[Cite as State v. Hummell, 2013-Ohio-2422.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : RONALD HUMMELL, III : Case No. 12CA64 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008 CR 0761
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 31, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JILL M. COCHRAN JOHN C. O'DONNELL Assistant Richland County Prosecutor 13 Park Avenue West, Suite 300 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 Richland County, Case No. 12CA64 2
Baldwin, J.
{¶1} Defendant-appellant Ronald Hummel, III appeals from the July 23, 2012
Judgment Entry of the Richland County Court of Common Pleas overruling his Motion
for Withdrawal of Guilty Plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 6, 2008, the Richland County Grand Jury indicted appellant
on one count of illegal manufacturing of illegal drugs in violation of R.C. 2925.04(A), a
felony of the second degree, one count of illegal assembly or possession of chemicals
for the manufacture of drugs in violation of R.C. 2925.041(A), a felony of the third
degree, one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a
felony of the third degree, and two counts of assault in violation of R.C. 2903.13(A),
felonies of the fourth degree. At his arraignment on November 13, 2008, appellant
entered a plea of not guilty to the charges.
{¶3} Thereafter, on April 20, 2009, appellant withdrew his former not guilty plea
and pleaded guilty to illegal manufacturing of illegal drugs, tampering with evidence and
two counts of assault. The remaining charge was dismissed. Pursuant to a Sentencing
Entry filed on April 21, 2009, appellant was sentenced to an aggregate prison sentence
of six (6) years. The trial court also ordered that the sentence be served concurrently to
a drug possession charge that appellant had in Indiana. Appellant also was fined
$7,500.00 and his driver’s license was suspended for a period of sixty (60) months. The
fine was later vacated.
{¶4} Appellant did not appeal his conviction or sentence. Richland County, Case No. 12CA64 3
{¶5} On November 22, 2011, appellant filed a Motion for Modification and
Reconsideration of Sentence. Appellant, in such motion stated that he understood the
seriousness of his offenses and was remorseful. The trial court, as memorialized in a
Judgment Entry filed on December 8, 2011, overruled such motion. The trial court, in its
Judgment Entry, found that appellant had received a mandatory agreed sentence and
that the court lacked jurisdiction to modify the sentence. The trial court also filed another
Judgment Entry on December 22, 2011 overruling such motion.
{¶6} Subsequently, on July 5, 2012, appellant filed a Motion for Withdrawal of
Guilty Plea pursuant to Crim.R. 32.1. Appellant, in his motion, alleged that he was under
duress and had psychological problems when he entered his plea, that his plea was
entered without proper advice of counsel and that his plea was not knowing, intelligent
and voluntary. Appellant also alleged that he received mistaken advice from his
counsel. Pursuant to a Judgment Entry filed on July 23, 2012, the trial court overruled
appellant’s motion.
{¶7} Appellant now appeals from the trial court’s July 23, 2012 Judgment Entry,
raising the following assignments of error on appeal:
{¶8} “I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S PRO SE CRIMINAL RULE 32.1 POST-SENTENCE
MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶9} “II. THE TRIAL COURT’S FAILURE TO GRANT
DEFENDANT/APPELLANT A HEARING ON HIS MOTION TO WITHDRAWAL (SIC)
HIS PLEA WAS MANIFEST INJUSTICE.” Richland County, Case No. 12CA64 4
I, II
{¶10} Appellant, in his two assignments of error, argues that the trial court erred
in denying his Motion to Withdraw Plea and that the trial court erred in failing to hold a
hearing on such motion. We disagree.
{¶11} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1, which provides:
{¶12} “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.”
{¶13} “Manifest injustice relates to some fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.” State v. Williams, 10th Dist. No. 03AP–1214, 2004–Ohio–6123, ¶ 5. “ ‘[I]t is
clear that under such standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.’ “ State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656, ¶
7, quoting State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E. 2d 1324 (1977). 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. Orris, 10th Dist. No. 07AP–
390, 2007–Ohio–6499.
{¶14} A trial court is not automatically required to hold a hearing on a post-
sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts
alleged by the defendant, accepted as true, would require that the defendant be allowed Richland County, Case No. 12CA64 5
to withdraw the plea. Williams, supra at ¶ 6, citing State v. Kent, 10th Dist. No.
03AP722, 2004–Ohio–2129, ¶ 8.
{¶15} A trial court's decision to deny a post-sentence motion to withdraw a plea
of guilty and the decision whether to hold a hearing on the motion are subject to review
for abuse of discretion. Smith, supra. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.
2d 1140 (1983).
{¶16} We note appellant's motion to withdraw his guilty plea was filed over three
years after his sentencing. Although not dispositive on its own, “[a]n undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea and the
filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the
movant and militating against the granting of the motion.” Smith, supra at paragraph
three of the syllabus.
{¶17} In the case sub judice, appellant did not file any affidavits or other
evidence in support of his vague motion, which was filed over three years after
sentencing and after appellant’s attempt to have his sentence modified was
unsuccessful. The transcript of the change of plea hearing, at which appellant was
represented by counsel, shows that appellant was advised of his Crim.R. 11(C) rights
and was informed that he was going to be sentenced to six (6) years in prison.
Moreover, as noted by appellee, there is nothing in the record indicating that appellant
was under duress or that he had any psychological problems at the time of his plea. In
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[Cite as State v. Hummell, 2013-Ohio-2422.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : RONALD HUMMELL, III : Case No. 12CA64 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008 CR 0761
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 31, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JILL M. COCHRAN JOHN C. O'DONNELL Assistant Richland County Prosecutor 13 Park Avenue West, Suite 300 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 Richland County, Case No. 12CA64 2
Baldwin, J.
{¶1} Defendant-appellant Ronald Hummel, III appeals from the July 23, 2012
Judgment Entry of the Richland County Court of Common Pleas overruling his Motion
for Withdrawal of Guilty Plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 6, 2008, the Richland County Grand Jury indicted appellant
on one count of illegal manufacturing of illegal drugs in violation of R.C. 2925.04(A), a
felony of the second degree, one count of illegal assembly or possession of chemicals
for the manufacture of drugs in violation of R.C. 2925.041(A), a felony of the third
degree, one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a
felony of the third degree, and two counts of assault in violation of R.C. 2903.13(A),
felonies of the fourth degree. At his arraignment on November 13, 2008, appellant
entered a plea of not guilty to the charges.
{¶3} Thereafter, on April 20, 2009, appellant withdrew his former not guilty plea
and pleaded guilty to illegal manufacturing of illegal drugs, tampering with evidence and
two counts of assault. The remaining charge was dismissed. Pursuant to a Sentencing
Entry filed on April 21, 2009, appellant was sentenced to an aggregate prison sentence
of six (6) years. The trial court also ordered that the sentence be served concurrently to
a drug possession charge that appellant had in Indiana. Appellant also was fined
$7,500.00 and his driver’s license was suspended for a period of sixty (60) months. The
fine was later vacated.
{¶4} Appellant did not appeal his conviction or sentence. Richland County, Case No. 12CA64 3
{¶5} On November 22, 2011, appellant filed a Motion for Modification and
Reconsideration of Sentence. Appellant, in such motion stated that he understood the
seriousness of his offenses and was remorseful. The trial court, as memorialized in a
Judgment Entry filed on December 8, 2011, overruled such motion. The trial court, in its
Judgment Entry, found that appellant had received a mandatory agreed sentence and
that the court lacked jurisdiction to modify the sentence. The trial court also filed another
Judgment Entry on December 22, 2011 overruling such motion.
{¶6} Subsequently, on July 5, 2012, appellant filed a Motion for Withdrawal of
Guilty Plea pursuant to Crim.R. 32.1. Appellant, in his motion, alleged that he was under
duress and had psychological problems when he entered his plea, that his plea was
entered without proper advice of counsel and that his plea was not knowing, intelligent
and voluntary. Appellant also alleged that he received mistaken advice from his
counsel. Pursuant to a Judgment Entry filed on July 23, 2012, the trial court overruled
appellant’s motion.
{¶7} Appellant now appeals from the trial court’s July 23, 2012 Judgment Entry,
raising the following assignments of error on appeal:
{¶8} “I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S PRO SE CRIMINAL RULE 32.1 POST-SENTENCE
MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶9} “II. THE TRIAL COURT’S FAILURE TO GRANT
DEFENDANT/APPELLANT A HEARING ON HIS MOTION TO WITHDRAWAL (SIC)
HIS PLEA WAS MANIFEST INJUSTICE.” Richland County, Case No. 12CA64 4
I, II
{¶10} Appellant, in his two assignments of error, argues that the trial court erred
in denying his Motion to Withdraw Plea and that the trial court erred in failing to hold a
hearing on such motion. We disagree.
{¶11} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1, which provides:
{¶12} “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.”
{¶13} “Manifest injustice relates to some fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.” State v. Williams, 10th Dist. No. 03AP–1214, 2004–Ohio–6123, ¶ 5. “ ‘[I]t is
clear that under such standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.’ “ State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656, ¶
7, quoting State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E. 2d 1324 (1977). 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. Orris, 10th Dist. No. 07AP–
390, 2007–Ohio–6499.
{¶14} A trial court is not automatically required to hold a hearing on a post-
sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts
alleged by the defendant, accepted as true, would require that the defendant be allowed Richland County, Case No. 12CA64 5
to withdraw the plea. Williams, supra at ¶ 6, citing State v. Kent, 10th Dist. No.
03AP722, 2004–Ohio–2129, ¶ 8.
{¶15} A trial court's decision to deny a post-sentence motion to withdraw a plea
of guilty and the decision whether to hold a hearing on the motion are subject to review
for abuse of discretion. Smith, supra. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.
2d 1140 (1983).
{¶16} We note appellant's motion to withdraw his guilty plea was filed over three
years after his sentencing. Although not dispositive on its own, “[a]n undue delay
between the occurrence of the alleged cause for withdrawal of a guilty plea and the
filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the
movant and militating against the granting of the motion.” Smith, supra at paragraph
three of the syllabus.
{¶17} In the case sub judice, appellant did not file any affidavits or other
evidence in support of his vague motion, which was filed over three years after
sentencing and after appellant’s attempt to have his sentence modified was
unsuccessful. The transcript of the change of plea hearing, at which appellant was
represented by counsel, shows that appellant was advised of his Crim.R. 11(C) rights
and was informed that he was going to be sentenced to six (6) years in prison.
Moreover, as noted by appellee, there is nothing in the record indicating that appellant
was under duress or that he had any psychological problems at the time of his plea. In
short, there is no evidence that appellant’s plea was not knowing, intelligent and Richland County, Case No. 12CA64 6
voluntary. While appellant, in his Motion to Withdraw, alleged that there was
prosecutorial misconduct and misconduct by his counsel, he did not point to any specific
instances of misconduct. Rather, appellant set forth vague allegations.
{¶18} Based on the foregoing, we find that the trial court did not err in denying
appellant’s Motion for Withdrawal of Guilt Plea and did not err in failing to hold a hearing
on the same. The trial court’s decisions were not arbitrary, unconscionable or
unreasonable.
{¶19} Appellant’s two assignments of error are, therefore, overruled.
{¶20} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
_______________________________ HON. CRAIG R. BALDWIN
_______________________________ HON. WILLIAM B. HOFFMAN
_______________________________ HON. PATRICIA A. DELANEY
CRB/dr [Cite as State v. Hummell, 2013-Ohio-2422.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff - Appellee : : : -vs- : JUDGMENT ENTRY : : RONALD HUMMELL, III : : : Defendant - Appellant : CASE NO. 12CA64 :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to appellant.