COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59798, 60953 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL ANTHONY HALL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 23, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-243959 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES JEROME SILVER Cuyahoga County Prosecutor 3421 Prospect Avenue 8th Floor Justice Center Cleveland, Ohio 44115 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: This cause involves two separate appeals filed by Michael Anthony Hall, Defendant-Appellant ("Appellant"), which are consolidated for purposes of oral argument. The first appeal contains four assignments of error that challenge the trial court's failure to grant a motion to withdraw Appellant's plea and a motion to mitigate. For the reasons set forth below, we affirm. In the second appeal, Appellant challenges the trial court's refusal to grant a motion to suspend execution of the sentence, which Appellant terms as a request for shock probation. This second appeal was filed on December 3, 1990. On March 25, 1991, the State of Ohio, Plaintiff-Appellee ("Appellee"), filed a motion to dismiss the second appeal on the grounds that this court lacked jurisdiction to review the denial of shock probation because the appeal failed to show a constitutional or statutory violation, which was mandated by this court in State v. Delaney (1983), 99 App. 3d 47. Appellant assigned two errors challenging the trial court's refusal to grant the motion to suspend execution of Appellant's sentence, or for shock probation. The issue on the second appeal is whether this court has jurisdiction to review a denial of a motion for shock when Appellant fails to show a constitutional or statutory violation. Because we hold that we lack jurisdiction to review Appellant's -3- second appeal, we dismiss the second appeal pursuant to State v. Delaney, supra, and State v. Jones (1987), 40 Ohio App. 3d 123. The facts presented in the record on the first and original appeal were as follows: On November 27, 1989, Appellant was indicted by the Cuyahoga County Grand Jury for Felonious Assault in violation of R.C. 2903.11, which contained both a violence and a firearm specifica- tion. He ultimately pleaded to Attempted Felonious Assault and was sentenced. On August 5, 1989, Appellant was attending a party of a friend when an altercation ensued. As a result of this incident Appellant was ejected from the property, which was located at 11101 Revere Avenue, Cleveland. After being ejected, Appellant along with his brother drove back to the house. It was alleged that Appellant fired several shots at the house, actually threatening harm to David Byers. It was also alleged that David Byers fired back wounding Appellant. Appellant was injured, and there was damage to his vehicle. Byers was not injured or wounded. The Grand Jury reviewed the incidents and indicted both Appellant and Byers. These cases were assigned to different judges, leaving several questions unanswered with respect to the case against Byers. The record in this appeal merely indicated that Byers' charge was amended on August 14, 1990 to simple Assault, which he pleaded guilty. On March 5, 1990, Appellant pleaded to the reduced charge of Attempted Felonious Assault, and the trial court held that there -4- was a factual basis for the plea. Even though the record, at the time of the plea, was silent as to what the factual basis was, Appellant nor his lawyer objected to this stipulation. Additionally, the transcript of the plea showed Appellant was represented by competent counsel, former Municipal Judge Parisi. It further showed that when the court questioned Appellant regarding his plea, Appellant responded that he was guilty. On April 10, 1990, Appellant was sentenced to a term of two years to ten years in jail, and on April 17, 1990 he filed a motion to withdraw the plea, which the court denied without a hearing. Thereafter, he filed a motion to mitigate, which was also denied without a hearing. In each of the motions, Appellant by way of affidavits from himself and his brother, urged that there was no gun in his car; he did not shoot at Byers; that Byers and his case should have been consolidated; that he was shot, wounded, and injured by Byers on the night in question. It is unclear from the record that the information contained in both the motion to withdraw the plea and the motion to mitigate was information unknown to the court at the time that Appellant entered his plea to Attempted Felonious Assault. Appellant timely appeals and claims the following errors: THE OVERRULING WITHOUT HEARING OF A DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA WAS CLEAR ERROR GIVEN EVIDENCE THAT THE RECORD IT RELIED ON IN ACCEPTING THE PLEA WAS SUBSTANTIALLY FLAWED. DEFENDANT'S MOTION IN MITIGATION SHOULD NOT HAVE BEEN OVERRULED WITHOUT A HEARING. -5- THE FAILURE OF THE TRIAL COURT TO EXERCISE ITS CONSOLIDATION POWER UNDER CRIMINAL RULE 13 AND OHIO REVISED CODE SECTION 2945.13 PREJUDICED THE DEFENDANT AND HAS PREVENTED TIMELY PROSECUTION OF HIS ASSAILANT. THE TRIAL COURT ERRED IN ACCEPTING THE PLEA WITHOUT INQUIRING INTO THE FACTUAL BASIS AND VOLUNTARY AND KNOWING CHARACTER. Since the errors are interrelated therefore we address them together. It is this court's decision that Appellant's assignments of error lack merit and are overruled. At the outset, it must be pointed out that appellate review of a trial court's denial of a motion to withdraw is limited to a determination of abuse of discretion, regardless of whether the motion to withdraw is filed before or after sentencing. State v. Peterseim (1980), 68 Ohio App. 2d 211, Syllabus 2. However, if it is filed after sentencing the trial court shall not withdraw a plea unless it does so to correct a manifest injustice. Id. at Syllabus 1. This court, in Peterseim, further held the following: A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim. R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and a fair consideration to the plea withdrawal request. Id. at Syllabus 1. Therefore, with respect to the first guideline, which was set forth in Peterseim, Appellant was apparently represented by Judge Phillip Parisi. Based on the transcript, there was no reason for -6- this court to presume anything but competency on the part of Appellant's counsel. Regarding the second guideline, the question raised was whether Appellant was afforded a full hearing before he entered the plea pursuant to Crim. R. 11. Having reviewed the transcript, the criteria of Crim. R. 11 was substantially complied with. The trial court made a determination that Appellant was making his plea voluntarily, that he understood the nature of the charges against him, and the court questioned the status of his probation. The trial court also asked Appellant if he understood his constitutional rights to a jury trial, compulsory process, confrontation of witnesses, prosecutions' burden of proof, and his right against self-incrimination. Appellant responded to this inquiry and waived each of the rights that was stated. The third and fourth guidelines of Peterseim will be discussed together. The third consideration was whether the accused was given a complete and impartial hearing on the motion to withdraw, once it was filed. The fourth consideration was whether the record revealed whether the court provided a full and fair consideration to the plea withdrawal request. It was clear from the record that Appellant was not given a hearing on his motion to withdraw his plea. Nevertheless, this fact does not entitle Appellant to a reversal as a matter of law. Even though the trial court did not conduct a hearing on Appellant's motion to withdraw his guilty plea, we conclude that -7- the trial court did not abuse its discretion in denying the withdrawal of his guilty plea. See State v. Blatnik (1984), 17 Ohio App. 3d 201, 204, citing United States v. Fournier (C.A.1, 1979), 594 F.2d 276 (where the court held that a hearing is not required if the facts alleged by the defendant would not require a withdrawal of the plea when the court accepts the facts as true). The trial court extensively questioned Appellant before accepting his guilty plea. The court determined that the plea was entered voluntarily, Appellant understood the nature of the charges against him, and he was waiving various constitutional rights. Appellant specifically stated he had no misunderstand- ing of the plea arrangement; he was aware of the evidence against him; he was honest in conferences with his attorney, he was satisfied with his attorney's representation; and he believed it was in his best interest to enter the plea without promises, threats or force. As the trial court fully complied with Crim R. 11, it properly denied Appellant's motion. Nevertheless, Appellant argued that after learning of David Byers' conviction for assault, he was entitled to withdraw his plea. This court fails to see the connection. Clearly two individuals who are involved in the same altercation may be punished for crimes against one another arising from that altercation. However, if Appellant is arguing that the informa- tion of Byers' plea is somehow newly discovered information that -8- fact is inconsistent with his plea. Clearly, Appellant knew that he had been shot; knew who shot him; and knew that Byers had been charged with shooting him. Therefore, this information is not newly discovered. Therefore, it is our decision that the trial court did not abuse its discretion in denying Appellant's motion to withdraw his guilty plea. Likewise, the trial court did not abuse its discretion when it denied Appellant's motion to mitigate without a hearing. Appellant was on probation for a prior offense and the trial court was proper in considering that fact. Also, it was not an abuse of discretion for the trial court not to exercise its consolidation power under Crim. R. 13 and R.C. 29454.13 for a number of reasons. First, the record does not reflect that a motion to consolidate the cases was ever filed nor does it appear that such a motion was made orally. Second, and perhaps more important, Crim. R. 13 and R.C. 2945.13 by their express terms do not apply to this case. In this case, the offenses or the defendants could not have been joined in a single indictment, information, or complaint. Likewise, R.C. 2945.13 applies to situations where two or more persons are jointly indicted for a felony. The issue of a factual inquiry and a basis for the plea were discussed in assignment of error one. Consequently, the discussion will not be reiterated here. The trial court carefully questioned Appellant regarding his constitutional rights and expressly asked Appellant whether his plea was voluntary. Accordingly, all of Appellant's errors are not well taken and are therefore overruled. -9- Judgment affirmed. It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., CONCUR. JOHN F. CORRIGAN, P.J., CONCURS IN JUDGMENT ONLY (SEE ATTACHED CONCURRING OPINION) PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59798 and 60953 : STATE OF OHIO : : : C O N C U R R I N G Plaintiff-Appellee : : O P I N I O N vs. : : : MICHAEL ANTHONY HALL : : : Defendant-Appellant : : DATE: J.F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY: While I concur with the judgment of the majority, I write separately to express my view on the legal standard of review used in plea withdrawal cases. After a defendant has been sentenced, a court may permit withdrawal of a plea only to correct a manifest injustice. Crim. R. 32.1. The burden of establishing the existence of such injustice is upon the defendant. State v. Caraballo (1985), 17 Ohio St. 3d 66; State v. Smith (1977), 49 Ohio St. 3d 261. An abuse of discretion standard has traditionally been employed in examining plea withdrawal cases. The term "abuse of discretion" connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore (1983), 5 - 12 - Ohio St. 3d 217; Steiner v. Custer (1940), 137 Ohio St. 448; State v. Amison (1965), 2 Ohio App. 2d 390. The majority relies on the four pronged analysis of State v. Peterseim (1980), 68 Ohio App. 2d 211, in determining that the trial court did not abuse its discretion in denying appellant's plea withdrawal motion. This test is partly subjective in that it includes the reviewing court's personal opinion of the overall competence of the defendant's attorney. I prefer to follow the standard abuse of discretion analysis set forth by the Ohio Supreme Court in Caraballo, supra; Smith, supra; Blakemore, supra; Steiner, supra. For these reasons I concur in judgment only. .