State v. Smith, Case No. 2010-CA-00335

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin
PartiesSTATE OF OHIO Plaintiff-Appellee v. CORY J. SMITH Defendant-Appellant
Docket NumberCase No. 2010-CA-00335
Decision Date27 June 2011


Hon. W. Scott Gwin, P.J.

Hon. John W. Wise, J.

Hon. Patricia A. Delaney, J.


CHARACTER OF PROCEEDING: Criminal appeal from the Massillon Municipal Court, Case No. 2007CRB104

JUDGMENT: Affirmed


For Plaintiff-Appellee




One Duncan Plaza

For Defendant-Appellant


Gwin, P.J.

{¶1} Appellant Corey J. Smith appeals the November 10, 2010 decision from the Massillon Municipal Court which denied his post-sentence motion to withdraw his no contest plea. The appellee is the State of Ohio.


{¶2} On January 26, 2007 appellant was arrested on a warrant issued January 12, 2007 charging him with one count of Assault in violation of R.C. 2903.13.

{¶3} Appellant appeared in the Massillon Municipal Court, entered a plea of Not Guilty to the charge at his arraignment and his case was set for a pre-trial conference. On March 6, 2007 he changed his plea to No Contest, was found Guilty and was sentenced by the trial court. A Notice of Appeal of his conviction was not filed at that time. On September 26, 2007 retained Counsel for appellant filed a motion for termination of probation, which was granted by the trial court.

{¶4} On September 3, 2010 appellant filed a motion to withdraw his plea after sentencing, pursuant to Criminal Rule 32.1, with a memorandum in support and requested a hearing on his motion. The trial court did hold a hearing on the motion on October 20, 2010 and subsequently denied his motion on November 10, 2010.

{¶5} It is from the trial court's November 10, 2010 denial of appellant's motion to withdraw his plea that appellant has timely appealed raising as his sole assignment of error:




{¶7} In his sole assignment of error appellant maintains that the trial court erred in refusing to allow appellant to withdraw his no contest plea. Specifically, appellant contends that he was denied his constitutional and statutory rights when he originally entered his plea in 2007. In particular he maintains that he was not afforded his constitutional right to counsel. He further urges that he was not properly advised of the effect of his plea as provided in Criminal Rule 11.

{¶8} A. Waiver.

{¶9} In the case at bar, appellant was arraigned on January 26, 2007. At that time a pre-trial conference was set for February 13, 2007. On February 13, 2007, the court continued the pre-trial conference at the appellant's request to March 6, 2007. The court's entry advised the appellant to contact the Public Defender's Office on that day if he needed an attorney. Appellant changed his plea on March 6, 2007. Appellant neither appealed the trial court's finding of guilt upon the acceptance of his no contest plea, nor did appellant file a motion to withdraw his plea. Rather, on September 27, 2007 appellant, through retained counsel, filed a motion for termination of probation, which was granted.

{¶10} In appellant's motion to withdraw his plea filed in the trial court September 3, 2010, appellant argued, "this post-sentence request is premised upon the potential relief that the Defendant cannot avail himself of as ORC section 2953.36 is currently written. Specifically, that statute allows for expungement of misdemeanor assaults ofthe first degree, but prevents the expungement of the same offense if a prior offense has been committed..." (Defendant's Motion to Withdraw Plea, filed September 3, 2010 at 3).

{¶11} Appellant's motion did not allege that he was denied his right to appointed counsel, or that he did not waive his right to appointment of counsel.2 Appellant's motion further failed to allege that the trial court did not implement the mandatory rigors of Criminal Rule 19 or that the trial court failed to conduct a proper Crim. R. 11 colloquy before accepting his plea.

{¶12} "The general rule is that 'an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.' State v. Childs (1968), 14 Ohio St. 2d 56 , 236 N.E. 2d 545, paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471 , 166 N.E.2d 379, paragraph one of the syllabus; State v. Lancaster (1971), 25 Ohio St.2d 83 , 267 N.E.2d 291, paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117 , 364 N.E.2d 1364. Likewise, '[c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time.' State v. Childs, supra, 14 Ohio St. 2d at 62 , 236 N.E. 2d 545, citing State v. Davis (1964), 1 Ohio St.2d 28 , 203 N.E.2d 357; State, ex rel. Specht, v. Bd. of Edn. (1981), 66 Ohio St.2d 178, 182 , 420 N.E.2d 1004, citing Clarington v. Althar (1930), 122 Ohio St. 608, 174 N.E. 251, and Toledo v. Gfell (1958), 107 Ohio App. 93,95 , 156 N.E.2d 752. [Footnote omitted.] See also, State v. Chandler, 157 Ohio App.3d 72, 813 N.E.2d 65, 2004-Ohio-3436 at ¶ 72; State v. Hughett, Delaware App. No. 04 CAA 06051, 2004-Ohio-6207 at ¶58.

{¶13} As the United States Supreme Court recently observed in Puckett v. United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, "If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; 'anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.'" (Citation omitted).

{¶14} "[A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus (May 24, 2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks and citations omitted).

{¶15} The defendant bears the burden of demonstrating that a plain error affected his substantial rights. United States v. Olano (1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even if the defendant satisfies this burden, an appellate court has discretion to disregard theerror. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

{¶16} The Supreme Court has repeatedly admonished that this exception to the general rule is to be invoked reluctantly. "Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus. See, also, State v. Thompson (1987), 33 Ohio St.3d 1, 10, 528 N.E.2d 542; State v. Williford (1990), 49 Ohio St.3d 247, 253, 551 N.E.2d 1279 (Resnick, J., dissenting). Appellant has not raised the issue of plain error in his assignment of error.

{¶17} In the case at bar, the only issue raised in his written motion and at the hearing on appellant's motion to withdraw the plea that he had entered three years previously was whether or not appellant was denied a right to have counsel appointed. Accordingly, because appellant did not raise the other claims he now asserts on appeal in his motion, the state was not placed on notice that it would be required to present evidence on any other issue at the hearing. Appellant has therefore waived those issues on appeal. See, State v. Peagler, 76 Ohio St.3d 496, 499, 668 N.E.2d 489, 493, 1996-Ohio-73.

{¶18} B. Standard of Review - Withdrawal of No Contest Plea.

{¶19} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and states: "[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."

In the case at bar, because appellant's request was made post-sentence, the standard by which the motion was to be considered was "to correct manifest injustice."

{¶20} The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, paragraph one of the syllabus). In Smith, supra, the Ohio Supreme Court, citing United States v. Semel (C.A.4, 1965), 347 F.2d 228, addressed the concept of "manifest injustice," stating that "[t]his term [manifest injustice] has been variously defined, but it is clear that under such standard, a post-sentence withdrawal motion is allowable only in extraordinary cases." Id. at 264.

{¶21} Furthermore, "[b]efore sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and...

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