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State v. Harris

Court of Appeals of Ohio, Eleventh District, Trumbull

July 29, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TIMOTHY WAYNE HARRIS, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR 00200.

          Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, For Plaintiff-Appellee.

          Timothy Wayne Harris, pro se, Defendant-Appellant.

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, Timothy Harris Jr., appeals from the judgment of the Trumbull County Court of Common Pleas, denying his post-sentence motion to withdraw his guilty plea. We affirm.

         {¶2} In April 2016, the Trumbull County Grand Jury returned a 15-count indictment, charging appellant with eight counts of pandering sexually oriented matter involving a minor, felonies of the second degree, in violation of R.C. 2907.332(A)(1) & (C); four counts of pandering sexually oriented matter involving a minor, felonies of the second degree, in violation of R.C. 2907.332(A)(2) & (C); and three counts of pandering sexually oriented matter involving a minor, felonies of the fourth degree, in violation of R.C. 2907.332(A)(5) & (C). Appellant's defense counsel filed a motion to suppress statements made by appellant during the execution of a search warrant. The motion was subsequently granted. In November 2015, however, appellant entered a plea of guilty to an amended indictment charging 15 counts of illegal use of a minor in nudity-oriented material or performance, felonies of the fifth degree, in violation of R.C. 2907.332(A)(3) & (B). After conducting a full and thorough plea colloquy, the trial court accepted appellant's guilty plea and sentenced him to a jointly recommended, aggregate sentence of four years imprisonment.

         {¶3} In April 2018, appellant filed a pro se motion to withdraw his guilty plea. Appellant argued the trial court should allow him to withdraw his guilty plea because he is actually innocent of the charges to which he pleaded and his plea was a result of trial counsel's ineffectiveness. The trial court denied appellant's motion and this appeal followed. Appellant assigns the following two errors for our review:

         {¶4} "[1.] The trial court erred by denying appellant's motion to withdraw guilty plea in violation of his Fourteenth Amendment rights due to the fact that the appellant is actually innocent and there is no factual basis for the charges.

         {¶5} "[2.] The trial court erred by denying appellant's motion to withdraw guilty plea in violation of his Sixth Amendment right to effective assistance of counsel."

         {¶6} Crim.R. 32.1 provides: "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."

         {¶7} We review a trial court's decision to grant or deny a post-sentence motion to withdraw a guilty plea pursuant to Crim.R. 32.1 for abuse of discretion. State v. Wilkey, 5th Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶21. The phrase "abuse of discretion" is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).

         {¶8} In State v. Derricoatte, 11th Dist. Ashtabula No. 2012-A-0038, 2013-Ohio- 3774, ¶18, this court stated:

         {¶9} This court has defined the term 'manifest injustice' as a 'clear or openly unjust act.' State v. Wilfong, 11th Dist. Lake No. 2010-L-074, 2011-Ohio-6512, ¶12. Pursuant to this standard, extraordinary circumstances must exist before the granting of a post-sentencing motion to withdraw can be justified. Id. The rationale for this high standard is "to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence is unexpectedly severe."' [State v.] Robinson, [11th Dist. Lake No. 2011-L-145, ] 2012-Ohio-5824, at ¶14, quoting State v. Caraballo, 17 Ohio St.3d 66, 67, * * * (1985).

         {¶10} Further, in State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156, 2002 WL 445036, *3 (March 22, 2002), this court explained that in order to show ineffective assistance of counsel in a plea deal, a defendant must show that the ineffective assistance ...


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