[Cite as State v. Vari, 2010-Ohio-1300.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )
VS.                                                 )          CASE NO. 07-MA-142
                                                    )
TIMOTHY VARI,                                       )                OPINION
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 07CR470

JUDGMENT:                                           Reversed and Remanded
                                                    Plea Vacated
APPEARANCES:
For Plaintiff-Appellee                              Paul Gains
                                                    Prosecutor
                                                    Ralph M. Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman St., 6th Fl.
                                                    Youngstown, Ohio 44503-1426

For Defendant-Appellant                             Attorney John P. Laczko
                                                    4800 Market Street Suite C
                                                    Youngstown, Ohio 44512

                                                    Timothy Vari, Inmate #532-612
                                                    Lake Erie Correctional Institution
                                                    501 Thompson Road
                                                    P.O. Box 8000
                                                    Conneaut, Ohio 44030
JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: March 23, 2010
[Cite as State v. Vari, 2010-Ohio-1300.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Timothy Vari, appeals his conviction in the
Mahoning County Common Pleas Court following his guilty plea to two counts of
felonious assault, one count of failure to comply with an order or signal of a police
officer, one count of receiving stolen property, and one count of possession of
cocaine. Vari argues that the trial court erred in denying his presentence motion to
withdraw his guilty pleas and that the indictment was defective for failing to expressly
charge the mens rea element for the count of failure to comply with an order or signal
of a police officer. He also alleges ineffectiveness of trial counsel, inadequate access
to a law library or persons trained in the law, and that his guilty plea was coerced.
        {¶2}     On April 26, 2007, a Mahoning County grand jury indicted Vari on five
counts: Counts one and two – felonious assault (on a police officer) in violation of
R.C. 2903.11(A)(2)(D), first-degree felonies; Count three – failure to comply with an
order or signal of a police officer in violation of R.C. 2921.331(B)(C)(1)(4), a fourth-
degree felony; Count four – receiving stolen property in violation of R.C.
2913.51(A)(C), a fourth-degree felony; and Count five – possession of cocaine in
violation of R.C. 2925.11(A)(C)(4)(a), a fifth-degree felony. Vari pleaded not guilty
and was appointed counsel. The case proceeded to discovery and other pretrial
matters.
        {¶3}     On June 12, 2007, Vari and plaintiff-appellee, State of Ohio, entered
into a plea agreement. In exchange for Vari’s guilty pleas to each of the counts in the
indictment, the state agreed to recommend a four-year term of imprisonment. The
court also explicitly agreed to adopt that sentencing recommendation based on
assurances that the police officers involved had agreed to it and did not object to it.
The court ordered a presentence investigation and set the matter for a sentencing
hearing.
        {¶4}     The case proceeded to sentencing on August 8, 2007. The state spoke
first, reciting all of the counts in the indictment to which Vari had pleaded guilty. The
state then recommended a four-year term of imprisonment and indicated that the
officers involved in the incident were agreeable with that term. The state also related
that the presentence investigation report detailed Vari’s lengthy criminal history, but
                                                                               -2-


that the four-year term was nonetheless the recommended sentence everyone had
agreed to. When the court asked Vari’s counsel whether it was an agreed upon
sentence, he indicated that he needed to consult with his client further.
Subsequently, Vari’s counsel addressed the court and related Vari’s desire to
withdraw his guilty pleas.    Some brief confusion then arose about whether Vari
actually wanted to withdraw his pleas. Vari seemed to want to present evidence in
mitigation.   The court cautioned Vari that under the terms of the agreed upon
sentence that he would be unable to address those issues, and that if the court
proceeded to hear his motion to withdraw his guilty pleas and deny it, then it would
no longer be bound by the plea agreement and free to impose whatever sentence
was allowed by law regardless of any recommendations. Vari made it clear then that
he wanted to withdraw his pleas.
       {¶5}   The court then heard arguments from Vari and his counsel concerning
the motion. The court overruled Vari’s motion to withdraw after going through each of
the factors looked at by appellate courts in reviewing rulings on such motions. The
court then sentenced Vari to an aggregate eight-year term of imprisonment as
follows: Count one (felonious assault) – four years; Count two (felonious assault) –
three years, to be served consecutive to the sentence for count one; Count three
(failure to comply with an order or signal of a police officer) – one year, to be served
consecutive to the sentences for counts one and two; Count four (receiving stolen
property) – one year, to be served concurrently with the sentence for count three but
consecutive to the sentences for counts one and two; and Count five (possession of
cocaine) – one year, to be served concurrently with the sentences for counts three
and four but consecutive to the sentences for counts one and two. This appeal
followed.
       {¶6}   Vari’s appointed appellate counsel filed a brief setting forth two
assignments of error. Subsequently, Vari filed a pro se supplemental brief raising an
additional three assignments of error, which will be treated as the third, fourth, and
fifth assignments of error, respectively.
       {¶7}   Vari’s first assignment of error states:
                                                                                -3-


       {¶8}   “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY
REFUSING TO GRANT DEFENDANT-APPELLANT’S MOTION TO WITHDRAW HIS
PREVIOUS PLEA OF GUILTY WHERE SUCH REQUEST WAS MADE PRIOR TO
THE IMPOSITION OF SENTENCE.”
       {¶9}   In this case, there is no dispute that Vari’s guilty plea was induced by a
plea agreement. At the June 12, 2007 change of plea hearing, the trial court took an
active role in setting forth the terms of the plea agreement and promised Vari that it
would impose the four-year recommended sentence. Though the prosecutor had yet
to arrive, the court commenced the hearing and recited the plea agreement for the
record:
       {¶10} “THE COURT: This is 07-CR-470, State versus Tim Vari. Present are
the defendant with his counsel, Dennis DiMartino. The prosecuting attorney has not
yet arrived. But a plea agreement was reached by the parties prior to this hearing,
and the court will represent -- present it for the record. In return for a defendant’s
plea of guilty as charged to the offenses in the indictment, the State will recommend
a sentence of four years in the penitentiary which the court has agreed to adopt.
That recommendation -- that agreement is based on my understanding from the
prosecuting attorney that the police officers involved would agree to that sentence;
that they would not object to it; and that they feel that justice is served.” (06/12/2007
Change of Plea Hearing, Tr. 2.)
       {¶11} The court then continued with the standard Crim.R. 11 plea colloquy.
Towards the end, the court reiterated its commitment to the plea agreement:
       {¶12} “THE COURT: You also understand, though, that I agree to impose the
sentence that is recommended by the State, that being a sentence of four years?
       {¶13} “THE DEFENDANT: Yes, sir.
       {¶14} “THE COURT: And that that is based on my understanding the police
have no objection to that?
       {¶15} “THE DEFENDANT: Yes, I do.
       {¶16} “THE COURT:        Okay.   Now, that’s also contingent upon your good
behavior until the time of sentencing. We can’t have you doing something you’re not
                                                                                -4-


supposed to do and then have to honor this agreement.
       {¶17} “THE DEFENDANT: Absolutely.” (06/12/2007 Change of Plea Hearing,
Tr. 10.)
       {¶18} The prosecutor did not arrive until after the conclusion of the hearing.
(06/12/2007 Change of Plea Hearing, Tr. 13.)
       {¶19} It is well accepted that “[p]lea agreements are an essential and
necessary part of the administration of justice.” State v. Carpenter (1993), 68 Ohio
St.3d 59, 61, 623 N.E.2d 66, citing Santobello v. New York (1971), 404 U.S. 257,
261, 92 S.Ct. 495, 30 L.Ed.2d 427. “Disposition of charges after plea discussions is
not only an essential part of the process but a highly desirable part for many reasons.
It leads to prompt and largely final disposition of most criminal cases; it avoids much
of the corrosive impact of enforced idleness during pre-trial confinement for those
who are denied release pending trial; it protects the public from those accused
persons who are prone to continue criminal conduct even while on pretrial release;
and, by shortening the time between charge and disposition, it enhances whatever
may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.”
Santobello, 404 U.S. at 261, 92 S.Ct. 495, 30 L.Ed.2d 427.
       {¶20} The Federal Rules of Criminal Procedure and a number of courts in
other states prohibit participation by a judge in plea bargain negotiations.
Fed.R.Crim.P. 11(e); State v. Byrd (1980), 63 Ohio St.2d 288, 292-93, 407 N.E.2d
1384. Upon examination of this issue, the Ohio Supreme Court cautioned, “although
this court strongly discourages judge participation in plea negotiations, we do not
hold that such participation per se renders a plea invalid under the Ohio and United
States Constitutions.” Byrd, 63 Ohio St.2d at 293, 407 N.E.2d 1384. See, also, State
v. Donald, 7th Dist. No. 08 MA 154, 2009-Ohio-4368, ¶31 (cautioning that the trial
court should not involve itself in plea negotiations). In Byrd, the Court explained:
       {¶21} “A judge’s participation in the actual bargaining process presents a high
potential for coercion. The defendant often views the judge as the final arbiter of his
fate or at the very least the person in control of the important environment of the
courtroom. He may be led to believe that this person considers him guilty of the
                                                                                 -5-


crime without a chance of proving otherwise. He may infer that he will not be given a
fair opportunity to present his case. Even if he wishes to go to trial, he may perceive
the trial as a hopeless and dangerous exercise in futility.
       {¶22} “* * *
       {¶23} “The unequal positions of the judge and the accused, one with the
power to commit to prison and the other deeply concerned to avoid prison, at once
raise a question of fundamental fairness. When a judge becomes a participant in
plea bargaining he brings to bear the full force and majesty of his office.            His
awesome power to impose a substantially longer or even maximum sentence in
excess of that proposed is present whether referred to or not. A defendant needs no
reminder that if he rejects the proposal, stands upon his right to trial and is convicted,
he faces a significantly longer sentence. One facing a prison term, whether of longer
or shorter duration, is easily influenced to accept what appears the more preferable
choice. Intentionally or otherwise, and no matter how well motivated the judge may
be, the accused is subjected to a subtle but powerful influence.” (Emphasis added;
Internal Citations Omitted.) Byrd, 63 Ohio St.2d at 292, 407 N.E.2d 1384.
       {¶24} Because the trial court generally is not a party to the plea negotiations
and the contract itself, it is free to impose a sentence greater than that forming the
inducement for the defendant to plead guilty so long as the court forewarns the
defendant of the applicable penalties, including the possibility of imposing a greater
sentence than that recommended by the prosecutor. State v. Martinez, 7th Dist. No.
03MA196, 2004-Ohio-6806, ¶8, citing State v. Buchanan, 154 Ohio App.3d 250, 253,
2003-Ohio-4772, 796 N.E.2d 1003, ¶13. However, once the trial court enters into the
plea agreement by making a promise as the court did here, it becomes a party to the
agreement and is bound thereby.
       {¶25} At its core, a plea agreement is contractual in nature and subject to
contract-law standards. Santobello, supra; Baker v. United States (C.A.6, 1986), 781
F.2d 85, 90.    Moreover, the agreement should be construed strictly against the
government. State v. Namack, 7th Dist. No. 01 BA 46, 2002-Ohio-5187, ¶25. In
Santobello, the prosecutor promised to stand silent at sentencing in exchange for the
                                                                              -6-


defendant’s guilty plea. The prosecutor failed to keep that promise, and the United
States Supreme Court held:
      {¶26} “This phase of the process of criminal justice, and the adjudicative
element inherent in accepting a plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the circumstances.               Those
circumstances will vary, but a constant factor is that when a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello, 404 U.S. at 262, 92 S.Ct. 495, 30 L.Ed.2d 427.
      {¶27} The Court went on to conclude that upon breach of the agreement, the
defendant is entitled to either rescission (i.e., withdrawal of their plea) or specific
performance. Santobello, 404 U.S. at 263, 92 S.Ct. 495, 30 L.Ed.2d 427. See, also,
Ritchie v. State, 12th Dist. No. CA2008-07-073, 2009-Ohio-1841; ¶9; State v.
Netherland, 4th Dist. No. 08CA3043, 2008-Ohio-7007, ¶37; State v. Walker, 6th Dist.
No. L-05-1207, 2006-Ohio-2929, ¶13.
      {¶28} These principles apply equally to the situation where it is the trial court
judge who makes a promise and fails to fulfill it. In State v. Stanley (Dec. 31, 1981),
8th Dist. No. 43469, the defendant agreed to plead guilty to two of four charges in
exchange for the prosecution dropping the remaining two charges and the trial court
judge’s promise to sentence him to probation. At sentencing, the judge informed the
defendant that he had changed his mind and told him he could be sentenced or
withdraw his plea. The defendant withdrew his plea and later sought to enforce the
terms of the plea agreement. The court denied the motion and, after the defendant
pleaded guilty again, sentenced him to prison. On appeal, the Eighth District Court of
Appeals reversed. The court analogized the case to Santobello:
      {¶29} “In the present case, it was the judge, not the prosecutor, who failed to
keep his promise. However, this is not a crucial difference. The failure of judges to
keep their promises offends the integrity and reputation of the criminal justice system
even more than unkept promises made by prosecutors. The need for the public to
have confidence in judges requires that they be forced to keep the promises they
                                                                                  -7-


make. The judge in this case promised to give the appellant probation and the
appellant relied on this when he pled guilty. The judge’s promise was a major part of
the reason why the appellant pled guilty. The breach of this promise was more
detrimental than the prosecutor’s breach in Santobello. It deprived the appellant of
his freedom.    The interests of justice require that judges be held to the same
standards as prosecutors. Therefore, under Santobello, the appellant is entitled to
either rescind his guilty plea or to get specific performance of the plea bargain.”
       {¶30} In this case, the trial court promised to sentence Vari to four years in
exchange for his guilty plea. Admittedly, Vari attempted first to breach the agreement
by moving to withdraw his guilty plea. However, the trial court made it impossible for
him to breach by denying the motion to withdraw. Consequently, because Vari’s
performance under the agreement remained, the trial court should have sentenced
him in accordance with the plea agreement. Since the trial court determined that
sentencing Vari in accordance with the plea agreement was no longer appropriate,
Vari was entitled to either rescission or specific performance. Santobello, supra.
Under the unique facts and circumstances of this case and given Vari’s assigned
error, we find that the trial court erred in overruling the motion to withdraw.
       {¶31} Accordingly, Vari’s first assignment of error has merit.
       {¶32} Vari’s second assignment of error states:
       {¶33} “THE DEFENDANT-APPELLANT’S STATE CONSTITUTIONAL RIGHT
TO A GRAND JURY INDICTMENT AND STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO DUE PROCESS WERE VIOLATED WHEN HIS INDICTMENT FOR
FAILURE TO COMPLY WITH ORDER OR SIGNAL OF POLICE OFFICER
PURSUANT TO R.C. 2921.331(B)(C)(1)(4) FAILED TO EXPRESSLY CHARGE THE
MENS REA ELEMENT OF THE CRIME.”
       {¶34} Vari argues that under the Ohio Supreme Court’s decision in State v.
Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (Colon I), an indictment
that fails to charge a mens rea is constitutionally defective, creates a structural error,
and cannot be waived. He contends that the required mental state for failure to
comply with an order or signal of a police officer is recklessness.
                                                                                  -8-


       {¶35} In Colon I, the defendant was convicted of robbery in violation of R.C.
2911.02(A)(2). He appealed arguing that his indictment was defective because it
failed to include an element of the offense. The indictment failed to include the mens
rea required for robbery. The court of appeals did not address the defect in the
indictment and instead held that the defendant waived the issue on appeal because
he failed to raise the issue before his trial.
       {¶36} The Ohio Supreme Court disagreed.             It first pointed out that the
indictment was defective because it failed to include the necessary mens rea. Id. at
¶10. It noted that the robbery statute did not set out a particular mens rea. However,
it went on to conclude that recklessness was the required mental state for a robbery
in violation of R.C. 2911.02(A)(2). Id. at ¶14.
       {¶37} The Court went on to hold: “When an indictment fails to charge a mens
rea element of a crime and the defendant fails to raise that defect in the trial court,
the defendant has not waived the defect in the indictment.” Colon I, 118 Ohio St.3d at
the syllabus. The Court found that in that particular case, a structural-error analysis
applied due to the constitutional errors that permeated the defendant’s trial.
       {¶38} Here, Vari was indicted for failure to comply with an order or signal of a
police officer in violation of R.C. 2921.331(B). That section reads, “No person shall
operate a motor vehicle so as willfully to elude or flee a police officer after receiving a
visible or audible signal from a police officer to bring the person’s motor vehicle to a
stop.” (Emphasis added.) Count three of Vari’s indictment alleges, in part, that he
“did operate a motor vehicle so as willfully to elude or flee a police officer after
receiving a visible or audible signal from a police officer to bring his motor vehicle to a
stop.” (Emphasis added.) Thus, the language of the indictment mirrors the language
of the statute. As the Ninth District observed in State v. Burris, 9th Dist. No. 24088,
2008-Ohio-4555, at ¶6, “if the language of the statute contains a mens rea element,
the indictment also contains a mens rea element.”
       {¶39} In State v. Fairbanks, 117 Ohio St.3d 543, 885 N.E.2d 888, 2008-Ohio-
1470, the Ohio Supreme Court discussed the elements of R.C. 2921.331(B). The
Court concluded that “R.C. 2921.331[ ] specifies the degree of culpability as willful * *
                                                                                 -9-


*.” Id. at ¶14, 885 N.E.2d 888.         Therefore, under Colon I and Fairbanks, Vari’s
indictment was not defective since it identified the mens rea element as willful.
       {¶40} Accordingly, Vari’s second assignment of error is without merit.
       {¶41} Vari’s third, fourth, and fifth assignments of error state, respectively:
       {¶42} “The Defendant-Appellants State Constitutional rights and federal
Constitutional rights to due process were violated where he was ineffectively assisted
by counsel.”
       {¶43} “The Defendant-Appellants State Constitutional Rights and Federal
Constitutional Rights To Due Process Were Violated When He Was Denied Access
To An Adequate Law Library Or Persons Trained In Law.               Defendant-Appellant
further Contends That He Was Denied His Right To Equal Protection Of The Laws.”
       {¶44} “The Defendant-Appellants State Constitutional Rights And Federal
Constitutional Rights Were Violated When His Plea Of Guilty Was Coerced Through
Unethical Negotiations Involving Trial Judge And Threats Of Abuse By Police.”
       {¶45} These assignments of error are rendered moot by our disposition of
Vari’s first assignment of error. App.R. 12(A)(1)(c).
       {¶46} The judgment of the trial court is hereby reversed, Vari’s guilty plea is
vacated, and the matter is remanded for further proceedings according to law and
consistent with this court’s opinion.


Waite, J., concurs.
DeGenaro, J., dissents. See dissenting opinion.

DeGenaro, J., dissents.
       {¶47} I must respectfully dissent from the majority's decision to vacate Vari's
plea, not only because the majority has overreached by sua sponte raising the issue
which is the basis of its decision, but because of the majority's analysis resolving the
issue as well.    I would affirm Vari's sentence and conviction for multiple reasons.
First, his plea was knowing, voluntary and intelligent, thereby waiving appellate
review of several assigned errors. Second, the trial court did not err by denying
Vari's motion to withdraw his guilty plea. Finally, by virtue of moving to withdraw his
                                                                                - 10 -


guilty plea, Vari reneged on the plea agreement with the State. Because there was
no longer a jointly recommended sentence in place, the trial court did not breach any
sentencing agreement or otherwise commit reversible error in imposing an eight year
prison sentence.
       {¶48} For ease of analysis, I will address Vari's assignments of error out of
order. In his second, third and fifth, which can be addressed together, Vari asserts as
follows:
       {¶49} "The Defendant-Appellant's state constitutional right to a grand jury
indictment and state and federal constitutional rights to due process were violated
when his indictment for failure to comply with order or signal of police officer pursuant
to R.C. 2921.331(B)(C)(1)(4) failed to expressly charge the mens rea element of the
crime."
       {¶50} "The Defendant-Appellants State Constitutional rights and federal
Constitutional rights to due process were violated where he was ineffectively assisted
by counsel."
       {¶51} "The Defendant-Appellants State Constitutional Rights And Federal
Constitutional Rights Were Violated When His Plea Of Guilty Was Coerced Through
Unethical Negotiations Involving Trial Judge And Threats Of Abuse By Police."
       {¶52} Vari asserts that his indictment was defective; his trial counsel was
ineffective for failing to adequately communicate with him, interview potential
witnesses, and review police reports; and his plea was coerced. The State argues,
inter alia, Vari's guilty plea was valid and therefore waives any challenge to counsel's
effectiveness, and further, that these claims are based upon facts de hors the record,
and therefore must be raised in a post-conviction petition, not a direct appeal. The
State is correct.
       {¶53} Vari entered a guilty plea in this case. As this court has previously held,
"[s]ubsequent to a plea of guilty, an appellant may only challenge the voluntary,
knowing and intelligent nature of his plea. State v. Spates, 64 Ohio St.3d 269, 272,
1992-Ohio-130, 595 N.E.2d 351. A defendant's guilty plea waives most constitutional
rights and most errors for purposes of appeal, because 'a guilty plea represents a
                                                                                  - 11 -


break in the chain of events which has preceded it in the criminal process' and the
defendant 'may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.' Id." State v.
Cain, 7th Dist. No. 08 MA 123, 2009-Ohio-1015, at ¶11. See, also, State v. Taylor,
7th Dist. No. 08 MA 107, 2009-Ohio-4818, at ¶21. In accordance with Cain and
Taylor, Vari waived appellate review of any alleged defect in the indictment by
entering a guilty plea.
       {¶54} Moreover, because a guilty plea constitutes a complete admission of
guilt, Crim. R. 11(B)(1), this waiver "includes the right to claim that the accused was
prejudiced by constitutionally ineffective counsel, 'except to the extent the defects
complained of caused the plea to be less than knowing and voluntary.'" (internal
citation omitted) State v. Snyder, 7th Dist. No. 03 MA 152, 2004-Ohio-3366, at ¶13.
Thus, it must be determined whether Vari's plea passes constitutional and statutory
muster and whether counsel's assistance was effective in that regard.
       {¶55} Crim.R. 11(C) sets forth constitutional rights (jury trial, confrontation of
witnesses, compulsory process, proof of guilt beyond a reasonable doubt, and the
privilege against compulsory self-incrimination) and non-constitutional rights
(defendant must be informed of the nature of the charges, maximum penalty,
ineligibility of probation if applicable, and that the court may proceed immediately to
sentencing) that a defendant must be advised of by the trial court before entering a
plea. When a trial court fails to either strictly comply with a recitation of a defendant's
constitutional rights, or substantially comply with a recitation of a defendant's non-
constitutional rights, the plea is invalid. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, syllabus; State v. Nero (1990), 56 Ohio St.3d 106, 108,
564 N.E.2d 474.
       {¶56} Here the trial court's colloquy with the defendant demonstrates strict
compliance with the recitation of Vari's constitutional rights and substantial
compliance as to his non-constitutional rights. The trial court informed Vari of his
constitutional right to: have a jury trial, confront witnesses against him, subpoena
witnesses in his favor, have the State prove his guilt beyond a reasonable doubt, not
                                                                                - 12 -


be compelled to testify against himself and the fact that if he chose to not testify that
choice could not be considered in determining his guilt. Vari was also advised of the
charges against him and the possible penalties, which included a 24-year maximum
sentence and post release control, that the offenses were "probationable" offenses
and was told about community control.
       {¶57} In addition to all the above, Vari was asked whether his plea was
entered into freely and voluntarily and if he was threatened into making the plea.
Vari indicated he was not threatened and his plea was freely made, and that he was
not under the influence of any drugs or alcohol. Considering all the above, Vari was
afforded due process and his guilty plea was entered knowingly, intelligently, and
voluntarily with the effective assistance of counsel.
       {¶58} As the State points out, the balance of Vari's allegations of counsel's
ineffectiveness primarily involve alleged facts that are de hors the record. He claims
that he met with counsel only one time after his preliminary hearing for which his
counsel was unprepared.       He claims that his counsel failed to contact several
defense witnesses, none of whom he identifies. He claims that he was coerced into
pleading guilty. All of the exhibits attached to Vari's pro se appellate brief in support
of these claims are not part of the record.       These types of allegations are not
reviewable on direct appeal and are more appropriately raised in a motion for post
conviction relief, in which facts outside the record may be introduced. State v.
Nottingham, 7th Dist. No. 05 BE 39, 2007-Ohio-3040, at ¶27; State v. Hartman, 93
Ohio St.3d 274, 302, 2001-Ohio-1580, 754 N.E.2d 1150. Moreover, Vari's claims of
counsel's ineffectiveness other than with respect to his plea are waived by Vari's
guilty plea. Snyder, at ¶13. And Vari's claim that his plea was coerced is meritless
because of the conclusion above that his plea was entered knowingly, intelligently
and voluntarily.
       {¶59} For all of these reasons, Vari's second, third and fifth assignments of
error have either been waived or are meritless.
       {¶60} Vari's fourth assignment of error asserts:
       {¶61} "The Defendant-Appellants State Constitutional Rights and Federal
                                                                              - 13 -


Constitutional Rights To Due Process Were Violated When He Was Denied Access
To An Adequate Law Library Or Persons Trained In Law.             Defendant-Appellant
further Contends That He Was Denied His Right To Equal Protection Of The Laws."
       {¶62} Vari reasserts his ineffective assistance claim and also complains that
the Akron Law School's Appellate Review Clinic denied him assistance in drafting a
pro se motion to withdraw his guilty plea. He contends he wanted to withdraw his
plea within days of entering it and if the Appellate Review Clinic had helped him file
the motion closer in time to when the plea was entered, he would have been
successful in having it withdrawn. Again, these claimed errors and the exhibits Vari
points to in support are de hors the record and are more appropriately raised in a
post-conviction petition.
       {¶63} To the extent that Vari alleges that he was denied access to an
adequate law library, that claim should have been pursued through an original, civil
action. Additionally, "[p]rison authorities may assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law as a means to providing
adequate access to the courts. * * * The constitutional right of access does not
guarantee an inmate's access to a law library where the inmate has adequate legal
representation." (Internal citations omitted) Smith v. Swanson, 4th Dist. No.
2003CA00140, 2004-Ohio-2652, at ¶13. Accordingly, Vari's fourth assignment of
error is meritless.
       {¶64} Vari's first assignment of error asserts:
       {¶65} "The trial court committed an abuse of discretion by refusing to grant
defendant-appellant's motion to withdraw his previous plea of guilty where such
request was made prior to the imposition of sentence."
       {¶66} In his first assignment of error Vari argues the trial court erred by
refusing to permit him to withdraw his plea.      Before I address the merits of this
assignment of error, I must address the majority's conclusion that the trial court
breached the plea agreement.
       {¶67} In neither this nor any other assignment of error in this appeal does Vari
                                                                                - 14 -


challenge the sentence imposed by the trial court. Nor does Vari assign as error that
the State or the trial court breached the plea agreement.     Therefore I disagree with
the majority's decision to sua sponte raise this issue. While an appellate court does
have the discretion to raise issues sua sponte, such discretion is not completely
unfettered. App.R. 12(A). I would decline to exercise that discretion in order to avoid
the appearance of acting as an advocate, and to preserve the court's role as an
objective, impartial arbiter of a legal dispute. See Dayton v. Dabney (1994), 99 Ohio
App.3d 32, 39-40, 649 N.E.2d 1271.
       {¶68} Turning to the merits of the majority's sua sponte issue, I see no
evidence in this record to support the majority's determination that the trial court
participated in the plea bargaining process at all. Here, the trial court merely offered
an explanation as to why it was willing to impose the sentence that Vari and the State
jointly recommended. Further, the trial court's sentencing decision, which allegedly
breached Vari's plea agreement, happened subsequent to and did not affect the
actual substance of Vari's motion to withdraw his plea. I disagree with the majority's
choice to use a subsequent decision by the trial court, imposing an eight year
sentence, to find reversible error in a prior trial court decision, denying the motion to
withdraw.    The majority's conclusion effectively holds that Vari's plea was not
knowing, voluntary and intelligent because of the sentence imposed by the trial court.
Even more importantly, the trial court did not breach the plea agreement.           Vari
unequivocally rejected the plea agreement due to his desire to present additional
mitigating circumstances in the hopes of obtaining a lesser sentence than the 4 years
he had originally agreed to, and was now reneging on, leaving no plea agreement for
the trial court to breach.
       {¶69} At the beginning of the August 8, 2007 sentencing hearing, the trial
court sought to verify with defense counsel that the four year sentence recommended
by the State was an agreed upon sentence.            Defense counsel stated that the
sentence was agreed upon "at the time," but that Vari would like to withdraw his guilty
plea and continue to trial in order to assert his innocence. (Tr. 5, 7). The trial court
responded: "I'm happy to go through the hearing that I have to go through when
                                                                                - 15 -


someone requests to withdraw the guilty plea, but your client should be real careful
about that because if he's not agreeing to the sentence that's recommended, then I'm
not going to go along with an agreed upon sentence, if indeed I don't sustain his
motion to withdraw his plea." (Tr. 7). Defense counsel responded that Vari had been
so advised. (Tr. 8).
       {¶70} Vari continued to address the court personally. Vari explained that he
did not want to withdraw his guilty plea in order to maintain his innocence, and
instead wanted to withdraw the sentencing agreement because he felt that he had
further mitigating circumstances to present to the court. Vari complained that his
counsel had not met with him, and that he had not been able to explain such
mitigating evidence to his counsel before the entry of his plea. (Tr. 10-11). The
defendant expressed that he would still give a guilty plea, but wanted "true
consideration" in regards to the trial court's sentencing decision. (Tr. 11). Vari then
stated that he did not wish to proceed on his Crim.R. 32.1 motion. (Tr. 12).
       {¶71} Defense counsel then began to discuss mitigating circumstances in
Vari's case. The trial court stopped counsel and explained that, in light of the four
year sentence agreement, there was no place in the hearing for a presentation of
circumstances, either mitigating or aggravating.     The trial court noted that, if the
defendant wanted to jettison the sentencing agreement, he was free to present
mitigating evidence, and the State would be free to present aggravating evidence.
The trial court warned that proceeding without the constraints of the four year
sentencing agreement would definitely result in a higher sentence for Vari. (Tr. 15).
After the trial court's explicit explanation and warning, Vari stated: "I don't want the
agreed upon sentence. I can't present mitigating circumstances? I want to withdraw
my plea." (Tr. 16).
       {¶72} The trial court, counsel, and Vari proceeded to discuss the merits of
Vari's motion to withdraw his guilty plea, as well as Vari's mitigating circumstances, in
tandem. Vari continued to express that his desire to withdraw his plea was in order
to explain his circumstances and receive a sentence with the best opportunity for
rehabilitation. Vari otherwise noted that he "really didn't want to take this plea back,"
                                                                              - 16 -


and expressed that he did need to go to jail. (Tr. 27-28).
      {¶73} I cannot join in the majority's conclusion that the trial court made it
impossible for Vari to breach his plea agreement by denying the motion to withdraw
his guilty plea. Even if the above discussion had not occurred within the context of a
motion to withdraw a guilty plea, Vari's requests and explanations make it quite clear
that he rejected the plea agreement, leaving no plea agreement for the trial court to
breach. It appears from the record that Vari was having second thoughts about the
agreement he reached with the State as to the length of his sentence. I agree with
the majority that plea bargaining is an important component of the criminal justice
system and to preserve the integrity and public confidence in that system requires
that promises made by prosecutors and trial judges be kept. But to a lesser extent
the defendant has an obligation to keep the promise he makes as well. A defendant
cannot decide to walk away from a plea agreement and still expect the State's
original promise to be kept. Doing so has the aura of gaming the system, trying to
get a better deal and yet hedging one's bet by expecting the State and the trial court
to keep their promises. Allowing a defendant to play such a game would undermine
the plea bargaining process.
      {¶74} Although the trial court denied Vari's motion to withdraw his guilty plea,
Vari made it clear that he wanted to present mitigating circumstances in the hopes of
altering or reducing his sentence, despite the explicit warning of the trial court that
such a result almost certainly would not occur.       The rejection of the prior plea
agreement, the entry of a guilty plea upon the trial court denying Vari's motion to
withdraw and the freedom to present mitigating circumstances were what Vari
requested, and that is exactly what he received.        I therefore disagree with the
majority's conclusion that the means through which Vari rejected his plea agreement
(the motion to withdraw a guilty plea) made it impossible for Vari to renege on the
plea agreement.
      {¶75} Thus for all these reasons, I conclude that the trial court did not breach
the sentencing agreement initially presented by the parties.
      {¶76} Turning to the merits of the issue raised by Vari in his first assignment
                                                                                - 17 -


of error, the trial court did not abuse its discretion by denying his motion to withdraw
his guilty plea. Pursuant to Crim.R. 32.1, a defendant may move to withdraw his
guilty plea before his sentence is imposed. This motion can be made orally at the
sentencing hearing. See State v. Glavic (2001), 143 Ohio App.3d 583, 588-589, 758
N.E.2d 728. Motions to withdraw a guilty plea before sentencing "should be freely
and liberally granted." State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E .2d 715.
At the same time, "[a] defendant does not have an absolute right to withdraw a guilty
plea prior to sentencing." Id. at paragraph one of the syllabus. A defendant is only
entitled to withdraw his plea when "there is a reasonable and legitimate basis for the
withdrawal of the plea." Id.
       {¶77} This Court has previously stated that "the factors that are weighed in
considering a pre-sentence motion to withdraw a plea include the following: (1)
whether the state will be prejudiced by withdrawal, (2) the representation afforded to
the defendant by counsel, (3) the extent of the Crim.R. 11 plea hearing, (4) the extent
of the hearing on the motion to withdraw, (5) whether the trial court gave full and fair
consideration to the motion, (6) whether the timing of the motion was reasonable, (7)
the reasons for the motion, (8) whether the defendant understood the nature of the
charges and potential sentences, (9) whether the accused was perhaps not guilty or
had a complete defense to the charge." State v. Cuthbertson, 139 Ohio App.3d 895,
898-899, 2000-Ohio-2638, 746 N.E.2d 197. No one of these factors is conclusive.
Id. at 899.
       {¶78} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant's
assertions in support of the motion are matters to be resolved by that court." State v.
Reed, 7th Dist. No. 04 MA 236, 2005-Ohio-2925, at ¶7, quoting State v. Smith
(1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324, at paragraph two of the
syllabus. A trial court's decision "to grant or deny a presentence motion to withdraw
a guilty plea is within the sound discretion of the trial court," and thus will not be
disturbed by a reviewing court absent an abuse of discretion. Xie at paragraph two
of the syllabus.     The trial court abuses that discretion when its ruling is
                                                                                - 18 -


"unreasonable, arbitrary or unconscionable," which is "more than an error of
judgment." Id. at 527.
       {¶79} Upon consideration of the nine factors of Cuthbertson, the trial court's
decision to deny Vari's motion to withdraw his guilty plea was not an abuse of
discretion. First, while the trial court noted that Vari's plea withdrawal would hamper
judicial efficiency given the court's crowded docket, the court concluded that granting
Vari's motion would probably not prejudice the State.            Vari argues that the
consideration of this factor was the main reason for reversal in Cuthbertson, and that
the similarities to this case should merit reversal as well. However, as this Court
recently noted in State v. Scott, 7th Dist. No. 08 MA 12, 2008-Ohio-5043, at ¶15, "our
Cuthbertson reversal relied upon multiple factors including the lack of prejudice to the
state, the pressure to plead, the defendant's expression of innocence, and the
defendant's letter written to the court one week after the plea and two weeks prior to
sentencing." Here, as in Scott, the factors "do not necessarily tip the scales in the
same manner" that they did in Cuthbertson.          Vari did not allege that he was
pressured to plead, or that he had expressed the desire to withdraw his plea prior to
the sentencing hearing. During his sentencing hearing Vari does allude to having
sent a letter to the trial court, though the context of Vari's allusion indicates that he
had hoped to present mitigating circumstances for the trial court to consider in its
sentencing decision. Additionally, unlike the defendant in Cuthbetrson, Vari did not
necessarily argue his innocence during his motion to withdraw his guilty plea. Finally,
"although prejudice to the state has been called an important factor, it is not
dispositive, and a lack of articulated prejudice does not require plea withdrawal."
Scott at ¶16, citing State v. Leasure, 7th Dist. No. 01-BA-42, 2002-Ohio-5019, at ¶19,
42.
       {¶80} As for the second factor, Vari complained that his counsel had not met
with him, and that he had not been able to explain such mitigating evidence to his
counsel before the entry of his plea.     As analyzed above, Vari's guilty plea was
entered knowingly, intelligently, and voluntarily with the effective assistance of
counsel. Moreover, counsel was able to negotiate a four year sentencing agreement,
                                                                                - 19 -


when Vari was facing a maximum sentence of twenty-four years in prison. Although
Vari later rejected this negotiated sentence, counsel's pre-trial actions and successful
efforts in obtaining such a favorable sentence indicate that Vari was afforded
reasonable representation leading up to his plea.
       {¶81} Third, Vari stated that he had failed to take his prescribed medication
prior to his June 12, 2007 plea hearing, causing misjudgment and surprise on his
part. However, there is no indication in the record of that hearing that Vari did not
understand the nature of the charges against him or the sentencing ranges. The
charges in the indictment were explained to Vari at the plea hearing and were also
included in the written plea agreement. The sentencing range of up to twenty-four
years in prison was explained to Vari, and detailed in the written plea agreement. As
described above, the trial court complied with the requirements of Crim.R. 11 in its
colloquy with Vari.
       {¶82} Fourth and fifth, although Vari argues that the trial court did not
adequately stress the first Cuthbertson factor in its deliberations regarding Vari's
motion, Vari does not argue that the trial court failed to provide a complete analysis of
Vari's motion pursuant to Cuthbertson and Xie. In fact, the record reveals that the
trial court inquired extensively into Vari's reasons for requesting a withdrawal of his
plea, engaged in lengthy discussion with Vari and counsel about the motion, and
provided Vari with ample opportunity to argue the merits of his motion.
       {¶83} Sixth, the trial court noted the timing of Vari's motion was unreasonable,
as it was presented orally during Vari's sentencing hearing. Vari had almost two
months between his plea hearing and sentencing hearing during which time he could
have filed a motion to withdraw his guilty plea. Not only did Vari wait until the day of
sentencing to present his motion, but did so after the sentencing hearing had already
commenced.
       {¶84} Seventh, the reasons for Vari's motion were not compelling.            Vari
stressed throughout his explanations that his reason for withdrawing his plea was in
order to present mitigating evidence.      Vari repeatedly indicated that he did not
actually wish to change his plea to "not guilty," and only wanted "true consideration"
                                                                                 - 20 -


of his version of events before the imposition of a sentence.
       {¶85} Eighth, as stated previously, Vari entered his plea with an
understanding of the nature of his charges and their sentencing ranges. Vari was
given a full explanation of the charges at his original sentencing hearing, and the trial
court repeatedly reminded Vari of the maximum prison sentences that he potentially
faced if he chose to reject the previously agreed upon sentence.
       {¶86} Ninth, although Vari's counsel broached the issue of the motion with a
claim of innocence, Vari repeatedly made statements alleging the opposite. Vari
explained that he did not want to withdraw his guilty plea in order to maintain his
innocence, and instead wanted to withdraw the sentencing agreement because he
felt that he had further mitigating circumstances to present to the court.           Vari
expressed that he continued to intend to enter a guilty plea, but wanted "true
consideration" in regards to the trial court's sentencing decision.        Vari otherwise
noted that he "really didn't want to take this plea back," and stated that he did need to
go to jail.   Further, the mitigating circumstances presented did not support an
argument of innocence, but instead an argument towards lesser charges or lesser
sentences.    For example, Vari believed that he was perhaps guilty of negligent
assault, not felonious assault. Vari argues that the vehicle he was driving did not
have a reverse gear, rendering impossible the State's claim that Vari had backed up
to ram the officer's vehicles during their pursuit.
       {¶87} The trial court heard Vari's arguments during the hearing on the motion
to withdraw the plea, and was in the best position to determine Vari's credibility and
determine the weight of the assertions in support of the motion. Reed, supra. Given
the foregoing analysis, although the first Cuthbertson factor weighs in favor of Vari's
motion, the remaining factors weigh heavily against it. The trial court therefore did
not abuse its discretion when it denied Vari's motion to withdraw his guilty plea. For
all of the foregoing reasons, Vari's first assignment of error is meritless.
       {¶88} In conclusion, I would affirm Vari's conviction and sentence. The trial
court properly denied Vari's motion to withdraw his guilty plea, the indictment was not
defective, he had the effective representation of counsel when entering his plea, and
                                                                                - 21 -


his plea was not coerced. His claim with respect to access to the prison law library
and a legal clinic likewise fails on its merits or because it is not an appropriate claim
in a direct appeal. Finally, Vari withdrew from the jointly recommended sentence,
and as a result the trial court was no longer bound to impose it.
