[Cite as State v. Vassalle, 2014-Ohio-4426.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-14-03

        v.

TIMOTHY VASSALLE,                                          OPINION

        DEFENDANT-APPELLANT.




                         Appeals from Tiffin Municipal Court
                   Trial Court Nos. 13-TRC-3505 and CRB 1300996

                                      Judgments Affirmed

                             Date of Decision: October 6, 2014




APPEARANCES:

        Gene P. Murray for Appellant

        Drew E. Wood for Appellee
Case No. 13-14-03


WILLAMOWSKI, P.J.

         {¶1} Defendant-appellant Timothy Vassalle (“Vassalle”), brings this appeal

from the judgments of the Tiffin Municipal Court in Seneca County, Ohio,

denying his post-sentence motions to withdraw pleas of no contest.                                For the

reasons that follow, we affirm the trial court’s judgments.

         {¶2} The record before us is limited and shows the following procedural

history. On a Friday evening, December 6, 2013, at 5:38 p.m., Vassalle was cited

with operating a vehicle while under the influence of alcohol or drug of abuse

(OVI) in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree,

and a failure to control in violation of R.C. 4511.202(A), a minor misdemeanor.

On Monday morning, December 9, 2013, the citation was filed in Tiffin Municipal

Court in the case number 13 TRC 3505 A-B. (R.1 at 1.1) On the same day,

another case was filed against Vassalle in Tiffin Municipal Court, captioned CRB

1300996, which charged him with carrying or using a firearm or dangerous

ordnance while under the influence of alcohol or drug of abuse in violation of R.C.

2923.15(A), a misdemeanor of the first degree. (R.2 at 1.) An arraignment in both

cases occurred also on the same day, Monday, December 9, 2013.

         {¶3} The journal entries filed in both cases on December 9, 2013, show that

at the arraignment, Vassalle “waived counsel,” “following discussion”; “[r]ights,

1
  Due to the fact that this appeal concerns two separate cases and involves two records from the trial court,
we use R.1 and R.2 throughout this opinion, where R.1 refers to the case 13 TRC 3505 A-B, and R.2 refers
to the case CRB 1300996.

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Case No. 13-14-03


pleas and penalties pursuant to Crim. R. 10 and 11 were explained and the

defendant stated that he/she understood them”; Vassalle acknowledged receipt of

the citation in case 13 TRC 3505 A-B and the receipt of the complaint in open

court in case CRB 1300996; and he heard the reading of the citation and the

complaint. (R.1 at 3, 4; R.2 at 2.) The judgment entries further show that Vassalle

entered a plea of no contest to all the charges and that he discussed the waiver of

rights and the plea in open court. (Id.)

       {¶4} The trial court found Vassalle guilty of all charges and sentenced him,

during the same proceeding, to ninety days in jail with eighty-five days

conditionally suspended for the OVI conviction, and ninety days in jail with

eighty-five days conditionally suspended for carrying or using a weapon while

under the influence. (Id.) The two jail terms were to be served concurrently to

each other. (Id.)   Other sanctions included community control, suspension of

driving and hunting licenses, and fines. (Id.) The jail commitment documents

were filed on the same day. (R.1 at 5; R.2 at 3.) The docket indicates that

Vassalle completed his five-day jail sentence on December 11, 2013. (R.1 at 16;

R.2 at 13.)

       {¶5} The next filings in both cases occurred on December 23, 2013, and

consisted of motions to withdraw pleas of no contest, signed by attorney Gene

Murray. (R.1 at 7; R.2 at 5.) The motions alleged that Vassalle had entered his

pleas of no contest by mistake. (Id.) The following facts were alleged:
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        [O]n Sunday, December 8, 2013, Janet Strausbaugh called
        undersigned attorney Murray on behalf of Defendant Vassalle, with
        the purpose of retaining [attorney Murray] to represent Defendant
        Vassalle, whose arraignment was scheduled for Monday, December
        9, 2013 at 9:00 A.M. via video at the Tiffin Municipal Court.

        On said Monday, December 9, 2013 at 9:00 A.M., attorney Murray
        had a scheduling conflict with State of Ohio v. Michael Ludwig, a
        felony case in the Hancock County Common Pleas Court, Judge
        Niemeyer presiding.

        Wherefore, on Sunday evening, December 8, 2013 at 9:46 P.M.,
        attorney Murray telephoned the Seneca County Jail, at the Sheriff’s
        Department, a call which should have been recorded, and talked with
        a correction’s officer, asking him if he would relay the message to
        then-inmate Defendant Timothy Vassalle to plead Not Guilty to his
        charges the next morning, on the advice of his attorney Gene
        Murray.

        The correction’s officer indicated that yes, he would relay the
        message to Defendant Vassalle, but instead relayed a wrong message
        to Defendant Vassalle to plead No Contest, rather than Not Guilty, to
        the charges.

(Id.)

        {¶6} The trial court assigned the motions for a hearing on January 3, 2014.

(R.1 at 6; R.2 at 6.) The dockets show that attorney Murray requested the audio

recording of the telephone call he had placed to the Seneca County jail on Sunday,

December 8, 2013, at 9:46 p.m., to be produced at the January 3, 2014 hearing.

(R.1 at 10; R.2 at 8.)

        {¶7} On January 3, 2014, journal entries were filed ordering the parties to

submit written closing arguments on the matter of withdrawing the no contest

pleas. (R.1 at 12; R.2 at 9.) Vassalle’s closing argument reiterated facts stated in
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Case No. 13-14-03


his motions. (R.1 at 13; R.2 at 10.) It further referred to the January 3, 2014

hearing and to “the arraignment video in which Defendant Vassalle provides the

name of undersigned attorney Murray as advising him (falsely) to plead no contest

to the charges.” (Id.) The State’s closing argument referred to the recording of

the arraignment as well. (R.1 at 14; R.2 at 11.) The recording was supposedly

submitted at the January 3, 2014 hearing as an exhibit, as to which the parties

stipulated. (Id.) The State further referred to a recording of the telephone call

made by attorney Murray to the Seneca County Jail on December 8, 2013, during

which attorney Murray was heard requesting that a message be passed to Vassalle

instructing him to plead not guilty.      (Id.) According to the State’s closing

argument, the parties had stipulated to that recording and submitted it as an exhibit

at the hearing. (Id.)

       {¶8} In its closing argument, the State argued that Vassalle’s self-serving

testimony at the hearing, alleging that a false message was conveyed to him, was

not credible. (Id. at 3.) The State argued that the delay in filing his motions to

withdraw weighed against the credibility of Vassalle’s assertion of a mistaken

belief that he would not be found guilty upon entering the no contest pleas,

because the mistake should have become apparent when the court stated, “You are

hereby found guilty.” (Id. at 4.) The State further referred to Vassalle’s testimony

at the hearing, which allegedly further undermined his credibility. (Id. at 4-6.)

The State additionally pointed out that, during his arraignment on December 9,
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Case No. 13-14-03


2013, Vassalle had been advised of his rights, and indicated that he understood his

rights and that he wished to plead no contest. (Id. at 8-9.) Those facts, according

to the State, proved that Vassalle had entered his plea knowingly, voluntarily, and

intelligently, and that his claims of mistake, alleged two weeks after sentencing,

should be rejected. (Id.)

       {¶9} On January 10, 2014, the trial court issued a one-paragraph ruling,

denying the motions to withdraw in both cases. (R.1 at 15; R.2 at 12.) The trial

court stated that it “adopt[ed] the findings and case law set forth by the [State], and

[found] that [Vassalle] has failed to sustain his burden in this matter.” (Id.)

       {¶10} Vassalle timely appealed on February 6, 2014, consolidating the two

trial court cases for the purpose of this appeal.         He submitted a statement

indicating that he “intend[ed] to include in the record a partial transcript of the

proceedings in the trial court consisting of: the arraignment (plea hearing and

sentencing), and the hearing on motion to withdraw no contest pleas,” within forty

days. (R.1 at 18, 19.) On March 17, 2014, Vassalle requested a thirty-day

extension of time for transmitting the record on appeal due to “the heavy workload

of the court reporter.” (R.1 at 25.) The extension was granted; yet, Vassalle never

filed any transcripts from the trial court’s proceedings. On April 16, 2014, an

affidavit from the court reporter was filed, stating that the reporter was

       unable to complete the transcript of the hearings held in the above
       matter due to the fact that the Tiffin Municipal Court digital system
       malfunctioned and only the first six minutes of the hearing and the
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Case No. 13-14-03


       last 59 minutes of the hearing were recorded per personal discussion
       with the staff at Tiffin Municipal Court; therefore, a complete
       transcript of the hearing is unavailable.

(R.1 at 29.) Vassalle failed to include any transcripts, partial or completed, in the

trial court’s record. On April 16, 2014, the record from Tiffin Municipal Court

was transferred to this court, pursuant to App.R.9(A).

       {¶11} Vassalle alleges one assignment of error on appeal:

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       DENYING THE DEFENDANT-APPELLANT’S MOTION TO
       WITHDRAW HIS PLEAS OF NO CONTEST, ON GROUNDS
       THAT THE NOVICE DEFENDANT DID NOT KNOWINGLY,
       VOLUNTARILY OR INTELLIGENTLY ENTER HIS NO
       CONTEST PLEAS, AS THE RECORDED MESSAGE FROM
       HIS RETAINED DEFENSE COUNSEL WAS TO PLEAD NOT
       GUILTY TO ALL CHARGES, WHICH MESSAGE WAS
       INADVERTENTLY AT BEST, OR ADVERTENTLY AT
       WORST, SO MISTAKENLY RELAYED BY SHERIFF’S
       DEPARTMENT PERSONNEL TO THE DEFENDANT-
       APPELLANT TO PLEAD NO CONTEST TO ALL CHARGES.

       {¶12} Because Vassalle’s motions to withdraw were filed after sentencing,

they could only be granted “in extraordinary cases,” in order to “correct manifest

injustice.” State v. Smith, 49 Ohio St.2d 261, 261, 264, 361 N.E.2d 1324 (1977);

Crim.R. 32.1.

       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.




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(Emphasis added.) Crim.R. 32.1. “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.” Smith, 49 Ohio St.2d 261, at paragraph one of the syllabus.

          {¶13} “[T]he decision whether to grant a motion to withdraw a guilty plea

rests within the sound discretion of the trial court” and we will not reverse the trial

court’s decision absent an abuse of that discretion. State v. Nathan, 99 Ohio

App.3d 722, 725, 651 N.E.2d 1044 (3d Dist.1995).          “An abuse of discretion is

more than an error in judgment”; thus, we will only reverse the trial court if its

reasoning was “unreasonable, arbitrary, or unconscionable.”          State v. Maney,

2013-Ohio-2261, 993 N.E.2d 422, 425, ¶ 17 (3d Dist.), citing State v. Adams, 62

Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980). Because the trial court is in the

best position to resolve the issues of credibility and the weight of the defendant’s

assertions, we will not substitute our judgment for that of the trial court. State v.

Liles, 3d Dist. Allen No. 1-10-28, 2010-Ohio-5799, ¶ 17; Nathan, 99 Ohio App.3d

at 725.

          {¶14} Vassalle asks us to find that the trial court abused its discretion in

determining that he had not satisfied his burden of establishing manifest injustice.

Yet, the limited record before us fails to show any abuse of discretion. The only

support for Vassalle’s assertions comes from his motions, which are unsupported

by any evidence. We were not provided with the transcripts of the arraignment,

the hearing on the motions to withdraw, or the phone call allegedly placed to the
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Case No. 13-14-03


Seneca County Jail by attorney Murray, which apparently were provided to the

trial court. In the absence of any evidence to show that the trial court’s reasoning

was unreasonable, arbitrary, or unconscionable, we must defer to the trial court’s

discretion.

       {¶15} We note that it was Vassalle’s obligation to provide us with a

sufficient record to review the trial court’s findings. App.R. 9(B). The faulty

equipment at the Tiffin Municipal Court at the January 3, 2014 hearing, does not

excuse Vassalle’s obligation.      The appellate rules provide for an alternative

method of providing a “statement of the evidence or proceedings,” when “no

recording was made, or when a recording was made but is no longer available for

transcription.” See App.R. 9(B)(4), (C), and (D). Vassalle has not utilized any of

the alternative methods for preparation of the transcript. Furthermore, while a

transcript of the January 3, 2014 hearing on the motions to withdraw was

unavailable due to the faulty equipment, Vassalle does not allege that the

transcript from the initial arraignment and the plea hearing was unavailable.

Conversely, the statements of both parties in their closing arguments and in their

briefs indicate that the recording of the arraignment and plea hearing was available

to the parties and the trial court. The parties apparently stipulated to this recording

and the trial court had an opportunity to review it prior to issuing its ruling.

       {¶16} This case is similar to State v. Pringle, 3d Dist. Auglaize No. 2-03-

12, 2003-Ohio-4235, where the defendant had “failed to provide transcripts of the
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Case No. 13-14-03


proceedings below, thus we ha[d] no choice but to assume the regularity of the

proceedings below and affirm the decision of the trial court” denying his motion to

withdraw a guilty plea. ¶ 2. We held,

       Pringle has failed to provide a transcript of the plea hearing in this
       matter. Both this court and the Ohio Supreme Court have noted that
       “[w]hen a party seeks an appeal, the appellant bears the burden of
       demonstrating error by reference to the record of the proceedings
       below, and it is the appellant’s duty to provide the reviewing court
       with an adequate transcript.” App.R. 9 provides the procedure for
       making the transcript a part of the record. This rule also provides
       alternatives if a transcript is not available. Thus, this Court “must
       presume the regularity of the trial court proceedings” in the absence
       of a complete and adequate record. By failing to file a transcript,
       Pringle has not demonstrated his claimed errors.

Id. at ¶ 10, quoting State v. Wells, 3d Dist. Seneca No. 13-02-17, 2002-Ohio-5318,

¶ 5, and Bd. of Trustees, Sugar Creek Tp. v. Crawford, 3d Dist. Allen No. 1-01-

130, 2002 WL 732129, *2, and citing Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199, 400 N.E.2d 384 (1980). See also State v. Blashaw, 8th Dist.

Cuyahoga No. 98719, 2012-Ohio-6011, appeal not accepted, 135 Ohio St.3d

1416, 2013-Ohio-1622, 986 N.E.2d 31, ¶¶ 12-14 (holding that the appellant’s

failure to provide the reviewing court with a transcript of the plea colloquy

required the appellate court to “presume regularity in the trial court’s proceedings”

and affirm its denial of a motion to withdraw a plea).

       {¶17} We further note a distinction of Pringle and the current case from the

case decided by the Ninth District Court of Appeals, where regularity in the

proceedings could not have been presumed from a silent record. See In re Hoover,
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Case No. 13-14-03


9th Dist. Summit No. 19284, 2000 WL 1420280 (Sept. 27, 2000). In Hoover,

appellant was unable to provide the court with the transcript of his plea hearing

due to malfunction of the recording equipment. Id. at *1. The Court of Appeals

refused to presume “the regularity of a lower court’s proceedings” at the plea

hearing, noting that the case before it

       involve[d] the fundamental constitutional right of a juvenile-
       defendant’s waiver of his right to trial and a silent record. The
       United States Supreme Court has held that a reviewing court cannot
       presume that a defendant voluntarily, knowingly, and intelligently
       entered a plea of guilty from a silent record. Boykin v. Alabama
       (1969), 395 U.S. 238, 242-244, 23 L.Ed.2d 274, 279-280. Because
       the presumption is against a defendant’s waiver of his right to trial,
       the State bears the burden of overcoming this presumption. State v.
       Dyer (1996), 117 Ohio App.3d 92, 95. “[T]he waiver must
       affirmatively appear in the record.” Id., citing In re East (1995), 105
       Ohio App.3d 221, 224.

Id. at *1.    Nevertheless, unlike the defendant in Hoover, Vassalle was not

prevented from providing the transcript of the initial arraignment and plea hearing.

As stated by both parties, and confirmed by the trial court, the record before the

trial court was not silent as to whether Vassalle’s plea was voluntary, knowing,

and intelligent. The trial court was provided with the recording of the arraignment

and the plea hearing and thus, the State did not bear the burden of overcoming the

presumption against Vassalle’s waiver of his right to trial during the hearing on

the motion to withdraw. Likewise, we are not required to apply this presumption

on appeal.



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Case No. 13-14-03


       {¶18} The record before us fails to support Vassalle’s assertions that the

trial court’s reasoning was unreasonable, arbitrary, or unconscionable.

Accordingly, we overrule the assignment of error and affirm the decision of the

trial court to deny Vassalle’s motions to withdraw his pleas of no contest.

                                    Conclusion

       {¶19} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgments of the Tiffin Municipal Court in Seneca County, Ohio are

therefore affirmed.

                                                               Judgments Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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