STATE OF OHIO, Plaintiff-Appellee -vs- MARK A. WILLIAMS, Defendant-Appellant
Case No. 2013 AP 04 0020
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 26, 2014
[Cite as State v. Williams, 2014-Ohio-5727.]
Hon. William B. Hoffman, P. J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. CRB1100413; JUDGMENT: Affirmed
For Plaintiff-Appellee
RONALD L. COLLINS PROSECUTING ATTORNEY 150 East High Avenue New Philadelphia, Ohio 44663
For Defendant-Appellant
JACOB WILL 116 Cleveland Avenue NW Suite 808 Canton, Ohio 44702
Wise, J.
{¶1} Appellant Mark Williams appeals the decision of the New Philadelphia Municipal Court denying his motion to vacate his plea of guilty.
{¶2} Appellee is the State of Ohio. No Appellee‘s brief was filed in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} On March 28, 2011, Appellant Mark Williams was charged with one count of Violating a Protection Order, in violation of
{¶4} On July 24, 2012, Appellant entered a plea of guilty. The trial court sentenced Appellant to 180 days in jail, suspended, forty (40) hours of community service, 18 months of community control sanctions and court costs.
{¶5} On September 7, 2012, Appellant filed a motion to withdraw his guilty plea.
{¶6} On March 18, 2013, the trial court held a hearing on Appellant‘s motion.
{¶7} By Judgment Entry filed April 1, 2013, the trial court denied Appellant‘s motion.
{¶8} It is from this denial Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶9} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO VACATE HIS GUILTY PLEA.”
{¶10} In his sole Assignment of Error, Appellant claims that the trial court erred in denying his motion to vacate his guilty plea. We disagree.
{¶11} In the instant case, Appellant did not move the court to allow him to withdraw his guilty plea until approximately six (6) weeks after sentencing.
{¶12}
{¶13} 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 State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. We have previously looked to the decision of the Second District Court of Appeals in Xenia v. Jones, which defined a manifest injustice as “a clear or openly unjust act” that involves “extraordinary circumstances.” State v. Weaver, 5th Dist. Holmes No. 11 CA023, 2012–Ohio–2788, at ¶ 3, citing Xenia v. Jones, 2nd Dist. Greene No. 07–CA104, 2008–Ohio–4733, ¶ 6. “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.” State v. Shupp, 2nd Dist. Clark No. 06CA62, 2007–Ohio–4896, at ¶ 6. A defendant seeking to withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attached to the motion. State v. Hummell, 5th Dist. Richland No. 12CA64, 2013–Ohio–2422 at ¶ 13, citing State v. Orris, 10th Dist. Franklin No. 07AP390, 2007–Ohio–6499.
{¶14} The length of passage of time between the entry of a plea and a defendant‘s filing of a
{¶15} Appellate review of a trial court‘s decision under
{¶16} In support of its arguments, appellant cites to the case of Fish, supra, paragraph two of the syllabus, wherein the First District set forth factors to consider in determining whether to grant a
{¶17} A motion to withdraw a plea of no contest, made prior to the imposition of sentence, should be freely granted in the exercise of the trial court‘s discretion; one extremely important factor bearing on the exercise of the court‘s discretion is whether withdrawal will result in prejudice to the prosecution, but there are others to be weighed
{¶18} We note the Fish court involved a
{¶19} Appellant herein argues that he was denied the effective assistance of counsel in this matter because his attorney failed to attend a scheduled pre-trial due to illness and never requested that another pretrial be set.
{¶20} In its April 1, 2013, Judgment Entry denying Appellant‘s motion to withdraw his guilty plea, the trial court found the following: Appellant had three different attorneys during the pendency of the lower court case: a public defender, whom he orally asked the trial court to remove at the final pretrial. The trial court granted Appellant additional time to hire private counsel. Attorney Stephan was retained but then asked to be removed, which was denied by the trial court. Attorney Gaffney was then hired and substituted for Attorney Stephan. Attorney Gaffney entered his appearance on April 30, 2012, the date the jury trial was originally scheduled. The jury trial date was converted to a status conference. Settlement discussions took place, but the matter was not resolved so a new jury trial was set for July 10, 2012. Atty. Gaffney
{¶21} The trial court further found that prior to accepting Appellant‘s change of plea, the court conducted an extensive colloquy with Appellant on the record pursuant to
{¶22} While Appellant did file a transcript of the hearing on his motion to withdraw, Appellant has not provided this Court with a transcript of the change of plea and sentencing hearing. In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384, the Supreme Court of Ohio held the following: “[t]he duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This principle is recognized in
{¶24} Further, under the doctrine of “invited error,” it is well settled that “a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.” State ex rel. Smith v. O‘Connor (1995), 71 Ohio St.3d 660, 663, 646 N.E.2d 1115, citing State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950. See, also, Lester v. Leuck (1943), 142 Ohio St. 91, 50 N.E.2d 145, paragraph one of the syllabus. As the Ohio Supreme Court has stated:
{¶25} “The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible.” Lester at 92-93, 50 N.E.2d 145, quoting State v. Kollar (1915), 142 Ohio St. 89, 91, 49 N.E.2d 952; Walker v. State, Stark App. No. 2007CA00037, 2007–Ohio–5262 at ¶ 48-52.
{¶27} We find that Appellant has failed to point to anything in the record to support his claim of ineffective assistance of counsel or his claim that he did not understand the plea proceedings.
{¶28} Upon review of the entirety of Appellant‘s claims in support of his motion to withdraw plea, we are unpersuaded the trial court in the case sub judice abused its discretion in declining to find a manifest injustice warranting the extraordinary step of negating Appellant‘s plea.
{¶29} For the foregoing reasons, the judgment of the New Philadelphia Municipal Court, Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Gwin, J., concur.
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