[Cite as State v. Stopar, 2012-Ohio-2177.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25828

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ALAN L. STOPAR                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 04 06 2037

                                  DECISION AND JOURNAL ENTRY

Dated: May 16, 2012



        CARR, Judge.

        {¶1}     Appellant, Alan Stopar, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     On June 25, 2004, the Summit County Grand Jury indicted Stopar on five counts

of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree; seven counts of gross

sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree; one count of

illegal use of a minor in nudity-oriented material or performance in violation R.C.

2907.323(A)(1), a felony of the second degree; and one count of disseminating material harmful

to juveniles in violation of R.C. 2907.31(A)(1), a felony of the fourth degree. Subsequently, the

State moved to dismiss two of the rape charges and Stopar pleaded guilty to the remaining counts

in the indictment. Stopar was sentenced to ten years to life imprisonment on each count of rape;

a three-year prison term on each count of gross sexual imposition; a three-year prison term on
                                                2


the count of illegal use of a minor in nudity-oriented material or performance; and a one-year

prison term on the count of disseminating material harmful to minors. The sentences were

ordered to run concurrently. Stopar was also classified as a sexual predator. The trial court’s

sentencing entry was journalized on November 10, 2004.

       {¶3}    On December 17, 2009, Stopar filed a notice of delayed appeal. On May 13,

2010, this Court issued a journal entry indicating that our review of the sentencing entry revealed

that the trial court had failed to adequately impose post-release control. This Court vacated the

judgment of conviction as void and remanded the matter for resentencing.

       {¶4}    On June 3, 2010, Stopar filed a motion to withdraw his plea in the trial court. The

State filed a memorandum in opposition on June 14, 2010. The trial court held a hearing on the

motion on August 9, 2010.

       {¶5}    On October 25, 2010, the trial court held another hearing at which time it denied

the motion and resentenced Stopar. The trial court imposed the same total prison sentence, and

also imposed a mandatory five-year term of post-release control. On November 12, 2010, Stopar

filed a notice of appeal. This Court dismissed the appeal on the basis that the sentencing entry

did not comport with Crim.R. 32(C). The trial court issued a new sentencing entry on January

27, 2011.

       {¶6}    Stopar again filed a notice of appeal on February 23, 2011. On appeal, he raises

one assignment of error.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
       WITHDRAW HIS GUILTY PLEA.
                                                3


       {¶7}    In his sole assignment of error, Stopar argues that the trial court erred by denying

his motion to withdraw his plea. This Court disagrees.

       {¶8}    The withdrawal of a plea is governed by Crim.R. 32.1, which 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.

       {¶9}    This Court has held that “[a] criminal defendant may withdraw his guilty plea

prior to sentencing if the criminal defendant has presented a legitimate and reasonable basis for

the withdrawal of the guilty plea.” State v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, ¶

20. While an appellate court reviews a trial court’s decision to grant or deny a criminal

defendant’s motion to withdraw his guilty plea for an abuse of discretion, this Court has asserted

that “[w]hen a motion to withdraw a guilty plea is made before sentencing, it is to be freely

allowed and treated with liberality.” State v. Eklich, 9th Dist. No. 2279-M, 1994 WL 286279

(June 29, 1994). See also State v. Xie, 62 Ohio St.3d 521, 527 (1992).

       {¶10} An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). This Court has previously held that a trial court does not abuse its

discretion by denying a pre-sentence motion to withdraw a guilty plea when the following three

elements are present:

       (1) the defendant is represented by competent counsel; (2) the trial court provides
       the defendant with a full hearing before entering the guilty plea; and (3) the trial
       court provides the defendant with a full hearing on the motion to withdraw the
       guilty plea, where the court considers the defendant’s arguments in support of his
       motion to withdraw the guilty plea.

West at ¶ 22, quoting State v. Pamer, 9th Dist. No. 04CA0027-M, 2004-Ohio-7190, ¶ 10.

Furthermore, this Court has required that a trial court’s decision regarding a pre-sentence motion
                                                    4


to withdraw a guilty plea also take into consideration the facts and circumstances which are

specific to each case. West at ¶ 23. In reviewing the trial court’s decision, this Court must

consider those same facts and circumstances. Id.

       {¶11} In State v. Wheeland, 9th Dist. No. 06CA0034-M, 2007-Ohio-1213, ¶ 12, this

Court recognized several additional factors which may be relevant to the inquiry of whether the

trial court properly ruled on a motion to withdraw a guilty plea. Those factors included:

       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; and 9) whether the
       accused was perhaps not guilty or had a complete defense to the charge. State v.
       Fulk, 3d Dist. No. 15-04-17, 2005-Ohio-2506, ¶ 13, quoting State v. Lewis, 3d
       Dist. No. 1-02-10, 2002-Ohio-3950, ¶ 11.

Wheeland at ¶ 12.

       {¶12} In support of his assignment of error, Stopar contends that he should have been

able to withdraw his plea due to the fact that he misunderstood the nature of the plea colloquy.

Stopar claims the confusion stemmed from misleading advice by defense counsel. Stopar further

argues that none of the aforementioned factors supported the trial court’s decision to deny his

motion to withdraw. Stopar also emphasizes that because his motion was a pre-sentence motion,

it should have been freely and liberally granted.

       {¶13} After this Court issued a journal entry on May 13, 2010, vacating his original

sentence, Stopar filed a pro se motion to withdraw his plea in the trial court on June 3, 2010.

The trial court appointed counsel to represent Stopar and a hearing on the matter was held on

August 9, 2010. Stopar was the only witness to testify at the hearing. Stopar testified that, on

November 8, 2004, he arrived at the court house with the understanding that jury selection for his
                                                 5


trial would begin that day. Prior to the commencement of proceedings, defense counsel had a

conversation with the prosecutor and then told Stopar that he was facing life in prison and that he

should accept the State’s offer of a ten-year prison sentence. Stopar testified that he rejected the

offer. After another conversation with the prosecutor, defense counsel informed Stopar that the

State had offered a five-year prison term in exchange for his guilty pleas. Stopar testified that he

rejected this offer as well. After yet another conversation with the prosecutor, Stopar testified

that defense counsel told him that the State’s “last offer” was that he “do three years out of a

five-year sentence[.]” Stopar testified that after a conversation with his wife, he decided to

accept the offer. Stopar testified that there were no written documents involved in the plea

bargaining process, with the exception of a sexual offender registration form. Stopar indicated

that even if such documents had been presented to him, he would not have been able to

comprehend them because he cannot read or write.

       {¶14} When asked if the judge informed him of his rights prior to accepting his pleas,

Stopar answered, “No *** at least not to my knowledge he didn’t.” Stopar further testified that

“[e]verything was pretty foggy then[.]” Stopar testified that he did not have time to go over the

details of the plea bargain because defense counsel told him to “keep [his] mouth shut” or else

the plea deal would “be gone.” Stopar concluded that it was “ridiculous” to think he would have

agreed to a life sentence.

       {¶15} On cross-examination, Stopar testified that he was not familiar with the contents

of his pro se motion to withdraw his plea that he filed because someone had drafted it for him.

When asked if there was anything wrong with his hearing, Stopar indicated that he was “partially

deaf” but that he could hear the prosecutor’s questions. Upon being asked if he remembered the

female prosecutor, Jennie Shuki, who represented the State at the plea hearing, Stopar answered,
                                              6


“No, it was a man.” The following exchange occurred when the prosecutor asked Stopar if he

remembered what had been discussed at the 2004 plea hearing:

       A.     Actually, I don’t remember any woman saying anything.

       Q.     You don’t remember anybody saying anything?

       A.     No, I don’t, sir.

       Q.     Do you remember Judge Murphy saying anything?

       A.     He told me good luck and three years.

       Q.     He told you good luck and three years?

       A.     Yes.

       Q.     So you don’t remember Judge Murphy sentencing you to life in prison
              with parole eligibility after ten years?

       A.     No, that’s -- that wasn’t what was agreed upon.

       Q.     I’m not asking you if it was agreed upon. I’m asking you if you remember
              Judge Murphy saying that?

       A.     No, I don’t, sir.

       Q.     You don’t? And you don’t remember Judge Murphy going through each
              and every charge of rape, that you raped K.N. when she was 10; you raped
              her when she was 11[.]

       A.     No, sir, he didn’t.

       Q.     -- and you raped her when she was 12? You don’t remember that either?

       A.     No, he didn’t.

       Q.     He didn’t? Okay. And you don’t remember him going through each and
              every gross sexual imposition charge?

       A.     No, he didn’t.

       Q.     He didn’t do that?

       A.     No, he didn’t.

       Q.     Okay. And you don’t remember him reading -- telling you your rights:
              You have the right to trial by jury; you have the right to have the State
                                                  7


               prove you guilty beyond a reasonable doubt; you have the right to force or
               compel witnesses to testify on your behalf; you have the right not to be
               compelled to testify against yourself?

       A.      I never heard such words.

       {¶16} After this exchange, portions of the transcript from the plea hearing were quoted

to Stopar and he was asked if he remembered answering the judge’s questions. Stopar replied

that his attorney had instructed him on how to answer the questions. Stopar further testified that

he had been told by defense counsel that the rape charges had been dropped. When asked what

he thought he had been charged with, Stopar replied, “Actually, I don’t know what I was charged

with.” Stopar testified that he did not speak out at the hearing because he was told not to do so.

When asked if he was told he would receive a five-year sentence, Stopar responded, “No, [the

judge] said good luck and three years.” Stopar was then asked if he thought everything in the

transcript was “a lie.” In response, Stopar testified, “Everything in the transcript I did not hear. I

have documents from the sentencing board in the institution that has the three years on it.”

Stopar further testified that he could not produce the documents because his wife had them at

home. Stopar testified that he did not know he had been given a life sentence until after he had

been in prison for three years. Stopar maintained that he rejected the offer of a life sentence with

parole eligibility after ten years and that he entered his guilty plea with the understanding that he

would serve “three years flat[.]” When asked if he understood that according to the transcript, he

had pled guilty to three counts of rape, Stopar answered, “No, I did not. I did not.”

       {¶17} On redirect examination, Stopar testified that he had been diagnosed with a

hearing problem and that there were “medical records in the institution.” When asked how long

he was before the judge for his plea hearing, Stopar stated, “I came in, stood by the thing, some

words were said, and it was over. And he turned around and told the officer to take me into
                                                 8


custody.” Stopar testified that he had trouble hearing the judge at the plea hearing. Stopar stated

that he has “a hard time comprehending things” and that he took special education classes as a

child. Stopar further testified that the attorney who represented him at the plea hearing had a

conflict of interest. When asked to elaborate, Stopar stated that while he could not “prove it,” his

attorney had previously represented the father of one of the alleged victims. Stopar indicated

that he learned this information during a conversation with his wife’s friend. Stopar further

testified that defense counsel subsequently represented one of the alleged victims.          Stopar

emphasized that he did not understand the nature of the plea hearing and that he relied on his

attorney who instructed him to not say anything.

       {¶18} On re-cross examination, Stopar was asked if he had any “papers or documents”

in support of his claims to show the judge. Stopar responded, “I didn’t think I needed them.”

       {¶19} A review of the transcript from the 2004 plea hearing reveals that the State was, in

fact, represented by Attorney Shuki. Attorney Shuki explained that two counts of rape had been

dismissed and that Stopar had agreed to plead guilty to the remaining counts in the indictment.

Stopar’s attorney stated on the record that he explained to Stopar that he would be “given a life

term and that he will be eligible for parole after 10 years.” Defense counsel further stated that

Stopar had been informed that he would be classified as a sexual predator and would have a

lifetime reporting requirement. The trial judge then informed Stopar on the record of all of the

charges pending against him and the possible punishments, including that he was charged with

three counts of rape, each of which carried a lifetime prison sentence with parole eligibility after

ten years. When asked if he understood the nature of each charge, Stopar repeatedly stated,

“Yes, sir.” The trial judge emphasized that while Stopar would be eligible for parole after ten

years, it would not necessarily be granted.        The trial judge further addressed each of the
                                                 9


constitutional rights Stopar would be waiving by pleading guilty. Prior to asking for Stopar’s

plea on each count, the trial judge asked Stopar if he had “any questions [] about anything?”

Stopar responded, “No, sir.” Stopar then entered a guilty plea to each of the counts in the

indictment, other than the two counts of rape which were dismissed. Prior to sentencing Stopar,

the trial judge inquired as to whether Stopar had anything to say prior to the pronouncement of

sentence. Stopar again declined. The trial court then sentenced Stopar on each count, including

the imposition of a life sentence on each count of rape.

       {¶20} In this case, the trial court did not abuse its discretion in denying Stopar’s motion

to withdraw his plea. The record simply does not support Stopar’s claim that the trial judge

merely stated, “good luck and three years,” and did not discuss the nature of the charges against

him. On November 8, 2004, the trial court held a complete plea colloquy where Stopar was

represented by counsel. Stopar was also afforded a full hearing on his motion to withdraw his

plea where he was represented by counsel. Contrary to Stopar’s testimony at the hearing on the

motion to withdraw, the trial judge at the plea colloquy discussed each charge in the indictment

as well as the potential sentences. The trial judge specifically noted that Stopar was charged

with three counts of rape which carried life sentences with parole eligibility after ten years.

Defense counsel also stated on the record that he informed Stopar that “he’ll be given a life

term.” Stopar’s assertion that the trial judge never informed him of the constitutional rights he

would be waiving is also unsupported by the record. The judge specifically informed Stopar

that, by entering guilty pleas to the counts in the indictment, he would be waiving his right to a

jury trial, the right to have the State prove his guilt beyond a reasonable doubt, the right to

confront the witnesses against him, the right to compel witnesses to testify on his behalf, and the

privilege against self-incrimination.    Moreover, Stopar did not present any corroborating
                                                10


evidence in support of his testimony that he had been diagnosed with a hearing issue, that he

received paperwork indicating he would only serve a three-year sentence, or that defense counsel

had a conflict of interest. A review of the transcripts from both the plea hearing as well as the

hearing on the motion to withdraw his plea suggests that Stopar heard and comprehended the

questions directed toward him, and had no trouble providing substantive responses. As Stopar

did not present a legitimate and reasonable basis for the withdrawal of his guilty plea, the trial

court did not abuse its discretion in denying his motion. See West at ¶ 20.

       {¶21} The assignment of error is overruled.

       {¶22} We further note that the State argues in its merit brief that the trial court did not

have the authority to classify Stopar as a Tier III sexual offender. The Supreme Court of Ohio

has held that applying the current registration requirements set forth in R.C. Chapter 2950, 2007

Am.Sub. S.B. No. 10. (also known as the “Adam Walsh Act”), to defendants who committed sex

offenses prior to its enactment violates the Retroactivity Clause in Section 28, Article II of the

Ohio Constitution. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 22-23. Stopar was

classified as a sexual predator in 2004, prior to the enactment of the Adam Walsh Act in 2007.

As the trial court did not have authority to re-classify Stopar as a Tier III sexual offender, his

original classification as a sexual predator remains in place. Thus, Stopar’s reclassification as a

Tier III sexual offender is hereby vacated.

                                               III.

       {¶23} Stopar’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is vacated to the extent that it reclassified Stopar as a Tier III sexual

offender and his original classification remains in effect. The remainder of the judgment is

affirmed.
                                                11


                                                                       Judgment affirmed, in part,
                                                                            and vacated, in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

THOMAS M. DICAUDO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
