[Cite as State v. DiTomaso,
2025-Ohio-4913.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2025-P-0007
2025-P-0014
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas
ALBERT C. DITOMASO,
Trial Court No. 2023 CR 00004
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: October 27, 2025
Judgment: Affirmed
Connie J. Lewandowski, Portage County Prosecutor, 241 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellee).
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Appellant, Albert C. DiTomaso, appeals from the judgment of the Portage
County Court of Common Pleas denying his pro se post-sentence motion to change his
guilty plea to one count of sexual battery. DiTomaso’s appellate counsel has filed a
motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting there are no meritorious issues for review. After an independent review of the
record pursuant to Anders, appellate counsel’s potential assignments of error, and
DiTomaso’s pro se submission, we find DiTomaso’s appeals are wholly frivolous. Thus,
we grant appellate counsel’s motion to withdraw and affirm the trial court’s judgment.
{¶2} In January 2023, a Portage County Grand Jury indicted DiTomaso on one
count of rape, a first-degree felony, in violation of R.C. 2907.02. In February 2023,
DiTomaso agreed to plead guilty to a reduced charge of sexual battery, a third-degree
felony, in violation of R.C. 2907.03. In exchange, the State agreed to concur with the
presentence investigation and to not oppose local sanctions. Both in his written plea and
at the plea hearing, DiTomaso agreed he understood the maximum possible penalty was
five years in prison, a $10,000 fine, and a Tier III sex offender classification. The trial
court sentenced DiTomaso to 180 days in the Portage County Jail, with credit for 109
days served, and five years of community control, and notified him of his duties to register
as a Tier III sex offender.
{¶3} In August 2023, the Portage County Probation Department filed a motion to
modify/revoke community control, alleging DiTomaso (1) failed to conduct himself as a
good citizen because he was charged with vehicular homicide, aggravated vehicular
homicide, aggravated vehicular assault, vehicular assault, three counts of driving while
intoxicated, and failure to keep an assured clear distance; and (2) failed to abstain from
using illegal substances by testing positive for alcohol, methylenedioxy-
methylamphetamine (MDMA) and methamphetamine.
{¶4} At the probable cause hearing for the community-control violation in
September 2023, DiTomaso told the court he voluntarily turned himself in and he admitted
to both violations. After his counsel expressed DiTomaso’s wish to proceed to
sentencing, the court terminated DiTomaso’s community control and sentenced him to a
12-month term of imprisonment.
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{¶5} In January 2025, DiTomaso filed a pro se motion to “vacate probation
violation drug screen agreement,” in which he contended he had only agreed that he
tested positive for alcohol, not that he had used illegal substances.
{¶6} On the same day, DiTomaso also filed a pro se motion “to change plea,”
contending he was not provided with effective assistance of counsel because he did not
have a full understanding of the charges against him, he was not provided with full
discovery, he was threatened with a “Reagan Tokes enhancement” and other grossly
exaggerated consequences if he went to trial, and he was not given a reasonable amount
of time to consider the plea deal.
{¶7} The following month the trial court held a hearing, reviewing DiTomaso had
failed a urine screen in jail, and he had filed the two pro se motions. The court determined
the case was closed and DiTomaso still had pending charges in another case. After the
State argued DiTomaso did not meet his burden to establish a manifest injustice in
support of his motion to withdraw his guilty plea and was raising arguments he should
have raised on direct appeal, the trial court overruled DiTomaso’s motion “to change
plea.” In a separate judgment entry, the trial court also overruled DiTomaso’s motion to
“vacate his probation violation drug screen agreement,” which DiTomaso did not appeal.
{¶8} DiTomaso filed two notices of appeal from the trial court’s judgment denying
his pro se motion to withdraw his guilty plea. DiTomaso’s appellate counsel subsequently
filed a brief pursuant to Anders, 386 U.S. 738, asserting there are no non-frivolous issues
for review, and a motion to withdraw as counsel. Appellate counsel set forth six potential
assignments of error:
{¶9} “[1.] Mr. DiTomaso’s plea was not knowingly, intelligently, and voluntarily
entered into and is therefore contrary to law.
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{¶10} “[2.] Mr. Ditomaso’s plea was the result of ineffective assistance of counsel
and therefore was taken in violation of defendant-appellant’s sixth amendment right to
counsel and is therefore contrary to law.
{¶11} “[3.] The trial court wrongly denied Mr. DiTomaso’s motion for post-
conviction relief without a hearing.
{¶12} “[4.] The trial court violated Mr. DiTomaso’s due process rights when it
revoked Mr. DiTomaso’s probation without obtaining a waiver from Mr. DiTomaso or
conducting an evidentiary hearing.
{¶13} “[5.] Mr. DiTomaso was unconstitutionally denied the opportunity to
represent himself at the February 7, 2025 motion hearing.
{¶14} “[6.] Mr. DiTomaso was unconstitutionally denied the opportunity to modify
his admission at his probation violation hearing.”
{¶15} DiTomaso raised three issues in his pro se submission, contending (1) he
did not understand the nature of the charges as a result of pleading to a reduced charge
of sexual battery, (2) the legal advice he received was deficient, and (3) he did not plead
guilty with “his own free will,” in violation of his First Amendment rights.
Standard of Review
{¶16} In Anders, 386 U.S. 738, the Supreme Court of the United States held that
if appellate counsel, after a conscientious examination of the record, finds an appeal to
be wholly frivolous, he or she should advise the court and request permission to withdraw
as counsel.
Id. at 744. This request to withdraw must be accompanied by a brief citing
anything in the record that could arguably support an appeal.
Id. Further, counsel must
furnish his or her client with a copy of the brief and the request to withdraw and give the
client an opportunity to raise any additional issues.
Id. Once these requirements have
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been met, the appellate court must review the entire record to determine whether the
appeal is wholly frivolous. Id. If the court finds the appeal is wholly frivolous, the court
may grant counsel’s motion to withdraw and proceed to a decision on the merits.
Id. If,
however, the court concludes the appeal is not frivolous, it must appoint new counsel.
Id.
{¶17} We note that effective as of July 1, 2025, our Local Rules no longer permit
appellate counsel to file no-merit briefs. See Eleventh Dist. Loc.R. 16(F) (“Briefs filed
pursuant to Anders v. California, 380 U.S. 738 (1967) will not be accepted. Counsel must
file a merit brief, unless the appellant directs counsel that the appeal should be
withdrawn.”). Because appellate counsel filed his brief prior to the rule change, we
proceed under the Anders framework.
Postsentence Motion to Withdraw Guilty Plea
{¶18} Appellate counsel’s first, second, third, and fifth potential assignments of
error, as well as DiTomaso’s issues, concern DiTomaso’s post-sentence motion to
withdraw his guilty plea.
{¶19} Pursuant to Crim.R. 32.1, a trial court may grant a defendant’s post-
sentence motion to withdraw a guilty plea only to “correct manifest injustice.”
{¶20} In State v. Straley, 2019-Ohio-5206, the Supreme Court of Ohio succinctly
summarized the precedent surrounding this rule:
“A defendant who seeks to withdraw a plea of guilty after the
imposition of sentence has the burden of establishing the existence of
manifest injustice.” State v. Smith, 49 Ohio St.2d 261 (1977), paragraph
one of the syllabus. A “manifest injustice” is a “clear or openly unjust act,”
State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998), and
relates to a fundamental flaw in the plea proceedings resulting in a
miscarriage of justice, State v. Tekulve, 2010-Ohio-3604, ¶ 7 (1st Dist.),
citing Kreiner at 208 and Smith at 264. The term “has been variously
defined, but it is clear that under such standard, a postsentence withdrawal
motion is allowable only in extraordinary cases.” Smith at 264.
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Although Crim.R. 32.1 does not provide a time limit for moving to
withdraw after a sentence is imposed, “an undue delay between the
occurrence of the alleged cause for withdrawal and the filing of the motion
is a factor adversely affecting the credibility of the movant and militating
against the granting of the motion.” Smith at 264, citing Oksanen v. United
States, 362 F.2d 74, 79 (8th Cir. 1966). And generally, res judicata bars a
defendant from raising claims in a Crim.R. 32.1 postsentencing motion to
withdraw a guilty plea that he raised or could have raised on direct appeal.
See State v. Ketterer, 2010-Ohio-3831, ¶ 59.
Id. at ¶ 14-15.
{¶21} Appellate courts review a trial court’s decision on a motion to withdraw a
plea under an abuse of discretion standard. Id. at ¶ 15. An abuse of discretion is the trial
court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.
Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004).
{¶22} DiTomaso waited approximately 20 months after he entered his guilty plea
to file his pro se motion to withdraw his guilty plea. He also did not file a direct appeal of
his sentence. The allegations in his motion—concerning ineffective assistance of
counsel, losing his veteran housing benefits, and being “forced” to accept a plea deal
because he was waiting for a resolution in jail without bond—are arguments he could
have and should have raised on direct appeal from the sentencing entry. Thus, these
arguments are barred by the doctrine of res judicata. See Straley, 2019-Ohio-5206, at ¶
23 (“Res judicata generally bars a defendant from raising a claim in a Crim.R. 32.1
postsentencing motion to withdraw a guilty plea that he raised or could have raised on
direct appeal.”); State v. Burton,
2023-Ohio-4370, ¶ 22 (11th Dist.) (because the appellant
could have raised his claims of ineffective assistance of counsel and double jeopardy in
a direct appeal of his sentence, the claims were barred by the doctrine of res judicata).
{¶23} A review of the record reveals DiTomaso apparently suffered from “buyer’s
remorse” as to the sex offender classification and his admissions to violating his
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community control because of the impact they had on his pending criminal case.
However, “[a] defendant’s change of heart is insufficient to demonstrate a manifest
injustice, especially where the ‘second thoughts’ are entirely based upon the
dissatisfaction with the sentence imposed.” State v. Pena, 2023-Ohio-2354, ¶ 25 (11th
Dist.). DiTomaso received the benefit of his bargain by pleading to a less serious felony
and receiving a sentence of community control, which the State did not contest.
{¶24} In regards to appellate counsel’s potential assignments of error, we first
note that while ineffective assistance of counsel is a valid ground for filing a post-sentence
motion to withdraw a guilty plea, State v. Gibson, 2007-Ohio-6926, ¶ 26 (11th Dist.), “‘a
guilty plea represents a break in the chain of events that preceded it in the criminal
process; thus, a defendant, who admits his guilt, waives the right to challenge the
propriety of any action taken by a trial court or trial counsel prior to that point in the
proceedings unless it affected the knowing and voluntary character of the plea. . . . This
“waiver” is applicable to a claim of ineffective assistance of trial counsel unless the
allegation caused the plea to be less than knowing and voluntary.’” State v. Wilmington,
2023-Ohio-512, ¶ 25 (11th Dist.), quoting State v. Madeline,
2002 WL 445036, *4 (11th
Dist. Mar. 22, 2002). A guilty plea is deemed to have been entered knowingly and
voluntarily if the record demonstrates, as it does in the instant case, that the trial court
complied with Crim.R. 11(C). Id. at ¶ 26. The record also reflects DiTomaso confirmed
his understanding of the trial court’s advisements and the charges against him.
Therefore, the record demonstrates his guilty plea was knowingly, intelligently, and
voluntarily made. Id. at ¶ 31.
{¶25} Second, DiTomaso was not entitled to an evidentiary hearing on his motion
to withdraw his plea because he did not demonstrate a manifest injustice that would entitle
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him to any relief. A hearing is required on a post-sentence motion to withdraw a guilty
plea only if the defendant alleges facts that, if accepted as true by the trial court, would
require withdrawal of the plea. Gibson, 2007-Ohio-6926, at ¶ 32-33 (11th Dist.). None
of the facts DiTomaso alleged in his motion to withdraw his guilty plea would have
required the trial court to allow him to withdraw his plea.
{¶26} Third, DiTomaso was not prevented from proceeding self-represented at an
evidentiary hearing on his motion to withdraw his guilty plea. The transcript reflects the
hearing was a status hearing at which the court determined the case was closed since
the court had already revoked community control and imposed a prison sentence. The
trial court overruled DiTomaso’s motion after the State noted DiTomaso’s motion was
untimely and failed to demonstrate a manifest injustice.
{¶27} In sum, the trial court did not abuse its discretion by overruling DiTomaso’s
pro se post-sentence motion to withdraw his guilty plea without an evidentiary hearing.
Revocation of Community Control
{¶28} In the fourth and sixth potential assignments of error, appellate counsel
raises several possible issues surrounding DiTomaso’s community-control violations.
Counsel suggests DiTomaso was deprived of due process because he did not waive his
right to a probable cause hearing before being sentenced and he was prevented from
modifying his admissions to his community-control violations. However, DiTomaso did
not appeal the trial court’s judgment denying his pro se motion to vacate his probation
violation; thus, these issues are not properly before us.
{¶29} Even if they were, however, these issues would have no merit since
consequences to a pending criminal case, and due process violations are invited error.
“Under the settled principle of invited error, a litigant may not ‘take advantage of an error
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which he himself invited or induced.’” State v. Murphy, 91 Ohio St.3d 516, 535-536
(2001), quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co.,
28 Ohio St.3d 20 (1986),
paragraph one of the syllabus. At the probable cause hearing, DiTomaso stated he
voluntarily turned himself in for violating his community control, he admitted to the
violations, i.e., the pending criminal charges and testing positive for alcohol and illegal
substances, and he asked to proceed to sentencing on the same day. In the words of his
counsel, “[H]e has come today. He’s prepared to have this at least completed, that way
he doesn’t have to appear in front of this court again.” See State v. Frazier, 2017-Ohio-
470, ¶ 17 (8th Dist.) (appellant admitted to a violation of the terms of community control
and waived any argument that he did not commit a violation of those terms; thus, his due
process rights were not violated since he caused any error of which he now complains).
{¶30} After an independent review of the record, appellate counsel’s potential
assignments of error, and DiTomaso’s pro se submission, we conclude the instant
appeals are wholly frivolous. Appellate counsel’s motion to withdraw is granted, and the
judgment of the Portage County Court of Common Pleas overruling DiTomaso’s post-
sentence motion to withdraw his guilty plea is affirmed.
ROBERT J. PATTON, P.J.,
SCOTT LYNCH, J.,
concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s instant appeals are
wholly frivolous. It is the judgment and order of this court that the judgment of the Portage
County Court of Common Pleas is affirmed.
It is further ordered that the motion to withdraw as counsel for appellant filed by
Atty. Eric R. Fink is hereby granted.
Costs to be taxed against appellant.
JUDGE MATT LYNCH
PRESIDING JUDGE ROBERT J. PATTON,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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