[Cite as State v. Batstra, 2017-Ohio-2665.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                 :      Hon. John W. Wise, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
RICHARD T. BATSTRA                            :      Case No. CT2016-0052
                                              :
        Defendant - Appellee                  :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court, Case No. CRB 04 00233




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    May 3, 2017



APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

D. MICHAEL HADDOX                                    ROBERT G. MCCLELLAND
Prosecuting Attorney                                 Graham & Graham Co., L.P.A.
                                                     P.O. Box 340
                                                     Zanesville, Ohio 43702-0340
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street. P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0052                                                             2

Baldwin, J.

           {¶1}      Plaintiff-appellant State of Ohio appeals from the August 29, 2016 Order of

the Muskingum County Court granting defendant-appellee Richard T. Batstra’s Motion to

Withdraw Plea.

                                      STATEMENT OF THE FACTS AND CASE

           {¶2}      On April 8, 2004, a complaint was filed charging appellee with domestic

violence in violation of R.C. 2929.25(A), a misdemeanor of the first degree. Appellee filed

a written not guilty plea on April 16, 2004.

           {¶3}      As memorialized in a Sentencing Entry filed on July 23, 2004, appellee

entered a plea of guilty to domestic violence and was placed on community control for 24

months under specified terms and conditions. The trial court’s Entry stated that if appellee

violated any of the sanctions, he would be brought back before the court and would be

subject to a fine of $1,000.00 and a jail sentence of 180 days.

           {¶4}      Pursuant to an Order filed on October 13, 2004, appellee was ordered to

appear before the trial court and show cause why he should not be found in violation of

special conditions of his probation. Appellee, as memorialized in a Sentencing Entry filed

on October 13, 2004, entered a plea of no contest and the trial court found appellant

guilty.

           {¶5}      On July 29, 2016, appellee filed a Motion to Withdraw Plea of No Contest1.

Appellee, in his motion, argued that he had entered his plea without full benefit of knowing

the consequences of a domestic violence conviction and “did not know the reason and/or

consequences for the nature of a ‘plea and defer’ method of resolving the case, as he



1
    The trial court’s July 23, 2004 Entry states that appellee pled guilty to domestic violence.
Muskingum County, Case No. CT2016-0052                                                                 3


was subjected to by the Court.”               Appellee further argued that he had substantially

rehabilitated his life. Appellant filed a memorandum in opposition to appellee’s motion.

        {¶6}     Pursuant to an Order filed on August 29, 2016, the trial court granted

appellee’s motion.

        {¶7}     Appellant now appeals2, raising the following assignment of error on appeal:

        {¶8}     THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

DEFENDANT TO WITHDRAW HIS PLEA AFTER TWELVE YEARS WITHOUT A

FINDING OF MANIFEST INJUSTICE.

                                                            I

        {¶9}     Appellant, in its sole assignment of error, argues that the trial court abused

its discretion in granting appellee’s Motion to Withdraw his plea. We agree.

        {¶10} Crim.R. 32.1 reads 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.” Thus, a defendant seeking to withdraw a guilty

plea after sentence has been imposed, as appellee did in the instant case, has the burden

of demonstrating a “manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977), paragraph one of the syllabus. A “manifest injustice” has previously been

defined as a “clear or openly unjust act.” State ex rel. Schneider v. Kriener, 83 Ohio St.3d

203, 208, 1998-Ohio-271, 699 N.E.2d 83.

        {¶11} Appellate 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. See State v. Caraballo, 17


2
 This Court, as memorialized in a Judgment Entry filed on December 9, 2016, granted appellant’s Motion for Leave
to Appeal.
Muskingum County, Case No. CT2016-0052                                              4


Ohio St.3d 66, 477 N.E.2d 627 (1985). An abuse of discretion suggests a decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). Under the manifest injustice standard, a post-sentence

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

Licking No. 09–CA–132, 2010–Ohio–2566, ¶ 60, citing State v. Smith, 49 Ohio St.2d 261,

264, 361 N.E.2d 1324 (1977). 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.

       {¶12} In the case sub judice, appellee filed his motion twelve years after he

entered his plea. While appellee contended in his motion that his plea was not knowing,

intelligent or voluntary, because there is no transcript of appellee’s plea hearing, we must

presume the regularity of the proceedings. See Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 400 N.E.2d 384 (1980). Moreover, while appellee argued in his motion that

that he had “substantially rehabilitated his life,” his behavior since his sentencing is not

relevant in determining whether or not a “manifest injustice” occurred to the extent that a

withdrawal of his plea is warranted.

       {¶13} We find the trial court abused its discretion in permitting appellee to

withdraw his plea. On the record before us, appellee failed to establish that a manifest

injustice occurred. The resulting prejudice to appellant if the plea is withdrawn after 12

years, when appellee has failed to demonstrate any extraordinary circumstances that

would substantiate such recourse, leads us to conclude that the trial court abused its

discretion.
Muskingum County, Case No. CT2016-0052                                                5


      {¶14} In light of the foregoing, appellant’s sole assignment of error is sustained.

      {¶15} Accordingly, the trial court's August 29, 2016 Order is reversed, and this

matter is remanded to the trial court for proceedings consistent with this Opinion.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
