[Cite as State v. Smith, 2019-Ohio-1608.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
STEVEN L. SMITH                              :       Case No. 18CA19
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Knox County Court
                                                     of Common Pleas, Case No.
                                                     18CR04-0132




JUDGMENT:                                            Remanded



DATE OF JUDGMENT:                                    April 29, 2019



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHARLES T. MCCONVILLE                                JOHN S. PYLE
NICOLE E. DERR                                       Knox County Public Defender
Knox County Prosecutor                               110 East High Street
117 East High Street, Suite 234                      Mount Vernon, Ohio 43050
Mount Vernon, Ohio 43050
Knox County, Case No. 18CA19                                                         2

Baldwin, J.

       {¶1}   Defendant-appellant Steven L. Smith appeals from the September 24, 2018

Sentencing Entry of the Knox county Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On April 17, 2018, the Knox County Grand Jury indicted appellant on one

count of trafficking in marijuana in violation of R.C. 2925.03(A)(2), a felony of the fifth

degree. At his arraignment on April 20, 2018, appellant entered a plea of not guilty to the

charge.

       {¶3}   Thereafter, on August 3, 2018, appellant withdrew his former not guilty plea

and entered a plea of guilty to the charge contained in the indictment. A presentence

investigation report was ordered. At his sentencing hearing on September 19, 2018,

appellant was sentenced to eleven months in prison. The trial court also imposed a

definite term of imprisonment of 884 days for appellant’s violation of his post-release

control in Case No. 13CR07-0112, a prior felony offense, and ordered that the sentences

be served consecutively.

       {¶4}   Immediately after sentencing, appellant made an oral motion to withdraw

his guilty plea pursuant to Crim.R. 32.1 to correct a manifest injustice. Appellant’s counsel

argued that it was a manifest injustice to impose consecutive maximum sentences on

someone who was a Navy veteran and who was genuinely mentally ill. The following

discussion took place on the record:

       {¶5}   THE COURT: Okay. I’m going to deny your motion. …Let’s do this: tell my

why you want to withdraw your plea?
Knox County, Case No. 18CA19                                                         3


       {¶6}   MR. PYLE. He’s – because he--

       {¶7}   THE COURT: No, I want him to tell me. It’s up to the defendant to tell me

why he wants to withdraw his plea. Please tell me.

       {¶8}   DEFENDANT: Well, it don’t sound like it’s fair for 800 and how many days?

       {¶9}   THE COURT: 884.

       {¶10} DEFENDANT: That’s almost 3 years.

       {¶11} THE COURT: It’s about two-and-a-half years.

       {¶12} DEFENDANT: For an F5.

       {¶13} THE COURT: For an F5 and a PRC violation from an underlying sex

offense where you raped a little girl.

       {¶14} DEFENDANT: I mean, I didn’t rape a little girl. I babysit - - that was 18.

She showed me her ID, she was 18. It wasn’t till after the fact I found out.

       {¶15} THE COURT: I find that hard to believe based upon the facts of the

underlying case that’s why I got the PSI from the previous case. So you’re telling me you

want to withdraw your plea today because you don’t think it’s fair that I – I applied the law

that if you violate the terms of your post-release control and you commit a new felony you

can be sentenced for a period of one year or whatever time is remaining on your post-

release control, whichever is longer, and that has a consecutive sentence provision

pursuant to statute, and you’re telling me that you don’t – you want to withdraw your plea

because you don’t think that’s fair; is that right?

       {¶16} DEFENDANT: I didn’t know you could get sentenced to two-and-a half

years, I didn’t know.

       {¶17} THE COURT: Okay. And that’s the reason you want to withdraw your plea?
Knox County, Case No. 18CA19                                                         4


      {¶18} DEFENDANT: Yeah.

      {¶19} Transcript of September 19, 2018 hearing at 9-10. The trial court then

denied the motion to withdraw.

      {¶20} The trial court memorialized its decision denying the motion to withdraw in

a Decision and Entry filed on September 21, 2018 and appellant’s sentence in a

Sentencing Entry filed on September 24, 2018.

      {¶21} Appellant now raises the following assignments of error on appeal:

      {¶22} “I. THE TRIAL COURT ERRED BY DENYING MR. SMITH HIS RIGHT TO

COUNSEL AS GUARANTEED BY [THE] SIXTH AMENDMENT OF THE UNITED

STATES     CONSTITUTION        AND    ARTICLE      I,   SECTION     10   OF    THE    OHIO

CONSTITUTION.”

      {¶23} “II. THE TRIAL COURT ERRED BY DENYIING (SIC) THE APPEALLANT’S

(SIC) MOTION TO WITHDRAW HIS GUILTY PLEA.”

                                             I

      {¶24} Appellant, in his first assignment of error, argues that the trial court erred by

denying him his right to counsel.

      {¶25} Appellant specifically contends that the trial court prohibited defense

counsel from arguing the motion to withdraw and by requiring appellant to serve as his

own lawyer in arguing the motion. However, at the September 19, 2018 hearing, after

defense counsel moved for leave to withdraw appellant’s guilty plea, arguing that the

sentence was a manifest injustice, the trial court asked appellant to explain why he

wanted to withdraw his plea and heard from appellant. At no point thereafter did defense

counsel make an effort to further argue the motion or did appellant ask that his counsel
Knox County, Case No. 18CA19                                                        5


be heard further. We agree with appellee that “[d]efense counsels’ decision not to ask to

be heard further is not an affront to Appellant’s right to counsel.”

       {¶26} Appellant’s first assignment of error is, therefore, overruled.

                                              II

       {¶27} Appellant, in his second assignment of error, maintains that the trial court

erred in denying his post- sentence oral motion to withdraw his guilty plea. We disagree.

       {¶28} Crim.R. 32.1 states as follows: “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.”

       {¶29} Our review of a trial court's decision under Crim.R. 32.1 is limited to a

determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio

St.3d 66, 477 N.E.2d 627 (1985). In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983). “ * * * [T]he good faith, credibility and weight of the movant's

assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the trial]

court.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph two of the syllabus

(1977).

       {¶30} A Crim.R. 32.1 motion is not a challenge to the validity of a conviction or

sentence, and instead only focuses on the plea. State v. Hill, 5th Dist. Stark No. 2015 CA

00036, 2015-Ohio-3312, ¶ 17 citing State v. Bush, 96 Ohio St.3d 235, 2002–Ohio–

3993,773 N.E.2d 522, ¶ 13. However, under the “manifest injustice” standard, a post-
Knox County, Case No. 18CA19                                                        6

sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire,

5th Dist. Licking No. 09–CA–132, 2010–Ohio–2566, ¶ 60, citing Smith, supra, at 264.

Furthermore, “ * * * if a plea of guilty could be retracted with ease after sentence, 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. * * * ” State v. Peterseim,

68 Ohio App.2d 211, 213, 428 N.E.2d 863 (8th Dist.1980), quoting Kadwell v. United

States, 315 F.2d 667(C.A.9, 1963).

       {¶31} The defendant bears the burden of proving “manifest injustice.” State v.

Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). Whether the defendant has

sustained that burden is within the sound discretion of the trial court and we review the

trial court's decision for an abuse of discretion.

       {¶32} As is stated above, under the manifest injustice standard, a post-sentence

withdrawal motion is allowable only in extraordinary cases. State v. Williams, 5th Dist.

Tuscarawas No. 2013 AP 04 0020, 2014–Ohio–5727. A manifest injustice has been

defined as a “clear or openly unjust act.” State v. Congrove, 5th Dist. Delaware No.

09CA090080, 2010–Ohio–2933, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d

203, 1998-Ohio-271, 699 N.E.2d 2983. “A manifest injustice comprehends a fundamental

flaw in the path of justice so extraordinary that the defendant could not have sought

redress from the resulting prejudice through any form of application reasonably available

to him.” State v. Williams, 5th Dist. Tuscarawas No. 2013 AP 04 0020, 2014–Ohio–5727

(Dec. 26, 2014).

       {¶33} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
Knox County, Case No. 18CA19                                                         7


only “substantially comply” with the rule when dealing with the non-constitutional elements

of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v. Griggs, the Ohio

Supreme Court noted the following test for determining substantial compliance with

Crim.R. 11:

              Though failure to adequately inform a defendant of his constitutional

       rights would invalidate a guilty plea under a presumption that it was entered

       involuntarily and unknowingly, failure to comply with non-constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

       prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

       The test for prejudice is ‘whether the plea would have otherwise been made.

       Id. Under the substantial-compliance standard, we review the totality of

       circumstances surrounding [the defendant's] plea and determine whether

       he subjectively understood [the effect of his plea]. See, State v. Sarkozy,

       117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224 at ¶ 19-20.

103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

       {¶34} Appellant, in the case sub judice, argued that he wanted to withdraw his

plea because he did not know that he could be sentenced to 884 days for violating his

post-release control in Case No. 13CR07-0112.           At the change of plea hearing,

appellant’s counsel indicated to the trial court that appellant had “PRC time lurking in the

background, and I have been unsuccessful in negotiating a recommendation from the

State as to PRC time.” Transcript of August 3, 2018 hearing at 2. The Prosecutor advised
Knox County, Case No. 18CA19                                                          8


the trial court on the record that appellant’s post-release control expired in February of

2021.

        {¶35} The Ohio Supreme Court has held a trial court must inform a defendant who

is on post-release control and is pleading guilty to a new felony offense of the trial court's

authority to revoke the defendant's post-release control and impose a prison term

consecutively to any term of imprisonment it imposes for that new felony offense. In State

v. Bishop, the defendant, while on post-release control for a prior felony, pleaded guilty

to a felony drug possession charge. ––– Ohio St.3d ––––, 2018-Ohio-5132, ¶ 3 (July 18,

2018). The trial court sentenced Bishop to serve a nine-month term of imprisonment for

the possession offense. Id. at ¶ 4. For the post-release control violation the trial court

ordered Bishop to serve a one-year prison sentence under R.C. 2929.141 consecutively

to the sentence for the possession offense. Id. Upon direct appeal, the Second District

Court of Appeals concluded that the trial court erred by failing to advise Bishop, at the

time of his plea to the new felony offense, that he could have to serve an additional

consecutive sentence for his post-release control violation. Id. ¶ 5. The Second District

Court of Appeals certified that its decision conflicted with, among others, our decision in

State v. Hicks, 5th Dist. Delaware No. 09CAA090088, 2010-Ohio-2985, in which we held

that Crim.R. 11 does not require the trial court to inform the defendant of the possible

effects of his guilty plea to a new offense on his post-release control. Hicks at ¶ 10-13.

The Supreme Court accepted the conflict on the following question: “[w]hether a criminal

defendant on [post-release control] for a prior felony must be advised, during his plea

hearing in a new felony case, of the trial court's ability under R.C. 2929.141 to terminate
Knox County, Case No. 18CA19                                                         9


his existing [post-release control] and to impose a consecutive prison sentence for the

[post-release-control] violation.” 152 Ohio St.3d 1404, 2018-Ohio-723, 92 N.E.3d 877.

       {¶36} A majority of the Ohio Supreme Court found,

              Crim.R. 11(C)(2)(a) requires a trial court to advise a criminal

       defendant on post-release control for a prior felony, during his plea hearing

       in a new felony case, of the trial court's authority under R.C. 2929.141 to

       terminate the defendant's existing post-release control and to impose a

       consecutive prison sentence for the post-release-control violation. We

       therefore answer the certified question in the affirmative and affirm the

       judgment of the Second District Court of Appeals.

Bishop, 2018-Ohio-5132, ¶ 21.

       {¶37} Bishop is important to the analysis in the case at bar because in the case

at bar the trial court similarly failed to inform appellant that he was also subject to a

separate consecutive sentence for his post-release control violation in Case No. 13CR07-

0112, a prior felony offense.

       {¶38} In Bishop, the Ohio Supreme Court found that Bishop did not need to show

that the trial court's error prejudiced him because the Supreme Court found, “the trial court

completely failed to inform Bishop that a consecutive prison sentence under R.C.

2929.141(A) was possible. That is not partial compliance. Bishop need not show

prejudice.” Bishop, 2018-Ohio-5132, ¶ 20.

       {¶39} We conclude in the case at bar that the trial court failed to inform appellant

at the change of plea hearing that a consecutive prison sentence under R.C. 2929.141(A)
Knox County, Case No. 18CA19                                                     10


was possible. Appellant was not required to show that he was prejudiced by the trial

court's error. On such basis, we sustain appellant’s sole assignment of error.

      {¶40} On the authority contained in Section 3(B) (2), Article IV of the Ohio

Constitution and R.C. 2953.07 appellant’s plea is vacated and this case is remanded to

the trial court for proceedings in accordance with our Opinion and the law. See State v.

Krouskoupff, III, 5th Dist. Muskingum No. CT2018-0020, 2019 -Ohio- 806.


By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
