The trial court went on to explain Durham's rights to (1) have the state prove his guilt beyond a reasonable doubt, (2) the assistance of counsel and court-appointed counsel if indigent, (3) confront his accusers, (4) cross-examine witnesses, (5) testify on his own behalf or to remain silent, and (6) compulsory process. Durham signed written waivers of counsel, a jury trial, and a grand jury indictment.

The trial court then accepted Durham's guilty plea. Subsequently, the trial court appointed counsel for Durham's sentencing. Through counsel, Durham moved to withdraw his guilty plea alleging that at the time of the plea he was taking medication and unable to understand the full consequences of his plea. However, Durham later withdrew this motion.

After the sentencing hearing, the trial court sentenced Durham to eighteen months in prison. The trial court later judicially released Durham, ordered him into a treatment center and placed him on community control sanctions. Durham twice violated the terms of his release.

On April 7, 1999, Durham filed a motion to withdraw his guilty plea, which the trial court denied without a hearing. Durham appeals and asserts the following assignments of error:

I. The trial court erred by refusing or failing to conduct a hearing on Appellant's April 7, 1999 Motion to Withdraw Plea.

II. The trial court erred by overruling Appellant's Motion to Withdraw his guilty plea.

We must affirm a trial court's acceptance of a guilty plea if the trial court substantially complies with the requirements of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86. Substantial compliance means "under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Nero (1990) 56 Ohio St.3d 106,108, citing Stewart.

Pursuant to Crim.R. 32.1, a trial court may grant a post-sentence motion to withdraw a guilty plea only to correct a manifest injustice. This standard permits a defendant to withdraw his guilty plea only in extraordinary cases. State v.Smith (1977), 49 Ohio St.2d 261, 264. Thus, a trial court may not grant a post-sentence motion to withdraw a guilty plea unless the defendant establishes that a manifest injustice will result if the plea is allowed to stand. State v. Xie (1992),62 Ohio St.3d 521, 525; Smith at paragraph one of the syllabus. The defendant who seeks to withdraw a guilty plea has the burden of proof to show a manifest injustice. Smith at paragraph one of the syllabus.

In general, the failure of a trial court to properly inform a defendant of the maximum penalty applicable to his offense is reversible error. State v. Caplinger (1995), 105 Ohio App.3d 567,572, citing State v. Gibson (1986), 34 Ohio App.3d 146,146-148. See, also, State v. Calvillo (1991), 76 Ohio App.3d 714 (failure of the trial court to inform defendant that he was ineligible for probation rendered guilty plea not knowingly entered; therefore, guilty plea must be vacated); State v.Ashley (Mar. 31, 1993), Medina App. No. 2126-M, unreported.

In his motion to withdraw his guilty plea, Durham alleged that his guilty plea was not entered knowingly and voluntarily because the trial court advised Durham, who appeared pro se, that the maximum possible sentence was eighteen months in prison, when in fact the statutory maximum term is twelve months in jail. See R.C. 2929.16 (A)(3); State v. Ferguson (Aug. 19, 1999), Pickaway App. No. 99CA06, unreported.

Because the trial court did not inform Durham of the correct maximum sentence, Durham could not have knowingly entered his guilty plea. Allowing his guilty plea to stand would be a manifest injustice. Accordingly, we sustain his second assignment of error.

JUDGMENT REVERSED.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as the date of this Entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

ABELE, J.: Concur in Judgment Only.

HARSHA, J.: Concur with Attached Concurring Opinion.

For the Court

BY: _________________________________ ROGER L. KLINE, PRESIDING JUDGE

I agree with the principle opinion's determination that the appellant should be allowed to withdraw his guilty plea. However, I predicate my belief on a slightly different ground. The record indicates that the appellant entered his guilty plea based on a plea agreement that inexplicably called for the prosecutor to recommend a sentence that was unauthorized by the relevant sentencing law. The prosecutor recommended an eighteen-month "suspended" sentence and community control. Because the Bill of Information alleged that this was the appellant's fourth OMVI offense in six years, he could only receive a mandatory term of sixty days "local incarceration" and up to five years community control sanctions (which could include twelve months in jail, less the mandatory term) See P.C. 2929.13(G)(1) and 2929.16 (A)(3). Accordingly, I believe the trial court abused its discretion in denying the appellant's motion.