CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2004-01-0162.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, for plaintiff-appellee.
Carlos A. Hopkins, #A465-965, defendant-appellant, pro se.
(¶ 1} Defendant-appellant, Carlos A. Hopkins, appeals pro se from a decision of the Butler County Court of Common Pleas denying his "Motion to Withdraw Plea and/or Relief from Judgment." For the reasons set forth below, we affirm the decision of the trial court.
(¶ 2} In 2004, appellant was arrested and charged by way of a bill of information with one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree. The rape charge involved appellant's act of having vaginal intercourse with his seven-year-old daughter. The gross sexual imposition charge involved appellant's action of causing his seven-year-old daughter to masturbate his penis with her hands after the vaginal intercourse was completed. A plea agreement was reached between the state and appellant wherein the parties jointly recommended that appellant receive a ten-year sentence on the rape charge to run consecutive to a five-year sentence on the gross sexual imposition charge. Therefore, in February 2004, appellant pled guilty to the charges against him and was sentenced to serve a total of 15 years in prison.
(¶ 3} Appellant did not directly appeal his convictions and sentence. Rather, eight years later, on October 2, 2012, appellant filed a motion to withdraw his guilty pleas and/or be granted relief from judgment on the basis that appellant's two convictions should have been merged. Essentially, appellant argued that the rape and gross sexual imposition charges were allied offenses of similar import which should have been merged, providing appellant with only a ten-year prison sentence.
(¶ 4} On November 6, 2012, the trial court denied appellant's motion to withdraw his guilty pleas and/or be granted relief from judgment. The trial court found that appellant's argument was barred by the doctrine of res judicata and that appellant's convictions did not constitute allied offenses of similar import.
(¶ 5} Appellant now appeals from the trial court's decision, raising as his sole assignment of error, the following:
(¶ 6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO GRANT LEAVE TO WITHDRAW THE GUILTY PLEA[S] IN THIS CASE, OR IN THE ALTERNATIVE, TO CORRECT THE SENTENCE.
(¶ 7} In his sole assignment of error, appellant argues the trial court erred to his prejudice in sentencing him on both the rape charge and the gross sexual imposition charge, claiming that the two are allied offenses of similar import pursuant to R.C. 2941.25. Appellant does not seek to disturb the underlying pleas of guilty, but rather challenges the sentencing of the trial court.
(¶ 8} "Crim.R. 32.1 provides that a trial court may grant a defendant's postsentence motion to withdraw a guilty plea only to correct manifest injustice, and a defendant seeking to withdraw a plea after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Carter, 12th Dist. Clinton Nos. CA2010-07-012, CA2010-08-016, 2011-Ohio-414, ¶ 115, citing Crim.R. 32.1; State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus.
(¶ 9} In general, "manifest injustice relates to a 'fundamental flaw in the proceedings' that results in a miscarriage of justice or is inconsistent with the demands of due process." State v. Williams, 12th Dist. Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 11, quoting State v. Taylor, 12th Dist. Madison No. CA2007-12-037, 2009-Ohio-924, ¶ 12. "'Manifest injustice' is an extremely high standard, which permits a defendant to withdraw his guilty plea only in extraordinary cases." State v. Layne, 4th Dist. Highland No. 11CA17, 2012-Ohio-1627, ¶ 4, citing Smith at 264; Williams at ¶ 11. "The requirement of demonstrating a manifest injustice is designed to discourage a defendant from pleading guilty to test the weight of the potential reprisal, and later attempting to withdraw the plea if the sentence was unexpectedly severe." Williams at ¶ 12. "[A]n 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 grant of the motion." Smith at paragraph three of the syllabus.
(¶ 10} The decision to grant or deny a Crim.R. 32.1 motion is within the trial court's discretion. Carter at ¶ 16. Therefore, we will not reverse the trial court's decision absent an abuse of discretion. Layne at ¶ 4. Furthermore, "the good faith, credibility and weight of the defendant's assertions in support of the motion are matters to be resolved by [the trial] court." Carter at ...