[Cite as State v. Johnson, 2017-Ohio-9227.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27372
                                                    :
 v.                                                 :   Trial Court Case No. 2010-CR-1871
                                                    :
 JACQUE L. JOHNSON                                  :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                         Rendered on the 22nd day of December, 2017.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JACQUE L. JOHNSON, Inmate No. 635-944, Allen-Oakwood Correctional Institution,
P.O. Box 4501, Lima, Ohio 45802
      Defendant-Appellant-Pro Se

                                              .............




TUCKER, J.
                                                                                         -2-




       {¶ 1} Defendant-appellant Jacque Johnson appeals from a decision of the

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

plea, his motion for a transcript at State’s expense, and his motion for an evidentiary

hearing. We conclude that the trial court did not abuse its discretion in denying the

motion to withdraw the plea and the motion for a hearing as Johnson failed to demonstrate

that his plea was not voluntarily and knowingly made. We further agree with the trial

court that there was no appeal pending that would necessitate the preparation of a

transcript for purposes of appeal. Accordingly, the judgment of the trial court is affirmed.



                            I. Facts and Procedural History

       {¶ 2} In July 2010, Johnson was indicted on one count of aggravated robbery with

a three-year firearm specification, one count of having weapons while under disability,

and one count of aggravated menacing. At that time, he was on parole for a 1983

aggravated robbery conviction. Following a plea agreement, Johnson agreed to plead

guilty to aggravated robbery and the attendant firearm specification. In exchange, the

State agreed to dismiss the remaining counts. Both parties agreed to a six-year prison

sentence. The trial court sentenced Johnson to the agreed upon term.

       {¶ 3} On August 8, 2016, Johnson filed a motion to withdraw his guilty plea. In

the motion, Johnson argued that based upon the plea agreement and sentence imposed,

he “had an expectancy to be released on post-release control upon May 18, 2016.”

However, he was notified by the Ohio Adult Parole Board that he was required to serve

an additional three years in prison due to the violation of his parole related to the 1983
                                                                                          -3-


conviction. Thus, Johnson argued that he should be permitted to withdraw his plea in

this case because the trial court did not properly advise him that the parole violation could

add time to his sentence.      On September 16, 2016, Johnson filed a motion for an

evidentiary hearing on his motion to withdraw the plea. On September 30, 2016, he filed

a motion for preparation of a complete transcript at the State’s expense claiming that it

was “necessary for the effective pursuit of his appeal as of right.”

       {¶ 4} On November 18, 2016, the trial court entered a decision and entry denying

all three motions. Johnson, proceeding pro se, appeals.



                                        II. Analysis

       {¶ 5} Johnson’s appellate brief does not comport with App.R. 16(A)(1), (2), (3) or

(4). However, in a “supplemental brief,” Johnson does set forth the following assignment

of error:

       DEFENDANT-APPELLANT JACQUE L. JOHNSON’S PLEA OF GUILTY

       TO AGGRAVATED ROBBERY SENTENCED THREE (3) YEARS WITH

       FIREARM       SPECIFICATION         THREE       (3)    YEARS       RUNNING

       CONSECUTIVELY WAS NOT MADE KNOWINGLY OR INTELLIGENTLY

       WITH A TOTAL OF HIS UNDERSTANDINGS IN ACCORDANCE TO

       CRIM.R. 11(C)(2)(A).

       {¶ 6} Johnson contends that the trial court erred by denying his motion to withdraw

his guilty plea. In support, he claims that he was improperly informed about the effect

that his guilty plea in this case could have on his parole in the 1983 conviction.

       {¶ 7} Crim.R. 32.1 provides that a trial court may permit a defendant to withdraw
                                                                                             -4-


his guilty plea after sentence has been imposed in order to correct a manifest injustice.

“The manifest-injustice standard demands a showing of extraordinary circumstances, and

the defendant bears the burden of proving the existence of a manifest injustice.” State

v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, 869 N.E.2d 708, ¶ 20 (2d Dist.). “The

heavy standard is meant to avoid the possibility of a defendant pleading guilty to test the

weight of potential punishment and later withdrawing the plea if the sentence was

unexpectedly severe.” State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d

607, ¶ 4 (8th Dist.), citing State v. Makupson, 8th Dist. Cuyahoga No. 89013, 2007-Ohio-

5329, ¶ 20, fn. 7, citing State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).

A trial court’s decision regarding a motion to withdraw a guilty plea will not be reversed

absent an abuse of discretion. Id. at ¶ 5. The term “abuse of discretion” indicates an

arbitrary, unreasonable, unconscionable attitude on the part of the trial court. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). With this standard in

mind, we turn to the issue of whether the trial court erred during the plea hearing.

       {¶ 8} Crim.R. 11(C) sets forth the requisite notice to be given to a defendant at a

plea hearing on a felony. The court must determine that the defendant's plea was made

with an “understanding of the nature of the charges and the maximum penalty involved.”

Crim.R. 11(C)(2)(a). “A trial court must strictly comply with Crim.R. 11 as it pertains to

the waiver of federal constitutional rights” which include the right to trial by jury, the right

of confrontation, and the privilege against self-incrimination. State v. Younkers, 2015-

Ohio-2066, 33 N.E.3d 111, ¶ 24 (2d Dist.), quoting State v. Silvers, 181 Ohio App.3d 26,

2009–Ohio–687, 907 N.E.2d 805, ¶ 11 (2d Dist.). “However, substantial compliance with

Crim.R. 11(C) is sufficient when waiving nonconstitutional rights.” Id. “Furthermore,
                                                                                         -5-


when non-constitutional rights are at issue, a defendant who challenges his guilty plea on

the basis that it was not knowingly, intelligently, and voluntarily made generally must show

a prejudicial effect.” State v. Riddle, 2017-Ohio-1199, __N.E.3d__, ¶ 14 (2d Dist.), citing

State v. Jennings, 2d Dist. Clark No. 2013CA60, 2014-Ohio-2307, ¶ 7, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. “Prejudice in this

context means that the plea would otherwise not have been entered.” Id.

       {¶ 9} The record before us contains a transcript of the plea hearing during which

the following colloquy occurred:

       THE COURT:        Are you on probation, parole or community control

       sanctions for any other offense?

       THE DEFENDANT: I’m on parole, post-release control, I guess. Both of

       them.

       THE COURT: Okay. Do you understand that by pleading guilty to this,

       the parole board can give you some additional time on either one of those?

       THE DEFENDANT:         Yes.

       THE COURT: And I have nothing to do with that. That’s between you and

       the parole board, okay? Sir, do you understand that?

       THE DEFENDANT: Yes, sir. I mean, yes, ma’am.

Tr. p. 3-4.

       {¶ 10} We find that the trial court's advisement was sufficient to adequately inform

Johnson that his plea in this case could adversely affect his parole in the unrelated case.

Further, Johnson is unable to show prejudice. He admits that his sentence for this case

has been served. Thus, even were we to find that he should have been permitted to
                                                                                           -6-


withdraw his plea, it would have no effect on his current incarceration for parole violation.

       {¶ 11} We next address the issue of the trial court’s failure to conduct a hearing on

the motion to withdraw the plea. A hearing on a postsentence motion to withdraw a guilty

or no contest plea is required if the facts alleged by the defendant and accepted as true

would require the court to permit that plea to be withdrawn. Turner, 171 Ohio App.3d 82,

2007-Ohio-1346, 869 N.E.2d 708, ¶ 27 (2d Dist.), citing State v. Hamed, 63 Ohio App.3d

5, 7, 577 N.E.2d 1111 (8th Dist. 1989); State v. Blatnik, 17 Ohio App.3d 201, 204, 478

N.E.2d 1016 (6th Dist. 1984). The trial court could determine, by merely reviewing the

transcript of the plea hearing, whether there were any misrepresentations that would

necessitate the withdrawal of the plea.      This is especially true since the trial judge

determining the motion to withdraw is the same judge that sentenced Johnson in 2010.

Thus, the trial court did not abuse its discretion when it ruled on the motion without a

hearing.

       {¶ 12} Finally, Johnson stated that he was requesting the transcript of the entire

record in his case for purposes of his appeal. However, no notice of appeal had been

filed and no appeal was pending at the time he requested the transcript of proceedings.

Therefore, we cannot say that the trial court erred by overruling the motion for a transcript.

       {¶ 13} Accordingly, Johnson’s sole assignment of error is overruled.



                                      III. Conclusion

       {¶ 14} Johnson’s sole assignment of error being overruled, the judgment of the

trial court is affirmed.

                                      .............
                                       -7-




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



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Jacque L. Johnson
Hon. Barbara P. Gorman
