[Cite as State v. Maltos,
2022-Ohio-4307.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
STATE OF OHIO COURT OF APPEALS NO. {39}H-22-002
{39}H-22-004
APPELLANT
TRIAL COURT NO. CRI 2017-0477
V. CRI 2018-0050
SEFERINO J. MALTOS
APPELLEE
DECISION AND JUDGMENT
Decided: December 2, 2022
…
James Joel Sitterly, Huron County Prosecuting Attorney,
for appellee.
Seferino J. Maltos, pro se.
…
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Seferino Maltos, pro se, appeals the March 8, 2022
judgment of the Huron County Court of Common Pleas which denied his post-sentence
motion to withdraw his plea. Because we find no manifest injustice warranting relief, we
affirm.
I. Factual Background
{¶ 2} In two consolidated cases,1 appellant entered pleas of guilty to aggravated
drug trafficking, weapons under a disability, drug possession, and possession of criminal
tools. At the June 28, 2018 plea hearing, an extended discussion was had regarding the
return of non-contraband items that were located in appellant’s vehicle, which was
subject to forfeiture, and from a safe recovered from appellant’s house pursuant to a
search warrant. Specifically, the state indicated that as part of the plea agreement “[it]
would agree to return the sound system from the vehicle along with jewelry that was
seized from the safe that was involved.”
{¶ 3} After further discussion, it was clarified that the items from the vehicle to be
returned also included sunglasses, cologne, and other personal items. The state agreed
but noted that it could not warrant the condition of the items after being in the state’s
possession for a year. The June 29, 2018 plea form, signed by appellant and filed in case
No. CRI 20170477 stated, in relevant part:
Upon agreement of the parties, the jewelry and speakers which are
located in the forfeited vehicle shall be released to Defendant upon payment
of any and all towing and storage fees. Defendant shall show proof of
1
A third case, charging appellant with failure to appear, was dismissed by agreement of
the parties.
2.
identity and the agency holding said vehicle shall immediately and without
further Order release the stated items to Defendant or his designee.2
{¶ 4} Appellant was sentenced on July 5, 2018. As to aggravated trafficking in
drugs and having weapons under a disability, he received 24 month sentences and as to
possession of drugs and possessing criminal tools he received 11 month sentences. The
sentences for aggravated trafficking and weapons under disability and possessing
criminal tools were ordered to be served consecutively, for 59 months, to be served
concurrent to the possessing criminal tools charge. Forfeiture specifications were
attached to the aggravated trafficking, possession of drugs, and possessing criminal tools
counts. On August 30, 2018, a notice was filed that appellant’s vehicle had been
forfeited and was in the possession of the Willard Police Department.
{¶ 5} On February 25, 2019, appellant sent a letter to the court asking that the
jewelry recovered from the safe be returned to his family. On January 31, 2022,
appellant filed a pro se motion for judicial release and a separate motion to withdraw his
guilty plea arguing that the state breached the plea agreement because it would not return
the items it was contractually obligated to return. Alternatively, appellant requested
specific performance of the agreement. In response, the state argued that appellant, under
the standard for the post-sentence withdrawal of a plea, had failed to demonstrate a
manifest miscarriage of justice. The state attached a release completed by the Willard
2
The plea form filed in case No. CRI 20180050, made no reference to the return of non-contraband items.
3.
Police Department which shows that the speakers from appellant’s forfeited vehicle were
released to a Jose Ramirez (purportedly, appellant’s brother) in August 2018. The state
further indicated:
The jewelry that was required to be returned to the defendant is still
in the custody of the Huron County Sheriff’s Office. In accordance with
the policy of the Huron County Sheriff’s Office, any seized or held
property may not be returned to anyone other than the rightful owner
without a Court Order or some formal document from the rightful owner
such as a notarized release that permits the release or property to a
designee. No one has come to the Sheriff’s Office on behalf of the
defendant requesting the return of the jewelry, nor has anyone come to the
Sheriff’s Office on behalf of the defendant requesting the return of the
jewelry, nor has anyone provided a document that would permit the release
of the property to anyone other than the defendant.
The state made no mention of the sunglasses, cologne, or other personal items that were
located in the forfeited vehicle. The trial court summarily denied the motion. This
appeal followed
II. Assignment of Error
Assignment of Error No. 1: When the state breaches a specific
performance contractual plea agreement, State v. Brunning, 2013 Ohio 930,
at: HN3, the defendant has the option of either: (1) withdrawing his plea;
4.
or, (2) seeking specific performance. see: State ex rel. Seibert v.
Wilkinson, 69 Ohio St. 3d 489, 491; and, Santobello v. New York,
404
U.S. 257, 261 (1971).
see also:
State v. Adams, 2014 Ohio 724,
8 N.E. 3d 984;
State v. Vari, 7th Dist. No. 07MA142, 2021 Ohio 1300, ¶19; and,
State v. Houston, 2019 Ohio 355 (8th Dist.), at: HN1.
III. Discussion
{¶ 6} Pursuant to 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.” On a motion to withdraw a plea after sentencing,
a defendant has the burden to show the existence of a manifest injustice. State v. Hall,
6th Dist. Wood No. WD-19-084, 2021-Ohio-983, ¶ 6, appeal not allowed,
163 Ohio
St.3d 1493,
2021-Ohio-2270,
169 N.E.3d 1280, citing State v. Davis,
2020-Ohio-4539,
159 N.E.3d 331, ¶ 20 (6th Dist.). A defendant must also demonstrate that the matter is
not barred by res judicata. State v. Cain, 6th Dist. Lucas No. L-20-1126, 2021-Ohio-
1841, ¶ 11
{¶ 7} A “manifest injustice” has been described as a “‘clear or openly unjust act’”
or “‘an extraordinary and fundamental flaw in the plea proceeding[s].’” State v.
Reznickcheck, 6th Dist. Lucas Nos. L-04-1029, L-04-1030, 2004-Ohio-4801, ¶ 11,
5.
quoting, respectively, State ex rel. Schneider v. Kreiner,
83 Ohio St.3d 203, 208,
699
N.E.2d 83 (1998) and State v. Lintner, 7th Dist. Carroll No. 732, 2001WL 1126654, *3
(Sept. 21, 2001). “The decision of whether manifest injustice occurred is left to the
sound discretion of the trial court.”
Davis at ¶ 20, citing 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 denial of appellant’s post-sentence motion to withdraw his guilty plea under an
abuse of discretion standard.
Davis at ¶ 21. An abuse of discretion connotes that the trial
court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams,
62 Ohio
St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶ 8} In addition, although there are no express time limits set forth in Crim.R.
32.1 regarding a post-sentence motion to withdraw a plea, a court may consider “undue
delay” between the basis for the request and the filing of the motion as evidence of the
credibility of the arguments. Reznickcheck at ¶ 8, citing Smith, supra, at paragraph three
of the syllabus.
{¶ 9} Turning to the merits of appellant’s appeal, we agree that “[w]hen a
prosecutor induces a defendant to plead guilty based upon certain promises, the
prosecutor has a duty to keep those promises.” State v. Simpson, 158 Ohio App.3d 441,
2004-Ohio-4690,
816 N.E.2d 609, ¶ 14 (2d Dist.), citing Santobello v. New York,
404
U.S. 257,
92 S.Ct. 495,
30 L.Ed.2d 427 (1971). Upon a breach of the agreement, the
defendant is entitled to either specific performance by the state or withdrawal of the plea.
Id. See State v. Kocak,
2016-Ohio-8483,
79 N.E.3d 127, ¶ 30 (7th Dist.); State v. Liles,
6.
3d Dist. Allen No. 1-14-61,
2015-Ohio-3093, ¶ 11. “To determine whether a breach of a
plea agreement has occurred, courts examine what the parties reasonably understood at
the time the defendant entered his guilty plea.” State v. Collins, 8th Dist. Cuyahoga Nos.
106590, 107341,
2019-Ohio-249, ¶ 17.
{¶ 10} Appellant relies on an Eighth Appellate District case involving the state’s
representation at the plea hearing that all three counts relating to the defendant’s failure to
register as a sex-offender were allied and would merge for purposes of sentencing and
that he faced a maximum sentence of eight years. State v. Brunning, 8th Dist. Cuyahoga
No. 95376, 2013-Ohio-930 ¶ 5. At sentencing, the state disputed any agreement
regarding merger of the charges and appellant was sentenced to a maximum, consecutive
sentence of 21 years in prison. Id. at ¶ 6. Reversing the lower court, the court found that
the state clearly breached the plea agreement. This fact, and the fact that the Supreme
Court of Ohio had modified the charges available to the state, required that the plea be
vacated. Id. at ¶ 10-11.
{¶ 11} The obvious manifest injustice in Brunning, does not exist under the
present facts. As set forth above, appellant’s motion to withdraw his guilty plea first
argued that the agreement of the parties, as discussed on the record at the plea hearing,
was not memorialized in the signed plea agreement. Reviewing the agreement, we note
that it does reference the return of jewelry and speakers to defendant or his designee upon
proof of identity. Appellant further argued that the state failed to return any of the
agreed-upon items. In response, the state indicated that the speakers were, in fact,
7.
returned to appellant’s brother and that the jewelry was still in possession of the Huron
County Sheriff’s Office and that the procedure for its return had not been followed.
{¶ 12} Before this court, appellant first argues that the state “has made no effort or
attempt to return those items of personal property to appellant or his family” despite
knowledge of his address and the family’s address. His reply brief asserts that the state
was required to return the property upon the court’s acceptance of the plea and that he
“has repeatedly has sent family and friends to retrieve the [‘court ordered property’]” and
that “appellee patently refused to relinquish that property.” Appellant attached a power
of attorney he executed in favor of Jose Ramirez, in 2020, for the purpose of retrieving
the confiscated items. There is no evidence of Ramirez’s actual attempts to retrieve the
items.
{¶ 13} Conversely, the state argues, as it did in the trial court, that a family
member had received some of his property (the speakers) and that appellant has failed to
substantiate his claim that the state refused to return the additional items. The state also
suggests that appellant has the remedy of replevin to seek return of the impounded items.
{¶ 14} Reviewing appellant’s arguments and the record below, it is clear that the
speakers were returned in 2018, and that appellant failed to demonstrate a manifest
injustice regarding the return of any additional items. Moreover, there is no evidence
before us that the state refused to return the items. In fact, appellant first argues that the
state should have sent them back to him then, following the state’s response, appellant
argues that they refused to return the items despite multiple, undocumented attempts.
8.
Further, we cannot ignore the fact that appellant filed the motion nearly four years after
he was sentenced. If his plea was clearly conditioned on the return of the items at issue,
it stands to reason that he would have promptly filed a motion in relation thereto.
{¶ 15} Based on the foregoing, we find that the trial court did not abuse its
discretion when it denied appellant’s motion to withdraw his guilty plea. Appellant’s
assignment of error is not well-taken.
IV. Conclusion
{¶ 16} On consideration whereof, the March 8, 2022 judgment of the Huron
County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered
to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. [[Applied Signature]]
JUDGE
Thomas J. Osowik, J. [[Applied Signature 2]]
JUDGE
Myron C. Duhart, P.J. [[Applied Signature 3]]
CONCUR JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.
