[Cite as State v. Croskey, 2018-Ohio-2078.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2017 CA 0102
ANTONIO CROSKEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2016 CR 0580


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 24, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    ANTONIO CROSKEY
PROSECUTING ATTORNEY                           PRO SE
JOSEPH C. SNYDER                               P.O. Box 8107
ASSISTANT PROSECUTOR                           Mansfield, Ohio 44901
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2017 CA 0102                                                    2

Wise, John, P. J.

      {¶1}     Defendant-Appellant Antonio G. Croskey appeals the decision of the Court

of Common Pleas, Richland County, denying his post-sentence motion to withdraw guilty

plea. Plaintiff-Appellee is the State of Ohio. The relevant procedural facts leading to this

appeal are as follows:

      {¶2}     On September 7, 2016, appellant was indicted by the Richland County

Grand Jury on five felony counts of trafficking in heroin (under various subsections of

R.C. 2925.03(A) and (C)), one felony count of possession of heroin (R.C.

2925.11(A)/(C)(6)(e)), and two misdemeanor counts of endangering children (R.C.

2919.22(A)).

      {¶3}     On March 17, 2017, appellant appeared with counsel before the trial court

and, pursuant to a plea deal, entered a plea of guilty to the charges in the indictment in

exchange for the State recommending a total prison term of ten years.

      {¶4}     Appellant was thus sentenced on April 28, 2017 to a total of ten years in

prison, with the trial court in particular merging Count 5 (possession of heroin, R.C.

2925.11(A)/(C)(6)(e), a first-degree felony) into Count 6 (trafficking in heroin, R.C.

2925.03(A)(2)/(C)(6)(f), also a first-degree felony), and running the remaining sentences

on Counts 1, 2, 3, 4, 7, and 8 concurrently. A written sentencing entry was issued on

May 8, 2017.1

      {¶5}     On November 6, 2017 appellant filed a pro se motion to withdraw his guilty

plea, relying on Crim.R. 32.1. He attached his own affidavit in support.



1   The briefs before us, as well as the indictment and the transcript of the plea hearing,
all indicate Count 5 was a charge of heroin possession. However, the written entry sets
forth Count 5 as “trafficking in drugs.”
Richland County, Case No. 2017 CA 0102                                                3


      {¶6}   On November 17, 2017, the trial court issued a judgment entry denying the

motion to withdraw guilty plea. On the same day, the trial court issued a nunc pro tunc

sentencing entry, apparently to remove earlier language that the entire prison sentence

had been a joint recommendation.

      {¶7}   Appellant filed a notice of appeal on December 13, 2017. He herein raises

the following sole Assignment of Error:

      {¶8}   “I.   THE TRIAL COURT ABUSED ITS DESCRETION [SIC] WHEN IT

DENIED MR. CROSKEY’S MOTION TO WITHDRAW GUILTY PLEA PURSUANT TO

CRIM.R. 32.1 DUE TO TRIAL COUNSEL’S FAILURE TO OBJECT TO INACCURATE

AND MISLEADING INFORMATION WHICH INFLUENCED MR. CROSKEY TO SIGN A

PLEA AGREEMENT THAT WAS UNFULFILLABLE BY STATUTE.”

                                              I.

      {¶9}   In his sole Assignment of Error, appellant contends the trial court abused

its discretion in denying his post-sentence motion to withdraw his March 17, 2017 guilty

plea. We disagree.

      {¶10} 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.”

      {¶11} A Crim.R. 32.1 motion is not a collateral challenge to the validity of a

conviction or sentence, and instead only focuses on the plea. See State v. Bush, 96 Ohio

St.3d 235, 773 N.E.2d 522, 2002–Ohio–3993, ¶ 13. 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
Richland County, Case No. 2017 CA 0102                                                      4

discretion. See State v. Caraballo (1985), 17 Ohio St.3d 66, 477 N.E.2d 627. 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 (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. In deciding a

motion to withdraw a guilty plea, the trial court has the discretion to determine the good

faith, credibility and weight of the movant's assertions. State v. Wilkey, 5th Dist.

Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶ 21 (citations omitted).

      {¶12} Ineffective assistance of counsel can form the basis for a claim of manifest

injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. See State v.

Dalton, 153 Ohio App.3d 286, 292, 2003–Ohio–3813, ¶ 18. However, under the

“manifest injustice” standard, a post-sentence withdrawal motion is allowable only in

extraordinary cases. State v. Aleshire, Licking App. No. 09–CA–132, 2010–Ohio–2566,

¶ 60. 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 (1980), 68 Ohio App.2d 211, 213, 428 N.E.2d 863, quoting Kadwell

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

      {¶13} R.C. 2925.03(C)(6)(f) states as follows: “If the amount of the drug involved

equals or exceeds five hundred unit doses but is less than one thousand unit doses or

equals or exceeds fifty grams but is less than one hundred grams and regardless of

whether the offense was committed in the vicinity of a school or in the vicinity of a

juvenile, trafficking in heroin is a felony of the first degree, and the court shall impose as
Richland County, Case No. 2017 CA 0102                                                        5

a mandatory prison term one of the prison terms prescribed for a felony of the first

degree.” (Emphasis added).2

      {¶14} In turn, R.C. 2929.14(A)(1) states, with various exceptions, that “[f]or a

felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine,

ten, or eleven years.”

      {¶15} Appellant essentially maintains that despite the language of R.C.

2925.03(C)(6)(f), supra, his trial counsel assured him that he could obtain judicial release

in three years, thus inducing him to plead guilty, and that this was an adequate basis

allowing a withdrawal of his plea.

      {¶16} We note the trial court, in its 2017 plea colloquy, stated the following in

reference to Counts 5 and 6: “Again, they merge, only one sentence, but it’s the same

sentence. It has a mandatory prison sentence of anywhere between three years up to

eleven years in prison.” Plea Tr. at 10. The trial court then asked appellant if he

understood “the maximum for those two counts.” Id. Appellant replied in the affirmative.

Id.

      {¶17} A trial court is not required to inform a defendant about his or her eligibility

for judicial release unless it is incorporated into a plea bargain. See State v. Aguilar, 9th

Dist. Wayne No. 10CA0051, 2011-Ohio-6008, ¶ 12. Furthermore, appellant's claim in the

case sub judice is based solely on his own statements in the affidavit supporting his

motion to withdraw the guilty plea. Generally, a self-serving affidavit or statement is



2  Appellant was indicted in Count 6 under the language of an earlier version of R.C.
2925.03(C)(6)(f), which utilized a range of equal to or exceeding five hundred unit doses
but less than two-thousand five-hundred unit doses or equal to or exceeding fifty grams
but less than two-hundred-fifty grams. This change does not appear to impact the issue
presently before us.
Richland County, Case No. 2017 CA 0102                                                  6

insufficient to demonstrate manifest injustice. State v. Hutchison, 5th Dist. Licking No.

16-CA-108, 2018-Ohio-200, ¶ 38, citing State v. Patterson, 5th Dist. Stark No.

2003CA00135, 2004-Ohio-1569, ¶ 20.

      {¶18} We also note that the length of passage of time between the entry of a plea

and a defendant's filing of a Crim.R. 32.1 motion is a valid factor in determining whether

a “manifest injustice” has occurred. See State v. Copeland–Jackson, 5th Dist. Ashland

No. 02COA018, 2003–Ohio–1043, ¶ 7. In this instance, it appears appellant should have

been aware almost immediately upon sentencing that he had received a prison term of

ten years mandatory vis-à-vis what his trial counsel had allegedly told him regarding

potential judicial release. However, his Crim.R. 32.1 motion was not forthcoming for more

than six months after he was sentenced.

      {¶19} Accordingly, we are unpersuaded the trial court abused its discretion in

declining to find a manifest injustice warranting the extraordinary step of negating

appellant's plea, and we thus find the trial court did not err or abuse its discretion in

denying appellant's motion to withdraw his guilty plea.
Richland County, Case No. 2017 CA 0102                                               7


       {¶20} Appellant's sole Assignment of Error is therefore overruled.

       {¶21} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Richland County, Ohio, is affirmed.



By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.




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