[Cite as State v. Maney, 2013-Ohio-2261.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-12-16

        v.

MARK MANEY, JR.,                                         OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-12-17

        v.

MARK MANEY, JR.,                                         OPINION

        DEFENDANT-APPELLANT.


                Appeals from Defiance County Common Pleas Court
                  Trial Court Nos. 12 CR 11316 and 11 CR 11239

                     Judgments Reversed and Causes Remanded

                              Date of Decision: June 3, 2013



APPEARANCES:

        W. Alex Smith for Appellant

        Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-12-16, 4-12-17


PRESTON, P.J.

         {¶1} Defendant-appellant, Mark Maney, Jr., appeals the judgment entry

denying his pre-sentence motion to withdraw his plea of no contest and sentencing

him to four years imprisonment for a third-degree felony domestic violence

conviction in Defiance County Court of Common Pleas case no. 11 CR 11239,

which was assigned appellate case no. 4-12-17. Maney also appeals the judgment

entry denying his pre-sentence motion to withdraw his plea of no contest in

Defiance County case no. 12 CR 11316, which was assigned appellate case no. 4-

12-16.     We reverse the trial court’s judgment entries denying Maney’s pre-

sentence Crim.R. 32.1 motions to withdraw and remand for further proceedings.

         {¶2} On October 19, 2011, the Defiance County Grand Jury indicted

Maney on Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), a

first-degree felony, and Count Two of domestic violence in violation of R.C.

2919.25(B), (D)(4), a third-degree felony. (Doc. No. 1).1 This was assigned trial

court case no. 11 CR 11239. (Id.).

         {¶3} On October 27, 2011, Maney was arraigned and entered pleas of not

guilty to both counts. (Doc. No. 6).



1
 The indictment actually stated a violation of R.C. 2919.25(D)(4), omitting division (B) from that section;
however, the language of the indictment stated that Maney “recklessly caused serious physical harm to the
victim, A.G., a family or household member.” (Doc. No. 1). The indictment also stated that Maney had
been previously convicted of four domestic violence offenses. (Id.). Therefore, the indictment charged
Maney under R.C. 2919.25(B), (D)(4), though there is a question concerning whether division (B) was the
proper basis for the conviction. (May 29, 2012 Tr. at 15-18).

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      {¶4} On February 3, 2012, the Defiance County Grand Jury indicted Maney

on six counts of violating a temporary protection order (“TPO”), violations of R.C.

2919.27(A)(1) and fifth-degree felonies. This case was assigned trial court case

no. 12 CR 11316. (Doc. No. 1).

      {¶5} On February 15, 2012, Maney was arraigned and entered pleas of not

guilty on all six counts. (Case No. 12 CR 11316, Doc. No. 9).

      {¶6} On April 20, 2012, Maney filed a “motion in limine for ruling on

admissibility of alleged prior conviction and collateral attack on same by motion

to suppress.” (Case No. 12 CR 11316, Doc. No. 15).

      {¶7} On May 29, 2012, a change of plea hearing was held for both cases.

Pursuant to the parties’ plea negotiations, Maney withdrew the pending motion in

limine/motion to suppress filed in case no. 12 CR 11316 and entered no contest

pleas to Count Two in case no. 11 CR 11239 and Counts One, Two, Three, and

Four in case no. 12 CR 11316. (Tr. at 3). In exchange for Maney’s pleas of no

contest, the State agreed to dismiss the remaining counts in the two indictments

and not indict Maney on additional TPO violations. (Id.). The trial court accepted

the pleas, found Maney guilty on each of the counts, and ordered a pre-sentence

investigation (“PSI”) report. (Id. at 18); (Case No. 11 CR 11239, Doc. No. 27);

(Case No. 12 CR 11316, Doc. No. 20).




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       {¶8} On July 5, 2012, Maney filed, through counsel, a pre-sentence

Crim.R. 32.1 motion to withdraw his no contest pleas in trial court case no. 12 CR

11316. (Doc. No. 21). On July 21, 2012, Maney, pro se, also filed a pre-sentence

Crim.R. 32.1 motion to withdraw in this same case. (Doc. No. 22).

       {¶9} On July 11, 2012, Maney, pro se, filed a pre-sentence Crim.R. 32.1

motion to withdraw his no contest pleas in trial court case no. 11 CR 11239. (Doc.

No. 28). Maney, per his attorney, filed another pre-sentence Crim.R. 32.1 motion

that same day in this case. (Doc. No. 29).

       {¶10} On July 24, 2012, the trial court held a combined motion/sentencing

hearing. The trial court overruled the pending motions to withdraw filed in both

cases. (Tr. at 12). The trial court thereafter sentenced Maney to four years

imprisonment on the third-degree felony domestic violence conviction in case no.

11 CR 11239. (Id. at 26). In case no. 12 CR 11316, the trial court sentenced

Maney to six months on each of the four convictions. (Id.). The trial court further

ordered that the terms imposed in case no. 12 CR 11316 be served consecutive to

each other and consecutive to the term imposed in case no. 11 CR 11239, for an

aggregate sentence of six years. (Id.).

       {¶11} On August 1, 2012, Maney, pro se, filed a motion to withdraw his

plea of no contest in both cases. (Case No. 11CR 11239, Doc. No. 31); (Case No.

12 CR 11316, Doc. No. 23). On August 3, 2012, the trial court overruled these


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Case No. 4-12-16, 4-12-17


motions and filed its judgment entries of sentence. (Case No. 11 CR 11239, Doc.

Nos. 32-33); (Case No. 12 CR 11316, Doc. Nos. 24-25).

       {¶12} On August 8, 2012, Maney, pro se, filed notices of appeal from the

trial court’s judgment entries of sentence that also denied his various motions to

withdraw. On August 23, 2012, Maney, through his appointed appellate counsel,

filed amended notices of appeal.

       {¶13} Maney raises two assignments of error for our review. We elect to

address Maney’s second assignment of error first since it is dispositive.

                            Assignment of Error No. II

       The trial court erred when it denied the defendant’s motion to
       withdraw his plea.

       {¶14} In his second assignment of error, Maney argues that the trial court

erred by denying his pre-sentence motion to withdraw his no contest pleas. In

particular, Maney argues that, while not forced to enter the plea, he reluctantly

entered the plea upon the advice of counsel. He argues that he had many motions

which were withdrawn that he would like to have argued but did not pursuant to

the plea agreement.

       {¶15} As an initial matter, we note that Maney also filed post-sentence

motions to withdraw, but he has not raised any arguments with respect to these

motions. (Case No. 11 CR 11239, Doc. No. 31); (Case No. 12 CR 11316, Doc.

No. 23). Therefore, we will only discuss his pre-sentence motions to withdraw.

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Case No. 4-12-16, 4-12-17


       {¶16} Crim.R. 32.1 provides a defendant may file a pre-sentence motion to

withdraw a no contest plea. The general rule is that a trial court should freely

grant such a motion. State v. Xie, 62 Ohio St.3d 521, 526 (1992); State v. Spivey,

81 Ohio St.3d 405, 415 (1998). However, a defendant does not maintain an

absolute right to withdraw his no contest plea prior to sentencing. Xie, paragraph

one of the syllabus; Spivey at 415. Instead, a trial court must hold a hearing to

determine whether a “reasonable and legitimate basis” exists to allow a defendant

to withdraw. Id.; Id.

       {¶17} A trial court maintains discretion in deciding whether to grant or

deny a defendant’s pre-sentence motion to withdraw a plea. Xie, paragraph two of

the syllabus; Spivey at 415. As such, we will not overturn the trial court’s decision

on that issue unless the trial court abused its discretion. State v. Peterseim, 68

Ohio App.2d 211, 213-214 (8th Dist.1980). An abuse of discretion is more than

an error in judgment; rather, it suggests that a decision is unreasonable, arbitrary,

or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

       {¶18} We consider several factors when reviewing a trial court’s decision

to grant or deny a defendant’s pre-sentence motion to withdraw a plea. Those

factors include: (1) whether the withdrawal will prejudice the prosecution; (2) the

representation afforded to the defendant by counsel; (3) the extent of the hearing

held pursuant to Crim.R. 11; (4) the extent of the hearing on the motion to


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Case No. 4-12-16, 4-12-17


withdraw the plea; (5) whether the trial court gave full and fair consideration of

the motion; (6) whether the timing of the motion was reasonable; (7) the stated

reasons for the motion; (8) whether the defendant understood the nature of the

charges and potential sentences; and (9) whether the accused was perhaps not

guilty or had a complete defense to the charges. State v. Griffin, 141 Ohio App.3d

551, 554 (7th Dist.2001); State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995).

       {¶19} The State contended at the motion to withdraw hearing that it was

concerned that Maney’s motion was a tactic to later claim a violation of his

statutory right to a speedy trial. (July 24, 2012 Tr. at 4). The State will not be

prejudiced because of this issue at this point, however, because the statutory

speedy trial provision does not apply upon remand. State v. Hull, 110 Ohio St.3d

183, 2006-Ohio-4252, paragraph one of the syllabus. Consequently, we find that

the prejudice to the State at this point is minimal.

       {¶20} Maney was represented by various court-appointed attorneys

throughout the proceedings in both cases. With respect to case no. 11 CR 11239,

Maney was represented by Attorney Danny A Hill, II in the municipal court

proceedings; Attorney John P. Goldenetz was appointed in the common pleas

court; Attorney Jeffrey J. Horvath was subsequently appointed in the common

pleas court but withdrew as counsel, and Attorney Peter R. Seibel was appointed;

Attorney Seibel withdrew as counsel upon Maney’s request, and Maney, then,


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Case No. 4-12-16, 4-12-17


represented himself; thereafter, Attorney Kenneth J. Rexford represented Maney

for the duration of the proceedings. (Doc. Nos. 1, 5, 8, 14, 16, 21). With respect

to case no. 12 CR 11316, Maney was represented first by Peter R. Seibel until

March 22, 2012 when Maney executed a waiver of counsel and began representing

himself; thereafter, on April 16, 2012, Attorney Kenneth Rexford represented

Maney for the duration of the proceedings. (Doc. Nos. 4, 11-12). Consequently,

we are persuaded that Maney had adequate representation during the proceedings.

      {¶21} At the change of plea hearing, the trial court correctly advised Maney

of his constitutional rights pursuant to Crim.R. 11(C)(2)(c) and further advised

Maney, pursuant to Crim.R. 11(C)(2)(b), that it may enter judgment upon Maney

entering his no contest plea. (May 29, 2012 Tr. at 8-12). Pursuant to Crim.R.

11(C)(2)(a), the trial court correctly advised Maney concerning the possible prison

terms and the discretionary three years of post-release control (“PRC”) with

respect to his violation of protection order convictions in case no. 12 CR 11316.

(Id. at 6). However, the trial court incorrectly advised Maney that he faced a

potential of five years imprisonment on the domestic violence conviction in case

no. 11 CR 11239, when 36 months was the maximum possible sentence under

R.C. 2929.14(A)(3)(b) (as amended by H.B. 86, eff. 9/30/11). The trial court also

incorrectly advised Maney that he “could be subject up to three years post release

control” for this same conviction, when Maney was actually subject to a


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Case No. 4-12-16, 4-12-17


mandatory three years of PRC under R.C. 2967.28(B)(3). (Id. at 5-6). State v.

Davenport, 3d Dist. Nos. 4-12-05 and 4-12-06, 2012-Ohio-4013, ¶ 20; State v.

Weems, 192 Ohio App.3d 560, 2011-Ohio-721, ¶ 22 (8th Dist.). In light of the

trial court’s incorrect advisement concerning the possible, maximum sentence and

mandatory PRC, we cannot conclude that Maney understood the total possible

sentence he was facing in both cases.

       {¶22} Maney filed, through counsel, his pre-sentence motion to withdraw

in trial court case no. 12 CR 11316 on July 5, 2012, which is 37 days after the

change of plea hearing and 19 days before the sentencing hearing. (Doc. No. 21).

Maney filed his pro se pre-sentence motion to withdraw in this case on July 21,

2012, which is 53 days after the change of plea hearing and 3 days prior to the

sentencing hearing. (Doc. No. 22). In case no. 11 CR 11239, Maney filed his pro

se pre-sentence motion to withdraw on July 11, 2012, which is 43 days after the

change of plea hearing and 13 days prior to the sentencing hearing. (Doc. No. 28).

Counsel for Maney filed a pre-sentence motion that same day as well. (Doc. No.

29). Maney’s motions were filed within a reasonable time after the change of plea

hearing and prior to the sentencing hearing.

       {¶23} In his pre-sentence motions to withdraw, Maney argued that he

agreed to plead no contest since he thought the State was going to charge him with

13 additional violations of the protective order. (Case no. 12 CR 11316, Doc. No.


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Case No. 4-12-16, 4-12-17


22); (Case no. 11 CR 11239, Doc. No. 28). He also argued that the municipal

court’s protection order was not made an order of the common pleas court since he

did not waive his right to a preliminary hearing. (Id.); (Id.). Maney further argued

that the State inappropriately relied upon juvenile convictions, an “attempted

domestic violence” charge, and other judgment entries of conviction that are not

admissible into evidence to enhance his domestic violence offense to a third-

degree felony. (Id.); (Id.). Maney also pointed out that the indictment charged

him under the wrong subsection of the domestic violence statute. (Id.); (Id.).

Significantly, Maney argued that the trial court failed to comply with Crim.R.

11(C) and erroneously notified him in its entry of conviction that the maximum

possible sentence for his third-degree felony domestic violence conviction was

five years, when the maximum under the “new law” is 36 months. (Id.); (Id.).

       {¶24} While the trial court held a hearing on the motion, the trial court

failed to consider the incorrect advisement of the maximum sentence in this case

even though Maney raised this issue in his motion to withdraw. Consequently, we

are not persuaded that the trial court gave its full consideration of the motion.

       {¶25} Maney had not alleged actual innocence or alleged a complete

defense in this case, though he did raise issues concerning the propriety of the

indictment, which the prosecution admitted was incorrectly drafted, and concerns

over the offenses the prosecution relied upon to elevate his convictions.


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Case No. 4-12-16, 4-12-17


       {¶26} Upon review of the foregoing factors and in light of the fact that pre-

sentence Crim.R. 32.1 motions to withdraw should be freely and liberally granted,

we conclude that the trial court abused its discretion by denying the motion. The

failure of a trial court to properly inform a defendant of the maximum penalty is

generally reversible error in and of itself. State v. Caplinger, 105 Ohio App.3d

567, 572 (4th Dist.1995), citing State v. Gibson, 34 Ohio App.3d 146, 146-148

(8th Dist.1986) and State v. Calvillo, 76 Ohio App.3d 714 (8th Dist.1991). In

State v. Durham, the trial court, similar to the trial court herein, incorrectly

advised the defendant that he faced a possible, maximum sentence of 18 months

when the actual possible, maximum sentence was 12 months, and, thereafter, the

trial court incorrectly sentenced the defendant to 18 months. 4th Dist. No.

99CA09, *1-2 (Apr. 27, 2000). The defendant filed a post-sentence Crim.R. 32.1

motion to withdraw his guilty plea, which the trial court denied. Id. The Court of

Appeals, however, found that the defendant could not have knowingly entered his

guilty plea in light of the incorrect advisement and that allowing his guilty plea to

stand would be a manifest injustice. Id.

       {¶27} Here, we are presented with a pre-sentence motion to withdraw,

which is to be freely and liberally granted, in the context of an incorrect

notification of the maximum, possible sentence and an incorrect notification of

mandatory PRC. We are not persuaded that Maney knowingly and intelligently


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Case No. 4-12-16, 4-12-17


entered his no contest pleas in this case given the trial court’s incorrect

notifications. Maney suffered prejudice in this case because he was, in fact,

sentenced to a four-year term of imprisonment for his third-degree felony

domestic violence conviction, which sentence was outside the statutory range and

was, in fact, subject to mandatory PRC. R.C. 2929.14(A)(3)(b) (as amended by

H.B. 86, eff. 9/30/11); R.C. 2967.28(B)(3); Davenport, 2012-Ohio-4013, at ¶ 20;

Weems, 2011-Ohio-721, at ¶ 22. Given all the possible legal issues Maney raised

with respect to his case, he may not have pled no contest but for the trial court’s

incorrect advisement that he was subject to a possible five-year term of

incarceration. Had Maney been properly notified that he was subject to only three

years imprisonment, he may have decided to proceed with his previously

withdrawn motions and even proceeded to trial.           Calvillo at 720-721.      It is

important to note that Maney filed a pre-sentence motion to withdraw bringing

this Crim.R. 11(C)(2)(a) error to the trial court’s attention, and the trial court

simply disregarded this issue in making its decision. See State v. Roberts, 3d Dist.

No. 8-98-33, *4 (Apr. 9, 1999) (Walters, J., concurring). Consequently, we must

conclude that the trial court’s decision constituted an abuse of its discretion.

       {¶28} Maney’s second assignment of error is, therefore, sustained.




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Case No. 4-12-16, 4-12-17


                            Assignment of Error No. I

       The trial court’s sentence of 4 years for violating ORC 2919.25, a
       felony of the 3rd degree, exceeded the maximum sentence
       allowed under ORC 2929.14(A)(3)(b).

       {¶29} In his first assignment of error, Maney argues that the trial court’s

sentence of four years on his third-degree felony conviction for domestic violence

is more than the three-year maximum sentence allowed under R.C.

2929.14(A)(3)(b), as amended by H.B. 86 (eff. 9/30/11); and therefore, the trial

court’s sentence must be vacated as contrary to law.

       {¶30} Our disposition of Maney’s second assignment of error renders this

issue moot, and therefore, we decline to address it further. App.R. 12(A)(1)(c).

       {¶31} Having found error prejudicial to the appellant herein in the

particulars assigned and argued in his second assignment of error, we reverse the

judgments of the trial court and remand for further proceedings.

                                                         Judgments Reversed and
                                                               Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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