[Cite as State v. Williams, 2012-Ohio-4262.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                 )
                                               )   CASE NO. 11 MA 156
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )         OPINION
                                               )
LEXTER WILLIAMS,                               )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 10 CR 1358.


JUDGMENT:                                          Reversed and Conviction Vacated.


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 Jay Blackstone
                                                   6600 Summit Drive
                                                   Canfield, OH 44406




JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                   Dated: September 11, 2012
[Cite as State v. Williams, 2012-Ohio-4262.]
DeGenaro, J.
        {¶1}     Defendant-Appellant, Lexter Williams, appeals the August 23, 2011
judgment of the Mahoning County Court of Common Pleas overruling his post-sentence
motion to withdraw his guilty plea to one count of escape. Williams contends that the trial
court abused its discretion by denying the motion because he met his burden of
establishing the existence of "manifest injustice." The State concedes the error.
        {¶2}     Williams' assignment of error is meritorious, because as a matter of law his
conduct, i.e., violating the terms of his electronically monitored house arrest, did not
constitute the crime of escape. Accordingly, the judgment of the trial court is reversed
and the conviction for escape is vacated.
                                   Facts and Procedural History
        {¶3}     On October 28, 2010, in a separate Mahoning County Common Pleas Court
case (09 CR 78), Williams pled guilty to 11 felony charges. Pursuant to the plea
agreement in that case, the State agreed to make a favorable recommendation regarding
sentencing and agreed to recommend that Williams be released on his own recognizance
pending sentencing, with electronically monitored house arrest (EMHA) monitoring and
daily reporting to the Community Corrections Association (CCA) for three weeks. In the
written plea agreement, the State noted that its offer was expressly contingent on
Williams abiding by the terms of his EMHA and reporting to CCA, and that if Williams
were to violate EMHA, the laws of the State of Ohio or engage in any illegal activity, the
State's recommendation would be the maximum sentence.
        {¶4}     Ultimately, Williams fled before sentencing in Case Number 09 CR 78. As a
result of that conduct, on December 9, 2010, Williams was indicted by the Mahoning
County Grand Jury in the present case (trial court Case Number 10 CR 1358), on one
count of escape (R.C. 2921.34(A)(1)), a second-degree felony.
        {¶5}     Williams pled guilty to the escape charge on March 1, 2011, waived his right
to a pre-sentence investigation and a combined plea and sentencing hearing was held.
The trial court accepted Williams' guilty plea and sentenced him to eight years in prison,
to be served concurrently with the prison sentence in Case Number 09 CR 78, with credit
for time served. The trial court further advised Williams that he would be subject to three
                                                                                        -2-


years of post-release control.
        {¶6}   On April 14, 2011, Williams, via trial counsel, filed a motion to withdraw his
guilty plea, seeking the withdrawal on the grounds that counsel had inadvertently
overlooked a complete defense to the escape charge, namely that pursuant to Ohio
Supreme Court case law, EMHA does not constitute a "detention" for purposes of the
escape statute. Counsel asserted that his failure to inform Williams of this defense
effectively deprived Williams from entering his plea knowingly and intelligently. Attached
to the motion was an affidavit from Williams, in which he averred that at the time he made
his plea he did not know that EMHA does not constitute detention as required for an
escape conviction, and that had he known this he would not have entered a guilty plea to
the charge.
        {¶7}   The State filed a brief in opposition to the motion, and on August 23, 2011,
without holding a hearing, the trial court overruled Williams' motion to withdraw his guilty
plea.
                    Post-Sentence Motion to Withdraw Guilty Plea
        {¶8}   In his sole assignment of error, Williams asserts:
        {¶9}   "The court's August 23, 2011 decision and corresponding judgment entry
overruling the defendant's motion to withdraw guilty plea was a prejudicial error as a
result of the court's failure to correct a 'manifest injustice' as contemplated by Crim.R.
32.1 of the Ohio Rules of Criminal Procedure."
        {¶10} Crim.R. 32.1 governs motions to withdraw a guilty plea and 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." 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
"manifest injustice" can only be established in "extraordinary cases" and has been
defined by the Ohio Supreme Court as a "clear or openly unjust act." Smith, 49 Ohio
St.2d at 264; State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83
                                                                                      -3-


(1998). The purpose of the manifest injustice requirement is to avoid the possibility of a
defendant pleading guilty to test the weight of potential punishment. Smith at 264.
       {¶11} "[T]he ineffectiveness of counsel when a defendant is entering a guilty plea
can be a manifest injustice that the defendant may use as the basis for a motion to
withdraw a guilty plea." State v. Doak, 7th Dist. Nos. 03 CO 15, 03 CO 31, 2004-Ohio-
1548, ¶19, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992).
       {¶12} An appellate court reviews the disposition of a motion to withdraw a guilty
plea for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67, 477 N.E.2d 627
(1985). "The term 'abuse of discretion' connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v.
Adams, 62 Ohio St.2d 151, 157, 404 N .E.2d 144 (1980).
       {¶13} Williams presents several sub-arguments in support of reversal, but his
main contention, which is dispositive of this appeal, is that he should have been permitted
to withdraw his plea because under Ohio Supreme Court precedent, EMHA does not
constitute a "detention" as required for the crime of escape. He contends that the trial
court abused its discretion by failing to correct this "manifest injustice." Williams is
correct.
       {¶14} R.C. 2921.34(A)(1), the escape statute, provides: "No person, knowing the
person is under detention * * * shall purposely break or attempt to break the detention, or
purposely fail to return to detention * * *." The term "detention" is defined by R.C.
2921.01(E) and does not include EMHA.
       {¶15} In State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047,
the Ohio Supreme Court concluded that "pretrial electronic home monitoring was not
intended to be a form of detention under R.C. 2921.01(E) [and thus] that pretrial
electronic home monitoring does not constitute detention for the purpose of prosecuting
the crime of escape, nor does it satisfy the requirements of proof in R.C. 2929.04(A)(4)."
Id. at ¶72.
       {¶16} Williams asserts that because his conduct could not have constituted an
escape as a matter of law, pursuant to Gapen, and because his trial counsel failed to
                                                                                      -4-


advise him of this, his guilty plea was therefore unknowing, and he should have been
permitted to withdraw the plea to avoid manifest injustice.
       {¶17} As indicated, the State concedes that the trial court abused its discretion by
denying Williams' motion to withdraw his guilty plea. In support, the State cites this
court's recent opinion in State v. Tate, 7th Dist. No. 11 MA 78, 2012-Ohio-1503, in which
we reversed the trial court's denial of a motion to withdraw a guilty plea, in part because
the defendant asserted a possible complete defense to the charge, namely that the victim
had allegedly recanted her statement that Tate was the shooter. Id. at ¶18. Tate is not
entirely on point since it involved a pre-sentence motion to withdraw. Such motions are
more liberally granted and courts apply a multi-factor test, as set forth in State v. Fish,
104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995), rather than the manifest injustice
standard. See, also, State v. Xie, 62 Ohio St.3d 521, 526-527, 584 N.E.2d 715 (1992);
State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d 197 (7th Dist.2000).
       {¶18} That said, we have noted that some of the Fish factors may be relevant in
reviewing a post-sentence motion. State v. Russell, 7th Dist. No. 04 CA 807, 2005-Ohio-
1337, ¶18. And indeed, one of the factors is: "(9) whether the accused maintains his
innocence, points to evidence placing his guilt in question, or alleges a complete defense
to the charge." Further, several Third District opinions involving post-sentence motions
are instructive and support the parties' assertions that reversal is proper in this case:
State v. Cook, 3d Dist. No. 12-01-15, 2002-Ohio-2846; State v. Youngpeter, 3d Dist. Nos.
15–04–09, 15–04–10, 2005-Ohio-329.
       {¶19} In Cook, the defendant received incorrect information regarding his
sentence prior to making his plea. Specifically, his counsel erroneously represented to
him, during the plea hearing, that he would be entitled to judicial release, and the trial
court erroneously stated in its judgment entry that the defendant's prison term was not
mandatory, despite the fact that the term was imposed under a sentencing statute that
required mandatory prison term without possibility of judicial release. Cook obtained new
counsel, became aware that he was ineligible for judicial release and filed a post-
sentence motion to withdraw his guilty plea, which was overruled. The Third District
                                                                                          -5-


reversed, concluding that a manifest injustice had occurred:

       Cook's assertions that he was not intelligently informed of the meaning of
       his plea are supported by statements of his counsel at the sentencing
       hearing and by the judgment entry of the trial court. In sum, there was a
       specific misunderstanding and mistake of law by court and counsel as to
       whether Cook was eligible for judicial release. We believe a fundamental
       error of this nature, which is corroborated by the record, is sufficient to void
       the plea and is therefore sufficient to constitute a manifest injustice under
       Crim. R. 32.1. Under the circumstances, we believe it was error for the trial
       court to deny the motion to withdraw the plea. Consequently, Cook's
       assignment of error is sustained and the judgment of the trial court is
       reversed and remanded to be decided in accordance with this opinion.
       (Footnote omitted.) Cook at ¶12.


       {¶20} Even more on point is Youngpeter, where the Third District reversed the
trial court's denial of the defendant's motion to withdraw her guilty plea, where, as a
matter of law, the defendant could not have been convicted of the crime to which she
pled guilty. There the defendant pled guilty to violating a protection order that she herself
had sought, despite the fact that the applicable statute was "devoid of any penalty for a
petitioner who invites contact with a respondent." Youngpeter at ¶13, quoting State v.
Lucas, 100 Ohio St.3d 1, 2003-Ohio-4778, 795 N.E.2d 642, ¶27. The Third District
concluded that, like in Cook, there was a specific misunderstanding and mistake of law
by the court and the prosecution as to whether Youngpeter could be charged with
violating the protection order and that such a "fundamental error" is sufficient to constitute
a manifest injustice under Crim.R. 32.1. Youngpeter at ¶16.
       {¶21} Similarly, Williams clearly received incorrect information regarding the
escape charge to which he pled guilty. Because the element of detention could not be
met as a matter of law, he could not have been found guilty of escape. There was a
                                                                                       -6-


specific misunderstanding by counsel and the trial court regarding whether Williams'
conduct constituted escape as a matter of law. This was argued to the trial court to
correct this manifest injustice. The trial court should have permitted Williams to withdraw
his guilty plea, and abused its discretion by failing to do so. Thus, Williams' sole
assignment of error is meritorious. Accordingly, the judgment of the trial court is reversed
and the conviction for escape is vacated.
Donofrio, J., concurs.
Vukovich, J., concurs.
