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State v. Bable

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
Mar 8, 2019
2019 Ohio 1209 (Ohio Ct. App. 2019)

Opinion

Case No. 18-CA-32

03-08-2019

STATE OF OHIO Plaintiff - Appellee v. DANIEL BABLE Defendant - Appellant

APPEARANCES: For Plaintiff-Appellee DANIEL E. COGLEY Lancaster City Prosecutor's Office 120 East Main Street, Suite 200 Lancaster, Ohio 43130 For Defendant-Appellant BLAISE KATTER TIM HUEY 3240 Henderson Rd., Ste. B Columbus, Ohio 43220


JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Hon. Earle E. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal Court, Case No. TRD 18 02786 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee DANIEL E. COGLEY
Lancaster City Prosecutor's Office
120 East Main Street, Suite 200
Lancaster, Ohio 43130 For Defendant-Appellant BLAISE KATTER
TIM HUEY
3240 Henderson Rd., Ste. B
Columbus, Ohio 43220 Baldwin, J.

{¶1} Defendant-appellant Daniel Bable appeals from the June 6, 2018 Judgment Entry of the Fairfield County Municipal Court overruling his Motion to Vacate/Withdraw Plea. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 22, 2018, appellant, who has a commercial driver's license (CDL), was cited for following too closely in violation of R.C. 4511.34. On March 28, 2018, appellant paid the fine and court costs.

{¶3} Appellant, on May 25, 2018, filed a Motion to Vacate/Withdraw Plea, asking that "the purported guilty plea/ traffic waiver that was entered in this case be vacated or withdrawn to correct a manifest injustice." Appellant, in his motion, alleged that he did not know that paying his traffic fine would have a devastating effect on his commercial driver's license. The trial court, as memorialized in a Judgment Entry filed on June 6, 2018, overruled appellant's motion, noting that appellant was originally given an arraignment date of April 3, 2018 and chose to waive his appearance and pay the ticket rather than attend the arraignment.

{¶4} Appellant now appeals from the trial court's June 6, 2018 Judgment Entry, raising the following assignments of error on appeal:

{¶5} "I. THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO VACATE/WITHDRAW PLEA, AS THE "PLEA" IN THIS CASE WAS UNCONSTITUTIONAL BECAUSE IT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE."

{¶6} "II. THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO WITHDRAW PLEA UNDER CRIM.R. 32.1, AS APPELLANT DANIEL BABLE WILL SUFFER MANIFEST INJUSTICE IF THE PLEA IS NOT WITHDRAWN."

{¶7} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD A HEARING."

I

{¶8} Appellant, in his first assignment of error, argues that the trial court erred in overruling his Motion to Vacate/ Withdraw Plea.

{¶9} Appellant was charged with a violation of R.C. 4511.34 which is a traffic offence that can be processed by a traffic violations bureau. See Traffic Rule 13(B).

{¶10} Traffic Rule 13(D)(3) states, "Remittance of the fine and costs to the traffic violations bureau by any means other than personal appearance by the defendant at the bureau constitutes a guilty plea and waiver of trial whether or not the guilty plea and waiver of trial provision of the ticket are signed by the defendant." (Emphasis added).

{¶11} The 1975 Staff Notes to the implementation of the language in Traffic Rule 13(D)(3) explain that:

[w]hen the offender remits the specified fine and costs by mail without signing the plea and waiver, it is a reasonable assumption that the failure to sign was an inadvertence. The intent of the offender is amply demonstrated by the remittance. No useful purpose would be served by the expenditure of time and effort to secure the completion of the form under those circumstances.

{¶12} Appellant waived his appearance at the scheduled arraignment by remitting the fine and costs. Prior to remitting his payments, appellant had to electronically acknowledge that he was "pleading Guilty to all charges listed against you on the citation, consequently waving your right to an appearance in court or to a trial". Prior to remitting payment, appellant also was informed that "this will close your case and the Court will forward this information to the Bureau to Motor Vehicles and the appropriate point will be added to you license."

{¶13} Therefore, pursuant to the Ohio Traffic Rules, appellant knowingly and voluntarily entered a plea of guilty to violating R.C. 4511.34 and waived his appearance and was aware that the violation would be reported to the BVM. We find that the trial court did not err in overruling appellant's Motion to Vacate/Withdraw Plea.

{¶14} Appellant's first assignment of error is, therefore, overruled.

II

{¶15} Appellant, in his second assignment of error, contends that the trial court erred in overruling his Motion to Withdraw Plea under Crim.R. 32.1 because he will suffer a manifest injustice if the plea is not withdrawn.

{¶16} Appellant's motion to withdraw his guilty plea was made pursuant to Criminal Rule 32.1, stating: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." The standard upon which the trial court is to review a request for a change of plea after sentence is whether there is a need to correct a manifest injustice. State v. Marafa, 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257, 2003 WL 150093, ¶ 8.

{¶17} Our review of the trial court's decision under Crim.R. 32.1 is limited to a determination of whether the trial court abused its discretion. See State v. Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985). An appellate court may not substitute its judgment for that of the trial court when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Furthermore, under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire, 5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, 2010 WL 2297917, ¶ 60, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. Smith, supra, 49 Ohio St.2d 261, 361 N.E.2d 1324 at paragraph one of the syllabus.

{¶18} Appellant, in the case sub judice, filed an affidavit in support of his motion. Appellant, in his affidavit, stated, in relevant part, as follows:

{¶19} I paid the citation on March 28, 2018.

{¶20} I only paid the citation because of the time and money investment it would take to challenge a ticket. I believed the effort and expense to challenge the ticket would cost me far more than the cost of paying the citation.

{¶21} At the time I paid the citation, I was never warned by any person or court that the citation could affect my CDL. I believed the citation was for a very minor offense and I did not believe, nor did I have any knowledge, that the violation could affect my CDL.

{¶22} I did not sign the ticket or admit my guilt in any manner other than paying the cost of the citation.

{¶23} On or about April 10, 2018 I received notice from the BMV that my CDL was due to be disqualified for two major violations in a three-year window.

{¶24} I immediately began searching for legal counsel to represent me in this matter, and I was able to secure representation in late April. I have moved as diligently as possible to protect my legal rights.

{¶25} I have been informed that, if my CDL is disqualified, I will immediately lose my job as a truck driver and my insurance costs will skyrocket.

{¶26} If I am not able to withdraw my waiver and contest this case, I will lose my job.

{¶27} I am in fear that a minor ticket, which I paid only due to the economics of the situation, will unknowingly cost me my CDL and ultimately my livelihood.

{¶28} Appellant, in his affidavit, further stated that he had held his CDL since 2003 and that other than a violation in Florida in 2015 and the current citation, he had never had a moving violation or accident in this career as truck driver.

{¶29} However, appellant's driving record was filed and is part of the trial court file. The same shows that, contrary to the assertions made by appellant in his affidavit that his only violations were a 2015 Florida violation and the violation that is at issue in this case, appellant was convicted in 2007 of a violation of traffic control device as a commercial driver. As noted by appellee, the trial court "arguably could have questioned the credibility of the entire Affidavit, especially considering no supporting documentation was provided in connection with the Affidavit." Moreover, prior to remitting payment, appellant also was informed that "this will close your case and the Court will forward this information to the Bureau to Motor Vehicles and the appropriate point will be added to you license." Thus Appellant, prior to remitting payment, was on notice that his license could be affected.

{¶30} Based on the foregoing, we find that the trial court did not abuse its discretion in denying appellant's motion.

{¶31} Appellant's second assignment of error is, therefore, overruled.

III

{¶32} Appellant, in his third assignment of error, maintains that the trial court erred in failing to hold a hearing on his motion.

{¶33} A trial court is not automatically required to hold a hearing on a post sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. State v. Kent, 10th Dist. Franklin No. 03AP722, 2004-Ohio-2129, 2004 WL 886387, ¶ 8.

{¶34} A trial court's decision whether to hold a hearing on the motion is also subject to review for abuse of discretion. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The term "abuse of discretion" implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶35} We find, based upon our disposition of appellant's first and second assignments of error, that the trial court did not abuse its discretion in failing to hold a hearing.

{¶36} Appellant's third assignment of error is, therefore, overruled.

{¶37} Accordingly, the judgment of the Fairfield County Municipal Court is affirmed. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.


Summaries of

State v. Bable

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
Mar 8, 2019
2019 Ohio 1209 (Ohio Ct. App. 2019)
Case details for

State v. Bable

Case Details

Full title:STATE OF OHIO Plaintiff - Appellee v. DANIEL BABLE Defendant - Appellant

Court:COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

Date published: Mar 8, 2019

Citations

2019 Ohio 1209 (Ohio Ct. App. 2019)