[Cite as State v. Kopnitsky , 2019-Ohio-5066.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. DAVID KOPNITSKY,
Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 MA 0019

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 17 CR 205

BEFORE: Carol Ann Robb, Cheryl L. Waite, Judges and Timothy P. Cannon, Judge of the Eleventh District Court of Appeals, Sittin g b y Assi g nment.

JUDGMENT: Affirmed.

Atty. Paul J. Gains , Mahoning County Prosecutor, Atty. Ralph M. Rivera , Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Young stown, Ohio 44503, for Plaintiff-Appellee and– 2 –

Case No. 19 MA 0019

Atty. Christopher P. Lacich, Roth, Blair, Roberts, Strasfeld & Lodge, 100 East Federal Street, Suite 600, Youngstown, Ohio 44503, for Defendant-Appell ant

. Dated: December 5, 2019

Robb, J.
{¶1} Defendant-Appellant David Kopnitsky appeals from the judgment o f the Mahoning County Common Pleas Court sentencing him on four offen ses after he pled guilty. He contends the court erred in denying his motion to w ithdraw the guilty plea which he made orally after the court announced the sentence. He stat es his guilty plea was not made knowingly, voluntarily, or intelligently because he did no t anticipate the harsh sentence and the court led him to believe at the plea hearing t hat incarceration was unlikely. For the following reasons , the trial court’s judgmen t is affirmed.
STATEMENT OF THE CASE {¶2} On March 23, 2017, Appellant was indicted on four counts for co nduct occurring on December 18, 2016. First, he was charged with thi rd-degree felony failure to comply with an order or signal of a police officer for opera ting a motor vehicle so as to willfully elude or flee a police officer after receiving an aud ible or visible signal to stop and thereby causing a substantial risk of serious physical harm to persons or property in violation of R.C. 2921.331(B). Second, he was charged with fou rth-degree felony vehicular assault for recklessly causing serious physical harm to his passenger while operating a motor vehicle in violation of R.C. 2903.08(A)(2). He was also charged with two fifth-degree felony drug counts: aggravated possession of drugs for having oxycodone and possession of cocaine. See R.C. 2925.11(A),(C)(1)(a),(4)(a). {¶3} A June 2017 pretrial resulted in a continuance due to ongoing p lea negotiations. After the second pretrial, a forensic examinatio n was ordered to evaluate Appellant’s sanity at the time of the offense. A motion hearin g was held in November 2017 to discuss the forensic report concluding Appellant was sa ne at the time of the offense; defense counsel asked for additional time to evaluate the report. {¶4} On December 29, 2017, Appellant entered a Crim.R. 11 agreement, agreeing to plead guilty to the four offenses as charged, while the state agreed to– 3 –

Case No. 19 MA 0019 recommend a term of incarceration deemed appropriate by the cou rt, substance abuse treatment, and a driver’s license suspension for the mandatory minimum of 3 years. Before memorializing the plea at the hearing, other matters wer e discussed. For instance, defense counsel withdrew any request regarding psychological ev aluation and any potential challenge on sanity or competency. On the latter top ic, he said Appellant was extremely intelligent and understood everything that was occurr ing. {¶5} Defense counsel also sought to reinstate bond (which was revoke d in October 2017 due to a violation) and asked the court to refrain from issuing a no-contact order so Appellant could have contact with his boyfriend, who w as listed as the victim in the vehicular assault charge. The victim was present to confir m that he did not wish the court to impose a no-contact order. Defense counsel said he ha d no objection to the court questioning the victim, who said he was hospitalized as a result of the accident and now has a metal pole and screws in his leg. (Plea Tr. 21-22). The court carried on a lengthy colloquy with both the victim and Appellant who disclos ed: he was off his medication but self-medicating by using “a bunch of substances” ; “it would have been better to pull over, go to jail * * * but I didn’t. It resulte d in a car accident”; “I did die that day. If it wasn’t for the fast response of Boardman Fire Rescue , I would be dead”; and the victim “was trapped in the car for an hour, and it was a very s evere traumatic incident * * *.” (Plea Tr. 14). {¶6} The written plea agreement signed by Appellant explained the ra mifications of the plea. For instance, he was informed: the maximum sente nce on count one was 36 months with prison presumed necessary and with a mandatory c onsecutive term if prison was imposed; the maximum sentence was 18 months for coun t two and 12 months for counts three and four; and he would be subject to mandatory post-release control for 3 years if sentenced to prison (with details for any violations ). The court repeated this information at the plea hearing, noting the prison sentence cou ld total 6.5 years and could be imposed immediately. (Sent.Tr. 39-41). The court reviewed and ensured Appellant understood the constitutional rights he would be waiving. (Sen t.Tr. 42-43). {¶7} The court accepted the plea, granted the request for release on bond, instructed Appellant to remain in treatment pending sentencing, lifted any no-contact order, and ordered a pre-sentence investigation to be prepared for the sentencing hearing– 4 –

Case No. 19 MA 0019 set for February 1, 2018. However, Appellant failed to appear for sentencing on that date,
and the court issued a bench warrant. {¶8} On November 27, 2018, nearly 10 months after failing to appear at sentencing, Appellant was apprehended in Cuyahoga County (where Appellant says he turned himself in), and he was returned to Mahoning County the next month. Sentencing was set for January 9, 2019 and continued until January 11, 201 9 to ensure victim notification. A different judge presided at the sentencing hea ring (due to the retirement of the judge presiding at the plea). {¶9} As to why he failed to appear for sentencing, Appellant said: he and a female friend provided information about a drug dealer; he “ran ” to Cleveland to save his life and live with the victim; and the female friend was the vi ctim of an unsolved homicide in Youngstown. (Sent.Tr. 6-8). His attorney said Appellant’s apartment appeared to have been ransacked when he went looking for him after his failure t o appear. (Sent.Tr. 5). When Appellant spoke of his past success with supervision, he n oted, “I’ve never been given a break. I’ve always been sent to prison.” (Sent.Tr. 9) . He asked for treatment at a community corrections facility. Defense counsel said he did not dispute the record or rendition of facts in the presentence investigation report. (S ent.Tr. 10). {¶10} The trial court discussed Appellant’s lengthy adult record star ting in 1997 and made reference to a juvenile record as well. The court ack nowledged the many lives put at risk by Appellant’s vehicular flight from police, includ ing the lives of the officers and the public on the road at the time, noting Appellant “blew thro ugh one of the busiest intersections on Market Street.” (Sent Tr. 13). The resulting accident was also mentioned. The court voiced its consideration of the presenten ce report, the purposes and principles of sentencing under R.C. 2929.11, the seriousnes s and recidivism factors in R.C. 2929.12, and other s tatutory considerations. {¶11} The court then imposed 36 months in prison on count one and 12 months on counts two, three, and four to be served concurrent with eac h other but consecutive to the first count (as required by statute when a prison term i s imposed for the particular offense in count one). The total prison sentence was thus 48 m onths. Appellant’s driver’s license was suspended for 5 years and a mandatory post-release control term of 3 years was imposed.– 5 –

Case No. 19 MA 0019 {¶12} After this sentence was announced, Appellant made an oral motio n to withdraw his plea “to correct a manifest injustice” stating: h e was innocent of two charges; the victim’s statement at the plea hearing showed he was innoce nt of vehicular assault;
he did not think he would receive “such an astronomical sentenc e”; and he was promised he would not receive a sentence of this nature. (Sent.Tr. 21-2 2). The court denied his post-sentence plea withdrawal motion. (Sent.Tr. 23). Appellan t filed a timely notice of appeal from the January 17, 2019 sentencing entry.
ASSIGNMENT OF ERROR {¶13} Appellant’s sole assignment of error alleges:
“THE TRIAL ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW, BY FAILING TO ALLOW THE DEFENDANT

APPELLANT TO WITHDRAW HIS GUILTY PLEA TO COUNT ONE BASED ON HIS
ORAL MOTION AFTER SENTENCING.” {¶14} Appellant contends the court erred in denying his post-sentence motion to withdraw the guilty plea because he demonstrated a manifest inj ustice. Arguing the plea was not voluntarily, knowingly, or intelligently made, Appellan t says he interpreted the “sugar-coated dialogue” and the “optimistic picture painted” by the trial judge at the plea hearing as an implied promise that incarceration was unlikely, leading him to believe he would not be sentenced to prison. Although he failed to appear for the scheduled sentencing, he points to the claim he made at sentencing that h is life would have been at risk by staying in town. His brief also cites to the claim mad e during the plea withdrawal
motion that he was innocent on “count one.” 1 He believes the trial court should not have denied the oral motion without calling a recess so he could con fer with his attorney, setting the motion for a further hearing, or making an inquiry about th e claimed manifest injustice.

1 While moving for plea withdrawal, Appellant claimed he was “in nocent of two of the charges” but only specifically mentioned vehicular assault, which was count two. He said his innocence of this count was supported by the victim’s statement at the plea hearing, and de fense counsel referred to the victim’s injuries as “minor.” (Sent.Tr. 4, 21). If Appellant intended to refer to the vehicular assault element of serious physical harm, then we note the victim’s injury resulted in the implantation of a metal pole and screws in his leg. (Plea Tr. 21-22). We also note count one (failure to comply with order or signal of police officer) required a substantial risk of serious physical harm and there was no hint of what his argument would be as to that count or if he was even referring to that count.– 6 –

Case No. 19 MA 0019 {¶15} “A motion to withdraw a plea of guilty or no contest may be mad e only before sentence is imposed; but to correct manifest injustice the cour t after sentence may set aside the judgment of conviction and permit the defendant to wi thdraw his or her plea.”
Crim.R. 32.1. “The motion is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions i n support of the motion are matters to be resolved by that court.” State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). In reviewing whether a court abused its discretio n in denying a plea withdrawal motion, the appellate court considers whether the tr ial court's ruling was unreasonable, arbitrary, or unconscionable. State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). {¶16} “[A] postsentence withdrawal motion is allowable only in extra ordinary
cases.” Smith , 49 Ohio St.2d at 264. The burden of establishing a manifest injustice is
on the defendant. Id. The defendant must show withdrawal is “necessary” to correct manifest injustice. State v. Stumpf , 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987). “The logic behind this precept is to discourage a defendant from ple ading guilty to test the weight of potential reprisal, and later withdraw the plea if th e sentence was unexpectedly
severe.” State v. Caraballo , 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). {¶17} In addition to appealing the denial of plea withdrawal, a guilt y plea that is not knowing, intelligent, and voluntary can be challenged in th e direct appeal from the
sentence. See generally State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 40. A plea is invalid if it was not knowingly, i ntelligently, and voluntarily
made. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Appellant does not cite to a violation of Crim.R. 11 but argues his plea was not made knowingly, voluntarily, or intelligently because the judge pres iding at the plea hearing impliedly promised, by leading him to believe, a non-prison san ction would be imposed. {¶18} The transcript of the plea hearing does not support this argume nt. At the plea hearing, the judge reminded Appellant: “These are serious charges. * * * They are penitentiary-type charges. You know that right?” Appellant re sponded that he understood this fact. (Plea Tr. 10). Appellant recognized his future was uncertain, noting he was waiting to make certain plans “until the sentencing and then we are going to see what happens with your Honorable Court, see what it is that you decided with regards to– 7 –

Case No. 19 MA 0019 whether you want to send me to prison or not.” (Plea Tr. 17). The court explained that it had not yet made a decision whether prison would be imposed and warned: “at some point if I do send you to prison, it will not be for a weekend vacation.” (Plea Tr. 21, 36). The court informed Appellant of the maximum sentences on each o f the four felonies (36 months, 18 months, 12 months, and 12 months), the presumption t hat prison was necessary for the second-degree felony, the statutory requireme nt of a consecutive sentence if the court imposed a prison term on that offense, an d the potential of receiving 6.5 years in prison total. (Plea Tr. 39-40). Consequently, th e record on appeal does not support an allegation that the trial court impliedly indicated Appellant would not be sentenced to prison. {¶19} Regarding his plea withdrawal motion, the defendant moving for postsentence plea withdrawal has the burden of showing the necessit y of a plea withdrawal due to a manifest injustice. Stumpf , 32 Ohio St.3d at 104; Smith , 49 Ohio St.2d at 264. Therefore, the defendant must provide evidence to support his c laim that he was promised a certain sentence. State v. Thomas , 8th Dist. Cuyahoga No. 85294, 2005- Ohio-4145, ¶ 5, 9. And, he cannot withdraw his plea because he received a harsher sentence than expected. Id. In other words, a defendant’s statement that he did not actually expect to receive the sentence the court told him he c ould receive does not approach a showing of manifest injustice. As for the allegatio n of an implied promise, the sentencing judge was different than the judge at the plea heari ng. The December 29, 2017 written plea agreement was filed in the record case and sh owed: the maximum sentences, specifying prison was presumed necessary for the sec ond-degree felony and would statutorily result in a consecutive sentence if a prison term was imposed; the state recommended a term of incarceration deemed appropriate by the c ourt; and Appellant was not induced into making the plea by any promises (other tha n the state’s recommendation). {¶20} This court has ruled that a hearing is not required on a Crim.R . 32.1 postsentence plea withdrawal motion if the facts alleged are not su fficient to prove a manifest injustice. State v. Snyder , 7th Dist. Jefferson No. 08-JE–27, 2009-Ohio-4813, ¶ 15 (where a written motion was filed). Here, Appellant orally moved for plea withdrawal at a hearing
, and he did not request a continuance for a further hearing on h is motion. One risk of– 8 –

Case No. 19 MA 0019 orally moving to withdraw the plea immediately after the senten ce is imposed is that the oral motion will not contain sufficient allegations or cite to relevant evidence. Appellant claimed to the sentencing court that a promise of non-incarcera tion occurred at the plea hearing without providing evidence of this. If a motion is bas ed on a plea hearing, the movant should produce the transcript of the plea hearing (which occurred over a year before the sentencing) when making his motion. (In any event, as noted above, the plea transcript demonstrated there was no promise of community contr ol or a minimum sentence.) {¶21} Additionally, the defense acknowledged to the sentencing court that any inclination of the prior judge toward community control was wit h the expectation of and dependent upon Appellant’s appearance at sentencing with contin ued treatment. (Sent.Tr. 7). Yet, Appellant did not appear at his February 1, 2018 sentencing hearing, did not show continued treatment between the plea and February 1, 2018, and did not make himself available for drug testing (which the court planne d to do on the day of sentencing). Appellant’s claim that he feared for his life as a result of a statement he may have given in an unrelated situation and felt it necessary to m ove to Cleveland (to live with his known boyfriend) need not be accepted as true or as a valid reason for failing to appear before a court for sentencing after pleading guilty; a r ational fact-finder could conclude that even if there was a rational fear explaining his move, it does not explain or excuse his failure to appear at sentencing (or failure to seek a continuance or an escort to court). {¶22} Furthermore, Appellant’s oral plea withdrawal motion generally said he was innocent of vehicular assault. However, he did not explain thi s declaration, and he entered his plea more than a year before he asked to withdraw i t. No new evidence was cited as to the elements of the offense or any defense. Undue delay between the motion and the reason for withdrawal neg atively affects credibility an d militates against allowing plea withdrawal. Smith , 49 Ohio St.2d at 264. As stated supra, a harsh sentence is n ot a valid reason for withdrawal. {¶23} Contrary to the suggestion in Appellant’s brief, there was no r equirement for the court to call a recess for Appellant to consult with hi s attorney. Appellant did not request a recess, and the record suggests defense counsel alrea dy knew of Appellant’s– 9 –

Case No. 19 MA 0019 plan to move to withdraw the plea if he was unsatisfied with th e sentence. After the court announced its sentence and asked if counsel had anything furthe r to add, defense counsel said Appellant had a request to make after the court wa s finished, at which point Appellant voiced his oral plea withdrawal motion. Notably, App ellant was prepared with the proper legal terminology, asking to withdraw the plea based on a “manifest injustice.” As Appellant’s brief recognizes, this was not a presentence ple a withdrawal motion, which does not have as stringent parameters. The sentencing court al lowed Appellant to voice his motion at a hearing on the record. The court was not requi red to examine him to help him develop his allegations, and Appellant cites nothing suppor ting such a suggestion. If he had more to say or evidence to submit, he should have filed a written motion and asked for a separate hearing. Ap pellant placed his credibility before the court on the record when he made his motion, and he provided no support for his claim of promise or innocence (on the vehicular assault charge or the other three c harges). See Smith , 49 Ohio St.2d at 264 (credibility, good faith, and weight are subj ects for the trial court when ruling on the withdrawal motion). {¶24} Appellant’s apparent strategy was what the rigorous standard in Crim.R. 32.1 was designed to prevent: a plan to “test the weight of po tential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.” Caraballo , 17 Ohio St.3d at
67. See also Smith , 49 Ohio St.2d at 264 (the strict post-sentence withdrawal rul e “seeks to avoid the possibility of a defendant pleading guilty to test the weight of potential punishment”). Appellant’s motion for post-sentence plea withdr awal did not demonstrate this was an “extraordinary” case. See Smith , 49 Ohio St.2d at 264. Appellant failed to demonstrate a manifest injustice, and the trial court did not a buse its discretion by denying the plea withdrawal motion as presented to the court. {¶25} For the foregoing reasons, Appellant’s assignment of error is o verruled, and the trial court’s judgment is affirmed.

Waite, P.J., concurs.
Cannon, J., concurs.[Cite as State v. Kopnitsky , 2019-Ohio-5066.]

For the reasons stated in the Opinion rendered herein, the assi gnment of error is overruled and it is the final judgment and order of this Cou rt that the judgment of
the Court of Common Pleas of Mahoni ng County, Ohio, is affirmed . Costs waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.