[Cite as State v. Hill,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2015 CA 00036 CHRISTOPHER HILL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 00778

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 17, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO CHRISTOPHER HILL PROSECUTING ATTORNEY PRO SE KATHLEEN O. TATARSKY LaECI ASSISTANT PROSECUTOR Post Office Box 8000 110 Central Plaza South, Suite 510 Conneaut, Ohio 44030 Canton, Ohio 44702-1413 Stark County, Case No. 2015 CA 00036 2

Wise, J.

{¶1}. Appellant Christopher Hill appeals the decision of the Court of Common

Pleas, Stark County, which denied his post-sentence motion to withdraw a guilty plea.

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2}. On or about May 9, 2014, appellant physically assaulted and threatened

Marcella Catlett, the mother of appellant's daughter. At the time, appellant was on

parole and was under a prohibition from possessing a weapon. Furthermore, after

appellant was arrested, he contacted the victim and told her not to show up for the

grand jury proceedings or any other court appearances.

{¶3}. On June 25, 2014, appellant was indicted on one count of felonious

assault with a repeat violent offender specification (R.C. 2903.11(A)(2) and R.C.

2941.149), a felony of the second degree, having a weapon under a disability (R.C.

2923.13(A)(2)), a felony of the third degree, domestic violence (R.C. 2919.25(A)), a

misdemeanor of the first degree, and intimidation of a witness or victim (R.C.

2921.04(A)), a misdemeanor of the first degree.

{¶4}. On July 29, 2014, appellant, with the assistance of counsel, entered into a

negotiated guilty plea to the latter three charges, with the State dismissing the felonious

assault charge and RVO specification.

{¶5}. Appellant was thereupon sentenced to twenty-four months in prison on the

count of having a weapon under disability, as well as six months concurrent on each of

the counts of domestic violence and intimidation of a victim or witness. A plea and

sentencing judgment entry was issued on August 14, 2014. Stark County, Case No. 2015 CA 00036 3

{¶6}. On or about August 27, 2014, appellant filed a direct appeal to this Court.

However, the appeal was subsequently dismissed by the Court for want of prosecution.

{¶7}. In addition, on January 9, 2015, appellant filed a delayed notice of appeal.

This Court denied leave for same on February 17, 2015.

{¶8}. In the meantime, on September 8, 2014, appellant filed a pro se motion to

withdraw his guilty plea in the trial court. The State filed a response on September 19,

2014. An amended motion was filed by appellant on December 9, 2014. The State filed

a response to the amended motion on December 17, 2014.1

{¶9}. The trial court, on February 24, 2015, denied appellant's attempt to

withdraw his plea.

{¶10}. On March 6, 2015, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

{¶11}. “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

OVERRULED/DENIED APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA

BASED ON HIS DEMONSTRATION OF MANIFEST INJUSTICE UNDER CRIM.R.

32.1, AND PLEA COUNSEL'S INEFFECTIVENESS.”

I.

{¶12}. In his sole Assignment of Error, appellant contends the trial court erred in

denying his post-sentence motion to withdraw his guilty plea. We disagree.

{¶13}. Crim.R. 32.1 states 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

1 Appellant also filed a petition for post-conviction relief, the result of which is the subject of Stark App.No. 2015CA00041. Stark County, Case No. 2015 CA 00036 4

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

defendant to withdraw his or her plea."

{¶14}. Our 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. State v. Caraballo (1985),

,

. In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983),

,

. “ *** [T]he good faith, credibility and weight of the movant's

assertions in support of the [Crim.R. 32.1] motion are matters to be resolved by [the

trial] court.” State v. Smith (1977),

,

, paragraph two

of the syllabus.

{¶15}. Ineffective assistance of counsel can form the basis for a claim of manifest

injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. See State v.

Dalton,

, 2003–Ohio–3813, ¶ 18. However, under the

“manifest injustice” standard, a post-sentence withdrawal motion is allowable only in

extraordinary cases. State v. Aleshire, Licking App.No. 09–CA–132, 2010–Ohio–2566,

¶ 60, citing

. Furthermore, “ * * * if a plea of guilty could be retracted

with ease after sentence, the accused might be encouraged to plead guilty to test the

weight of potential punishment, and withdraw the plea if the sentence were

unexpectedly severe. * * * ” State v. Peterseim (1980),

,

, quoting Kadwell v. United States (C.A.9, 1963),

.

{¶16}. In the case sub judice, appellant now contends he was innocent of the

charges against him and "reluctantly" pled guilty upon the advice of his trial counsel. Stark County, Case No. 2015 CA 00036 5

See Appellant's Brief at 4. Focusing on the weapons under disability conviction, he

asserts he did not have a gun on his person during the events in question and did not

use a gun to threaten the victim. He further maintains the investigatory documents in the

case would show that the victim accused him of threatening her or her property with a

hammer, not a firearm, and then asking her about the whereabouts of his gun. He also

provided the trial court with an unverified photocopy of a police report indicating no

fingerprints were found on the gun taken at the scene, as well as a copy of an affidavit

dated June 20, 2014, purportedly from the victim, in which she indicates that she was

intoxicated during the events of May 9, 2014 and could not recollect what happened. He

urges that his trial counsel failed to properly investigate these matters.

{¶17}. A Crim.R. 32.1 motion is not a challenge to the validity of a conviction or

sentence, and instead only focuses on the plea. See State v. Bush,

,

, 2002–Ohio–3993, ¶ 13. As the State aptly responds in its appellee's

brief, appellant's trial counsel in this instance successfully negotiated a dismissal of the

most serious count against appellant, a second-degree felonious assault, in exchange

for an aggregate term of two years in prison on the remaining counts. In State v.

Pepper, 5th Dist. Ashland No.

,

, this Court emphasized: "In

the review of an attempt to withdraw any such negotiated plea after the fact, we must

weigh any imperfections in the process against the possibility that the defendant is

avoiding a much harsher result by resolving the case. We also bear in mind that the trial

court is under a duty pursuant to Crim.R.11 to ensure that the plea comports with

constitutional standards." Id. at ¶ 40, citing State v. Stowers, 8th Dist. Cuyahoga No.

48572,

(additional citations omitted). Stark County, Case No. 2015 CA 00036 6

{¶18}. Upon review of the entirety of appellant's claims in support of his motion to

withdraw plea, we are unpersuaded the trial court abused its discretion in declining to

find a manifest injustice warranting the extraordinary step of negating appellant's plea,

and we further find the trial court did not err or abuse its discretion in denying appellant's

motion to withdraw plea without conducting an evidentiary hearing.

{¶19}. Appellant's sole Assignment of Error is overruled.

{¶20}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

JWW/d 0730