[Cite as State v. Castillo-Rueles, 2019-Ohio-5063.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                           STATE OF OHIO,

                                           Plaintiff- Appellee,

                                                      v.

                                  ADRIAN CASTILLO-RUELES,

                                        Defendant- Appellant.


                         OPINION AND JUDGMENT ENTRY
                                          Case No. 16 MA 0145


                                     Motion to Withdraw Guilty Plea

                                        BEFORE:
                   Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown,
 Ohio 44503 for Defendant- Appellant and

 Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio
 44503, for Plaintiff- Appellee.

                                       Dated: December 5, 2019
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 PER CURIAM.

       {¶1}   Defendant-Appellant Adrian Castillo-Rueles appeals the decision of
Mahoning County Common Pleas Court denying his post-sentence motion to withdraw
his guilty plea. The issue in this case is whether the trial court abused its discretion in
denying the motion. For the reasons expressed below, the decision of the trial court is
affirmed.
                                      Statement of the Case
       {¶2}   On October 28, 2014, while in a detention facility in Mahoning County,
Appellant attacked another inmate with a lock in a sock causing serious physical harm to
the victim. Appellant was thereafter indicted for two counts of felonious assault in violation
of R.C. 2903.11(A)(2)(D) and R.C. 2903.11(A)(1)(D), both second-degree felonies and
one count of attempted murder in violation of 2903.02(A)(D) and 2923.02(A), a first-
degree felony. 2/5/15 Indictment.
       {¶3}   Following plea negotiations, Appellant pled guilty to felonious assault in
violation of R.C. 2903.11(A)(2)(D). The remaining count of felonious assault and the
attempted murder count were dismissed. The parties agreed to jointly recommend a four-
year sentence for the felonious assault conviction and for that sentence to be served
concurrently with a federal drug trafficking sentence that he was currently serving. The
trial court accepted the guilty plea after advising Appellant of the constitutional and
nonconstitutional rights he was waiving by pleading guilty.
       {¶4}   During the plea colloquy, the trial court was advised that Appellant is not a
U.S. citizen, is of Mexican descent, and does not speak a lot of English. The trial court
was also advised that Appellant had an immigration holder on him and was awaiting
deportation after completion of the sentence.
       {¶5}   The trial court proceeded immediately to sentencing and followed the joint
recommendation of a four-year sentence to be served concurrently with the federal
sentence. 7/14/15 J.E.
       {¶6}   Less than a month after the sentence was imposed, Appellant filed a pro se
motion to withdraw his guilty plea. Appellant asserted trial counsel told him he would


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receive a six-month sentence to run concurrent with his federal sentence. He also
asserted that he understands very little English, he did not understand the entire
proceedings, and he was coached on what to say. 8/8/16 Motion to Withdraw Guilty Plea.
         {¶7}   The trial court ordered the transcript of the plea hearing, and after reviewing
the transcript, overruled the motion to withdraw the guilty plea. 8/12/16 J.E. It reasoned:

         The Court finds that the issues outlineD in Defendant’s motion were addressed in
         detail at said hearing, namely the Defendant’s ability to understand the English
         language, to understand the nature of charges and possible penalties and fines,
         the entire contents of the Rule 11 agreement, the Defendant’s citizenship, etc. The
         Court finds there is no merit to such claims. Therefore the Defendant’s motion is
         overruled.

         8/12/16 J.E.
         {¶8}   Appellant filed a timely appeal from that decision.
                                         Assignment of Error
         “The trial court erred in denying Appellant’s post-sentence motion to withdraw his
plea.”
         {¶9}   The decision 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).
         {¶10} Crim.R. 32.1 governs motions to withdraw guilty or no contest pleas 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.”
Therefore, since Appellant’s motion to withdraw is a post-sentence motion to withdraw a
guilty plea it can only be granted to correct a manifest injustice.
         {¶11} This is a fairly stringent standard for deciding a post-sentence motion to
withdraw a guilty plea. Xie, 62 Ohio St.3d at 526. The Ohio Supreme Court has defined
“a manifest injustice” as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner,



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83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Our court has defined it as “an
extraordinary and fundamental flaw in the plea proceedings.” State v. Threats, 7th Dist.
Jefferson No. 18 JE 0003, 2018-Ohio-3825, ¶ 39.
        {¶12} The burden of establishing the existence of a manifest injustice is on the
party seeking to vacate the plea. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d
1324 (1977). Post-sentence plea withdrawal is allowable only in an extraordinary case.
Id.
        {¶13} The basis of Appellant’s argument to withdraw his guilty plea is on his
limited understanding of the English language and that trial counsel promised him he
would receive a six-month sentence for the felonious assault conviction that would run
concurrent to his federal sentence. He cites our court to the Second Appellate District
decision in State v. Mogle, 2d Dist. Drake Nos. 2013-CA-4 and 2013-CA-5, 2013-Ohio-
5342.
        {¶14} The state counters asserting the transcript of the plea hearing proceedings
clearly indicate Appellant was advised of the potential penalties he was facing and what
the parties were jointly recommending for the sentence.             The transcript further
demonstrates the language barrier was addressed and it was not an issue. Furthermore,
the state asserts this case is distinguishable from Mogle.
        {¶15} The potential language barrier was brought to the trial court’s attention
during the plea hearing. Tr. 6-9. The attorney asked the trial court to speak a little slower
because although Appellant understands English, it is not his first language. Tr. 6.
Appellant, when asked whether he reads English, stated “a little”. Tr. 6. Appellant
confirmed that his attorney read him the plea agreement and he understood it. Tr. 7. He
indicated his attorney speaks a little Spanish and the attorney’s Spanish is so-so. Tr. 8.
When asked if his attorney did a good job, Appellant indicated counsel did. Tr. 9.
        {¶16} The transcript also indicates that the trial court was cognizant of the
potential language barrier. The trial court explained everything in simple concise terms.
At one point, the trial court asked Appellant if he wanted to ask his attorney or the court
a question because the court noticed Appellant was looking at his lawyer.            Tr. 13.
Appellant stated no. Tr. 13.




Case No. 16 MA 0145
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       {¶17} Questions and answers during the plea colloquy indicated that the language
barrier in this instance was minimal. For instance, during the colloquy the trial court stated
that this happened in prison and that Appellant feared for his life and he took a calculated
risk in acting in this manner. Tr. 21-22. The court then stated that if Appellant had to do
it it again he probably would do the same thing. Tr. 22. Appellant stated no and the
following discussion occurred:

       The Court: Okay. You would not?
       The Defendant: No, Sir.
       The Court: What would you do this time?
       The Defendant: Because I had too much stress, too much -- talk to my CO
       – you know, I talk to CO. The CO don’t do nothing. So I need to defend
       myself.
       The Court: Yeah. I understand. You felt you were defending yourself. The
       question I asked you was if you had to do it all over again, would you have
       done the same thing?
       [Defense Counsel]: To protect yourself.
       The Defendant: Yeah. To protect myself, yeah.

Tr. 22-23.
       {¶18} Therefore, the language barrier was not a basis for finding a manifest
injustice.
       {¶19} As to the issue of whether Appellant was told he would receive a six-month
sentence, the record does not support this assertion. Although the sentence on the plea
agreement is whited out, that alone does not indicate that Appellant was told he would
receive a six-month sentence. Nothing stated at the plea hearing indicates that a six-
month sentence was discussed. Furthermore, no filings in this case indicate that a six-
month sentence was promised or discussed.
       {¶20} Despite Appellant’s insistence, this case is not analogous to the Second
Appellate District’s Mogle case. In Mogle, the defendant pled guilty to failure of duty to
register and the reduced charge of arson. Mogle, 2013-Ohio-5342 at ¶ 5. The state
recommended Mogle to be sentenced to prison. The plea form indicated that no promises



Case No. 16 MA 0145
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had been made as part of the plea agreement; however during the hearing Mogle was
not asked if he had been promised anything in exchange for the guilty plea. Id. at ¶ 6.
       {¶21} At the plea hearing, defense counsel made mention that Mogle was aware
of sentencing discussions with the court. Id. at ¶ 7. At the sentencing hearing, the court
noted that it had received a letter from Mogle. Id. at ¶ 8. That letter was file stamped and
indicated that Mogle was informed he would not receive a prison sentence. Id. At the
conclusion of the sentencing hearing, Mogle was sentenced to prison. Id. at ¶ 9. He then
filed a motion to withdraw his guilty pleas. Id. at ¶ 10. The trial court overruled the motion.
Id. at ¶ 11.
       {¶22} Given the specific facts of the case, the appellate court reversed the trial
court’s decision finding it abused its discretion in overruling the motion to withdraw. Id. at
¶ 15. In doing so, it noted that a change of heart based on a harsher sentence than
expected does not entitle a defendant to withdraw a guilty plea. Id. at ¶ 25. However, if
defense counsel promised the offender that a guilty plea would result in a lower sentence
than actually imposed, a manifest injustice could result.         “In other words, counsel’s
erroneous advise and incorrect speculation regarding the sentence that is likely to be
imposed potentially results in a manifest injustice only if counsel said that a guilty plea will
result in a particular sentence, but not if counsel said that it probably will result.” Id.
quoting State v. McComb, 2d Dist. Montgomery Nos. 22570 and 22572, 2009-Ohio-295,
¶ 9.
       {¶23} The Mogle Court found the following facts indicated there was a manifest
injustice:

       The record supports Mogle's claim by a preponderance of the evidence that
       Mogle relied upon a nonexistent promise that he would receive community
       control. First, his attorney verified in the motion to withdraw the guilty pleas
       that due to having misunderstood what the judge said, the attorney told
       Mogle that the trial court had promised to sentence him to community
       control. Secondly, the trial court did not inquire of Mogle during the Rule 11
       plea colloquy whether he was relying on any promises not contained in the
       plea form. Thirdly, at the time of sentencing, the record and docket indicate
       that the trial court and counsel were in possession of a letter from the


Case No. 16 MA 0145
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       Defendant stating and attempting to verify the promise, but the import of the
       letter was not discussed on the record. Fourthly, the attorney seemingly
       alluded to the promise on the record at sentencing. Finally, the trial court
       verified in its order overruling the motion that it had discussed tentative
       sentencing results with defense counsel, but made no promises.
Id. at ¶ 3.
       {¶24} None of those facts are present in the case at hand. Appellant was told the
maximum sentence he was facing and the recommended sentence was noted on the
record in the told of the jointly recommended sentence. Tr. 3, 5, 9. Therefore is no
indication in the transcript that there was a discussion or promise of a six-month sentence.
Furthermore, Appellant when asked at the hearing if he was promised anything in
exchange for the plea Appellant replied no. Tr. 9-10. The written plea agreement also
contained that question and it was answered in the negative. 7/14/15 Plea Agreement.
Moreover, there is no indication from trial counsel that a six-month sentence was
promised. Accordingly, this case is not analogous to Mogle.
       {¶25} There is nothing in the record to suggest Appellant was promised a six-
month sentence for his guilty plea. There is no basis to find a manifest injustice in this
case. In conclusion, for the reasons expressed above, the trial court did not abuse its
discretion in denying the post-sentence motion to withdraw a guilty plea. The trial court’s
decision is affirmed.

                           `


 JUDGE CAROL ANN ROBB

 JUDGE GENE DONOFRIO

 JUDGE CHERYL L. WAITE

                                 NOTICE TO COUNSEL

 This document constitutes a final judgment entry.




Case No. 16 MA 0145
