[Cite as State v. Moore, 2012-Ohio-657.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-29
v.
JOEY A. MOORE, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0207
Judgment Affirmed
Date of Decision: February 21, 2012
APPEARANCES:
Christopher T. Travis for Appellant
Jana E. Emerick for Appellee
Case No. 1-11-29
SHAW, P.J.
{¶1} Defendant-Appellant, Joey Moore (“Moore”), appeals the March 21,
2011 judgment of the Allen County Court of Common Pleas overruling his post-
sentence motion to withdraw his guilty plea.
{¶2} On July 16, 2009, Moore was indicted for two counts of Burglary in
violation of R.C. 2911.12(A)(1), both felonies of the second degree, and one count
of Assault in violation of R.C. 2903.13(A), a misdemeanor of the first degree.
{¶3} Moore originally pled not guilty to the charges and trial was set for
September 8, 2009. Prior to the trial, on September 3, 2009, the State and Moore
negotiated a plea whereby Moore would plead guilty to one count of Burglary in
violation of R.C. 2911.12(A)(1), a felony of the second degree, and the remaining
charges against him would be dismissed. Additionally, the State and Moore
agreed to a recommended sentence of four years imprisonment with three years of
post-release control. The plea agreement with the sentencing recommendation
was reduced to a single written document and signed by the defendant.
{¶4} Following the negotiations the court held a change-of-plea hearing and
engaged in the required Crim. R. 11 dialogue with Moore. After going through
the dialogue, the court accepted Moore’s plea as knowingly, intelligently and
voluntarily given. The court then proceeded to sentencing, giving Moore a chance
to address the court.
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{¶5} During sentencing Moore expressed his remorse and was apologetic,
asking that a letter he wrote containing his apology be given to the victim. When
Moore was finished, the court adopted the parties’ recommended sentence and
sentenced Moore to four years in prison with credit for time served.
{¶6} A little over a year and a half later, on March 21, 2011, Moore, pro se,
filed a motion for judicial release. His motion was denied. The following month,
on April 25, 2011, Moore filed, again pro se, a motion to withdraw his guilty plea.
This motion was also denied. The trial court noted in its denial that Moore had not
met his burden establishing grounds for withdrawal of his guilty plea.
{¶7} This appeal followed and Moore asserts one assignment of error for
our review.
ASSIGNMENT OF ERROR
TRIAL COURT ABUSED ITS DISCRETION TO PREJUDICE
OF APPELLANT WHEN OVERRULING APPELLANT’S
MOTION TO WITHDRAW GUILTY PLEA WITHOUT
HOLDING AN EVIDENTIARY HEARING.
{¶8} In his assignment of error, Moore alleges that the trial court erred in
overruling his motion to withdraw his guilty plea without holding an evidentiary
hearing. We disagree.
{¶9} A motion to withdraw a guilty plea is governed by Crim. R. 32.1
which 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
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sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶10} A motion made pursuant to Crim. R. 32.1 is within the sound
discretion of the trial court and will not be overturned on appeal absent an abuse of
discretion. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the
syllabus. An abuse of discretion will not be found unless the trial court’s
determination was unreasonable, arbitrary, or unconscionable. State v. Adams, 62
Ohio St.2d 151, 157 (1980).
{¶11} A motion to withdraw a plea after a defendant is sentenced will be
granted only to correct a manifest injustice. Crim R. 32.1; Smith at 264. The
burden of establishing the existence of a manifest injustice is placed upon the
individual seeking vacation of the plea. Id. “The logic behind this precept is to
discourage a defendant from pleading guilty to test the weight of potential reprisal,
and later withdraw the plea if the sentence was unexpectedly severe.” State v.
Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
{¶12} A manifest injustice is an exceptional defect in the plea proceedings,
State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-4935, ¶ 12, or a “‘clear or
openly unjust act,’” State v. Walling, 3d Dist. No. 17-04-12, 2005-Ohio-428, ¶ 6,
quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83,
1998-Ohio-271. “Accordingly, a post-sentence motion to withdraw a guilty plea
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is only granted in ‘extraordinary cases.’” State v. Driskill, 3d Dist. Nos. 10-08-10,
10-08-11, 2009-Ohio-2100, ¶ 32 quoting Smith, supra.
{¶13} A hearing on a post-sentence motion to withdraw guilty plea is not
mandatory. It is required only “if the facts alleged by the defendant and accepted
as true would require the court to permit that plea to be withdrawn.” State v.
Hamed, 63 Ohio App.3d 5, 7, 577 N.E. 2d. 1111, 1112 (8th Dist. 1989); see also
State v. Nathan, 99 Ohio App.3d 722, 725, 651 N.E. 2d 1044, 1046 (3d Dist.
1995). In sum, before Moore would be entitled to a hearing on his motion, the
trial court would have to look at the allegations in Moore’s motion and conclude
that those allegations, if taken as true, demonstrate a ‘manifest injustice’ as
defined above.
{¶14} In Moore’s motion to withdraw his guilty plea, he states that he was
prejudiced by “the refusal of counsel to properly research and investigate for
trial.” (Doc. No. 58). Specifically, Moore says a police report from an incident
prior to the indicted offenses contains information proving that Moore had lived
with the victim and the victim had lied about it. With this evidence, Moore claims
he could not have been convicted of burglary as the element of trespass would be
negated. Moreover, Moore claims that because his attorney did not obtain this
evidence, and the evidence was not available to him, he felt compelled to plead
guilty.
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{¶15} Moore attached two police reports to his motion to withdraw his
guilty plea, one of which was the report he claims he did not have when
negotiating his plea. This police report, which he says would exculpate him, was
dated May 4, 2009, over a month prior to the incidents from the indictment. The
police report did not pertain to this case.
{¶16} The May 4, 2009 police report described an alleged incident of
violence between Moore and the victim of the later indicted offenses. The report,
taken and written by Officer Hart, lists Moore’s address and telephone number as
the same as the victim. Part of the narrative of the report reads, “Mr. Moore and
Ms. Hubbard have a child together. Mr. Moore came home being argumentative
with Ms. Hubbard.” (Emphasis added) (Doc. No. 58).
{¶17} The trial court found that these statements did not demonstrate a
manifest injustice so as to warrant a hearing on the motion. We agree. Even
assuming the truth of all statements in the police report that Moore provided, the
report still was made over a month prior to either of the alleged burglaries from
the indictment and the report was from an incident not at issue in this case.
Though the report may tend to undermine the victim’s credibility, and may show
that Moore had lived at the residence on May 4, 2009, it does not prove that
Moore lived at the residence on June 6, 2009, or June 10, 2009—the dates of the
indicted offenses.
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{¶18} Furthermore, Moore included one of the police reports from the June
10, 2009 incident with his motion. In that report, which was one of two police
reports provided to Moore in discovery relating to the indicted offenses, Moore
specifically told police that he was no longer living with the victim at the time of
either of the burglaries. In fact, the police report states that Moore was located
and arrested “at the place he’s been living since being released from jail on a
similar case, in Lucas County.” (Doc. No. 58). In sum, Moore’s own attached
evidence states that he did not live with the victim on the dates of the indicted
offenses, making where he lived on May 4, 2009 irrelevant.
{¶19} In addition, Moore cannot say he was not without opportunity to
raise any issues he had prior to his plea of guilty. As part of Moore’s negotiated
guilty plea he agreed to a sentencing recommendation of four years. This
agreement was put in writing on the negotiated plea form and signed by Moore at
the bottom. The court went through the Crim. R. 11 colloquy with Moore and
Moore had no questions and expressed no reservations. The transcript shows that
the defendant entered his plea in a knowing, intelligent and voluntary manner.
During the sentencing hearing that immediately followed, Moore was apologetic,
expressing his regret for what he had done, going so far as to request that the
victim be given a letter he had written which said he was sorry for his actions.
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{¶20} It is only after Moore’s motion for judicial release was denied, over a
year and a half after pleading guilty, that Moore gives any indication that his plea
was less than voluntary. A month after denial of his judicial release motion,
Moore filed the motion to withdraw his guilty plea. Not only does this make
Moore’s motion appear disingenuous, but it also raises the question of undue
delay. Undue delay is a factor adversely affecting the defendant when considering
a motion to withdraw a guilty plea. Smith at 264. Moore gave no indication as to
why he waited until after judicial release was denied to make his motion and he
also does not show when he received the police report that he now claims puts an
element of the crime in question.
{¶21} In sum, in Moore’s case, a manifest injustice is not present. Moore’s
evidence, even when taken as true, does not meet his burden. Further weighing
against Moore is the timing of his motion, and the fact that the court was apprised
of the potential discrepancy as to where he lived. Accordingly, we find nothing in
the motion or the record to show that the trial court’s decision was an abuse of
discretion.
{¶22} For these reasons, Moore’s assignment of error is overruled and the
judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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State v. Moore
Combined Opinion