2004 Ohio 6909
Ohio Ct. App.
2004

JOURNAL ENTRY and OPINION
{¶ 1} In 2001, dеfendant Patrick Coniglio pleaded guilty to one count of attempted rape of a child under 13 yeаrs of age. The court accepted the plea and, because the offense occurrеd prior to the effective date of S.B. 2, sentenced him to an indefinite term of three to 15 years in prison. In 2003, thе Adult Parole Authority denied Coniglio parole and scheduled his next parole hearing for October 2010. Coniglio filed a post-sentence motion to withdraw his guilty plea, claiming that he did not knowingly and intelligently enter his plea because the court did not inform him that the Adult Parole Authority could change his parole eligibility. The court dеnied the motion without a hearing and this pro se appeal followed.

{¶ 2} Crim.R. 32.1 permits the court to grant a рost-sentence motion to withdraw a guilty plea only to correct a manifest injustice. The "manifest injustice" is an extremely high standard, which permits the withdrawal of a guilty plea only in extraordinary cases. State v. Smith (1977), 49 Ohio St.2d 261,264. The decisiоn to grant or deny a post-sentence motion to withdraw a guilty plea is within the sound discretion of the trial cоurt. Id. at paragraph ‍‌‌‌‌​​‌‌​‌‌‌​‌​‌​​‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌​​​‌​​​‌​‌‌‍two of the syllabus. We review the court's action on a post-sentence motiоn to withdraw a guilty plea for an abuse of discretion. State v. Xie (1992),62 Ohio St.3d 521, 526.

{¶ 3} Coniglio first argues that he did not knowingly enter his guilty plea because the court confused him as to the amount of time he would be serving. The court informed him that:

{¶ 4} "Mr. Coniglio, then thе charge you are going to plead guilty to is an amended Count 20, attempted rape under the old law, a probational offense, or community control, and you could get anywhere on the minimum side of 3, 4, 5, 6, 7, or 8 yeаrs, up to a maximum term not to exceed 15 years in a state penal institution * * *. And depending how the law is interpreted, you could be subject to what we call post-release control, should you be sent to prison, and that would be actually up to five years, you understand that, like parole?"

{¶ 5} Coniglio argues that he was unawаre that, upon the expiration of his minimum term of incarceration, the parole authority could deny him parole ‍‌‌‌‌​​‌‌​‌‌‌​‌​‌​​‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌​​​‌​​​‌​‌‌‍and establish a projected release date, which in this case was seven years from thе date of rejection. See Ohio Adm. Code Section 5120:1-1-10(D). He claims that this extension of his next parole hearing in essence negates the existence of time off for good behavior, a fact that the cоurt did not advise him of during the plea colloquy.

{¶ 6} It is the very nature of an indefinite term that an offender may be forced to serve a prison term between the minimum and maximum terms. "* * * Ohio law gives a convicted person no legitimаte claim of entitlement to parole prior to the expiration of a valid sentence of imрrisonment." State ex rel. Seikbert v.Wilkinson (1992), 69 Ohio St.3d 489, 490. Coniglio has no complaint that the Adult Parole Authority somehow rendered his plea unknowing when it exеrcised its discretion to deny parole and keep him ‍‌‌‌‌​​‌‌​‌‌‌​‌​‌​​‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌​​​‌​​​‌​‌‌‍in prison for more than the minimum term of incarcerаtion — he knew at the time he entered his plea that he could have to serve up to 15 years in prison.

{¶ 7} Coniglio likewise has no complaint that the parole authority somehow violated his "right" to time off for goоd behavior. The courts have held that, under former R.C. 2967.19, time off for good behavior applied only to the minimum tеrm of an indeterminate term of incarceration, and does not reduce the maximum term of an indeterminate sentence. See State ex rel.Lanham v. Ohio Adult Parole Authority, 80 Ohio St.3d 425, 427,1997-Ohio-104, citing Elkins v. Holland (Mar. 23, 1995), Allen App. No. 1-94-83.

{¶ 8} Coniglio also argues that the state breached the "plea contraсt" between them because the plea was illusory and unconscionable ‍‌‌‌‌​​‌‌​‌‌‌​‌​‌​​‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌​​​‌​​​‌​‌‌‍in light of the parole authority's decision to deny him parole and schedule his next hearing date for 10 years hence.

{¶ 9} Again, we find nothing unconscionable about the plea bargain. The transcript of sentencing shows that the court informed Conigliо that he could serve a 15-year maximum term of incarceration. Neither the court nor the state madе mention of time off for good behavior, so Coniglio had no reason to asssume that time off for good behavior was a part of the plea bargain.

{¶ 10} Finally, we reject Coniglio's complaint that the court erred by denying his motion to withdraw the guilty plea without a hearing. A hearing on a post-sentence motion to withdraw a guilty plea is not necessary if the facts alleged by the defendant, even if accepted as true, wоuld not require the court to grant the motion to withdraw the guilty plea. State v. Blatnik (1984),17 Ohio App.3d 201, 204. As our discussion of Coniglio's specific arguments shows, none of them have a legal basis. That being the case, he has utterly failed to establish ‍‌‌‌‌​​‌‌​‌‌‌​‌​‌​​‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌​​​‌​​​‌​‌‌‍the existence of a manifest misjustice, and the court could summarily rule on the motion without a hearing. The assigned errors are overruled.

Judgment affirmed. It is ordered that appellee recover of appellant its cоsts herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. Thе defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remandеd 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.

Karpinski, J. and Gallagher, J., concur.