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State v. Johnson

Court of Appeals of Ohio, Second District, Montgomery

December 22, 2017

STATE OF OHIO Plaintiff-Appellee
JACQUE L. JOHNSON Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2010-CR-1871

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Attorney for Plaintiff-Appellee

          JACQUE L. JOHNSON, Defendant-Appellant-Pro Se


          TUCKER, J.

         {¶ 1} Defendant-appellant Jacque Johnson appeals from a decision of the Montgomery County Court of Common Pleas denying his motion to withdraw his guilty plea, his motion for a transcript at State's expense, and his motion for an evidentiary hearing. We conclude that the trial court did not abuse its discretion in denying the motion to withdraw the plea and the motion for a hearing as Johnson failed to demonstrate that his plea was not voluntarily and knowingly made. We further agree with the trial court that there was no appeal pending that would necessitate the preparation of a transcript for purposes of appeal. Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 2} In July 2010, Johnson was indicted on one count of aggravated robbery with a three-year firearm specification, one count of having weapons while under disability, and one count of aggravated menacing. At that time, he was on parole for a 1983 aggravated robbery conviction. Following a plea agreement, Johnson agreed to plead guilty to aggravated robbery and the attendant firearm specification. In exchange, the State agreed to dismiss the remaining counts. Both parties agreed to a six-year prison sentence. The trial court sentenced Johnson to the agreed upon term.

         {¶ 3} On August 8, 2016, Johnson filed a motion to withdraw his guilty plea. In the motion, Johnson argued that based upon the plea agreement and sentence imposed, he "had an expectancy to be released on post-release control upon May 18, 2016." However, he was notified by the Ohio Adult Parole Board that he was required to serve an additional three years in prison due to the violation of his parole related to the 1983 conviction. Thus, Johnson argued that he should be permitted to withdraw his plea in this case because the trial court did not properly advise him that the parole violation could add time to his sentence. On September 16, 2016, Johnson filed a motion for an evidentiary hearing on his motion to withdraw the plea. On September 30, 2016, he filed a motion for preparation of a complete transcript at the State's expense claiming that it was "necessary for the effective pursuit of his appeal as of right."

         {¶ 4} On November 18, 2016, the trial court entered a decision and entry denying all three motions. Johnson, proceeding pro se, appeals.

         II. Analysis

         {¶ 5} Johnson's appellate brief does not comport with App.R. 16(A)(1), (2), (3) or (4). However, in a "supplemental brief, " Johnson does set forth the following assignment of error:


         {¶ 6} Johnson contends that the trial court erred by denying his motion to withdraw his guilty plea. In support, he claims that he was improperly informed about the effect that his guilty plea in this case could have on his parole in the 1983 conviction.

         {¶ 7} Crim.R. 32.1 provides that a trial court may permit a defendant to withdraw his guilty plea after sentence has been imposed in order to correct a manifest injustice. "The manifest-injustice standard demands a showing of extraordinary circumstances, and the defendant bears the burden of proving the existence of a manifest injustice." State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346, 869 N.E.2d 708, ¶ 20 (2d Dist.). "The heavy standard is meant to avoid the possibility of a defendant pleading guilty to test the weight of potential punishment and later withdrawing the plea if the sentence was unexpectedly severe." State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d 607, ¶ 4 (8th Dist.), citing State v. Makupson, 8th Dist. Cuyahoga No. 89013, 2007-Ohio-5329, ¶ 20, fn. 7, citing State v. Caraballo,17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). A trial court's decision regarding a motion to withdraw a guilty plea will not be reversed absent an abuse of discretion. Id. at ΒΆ 5. The term "abuse of discretion" indicates an ...

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