[Cite as State v. Hopper, 2013-Ohio-5091.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :
                                                         CASE NOS. CA2013-04-039
        Plaintiff-Appellee,                        :               CA2013-05-041

                                                   :           OPINION
   - vs -                                                      11/18/2013
                                                   :

DAVID S. HOPPER,                                   :

        Defendant-Appellant.                       :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 08 CR 25107



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

David S. Hopper, #218-480, Northpoint Training Center, P.O. Box 479, Burgin, KY 40310,
defendant-appellant, pro se



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, David Hopper, appeals pro se a decision of the Warren

County Court of Common Pleas denying his motion to withdraw his guilty plea under Crim. R.

32.1. For the reasons set forth below, we affirm the decision of the trial court.

        {¶ 2} We note that the record on appeal is very limited, due in large part to the fact

that appellant failed to file a transcript for the change of plea or sentencing hearings. The
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parties do not dispute, however, that this case stems from a series of crimes committed by

appellant, which occurred in multiple states. As a result, appellant was charged with multiple

offenses in Ohio, Kentucky, and Indiana. Appellant was also charged with multiple federal

offenses in connection with those events.

       {¶ 3} Appellant's brief alleges that in 2007, he entered his first guilty plea in the U.S.

District Court for the Eastern District of Kentucky for two counts of use of a firearm during

and in relation to a crime of violence in violation of 18 U.S.C. 924(c). Appellant was

subsequently sentenced to a term of 32 years in federal prison.

       {¶ 4} On June 16, 2008 appellant was indicted on 12 counts in the Warren County

Court of Common Pleas for two counts of aggravated burglary, one count of aggravated

robbery, four counts of kidnapping, two counts of rape, one count of possession of criminal

tools, and one count of gross sexual imposition. Each count included a firearm specification

under R.C. 2941.145(A). All three kidnapping counts included both a sexual motivation

specification under R.C. 2941.147(A) and a sexually violent predator specification under R.C.

2941.148(A).

       {¶ 5} Appellant subsequently entered a plea of guilty to the offenses and

specifications listed in the Warren County indictment, except for the sexually violent predator

specifications under R.C. 2941.148(A). The sexually violent predator specifications were

later dismissed by the state on all three counts. Appellant was sentenced to a total of 40

years in prison for those counts committed in Warren County. Appellant claims that he

believed that the 40-year sentence in Warren County would run concurrent with his 32-year

federal sentence, which was based on his conviction of two counts of 18 U.S.C. 924(c).

       {¶ 6} Approximately five years after his conviction and sentencing for the crimes

committed in Warren County, appellant alleges that he first became aware that his federal


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prison sentence could not be served concurrently with any other state or federal sentences.

See 18 U.S.C. 924 (c)(1)(D)(ii) ("no term of imprisonment imposed on a person under this

subsection shall run concurrently with any other term of imprisonment imposed on the

person").

       {¶ 7} On March 15, 2013, acting pro se, appellant moved to withdraw his guilty plea

to the charges brought in the Warren County Court of Common Pleas. In its entry dated April

10, 2013, the trial court denied appellant's motion to withdraw his guilty plea. Appellant now

appeals the decision of the trial court, raising the following assignment of error:

       {¶ 8} THE COURT DENIED HOPPER DUE PROCESS, WHEN IT DENIED HIS

MOTION TO WITHDRAW HIS PLEADING OF GUILTY, WHICH WAS BASED ON THE

PROMISE OF A SENTENCE THAT WOULD BE SERVED CONCURRENT TO HIS

KENTUCKY AND FEDERAL SENTENCES.

       {¶ 9} In his sole assignment of error, appellant argues that he should be permitted to

withdraw his guilty plea to the offenses committed in Warren County. He alleges that he pled

guilty based on the understanding or promise that all of his sentences, including his federal

sentence, would be served concurrently. However, since his violation of 18 U.S.C. 924(c)

cannot be served concurrently with any other offense, he now alleges that the prosecutor

breached the plea agreement and, thus, he should be permitted to withdraw his guilty plea.

       {¶ 10} Appellant is correct in noting that due process requires the state to honor any

promise made to a defendant in securing a guilty plea. State v. Pasturzak, 4th Dist. Scioto

No. 08CA3252, 2009-Ohio-4222, ¶ 13; State v. Lampson, 10th Dist. Franklin No. 09-AP-

1159, 2010-Ohio-3575, ¶ 9. A breach of such a promise could permit a criminal defendant to

withdraw his guilty plea. Paturzak at ¶ 13.

       {¶ 11} Generally, a motion to withdraw a guilty plea may only be made before

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sentence is imposed. Crim.R. 32.1. However, in order to correct a manifest injustice, "the

court after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea." Crim.R. 32.1; State v. Williams, 12th Dist. Clermont No. CA2012-

08-060, 2013-Ohio-1387, ¶ 10.

         {¶ 12} A defendant who seeks to withdraw a guilty plea after the imposition of

sentence has the burden of establishing the existence of a manifest injustice. State v. Smith,

49 Ohio St.2d 261(1977), paragraph one of the syllabus. A manifest injustice "relates to a

fundamental flaw in the proceedings that results in a miscarriage of justice or is inconsistent

with the demands of due process." State v. Carter, 12th Dist. Clinton Nos. CA2010-07-012,

CA2010-08-016, 2011-Ohio-414, ¶ 15. The manifest injustice standard "is an extremely high

standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases."

Id.; State v. Hopkins, 12th Dist. Butler No. CA2012-12-246, 2013-Ohio-3674, ¶ 9.

         {¶ 13} The decision of whether to grant or deny a motion to withdraw a plea of guilty

under Crim.R. 32.1 is within the discretion of the trial court. Smith at 264; Hopkins at ¶ 10.

We will not reverse the trial court's decision absent an abuse of discretion. State v. Kelly,

12th Dist. Butler No. CA2013-01-020, 2013-Ohio-3675, ¶ 20. A trial court abuses its

discretion when its decision was "unreasonable, arbitrary, or unconscionable" and not merely

an error of law or judgment. Id., citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,

¶ 130.

         {¶ 14} Since the appealing party bears the burden of showing error in the underlying

proceeding by reference to matters in the record, the appellant has a duty to provide a

transcript for appellate review. Williams at ¶ 18; Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199 (1980); see App. R. 9(B); see also App. R. 16(A)(7). "Where portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the

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reviewing court has nothing to pass upon and thus has no choice but to presume the

regularity or validity of the lower court's proceedings and affirm." Knapp at 199; Williams at ¶

18; State v. Gregory, 12th Dist. Clinton No. CA2006-05-016, 2006-Ohio-7037, ¶ 3.

       {¶ 15} A review of the record in this case reveals that appellant did not submit a

transcript for the change of plea or sentencing hearings, which was necessary for this appeal.

Without a transcript, we cannot determine the validity of any of the assertions that appellant

made in his brief. Therefore, in reviewing this case we must presume the regularity of the

proceedings and presume the trial court provided appellant with the proper Crim.R. 11

colloquy and correctly informed appellant of the possible penalties for all of the offenses for

which he was about to plead guilty.

       {¶ 16} We are assisted in this determination by a written plea form signed by appellant

and his counsel. The record reflects that appellant signed a written plea form that listed the

charges he was pleading guilty to, as well as the possible sentences for each count. This

document states that "I [appellant] have been fully informed by my counsel and by the Court

of the charge against me, the penalty provided by law, and of my constitutional rights; I am

proceeding voluntarily[.]" The writing further acknowledges that "[n]o promises have been

made to me [the appellant] to secure my plea of GUILTY."

       {¶ 17} The document makes no reference to any promise or term in the plea

agreement that indicates appellant's state charges would be served concurrently with his

other federal or state charges. In sum, appellant did not present any evidence that the state

promised that appellant's state and federal charges would be served concurrently. Nor is it

clear why appellant's federal sentence, which statutorily mandates a consecutive sentence, in

any way weighs on the validity of his guilty plea to the crimes committed in Warren County.

       {¶ 18} Accordingly, since appellant failed to support his contention of a breach of a


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plea agreement with any evidence in the record, the trial court did not abuse its discretion in

denying appellant's motion to withdraw his guilty plea. Since the trial court did not abuse its

discretion in denying appellant's motion to withdraw his guilty plea, appellant sole assignment

of error is overruled.

       {¶ 19} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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