[Cite as State v. Jackson, 2017-Ohio-1296.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 15 MA 0126
V.                                               )
                                                 )                  OPINION
BRANDON JACKSON,                                 )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 13 CR 193, 13 CR 271A

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., Suite 600
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Scott C. Essad
                                                 721 Boardman-Poland Rd. Suite 201
                                                 Youngstown, Ohio 44512



JUDGES:

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


                                                 Dated: March 7, 2017
[Cite as State v. Jackson, 2017-Ohio-1296.]
DONOFRIO, J.

         {¶1}    Defendant-appellant, Brandon Jackson, appeals from a Mahoning
County Common Pleas Court judgment overruling his post-sentence motions to
withdraw his guilty pleas.
         {¶2}    Appellant’s motions to withdraw his guilty pleas stemmed from two
separate criminal cases. Appellant reached a plea agreement with plaintiff-appellee,
the State of Ohio, in both cases. In the first case (13 CR 193), appellant pleaded
guilty to one count of possession of heroin, two counts of possession of cocaine,
improper handling of a firearm in a motor vehicle, and having weapons under a
disability. And in the second case (13 CR 271A), appellant pleaded guilty to three
counts of felonious assault, two counts of having weapons under disability, and one
count of intimidation with a firearm specification.
         {¶3}    The two cases proceeded to a single sentencing hearing on July 16,
2013. In case 13 CR 193, the trial court sentenced appellant to eight years on the
possession of heroin count and one year on each of the other four counts, to be
served concurrently, for a total sentence of eight years. In case 13 CR 271A, the
court sentenced appellant to seven years on each of the three felonious assault
counts, to be served concurrent with each other; three years on both of the having
weapons under disability counts, to be served concurrent with each other and with
the felonious assaults sentences; three years on the intimidation count, to be served
concurrent to the other sentences; and three years on the firearm specification, to be
served consecutive to the other sentences for a total sentence of ten years. The
court ordered the sentence from 13 CR 271A to be served consecutive to the
sentence in 13 CR 193. Thus, appellant’s total sentence for both cases was 18
years.
         {¶4}    Appellant filed a direct appeal with this court. State v. Jackson, 7th
Dist. No. 13 MA 121, 2014-Ohio-2249. Appellant argued his counsel was ineffective
in case 13 CR 193 for withdrawing a suppression motion and that the court erred in
failing to inform him which sentence he was to serve first. This court overruled
appellant’s assignments of error and affirmed the trial court’s judgment. Id. at ¶ 46.
                                                                              -2-


       {¶5}   Next, on November 3, 2014, appellant filed identical pro se motions to
withdraw his guilty pleas in both cases. He asserted he did not enter his pleas
knowingly, voluntarily, and intelligently because his counsel misled and coerced him
into pleading guilty. He claimed the plea agreement was that he would receive a
total sentence of ten years but instead he received a total sentence of 18 years. The
state filed responses urging the court to overrule the motions.        The trial court
overruled both motions in a January 15, 2015 judgment entry. Appellant did not
appeal from this judgment entry.
       {¶6}   On April 15, 2015, appellant once again filed identical pro se motions to
withdraw his guilty pleas in both cases. This time appellant argued he expressed his
preference to go to trial with his counsel yet his counsel advised him to cooperate
with the state and enter a guilty plea.     The state filed responses to appellant’s
motions arguing appellant was afforded full plea hearings before entering his guilty
pleas and his desire to go to trial was not a valid reason to withdraw his pleas. The
trial court overruled appellant’s motions in a June 2, 2015 judgment entry.
       {¶7}   Appellant filed a notice of appeal and a motion for a delayed appeal on
July 31, 2015. This court granted appellant’s motion for delayed appeal. We also
appointed counsel. Nonetheless, appellant filed a pro se brief. In this case, we will
consider counsel’s brief and appellant’s pro se brief.
       {¶8}   Appellant’s counsel now raises a single assignment of error:

              THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
       APPELLANT’S POST-SENTENCING MOTION TO WITHDRAW HIS
       GUILTY PLEA WITHOUT A HEARING. THE APPELLANT’S MOTION
       CLAIMED THAT HIS DEFENSE COUNSEL COERCED HIM TO
       CHANGE HIS PLEA TO GUILTY AND THAT APPELLANT WAS LED
       TO BELIEVE THAT IN CHANGING HIS PLEA, HIS SENTENCES
       WOULD RUN CONCURRENTLY RATHER THAN CONSECUTIVELY.
       THAT CONFUSION – THE SOLE REASON FOR APPELLANT’S
       CHANGE OF PLEA TO BEGIN WITH – WARRANTED A HEARING ON
                                                                               -3-


       APPELLANT’S MOTION TO WITHDRAW HIS PLEA.

       {¶9}   Appellant argues the trial court erred in failing to hold a hearing on his
post-sentence motions to withdraw his plea. He states that in his first motion to
withdraw his plea, he indicated that his attorney misled and coerced him into pleading
guilty by presenting to him that he would serve all sentences concurrently for a total
sentence of 10 years. Appellant asserts he was entitled to a hearing on his post-
sentence motions to withdraw his pleas because the facts he alleged, if accepted as
true, would require the court to grant the motions.
       {¶10} The trial court was not required to hold a hearing on appellant's
motions. A hearing is not required on a post-sentence Crim.R. 32.1 motion if the
facts alleged by the defendant and accepted as true by the trial court would not
require the court to permit a guilty plea to be withdrawn. State v. Snyder, 7th Dist.
No. 08-JE-27, 2009-Ohio-4813, ¶ 15, citing State v. Blatnik, 17 Ohio App.3d 201,
204, 478 N.E.2d 1016 (6th Dist.1984). Thus, a defendant is only entitled to a hearing
on a motion to withdraw if the trial court determines the defendant alleged facts
sufficient to prove a manifest injustice.
       {¶11} Appellant did not allege any facts that, if accepted as true, would
require the withdrawal of his plea.
       {¶12} Appellant filed two sets of pro se, post-sentence motions to withdraw
his guilty pleas.
       {¶13} Appellant filed his first set of post-sentence motions to withdraw his
pleas on November 3, 2014 (first motions). In those motions, appellant alleged his
counsel was ineffective for various reasons including that counsel “misled and
coerced defendant into pleading guilty” and represented that under the terms of the
plea agreement he would serve concurrent sentences for a total of ten years in
prison. The trial court overruled appellant’s November 3 motions on January 15,
2015. Appellant did not appeal from the January 15 judgment.
       {¶14} Appellant filed his second set of post-sentence motions to withdraw his
guilty pleas on April 15, 2015 (second motions). In those motions, appellant admitted
                                                                                -4-


the trial court’s Crim.R. 11(C) colloquy when he entered his pleas was “careful and
meticulous.”   He stated the basis of his motions to withdraw his pleas was his
“expressed preference to exercise his right to trial,” which was different than his
counsel’s advice, which was “that cooperation with the State was a better course
than requiring the State to prove its case against him at trial.”        The trial court
overruled appellant’s second motions on June 2, 2015. The current appeal stems
from this judgment.
       {¶15} Appellant did not appeal from the trial court’s denial of his first motions
where he alleged his counsel misled and coerced him into pleading guilty. Thus,
appellant’s first motions are not before us for review and we cannot consider their
contents in determining whether the trial court should have held a hearing on
appellant’s second motions.
       {¶16} The basis for appellant’s second motions was that he wished he would
have gone to trial instead of listening to his counsel’s advice to cooperate with the
state. The fact that appellant wishes he would have gone to trial is not a basis to
grant his post-sentence motions to withdraw his pleas. Moreover, appellant did not
allege any facts that, if accepted as true by the trial court, would require the court to
permit appellant to withdraw his guilty pleas.
       {¶17} Accordingly, the assignment of error raised by appellant’s counsel is
without merit and is overruled.
       {¶18} Appellant also raises one pro se assignment of error. Appellant’s pro
se assignment of error states:

               THE COURT ABUSED ITS DISCRETION WHEN IT DENIED
       APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA.

       {¶19} Appellant argues the basis of his motions to withdraw his guilty pleas
was that he expressed a desire to go to trial. He contends his wish to go to trial was
contrary to the advice he received from his counsel. Appellant asserts he entered his
plea on the advice of his counsel that his cooperation with the state was a better
                                                                                  -5-


course of action than requiring the state to prove its case against him at trial. He
claims this amounted to ineffective assistance of counsel because he told his counsel
he was innocent.       Therefore, appellant suggests his pleas were not knowing,
voluntary, and intelligent.
       {¶20} The decision whether to grant or deny a defendant's motion to withdraw
a guilty plea is within the trial court's discretion. State v. Xie, 62 Ohio St.3d 521, 526,
584 N.E.2d 715 (1992). Abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶21} Crim.R. 32.1 provides: “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.” This rule establishes a fairly stringent
standard for deciding a post-sentence motion to withdraw a guilty plea. Xie, 62 Ohio
St.3d at 526.
       {¶22} The burden of establishing the existence of manifest injustice is on the
individual seeking to vacate the plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977), paragraph one of the syllabus. Under the manifest injustice standard, a
post-sentence motion to withdraw a plea is allowed only in extraordinary cases. Id. at
264.   “The standard rests upon practical considerations important to the proper
administration of justice, and seeks to avoid the possibility of a defendant pleading
guilty to test the weight of potential punishment.” Id., citing Kadwell v. United States,
315 F.2d 667, 670 (9th Cir. 1963).
       {¶23} Furthermore, although there is no time limit to make this motion after a
sentence is imposed, an undue delay between the time when the motion is filed and
the reason for filing the motion is a factor adversely affecting the credibility of the
movant. Id. at paragraph three of the syllabus.
       {¶24} Appellant admits in his brief that the trial court’s colloquies with him
when he entered his guilty pleas were “careful and meticulous.”
                                                                             -6-


      {¶25} At the change of plea hearing in case 13 CR 193, the trial court advised
appellant of the nature of charges he was pleading guilty to: “Possession of Heroin,
a Felony Two; Possession of Cocaine a Felony Four; Possession of Cocaine, a
Felony Five; Improper Handling of a Firearm in a Motor Vehicle, Felony Four; Having
Weapons While Under Disability, a Felony Three; and a Forfeiture Specification.”
(May 9, 2013 Tr. 5). The court went on to ask appellant if he understood that if he
entered a guilty plea, he was admitting each and every element of each offense and
it was a complete admission of his guilt, to which appellant responded “yes.” (May 9,
2013 Tr. 5-6).
      {¶26} The court asked appellant if he was satisfied with the legal
representation and advice he received from his counsel.        (May 9, 2013 Tr. 6).
Appellant responded, “Yes, sir.” (May 9, 2013 Tr. 6).
      {¶27} And the court informed appellant that he could go to trial instead of
pleading guilty. (May 9, 2013 Tr. 6). The court advised appellant of all the rights
appellant would have if he went to trial. (May 9, 2013 Tr. 6-7). Appellant indicated
that he understood these rights. (May 9, 2013 Tr. 7).
      {¶28} Finally, the court informed appellant of the sentences he faced and that
he faced a sentence of up to 15 years. (May 9, 2013 Tr. 8-10). And the court
stressed that appellant’s sentence was entirely up to it, regardless of any
recommendation. (May 9, 2013 Tr. 16).
      {¶29} Thus, the trial court conducted a thorough change of plea hearing in
case 13 CR 193.
      {¶30} In case 13 CR 271A, the prosecutor stated the nature of the charges.
(May 23, 2013 Tr. 2-3). The court then asked appellant if he understood the nature
of the charges and their elements, to which appellant responded “yes.” (May 23,
2013 Tr. 4). And the court advised appellant that by pleading guilty he was admitting
each element of each offense and completely admitting his guilt. (May 23, 2013 Tr.
4).
      {¶31} The court informed appellant that he could go to trial instead of pleading
                                                                              -7-


guilty. (May 23, 2013 Tr. 4). The court advised appellant of the rights he waived by
pleading guilty. (May 23, 2013 Tr. 4-5). Appellant indicated that he understood he
was waiving these rights. (May 23, 2013 Tr. 5).
         {¶32} And the court informed appellant of the potential sentences he faced.
(May 23, 2013 Tr. 6-7). The court informed appellant that he faced a total sentence
of up to 36 years. (May 23, 2013 Tr. 7). And the court stressed that appellant’s
sentence was entirely up to it, regardless of any recommendation. (May 23, 2013 Tr.
9-10).
         {¶33} Thus, the trial court also conducted a thorough change of plea hearing
in case 13 CR 271A.
         {¶34} Appellant filed these motions to withdraw his pleas more than one-and-
a-half years after the court sentenced him and nearly two years after he entered his
guilty pleas. He also waited almost a year after this court decided his direct appeal.
He offers no explanation as to why he waited so long. And appellant’s only basis for
his motions is that he wanted to go to trial and his counsel advised him to plead
guilty. If this was indeed the case, appellant could have filed his motion to withdraw
his plea during the two-month time span between when he entered his pleas and
when the court sentenced him.
         {¶35} Accordingly, appellant’s pro se assignment of error is without merit and
is overruled.
         {¶36} For the reasons stated above, the trial court's judgment is hereby
affirmed.
Waite, J., concurs.

DeGenaro, J., concurs.
