State v. Tribble ( 2016 )

[Cite as State v. Tribble, 2016-Ohio-1170.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 15 MA 0157
V. )
) OPINION
JAMES C. TRIBBLE, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Mahoning County
Court #2 of Mahoning County, Ohio
Case No. 13 TRC 3526
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant James Tribble, Pro-se
#30264
110 Fifth Avenue
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 18, 2016
[Cite as State v. Tribble, 2016-Ohio-1170.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, James Tribble, appeals from a Mahoning County
Court Number Two judgment denying his post-sentence motion to withdraw his no
contest plea to the charge of operating a motor vehicle while impaired.
{¶2} Appellant was arrested on September 28, 2013, for operating a motor
vehicle while impaired (OVI), driving under suspension, and having an expired
registration. The traffic citation stated that appellant had two prior OVI’s in the year
2013, making this his third OVI in 2013. Appellant initially entered a not guilty plea.
{¶3} On October 22, 2013, appellant changed his plea pursuant to a plea
agreement with plaintiff-appellee, the State of Ohio. Pursuant to the plea agreement,
appellant entered a no contest plea to the charge of OVI. The judgment entry stated
that this was a second-offense OVI. The remaining charges were dismissed.
{¶4} The trial court sentenced appellant to 180 days in jail, with 160 days
suspended, and six months of probation. The court also suspended appellant’s
driver’s license for one year and ordered him to pay a fine of $850, plus costs.
Appellant did not file an appeal from this judgment.
{¶5} Over a year later, on January 16, 2015, a bench warrant was issued for
appellant for failure to comply with the terms of his probation. The court set the
matter for a probation violation hearing.
{¶6} Appellant, acting pro se, then filed a motion to withdraw his plea on
September 1, 2015. The trial court denied the motion. Appellant filed a timely notice
of appeal that same day.
{¶7} Appellant, still acting pro se, now sets out three assignments of error.
Appellant’s three assignments of error all argue that the trial court erred in denying
his motion to withdraw his plea. Therefore, we will address them together.
Appellant’s assignments of error state:
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED
THE APPELLANT EQUAL PROTECTION AND DUE PROCESS OF
LAW WHEN IT DENIED THE APPELLANT’S MOTION TO WITHDRAW
HIS PLEA.
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THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED
THE APPELLANT THE RIGHT TO KNOWINGLY, INTELLIGENTLY,
AND VOLUNTARILY ENTERED [sic.] PLEA, WHEN IT DENIED HIS
MOTION TO WITHDRAW HIS PLEA.
THE TRIAL COURT ABUSED ITS DISCRETION AND UPHELD
A VOID CONVICTION WHEN IT DENIED THE APPELLANT’S
MOTION TO WITHDRAW HIS PLEA.
{¶8} Appellant states that prior to the OVI conviction at issue in this case, he
had two prior OVI convictions. Thus, he states this case involved his third OVI
offense. Appellant states that as part of his plea deal, he entered a plea to a second-
offense OVI instead of a third-offense OVI.
{¶9} Appellant now argues that the trial court had no authority to reduce a
third-offense OVI to a second-offense OVI. He claims he was subject to the same
penalty for a third-offense OVI and, therefore, his plea and conviction are void.
Appellant contends he did not knowingly, intelligently, and voluntarily enter his plea
because the court “presented a void Rule (11) plea.” Finally, appellant asserts the
trial court failed to abide by the plea agreement by failing to ensure that his third-
offense OVI was reduced to a second-offense OVI. Therefore, he asserts, the trial
court should have allowed to him to withdraw his plea.
{¶10} On reviewing a trial court's decision on a motion to withdraw a guilty or
no contest plea, this court applies an abuse of discretion standard. State v. Jones,
7th Dist. No. 05-MA-69, 2008-Ohio-6974, ¶14. Abuse of discretion connotes more
than an error of law or judgment; it implies that the trial court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶11} Crim.R. 32.1 provides: “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.”
-3-
{¶12} A defendant who seeks to withdraw a guilty or no contest plea after the
sentence is imposed has the burden of establishing the existence of manifest
injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one
of the syllabus, citing Crim.R. 32.1. Under this standard, a post-sentence motion to
withdraw a plea is allowable only in extraordinary cases. Id. at 264.
{¶13} First, we must point out that appellant has failed to file a transcript of his
plea hearing. The appellant bears the burden of demonstrating error by reference to
the record of the proceedings in the trial court, and it is the appellant's duty to provide
the reviewing court with a transcript. App.R. 9(B); State v. Davis, 7th Dist. No. 10-
MA-98, 2011-Ohio-3184, ¶23. Without a transcript, it is impossible for this court to
review appellant’s actual plea.
{¶14} Second, appellant did not file his motion to withdraw his plea until
almost two years after he entered his no contest plea. While there is no time limit to
file a motion to withdraw a plea after a sentence is imposed, an undue delay between
the time when the motion is filed and the reason for filing the motion is a factor
adversely affecting the credibility of the movant. State v. Howard, 7th Dist. No. 12
MA 41, 2013-Ohio-1437, ¶18.
{¶15} Third, appellant was not subject to the penalty for a third-offense OVI.
The trial court’s judgment entry of conviction and sentence reflects a second-offense
OVI. It does not reflect a sentence for a third-offense OVI as appellant contends.
{¶16} Fourth, contrary to appellant’s assertion, the trial court did abide by the
plea agreement. It entered a conviction and sentence for a second-offense OVI,
which is what appellant entered a plea to.
{¶17} Based on the above, appellant did not meet his burden of establishing a
manifest injustice, which is required when pursuing a post-sentence motion to
withdraw a plea. Appellant failed to provide a transcript of his plea hearing.
Appellant did not file his motion to withdraw his plea until nearly two years after he
entered his plea. And the trial court’s judgment entry and sentence reflect appellant
was convicted of and sentenced for a second-offense OVI, which was lawful and not
-4-
void. It was also the offense to which appellant pleaded no contest. Therefore, we
cannot conclude the trial court abused its discretion in denying appellant’s post-
sentence motion to withdraw his plea.
{¶18} Accordingly, appellant’s three assignments of error are without merit.
{¶19} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.