[Cite as State v. Fry, 2013-Ohio-5865.]
                             STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT

STATE OF OHIO/                                  )
TOWNSHIP OF BOARDMAN,                           )   CASE NO. 12 MA 156
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
        - VS -                                  )         OPINION
                                                )
BERNARD FRY,                                    )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from County Court
                                                    No. 2, Case No. 00 TRD 5567.


JUDGMENT:                                           Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul J. Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 W. Boardman St., 6th Floor
                                                    Youngstown, OH 44503

For Defendant-Appellant:                            Attorney Ryan Ingram
                                                    7330 Market Street
                                                    Youngstown, OH 44512



JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                    Dated: December 20, 2013
[Cite as State v. Fry, 2013-Ohio-5865.]
DeGenaro, P.J.
          {¶1}   Defendant-Appellant Bernard Fry appeals the August 14, 2012 judgment of
the Mahoning County Court No. 2 sentencing him to twelve days in jail and denying his
post-sentence motion to withdraw his plea on August 21, 2012.
          {¶2}   Fry argues that the trial court erred in sentencing him to jail time and also in
not permitting him to withdraw his plea. Because the trial court cited the incorrect version
of the Driving Under Financial Responsibility Act Suspension (FRA) statute in taking Fry's
plea and sentencing him, his plea was not entered knowingly and intelligently; thus the
trial court should have permitted Fry to withdraw his plea. Accordingly, the judgment of
the trial court is reversed and this cause is remanded for further proceedings.
                                   Facts and Procedural History
          {¶3}   The facts in this case are not disputed. On October 26, 2000, Fry was cited
by Boardman Police Department for Driving Under an FRA Suspension, R.C.
4507.02(B)(1) and Fictitious Plates, in violation of R.C. 4549.08. Fry failed to appear for
the arraignment on November 16, 2000. A warrant was issued for his arrest.
          {¶4}   Fry appeared without counsel on April 29, 2002, waived speedy trial and
entered a plea of not guilty. The matter was rescheduled to June 13, 2002. Fry posted a
$3500.00 cash/surety bond. Again, Fry failed to appear and a warrant was issued for his
arrest.
          {¶5}   Ten years later, on August 14, 2012, Fry voluntarily appeared. He waived
counsel, executed a 'waiver of rights upon plea' and indicated to the trial court that he
understood the rights he was giving up and entered a guilty plea to the charges. Fry was
sentenced on the FRA Suspension to a $200 fine and 180 days in jail, 168 days
suspended, to be served one day each week from Tuesday night to Wednesday night for
twelve weeks; and on the Fictitious Plates to a $50 fine and 30 days in jail, with all 30
days suspended.
          {¶6}   On August 20, 2012, Fry, now represented by counsel, filed a motion to
withdraw his plea and stay his sentence, arguing that his plea was uncounseled and the
jail sentence was improper in light of statutory revision which occurred over the past ten
years. On August 21, 2012, the trial court denied the motion and stay without a hearing.
          {¶7}   Fry filed a request for stay of execution of sentence pending appeal which
                                                                                              -2-


the trial court denied, stating that Fry is not a first time offender and has two prior
convictions for driving under suspension in the five years prior to this case. This court
granted a stay of Fry's sentence.
                              Driving Under FRA Suspension
       {¶8}    A review of the law at the time of the offense and on the date of sentencing
is essential to resolving this appeal. On October 26, 2000, when Fry was cited for Driving
Under FRA Suspension1 the offense was a first degree misdemeanor and the statute
designated a five year look back period for prior convictions. Fry did not plead to these
charges until nearly twelve years later, August 14, 2012; and on that date an FRA
suspension was an unclassified misdemeanor. Moreover, the statute designated a three
year look back period for prior convictions which would enhance the offense to a first
degree misdemeanor for two or more violations of this or a substantially equivalent
municipal ordinance.
                         Post Sentence Motion to Withdraw Plea
       {¶9}    In his first of two assignments of error, Fry asserts:
       {¶10} "The trial court erred when it denied the Defendant-Appellant's Motion to
Withdraw Plea without conducting a hearing after the Defendant-Appellant entered a no
contest plea without counsel."
       {¶11} "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; State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522,
¶8; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), at paragraph one of the
syllabus. 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, citing State v. Hamed, 63 Ohio
App.3d 5, 7, 577 N.E.2d 1111 (1989) and State v. Blatnik, 17 Ohio App.3d 201, 204, 478

1
 An FRA Suspension was originally codified at R.C.4507.02, was substantively amended and renumbered
as R.C. 4510.16 by 2002 Am.Sub.S.B. 123, effective January 1, 2004.
                                                                                       -3-


N.E.2d 1016 (1984). Resolution of the motion is left to the sound discretion of the trial
court, with the good faith, credibility and weight of the movant's assertions to be resolved
by that court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), at paragraph
two of the syllabus. Accordingly, our standard of review is for abuse of discretion, which
"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."
In re S.S.L.S., 7th Dist. No. 12 CO 8, 2013-Ohio-3026, ¶22.
       {¶12} The purpose of the manifest injustice element contemplated by Crim.R. 32.1
is to avoid the possibility of a defendant pleading guilty to test the weight of potential
punishment, Smith, 49 Ohio St.2d at 264, and can only be established in "extraordinary
cases," defined by the Ohio Supreme Court as a "clear or openly unjust act." Id.; State ex
rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). This court has
referred to a manifest injustice as "an extraordinary and fundamental flaw in the plea
proceeding." State v. Lintner, 7th Dist. No. 732, 2001 WL 1126654 (Sept. 21, 2001) *3,
citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A guilty plea that
was not entered knowingly, intelligently, or voluntarily, creates a manifest injustice that
would entitle a defendant to withdraw a guilty plea. State v. Bush, 3d Dist. No. 14-2000-
44, 2002-Ohio-6146, at ¶11; State v. Beck, 1st Dist. No. C-020432, C-020449, C-030062,
2003-Ohio-5838, at ¶8.
       {¶13} The trial court informed Fry that he was facing a potential "thousand dollar
fine, up to 6 month jail sentence." If this were a first offense, as Fry contends on appeal,
then he would have been subject to penalties for an unclassified misdemeanor which did
not include incarceration. If however, he had prior convictions within the controlling look
back period, then he would be facing the first degree misdemeanor penalties.
Significantly, the record provides no clarity; there was no testimony about or copies of
previous convictions included within the record.
       {¶14} In State v. Engle, 74 Ohio St.3d 525, 660 N.E.2d 450 (1996), the Ohio
Supreme Court held that when a defendant enters, and a court accepts, a guilty plea with
both acting on an erroneous understanding of the applicable law, the plea is not made
                                                                                       -4-


knowingly and intelligently. Further, in State v. Taylor, 3d Dist. No. 13-12-25, 2012-Ohio-
5130, the defendant was charged with wrongful entrustment, a first degree misdemeanor,
but during the pendency of the case the offense was amended and reduced to an
unclassified misdemeanor. Prior to sentencing, Taylor filed a motion to withdraw her
plea, which the trial court denied, and then imposed first degree misdemeanor penalties,
including jail time. On appeal Taylor argued that the trial court failed to conduct a proper
Crim.R. 11 colloquy to inform her of her rights prior to accepting her plea.
       {¶15} The Third District reversed, reasoning that because Taylor was given the
wrong information concerning her sentence this warranted a withdrawal of her plea.

       Because the earlier version of the statute provided for the imposition of up
       to a six-month jail sentence, the punishment was reduced by the
       amendment of the statute. Both the acceptance of her plea and the
       sentencing occurred after the effective date of the amendment. Therefore,
       Taylor should have been sentenced subject to the lesser sentence imposed
       by the amended statute, pursuant to the requirements of R.C. 1.58(B).

Taylor at ¶18.
       {¶16} The same rationale is applicable here. Because the trial court informed Fry
of the potential penalties under the former version of the FRA Suspension statute, Fry's
plea was not made knowingly and intelligently. Thus, a manifest injustice was established
which entitles Fry to withdraw his guilty plea. Accordingly this assignment of error is
meritorious.
       {¶17} In his second assignment of error, Fry asserts:
       {¶18} "The Trial Judge lacked jurisdiction to sentence the Defendant-Appellant to
12 days because the current law pertaining to Driving Under FRA suspension dictates
that for a first offense within a three (3) year period, the offense is an unclassified
misdemeanor, an offense for which jail is not a possible penalty."
       {¶19} Because resolution of the first issue is dispositive of the appeal, this
assignment of error is moot, and will not be addressed. In re Dissolution of Marriage of
                                                                                      -5-


Kelly, 7th Dist. No. 09 CA 863, 2011-Ohio-2642, ¶45, citing App.R. 12(A)(1)(c).
       {¶20} In conclusion, because the trial court cited the incorrect version of the FRA
Suspension statute in taking Fry's plea and sentencing him, his plea was not entered
knowingly and intelligently; thus the trial court should have permitted Fry to withdraw his
plea. Accordingly, the judgment of the trial court is reversed and this cause is remanded
for further proceedings.
Vukovich, J., concurs.
Waite, J., concurs in judgment only.
