[Cite as State v. Daniel,
2016-Ohio-7094.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 26825
Plaintiff-Appellee :
: Trial Court Case No. 14-CR-96
v. :
: (Criminal Appeal from
GREGORY DANIEL : Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 30th day of September, 2016.
...........
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Gregory Daniel appeals from an order of the trial court
overruling his post-sentence motion to withdraw his guilty pleas to Having Weapons
Under Disability, Tampering with Evidence, Criminal Damaging, Improper Handling of a
Firearm in a Motor Vehicle, and Failure to Comply With an Order or Signal of a Police
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Officer. Daniel contends that the trial court abused its discretion by overruling his post-
sentence motion to withdraw his guilty plea. We conclude that no manifest injustice has
been demonstrated, so that the trial court did not abuse its discretion. Accordingly, the
order of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 2} Daniel was indicted in April 2014 on eight separate charges. Following plea
negotiations, Daniel pled guilty to Having Weapons Under Disability, Tampering with
Evidence, Criminal Damaging, Improper Handling of a Firearm in a Motor Vehicle, and
Failure to Comply With an Order or Signal of a Police Officer. In exchange, the State
dismissed the three remaining felony counts, as well as two firearm specifications. The
parties agreed to an aggregate sentence of five years.
{¶ 3} At the sentencing hearing, the trial court sentenced Daniel to imprisonment
for 36 months for Having Weapons Under Disability, and to 24 months for Tampering with
Evidence, with both sentences to run consecutively. The trial court sentenced Daniel to
90 days for Criminal Damaging, 18 months for Improper Handling of a Firearm, and 18
months for Failure to Comply; all to run concurrently with each other, and with the other
sentences, for an aggregate sentence of five years. The trial court also ordered
restitution and court costs.
{¶ 4} The trial court held a re-sentencing hearing on September 24, 2014 because
it had failed to order the sentence for Failure to Comply to run consecutive to any other
sentences as required by R.C. 2921.331(D). The court explained to Daniel that he would
be subject to the same prison term as agreed upon, but that the sentence format would
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be restructured. The trial court changed the sentence by imposing a twelve-month
sentence for the Tampering with Evidence charge, and a twelve-month sentence for the
Failure to Comply sentence. The sentences for the remaining charges were unchanged.
The trial court ordered the sentences for Having Weapons Under Disability, Tampering
with Evidence, and Failure to Comply to run consecutively, with the remaining sentences
to run concurrently, for an aggregate sentence of five years. The trial court made the
requisite statutory findings for imposing consecutive sentences. Daniel did not appeal.
{¶ 5} On July 14, 2015, Daniel moved, pro se, to withdraw his guilty plea. The
trial court overruled the motion without a hearing. Daniel appeals.
II. The Record Fails to Demonstrate Manifest Injustice
{¶ 6} Daniel’s sole assignment of error states:
THE TRIAL COURT DENIED APPELLANT DUE PROCESS AND
ERRED IN OVERRULING THE MOTION TO WITHDRAW PLEA
WITHOUT A HEARING.
{¶ 7} Daniel contends that he should be permitted to withdraw his plea because
counsel was ineffective for failing to object when the trial court did not make the required
statutory findings under R.C. 2929.14(C)(4) and R.C. 2921.12(A)(1) before the court
ordered consecutive sentences. Daniel also contends that his maximum sentence
should have been only three years, rather than five. He further contends that the trial
court should have sustained his motion to withdraw his plea, because counsel was
ineffective when he failed to request a waiver of costs and fines.
{¶ 8} Pursuant to Crim.R. 32.1, a trial court may permit a defendant to withdraw
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his guilty plea before sentencing. However, a plea may be withdrawn after sentence has
been imposed in order to correct a manifest injustice. State v. Humphrey, 2d Dist.
Montgomery No. 19243, 2002-Ohio-6525, ¶ 18. A manifest injustice has been defined
as “a clear or openly unjust act” that involves “extraordinary circumstances.” State v.
Stewart, 2d Dist. Greene No. 2003-CA-28,
2004-Ohio-3574, ¶ 6. Under Crim.R. 32.1, a
defendant who files a post-sentence motion to withdraw her guilty plea bears the burden
of establishing a “manifest injustice.” State v. Smith,
49 Ohio St.2d 261,
361 N.E.2d
1324 (1977), paragraph one of the syllabus. “A manifest injustice results from ineffective
assistance of counsel only when, because of the ineffective assistance, the guilty plea is
not entered knowingly and voluntarily.” State v. Smith, 9th Dist. Lorain No 06CA008926,
2006-Ohio-5478, ¶ 9. “In order to prevail on a claim of ineffective assistance of counsel,
a defendant must show that counsel's representation fell below an objective standard of
reasonableness and that, but for counsel's errors, the result of the proceeding would have
been different.” State v. Stevens, 2d Dist. Montgomery No. 19572,
2003-Ohio-6249, at
¶ 33.
{¶ 9} We turn first to the issue of the consecutive sentences. Daniel is correct that
R.C. 2929.14(C)(4) requires a trial court to make certain findings prior to imposing
consecutive sentences. But those findings are unnecessary when the court imposes a
jointly-recommended sentence. State v. Sergent, Ohio Sup. Ct. Slip Opinion No. 2016-
Ohio-2696, ¶ 43. Indeed, a jointly recommended sentence that is not contrary to law is
not subject to appellate review. Id. In the case before us, the trial court conducted a
full plea colloquy in accordance with Crim.R. 11, and Daniel entered his plea with the
understanding that he would be sentenced to a five-year prison term. The parties agreed
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to a five-year sentence, and the trial court imposed the agreed-upon sentence. The five-
year sentence is within the statutory range for the offenses. At re-sentencing, the trial
court made the requisite findings for the imposition of consecutive sentences. Because
Daniel got the five-year sentence he bargained for, no manifest injustice occurred.
{¶ 10} We next address the claim that trial counsel should have objected to the
imposition of costs and fines.1 In his motion to withdraw, Daniel argued that because he
was going to prison, where he could only earn $17 per month, counsel and the court
should have known that he would be indigent. He asserted that his counsel should
therefore have asked for a waiver or deferral of costs and fines. Daniel argued that
because of trial counsel’s failure to seek waiver or deferral, he will not be able to receive
“gifts from family or friends” without being subject to garnishment.
{¶ 11} It is clear from the record that, at the time of the plea, Daniel was aware
that costs and restitution could be assessed. He signed waiver forms indicating that he
was aware of the amounts that could be assessed. These forms also indicated that he
agreed to the negotiated plea agreement. He does not allege in his motion, nor aver in
his affidavit in support thereof, that counsel failed to adequately discuss this issue with
him.2 Nor does he claim, either in his motion or in his appellate brief, that the trial court
1
Defendant’s motion to withdraw his plea speaks, in one place, of trial counsel’s failure
to seek a waiver of “court costs or fines” and a failure to seek a waiver of “restitution and
court costs” in another. Appellant’s brief herein argues that trial counsel was ineffective
for “failure to argue or object to fines and costs.” The trial court ordered defendant to
pay court costs and restitution; it did not impose a fine on defendant. It appears that
Appellant is using fines and restitution interchangeably.
2
Daniel did aver that counsel failed to discuss the need for statutory findings prior to
imposing consecutive sentences. Had counsel also failed to discuss waiver or deferral
of costs, Daniel could have included that fact in his affidavit.
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erred in its finding that he would have the ability in the future to pay costs and fines. His
argument is focused upon his indigency while incarcerated. He does not claim that he
will be unable to make the required payments upon release.
{¶ 12} “A hearing on a post-sentence motion to withdraw a guilty plea is not
necessary if the facts alleged by the defendant, even if accepted as true, would not require
the court to grant the motion[.]” State v. Burkhart, 2d Dist. Champaign No. 07-CA-26,
2008-Ohio-4387, ¶ 12. We apply an abuse-of-discretion standard to a trial court's
decision on a motion to withdraw a guilty plea and its decision whether to grant a hearing.
Smith,
49 Ohio St.2d 261, at paragraph two of the syllabus.
{¶ 13} Upon review, we find no abuse of discretion in the trial court's denial of
Daniel’s motion without a hearing, because there is no indication in the record that
Daniel’s plea was other than knowing and voluntary. Accordingly, the sole assignment
of error is overruled.
III. Conclusion
{¶ 14} Daniel’s sole assignment of error having been overruled, the order of the
trial court overruling Daniel’s motion to withdraw his plea is Affirmed.
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HALL and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Meagan D. Woodall
Jay A. Adams
Hon. Dennis J. Adkins
