COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70837 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID GRAVELY : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : FEBRUARY 20, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-335748 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES, ESQ. RUFUS SIMS, ESQ. Cuyahoga County Prosecutor Rucker, Sims & Associates KESTRA SMITH CRUTCHER, ESQ. Glin Medical Bldg., #209 Assistant County Prosecutor 16104 Chagrin Boulevard 8th Floor, Justice Center Shaker Heights, OH 44120 1200 Ontario Street Cleveland, OH 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. Defendant David Gravely pleaded guilty to one count of gross sexual imposition, a first degree misdemeanor. At the same proceeding, the court heard from the victim of the offense. As a result of the victim's statements, the court imposed the maximum sentence of six months incarceration and a $1,000 fine. Defendant first filed a motion to mitigate the sentence and, when that failed, sought to withdraw his plea. The court denied that motion as well. The issue on appeal is whether the court abused its discretion by refusing defendant's post- sentence motion to withdraw his guilty plea. A defendant who seeks to withdraw a guilty plea after having been sentenced bears a heavy burden. A motion to withdraw a guilty plea, filed after sentence has been imposed, should be granted in the rare case and only to correct a manifest miscarriage of justice. State v. Peterseim (1980), 68 Ohio App.2d 211, 213. We review refusals to permit plea withdrawals under an abuse of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261, paragraph two of the syllabus. Defendant first argues that the trial court should have permitted him to withdraw the plea because despite pleading guilty, he later told the court he did not commit the offense. The record does not affirmatively demonstrate that fact. Defendant clearly - 3 - pleaded guilty and later apologized to the victim (his niece through marriage) and her family for his actions. Defendant did express his desire to "get this all over with," but this statement does not equate to a direct repudiation of the guilty plea. Consequently, we find defendant's argument lacks a demonstrable basis in the record and will not justify a post-sentence plea withdrawal. Defendant next argues the trial judge demonstrated bias by denying immediately his motions to mitigate sentence and to withdraw his guilty pleas. We find no abuse of discretion because such motions must state substantive grounds for finding a manifest injustice. Defendant could only complain that the trial court abused its discretion by imposing the maximum sentence after hearing the victim's impact statement. A court will not be found to have abused its discretion in sentencing if the sentence it imposes is within the statutory limits. Toledo v. Reasonover (1983), 5 Ohio St.2d 22, paragraph one of the syllabus. Moreover, the trial court clearly advised defendant of the maximum possible sentence before taking his plea. Thus, while the trial court did consider the victim's impact statement before imposing sentence, that fact alone is insufficient to demonstrate an abuse of discretion because the sentence falls within the statutory limits. Defendant cannot show he was unaware that he might receive the maximum sentence. - 4 - Finally, when addressing presentence motions to withdraw guilty pleas, we have held that a mistaken belief as to the consequences of the plea is insufficient to establish grounds for withdrawing that plea. State v. Sabatino (1995), 102 Ohio App.3d 483, 486; State v. Hunt (Aug. 8, 1996), Cuyahoga App. No. 67926, unreported at 8. Given the stricter manifest injustice standard employed for postsentence motions to withdraw guilty pleas, the rule set forth in Sabatino, supra, would apply with greater force to postsentence motions to withdraw guilty pleas. Defendant argues that he believed he would receive probation, not jail time. In State v. Lambros (1988), 44 Ohio App.3d 102, 103, we stated: "*** a defendant who has a change of heart regarding his guilty plea should not be permitted to withdraw that plea just because he is made aware that an unexpected sentence is going to be imposed. *** Otherwise, defense counsel merely has to allege that the defendant's plea was induced by some underlying `mistaken belief' that the defendant would receive probation and the plea would be vacated." (citations omitted). Accordingly, defendant's motion failed to set forth grounds showing a manifest injustice, and the trial court did not abuse its discretion by summarily denying the motion. The assigned errors are overruled. Judgment affirmed. - 5 - 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 Court of Common Pleas 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. JOHN T. PATTON, JUDGE PATRICIA BLACKMON, PRESIDING JUDGE JAMES M. PORTER, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .