STATE OF OHIO, Plаintiff-Appellee, - vs - GERALD F. ZIMMERMAN, Defendant-Appellant.
CASE NO. 2013-G-3146
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
March 24, 2014
[Cite as State v. Zimmerman, 2014-Ohio-1152.]
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 11C000120. Judgment: Affirmed.
Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Defendant-Appellant).
OPINION
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Gerald F. Zimmerman, appeals from the Judgment of the Geauga County Court of Common Plеas, denying his Motion to Withdraw Plea. The issue to be determined by this court is whether a trial court abuses its discretion in denying a motion to withdraw a guilty plea, without a hearing, when the defendant argues that his plea is involuntary becаuse a court of common pleas lacks jurisdiction in
{¶2} On September 16, 2011, Zimmerman was indicted by the Geauga County Grand Jury on twо counts of Operating a Vehicle While Under the Influence (OVI), felonies of the third degree, in violation of
{¶3} A Plea Agreement, signed by the State and defense counsel, was filed on October 31, 2011, under which Zimmerman would plead guilty to one count of OVI and Driving in Violation of a License Restriction, with the other two charges being dismissed.
{¶4} A joint change of plea and sentencing hearing was held on the same date. The court reviewed the potential penalties for the crimes and the rights Zimmerman would waive by pleading guilty. The court inquired whether Zimmerman understood the charges to which he was pleading. The court also asked whether counsel believed that Zimmerman‘s plea was knowingly and voluntarily entered, to which counsel responded affirmatively. The court accepted Zimmerman‘s plea of guilty to one count of OVI, in violation of
{¶5} On November 3, 2011, the trial court filed an Order and Judgment of Conviction, memorializing its acceptance of Zimmerman‘s plea and stating that the plea was given knowingly and voluntarily. For the OVI, the сourt sentenced Zimmerman to a prison term of three years, plus an additional mandatory term of 120 days, and ordered
{¶6} On March 18, 2013, Zimmerman filed a Motion to Withdraw Plea Pursuant to
{¶7} On April 2, 2013, Zimmerman filed a Memorandum in Support of Motion to Withdraw Guilty Plea, in which he maintained that “misdemeanors are in the jurisdiction of” inferior courts, apparently arguing that the Geauga County Court of Common Pleas did not have jurisdiction because one of the charges for which he was convicted was a misdemeanor. He also asserted that the court did not have jurisdiction since it failed “to determine the validity * * * of the law used in this case.”
{¶8} On April 8, 2013, the trial court issued a Judgment, denying Zimmerman‘s Motion to Withdraw Plea. The court held that it had jurisdiction tо hear Zimmerman‘s case, regardless of whether one of the charges was a misdemeanor. It also held that there was no basis for finding that any applicable law was unconstitutional.
{¶9} Zimmerman timely appeаls and raises the following assignment of error:
{¶10} “The trial court erred to the prejudice of the appellant by not holding a hearing to determine whether there was a reasonable basis for withdrawing his guilty plea.”
{¶11} “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
{¶12} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.” Smith at paragraph one of the syllаbus. “A motion made pursuant to
{¶13} Zimmerman argues that the trial court should have held a hearing on the Motion to Withdraw Plea, since he “twice asserted that his guilty plea was involuntary” and a hearing would have ensured that he “knew his rights” when he entered the plea.
{¶14} “While a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made before sentencing, the same is not true if the request is made after the trial court has already sentenced the defendant. [State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),] pаragraph one of the syllabus. In those situations where the trial court must consider a post-sentence motion to withdraw a guilty plea, a hearing is only required if
{¶15} Initially, we note that Zimmerman‘s Motion to Withdraw Plea was centered almost entirely upon his contention that the court of common pleаs lacked jurisdiction, since one of the offenses before it was a misdemeanor and could only be resolved in a municipal court. The trial court properly found no merit in this argument.
{¶16} Pursuant to
{¶17} Zimmerman‘s claim that the trial court lacked jurisdiction due to its failure to “determine the validity (the legality) of the law used in this case” was also meritless. Zimmerman pointed to no specific law that was improperly applied and provided no authority that a trial court is required to review the “validity” of any applicable law, sua sponte, in a criminal case. Since there was no legal basis for either of Zimmerman‘s claims regarding the alleged lack of jurisdiction, and no evidence would impact this holding, a hearing was unnecessary as to these issues.
{¶18} In Zimmerman‘s appellate brief, he contends that a hearing should have been held to determine whether his plea was voluntarily given. Zimmerman did not discuss this issue in his Motion to Withdraw Plea, except for a few references to his plea being “involuntary” due to the court‘s lack of jurisdiction. He pointed to absolutely nothing in the record or otherwise to show that his plea was involuntarily and made no argument in support of this issue. “When a defendant fails to raise a specific argument in a pоst-sentencing motion to withdraw a guilty plea, he waives that argument for purposes of appeal.” State v. Derricoatte, 11th Dist. Ashtabula No. 2012-A-0038, 2013-Ohio-3774, ¶ 15.
{¶20} Zimmerman‘s delay of over 16 months in filing the Motion to Withdraw Plеa is also “‘a factor adversely affecting the credibility of the movant and militating against the granting of the motion.‘” State v. Nicholas, 11th Dist. Portage No. 2009-P-0049, 2010-Ohio-1451, ¶ 17, citing Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph three of the syllabus.
{¶21} Since the record indicates that Zimmerman is not entitled to relief and he failed to submit any documentаtion or affidavits to demonstrate a manifest injustice, a hearing was not required on his Motion. We cannot find that the trial court abused its discretion in denying Zimmerman‘s Motion to Withdraw Plea.
{¶22} The sole assignment of error is without merit.
CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.