State v. Smith

[Cite as State v. Smith, 2011-Ohio-3206.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2010-CA-00335
CORY J. SMITH :
:
Defendant-Appellant : OPINION

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

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 27, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PERICLES G. STERGIOS RUSSELL BUZZELLI
LAW DIRECTOR Box 84
BY: LAURA DARROW Wadsworth, OH 44282
One Duncan Plaza
Massillon, OH 44646
[Cite as State v. Smith, 2011-Ohio-3206.]

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.

STATEMENT OF THE FACTS AND CASE1

{¶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:

{¶6} “I. WHETHER OR NOT THE TRIAL COURT, ABUSED ITS DISCRETION

WHEN IT DENIED DEFENDANT'S MOTION TO WITHDRAW HIS PLEA, GIVEN THE

1
The Court Reporter’s affidavit filed with the Court provides no recording, by any means of the
appellant’s arraignment, pretrial, plea hearing, or sentencing which took place in 2007 is available.
Stark County, Case No. 2010-CA-00335 3

SEVERAL MANIFEST INJUSTICES VISITED UPON APPELLANT IN THE TRIAL

COURT BELOW. “

I.

{¶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 of
Stark County, Case No. 2010-CA-00335 4

the 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 [ 43

O.O. 2d 119], 236 N.E. 2d 545, paragraph three of the syllabus; State v. Glaros (1960),

170 Ohio St. 471 [11 O.O.2d 215], 166 N.E.2d 379, paragraph one of the syllabus;

State v. Lancaster (1971), 25 Ohio St.2d 83 [54 O.O.2d 222], 267 N.E.2d 291,

paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117 [5

O.O.3d 98], 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 [43 O.O. 2d 119], 236 N.E. 2d 545, citing State v. Davis (1964), 1 Ohio

St.2d 28 [30 O.O.2d 16], 203 N.E.2d 357; State, ex rel. Specht, v. Bd. of Edn. (1981),

66 Ohio St.2d 178, 182 [20 O.O.3d 191], 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,

2
The failure to appoint counsel may in some instances rise to the level of structural error. See
State v. Wamsley, 117 Ohio St.3d 388, 391-392, 884 N.E.2d 45, 48-49, 2008-Ohio-1195 at ¶ 16.
Accordingly, we will address this portion of appellant’s claim infra.
Stark County, Case No. 2010-CA-00335 5

95 [7 O.O.2d 437], 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 the
Stark County, Case No. 2010-CA-00335 6

error. 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."
Stark County, Case No. 2010-CA-00335 7

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 withdraw the plea if the sentence

were unexpectedly severe. * * *” State v. Peterseim (1980), 68 Ohio App.2d 211, 213,

428 N.E.2d 863, quoting Kadwell v. United States (C.A.9, 1963), 315 F.2d 667.

{¶22} Importantly, “an 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.” State v. Bush, 96 Ohio St.3d 235, 773 N.E.2d 522 2002-Ohio-3393 at ¶14.

(Quoting State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324,

paragraph three of the syllabus); See also State v. Copeland-Jackson, Ashland App.No.

02COA018, 2003-Ohio-1043 ([t]he length of passage of time between the entry of a
Stark County, Case No. 2010-CA-00335 8

plea and a defendant's filing of a Crim.R. 32.1 motion is a valid factor in determining

whether a “manifest injustice” has occurred.

{¶23} A reviewing court will not disturb a trial court's decision whether to grant a

motion to withdraw a plea absent an abuse of discretion. State v. Xie (1992), 62 Ohio

St.3d 521, 584 N.E.2d 715. In order to find an abuse of discretion, we must determine

that the trial court's decision was unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

450 N.E.2d 1140.

{¶24} C. Effect of Plea of No Contest.

{¶25} Appellant contends that he may have thought the trial court could find him

not guilty upon his plea of no contest. (T. at 16).

{¶26} The Rules of Criminal Procedure provide that a plea of no contest is not

an admission of the defendant's guilt; instead, it is an admission of the truth of the facts

alleged in the indictment. Further, in State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d

422, 424, 662 N.E.2d 370, the Court held that "[t]he procedure specified in Crim.R.

11(C) does not envision an affirmative-defense hearing or mini-trial." Thus, the Mascio

court concluded, "[a]lthough the trial court retains discretion to consider a defendant's

contention that the admitted facts do not constitute the charged offense, the defendant

who pleads no contest waives the right to present additional affirmative factual

allegations to prove that he is not guilty of the charged offense." Id.

{¶27} The Ohio Supreme Court has further held that “[w]here an indictment,

information, or complaint contains sufficient allegations to state a felony offense and the

defendant pleads no contest, the court must find the defendant guilty of the charged
Stark County, Case No. 2010-CA-00335 9

offense. State v. Bird ( 1998), 81 Ohio St. 3d 582, 584, 692 N.E. 2d 1013. (Citing State

ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 425, 662 N.E.2d 370, 373).

{¶28} In the case at bar, the state only had to allege sufficient facts to charge the

violations contained in the complaint. See Mascio, 75 Ohio St.3d at 425, 662 N.E.2d at

373; State v. Bird, 81 Ohio St. 3d at 584, 692 N.E. 2d at 1015. In State v. Bird, supra,

the appellant argued that the indictment was insufficient to charge him with the offense

of felonious assault with a deadly weapon because it failed to establish the existence of

essential elements of the crime, i.e., that saliva is a deadly weapon, and that appellant

knowingly caused or attempted to cause the officer physical harm. The charge stemmed

from an incident where appellant, who is infected with the human immunodeficiency

virus (“HIV”), spat in a police officer's face.

{¶29} The appellant in Bird, like the appellant in the case at bar, entered a plea

of no contest to the charge. The Ohio Supreme Court found that by pleading no contest

to the indictment, the appellant was foreclosed from challenging the factual merits of the

underlying charge. The Court noted, “[i]t is unnecessary to decide whether the human

immunodeficiency virus may be communicated through saliva and whether saliva may

be considered a deadly weapon. By pleading no contest, appellant admitted the truth of

the allegations in the indictment.” 81 Ohio St.3d 585, 692 N.E.2d at 1016.

{¶30} In the case at bar appellant was charged with assault contrary to Massillon

City Ordinance 537.03(A). (Complaint, filed January 12, 2007). Specifically, the

Complaint alleged that appellant

{¶31} “(A) did knowingly cause or attempt to cause physical harm to Larry Fisk,

Jr. or Larry Fisk Jr.’s unborn.
Stark County, Case No. 2010-CA-00335 10

{¶32} “* * *

{¶33} “To-Wit: The defendant did cause or attempt to cause physical harm to

Larry Fisk, Jr., by kicking the victim in the chest knocking him into a car then to the

ground. The defendant then kicked the victim while he was laying on the ground.”

(Complaint, filed January 12, 2007).

{¶34} The indictment language mirrors the statutory language. Thus, it is

sufficient to charge the offenses. Crim.R. 7(B). State v. Bird, supra 81 Ohio St.3d at

585, 692 N.E.2d at 1016. The complaint contained all the necessary elements and

contained sufficient allegations to state the aforementioned misdemeanor assault

offense.

{¶35} Being an admission of the truth of the facts on which the charges against

him are based, a no contest plea forecloses a defendant's right to challenge the truth of

those facts in a subsequent appeal from his resulting conviction and sentence. State v.

Bird supra; State v. Evans, Montgomery App. No. 21669, 2007-Ohio-6587 at ¶ 10. By

pleading no contest and foregoing a trial appellant lost his opportunity to raise at trial

that he did not knowingly cause or attempt to cause physical harm to Larry Fisk, Jr.

{¶36} In the case at bar, appellant signed a negotiated plea agreement in the

form of the “State Sentencing Recommendation/Order” prior to entering his plea.

Further, we note that appellant did retain counsel less than seven months after the trial

court found him guilty. Appellant offers no explanation for waiting nearly three years to

challenge his conviction on the ground that he believe he could be found not guilty on

his plea of no contest.
Stark County, Case No. 2010-CA-00335 11

{¶37} We find nothing in the record to suggest that any failure of the trial court to

inform appellant about the effect of his no contest plea prejudiced him.

{¶38} Accordingly, appellant has failed to establish a manifest injustice

warranting the withdrawal of his guilty plea. State v. Smith (1977), 49 Ohio St.2d 261,

361 N.E.2d 1324.

{¶39} D. Right to Appointed Counsel.

{¶40} Appellant concedes that he was advised of his right to counsel in 2007. (T.

at 6-7). Appellant further concedes that he did in fact meet with a representative from

the Stark County Public Defender’s Office before his pre-trial conference. (Id.) Appellant

has not argued that the trial court was required to advise him prior to accepting his plea

of any collateral consequences that may flow as a result of being found guilty, such as a

denial of employment in certain fields, or appellant’s inability to expunge his conviction.

(T. at 3-4; 18-19; 20; 21-22)3. There is nothing in the record to indicate when appellant

decided to pursue a nursing degree. The college transcripts admitted as Defendant’s

Exhibit A at the hearing on appellant’s motion to withdraw his plea indicate that he

returned to school in 2009. Accordingly the issue before us is not whether the trial court

advised appellant of his right to counsel, but rather, whether appellant was denied a

right to have counsel appointed to represent him.

{¶41} In the landmark decision of Gideon v. Wainwright (1963), 372 U.S. 335, 83

S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held an indigent defendant

3
The trial court is not required to inform a defendant of every possible collateral consequence of
pleading no contest to a charge. Cf. State v. Wilkinson, Montgomery App. No. 20365, 2005-Ohio-314, ¶ 9.
Crim.R. 11(B)(2) does not impose a duty on the court to inform a criminal defendant of the effect of a no
contest plea beyond the notification requirements specifically enumerated in the rule. State v. Garr, Butler
CA2009-01-014, 2009-Ohio-6241 at ¶26; State v. Goddard, Wyandot App. No. 16-06-05, 2007-Ohio-1229
at ¶13; The accused is not generally required to be informed of those “collateral consequences” which
result from his conviction, such as the right to vote, loss of passport, business license, and driver's
license. Katz, Giannelli, Criminal Law, Section 43.11.
Stark County, Case No. 2010-CA-00335 12

was entitled to court appointed counsel. Subsequently, the High Court narrowed this

Right, holding “the Sixth and Fourteenth Amendments to the United States Constitution

require only that no indigent criminal defendant be sentenced to a term of imprisonment

unless the state has afforded him the right to assistance of appointed counsel in his

defense.” Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383. Accord,

Nichols v. United States (1994), 511 U.S. 738, 743 114 S.Ct. 1921, 1926; State v.

Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503. (“This is not to say that

counsel is required in all instances. Indeed, in Scott, supra, the court essentially held

that unconcealed misdemeanor convictions are constitutionally valid if the offender is

not actually incarcerated.”).

{¶42} In Scott, the court stated that “actual imprisonment is a penalty different in

kind from fines or the mere threat of imprisonment * * * and warrants adoption of actual

imprisonment as the line defining the constitutional right to appointment of counsel. * * *

440 U.S. at 373-374, 99 S.Ct. 1161-1162. In Nichols, supra the court recognized that

there is a distinction concerning the right to have counsel appointed noting, “In felony

cases, in contrast to misdemeanor charges, the Constitution requires that an indigent

defendant be offered appointed counsel unless that right is intelligently and competently

waived. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” 511

U.S. at 743, n. 9. Ohio likewise has recognized such a distinction.

{¶43} Crim.R. 2(C) defines “serious offense” as “any felony, and any

misdemeanor for which the penalty prescribed by law includes confinement for more

than six months,” while Crim.R. 2(D) defines “petty offense” as “a misdemeanor other
Stark County, Case No. 2010-CA-00335 13

than a serious offense.” In the case at bar, the charge against appellant was a “petty”

offense.

{¶44} The scope of the application of the right to counsel is recognized in

Crim.R. 44, which sets forth the basic procedure for the assignment of counsel in Ohio

criminal cases.

{¶45} Crim.R. 44 states:

{¶46} “(B) Counsel in petty offenses

{¶47} “Where a defendant charged with a petty offense is unable to obtain

counsel, the court may assign counsel to represent him. When a defendant charged

with a petty offense is unable to obtain counsel, no sentence of confinement may be

imposed upon him, unless after being fully advised by the court, he knowingly,

intelligently, and voluntarily waives assignment of counsel.” (Emphasis added)

{¶48} The word “shall” is usually interpreted to make the provision in which it is

contained mandatory. Dorrian v. Scioto Conservancy District (1971), 27 Ohio St. 2d

102, 107, 271 N.E. 2d 834. In contrast, the use of the word “may” is generally construed

to make the provision in which it is contained optional, permissive, or discretionary. Id.

The words “shall” and “may” when used in statutes are not automatically

interchangeable or synonymous. Id. To give the “may” as used in a statute a meaning

different from that given in its ordinary usage, it must clearly appear that the Legislature

intended that it be so construed from a review of the statute itself. Id. at 107– 108, 271

N.E. 2d 834. In re: McClanahan, Tuscarawas App. No.2004AP010004, 2004–Ohio–

4113 at ¶ 17.
Stark County, Case No. 2010-CA-00335 14

{¶49} Pursuant to that rule, the trial court has discretion whether to appoint

counsel where a defendant is charged with a petty offense. However, the trial court

could impose a term of imprisonment for a petty offense under only two circumstances:

(1) appellant was actually represented by counsel during his change of plea; or (2) he

decided to represent himself and properly waived his right to counsel.

{¶50} Our review of the trial court record indicates that the “State’s Sentencing

Recommendation/Order” adopted by the magistrate upon appellant’s plea of no contest

contained no term of actual imprisonment. The court in fact did not sentence appellant

to any term of actual imprisonment. This entry was signed by appellant, the prosecuting

attorney and the magistrate on March 6, 2007.

{¶51} Thus, no cognizable violation of the Sixth Amendment right to appointed

counsel occurred in the case at bar because, as the Supreme Court of Ohio has held,

“uncounseled misdemeanor convictions are constitutionally valid if the offender is not

actually incarcerated. State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501.

(Citing Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383).

{¶52} Appellant’s argument that counsel would have advised him that an assault

conviction could affect his future employment is purely speculative. “Neither a trial court

nor a defendant's attorney need inform the defendant of every possible effect of

pleading guilty to a charge. Crim.R. 32.1 provides that ‘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.’ It is undisputed that neither the trial court nor Wilkinson's

attorney was aware that Wilkinson was seeking a nursing license. It is not a manifest

injustice for a trial court or a defendant's attorney to fail to inform a defendant of every
Stark County, Case No. 2010-CA-00335 15

possible collateral consequence of pleading guilty to a charge.” State v. Wilkinson,

Montgomery App. No. 20365, 2005-Ohio-314, ¶ 9. Crim.R. 19 which governs the

authority of magistrates in criminal proceedings follows the same line of demarcation.

See, Crim R, 19(C)(1)(c)(ii).

{¶53} We find appellant has failed to establish a manifest injustice warranting

the withdrawal of his guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d

1324.

{¶54} Appellant’s sole assignment of error is overruled in its entirety.

{¶55} For the foregoing reasons, the judgment of the Massillon Municipal Court,

Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. JOHN W. WISE

_________________________________
HON. PATRICIA A. DELANEY

WSG:clw 0614
[Cite as State v. Smith, 2011-Ohio-3206.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CORY J. SMITH :
:
:
Defendant-Appellant : CASE NO. 2010-CA-00335

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Massillon Municipal Court, Stark County, Ohio, is affirmed. Costs to

appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. JOHN W. WISE

_________________________________
HON. PATRICIA A. DELANEY