Although I agree with the majority's conclusion concerning appellant's second assignment of error, I respectfully disagree with the conclusion of the majority as to appellant's first assignment of error. From that decision, I dissent. For the reasons stated below, the judgment of the trial court should be affirmed.
Appellant's oral motion should be viewed as a post-sentence motion to withdraw his guilty plea. Appellant had already been sentenced consistent with his plea agreement to two years of incarceration. Appellant had agreed to that sentence and had already started serving that sentence. The only issue to come before the court was the correction of a clerical error, requiring an allocation of the two-year sentence to the nine counts for which appellant was convicted upon his plea of guilty. Appellant made his request to withdraw after his original sentencing on August 9, 1999. As the majority states, the trial court fully complied with the requirements of Crim.R. 11 prior to accepting appellant's guilty plea during the August 9, 1999 hearing. Also, during that hearing, the trial court adhered to the sentencing recommendation set forth by appellant and the state. Subsequently, appellant was transported to the Lorain Correctional Institution. As prison authorities were processing appellant into the system, a clerical error was discovered. Thus, the purpose of the November 15, 1999 re-sentencing hearing was merely to address the clerical error concerning the inadvertent failure to allocate a breakdown of the two-year sentence to each of the nine counts to which appellant plead guilty. *Page 592
Crim.R. 36 provides that "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising fromoversight or omissions, may be corrected by the court at any time." (Emphasis added.) In addition, the record shows that the trial court emphasized and informed the parties that the purpose of this second hearing was solely to correct a clerical mistake. The court stated: "I guess we are here for some correction of a sentence * * *"; "So, we made a clerical error. I made a clerical error * * *"; "[I said] that I would follow the recommendation of the Prosecution * * * which is exactly what I did. And I will amend or add to the description of the two years * * *."
In State v. Hawk (1992), 81 Ohio App.3d 296, the Ninth Appellate District addressed a similar situation. In Hawk, as a result of plea negotiations, appellant agreed to plead guilty to a lesser offense of aggravated assault along with the physical harm specification, provided he would be eligible for probation. Id. at 298. The trial court filed its amended entry and amended the indictment as agreed; however, the court failed to remove the firearm reference in Count 1. Id. Subsequently, appellant was sentenced to prison. Id. Almost a month later, appellant moved to withdraw his guilty plea because it was not voluntary and not made in accordance with the understanding that he would get probation. Id. The trial court attempted to correct the indictment by removing all reference of the firearm from the indictment; as a result, the trial court denied appellant's motion to withdraw his guilty plea. Hawk at 299. Referring to Crim.R. 36, the Ninth Appellate Court held:
"[i]n order to correct an error in the record, including an omission, there must be some indication of the court's previous intent. Somewhere that intent, which was incorrectly recorded or omitted, must be manifested in the record." Id. at 300.
Accordingly, in the case sub judice, there exist ample indicators in the record and the transcript of the August 9, 1999 and November 15, 1999 hearings to show the trial court's previous intent to adhere to the parties' plea bargain agreement and recommended two-year sentence.
Moreover, the majority incorrectly states that "the trial court had tovacate the original invalid sentence to impose the new one." (Emphasis added.) Upon review of the amended judgment entry of sentence, nowhere does it indicate that the trial court vacated the original judgment entry of sentence. The November 29, 1999 judgment entry of sentence states "this matter came on for re-sentencing due to an error in the Court's previous Judgment Entry" (Emphasis added.) Aside from the additional paragraph explaining the breakdown of the two-year sentence, the amended judgment entry of sentence is identical to the original judgment entry. Moreover, the corrected judgment entry does not expressly vacate the prior ruling, but merely restates that ruling as corrected. Hence, the trial court did not formally vacate the first judgment entry of sentence. Rather, *Page 593 as stated, the trial court merely corrected the clerical error in that judgment pursuant to Crim.R. 36.
The majority cites to State v. Brown (1989), 59 Ohio App.3d 1, as support that the original sentence was invalid because it did not include a specific sentence for each of the nine convictions. In Brown, the Eighth Appellate District held that a trial court must "set forth the verdict or its findings as to each and every charge prosecuted against an accused, and failure to do so renders the judgment substantively deficient under the rule [Crim.R. 32]." Id. at 2. Accordingly, the reviewing court held that the trial court failed to expressly determine which of the eleven charges resulted in convictions. Id.
Crim.R. 32(C), provides:
"A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence.* * *"
However, in the case presented before this court, the original judgment entry expressly stated that appellant was found convicted of all nine charges and was sentenced to a total of two years.
It is evident appellant's oral motion to withdraw was made prior to the trial court's sentencing appellant for the second time. A motion made pursuant to Crim.R. 32.1 is within the trial court's discretion; thus, the good faith, credibility, and weight of a movant's assertions in support should be resolved by the trial court. State v. Gibbs (June 9, 2000), Trumbull App. No. 98-T-0190, unreported (citing State v. Stumpf [1987],32 Ohio St.3d 95, 104).
As the majority states, the Peterseim test is applicable only with a pre-sentence motion to withdraw a plea. See State v. Jackson (Mar. 31, 2000), Trumbull App. No. 98-T-0182, unreported, (citing Peterseim,supra, at 213). However, when a motion to withdraw a plea is made after sentencing, an appellant bears the burden of showing the existence of a "manifest injustice." Jackson, unreported, (citing State v. Smith [1977], 49 Ohio St.2d 261, first paragraph of the syllabus); State v.Perry (May 2, 1997), Trumbull App. No. 95-T-5315, unreported. A post-sentence withdrawal motion is allowed only in extraordinary cases to correct a "manifest injustice." Smith at 264. This court has held that a hearing on a post-sentence motion to withdraw a plea is not necessary if the facts alleged by a defendant, accepted as true by the trial court, would not require the court to grant the motion to withdraw the plea. Jackson, supra, unreported; State v. Blatnik (1984), 17 Ohio App.3d 201, 204; Perry, supra, unreported. Specifically, a trial court may deny a post-sentence motion without a hearing, if the defendant fails to submit evidence containing operative facts which show that the plea was coerced or induced by false promises, and the record indicates that the defendant is not *Page 594 entitled to such relief. Perry, unreported; State v.Kapper (1983), 5 Ohio St.3d 36, 38. Furthermore, when the record, on its face, conclusively and irrefutably contradicts the defendant's claims in support of his post-sentence motion to withdraw, a hearing is not necessary. Perry, unreported, (citing Statev. Cosavage [June 28, 1995], Summit App. Nos. 17074 and 17075, unreported).
Additionally, the trial court's adherence to the requirements of Crim.R. 11, prior to accepting a plea, raises a presumption that the plea was voluntary; as a result, a defendant's motion to withdraw must make a prima facie showing of merit in order for a trial court to devote considerable time to it. Perry, unreported, (citing Haney, supra, unreported, at 7, quoting Hall, supra, unreported, at 2).
In Jackson, supra, the defendant claimed that he intended to only admit guilt on the charge of involuntary manslaughter and not the count of aggravated murder because his attorney and his family pressured him. This court held that the defendant failed to demonstrate the existence of a "manifest injustice" because the defendant signed the plea agreement while under the representation of counsel, the trial court fulfilled the requirements of Crim.R. 11 prior to accepting his plea, and the defendant's claims of undue pressure by his attorney and his family were unsubstantiated. Id.
In the instant case, during the second hearing, appellant claimed that he was forced to agree to the two-year prison sentence recommendation. Appellant also claimed that he plead guilty to the wrong count because he did not forge Joseph Walsh's name. Appellant has not met his burden of showing the existence of a "manifest injustice" or extraordinary circumstances which warrant relief of his post-sentence request to withdraw. Furthermore, a hearing was not necessary prior to the trial court's denial of appellant's post-sentence oral motion to withdraw because the record contradicts appellant's claims of coercion and mistake. The record shows that prior to accepting appellant's guilty plea, the court satisfied the Crim.R. 11 requirements. The record also shows that, during the original sentencing hearing on August 9, 1999, appellant was in the courtroom with counsel. Counsel for both sides referred to the specific details of the plea bargain agreement and the sentence recommendation agreement. The record shows that the court personally asked appellant if he understood the negotiations between the prosecutor and his defense counsel, if he understood how he was charged, if he understood what counsel had said, if he understood that he was waiving the right to a jury trial, etc. To all questions, appellant responded that he understood. The court also asked appellant if anyone had threatened him to secure his guilty plea. Appellant responded "no."
During the re-sentencing hearing on November 29, 1999, the court asked appellant if he wished to say anything on his behalf. At that time, *Page 595 appellant made a request to withdraw his plea (three months after his written plea of guilt). Appellant's oral request lacked supporting facts or reasons. Hence, the trial court gave appellant's request the amount of consideration that it warranted. For these reasons, the trial court did not abuse its discretion when it denied appellant's post-initial sentencing oral motion to withdraw his guilty plea made at appellant's re-sentencing hearing, which was convened solely to correct a clerical error.
____________________________ JUDGE DIANE V. GRENDELL