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 31, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JILL M. COCHRAN                                     JOHN C. O'DONNELL
Assistant Richland County Prosecutor                13 Park Avenue West, Suite 300
38 South Park Street                                Mansfield, OH 44902
Mansfield, OH 44902
Richland County, Case No. 12CA64                                                        2




Baldwin, J.

       {¶1} Defendant-appellant Ronald Hummel, III appeals from the July 23, 2012

Judgment Entry of the Richland County Court of Common Pleas overruling his Motion

for Withdrawal of Guilty Plea. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2} On November 6, 2008, the Richland County Grand Jury indicted appellant

on one count of illegal manufacturing of illegal drugs in violation of R.C. 2925.04(A), a

felony of the second degree, one count of illegal assembly or possession of chemicals

for the manufacture of drugs in violation of R.C. 2925.041(A), a felony of the third

degree, one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a

felony of the third degree, and two counts of assault in violation of R.C. 2903.13(A),

felonies of the fourth degree. At his arraignment on November 13, 2008, appellant

entered a plea of not guilty to the charges.

       {¶3} Thereafter, on April 20, 2009, appellant withdrew his former not guilty plea

and pleaded guilty to illegal manufacturing of illegal drugs, tampering with evidence and

two counts of assault. The remaining charge was dismissed. Pursuant to a Sentencing

Entry filed on April 21, 2009, appellant was sentenced to an aggregate prison sentence

of six (6) years. The trial court also ordered that the sentence be served concurrently to

a drug possession charge that appellant had in Indiana. Appellant also was fined

$7,500.00 and his driver’s license was suspended for a period of sixty (60) months. The

fine was later vacated.

       {¶4} Appellant did not appeal his conviction or sentence.
Richland County, Case No. 12CA64                                                           3


       {¶5} On November 22, 2011, appellant filed a Motion for Modification and

Reconsideration of Sentence. Appellant, in such motion stated that he understood the

seriousness of his offenses and was remorseful. The trial court, as memorialized in a

Judgment Entry filed on December 8, 2011, overruled such motion. The trial court, in its

Judgment Entry, found that appellant had received a mandatory agreed sentence and

that the court lacked jurisdiction to modify the sentence. The trial court also filed another

Judgment Entry on December 22, 2011 overruling such motion.

       {¶6} Subsequently, on July 5, 2012, appellant filed a Motion for Withdrawal of

Guilty Plea pursuant to Crim.R. 32.1. Appellant, in his motion, alleged that he was under

duress and had psychological problems when he entered his plea, that his plea was

entered without proper advice of counsel and that his plea was not knowing, intelligent

and voluntary. Appellant also alleged that he received mistaken advice from his

counsel. Pursuant to a Judgment Entry filed on July 23, 2012, the trial court overruled

appellant’s motion.

       {¶7} Appellant now appeals from the trial court’s July 23, 2012 Judgment Entry,

raising the following assignments of error on appeal:

       {¶8} “I.       THE       TRIAL        COURT         ERRED         IN       DENYING

DEFENDANT/APPELLANT’S PRO SE CRIMINAL RULE 32.1 POST-SENTENCE

MOTION TO WITHDRAW HIS GUILTY PLEA.”

       {¶9} “II.      THE       TRIAL       COURT’S         FAILURE        TO       GRANT

DEFENDANT/APPELLANT A HEARING ON HIS MOTION TO WITHDRAWAL (SIC)

HIS PLEA WAS MANIFEST INJUSTICE.”
Richland County, Case No. 12CA64                                                        4


                                           I, II

       {¶10} Appellant, in his two assignments of error, argues that the trial court erred

in denying his Motion to Withdraw Plea and that the trial court erred in failing to hold a

hearing on such motion. We disagree.

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

Crim.R. 32.1, which provides:

       {¶12} “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} “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, 361 N.E. 2d 1324 (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.

       {¶14} 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
Richland County, Case No. 12CA64                                                          5

to withdraw the plea. Williams, supra at ¶ 6, citing State v. Kent, 10th Dist. No.

03AP722, 2004–Ohio–2129, ¶ 8.

       {¶15} 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, 450 N.E.

2d 1140 (1983).

       {¶16} We note appellant's motion to withdraw his guilty plea was filed over three

years 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.

       {¶17} In the case sub judice, appellant did not file any affidavits or other

evidence in support of his vague motion, which was filed over three years after

sentencing and after appellant’s attempt to have his sentence modified was

unsuccessful. The transcript of the change of plea hearing, at which appellant was

represented by counsel, shows that appellant was advised of his Crim.R. 11(C) rights

and was informed that he was going to be sentenced to six (6) years in prison.

Moreover, as noted by appellee, there is nothing in the record indicating that appellant

was under duress or that he had any psychological problems at the time of his plea. In

short, there is no evidence that appellant’s plea was not knowing, intelligent and
Richland County, Case No. 12CA64                                                          6


voluntary. While appellant, in his Motion to Withdraw, alleged that there was

prosecutorial misconduct and misconduct by his counsel, he did not point to any specific

instances of misconduct. Rather, appellant set forth vague allegations.

       {¶18} Based on the foregoing, we find that the trial court did not err in denying

appellant’s Motion for Withdrawal of Guilt Plea and did not err in failing to hold a hearing

on the same. The trial court’s decisions were not arbitrary, unconscionable or

unreasonable.

       {¶19} Appellant’s two assignments of error are, therefore, overruled.

       {¶20} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.



By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.




                                              _______________________________
                                              HON. CRAIG R. BALDWIN


                                              _______________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _______________________________
                                              HON. PATRICIA A. DELANEY




CRB/dr
[Cite as State v. Hummell, 2013-Ohio-2422.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :
                                              :
                                              :
        Plaintiff - Appellee                  :
                                              :
                                              :
-vs-                                          :       JUDGMENT ENTRY
                                              :
                                              :
RONALD HUMMELL, III                           :
                                              :
                                              :
        Defendant - Appellant                 :       CASE NO. 12CA64
                                              :




        For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                              _______________________________
                                              HON. CRAIG R. BALDWIN


                                              _______________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _______________________________
                                              HON. PATRICIA A. DELANEY
