COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73542 CITY OF VALLEY VIEW, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : MEHL LIND, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Garfield Heights Municipal : Court : Case No. 97-TRC-5543 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: David A. Lambros Arthur P. Lambros 5709 Smith Road Brook Park, Ohio 44142 For defendant-appellant: Harvey B. Bruner Bret Jordan BRUNER & JORDAN 1600 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Mehl Lind, appeals the denial of his Crim.R. 11 motion to vacate his plea concerning his D.U.I. conviction. On June 17, 1997, Lind was issued citations concerning driving on the wrong side of the roadway, D.U.I., drug abuse, and disorderly conduct. Subsequently, Lind accepted a plea bargain agreement that dismissed all charges except the D.U.I.. This agreement led to the appellant's plea of no contest to the D.U.I. violation, and a resulting finding of guilt. Shortly thereafter, appellant discovered errors in the arresting officer's factual recitations during the pretrial at which Lind agreed to the plea. As a result, Lind filed a motion to vacate his plea, pursuant to Crim.R. 11, alleging that the arresting officer at the pretrial conference drew a map of the location of the arrest and improperly labeled the ramp on which appellant was arrested as the Northwest ramp; when, in fact, the incident occurred on the Southwest ramp. It was appellant's contention that this mistake, along with the errors contained in the police report, changed the facts and circumstances under which he entered his plea of guilty. On November 3, 1997, the day of sentencing, appellant's motion to vacate was denied, and Lind was sentenced to 90 days in jail. The appellant timely filed and assigns two errors for our review. The assignments of error are interrelated in both law and fact and will thus be treated together. -3- THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT BY NOT ENSURING THAT HE ENTERED A PLEA OF NO CONTEST VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT BY DENYING DEFENDANT-APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS PLEA. Appellant alleges that the trial court failed to comply with Crim.R. 11(E) and argues that his conviction should be vacated pursuant to Crim.R. 32.1, which states: to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. Lind maintains that due to the errors and factual inconsistencies in the arresting officer's report, and in the officer's recitation of the facts, his plea was not intelligently, knowingly and voluntarily made. Although a motion to vacate a presentence guilty plea should be freely granted, a defendant does not have an absolute right to withdraw; rather, the decision is vested in the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. State v. Rosemark (1996), 116 Ohio App.3d 306, 688 N.E.2d 22. See, also, State v. Barnett (1991), 73 Ohio App.3d 244, 596 N.E.2d 1101. An abuse of discretion occurs when a court's judgment is arbitrary, unreasonable, or unconscionable. State v. Posta (1988), 37 Ohio App.3d 144, 524 N.E.2d 920. In State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, paragraph three of the syllabus, this court outlined the standards to consider for abuse of discretion in overruling a motion to withdraw a guilty plea when we stated: -4- 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 fair consideration to the plea withdrawal request. A trial court in taking a plea must substantially comply with Crim.R. 11. State v. Colbert (1991), 71 Ohio App.3d 734, 737, 595 N.E.2d 401, 403. Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476. Furthermore, [a] defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. State v. Scott (1996), 113 Ohio App.3d 401, 402, 680 N.E.2d 1297, 1298. Therefore, upon review a finding of compliance with the rule can be based upon a considerationof the totality of the circumstances surrounding the entry of the plea. State v. Carter (1979), 60 Ohio St.2d 34, 396 N.E.2d 757; see, also, State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474, Colbert, supra. In the instant case, the record, filed by appellant, includes appellant's and appellee's briefs and a limited transcript of the hearing and disposition of his motion to vacate. There is no indication that appellant made any effort to provide a record of his plea hearing pursuant to App.R. 9(C). As a result, in the absence of a record, the proceedings of the trial court concerning -5- appellant's plea hearing are presumed correct thus, resulting in a knowing, voluntary and intelligent plea. State v. Drake (1991), 73 Ohio App.3d 640, 598 N.E.2d 115. See, also, State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523. Concerning appellant's motion to vacate, the record, as filed, indicates that appellant was represented by highly competent counsel and the trial court conducted a full in-chambers hearing. Included in that hearing were the attorneys for both the appellee and appellant and the arresting police officer. At that hearing the record indicates that the trial court conducted a full and thoughtful discussion on the issues presented and ruled accordingly. As a result, since the plea hearing is presumed regular, the appellant's plea is deemed knowledgeable, voluntary and intelligently made. Further, the trial court afforded appellant's counsel time to present all relevant arguments in support of his motion to vacate, thoughtfully considered the relevance of the alleged mistakes made by the arresting officer and determined them to be inconsequential. In light of these circumstances, it is clear that the trial court was not arbitrary or unreasonable in denying appellant's motion to vacate. Accordingly, the assignments of error are overruled. Judgment affirmed. -6- 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 JOSEPH J. NAHRA PRESIDING JUDGE O'DONNELL, J., and KARPINSKI, J., CONCUR. 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 .