[Cite as State v. Moore, 2011-Ohio-4546.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                                                        :
                                                                        C.A.    CASE      NO.
                                                                24378

v.
                                                                :              T.C.       NO.
                                                                06CR2762

GREGORY MOORE                                :             (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                                    :

                                                       :

                                            ..........

                                            OPINION

                         Rendered on the         9th   day of     September     , 2011.

                                            ..........

LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 108 Dayton Street, Yellow Springs,
Ohio 45387
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.
                                                                                              2

       {¶ 1} Defendant-appellant Gregory Moore appeals from the decision of the

Montgomery County Court of Common Pleas, denying his motion to withdraw his guilty plea.

No hearing was conducted on said motion, and the trial court issued its written decision

denying the motion on November 8, 2010. Moore filed a timely notice of appeal of the trial

court’s decision on December 6, 2010.

                                               I

       {¶ 2} On July 3, 2006, Moore was arrested at his residence after his five-year old

granddaughter disclosed that she had performed oral sex on him. Moore was subsequently

indicted on July 7, 2006, for one count of rape of a child under ten years old, in violation of

R.C. 2907.02(A)(1), a felony of the first degree. At his arraignment on July 11, 2006, Moore

stood mute, and the trial court entered a plea of not guilty on his behalf. Moore filed a motion

to suppress statements he made to police on July 25, 2006. Shortly thereafter, the court held

a hearing on the motion to suppress.1

       {¶ 3} On October 27, 2006, Moore pled guilty to one count of rape of a child under

thirteen and was sentenced to ten years in prison. Moore did not appeal his conviction and

sentence.       Approximately four years later on July 28, 2010, Moore filed a motion to

withdraw his guilty plea. In a decision filed on November 8, 2010, the trial court denied

Moore’s motion.

       {¶ 4} It is from this judgment that Moore now appeals.

                                               II

       {¶ 5} Moore’s sole assignment of error is as follows:
            1
          The trial court overruled Moore’s motion to suppress in a written decision
   issued on December 14, 2006, almost two months after Moore pled guilty and was
   sentenced.
                                                                                                 3

       {¶ 6} “A PLEA THAT IS NOT MADE KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY          DUE      TO    INEFFECTIVE         ASSISTANCE         OF    COUNSEL        IS

UNCONSTITUTIONAL UNDER THE U.S. AND OHIO CONSTITUTIONS.”

       {¶ 7} In his sole assignment of error, Moore contends that the trial court erred when it

denied his motion to withdraw his plea without a hearing because he did not enter the plea in a

knowing and voluntary fashion.        Specifically, Moore argues that defense counsel was

ineffective at the time of the suppression hearing for failing to fully exploit the information

Moore provided regarding the multiple medications he was taking and their adverse effects on

him on the day he was arrested and interrogated by police. Moore asserts that had evidence

regarding his medications been adduced at the suppression hearing, “a more intelligent and

knowing approach would have informed the plea process.”

       {¶ 8} Crim. R. 32.1 provides that a trial court may grant a defendant’s post-sentence

motion to withdraw a guilty plea only to correct a manifest injustice. State v. Bush (2002), 96

Ohio St.3d 235, 2002-Ohio-3993. “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.

Smith (1977), 49 Ohio St.2d 261. The term “abuse of discretion” connotes more than an error

of law or judgment; rather, it implies that the trial court acted in an unreasonable, arbitrary, or

unconscionable manner. State v. Adams (1980), 62 Ohio St.2d 151, 157.

       {¶ 9} When, as in the case before us, the movant seeks to withdraw his guilty plea after

the trial court has imposed a sentence, he bears the burden of establishing the existence of a

manifest injustice. Smith, 49 Ohio St.2d 261, ¶ 1 of the syllabus. A defendant can only

establish a manifest injustice in “extraordinary cases.” Id. at 264. A manifest injustice has
                                                                                                                                       4

been defined by the Ohio Supreme Court as a “clear or openly unjust act.” State ex rel.

Schneider v. Kreiner (1998), 83 Ohio St.3d 203, 208. A post-sentence motion to vacate a

plea is only permitted in extraordinary circumstances because the “accused might be

encouraged to plead guilty to test the weight of potential punishment and withdraw the plea if

the sentence was unexpectedly severe.” State v. Peterseim (1980), 68 Ohio App.2d 211. “In

order to prevail on a claim of ineffective assistance of counsel, a defendant must

show that             counsel's representation fell below an                                     objective         standard of

reasonableness and that, but for counsel's errors, the result of the proceeding would

have       been        different.”         State       v.     Stevens,          Montgomery              App.        No.      19572,

2003-Ohio-6249, at ¶33, citing Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 142. “Entry of

a voluntary guilty plea waives ineffective assistance of counsel claims except to the extent that counsel's performance causes the waiver

of Defendant's trial rights and the entry of his plea to be less than knowing and voluntary.” State v. Kidd, Clark App.

No. 03CA43, 2004-Ohio-6784, at ¶16.

           {¶ 10} Upon review, we conclude that the trial court did not abuse its discretion

when it denied Moore’s motion to withdraw his guilty plea. Initially, we note that

Moore waited approximately four years after he pled guilty to file his motion to

withdraw. Although there is no time limit for a motion to withdraw, “an undue delay

between the occurrence of the alleged cause of a withdrawal of a guilty plea and the

filing of a Crim. R. 32 motion is a factor adversely affecting the credibility of the

movant and militating against the granting of the motion.”                                                 State v. Harden,

Montgomery App. No. 23742, 2010-Ohio-5282, ¶18.

           {¶ 11} Significantly, Moore has failed to establish that his trial counsel was
                                                                                       5

ineffective at the suppression hearing, as well as at the plea hearing. Notably,

Moore has not provided us with a typed or printed copy of the transcript from either

hearing so that we may properly review the record regarding his assigned error, as

required by App. R. 9(A). App. R. 9(A) provides that “ [w]hen the transcript of

proceedings is in the videotape medium, counsel shall type or print those portions of

such transcript necessary for the court to determine the questions presented, certify

their accuracy, and append such copy of the portions of the transcripts to their briefs.”

Absent such a transcript, we cannot determine whether the record supports findings

the trial court made to support his factual determinations, and we must, therefore,

accept these findings as an accurate representation of the testimony presented.

Without a transcript, Moore’s specific arguments necessarily fail. State v. Smith,

Montgomery App. No. 20835, 2005-Ohio-5588, ¶9-10. We must, therefore, assume

regularity in the proceedings. State v. Morris, Montgomery App. No. 21125,

2006-Ohio-2129.

       {¶ 12} Assuming regularity in the trial court’s proceedings, we will presume

that the trial court conducted a full evidentiary hearing and gave Moore a full

opportunity to be heard on his motion to suppress. We will also presume that

Moore’s guilty plea was entered knowingly, intelligently, and voluntarily. We note that

Moore was originally charged with one count of rape of a child under ten years of age.

This offense carried a maximum penalty of life imprisonment. Defense counsel,

however, was able to negotiate a plea agreement which resulted in Moore pleading

guilty to the rape of a child under the age of thirteen and a sentence of ten years in

prison.
                                                                                      6

       {¶ 13} In our view, the representations allegedly made by Moore’s counsel to

him with respect to his motion to suppress and/or guilty plea could have properly

been the subject of a petition for post-conviction relief made pursuant to R.C. §

2953.21. State v. Hartzell (August 20, 1999), Montgomery App. No. 17499.

       {¶ 14} “Matters outside the record that allegedly corrupted the defendant’s

choice to enter a plea of guilty or no contest so as to render the plea less than

knowing and voluntary are proper grounds for an R.C. 2953.21 petition for

post-conviction relief. In 1996, the General Assembly limited the number of such

petitions to but one, which must be filed within 180 days after the time for appeal has

expired, absent certain narrow showings that R.C. 2953.23(A) requires. Since then,

grounds formerly presented in support of petitions for post-conviction relief are now

more frequently employed to support Crim. R. 32.1 motions, which are not subject to

similar limitations. Nevertheless, the availability of R.C. 2953.21 relief on those

same grounds removes them from the form of extraordinary circumstance

demonstrating a manifest injustice which is required for Crim. R. 32.1 relief.” Id.

       {¶ 15} In light of the foregoing, we find that Moore has failed to demonstrate a

manifest injustice necessary for Crim. R. 32.1 relief. Thus, the trial court did not

abuse its discretion when it overruled Moore’s motion to withdraw his guilty pleas.

       {¶ 16} Moore’s sole assignment of error is overruled.

                                           III

       {¶ 17} Moore’s sole assignment of error having been overruled, the judgment

of the trial court is affirmed.

                                     ..........
                                     7

FROELICH, J. and HALL, J., concur.

Copies mailed to:

Laura M. Woodruff
George A. Katchmer
Hon. Mary L. Wiseman
