[Cite as State v. Trachman, 2013-Ohio-4409.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

DANIEL TRACHMAN, 

 DEFENDANT-APPELLANT. 

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CASE NO. 12 MA 106 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown 

Municipal Court of Mahoning County, 

Ohio 

Case No. 11CRB903/904 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Ms. Dana Lantz 

Youngstown City Prosecutor 

Kathleen Thompson 

Assistant Prosecutor 

26 S. Phelps Street, 4th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Edward A. Czopur 

DeGenova & Yarwood, Ltd. 

42 North Phelps St. 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 

 Dated: September 30, 2013 
[Cite as State v. Trachman, 2013-Ohio-4409.]

DONOFRIO, J. 

{¶1} Defendant-appellant Daniel Trachman appeals a Youngstown Municipal 

Court decision denying his post-sentence motion to vacate his no contest plea to two 

charges of disorderly conduct. He argues that the revocation of his concealed carry 

weapon permit as a result of those convictions is a manifest injustice since the plea 

agreement rested on his ability to retain that permit. 

{¶2} On May 12, 2011, Trachman was charged with two counts of 

aggravated menacing, both first-degree misdemeanors, after allegedly brandishing a 

handgun at two juveniles. R.C. 2903.21. Trachman retained counsel, pleaded not 

guilty, and the matter proceeded to discovery and other pretrial matters. 

{¶3} On July 26, 2011, the parties reached a plea agreement. In exchange 

for pleas of no contest, the assistant city prosecutor agreed to amend the two 

charges to disorderly conduct, both first-degree misdemeanors, with a sentencing 

recommendation of no contact with the complaining witnesses, $200 fine for each 

case, six-months non-reporting community control, and forfeiture of the handgun. The 

trial court accepted Trachman’s pleas and imposed the sentence as recommended 

by the parties. 

{¶4} Upon learning that the Mahoning County Sheriff’s Office had revoked 

his concealed carry permit as a result of those convictions, Trachman filed a Crim.R. 

32.1 post-sentence motion to withdraw his no contest pleas on May 14, 2012. In 

support of his motion, Trachman attached his own affidavit and a letter from his trial 

counsel indicating that his pleas were premised entirely on the condition that the 

resulting convictions would have no impact on his concealed carry permit. On May 

16, 2012, the trial court denied the motion without a hearing. This appeal followed. 

{¶5} Trachman raises two assignments of error. Trachman’s first assignment 

of error states: 

The trial court erred in determining that the unintended and 

unknown civil consequence of a CCW permit revocation was not a 

manifest injustice pursuant to Ohio Rule of Criminal Procedure 32.1 

requiring reversal. 
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{¶6} Trachman argues that since the plea agreement was premised entirely 

on there being no impact to his concealed carry permit, the subsequent revocation of 

the permit resulted in a manifest injustice sufficient to allow the withdrawal of the 

pleas. 

{¶7} In response, plaintiff-appellee the State of Ohio argues Trachman failed 

to establish a manifest injustice that required the trial court to allow him to withdraw 

his no contest pleas. The State contends the plea proceedings were free of any 

extraordinary and fundamental flaws and that Trachman’s subsequent loss of his 

permit was collateral and civil in nature. 

{¶8} The decision whether to grant or deny a defendant’s motion to withdraw 

a guilty plea is within the trial court’s discretion. State v. Xie, 62 Ohio St.3d 521, 526, 

584 N.E.2d 715 (1992). Abuse of discretion connotes more than an error of law or 

judgment; it implies that the trial court’s attitude is unreasonable, arbitrary, or 

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶9} Crim.R. 32.1 provides: “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.” This rule establishes a fairly stringent 

standard for deciding a post-sentence motion to withdraw a guilty plea. Xie, 62 Ohio 

St.3d at 526. 

{¶10} The burden of establishing the existence of manifest injustice is on the 

individual seeking to vacate the plea. Smith, 49 Ohio St.2d at paragraph one of the 

syllabus. Under the manifest injustice standard, a post-sentence motion to withdraw a 

plea is allowed only in extraordinary cases. Id. at 264. “The standard rests upon 

practical considerations important to the proper administration of justice, and seeks to 

avoid the possibility of a defendant pleading guilty to test the weight of potential 

punishment.” Id., citing Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963). 

{¶11} Furthermore, although there is no time limit to make this motion after a 

sentence is imposed, an undue delay between the time when the motion is filed and 
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the reason for filing the motion is a factor adversely affecting the credibility of the 

movant. Id. 

{¶12} Turning to the facts and circumstances of this case, we first address 

Trachman’s contention that in crafting the plea agreement the parties attempted to 

prevent any impact on Trachman’s concealed carry license. This contention is 

unsupported by the record. The written plea agreement and the plea hearing 

transcript reveal no mention of Trachman’s ability to retain his concealed carry 

license as a term or condition of the plea agreement. 

{¶13} Instead, Trachman cites in support a letter from his trial counsel that he 

attached in support of his motion to withdraw. However, a thorough review of the 

letter reveals the following pertinent statement: “The charge of Disorderly Conduct 

was suggested by the city prosecutor as an amended charge, as it would allow Mr. 

Trachman to receive his CCW permit upon reapplication with this department.” 

(Emphasis added.) This implies that the parties to the plea agreement understood 

that Trachman’s concealed carry license was or would be revoked. Indeed, Ohio law 

allows a person to apply for a concealed carry license anew three years after they 

have been convicted of or pleaded guilty to an offense of violence. R.C. 

2923.125(D)(1)(f). 

{¶14} In further support of his contention that the parties crafted the plea 

agreement so that it would not adversely impact his concealed carry permit, 

Trachman maintains that the parties choose Youngstown City’s disorderly conduct 

ordinance as the offense to which he would plead no contest since Ohio statutory law 

does not view such a conviction under state law as a valid basis to revoke a 

concealed carry permit. Trachman’s view of Ohio’s concealed carry law on this point 

is misguided. 

{¶15} A conviction for a misdemeanor offense of violence is grounds for a 

county sheriff to revoke a concealed carry license. R.C. 2923.128(B)(1)(c); R.C. 

2923.125(D)(1)(f). 

{¶16} R.C. 2901.01(I) defines an offense of violence. Subsection (1) sets forth 
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an enumerated list of code sections detailing various offenses. R.C. 2901.01(I)(1). 

Disorderly conduct, R.C. 2917.11, is not included in that list. However, R.C. 

2901.01(I)(3) provides that an offense of violence includes “[a]n offense, other than a 

traffic offense, under an existing or former municipal ordinance or law of this or any 

other state or the United States, committed purposely or knowingly, and involving 

physical harm to persons or a risk of serious physical harm to persons * * *. 

{¶17} Youngstown City Ordinance 509.03 could be read to include an offense 

involving a risk of serious physical harm to persons: 

(a) No person shall recklessly cause inconvenience, annoyance 

or alarm to another by doing any of the following: 

* * * 

(3) Insulting, taunting or challenging another, under 

circumstances in which such conduct is likely to provoke a violent 

response; 

* * * 

(5) Creating a condition which is physically offensive to persons 

or which presents a risk of physical harm to persons or property, by any 

act which serves no lawful and reasonable purpose of the offender. 

{¶18} Thus, there are grounds by which the sheriff’s department could revoke 

Trachman’s concealed carry license due to his disorderly conduct conviction. 

{¶19} Lastly, Trachman argues that the revocation of his concealed carry 

permit as a subsequent civil penalty is akin to the situation presented in Padilla v. 

Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, a nonresident defendant faced deportation after pleading guilty to drug trafficking. But for 

his counsel’s assurances that he would not face deportation, the defendant argued 

that he would not have pleaded guilty. Since there was a statute specifically providing 

for deportation upon a drug offense conviction, the United State Supreme Court 

determined that his counsel’s performance was constitutionally deficient and 
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remanded the matter for a determination of whether the defendant was prejudiced by 

that deficient performance. 

{¶20} Trachman’s reliance on Padilla is misplaced. Here, Trachman does not 

assert that he was misinformed by his trial counsel; nor is there a concomitant 

allegation of ineffective assistance of counsel. Padilla pertains to an ineffective 

assistance of counsel analysis, not manifest injustice under the context of a postsentence motion to withdraw a guilty plea. 

{¶21} Trachman also relies on the recent decision from this court in State v. 

Howard, 7th Dist. No. 12 MA 41, 2013-Ohio-1437. The Howard case also involved a 

concealed carry permit, but under different circumstances. Howard obtained a 

concealed carry license from the Trumbull County Sheriff’s Department. Thereafter, 

he was charged in Youngstown Municipal Court with discharging a firearm while 

intoxicated. Upon learning of this charge, the Trumbull County Sheriff’s Department 

sent Howard a suspension notice to him suspending his license. Howard resolved the 

discharging a firearm while intoxicated by pleading no contest to disorderly conduct 

and carrying a concealed weapon, both minor misdemeanors. A few months later, 

Howard was charged with a fourth-degree felony, carrying a concealed weapon, 

stemming from a traffic stop. He sought to have the charge dismissed arguing that he 

had a valid concealed carry license at the time of the stop. The trial court overruled 

Howard’s motion and he entered an Alford plea of guilty as charged. Howard 

appealed and this court affirmed his conviction reasoning that he waived any review 

of the motion to dismiss upon entering his Alford guilty plea. 

{¶22} Howard then filed a motion to vacate his plea arguing that his trial 

counsel had misinformed him that by entering an Alford plea he would be able to 

preserve all factual issues that had been raised at trial (i.e., that he had a valid 

concealed carry permit at the time he was arrested) for review on appeal. The trial 

court overruled Howard’s motion without a hearing and he appealed. 

{¶23} Based on Howard’s affidavit that he relied upon his trial counsel’s 

misrepresentation, the timing of his motion to withdraw and the case history, this 
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court found that Howard had presented enough evidence to warrant a hearing on his 

motion to vacate. 

{¶24} While the Howard case involved a motion to vacate and a concealed 

carry license, it does not lend any support to Trachman’s argument here. Again, as 

with his reliance on Padilla, Trachman does not assert that he was misinformed by 

his trial counsel; nor is there a concomitant allegation of ineffective assistance of 

counsel. Moreover, the possible manifest injustice at issue in Howard was Howard’s 

ability to establish his innocence on appeal. Here, the issue is Trachman’s ability to 

retain his concealed carry permit – a collateral, civil consequence to his conviction, 

not his guilt or innocence. 

{¶25} For all of the foregoing reasons, this case does not present itself as the 

type of extraordinary case demonstrating a manifest injustice and, therefore, the trial 

court did not abuse its discretion in denying Trachman’s motion to withdraw his no 

contest pleas. Accordingly, Trachman’s first assignment of error is without merit. 

{¶26} Trachman’s second assignment of error states: 

By failing to conduct an evidentiary hearing the trial court 

committed reversible error relative to the Motion to Withdraw Pleas of 

“No Contest”[.] 

{¶27} In this assignment of error, Trachman contends that the trial court erred 

when it did not hold an evidentiary hearing on his motion to withdraw his no contest 

pleas. 

{¶28} As for an evidentiary hearing, sometimes a Crim.R. 32.1 postsentence 

motion to withdraw a guilty plea requires an evidentiary hearing. State v. Borecky,

11th Dist. No.2007-L-197, 2008-Ohio-3890, ¶ 30. It has been explained that “an 

evidentiary hearing is required if the facts alleged by a defendant, accepted as true, 

would require the trial court to grant the motion. However, if the record, on its face, 

conclusively and irrefutably contradicts a defendant’s allegations in support of his 

Crim.R. 32.1 motion, an evidentiary hearing is not required.” Id. In other words, an 
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evidentiary hearing is not warranted on a postsentence motion to withdraw a plea if 

the “record indicates that the movant is not entitled to relief and the movant has failed 

to submit evidentiary documents sufficient to demonstrate a manifest injustice.” State 

v. Bari, 8th Dist. No. 90370, 2008-Ohio-3663, ¶ 9. 

{¶29} Here, for the reasons explained under Trachman’s first assignment of 

error, the record, on its face, conclusively and irrefutably contradicted Trachman’s 

allegations in support of his Crim.R. 32.1 motion and the motion failed to demonstrate 

manifest injustice. Therefore, the motion did not warrant an evidentiary hearing. 

Accordingly, Trachman’s second assignment of error is also without merit. 

{¶30} The judgment of the trial court is hereby affirmed. 

Vukovich, J., concurs. 

DeGenaro, P.J., concurs.