[Cite as State v. Riggans, 2010-Ohio-4552.]




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



STATE OF OHIO,

   PLAINTIFF-APPELLEE,                                CASE NO. 1-10-38

  v.

WILLIE RIGGANS,                                       OPINION

   DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2007 0254

                                      Judgment Affirmed

                          Date of Decision: September 27, 2010




APPEARANCES:

        Willie Riggans, Appellant

        Jana E. Emerick, for Appellee
Case No. 1-10-38



SHAW, J.

       {¶1} Appellant-Defendant Willie J. Riggans (“Riggans”) appeals the

April 30, 2010 judgment of the Allen County Court of Common Pleas overruling

his post-sentence motion to withdraw his guilty plea.

       {¶2} On September 13, 2007, the Allen County grand jury returned a

three count indictment charging Riggans with the following offenses. Count One:

aggravated trafficking in drugs where the transaction took place in the vicinity of a

school in violation of R.C. 2925.03(A)(1), (C)(1)(c), a felony of the second

degree; Count Two: aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1), (C)(1)(c), a felony of the third degree; and Count Three: permitting

drug abuse in violation of R.C. 2925.13(A), (C)(3), a felony of the fifth degree.

On September 21, 2007, Riggans entered a written plea of not guilty to all three

charges.

       {¶3} On November 7, 2007, Riggans entered a negotiated plea of guilty to

amended charges on Counts One and Two and to Count Three as charged in the

original indictment. Counts One and Two were both amended to charges of

attempted aggravated trafficking in drugs, in violation of R.C. 2923.02(B) and

R.C. 2925.03(A)(1), (C)(1)(c), both felonies of the fourth degree.

       {¶4} On December 19, 2007, the trial court sentenced Riggans to serve

one year in prison on each of the three counts to be served consecutively, for a



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total of three years. The court also advised Riggans that he was subject to a period

of up to three years of post-release control.

       {¶5} On April 30, 2010, Riggans filed a “Motion to Withdraw Guilty Plea

Due to Manifest Injustice” which the trial court subsequently overruled. Riggans

then filed the instant appeal asserting the following assignment of error.

                           ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW
       WHEN IT DENIED DEFENDANT’S MOTION TO
       WITHDRAW GUILTY PLEA, WHERE THE GUILTY PLEA
       WAS    PREDICATED  UPON   AN    INSUFFICIENT
       INDICTMENT

       {¶6} In his sole assignment of error, Riggans contends that the trial court

erred in overruling his motion to withdraw his guilty plea. An appellate court will

not disturb a trial court’s denial of a motion to withdraw a guilty plea absent an

abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d 722, 725, 651 N.E.2d

1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. 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 (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶7} Criminal Rule 32.1 states: “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.”          Therefore, a motion to


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withdraw a plea filed after a defendant is sentenced will be granted only to correct

a manifest injustice with the burden of establishing the existence of a manifest

injustice being placed upon the individual seeking vacation of the plea. Crim.R.

32.1; State v. Smith (1997), 49 Ohio St.2d 261, 361 N.E.2d 1324. A manifest

injustice is an exceptional defect in the plea proceedings, State v. Vogelsong, 3rd

Dist. No. 5-06-60, 2007-Ohio-4935, ¶ 12, or a “ ‘clear or openly unjust act.’ ”

State v. Walling, 3rd Dist. No. 17-04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83, 1998-Ohio-271.

“Accordingly, a post-sentence motion to withdraw a guilty plea is only granted in

‘extraordinary cases.’ ” State v. Driskill, 3rd Dist. Nos. 10-08-10, 10-08-11, 2009-

Ohio-2100, ¶ 32, quoting Smith, supra.

       {¶8} The Supreme Court of Ohio has recently stated that “[t]he purpose of

a grand jury indictment has always been to give notice to the accused: ‘[A]

criminal offense must be charged with reasonable certainty in the indictment so as

to apprise the defendant of that which he may expect to meet and be required to

answer; so that the court and jury may know what they are to try, and the court

may determine without unreasonable difficulty what evidence is admissible.’ ”

State v. Horner¸ --Ohio St.3d--, 2010-Ohio-3830, ¶ 10, quoting Horton v. State

(1911), 85 Ohio St. 13, 19, 96 N.E. 797. Criminal Rule 7(B) further articulates the

structure of an indictment and provides that the information contained therein:




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        may be made in ordinary and concise language without technical
        averments or allegations not essential to be proved. The
        statement may be in the words of the applicable section of the
        statute, provided the words of that statute charge an offense, or
        in words sufficient to give the defendant notice of all the
        elements of the offense with which the defendant is charged.

Moreover, the Supreme Court of Ohio has recently held that an indictment that

tracks the language of the criminal statute describing the offense provides the

defendant with adequate notice of the charges against him and is not defective.

Horner, --Ohio St.3d--, 2010-Ohio-3830, ¶ 45 citing State v. Buehner, 110 Ohio

St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162.

        {¶9} In the present case, Riggans maintains that he should be permitted to

withdraw his guilty plea because the indictment was not sufficient to charge an

offense. As the basis for his contention, Riggans argues that the indictment was

flawed because Counts One and Two alleged that he had trafficked in “Ecstasy,”

which Riggans asserts is not listed as a drug on the Schedule of Controlled

Substances in R.C. 3719.41.1 With regard to Counts One and Two, the indictment

specifically stated the following as to each count:

        COUNT ONE:

        WILLIE J. RIGGANS * * * did knowingly sell or offer to sell a
        Schedule I or II controlled substance, to wit: Ecstasy; in an
        amount that equals or exceeds the bulk amount but does not
        exceed five times the bulk amount; said transaction took place in


1
 As previously mentioned, we note that Riggans entered a negotiated plea of guilty to amended charges of
attempted aggravated trafficking in drugs in violation of R.C. 2923.02 and R.C. 2925.03(A)(1), (C)(1)(c).
On appeal, Riggans only takes issue with the term Ecstasy being included in the indictment.


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      the vicinity of a school; in violation of the Ohio Revised Code
      Section 2925.03(A)(1), (C)(1)(c), a felony of the 2nd degree* * *.

      COUNT TWO:

      WILLIE J. RIGGANS * * * did knowingly sell or offer to sell a
      Schedule I or II controlled substance, to wit: Ecstasy; in an
      amount that equals or exceeds the bulk amount but does not
      exceed five times the bulk amount; in violation of the Ohio
      Revised Code Section 2925.03(A)(1), (C)(1)(c), a felony of the 3rd
      degree* * *.

      {¶10} As stated above, the indictment identifies the statute section

numbers, R.C. 2925.03(A)(1), (C)(1)(c). These sections describe the offenses with

which Riggans was charged in the following manner:

      (A) No person shall knowingly do any of the following:
      (1)    Sell or offer to sell a controlled substance;
      ***
      {¶1} Whoever violates division (A) of this section is guilty of
      one of the following:

      (1)    If the drug involved in the violation is any compound,
      mixture, preparation, or substance included in schedule I or
      schedule II, with the exception of marihuana, cocaine, L.S.D.,
      heroin, and hashish, whoever violates division (A) of this section
      is guilty of aggravated trafficking in drugs. The penalty for the
      offense shall be determined as follows:

      (c) Except as otherwise provided in this division, if the amount of
      the drug involved equals or exceeds the bulk amount but is less
      than five times the bulk amount, aggravated trafficking in drugs is
      a felony of the third degree, and the court shall impose as a
      mandatory prison term one of the prison terms prescribed for a
      felony of the third degree. If the amount of the drug involved is
      within that range and if the offense was committed in the vicinity
      of a school or in the vicinity of a juvenile, aggravated trafficking in
      drugs is a felony of the second degree, and the court shall impose



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        as a mandatory prison term one of the prison terms prescribed
        for a felony of the second degree.

R.C. 2925.03(A)(1), (C)(1)(c). (Emphasis Added.)

        {¶11} After reviewing the indictment in the context of the statute, it is

evident that the indictment tracks the language of the criminal statute describing

the offenses and provides Riggans with adequate notice of the charges against

him. The indictment adequately informs Riggans that he is being charged with

trafficking in a controlled substance included in Schedule I or II as stated in the

statute. Moreover, the inclusion of the term “Ecstasy” in the indictment is merely

superfluous and only serves to provide Riggans with more specific information

than set forth in the statute to describe the charges against him.2

        {¶12} Because the indictment as stated was sufficient to provide Riggans

with adequate notice of the charges against him, we do not find that a manifest

injustice has been placed on Riggins because the term “Ecstasy” was included in

the indictment. Accordingly, we cannot conclude that the trial court abused its

discretion in overruling Riggan’s post-sentence motion to withdraw his guilty

plea.

        {¶13} Notwithstanding the discussion above, we further note that Riggans

waived any deficiency in the indictment by failing to object to the indictment and



2
  Ecstasy is the “street name” for methylenedioxymethamphetamine, also known as “MDMA,” and is
classified as a “Schedule I” controlled substance. See State v. Stewart, 3rd Dist. No. 13-08-18, 2009-Ohio-
3411, n.3; see, also R.C. 3719.41.


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by pleading guilty to the offense. See State v. Barton, 108 Ohio St.3d 402, 413,

2006-Ohio-1324, ¶ 12, 844 N.E.2d 304. Criminal Rule 12(C)(2) mandates that

“[d]efenses and objections based on defects in the indictment” must generally be

raised “[p]rior to” trial, and “failure to timely object to the allegedly defective

indictment constitutes a waiver of the issues involved.” Barton, supra, citing State

v. Joseph (1995), 73 Ohio St.3d 450, 455, 653 N.E.2d 285. See also Horner, --

Ohio St.3d--, 2010-Ohio-3830, ¶ 46 (reiterating that the failure to timely object to

a defect in the indictment constitutes a waiver of the error).

       {¶14} Based on all these reasons, the judgment of the Allen County Court

of Common Pleas is affirmed.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J., and PRESTON, J., concur

/jnc




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