[Cite as State v. Zimmerman,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-G-3146 - vs - :

GERALD F. ZIMMERMAN, :

Defendant-Appellant. :

Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 11C000120.

Judgment: Affirmed.

James R. Flaiz, Geauga County Prosecutor, and Abbey L. King Mueller, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).

Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Defendant- Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Gerald F. Zimmerman, appeals from the Judgment

of the Geauga County Court of Common Pleas, denying his Motion to Withdraw Plea.

The issue to be determined by this court is whether a trial court abuses its discretion in

denying a motion to withdraw a guilty plea, without a hearing, when the defendant

argues that his plea is involuntary because a court of common pleas lacks jurisdiction in misdemeanor cases. For the following reasons, we affirm the decision of the court

below.

{¶2} On September 16, 2011, Zimmerman was indicted by the Geauga County

Grand Jury on two counts of Operating a Vehicle While Under the Influence (OVI),

felonies of the third degree, in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e); one

count of OVI, a felony of the third degree, in violation of R.C. 4511.19(A)(1)(h) and

(G)(1)(e); and one count of Driving in Violation of a License Restriction, a misdemeanor

of the first degree, in violation of R.C. 4510.11(B).

{¶3} A Plea Agreement, signed by the State and defense counsel, was filed on

October 31, 2011, under which Zimmerman would plead guilty to one count of OVI and

Driving in Violation of a License Restriction, with the other two charges being dismissed.

{¶4} A joint change of plea and sentencing hearing was held on the same date.

The court reviewed the potential penalties for the crimes and the rights Zimmerman

would waive by pleading guilty. The court inquired whether Zimmerman understood the

charges to which he was pleading. The court also asked whether counsel believed that

Zimmerman’s plea was knowingly and voluntarily entered, to which counsel responded

affirmatively. The court accepted Zimmerman’s plea of guilty to one count of OVI, in

violation of R.C. 4511.19(A)(1)(h) and (G)(1)(e), and one count of Driving in Violation of

a License Restriction. The remaining two counts were dismissed.

{¶5} On November 3, 2011, the trial court filed an Order and Judgment of

Conviction, memorializing its acceptance of Zimmerman’s plea and stating that the plea

was given knowingly and voluntarily. For the OVI, the court sentenced Zimmerman to a

prison term of three years, plus an additional mandatory term of 120 days, and ordered

2 him to pay a fine of $1,350. Zimmerman was also ordered to serve a jail term of six

months for Driving in Violation of a License Restriction. The sentences were ordered to

be served concurrently.

{¶6} On March 18, 2013, Zimmerman filed a Motion to Withdraw Plea Pursuant

to Criminal Rule 32.1. In this Motion, he asserted that his plea was “involuntary

because this court has no jurisdiction to impose said sentence of imprisonment.” The

State filed a Response on March 21, 2013.

{¶7} On April 2, 2013, Zimmerman filed a Memorandum in Support of Motion to

Withdraw Guilty Plea, in which he maintained that “misdemeanors are in the jurisdiction

of” inferior courts, apparently arguing that the Geauga County Court of Common Pleas

did not have jurisdiction because one of the charges for which he was convicted was a

misdemeanor. He also asserted that the court did not have jurisdiction since it failed “to

determine the validity * * * of the law used in this case.”

{¶8} On April 8, 2013, the trial court issued a Judgment, denying Zimmerman’s

Motion to Withdraw Plea. The court held that it had jurisdiction to hear Zimmerman’s

case, regardless of whether one of the charges was a misdemeanor. It also held that

there was no basis for finding that any applicable law was unconstitutional.

{¶9} Zimmerman timely appeals and raises the following assignment of error:

{¶10} “The trial court erred to the prejudice of the appellant by not holding a

hearing to determine whether there was a reasonable basis for withdrawing his guilty

plea.”

{¶11} “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

3 may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.” Crim.R. 32.1. “The phrase ‘manifest injustice’ has been ‘variously defined,’

however, ‘it is clear that under such standard, a postsentence withdrawal motion is

allowable only in extraordinary cases.’” (Citation omitted.) State v. Wise, 11th Dist.

Trumbull No. 2012-T-0028,

, ¶ 13, citing State v. Smith,

,

(1977).

{¶12} “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 at

paragraph one of the syllabus. “A motion made pursuant to Crim.R. 32.1 is addressed

to the sound discretion of the trial court, and the good faith, credibility and weight of the

movant’s assertions in support of the motion are matters to be resolved by that court.”

at paragraph two of the syllabus; State v. Pough, 11th Dist. Trumbull No. 2010-T-

0117,

, ¶ 15 (a trial court’s denial of a motion to withdraw a guilty plea is

reviewed pursuant to an abuse of discretion standard) (citation omitted).

{¶13} Zimmerman argues that the trial court should have held a hearing on the

Motion to Withdraw Plea, since he “twice asserted that his guilty plea was involuntary”

and a hearing would have ensured that he “knew his rights” when he entered the plea.

{¶14} “While a trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made

before sentencing, the same is not true if the request is made after the trial court has

already sentenced the defendant. [State v. Xie,

,

(1992),] paragraph one of the syllabus. In those situations where the trial court must

consider a post-sentence motion to withdraw a guilty plea, a hearing is only required if

4 the facts alleged by the defendant, and accepted as true, would require withdrawal of

the plea.” (Citation omitted.) State v. Gibson, 11th Dist. Portage No. 2007-P-0021,

. “[A] trial court need not hold an evidentiary hearing on a post-

sentence motion to withdraw a guilty plea if the record indicates the movant is not

entitled to relief and the movant has failed to submit evidentiary documents sufficient to

demonstrate a manifest injustice.” (Citation omitted.) State v. Caskey, 11th Dist. Lake

No. 2010-L-014,

, ¶ 11. This court has also held that, “if the record, on

its face, conclusively and irrefutably contradicts a defendant’s allegations in support of

his Crim.R. 32.1 motion, an evidentiary hearing is not required.” State v. Madeline, 11th

Dist. Trumbull No. 2000-T-0156,

, 17 (Mar. 22, 2002).

{¶15} Initially, we note that Zimmerman’s Motion to Withdraw Plea was centered

almost entirely upon his contention that the court of common pleas lacked jurisdiction,

since one of the offenses before it was a misdemeanor and could only be resolved in a

municipal court. The trial court properly found no merit in this argument.

{¶16} Pursuant to R.C. 2931.03, “[t]he court of common pleas has original

jurisdiction of all crimes and offenses, except in cases of minor offenses the exclusive

jurisdiction of which is vested in courts inferior to the court of common pleas.” The Ohio

Supreme Court has rejected the contention that a court of common pleas does not have

jurisdiction in misdemeanor cases. “Jurisdiction over all crimes and offenses is vested

in the Court of Common Pleas, unless such jurisdiction is vested specifically and

exclusively in the lower courts. In the absence of an express provision to the contrary,

the Court of Common Pleas has jurisdiction over misdemeanors.” State ex rel. Coss v.

Hoddinott,

,

(1968). See also State v. Parthemer,

5 11th Dist. Trumbull Nos. 98-T-0169, et al.,

, 4 (Dec. 17,

1999) (municipal courts and common pleas courts have concurrent jurisdiction to hear

misdemeanors); Thomas v. Marshall, 4th Dist. Scioto No. 1504,

, 5-6 (May 22, 1985) (holding that the court of common pleas has jurisdiction over

misdemeanors). In this case, Zimmerman has pointed to no specific law preventing the

court of common pleas from accepting his plea for both the felony and misdemeanor

offenses or vesting jurisdiction exclusively with the municipal court.

{¶17} Zimmerman’s claim that the trial court lacked jurisdiction due to its failure

to “determine the validity (the legality) of the law used in this case” was also meritless.

Zimmerman pointed to no specific law that was improperly applied and provided no

authority that a trial court is required to review the “validity” of any applicable law, sua

sponte, in a criminal case. Since there was no legal basis for either of Zimmerman’s

claims regarding the alleged lack of jurisdiction, and no evidence would impact this

holding, a hearing was unnecessary as to these issues.

{¶18} In Zimmerman’s appellate brief, he contends that a hearing should have

been held to determine whether his plea was voluntarily given. Zimmerman did not

discuss this issue in his Motion to Withdraw Plea, except for a few references to his plea

being “involuntary” due to the court’s lack of jurisdiction. He pointed to absolutely

nothing in the record or otherwise to show that his plea was involuntarily and made no

argument in support of this issue. “When a defendant fails to raise a specific argument

in a post-sentencing motion to withdraw a guilty plea, he waives that argument for

purposes of appeal.” State v. Derricoatte, 11th Dist. Ashtabula No. 2012-A-0038, 2013-

Ohio-3774, ¶ 15.

6 {¶19} Even if Zimmerman’s mere references to the plea being “involuntary” did

not constitute waiver, a review of the record reveals nothing involuntary about his plea.1

The trial court reviewed the various rights Zimmerman was waiving by entering a guilty

plea, inquired into circumstances surrounding the plea, and asked whether Zimmerman

had reviewed the matter with counsel. The court also questioned whether Zimmerman

had been promised anything in exchange for his plea and questioned specific types of

medication Zimmerman may be taking to ensure that his plea was voluntarily. The

transcript reveals no difficulty by Zimmerman in entering his plea and does not provide

any support for the contention that the plea was involuntary.

{¶20} Zimmerman’s delay of over 16 months in filing the Motion to Withdraw

Plea is also “‘a factor adversely affecting the credibility of the movant and militating

against the granting of the motion.’” State v. Nicholas, 11th Dist. Portage No. 2009-P-

0049,

, ¶ 17, citing Smith,

,

, at

paragraph three of the syllabus.

{¶21} Since the record indicates that Zimmerman is not entitled to relief and he

failed to submit any documentation or affidavits to demonstrate a manifest injustice, a

hearing was not required on his Motion. We cannot find that the trial court abused its

discretion in denying Zimmerman’s Motion to Withdraw Plea.

{¶22} The sole assignment of error is without merit.

1. Zimmerman points to the factors in State v. Peterseim,

,

(8th Dist. 1980), for this court’s consideration in determining whether his plea was voluntarily given. However, these factors have been applied in cases involving pre-sentence requests for the withdrawal of a plea. See State v. Kornet, 11th Dist. Portage No. 2013-P-0001,

(“[t]his court has often applied the four-factor test set forth in Peterseim to determine whether a trial court has abused its discretion in denying a presentence motion to withdraw a plea”) (emphasis added); State v. Kerby, 2nd Dist. Clark No. 09-CA-39,

, ¶ 14 (the Peterseim factors “do not apply” since “Peterseim involves a pre-sentence request for withdrawal, which poses different considerations from post-sentence requests”).

7 {¶23} For the foregoing reasons, the Judgment of the Geauga County Court of

Common Pleas, denying Zimmerman’s Motion to Withdraw Plea, is affirmed. Costs to

be taxed against appellant.

CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.

8