COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73899 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : RICO MOORE : OPINION : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT AUGUST 27, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from the Common Pleas Court Case No. CR-345947 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendant-Appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square GINA VILLA Suite 1016 Assistant Prosecuting Attorney Cleveland, Ohio 44113-2098 The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: Rico Moore appeals from a judgment of the common pleas court denying his post-sentence motion to withdraw his formerly-entered guilty plea to the crime of possession of cocaine, alleging that he did not knowingly, intelligently, and voluntarily enter his plea, and that the court erred in failing to hold a hearing on his motion to withdraw that plea. Finding no merit in these allegations, we affirm the judgment of the trial court. The scant record here reveals that the grand jury returned a two-count indictment against Moore for possession of .37 grams of crack cocaine, and for possession of criminal tools, $149.00 in cash. On January 16, 1997, he pled guilty to possession of cocaine, and the court nolled the criminal tools charge and referred the matter to the probation department for preparation of a pre-sentence investigation report. Thereafter, on February 6, 1997, the court sentenced him to the Lorain Correctional Institution for a term of six months. Upon Moore's release from incarceration on August 6, 1997, the Ohio Department of Rehabilitation and Correction placed him on post-release control for three years. On December 30, 1997, in response to this form of supervision, he filed a motion to withdraw his guilty plea which the court denied on January 2, 1998 without conducting a hearing. Moore now appeals and raises two assignments of error which challenge the trial court's denial of the motion to withdraw his guilty plea. They state: I. -3- DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO VACATE DEFENDANT'S PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO WITHDRAW HIS PLEA OF GUILTY WITHOUT A HEARING. Moore essentially contends the trial court erred when it denied the motion to withdraw his guilty plea, urging that he did not knowingly, intelligently, and voluntarily plead, because the trial court failed to advise him of the maximum penalty involved as required by Crim.R. 11(C)(2), arguing specifically that the court's failure at the time of the plea to inform him about the possibility of post-release control, pursuant to R.C. 2967.28, negates his plea, and he also contends the court should have conducted a hearing on his motion to withdraw the guilty plea. The state contends the trial court did not err when it denied Moore's motion to withdraw his guilty plea, arguing that the trial court substantially complied with Crim.R. 11(C)(2) when it accepted his plea, that his motion to withdraw the plea did not require a hearing, and that no manifest injustice occurred because, at the time he made his motion, he had already served his incarceration. The issue then presented for our review concerns whether the trial court erred when it denied Moore's motion to withdraw his guilty plea without conducting a hearing. Regarding Moore's allegation that he did not enter a knowing, intelligent, and voluntary plea, we recognize that in State v. Stewart(1977), 51 Ohio St.2d 86, the Supreme Court determined that -4- a trial court must substantially comply with Crim. R. 11(C)(2) when accepting a guilty plea. A careful examination of that rule reveals that it does not require a trial court to inform an accused about the possibility of parole or post-release control. Further, although a trial court is required to inform an accused regarding the direct consequences of a plea, which are those that have a definite, immediate and automatic effect on the sentence, the trial court is not required to inform an accused regarding the collateral consequences of a plea, which include possible outcomes that do not have an effect on the sentence at the time the plea is entered. See King v. Dutton (C.A.6 1994), 17 F.3d 151; Xie v. Edwards (C.A.6, 1994), 35 F.3d 567; Brown v. Perini (C.A.6, 1983), 718 F.2d 784; Borrie v. Makowski (C.A.6, 1998), 134 F.3d 370. The substantive law regarding post-release control as it relates to this case is found in R.C. 2967.28(C): Any sentence to a prison term for a felony of the third, fourth, or fifth degree * * * shall include a requirement that the offender be subject to a period of post-release control of up to three years after the offender's release from imprisonment, if the parole board * * * determines that a period of post-release control is necessary for that offender. (Emphasis added). Applying this statute to this case reveals that the determination of whether or not to impose post-release control here is left to the discretion of the parole board, because possession of .37 grams of cocaine is a felony of the fifth degree. Therefore, post-release control constitutes a collateral rather than direct consequence of the plea, and the trial court here had -5- no duty to inform Moore about post-release control at the time he en Accordingly, our review of the recor reflects that the trial court substantially complied with Crim.R. 1(C)(2) and tered his guilty plea.1 d1 not knowingly, intelligently, and voluntarily entered. Regarding the court's failure to conduct a hearing on Moore's motion to withdraw the guilty plea, we recognize that Crim.R. 32.1 states: A motion to withdraw a plea of guilty * * * 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. (Emphasis added). In this regard, the Ohio Supreme Court in State v. Smith (1977), 49 Ohio St.2d 261, stated in its syllabus: 1. A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice. (Crim.R. 32.1) 2. A motion made pursuant to Crim.R. 32.1 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. * * *. 1 We recognize that R.C. 2929.19(B)(3)(d) states that if a trial court determines at a sentencing hearing that a prison term is necessary, it shall notify the offender that a period of post- release control may be imposed following the offender's release from prison. We further recognize that Moore does not raise any deficiency with respect to the sentencing hearing in this case. -6- The court also stated in that case at 264 that, * * * a post- sentence withdrawal motion is allowable only in extraordinary cases. Finally, the court stated in State v. Blatnik (1984), 17 Ohio App.3d 201, at 204: * * * a hearing is not required if the facts alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn. Here, Moore's allegation that the court failed to inform him at the time of his plea about the possibility of post-release control following incarceration does not establish manifest injustice in connection with his guilty plea, because the court had no duty pursuant to Crim.R. 11 to inform him about this possibility. Therefore, because Moore has not demonstrated manifest injustice, and because facts as alleged by Moore do not require the guilty plea to be withdrawn, the court did not abuse its discretion when it denied his motion to withdraw the plea, and the court was not obligated to conduct a hearing on that motion. For these reasons, the assignments of error are overruled, and we affirm the trial court's decision. Judgment affirmed. -7- 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. ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JAMES D. SWEENEY, 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 .