State v. Waterhouse

[Cite as State v. Waterhouse, 2022-Ohio-655.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
RICHARD WATERHOUSE : Case No. 2021 CA 00041
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 2020 CRB 1805
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 7, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TARYN A. DOUGLAS AARON KOVALCHIK
218 Cleveland Avenue, SW 116 Cleveland Avenue, NW
P.O. Box 24218 Suite 808
Canton, OH 44701-4218 Canton, OH 44702
Stark County, Case No. 2021 CA 00041 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Richard Waterhouse, appeals the March 12, 2021
judgment entry of the Canton Municipal Court of Stark County, Ohio, denying his motion
to vacate his no contest plea. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 5, 2020, appellant was charged with two counts of violating a
protection order in violation of R.C. 2919.27(A)(1). The protection order had been issued
by the Court of Common Pleas of Stark County, Ohio, Family Court Division, in Case No.
2020 DV 00018. On July 13, 2020, appellant, while represented by counsel, pled no
contest to one of the counts and the remaining count was dismissed. The trial court found
appellant guilty and sentenced him to one hundred eighty days, one hundred seventy-
eight days suspended on the condition of good behavior and compliance with a
psychological program. Appellant received two days of jail time credit.
{¶ 3} On December 31, 2020, appellant filed a pro se motion to reverse plea,
claiming a major injustice. A hearing was held on March 12, 2021, wherein appellant was
represented by counsel. By judgment entry filed same date, the trial court denied the
motion.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION TO WITHDRAW HIS NO CONTEST PLEA."
Stark County, Case No. 2021 CA 00041 3
I
{¶ 6} Appellant claims the trial court abused its discretion in denying his post-
sentence motion to withdraw his no contest plea. We disagree.
{¶ 7} Under Crim.R. 32.1, "[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." A motion made pursuant to Crim.R. 32.1 is left to the sound
discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),
paragraph two of the syllabus. Thus, we review the trial court's decision denying
appellant's motion under an abuse of discretion standard. State v. Francis, 104 Ohio
St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶32. In order to find an abuse of discretion,
we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983). An appellate court may not substitute its
judgment for that of the trial court when reviewing a matter pursuant to this standard.
Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
{¶ 8} The standard upon which the trial court is to review a request for a change
of plea after sentence has been imposed is whether there is a need to correct a manifest
injustice. State v. Marafa, 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-
257, ¶8. Under the manifest injustice standard, "a post-sentence withdrawal motion is
allowable only in extraordinary cases." State v. Aleshire, 5th Dist. Licking No. 09-CA-
132, 2010-Ohio-2566, ¶60, citing Smith, supra.
Stark County, Case No. 2021 CA 00041 4
{¶ 9} A defendant seeking to withdraw a post-sentence no contest plea "bears
the burden of establishing manifest injustice based on specific facts contained in the
record or supplied through affidavits attached to the motion." State v. Walsh, 5th Dist.
Licking No.14-CA-110, 2015-Ohio-4135, ¶16, citing State v. Graham, 5th Dist. Delaware
No. 12 CAA 11 0082, 2013-Ohio-600; Smith, supra, paragraph one of the syllabus. "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
another form of application reasonably available to him or her." State v. Hartzell, 2d Dist.
Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999).
{¶ 10} In his December 31, 2020 pro se motion to reverse his plea, appellant
claimed a major injustice and attached numerous exhibits without argument or
explanation. During the March 12, 2021 evidentiary hearing, appellant argued his no
contest plea was not knowing, voluntary, and intelligent. He argued any protection order
he allegedly violated was invalid because he had not been previously convicted of a
domestic violence charge against the protected party. In his appellate brief at 10,
appellant argues he "simply did not understand the charge of violating a protection order
that had been brought against him. Without a full understanding of his charge, he cannot
knowingly, voluntarily, and intelligently have waived his Constitutional rights, including his
Constitutional right to a trial." He further argues, "[f]ailing to recognize the plea as void
constitutes a manifest injustice." Id.{¶ 11} We note appellant's argument that the protection order was invalid because
he had not been previously convicted of a domestic violence charge goes to the merits of
Stark County, Case No. 2021 CA 00041 5
the protection order which appellant did not appeal. Further, a protection order can be
issued without a previous conviction for domestic violence. R.C. 3113.31.
{¶ 12} Appellant argues his no contest plea to violating the protection order was
not knowing, voluntary, and intelligent. The trial court entertained lengthy argument from
appellant and his counsel, reviewed the plea colloquy (Exhibit 3), and stated the following
(T. at 65-66):
He indicated he was satisfied with his attorney and the explanation and the
time to go over the case. * * * He can believe that the decisions made by
the court authorities were wrong and his position should have been
accepted. He continues to disagree with that and he continued - - he
disagreed then, he shouldn't be convicted. But he understood what the
charge meant. He understood what he could be convicted of. He
understood the nature of the potential penalties, and the ability to go to a
jury trial. He had all those appreciations. Under Rule Eleven I believe he
was given the necessary rights for a petty offense, as this was a hundred
and eighty day maximum sentence. He (sic) was explained to him the
nature of a no contest plea, the definition of a no contest plea, the waiver of
his jury and the ability to have competent counsel. He accepted all those
things and therefore I am going to overrule his motion to withdraw his plea.
{¶ 13} The trial court concluded (T. at 66):
Stark County, Case No. 2021 CA 00041 6
the Court finds that the defendant knowingly, voluntarily and intelligent[ly]
entered a no contest plea and denies the motion to withdraw that plea as
there's no demonstration of manifest injustice, there's no demonstration that
- - of much would change and there's no demonstration sufficient to
persuade me that he did not understand what he was doing. He understood
the effect of his plea.
{¶ 14} In its March 12 2021 judgment entry denying the motion, the trial court found
"the plea of no contest was properly entered and validly made. The defendant was
provided with all appropriate instructions under Criminal Rules 5 and 11."
{¶ 15} A review of the record and the plea colloquy supports the trial court's
decision. Appellant signed an understanding of rights form (Exhibit 2). During the plea
hearing, the trial court went over his rights concerning his no contest plea, and appellant
acknowledged he understood those rights and he understood the charge he was pleading
to and the possible penalties.
{¶ 16} Upon review, we find appellant's argument that his plea was not knowing,
voluntary, and intelligent to be insufficient to demonstrate manifest injustice. The trial
court's decision that manifest injustice did not occur is supported by the record and was
not unreasonable, arbitrary, or unconscionable. We find no abuse of discretion by the
trial court in denying appellant's motion to withdraw his no contest plea made after the
imposition of sentence.
{¶ 17} The sole assignment of error is denied.
Stark County, Case No. 2021 CA 00041 7
{¶ 18} The judgment of the Canton Municipal Court of Stark County, Ohio is hereby
affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Wise, John, J. concur.
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