[Cite as State v. Britton, 2013-Ohio-99.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 98158


                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.



                                    MICHAEL BRITTON
                                                             DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-552875

        BEFORE:           Jones, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      January 17, 2013
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., Ohio 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John P. Colan
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant Michael Britton appeals from the portion of the trial

court’s judgment of conviction and sentence in which it imposed costs against him.

Britton also appeals from the trial court’s denial of his oral motion to withdraw his plea,

which was made immediately after the court sentenced him.     We affirm.

                            I. Procedural History and Facts

       {¶2} In August 2011, Britton was charged with kidnapping, a first degree felony,

and felonious assault, a second degree felony.   The victim of the offenses was Carmetta

Allen, and the charges resulted from Britton knocking her into a brick wall and choking

her.   Allen suffered a head concussion, a fractured nose and eye socket, and swelling on

her neck.    She incurred $2,766 for medical treatment of her injuries and did not have

insurance.

       {¶3} After negotiations between the parties, the state offered Britton a plea

arrangement whereby Britton would plead guilty to an amended charge of aggravated

assault, a felony of the fourth degree, and would stipulate to restitution in the amount of

$2,766; in exchange, the state would dismiss the kidnapping charge.

       {¶4} The trial court engaged in a colloquy with Britton, explaining the rights he

would be waiving by pleading guilty. Britton indicated that he understood and the court

accepted his plea, finding that it was knowingly, intelligently, and voluntarily made.

After hearing from the victim, the trial court proceeded immediately to sentencing, and

imposed an 18-month prison term, the maximum for a fourth degree felony.         The court
also ordered that Britton pay $2,766 in restitution to Allen and the court costs. Britton

asked the court if he could withdraw his plea; the court denied his request. Britton now

raises two assignments of error for our review:

       I. The trial court committed reversible and plain error in assessing court
       costs against Michael Britton absent complying with R.C. 2947.23(A).

       II. The trial court erred in refusing to allow Michael Britton to withdraw
       his guilty plea, thereby committing a manifest injus[t]ice.

                                  II.    Law and Analysis

       {¶5} For his first assigned error, Britton challenges the assessment of costs against

him.

       {¶6} Britton first contends that the trial court was on “notice that [he] was

indigent, since his attorney was from the public defender’s office.”         According to

Britton, his trial attorney “committed plain error by not moving the court to waive costs

due to defendant’s indigency.”          Although not framed as such, we treat Britton’s

contention as an ineffective assistance of counsel claim.

       {¶7} To substantiate a claim of ineffective assistance of counsel, an appellant must

demonstrate that (1) the performance of defense counsel was seriously flawed and

deficient, and (2) the result of appellant’s trial or legal proceeding would have been

different had defense counsel provided proper representation. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 25 Ohio St.3d

144, 147-148, 495 N.E.2d 407 (1986).

       {¶8} This court has found counsel ineffective for failing to file an affidavit of
indigency for a defendant when the “record shows there is a reasonable probability the

defendant would have been found indigent.”        State v. Huffman, 8th Dist. No. 63938

1995 Ohio App. LEXIS 233 (Jan. 26, 1995), citing State v. Powell, 78 Ohio App.3d 784,

605 N.E.2d 1337 (3d Dist.1992).

       {¶9} The record here does not show a reasonable probability that Britton would

have been found indigent so as to have had the court costs waived. At the hearing,

defense counsel stated that Britton was employed and that he would continue to work so

that he could pay his restitution to Allen, which was part of the plea agreement.   In light

of this, defense counsel was not ineffective for not filing an affidavit of indigency and

seeking to waive the court costs for Britton.

       {¶10} Britton’s second contention is that the trial court did not sufficiently comply

with R.C. 2947.23 in ordering him to pay costs. That section provides in part as follows:

       (A)(1) In all criminal cases, including violations of ordinances, the judge or
       magistrate shall include in the sentence the costs of prosecution, including
       any costs under section 2947.231 of the Revised Code, and render a
       judgment against the defendant for such costs. At the time the judge or
       magistrate imposes sentence, the judge or magistrate shall notify the
       defendant of both of the following:
       (a) If the defendant fails to pay that judgment or fails to timely make

       payments towards that judgment under a payment schedule approved by the

       court, the court may order the defendant to perform community service in

       an amount of not more than forty hours per month until the judgment is paid

       or until the court is satisfied that the defendant is in compliance with the

       approved payment schedule.
       (b) If the court orders the defendant to perform the community service, the

       defendant will receive credit upon the judgment at the specified hourly

       credit rate per hour of community service performed, and each hour of

       community service performed will reduce the judgment by that amount.

       {¶11} The trial court stated the following in assessing costs against Britton:

       * * * I will impose court costs associated with this case as well as the
       $2,766 in restitution. I will advise you, however, with respect to the court
       costs that you may perform community work service in an amount of not
       more than 40 hours per month until that judgment for court costs is paid or
       until the Court is satisfied that you are in full compliance with any payment
       schedule.

       You will receive credit at the specified hourly credit rate for any hours of
       court community work service performed and each hour of community
       service performed will reduce the judgment for costs by that much.

       {¶12} According to Britton, the court’s advisement “did not notify him that if he

does not pay court costs he can be ordered to perform community service until he satisfies

his obligation, as R.C. 2947.23(A)(1) requires.”    We disagree.     The court’s advisement

to Britton was to pay the court costs or perform community work service to pay off the

costs. That advisement was compliant with R.C. 2947.23.

       {¶13} In light of the above, the first assignment of error is overruled.

       {¶14} For his second assigned error, Britton contends that the trial court erred by

denying his request to withdraw his guilty plea.

       {¶15} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty * * *

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.” Crim.R. 32.1.

       {¶16} Thus, pursuant to Crim.R. 32.1, a postsentence motion to withdraw a guilty

plea, such as Britton’s, may be granted only to correct manifest injustice. State v. Xie,

62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “A defendant who seeks to withdraw a

plea of guilty after the imposition of sentence has the burden of establishing the existence

of manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph one of the syllabus.

       {¶17} A postsentence motion to withdraw a guilty plea is addressed to the sound

discretion of the trial court and an appellate court’s review of a trial court’s denial of a

postsentence motion to withdraw a plea is limited to a determination of whether the trial

court abused its discretion.   Id. at paragraph two of the syllabus; State v. Peterseim, 68

Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980).                An abuse of discretion

constitutes more than an error of law or judgment; it implies that the court’s attitude, as

evidenced by its decision, was unreasonable, arbitrary, or unconscionable.         State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶18} Britton’s appellate counsel states that there is “no doubt” in her mind that

the defense was prepared for trial, but, based on some unknown circumstance, Britton

entered a plea.   Counsel further states, “[f]or all we know, there was some pressure

placed upon Michael Britten [sic], one way or another.”              Counsel concludes that

“[o]bviously, his plea was not willingly or voluntarily tendered.”

       {¶19} Our review of the record demonstrates otherwise, however.         Specifically,
the trial court complied with the constitutional and procedural safeguards contained

within Crim.R. 11 in accepting Britton’s plea.           Neither counsel’s speculation about

pressure having been put on Britton nor counsel’s conclusory assertion that his plea was

not willing or voluntary establish manifest injustice.

       {¶20} The record here demonstrates that Britton merely had a change of heart.      A

change of heart, however, is not a sufficient ground to withdraw a plea. State v. Carey,

8th Dist. No. 97444, 2012-Ohio-3359, ¶ 11, citing State v. Deloach, 2d Dist. No. 21422,

2006-Ohio-6303, ¶ 17.     Otherwise, “‘the accused might be encouraged to plead guilty to

test the weight of potential punishment, and withdraw the plea if the sentence were

unexpectedly severe.’” Peterseim at 213, quoting Kadwell v. United States, 315 F.2d

667 (9th Cir.1963).

       {¶21} Finally, Britton contends that the trial court should have at least held a

hearing on his request to withdraw his plea. We disagree. This court has previously

held that a trial court’s decision to deny a postsentence motion to withdraw a plea without

a hearing is “given deference, especially in a case where the trial court took the plea and

thus was familiar with the facts of the case.” State v. Atkinson, 8th Dist. No. 85773,

2005-Ohio-5348. In such circumstances, the trial court is in the best position to assess

the credibility of the movant’s assertions.       State v. Nieves, 8th Dist. No. 92797,

2010-Ohio-514, ¶ 14; see also State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324

(1977).

       {¶22} Here, the trial court took Britton’s plea and thereafter immediately
proceeded to sentencing.     Britton addressed the court, but never raised concerns about

his plea.   After the trial court sentenced him to the maximum term, he requested to

withdraw his plea. On this record, we will not disturb the trial court’s decision to not

have a hearing on Britton’s request.

       {¶23} In light of the above, the second assignment of error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from 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, SR., JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
