[Cite as State v. Guinther, 2010-Ohio-1263.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                              CASE NO. 3-09-09

        v.

JASON A. GUINTHER,                                        OPINION

        DEFENDANT-APPELLEE.




                   Appeal from Crawford County Municipal Court
                             Trial Court No. 08TRD1250

                                      Judgment Affirmed

                            Date of Decision:   March 29, 2010




APPEARANCES:

        Jack L. Felgenhauer for Appellant

        Jasper N. Burt for Appellee
Case No. 3-09-09


WILLAMOWSKI, P.J.

      {¶1} Plaintiff-appellant the State of Ohio (“the State”) brings this appeal

from the judgment of the Municipal Court of Crawford County granting the

defendant-appellee Jason Guinther’s (“Guinther”) motion to withdraw his guilty

plea. For the reasons set forth below, the judgment is affirmed.

      {¶2} On March 22, 2008, Guinther was cited for traveling at a speed of 75

miles per hour in a posted 55 mile per hour zone in violation of R.C.

4511.21(D)(1). Guinther entered a guilty plea by waiver and paid the fine on

March 27, 2008. Guinther, who was employed as a truck driver, subsequently

learned that a conviction for this speed would cause him to lose his employment.

On March 10, 2009, Guinther filed a motion to withdraw his guilty plea, alleging

that he lacked legal counsel and was not aware of the consequences of his guilty

plea on his employment and requested that he be allowed to withdraw his guilty

plea. A hearing was held on the motion on March 25, 2009. On April 24, 2009,

the trial court entered its judgment granting the motion to withdraw the guilty plea

post sentencing. The State appeals from this decision and raises the following

assignment of error.

       The trial court abused its discretion in granting [Guinther’s]
       motion to withdraw plea (sic) as there was no manifest injustice
       proven or present and that abuse of discretion by the trial court
       unfairly prejudices [the State].




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Case No. 3-09-09


        {¶3} The State’s argument is that the trial court erred in granting the

motion to withdraw a guilty plea and that this error unfairly prejudiced the State.

A party may not raise for the first time on appeal an argument that could have

been raised below. State v. Smith (1991), 61 Ohio St.3d 284, 574 N.E.2d 510. To

allow parties to raise arguments for the first time on appeal would frustrate the

orderly administration of justice and evade the trial court process. State v. 1981

Dodge Ram Van (1988), 36 Ohio St.3d 168, 522 N.E.2d 524.

        {¶4} In this case, Guinther filed his motion modify the conviction, or in

the alternative, to withdraw his guilty plea on March 10, 2009. The State filed no

responsive pleading to Guinther’s motion. Contrary to the State’s allegation in its

brief, a hearing on the motion was held on March 25, 2009. At the hearing, the

trial court requested the State’s position.1 However, the State then proceeded to

take the position that it did not believe the trial court had the authority to modify

the speed upon which the conviction was based. The trial court agreed and stated

that it would deny that portion of the motion. However, the trial court indicated

that it would consider the alternative motion to withdraw the guilty plea. The

State did not take a position on this motion. At the conclusion of the hearing, the

trial court informed Guinther and the State that it would delay its judgment for


1
 The State was not sure of even the basic facts of the case at the hearing. The prosecutor indicated that he
was working from memory, but that he might be thinking of a different case. He admitted that he was
working from what his secretary advised him. Tr. 5. This court notes that given the high volume of traffic
cases that come before the municipal court, this situation is understandable.


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Case No. 3-09-09


two weeks to allow both sides to file arguments concerning the motion to

withdraw the guilty plea. Guinther filed his argument. The State, however, chose

not to file anything. The first indication that the State gave that it opposed the

motion to withdraw the guilty plea was the filing of the notice of appeal. Thus,

the State did not raise this argument before the trial court and may not now do so

on appeal.

       {¶5} Additionally, this court notes that the State’s brief erroneously

argues that no hearing occurred and that it did not have the opportunity to present

evidence.    The State then proceeds to present the evidence it would have

presented “had the court heard evidence” including attaching exhibits to the brief

that were not presented to the trial court. Since the State was present at the

evidentiary hearing, this court does not understand why the State did not present

the evidence that it now wants to consider. This court notes that the State’s “new”

evidence is irrelevant to the matter before this court as it deals with prior

convictions. Guinther’s prior traffic offenses have no bearing on whether or not

he should have been allowed to withdraw his guilty plea. In addition, the State

fails to present any argument that it is prejudiced by the trial court’s judgment.

The State does not claim that it cannot obtain a conviction on the speeding charge.

In fact, the trial court specifically made a finding that the State was not prejudiced

by granting the motion. Given the fact that the State’s arguments were not raised



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Case No. 3-09-09


before the trial court and the State has not alleged how it was prejudiced, the first

assignment of error is overruled.

       {¶6} Having found no error prejudicial to appellant, the judgment of the

Municipal Court of Crawford County is affirmed.

                                                                Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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