[Cite as State v. James, 2019-Ohio-4237.]




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

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                        RASHAWN JAMES,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 JE 0017


                                   Criminal Appeal from the
                       Court of Common Pleas of Jefferson County, Ohio
                                     Case No. 17-CR-39

                                         BEFORE:
                David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center,
 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee and

 Atty. Katherine Rudzik, 29 Market Street, Suite 904, Youngstown, Ohio 44503, for
 Defendant-Appellant..
                                                                                           –2–


                                           Dated: October 9, 2019


 D’APOLITO, J.

          {¶1}     Appellant, Rashawn James, appeals from the July 26, 2018 judgment of the
Jefferson County Court of Common Pleas denying his pro se post-sentence motion to
withdraw his guilty plea without a hearing. On appeal, Appellant asserts his trial counsel
was ineffective during the plea bargaining process. Based on the limited record before
us, we affirm.

                                 FACTS AND PROCEDURAL HISTORY

          {¶2}     On April 5, 2017, Appellant was indicted by the Jefferson County Grand
Jury on two counts: count one, possession of drugs, a felony of the second degree, in
violation of R.C. 2925.11(A) and (C)(6)(d); and count two, possession of drugs, a felony
of the first degree, in violation of R.C. 2925.11(A) and (C)(4)(e). Appellant was appointed
counsel and pleaded not guilty at his arraignment.
          {¶3}     A jury trial was held on July 25, 2017.1 A July 25, 2017 trial court judgment
entry indicates that the jury was duly impaneled and sworn. Opening statements were
made by counsel. Testimony was adduced in full by Appellee, the State of Ohio. The
State rested. The defense rested without presenting any testimony. Closing arguments
were made by counsel. While the jury was deliberating, Appellant withdrew his former
plea and entered a guilty plea to the indictment in open court. A change of plea form was
signed by Appellant and his counsel. The parties entered into an agreed recommendation
of sentence of a total of four years in prison.
          {¶4}     On July 26, 2017, the trial court followed the parties’ recommendation and
sentenced Appellant to a total of four years in prison. The court noted that Appellant “was
afforded all rights pursuant to Criminal Rules 11 and 32.” (7/26/17 Judgment Entry, p. 1).
          {¶5}     On September 1, 2017, Appellant filed a pro se motion for delayed appeal
of his sentence with this court, Case No. 17 JE 0024. On November 21, 2017, this court
denied Appellant’s request for delayed appeal finding it to be “clearly frivolous.” (11/21/17


1 The   jury trial transcript was not filed and is not in the record before this court.


Case No. 18 JE 0017
                                                                                           –3–


Judgment Entry, p. 2). This court stated that “[t]he record directly contradicts Appellant’s
allegation” that he was not told of his right to appeal his sentence as he “‘was afforded all
rights pursuant to Criminal Rule 11 and 32.’” (Id. at 1). This court further stated that
Appellant’s agreed sentence is “‘not appealable’” and “cannot be reviewed,” citing R.C.
2953.08(D) and State v. Esposito, 7th Dist. Mahoning No. 06 MA 116, 2007-Ohio-7220,
¶ 17. (Id. at 2).
           {¶6}    On April 4, 2018, Appellant filed a pro se post-sentence motion to withdraw
his guilty plea. On July 26, 2018, the trial court denied his motion without a hearing.
Appellant filed the instant appeal and raises a single assignment of error.2

                                         ASSIGNMENT OF ERROR

           THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
           DEFENDANT-APPELLANT’S MOTION TO VACATE HIS PLEA.

           An appellate court reviews the disposition of a motion to withdraw a guilty
           plea for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67,
           477 N.E.2d 627 (1985). “Abuse of discretion means an error in judgment
           involving a decision that is unreasonable based upon the record; that the
           appellate court merely may have reached a different result is not
           enough.” State v. Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶ 21.

State v. Brewer, 7th Dist. Mahoning No. 14 MA 0127, 2016-Ohio-3224, ¶ 10.

           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. Crim.R. 32.1. When a defendant
           seeks to withdraw a guilty plea after the trial court imposed a sentence, the
           defendant bears the burden of establishing the existence of a manifest
           injustice.    State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324




2   The State did not file an appellate brief.


Case No. 18 JE 0017
                                                                                        –4–


      (1977). Post-sentence plea withdrawal is allowable only in an extraordinary
      case. Id.

State v. Devine, 7th Dist. Columbiana No. 17 CO 0013, 2019-Ohio-778, ¶ 18.

      A hearing on the motion must be held only if the facts alleged by the
      defendant, accepted as true, would require that the defendant be allowed
      to withdraw the plea. State v. Brooks, 7th Dist. No. 04 MA 240, 2005-Ohio-
      5058, ¶ 9. But, the trial court’s decision whether to hold a hearing is granted
      deference. State v. Toda, 7th Dist. No. 13 MA 44, 2014-Ohio-943, ¶ 10.

Brewer, supra, at ¶ 8.

      {¶7}   An agreed sentence is not appealable pursuant to R.C. 2953.08(D).
Esposito, supra, at ¶ 17. However, an appellate court can review the validity of the plea
leading to the agreed sentence. See State v. Gibson, 7th Dist. Mahoning No. 07MA98,
2008-Ohio-4518, ¶ 7; State v. Gavin, 4th Dist. Scioto No. 14CA3672, 2015-Ohio-2549, ¶
10; State v. Royles, 1st Dist. Hamilton No. C060875-76, 2007-Ohio-5348, ¶ 10.
      {¶8}   As stated, this court could not review Appellant’s first appeal, Case No. 17
JE 0024, because he took issue with his agreed sentence. (11/21/17 Judgment Entry);
Esposito, supra, at ¶ 17. However, this court can review Appellant’s present appeal
because he takes issue with his plea. Gibson, supra, at ¶ 7.
      {¶9}   Appellant mainly argues here that his trial counsel was ineffective during
the plea bargaining process. As this court has explained:

      Manifest injustice to support withdrawal of a guilty plea can take the form of
      ineffective assistance of counsel. State v. Dalton, 153 Ohio App.3d 286,
      2003-Ohio-3813, 793 N.E.2d 509 ¶ 18 (10th Dist.). See also State v.
      Howard, 7th Dist. No. 12MA41, 2012-Ohio-1437. In seeking to invalidate a
      guilty plea based on ineffective assistance of counsel, a defendant must
      demonstrate that counsel’s performance was deficient and that he was
      prejudiced by the deficiency, i.e. a reasonable probability that he would not
      have agreed to plead guilty but for counsel’s deficiency. State v. Xie, 62
      Ohio St.3d 521, 524, 584 N.E.2d 715 (1992) (a presentence motion case),


Case No. 18 JE 0017
                                                                                         –5–


         applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
         L.Ed.2d 674 (1984) (setting forth the basic two-part test for evaluating
         counsel’s performance) and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88
         L.Ed.2d 203 (1985) (applying Strickland to an attorney’s representation at
         the plea stage).

Brewer, supra, at ¶ 11, quoting State v. Helms, 7th Dist. Mahoning No. 14 MA 96, 2015-
Ohio-1708, ¶ 11.

         {¶10} Although Appellant’s assignment raised in this appeal is a reviewable issue,
he failed to file a transcript for inclusion in the appellate record. Thus, this court has no
way of knowing the extent of the colloquy between Appellant, his counsel, and the trial
court when Appellant withdrew his former plea and entered a guilty plea to the indictment
in open court during jury deliberations. “Under such circumstances, this court must
presume regularity of the proceedings below.” Brewer, supra, at ¶ 19.
         {¶11} The record before us does not reveal that Appellant’s trial counsel was
ineffective. Pursuant to Strickland, supra, Appellant fails to show that his trial counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
         {¶12} The record before us does reveal, however, that Appellant did in fact sign a
change of plea form and “was afforded all rights pursuant to Criminal Rules 11 and 32.”
(7/26/17 Judgment Entry, p. 1).
         {¶13} In sum, the trial court did not abuse its discretion in denying Appellant’s pro
se post-sentence motion to withdraw his guilty plea without a hearing because he failed
to establish that a manifest injustice occurred during the plea-bargaining process, or for
any other reason. See Brewer, supra, at ¶ 21.

                                        CONCLUSION

         {¶14} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken.      The judgment of the Jefferson County Court of Common Pleas, denying
Appellant’s pro se post-sentence motion to withdraw his guilty plea without a hearing, is
affirmed.




Case No. 18 JE 0017
                        –6–




Waite, P.J., concurs.

Robb, J., concurs.




Case No. 18 JE 0017
[Cite as State v. James, 2019-Ohio-4237.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is overruled and it is the final judgment and order of this Court that the judgment of the
 Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived.
         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.
