COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66839 : CITY OF GARFIELD HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ALAGAVIYA VEERAMANI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 9, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. C-9102236 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: GERALD STACHEWICZ, ESQ. PAUL MANCINO, JR., ESQ. 5555 Turney Road 75 Public Square, Suite 1016 Garfield Heights, Ohio 44125 Cleveland, Ohio 44113-2098 and JAMES J. MCGRATH, IV, ESQ. Garfield Heights Prosecutor 5407 Turney Road Garfield Heights, Ohio 44125 -2- PATRICIA ANN BLACKMON, J: Alagaviya Veeramani, defendant-appellant, appeals his conviction for telephone harassment and assigns the following errors for our review: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT SUMMARILY OVERRULED HIS MOTION TO WITHDRAW HIS PLEA WITHOUT GRANTING TO THE DEFENDANT A FULL AND FAIR HEARING. II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED TO A TERM OF IMPRISONMENT WHEN THE TRIAL COURT FAILED TO WEIGH THE STATUTORY MISDEMEANOR SENTENCING FACTORS AS PROVIDED FOR IN SECTION 2929.22 OF THE OHIO REVISED CODE. III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT ALLOW HIS PLEA OF NO CONTEST TO BE WITHDRAWN. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On April 16, 1991, Veeramani appeared before the Garfield Heights Municipal Court represented by counsel and entered a plea of no contest to the charge of telephone harassment. The trial court imposed the maximum sentence of 180 days of incarceration, a fine of $1,000, and court costs. Veeramani appealed and this court reversed the conviction for the limited purpose of allowing Veeramani his right to allocution prior to sentencing. Garfield Heights v. Veeramani (Mar. 4, 1993), Cuyahoga App. No. 61889, unreported. -3- On remand, counsel for Veeramani made a motion to withdraw his no contest plea. The trial court overruled the motion without any discussion on the matter and went forward with the resentencing. Counsel for Veeramani informed the court his client had no record other than this case, and in the three years since the offense, Veeramani maintained his employment as an engineer, married, and his wife was expecting a child. Veeramani informed the court he had served one month in the county jail and paid the entire fine. Veeramani and his attorney reiterated further about his new life and the passage of time in order to persuade the trial court to mitigate the remainder of the sentence. After allocution the trial court reduced the previous sentence to 60 days, $1,000 fine, and court cost. Veeramani moved to stay the execution of sentence pending his appeal, which was granted. Veeramani's first and third assignments of error will be discussed together. He argues in these assignments of error that his motion to withdraw his no contest plea should have been granted, and that he was denied effective assistance of counsel. He further argues the ineffective assistance of counsel is a manifest injustice that should be corrected. The facts in this case are not complicated. Veeramani was sentenced to 180 days, $1,000 fine, and court cost. He was not allowed allocution and he appealed. This court reversed for that reason only. Before the allocution hearing, Veeramani moved to withdraw his plea. The trial court without a hearing denied the motion. In his motion to withdraw his no contest plea, Veeramani -4- did not state his grounds for believing that a manifest miscarriage of justice had occurred. The trial court denied the motion to withdraw the no contest plea. The court allowed allocution and reduced Veeramani's sentence to 60 days, $1,000, and court cost. The issue before us is whether the trial court abused its discretion. In response to that issue, we believe it did not. Crim.R. 32.1 provides: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." Crim.R. 32.1 is reviewable by this court under the abuse of discretion standard. State v. Peterseim (1980), 68 Ohio App.2d 211. Abuse of discretion is more than an error of judgment. It is unreasonable, arbitrary, or unconscionable conduct by the trial court. State v. Xie (1992), 62 Ohio St.3d 521, 527. Abuse of discretion test the boundaries of the trial court and ask the question is the trial court's action legal. If the trial court's action is within the boundaries of its sound discretion, then the conclusion is that it acted legally. In this case, it is our belief the trial court did not exceed the boundaries of its discretion. The trial court is not required to grant a motion to withdraw a guilty plea after sentencing unless the movant has demonstrated a manifest injustice. State v. Peterseim at 213. State v. Caraballo (1985), 17 Ohio St.3d 66, and State v. Smith (1977), 49 Ohio St.2d 26. A manifest injustice -5- denotes an extraordinary remedy. "The motion seeking to correct a manifest injustice is addressed to the sound discretion of the trial court, and the good faith, credibility, and weight of the movant's assertions in support of the motion are matters to be resolved by that court." State v. Smith at 264. In a postsentence motion to withdraw a plea, the defendant's burden to establish a manifest injustice requires the defendant to submit evidentiary materials or demonstrate through the record that he is entitled to relief. See State v. Mitchell (Mar. 18, 1993), Cuyahoga App. No. 64231, unreported. Unless such materials are filed a hearing is not warranted. The trial court has no duty to attempt to elicit the reasons for defendant's postsentence motion under Crim.R. 32.1. State v. Smith (Nov. 6, 1990), Franklin App. No. 90AP-411, unreported. Veeramani argues the ineffective assistance of counsel at the hearing where he entered his no contest plea resulted in a manifest injustice. The test for ineffective assistance in entering a plea was set forth in Hill v. Lockhart (1985), 474 U.S. 52, cited in Xie at 524. The defendant must show that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty***." Id. In the case sub judice, Veeramani made an oral motion and did not put forth any evidence of a manifest injustice. Furthermore, there is no evidence in the record that counsel was in any way deficient, nor is there any evidence that Veeramani would have pleaded not guilty. In the first appeal, this court found no -6- evidence that the plea was not knowing, intelligent, and voluntary. Garfield Heights v. Veeramani, supra. Accordingly, we find Veeramani was not entitled to a hearing, and further find no evidence of a manifest injustice. Thus, Veeramani's first and third assignments of error are not well taken. In his second assignment of error, Veeramani argues the trial court failed to weigh the sentencing factors set forth in R.C. 2929.22(A). We disagree. R.C. 2929.22(A) provides as follows: (A) In determining whether to impose imprison- ment or a fine, or both, for a misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender, and the nature of the burden that payment of a fine will impose on him. The standard of review for sentencing within the statutory limits is abuse of discretion. E.g. State v. Yontz (1986), 33 Ohio App.3d 342. "Where a criminal sentence is within statutory limits, an appellate court should accord the trial court the presumption that it considered the statutory mitigating criteria in the absence of an affirmative showing that it failed to do so." State v. Crouse (1987), 39 Ohio App.3d 18. See, also, State v. Grigsby (1992), 80 Ohio App.3d 291, 302-303. Because Veeramani makes no showing that the trial court did not consider the statutory requirements, we must presume that R.C. -7- 2929.22 was followed. Moreover, the fact that the trial court reduced the original sentence of 180 days to 60 days is compelling. The reduction of sentence on remand clearly suggests the criteria set forth in R.C. 2929.22 was considered. Thus, Veeramani's second assignment of error is not well taken. Judgment affirmed. -8- 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 Garfield Heights Municipal 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. NUGENT, J., and PRYATEL,* J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE (*SITTING BY ASSIGNMENT: AUGUST PRYATEL, RETIRED JUDGE OF THE COURT OF APPEALS, EIGHTH APPELLATE DISTRICT.) 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 .