Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas, Case No. 2014 CR 00200.
Watkins, Trumbull County Prosecutor, and Ashleigh Musick,
Assistant Prosecutor, For Plaintiff-Appellee.
Timothy Wayne Harris, pro se, Defendant-Appellant.
CYNTHIA WESTCOTT RICE, J.
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.
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.
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:
"[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
"[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."
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."
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
In State v. Derricoatte, 11th Dist. Ashtabula No.
2012-A-0038, 2013-Ohio- 3774, ¶18, this court stated:
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).
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 ...