[Cite as State v. Maggianetti, 2011-Ohio-6370.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

BRUCE A. MAGGIANETTI, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10-MA-169 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 08CR453 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Attorney James S. Gentile 

42 N. Phelps Street 

Youngstown, Ohio 44503-1130 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 8, 2011 
[Cite as State v. Maggianetti, 2011-Ohio-6370.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Bruce Maggianetti, appeals from a Mahoning 

County Common Pleas Court judgment overruling his post-sentence motion to 

withdraw his guilty plea for engaging in a pattern of corrupt activity. 

{¶2} On April 17, 2008, a Mahoning County Grand Jury indicted appellant on 

four counts of trafficking in drugs, second-degree felonies in violation of R.C. 

2925.03(A)(1)(C)(1)(c); and one count of possession of drugs, a third-degree felony 

in violation of R.C. 2925.11(A)(C)(1)(c). All counts carried forfeiture specifications. 

Appellant initially entered a not guilty plea to the charges. 

{¶3} Appellant later entered into a plea agreement with plaintiff-appellee, the 

State of Ohio. Per the terms of the agreement, the state dismissed three of the 

trafficking counts and the possession count and amended the remaining count of the 

indictment to one count of engaging in a pattern of corrupt activity, a second-degree 

felony in violation of R.C. 2923.32(A)(1)(B)(1). Appellant entered a guilty plea to the 

charge and also stipulated to the forfeiture of a truck and cash. 

{¶4} On December 30, 2008, the trial court, in adopting “the 

recommendation of the State of Ohio,” sentenced appellant to five years in prison 

and a possible postrelease control term of three years. 

{¶5} On November 2, 2009, appellant filed a motion for judicial release. The 

State opposed the request for judicial release contending that appellant was ineligible 

because he was sentenced to a five year prison term. The trial court thereby 

overruled the motion on November 12, 2009. 

{¶6} On July 29, 2010, appellant filed a “motion to modify sentence nunc pro 

tunc entry alternative withdraw plea motion to reconsider judicial release.” In his 

motion, appellant alleged that the purpose of the plea agreement was to provide the 

trial court with the sentencing range of one to eight years and to make him eligible for 

judicial release sometime after serving six months. He claimed the court was not 

supposed to sentence him to five years. 

{¶7} The court held a hearing on appellant’s motion on October 14, 2010. 

The court overruled appellant’s motion, finding that appellant understood the effect of 
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his plea and no manifest injustice occurred. At this time, the court also resentenced 

appellant due to an error in the postrelease control term. The court once again 

imposed a five year prison term with a mandatory three-year post release control 

period. 

{¶8} Appellant filed this notice of appeal on November 12, 2010. 

{¶9} Appellant’s sole assignment of error states: 

{¶10} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S 

MOTION TO PERMIT TO WITHDRAW HIS GUILTY PLEA OR GRANTING OTHER 

RELIEF.” 

{¶11} Appellant argues that misunderstandings have caused a manifest 

injustice to occur, and he has a basis for relief because the state breached the plea 

agreement and/or the plea itself was not knowingly, intelligently, and voluntarily 

entered into. He claims that per the plea agreement, he was not to be sentenced to 

five years. 

{¶12} An appellate court will not disturb a trial court's denial of a motion to 

withdraw a guilty plea absent an abuse of discretion. State v. Shondrick, 9th Dist. 

No. 3216-M, 2002-Ohio-2439, at ¶6, citing State v. Hymore (1967), 9 Ohio St.2d 122, 

128. An abuse of discretion is more than error of law or judgment; it implies that the 

court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 

62 Ohio St.2d 151, 157. 

{¶13} Pursuant to Crim.R. 32.1, “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.” On a post-sentence motion to withdraw a 

guilty plea, “[t]he defendant has the burden of establishing that a manifest injustice

exists, which requires a showing of extraordinary circumstances.” State v. Kidd, 168 

Ohio App.3d 382, 2006-Ohio-4008, at ¶11. (Emphasis added). 

{¶14} The Ohio Supreme Court has defined a manifest injustice as a “clear or 

openly unjust act.” State v. Reed, 7th Dist. No. 04-MA-236, 2005-Ohio-2925, at ¶8, 
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citing State ex rel. Schneider v. Kreiner (1998), 83 Ohio St.3d 203, 208. This court 

has defined manifest injustice as “an extraordinary and fundamental flaw in the plea 

proceedings.” Id. citing, State v. Lintner (Sept. 21, 2001), 7th Dist. No. 732. 

{¶15} Initially, we should point out that appellant’s claim here is likely barred 

by the doctrine of res judicata. A criminal defendant cannot raise any issue in a postsentence motion to withdraw a guilty plea that he could have raised at trial or on 

direct appeal. State v. Reed, 7th Dist. No. 04-MA-236, 2005-Ohio-2925, at ¶11. 

Appellant’s main contention here is either that the state breached the plea agreement 

by recommending a five-year prison term or that he did not knowingly enter his plea 

because he was unaware of the possible five-year prison term. However, appellant 

could have pursued both of these claims in a direct appeal. 

{¶16} Furthermore, even if appellant’s claim is not barred and we consider the 

merits, we reach the same outcome. 

{¶17} At his motion to withdraw hearing, appellant testified that he has some 

issues with recollection. (Motion Tr. 9). Nonetheless, he testified: “My recollection 

was I thought the prosecution said that I’d be eligible for judicial release within six 

months of my sentencing. That was my understanding.” (Motion Tr. 9). He further 

stated that at his plea hearing, he heard the prosecutor recommend six months to the 

court. (Motion Tr. 9). Appellant next testified that if he had heard the state 

recommend a five-year sentence, he would not have pleaded guilty. (Motion Tr. 10-

11). 

{¶18} But at appellant’s plea hearing, the prosecutor merely stated that the 

agreement was “on behalf of the defendant which would allow the court to have the 

maximum range of sentencing options in this case.” (Plea Tr. 3). The court and 

appellant later had the following exchange: 

{¶19} “THE COURT: Do you further understand when it comes to sentencing, 

you’re consenting to me as the judge to be the fact finder? That means you’re 

leaving all the discretion of sentencing up to this court. 

{¶20} “THE DEFENDANT: Yes, Your Honor. 
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{¶21} “THE COURT: * * * I could sentence you for one, two, three, four, five, 

six, seven, or eight years in prison and fine you up to $15,000, and that you’re also 

eligible for community control sanctions as a result of this offense? 

{¶22} “THE DEFENDANT: Yes, Your Honor.” (Plea Tr. 7-8). 

{¶23} And before accepting appellant’s plea, the court asked him if anyone 

had promised him anything other than what had been discussed in court, to which 

appellant responded, “no.” (Plea Tr. 10). 

{¶24} Moreover, at the sentencing hearing the prosecutor remarked that the 

state “would ask the Court to sentence Mr. Maggianetti to a term of five years of 

incarceration.” (Sentencing Tr. 2). The prosecutor later stated, “I think a five-year 

term [of] incarceration would adequately punish the offender.” (Sentencing Tr. 3). 

Neither appellant nor his counsel in their addresses to the court made any mention 

that the state should not have recommended five years or that the state was 

supposed to recommend six months. (Sentencing Tr. 3-6). 

{¶25} Contrary to appellant’s recollection, the state clearly recommended a 

five-year prison term. Furthermore, the court made sure, before accepting 

appellant’s plea, that appellant knew he was at the court’s mercy when it came to 

sentencing and that it could sentence him to up to eight years in prison. Nowhere in 

the transcript of the plea hearing or the sentencing hearing does a recommendation 

of six months appear. 

{¶26} Appellant makes an issue of the fact that on a sentencing 

recommendation form the space to include the recommended sentence was left 

blank. However, this does not support his claim that the recommended sentence 

was to be six months. 

{¶27} Finally, “an undue delay between the occurrence of the alleged cause 

for withdrawal and the filing of the motion is a factor adversely affecting the credibility 

of the movant and militating against the granting of the motion.” State v. Smith

(1977), 49 Ohio St.2d 261, 264. In this case, appellant did not file his motion to 
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withdraw his plea until approximately one and a half years after the court sentenced 

him. 

{¶28} Based on the above, it is clear that the trial court did not abuse its 

discretion in denying appellant’s post-sentence motion to withdraw his plea. 

Accordingly, appellant’s sole assignment of error is without merit. 

{¶29} For the reasons stated, the trial court’s judgment is hereby affirmed. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.