[Cite as State v. Batke, 2011-Ohio-4636.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                Nos. 95947 and 95948




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                             DALE D. BATKE

                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case Nos. CR-521243 and CR-521830

        BEFORE: Jones, J., Kilbane, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      September 15, 2011
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

BY: Kristopher A. Haines
Assistant State Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                      ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Dale Batke, appeals the trial court’s denial of his

post-sentence motion to withdraw his guilty pleas.     For the reasons that follow, we affirm the

trial court’s decision.

       {¶ 2} On June 15, 2009, Batke pleaded guilty in Case No. CR-521243 to one count

each of the following:     felonious assault with a firearm specification, domestic violence with
a firearm specification, violating a protection order with a firearm specification, domestic

violence, disrupting public service, violating a protection order, felonious assault on a police

officer, failure to comply with order or signal of a police officer, theft, and inducing panic.

In Case No. CR-521830, Batke pleaded guilty to violating a protection order and intimidation.

       {¶ 3} On July 10, 2009, the trial court sentenced Batke to 18 years in prison.        Three

days later, and before Batke was transferred to prison, the trial court held another hearing and

amended Batke’s sentence to 14 years in prison.       Batke’s counsel then orally moved the trial

court to withdraw Batke’s guilty pleas.       His counsel indicated that he would file a written

motion to withdraw the guilty pleas and asked to be excused from the case.

       {¶ 4} On July 20, Batke moved to withdraw his guilty pleas.          The state opposed the

motion.    A year later, on July 21, 2010, Batke, represented by new counsel, filed a

supplement to his motion to withdraw his guilty pleas.       Two days later, the trial court held a

hearing on the motion.      Batke and his sister testified that his original attorney promised them

that Batke would receive no more than ten years in prison.

       {¶ 5} The trial court continued the matter and ultimately denied Batke’s motion.

       {¶ 6} Batke filed two delayed notices of appeal.       We have consolidated his cases for

briefing and disposition.    Batke raises two assignments of error for our review, in which he

challenges the trial court’s denial of his motion.

                                                     I
       {¶ 7} We begin by discussing Batke’s contention under his second assignment of

error that the trial court should have considered his motion under the pre-sentence standard for

a motion to withdraw a guilty plea.

       {¶ 8} Crim.R. 32.1 governs withdrawals of guilty pleas and states as follows:

       {¶ 9} “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.”

       {¶ 10} The general rule is that motions to withdraw guilty pleas before sentencing are

to be freely and liberally allowed. State v. Peterseim (1979), 68 Ohio App.2d 211, 214, 428

N.E.2d 863, citing Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223.       However, a

defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. State

v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715.          In ruling on a presentence motion to

withdraw a plea, the court must conduct a hearing and decide whether there is a reasonable

and legitimate basis for withdrawal of the plea.     Id. at 527.   The decision to grant or deny

such a motion is within the sound discretion of the trial court. Id.

       {¶ 11} In contrast, the trial court can set aside a judgment of conviction after it imposes

sentence, and may allow the defendant to withdraw his plea, only “to correct a manifest

injustice.” State v. Bell, Cuyahoga App. No. 87727, 2007-Ohio-3276, citing State v. Smith

(1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324.            The defendant bears the burden of
establishing the existence of a “manifest injustice.”        Id., paragraph one of syllabus.

“Manifest injustice” is an extremely high standard that permits the court to allow a plea

withdrawal only in “extraordinary cases.” State v. Malone, Cuyahoga App. No. 91439,

2009-Ohio-1364, ¶8.     A post-sentence motion to vacate a guilty plea is also left to the

discretion of the trial court and will not be reversed absent an abuse of discretion. State v.

Blatnik (1984), 17 Ohio App.3d 201, 202, 478 N.E.2d 1016.

       {¶ 12} Batke claims that his motion should have been treated as a presentence motion

because the court was aware prior to sentencing that he wanted to withdraw his guilty plea.

Although Batke makes this claim, our review of the record shows that the motion to withdraw

his guilty plea was made after he was sentenced.

       {¶ 13} Thus, Batke’s motion was a post-sentence motion to withdraw his guilty pleas

and we will consider his arguments under that standard.

       {¶ 14} The second assignment of error is overruled.

                                                   II

       {¶ 15} In his first assignment of error, Batke argues that the trial court erred when it

denied his motion to withdraw his guilty pleas.

       {¶ 16} Crim.R. 32.1 requires a defendant making a post-sentence motion to withdraw a

plea to demonstrate manifest injustice because it is designed “to discourage a defendant from

pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the
sentence was unexpectedly severe.” State v. Caraballo (1985), 17 Ohio St.3d 66, 67, 477

N.E.2d 627, citing Peterseim at 213.

       {¶ 17} At the hearing on the motion, Batke testified that he did not understand his

constitutional rights as the court stated them during the plea colloquy.   He claimed that he

had not understood the right to compulsory process and further submitted that he had taken

prescription drugs before he entered his pleas.

       {¶ 18} We have reviewed the plea colloquy and find that it adhered to the mandates as

stated in Crim.R. 11.     The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he or she can make a voluntary and intelligent decision

regarding whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480, 423

N.E.2d 115.    Although we review a trial court’s decision to deny a motion to withdraw a

guilty plea for an abuse of discretion, the standard for reviewing whether the trial court

accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. See State

v. Cardwell, Cuyahoga App. No. 92796, 2009-Ohio-6827, ¶26, citing State v. Stewart (1977),

51 Ohio St.2d 86, 364 N.E.2d 1163.

       {¶ 19} Crim.R. 11(C)(2) provides that in felony cases the court may refuse to accept

and shall not accept a plea of guilty without first addressing the defendant personally and

doing all of the following:

       “(a) Determining that the defendant is making the plea voluntarily, with understanding
       of the nature of the charges and of the maximum penalty involved, and if applicable,
       that the defendant is not eligible for probation or for the imposition of community
       control sanctions at the sentencing hearing.

       “(b) Informing the defendant of and determining that the defendant understands the
       effect of the plea of guilty or no contest, and that the court, upon acceptance of the
       plea, may proceed with judgment and sentence.

       {¶ 20} “(c) Informing the defendant and determining that the defendant understands

that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and

to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which

the defendant cannot be compelled to testify against himself or herself.”

       {¶ 21} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements

that relate to the waiver of constitutional rights.     State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.              Under the more stringent standard for

constitutionally protected rights, a trial court’s acceptance of a guilty plea will be affirmed

only if the trial court engaged in meaningful dialogue with the defendant which, in substance,

explained the pertinent constitutional rights “in a manner reasonably intelligible to that

defendant.” Ballard, paragraph two of the syllabus.

       {¶ 22} With respect to the nonconstitutional requirements of Crim.R. 11, set forth in

Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial

compliance with the rule. Veney at ¶14-17. “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications of his
plea and the rights he is waiving.”     State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d

474. “[I]f it appears from the record that the defendant appreciated the effect of his plea and

his waiver of rights in spite of the trial court’s error, there is still substantial compliance.”

State v. Caplinger (1995), 105 Ohio App.3d 567, 572, 664 N.E.2d 959.

       {¶ 23} Further, a defendant must show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the

colloquy are at issue. Veney, at ¶ 17.

       {¶ 24} In the case at bar, our review of the record shows that the trial court    adhered

to the requirements of Crim.R. 11.      During the plea colloquy, Batke affirmatively expressed

that he understood his rights, and that he understood he was giving up those rights by entering

a guilty plea.   Although Batke testified at the motion hearing that he had not understood his

rights, the record belies that claim.

       {¶ 25} The trial court explained each count to Batke and informed him of the

maximum time he could receive on each count, the effect of pleading guilty to gun

specifications, and explained mandatory, discretionary, consecutive, and concurrent time to

him.   The trial court inquired about any medication Batke took and had a lengthy discussion

with Batke about his medications and his mental illness diagnoses.     The trial court inquired if

Batke felt “well enough” and if he thought he could make “strong, good decisions for

yourself,” to which Batke replied, “Yes, your Honor.”          In its decision denying Batke’s
motion to withdraw his guilty pleas, the trial court found that Batke was unable to show that

prescription drugs caused him to be confused or “to be unable to rationally and coherently

consider the offered plea bargain and answer correctly to the Court’s questions in the plea

inquiry.    He assured the Court at the time that he had no such difficulties.    He gave the

Court no reason to question his comprehension at the time.”

       {¶ 26} Based on the record, we find no fault with the plea colloquy or that Batke did

not understand the rights that he waived.    We also do not find that Batke has shown that the

medications he was taking at the time of the plea affected his judgment so that his plea was

not knowingly and intelligently made.

       {¶ 27} Batke additionally argues that the trial court should have allowed him to

withdraw his plea because his original attorney told him he would receive “seven to nine, but

no more than ten years” in prison if he pled guilty.     At the hearing on his motion, Batke

testified he took his attorney’s “word for it because he’s a personal friend of one of my

friends.”   He explained to the trial court that if he had known that his sentence could exceed

ten years, he would have taken his cases to trial.

       {¶ 28} The trial court found that Batke presented no credible evidence tending to show

he was promised or assured he would receive a certain sentence if he pleaded guilty and

concluded that the record established no manifest injustice; it only evidenced Batke’s “change

of heart once he heard what his sentence was.”
        {¶ 29} We agree with the trial court; our review of the record shows nothing more than

that Batke had a “change of heart” after he was sentenced.      Once Batke received a sentence

that was longer than he thought it should be, he began on a course to try and withdraw his

plea.   During his testimony, Batke admitted that his attorney did not guarantee him a certain

sentence.   And although Batke’s sister testified that Batke’s attorney thought he would

receive less than ten years in prison if he pled guilty, she also admitted that his attorney never

promised him a certain sentence.

        {¶ 30} Our review of the record evidences no manifest injustice.       Not only did the

trial court hold a full hearing on the motion, it continued the matter twice so that defense

counsel could gather and present additional information.

        {¶ 31} Based on the foregoing, the trial court did not abuse its discretion when it

denied Batke’s post-sentence motion to withdraw his guilty pleas.

        {¶ 32} The first assignment of error is overruled.

        Accordingly, judgment is affirmed.

        It is ordered that appellee recover of appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
