CITY OF RICHMOND HEIGHTS v. JOHN McELLEN
No. 99281
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 18, 2013
[Cite as Richmond Hts. v. McEllen, 2013-Ohio-3151.]
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Lyndhurst Municipal Court Case No. 00 CRB 00325
BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: July 18, 2013
Richard H. Drucker
700 West St. Clair Avenue
Suite 214
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Jonathan D. Greenberg
Prosecuting Attorney
City of Richmond Heights
Walter & Haverfield, P.L.L.
1301 East Ninth Street
Suite 3500
Cleveland, Ohio 44114-1821
{1} Defendant-appellant, John McEllen, appeals from the trial court‘s judgment denying his pоstsentence motion to withdraw his plea. Finding no merit to the appeal, we affirm.
I. Factual and Procedural History
{2} On May 9, 2000, appellant entered a plea of guilty to a charge of domestic violence, a first-degree misdemeanor, in the Lyndhurst Municipal Court, Cuyahoga County, Ohio. Prior to entering his guilty plea, appellant waived his right to an attorney. On the same day, the triаl court found appellant guilty and sentenced him to ten days in jail and a $250 fine.
{3} On November 9, 2012, appellant filed a motion to vacate his guilty plea. On November 13, 2012, the trial сourt denied appellant‘s motion without a hearing.
{4} Appellant now brings this timely appeal, raising one assignment of error for review:
I. The trial court erred, and abused its disсretion and caused [appellant] a manifest injustice when it accepted an uncounseled guilty plea while he was intoxicated, which plea has summarily barrеd him from employment, then denied [appellant‘s] motion to vacate guilty plea without granting an oral hearing to consider the case‘s merits, and before even rеceiving the prosecution‘s brief in response.
A. Crim.R. 32.1
{5} In his sole assignment of error, appellant argues that the trial court abused its discretion when it denied his motion to withdraw his guilty plea pursuant to
{6}
{7} Thus, pursuant to
{8} A postsentence motion to withdraw a guilty plea is allowable only under extraordinary circumstances and is left up to the discretion of the trial court. Smith at 264. Accordingly, we review the trial court‘s decision on a motion to withdraw a guilty
{9} Similarly, the trial court‘s decision to deny the motion without a hearing is granted deference. State v. Woods, 8th Dist. No. 84993, 2005-Ohio-3425. “Deferencе especially attends in a case in which the record demonstrates the court conducted the original plea hearing and was familiar with the facts of the case. In such circumstances, the trial court is in the best position to assess the credibility of the movant‘s assertions.” (Citations omitted.) State v. Atkinson, 8th Dist. No. 85773, 2005-Ohio-5348, 13-14.
{10} In the case at hand, appellant clаims that as a result of his May 9, 2000 domestic violence conviction, he has endured adverse employment consequences that he could not have reasonably foreseen. Furthermore, appellant contends that he was under the influence of drugs and alcohol at the time he entered his plea. Thus, he submits that “when an uncounseled plea is accepted from an intoxicated individual, and that plea effectively prevents that individual from securing employment, a trial court‘s failure to vacate the plea constitutes a manifest injustice.”
{11} On review, we find no abuse of discretion in the trial court‘s denial of appellant‘s motion without a hearing. As an initial matter, we find no manifest injustice arising from the fact that appellant failed to appreciate the potential consequences his conviction may have on his future employment. See Xenia v. Jones, 2d Dist. No. 07-CA-104, 2008-Ohio-4733 (no manifest injustice where defendant failed to appreciate consequences of plea on teaching license); Seе also State v. Perri, 11th Dist. No. 2006-P-0018, 2006-Ohio-5185 (trial court not required to ensure defendant aware of possible consequences of plea on future employment in Air Force). Appellant‘s argumеnt amounts to an error in judgment, which, unfortunately for appellant, is not a sufficient basis for granting a
{12} Furthermore, appellant‘s lengthy delay in seeking to withdrаw his guilty plea militates against his claim that he was intoxicated at the time of his plea hearing. Although
{13} Here, the credibility of appellant‘s claim that he was intoxicated at the time he entered his plea is strongly called into question by the fact that he did not immediately seek to withdraw his guilty plea once the alleged effects of the drugs and alcohоl diminished. Instead, he waited over 12 years before seeking relief from the claimed error, and he has made no attempt to explain the undue delay in pursuing his claim.
{14} Additionally, the record supports the state‘s position that appellant failed to submit evidentiary documents sufficient to demonstrate a manifest injustice. Here, appеllant relies solely on his affidavit attached to his motion to withdraw his plea, in which he avers that “he was experiencing significant problems with drug and alcohol
B. Crim.R. 11(D)
{15} Alternatively, appellant argues that the trial court abused its discretion when it failed to vacate his plea because, due to his intoxication, he did not knowingly and intelligently waive his right to counsel as guaranteed by the
{16}
In misdemeanor cases involving serious offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and informing the defendant of the effeсt of the pleas of guilty, no contest, and not guilty and determining that the defendant is making the plea voluntarily. Where the defendant is unrepresented by counsel the court shall nоt accept a plea of guilty or no contest unless the defendant, after being readvised that he or she has the right to be represented by retained counsel, or pursuant to
Crim.R. 44 by appointed counsel, waives this right.
{17} Initially, we note that appellant failed to raise this issue in his
{19} Based on the foregoing, the trial court did not abuse its discretion in denying appellant‘s
{20} Appellant‘s sole assignment of error is overruled.
{21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a spеcial mandate issue out of this court directing the Lyndhurst Municipal Court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending apрeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR