[Cite as State v. Long,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 15CA93 GUY A. LONG : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2011CR147

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 22, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL M. ROGERS GUY A. LONG PRO SE Assistant Prosecutor #604650 38 S. Park Street Richland Correctional Institution Mansfield, OH 44902 Box 8107 1001 Olivesburg Road Mansfield, OH 44905 [Cite as State v. Long,

.]

Gwin, J.

{¶1} Appellant appeals the October 19, 2015 judgment entry of the Richland

County Court of Common Pleas overruling his motion to withdraw plea. Appellee is the

State of Ohio.

Facts & Procedural History

{¶2} On March 11, 2011, the Richland County Grand Jury indicted appellant Guy

A. Long, Sr., on two counts of possession of drugs in violation of R.C. 2925.11, one count

of having a weapon under disability in violation of R.C. 2923.13, two counts of receiving

stolen property in violation of R.C. 2913.51, and one count of safecracking in violation of

R.C. 2911.31. These charges arose from a search of appellant’s residence pursuant to a

no-knock search warrant. Subsequently, appellant was charged with one count of aiding

and abetting tampering with evidence in violation of R.C. 2921.12.

{¶3} On May 18, 2011, appellant filed a motion to suppress, challenging the

search warrant. A hearing was held on June 17, 2011. The trial court denied the motion.

On September 13, 2011, appellant pled no contest to all the counts except for one of the

receiving stolen property counts, which was dismissed. By sentencing entry filed the same

date, the trial court sentenced appellant to an aggregate prison term of seven years.

{¶4} Appellant filed a direct appeal and argued his trial counsel was ineffective

in failing to attack the sufficiency of the affidavit for the search warrant. Appellant argued

the affidavit was based on unsubstantiated anonymous tips that were not corroborated by

any other evidence. In State v. Long, 5th Dist. Richland No. 11CA95,

,

this Court affirmed the judgment of the trial court. Richland County, Case No. 15CA93 3

{¶5} On September 25, 2012, appellant, with counsel, timely filed an application

to reopen his appeal under App.R. 26(B). Appellant, pro se, filed a second application to

reopen his appeal shortly after his attorney filed the original application. In his pro se

application, appellant argued the plea bargain was not honored and the gun at issue was

not operable. This Court denied those motions.

{¶6} On February 28, 2012, appellant filed a motion to sustain due process rights

and requested the trial court grant a hearing suppressing all evidence from the

unreasonable search and seizure of his home and property. The trial court denied the

motion. On March 6, 2012, appellant filed a motion to withdraw plea. The trial court

overruled his motion. Appellant filed another motion to withdraw plea on May 23, 2012,

which the trial court denied on June 12, 2012. Appellant filed a motion for judgment ruling

withdrawal of plea pursuant to Rule 32 on November 6, 2012; the trial court denied the

motion on December 5, 2012.

{¶7} On January 28, 2013, appellant filed a motion to sustain due process rights.

The trial court overruled his motion on February 4, 2013. On February 8, 2013, appellant

filed a motion to sustain due process rights which the trial court denied on March 5, 2013.

On March 18, 2013, appellant filed a motion for habeas corpus and on April 5, 2013,

appellant filed a motion to withdraw plea. The trial court overruled these motions on May

9, 2013.

{¶8} On July 17, 2013, appellant filed a motion to grant the February 28, 2012

motion to sustain due process rights. The trial court overruled appellant’s motion by

judgment entry on July 24, 2013 because his motion in 2012 had already been overruled. Richland County, Case No. 15CA93 4

Appellant appealed the trial court’s decision to this Court. In State v. Long, 5th Dist.

Richland No. 13CA74,

, this Court affirmed the trial court’s decision.

{¶9} On September 8, 2014, appellant filed a motion for breach of contract and

on January 2, 2015, appellant filed a second motion for breach of contract. The trial court

overruled appellant’s motions on January 6, 2015. Appellant appealed the trial court’s

denial to this Court. In State v. Long, 5th District Richland No. 15CA3,

,

we affirmed the trial court’s decision.

{¶10} On June 4, 2015, appellant filed a motion for resentencing. The trial court

overruled appellant’s motion on June 16, 2015. On July 1, 2015, appellant filed another

motion for resentencing which the trial court overruled on July 20, 2015.

{¶11} On October 9, 2015, appellant filed another motion to withdraw plea

pursuant to Criminal Rule 32. Appellant sought to withdraw his plea based upon an alleged

false statement provided by a police officer to the grand jury. Appellant alleged a written

statement by Sergeant Carroll went to the grand jury stating drugs were found on appellant

when he patted him down; however, the inventory sheet and photos show the crack

cocaine was found in the basement. Appellant did not attach the written statement to the

motion.

{¶12} On October 19, 2015, the trial court overruled appellant’s motion to

withdraw plea. The trial court found it did not have jurisdiction to rule upon any motion to

withdraw plea under Criminal Rule 32 since appellant’s conviction had been upheld on

appeal in appellant’s three previous appeals.

{¶13} Appellant appeals the October 19, 2015 judgment entry of the Richland

County Court of Common Pleas and assigns the following as error: Richland County, Case No. 15CA93 5

{¶14} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

DISMISS AND WITHDRAW PLEA PURSUANT TO CRIMINAL RULE 32.1.

{¶15} “II. THE WRITTEN STATEMENT GIVEN TO THE GRAND JURY BY SGT.

KEN CARROLL IS UNTRUE AND VERY MISLEADING, HAVING THE GRAND JURY

WRONGFULLY INDICT DEFENDANT.”

I. & II.

{¶16} In both his first and second assignments of error, appellant argues the trial

court erred in overruling his motion to withdraw plea pursuant to Criminal Rule 32.1

{¶17} “Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and

determine a motion to withdraw guilty plea subsequent to an appeal and an affirmance by

an appellate court.” Special Prosecutors v. Judges, Belmont County Court of Common

Pleas,

,

(1978); State v. Ketterer,

,

,

. The trial court does “retain jurisdiction over issues not

inconsistent with that of the appellate court * * * such as the collateral issues” like contempt,

the appointment of a receiver, and an injunction.

While Criminal Rule 32.1 “apparently

enlarges the power of the trial court over its judgments without respect to the running of

the court term, it does not confer upon the trial court the power to vacate a judgment which

has been affirmed by the appellate court, for this action would affect the decision of the

reviewing court, which is not within the power of the trial court to do.”

{¶18} In this case, appellant’s direct appeal concluded with an affirmance of the

trial court’s entry and appellant’s conviction based upon his no contest plea. This Court

further upheld appellant’s conviction and sentence in two subsequent cases. Accordingly,

the trial court’s granting of appellant’s motion to withdraw plea would be inconsistent with Richland County, Case No. 15CA93 6

this Court affirming the trial court’s conviction premised upon his no contest plea. See

State v. Fletcher, 5th Dist. Licking No. 2009-CA-0055,

. Thus, the trial

court did not err in finding it was without jurisdiction to vacate appellant’s plea.

{¶19} Additionally, even if we were to consider appellant’s argument, we find the

trial court did not err in denying his motion to withdraw guilty plea.

{¶20} Criminal Rule 32.1 governs the withdrawal of a guilty plea and states that

“[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 may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea.”

{¶21} The accused has the burden of showing a manifest injustice warranting the

withdrawal of a guilty plea. State v. Smith,

,

(1977).

The Ohio Supreme Court has stated a post-sentence withdrawal motion is allowable only

in extraordinary circumstances.

“A manifest injustice comprehends a fundamental flaw

in the path of justice so extraordinary that the defendant could not have sought redress

from the resulting prejudice through any form of application reasonably available to him.”

The “manifest injustice” standard is “aimed at cases where a defendant pleads guilty

without knowing what his sentence will be, finds out that his sentence is worse than he

had hoped and expected, and then seeks to vacate his plea.”

{¶22} We review a trial court’s denial of a motion to withdraw guilty plea under an

abuse of discretion standard of review. State v. Carabello,

,

(1985). In order to find an abuse of 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). “A motion Richland County, Case No. 15CA93 7

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.” State v. Smith,

,

(1977).

{¶23} In this case, we find appellant has failed to demonstrate, nor does the record

reflect, a manifest injustice. Appellant failed to provide the trial court or this court with the

alleged statement by Sergeant Carroll that he claims is at odds with the inventory and

exhibit list. Further, though appellant alleges the statement was kept from him by the “for

counsel only designation,” the order designating certain pieces of evidence “for counsel

only” specifically provides that defense counsel may orally communicate the contents of

all the material to the defendant. Richland County, Case No. 15CA93 8

{¶24} Based on the foregoing, we overrule appellant’s assignments of error. The

October 19, 2015 judgment entry of the Richland County Court of Common Pleas is

affirmed.

By Gwin, J.,

Farmer, P.J., and

Wise, J., concur