[Cite as State v. Reinhardt,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130560 TRIAL NO. B-1203015-C Plaintiff-Appellee, : O P I N I O N. vs. :

SARA REINHARDT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 19, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William R. Gallagher and Herbert Haas, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. O HIO F IRST D ISTRICT C OURT OF A PPEALS

F ISCHER , Judge.

{¶1} Defendant-appellant Sara Reinhardt appeals the decision of the trial

court denying her postsentence motion to withdraw her guilty plea, alleging that her

counsel and the trial court induced her into entering the plea. Because we determine

that Reinhardt failed to demonstrate that a manifest injustice occurred, we affirm the

denial of her motion.

{¶2} A Hamilton County grand jury indicted Reinhardt in May 2012 for

four counts of deception to obtain a dangerous drug, specifically hydrocodone and

diazepam, under R.C. 2925.22(A)—felonies of the fifth degree. According to the bill

of particulars, Reinhardt allegedly received forged prescriptions from a codefendant,

filled those prescriptions, and gave some of the pills to her codefendant. After

numerous continuances, the case proceeded to trial where a jury was sworn and

impaneled. Prior to opening statements in July 2013, Reinhardt entered into a

written plea agreement, whereby she agreed to plead guilty to one count of theft

under R.C. 2913.02, a misdemeanor of the first degree, in exchange for the dismissal

of the counts as charged in the instant indictment, as well as the dismissal of a

related indictment in the case numbered B-1206734. The trial court accepted

Reinhardt’s plea after a full Crim.R. 11 colloquy, and sentenced Reinhardt to three

years’ community control, including 12 months of electronic monitoring.

{¶3} On August 27, 2013, Reinhardt filed a motion to withdraw her guilty

plea under Crim.R. 32.1, supported by her affidavit and the affidavit of her friend,

Gayle Bachman. Reinhardt alleged that she was a former Iranian citizen who had

renounced her citizenship to become employed by the Federal Bureau of

Investigation as a Farsi contract linguist. Because of the instant indictment,

Reinhardt had been suspended from her position with the FBI.

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{¶4} In her affidavit, Reinhardt maintained her innocence of the charges.

She stated that she had desired to go to trial, so she had rejected a plea deal from the

state to dismiss all four of the felony counts if she agreed to plead guilty to a

misdemeanor charge, even though the prosecutor had threatened to indict her on

additional felony charges if she refused to plead. When she rejected the deal,

Reinhardt then had been indicted for drug trafficking in the case numbered B-

1206734.

{¶5} Reinhardt alleged that she had begun to receive increased pressure

from her attorney to plead guilty. Her attorney had told her that the judge would

impose consecutive, maximum sentences if she refused to take a plea bargain.

Meanwhile, the state had continued to offer plea deals. Reinhardt attached a copy of

the transcript of proceedings from the second day of trial, after the jury had been

impaneled, where the trial court requested that past plea deals be placed on the

record. The prosecutor recounted three plea deals that had been offered to

Reinhardt over the last eight months, including theft with diversion. The prosecutor

then offered a second-degree misdemeanor attempt charge, eligible for diversion.

The trial court told Reinhardt, “[t]his is your last opportunity to accept that, because

otherwise once we start a trial I am not going to be inclined to agree to it.” Further

discussion took place, and the trial court stated to Reinhardt, “[y]ou have got one

minute to make your decision, because I can hear the jury out in the hall.” Reinhardt

then declined to take the deal.

{¶6} After Reinhardt had turned down this most recent plea deal,

according to Reinhardt, her attorney had told her that the judge “was very angry that

she would not plead guilty,” and that the judge would sentence her to nine-and-a-

half years in prison. According to Reinhardt and Bachman, Reinhardt’s attorney had

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become irate with Reinhardt, yelling and screaming, at which point Reinhardt had

finally broken under the pressure and pleaded guilty.

{¶7} In her Crim.R. 32.1 motion, Reinhardt alleged that the trial court had

been biased against her. Reinhardt attached copies of the judgments of convictions

of her two codefendants, who had received more favorable sentences. Reinhardt also

attached to her motion a copy of the transcript of proceedings from the postplea,

sentencing hearing, which she argued showed the trial court’s bias against her:

THE COURT: * * * I saw you get offered three deals that the majority

of people that come in here—and I wouldn’t even say the majority, I

would say every defendant who comes in here would have cried to

have. * * * I want to explain something to you. This Court’s time is

valuable. * * * I want to talk to you about the inconvenience that you

have caused this Court. You have caused us thousands of dollars in

court time. * * * You ought to be ashamed of yourself. * * * You ought

to—I just cannot tell you how narcissistic you have appeared to this

Court. * * * And unfortunately, because this is a misdemeanor, I

cannot send you to the department of corrections, because trust me, I

would have. If you had gotten convicted, I would have sent you, and I

would have sent you consecutively. That would have been a lot of time

in a place that you do not want to be.

{¶8} In addition to the alleged coercion by the trial court and counsel,

Reinhardt argued in her motion that she had taken a plea deal because it meant that

she would not have to serve any jail time. Nevertheless, she had spent three days and

two nights in jail awaiting her electronic-monitoring unit.

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{¶9} The trial court held a hearing on Reinhardt’s motion where Reinhardt

submitted the matter to the trial court on her motion without requesting an

evidentiary hearing. The trial court denied Reinhardt’s motion, stating that it had

been “a participant in all of this,” and that no manifest injustice occurred to allow

withdrawal of her plea postsentence. Reinhardt now appeals the denial of her

motion.

{¶10} In her sole assignment of error, Reinhardt alleges that the trial court

erred in denying her motion.

{¶11} Under Crim.R. 32.1, a trial court may permit a defendant to withdraw

a guilty plea after sentence only “to correct manifest injustice.” State v. Shirley, 1st

Dist. Hamilton No. C-130121,

, citing State v. Smith,

,

(1977), paragraph one of the syllabus. “Manifest

injustice” involves an “ ‘extraordinary and fundamental flaw in a plea proceeding.’ ”

Shirley at ¶ 8, quoting State v. Tekulve,

,

,

(1st Dist.). The burden of proving “manifest injustice” lies with a

defendant, and an appellate court reviews a trial court’s determination of whether

that standard has been met by the defendant for an abuse of discretion. State v.

Kostyuchenko,

,

, ¶ 4 (1st Dist.), citing Smith.

{¶12} A trial court need not hold a hearing on a postsentence motion under

Crim.R. 32.1 where the facts as alleged in the motion do not merit withdrawal of the

plea. State v. Dye, 1st Dist. Hamilton No. C-120483,

.

{¶13} On appeal from the denial of her motion, Reinhardt argues that her

plea was not voluntarily made because she received ineffective assistance of counsel,

the trial court participated in the plea-bargaining process with a demonstrated bias

against her, and the trial court induced her to plead with a promise of no jail time.

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{¶14} Ineffective assistance of counsel may form the basis of a defendant’s

postsentence motion to withdraw his plea if the defendant can show that “ ‘counsel’s

performance was deficient,’ ” and that “ ‘there was a reasonable probability that, but

for counsel’s deficient performance, the petitioner would not have pleaded guilty and

would have insisted on going to trial.’ ” See State v. Holloman, 1st Dist. Hamilton

No. C-030391,

, quoting Strickland v. Washington,

,

,

(1984).

{¶15} According to Reinhardt’s and Bachman’s affidavits, Reinhardt’s

attorney pressured her to plead guilty by threatening that the trial court would

sentence her to nine-and-one-half years in prison if she lost at trial because of the

trial court’s “anger” regarding her unwillingness to accept a plea deal. Her counsel

resorted to yelling and screaming.

{¶16} Accepting the affidavits of Reinhardt and Bachman as true, the

actions of Reinhardt’s counsel did not constitute deficient performance. At the time

Reinhardt pleaded guilty, she faced multiple felony drug charges. She had been

offered at least three plea deals by the state over a period of eight months. Just prior

to opening statements, the prosecutor had offered Reinhardt a second-degree

misdemeanor attempt charge, eligible for diversion. The trial court then had

indicated to Reinhardt that it would not accept such a deal once trial began.

Reinhardt again turned down the deal. At this point, according to Reinhardt, her

counsel became coercive, and she pleaded guilty. Counsel could have reasonably

believed that pleading guilty was the best strategy for Reinhardt to avoid prison.

This court will not second guess counsel’s trial strategy, and we presume that

counsel’s conduct fell within a wide range of competent assistance. State v.

Sweeting, 1st Dist. Hamilton No. C-120733,

; see State v.

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Davie,

,

,

, ¶ 7, quoting

(“Strickland charges us to ‘apply a heavy measure of deference to counsel’s

judgments[.]’ ”).

{¶17} In addition to coercion by counsel, Reinhardt argues that the trial

court’s participation in the plea-bargaining process, and the trial court’s bias against

her, coerced her into taking a plea deal. As to a judge’s participation in the plea-

bargaining process, the Ohio Supreme Court has cautioned that “the judge’s position

in the criminal justice system presents a great potential for coerced guilty pleas and

can easily compromise the impartial position a trial judge should assume.” State v.

Byrd,

,

(1980). Therefore, a defendant’s

plea is not voluntary where a judge’s participation in the plea process could lead the

defendant to believe that he could not have a fair trial or sentence. See State v.

Pippin, 1st Dist. Hamilton No. C-060929,

, citing Byrd; State v.

Sawyer,

,

,

(1st Dist.).

{¶18} The record does not support Reinhardt’s argument that the trial court

induced her to enter a guilty plea. Although the trial court requested that all of the

prior plea deals be on the record, the record does not indicate that the trial court had

been involved in those prior discussions. When the state offered Reinhardt yet

another deal of diversion just prior to opening statements, the trial court told

Reinhardt that it would not be inclined to accept such a deal once trial began and

that Reinhardt had one minute to make a decision. Despite the trial court’s

statements to her, however, Reinhardt declined to take that deal, negating her claim

of coercion.

{¶19} The remainder of Reinhardt’s allegations of coercion stem from

events that occurred after Reinhardt had agreed to plead guilty. Reinhardt relies on

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the trial court’s statement from the later hearing on her Crim.R. 32.1 motion to

withdraw her plea where the trial court stated it was a “participant in all of this.” She

further relies on the more lenient sentences received by her codefendants and the

trial court’s statements to her at the sentencing hearing, which occurred after the

plea had been entered. These postplea statements, as well as the other actions of

which Reinhardt complains, did not cause Reinhardt to plead guilty involuntarily.

{¶20} Finally, Reinhardt argues that the trial court promised her that she

would not serve jail time, but Reinhardt had to spend three days in jail awaiting her

electronic-monitoring device. Reinhardt argues that the trial court’s promised

sentence induced her to plead, and the breach of that promise resulted in an

involuntary plea. See State v. Bonnell, 12th Dist. Clermont No. CA2001-12-094,

, ¶ 18 (“[w]hen a trial court promises a certain sentence, the

promise becomes an inducement to enter a plea, and unless that sentence is given,

the plea is not voluntary.”).

{¶21} In Reinhardt’s case, the trial court imposed a sentence that did not

include jail time. Because of circumstances beyond the trial court’s knowledge or

control, Reinhardt unfortunately could not be fitted right away with an electronic-

monitoring device and had to await the time in jail. Therefore, Reinhardt’s argument

that the trial court did not impose a “promised” sentence is without merit.

{¶22} In conclusion, Reinhardt has failed to show that her counsel and the

trial court coerced her into entering her guilty plea. The trial court engaged

Reinhardt in a full and in-depth Crim.R. 11 colloquy in which Reinhardt agreed that

she had entered the plea by her own free will, and that she was pleading voluntarily.

Because Reinhardt’s Crim.R. 32.1 motion did not demonstrate that a manifest

injustice occurred, and Reinhardt’s counsel appeared at the hearing on the matter

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and submitted on the motion, the trial court did not abuse its discretion in denying

Reinhardt’s motion without an evidentiary hearing. See Dye, 1st Dist. Hamilton No.

C-120483,

.

{¶23} We overrule Reinhardt’s assignment of error, and we affirm the

judgment of the trial court denying her Crim.R. 32.1 motion.

Judgment affirmed.

DINKELACKER, P.J., and DEWINE, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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