[Cite as State v. Ober, 2018-Ohio-4660.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2018-P-0011
        - vs -                                  :

JAMES S. OBER,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00646.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Wesley A. Johnston, P.O. Box 6041, Youngstown, OH 44501 and Eric Hall, P.O. Box
232, Medina, OH 44258 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, James S. Ober, appeals from the judgment of the Portage

County Court of Common Pleas, denying his post-sentence motion to withdraw his

guilty plea without a hearing. We affirm.

        {¶2}     On September 10, 2015, appellant was indicted in a four-count indictment

charging him with one count of aggravated vehicular assault, in violation of R.C.

2903.08(A)(1) and (B), a felony of the third degree; one count of vehicular assault, in
violation of R.C. 2903.08(A)(2) and (C), a felony of the fourth degree; one count of

failure to stop after accident, in violation of R.C. 4549.02, a felony of the fifth degree;

and one count of operating a vehicle while intoxicated, in violation of R.C.

4511.19(A)(1)(a) and (G). He pleaded not guilty to all counts.

       {¶3}   Appellant was appointed counsel, who was later permitted to withdraw

because appellant fired the public defender’s office and hired private counsel. New

counsel filed a motion to suppress evidence and, after a hearing, the trial court denied

the motion.

       {¶4}   On May 11, 2016, a plea hearing was held at which the state moved the

trial court to amend count three to failure to stop after an accident, in violation of R.C.

4549.03(A), a misdemeanor of the first degree. Appellant entered a plea of guilty to the

amended count and to count two, vehicular assault. After a full and complete plea

colloquy, the trial court accepted appellant’s plea and nolled the remaining counts in the

indictment. The trial court subsequently found appellant knowingly, intelligently, and

voluntarily entered his plea of guilty and the matter was set for sentencing.

       {¶5}   At the sentencing hearing, the trial court found community control

sanctions were consistent with the purposes and principles of sentencing and ordered

appellant to be placed on SCRAM-X (a house-arrest device) for 30 days, under

intensive supervision of the Portage County Adult Probation Department for 12 months,

and under the general division of the Portage County Adult Probation Department for 36

months.   The court further set forth additional conditions of community control and

notified appellant of the consequences of violating the terms of community control. No

appeal was taken from the judgment.




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      {¶6}    In February 2017, a motion to revoke/modify probation was filed by the

probation department. On March 10, 2017, a hearing was held on the motion after

which the trial court imposed more restrictive sanctions, including 180 days in the

Portage County Jail; 12 months intensive supervision; and 12 months of “regular

probation.”

      {¶7}    In October 2017, a motion to revoke/modify probation was again filed.

Several days later appellant’s counsel requested to withdraw because, in counsel’s

view, “continued representation is not ethically possible.” The trial court granted the

motion.   Appellant was issued a summons to appear at the revocation/modification

hearing; he, however, failed to appear and a warrant was issued for his arrest.

      {¶8}    In November 2017, appellant appeared pro se for a status conference and

the trial court recalled the warrant. Appellant was subsequently appointed counsel and

the motion to revoke/modify proceeded to hearing in January 2018. After the hearing,

the trial court found appellant again violated the terms of his probation and further found

more restrictive sanctions were necessary, including one year of intensive supervision

and an additional two years under general supervision.

      {¶9}    On January 5, 2018, appellant filed a pro se motion to withdraw his guilty

plea, pursuant to Crim.R. 32.1. He maintained his May 11, 2016 plea was not entered

knowingly, intelligently, or voluntarily because he was “under extreme duress.”         He

asserted that multiple events, commencing with a purported appointment of a public

defender in February of 2015 in separate municipal court case, which involved his

various attorneys pressuring him and threatening him, culminated in him entering the




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plea. The trial court overruled the motion without a hearing. Appellant appealed the

judgment and assigns the following as error:

       {¶10} “The trial court erred when it denied appellant’s motion for withdrawal of

guilty plea after sentencing. Said denial constituted an abuse of discretion.”

       {¶11} Crim.R. 32.1 provides for a withdrawal of a guilty plea, stating “[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.” Id.

       {¶12} Here, appellant filed his motion to withdraw his plea after his sentencing.

Accordingly, pursuant to Crim.R. 32.1, appellant must demonstrate a manifest injustice

to be entitled to relief. “Under this higher standard [of manifest injustice], a defendant is

entitled to prevail on the motion only if the existence of extraordinary circumstances has

been established.” State v. Combs, 11th Dist. Portage No.2007-P-0075, 2008-Ohio-

4158, ¶34. “The reason for such a high standard for granting a post-sentence motion to

withdraw a guilty plea ‘is to discourage a defendant from pleading guilty to test the

weight of potential reprisal, and later withdraw the plea if the sentence was

unexpectedly severe.’” State v. Clark, 11th Dist. Ashtabula No. 2009-A-0038, 2010-

Ohio-1491, ¶13, quoting State v. Caraballo, 17 Ohio St.3d 66, 67 (1985).

       {¶13} Further, this court has explained:

       {¶14} Although a trial court must hold a hearing if there is a reasonable
             basis for the withdrawal of a presentence guilty plea if the request
             is made before sentencing, the same is not true if the request is
             made after the trial court has already sentenced a party. State v.
             Hudach, 11th Dist. Trumbull No. 2003-T-0110, 2004-Ohio-6949,
             ¶28. In arriving at its decision, a trial court has the discretion to
             determine the credibility and weight of the movant’s contentions. Id.
             at ¶29. Hence, a trial court's decision on a postsentence motion to



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             withdraw a guilty plea will be reversed only for an abuse of
             discretion. Id. at ¶30. In those situations where the trial court must
             consider a postsentence motion to withdraw a guilty plea, a hearing
             is only required if the facts alleged by the defendant, and accepted
             as true, would require the trial court to permit withdrawal of the
             plea. State v. Robinson, 11th Dist. Ashtabula No. 2003-A-0125,
             2005-Ohio-5287, ¶8.

      {¶15} Alternatively, an evidentiary hearing is not required “if the record, on its

face, conclusively and irrefutably contradicts a defendant’s allegations in support of

his Crim.R. 32.1 motion.” State v. Borecky, 11th Dist. Lake No. 2007-L-197, 2008-Ohio-

3890, ¶30, quoting State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156, 2002 WL

445036, (Mar. 22, 2002), *6.

      {¶16} An appellate court analyzes a trial court’s decision regarding a motion to

withdraw a guilty plea for an abuse of discretion. State v. Gibbs, 11th Dist. No. Trumbull

98-T-0190, 2000 WL 757458 (June 9, 2000), *2. An abuse of discretion is the trial

court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.

Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law

Dictionary 11 (8th Ed.2004).

      {¶17} The basis for appellant’s motion is his allegation that he received

ineffective assistance of trial counsel because he was “pushed” into pleading guilty. He

further alleged he was “threatened” that, if he did not plead guilty, the public defender’s

office would cease representation. He points to various instances where counsel was

allegedly coercive, and primarily focuses on occasions that purportedly overbearing

conduct occurred in a municipal court case that was processed prior to the initiation of

proceedings to which he pleaded guilty.




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       {¶18} Preliminarily, it is unclear how appellant’s reliance on the alleged

instances of coercive or threatening conduct that purportedly occurred in a separate

case would have any bearing on his decision to plead guilty in the underlying matter.

Moreover, a review of the plea hearing demonstrates appellant knowingly, intelligently,

and voluntarily pleaded guilty and confirmed, on record, that he had not been coerced

or threatened in any way to enter the plea. Under the circumstances of this case, the

record, on its face, conclusively and irrefutably contradicts appellant’s allegations in his

motion. We therefore hold the trial court did not err in denying appellant’s motion

without a hearing.

       {¶19} Appellant’s assignment of error lacks merit.

       {¶20} For the reasons discussed above, the judgment of the Portage County

Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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