[Cite as State v. Black, 2010-Ohio-2701.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 09 CO 15 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

MICHAEL BLACK, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

 Court, Case No. 04CR44. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Robert Herron 

 Prosecuting Attorney 

 Attorney Timothy McNicol 

 Attorney Kyde Jones 

 Assistant Prosecuting Attorneys 

 105 South Market Street 

 Lisbon, Ohio 44432 

For Defendant-Appellant: Attorney Timothy Young 

 Ohio Public Defender 

 Attorney Katherine Szudy 

 Assistant State Public Defender 

 250 East Broad Street, Suite 1400 

 Columbus, Ohio 43215 

 Michael Black, Pro se

 #09512-033 

 U.S. Penitentiary Marion 

 P.O. Box 10001 

 Marion, Illinois 62959 
JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 Dated: June 14, 2010 

VUKOVICH, P.J. 

¶{1} Defendant-appellant Michael Black appeals the decision of the 

Columbiana County Common Pleas Court which denied his post-sentence motion to 

withdraw his guilty plea. Appellant argued to the trial court that he discovered that the 

state could not have established the elements of importuning, the offense to which he 

pled guilty. He urged that the state proceeded under the assumption that the Chief of 

Police posed as a fifteen-year-old girl because her online profile stated such age; 

however, he now believes that evidence, which he admitted to reading prior to 

pleading, shows that the Chief also provided the birth date for a sixteen-year-old while 

chatting with appellant online. 

¶{2} In his pro se supplemental brief, appellant reiterates this argument on 

appeal. His appellate counsel, however, argues that appellant’s plea was not entered 

knowingly, voluntarily, or intelligently because the trial court did not fully advise him 

concerning post-release control at his plea hearing. For the following reasons, we 

affirm the trial court’s denial of appellant’s motion as these appellate arguments are 

without merit. 

STATEMENT OF THE CASE

¶{3} On January 30, 2004, appellant, a fifty-four year old male, was arrested 

in the Village of New Waterford. He traveled there from his home in Kentucky 

allegedly with the intent to visit a girl with whom he had been speaking online for the 

past week. This “girl” was actually the New Waterford Chief of Police who had created 

an online profile stating that the user was a fifteen-year-old female. Appellant also 

communicated over his cellular telephone with a female employee of the police 

department who impersonated the girl created by the Chief. 
¶{4} Appellant was indicted for attempted unlawful sexual contact with a 

minor, a fourth degree felony, which entails an adult’s attempt to engage in sexual 

conduct with another when the offender knows the other person is thirteen years old or 

more but less than sixteen, or the offender is reckless in that regard. R.C. 2907.04(A). 

See, also, R.C. 2923.02(A) (attempt). He was also indicted for importuning, a fifth 

degree felony, with the following elements: 

¶{5} “No person shall solicit another by means of a telecommunications 

device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity 

with the offender when the offender is eighteen years of age or older and * * * The 

other person is a law enforcement officer posing as a person who is thirteen years of 

age or older but less than sixteen years of age, the offender believes that the other 

person is thirteen years of age or older but less than sixteen years of age or is 

reckless in that regard, and the offender is four or more years older than the age the 

law enforcement officer assumes in posing as the person who is thirteen years of age 

or older but less than sixteen years of age.” R.C. 2907.07(D)(2). 

¶{6} The defense filed various motions. For instance, appellant sought 

suppression on the grounds of outrageous government conduct and entrapment. He 

sought suppression of evidence seized after an allegedly unlawful investigatory stop. 

He claimed his arrest was unconstitutional. He also sought suppression of his 

custodial statement due to the continued questioning after a request for counsel. He 

filed a motion in limine to bar the introduction of various pieces of evidence including 

the chat room transcripts, which had been provided in discovery. The court granted 

appellant’s motion to suppress his custodial statement finding that he did request 

counsel. The court denied the other motions. 

¶{7} On May 24, 2004, appellant entered a plea agreement whereby he pled 

guilty to importuning and the state dismissed the other count. Appellant was 

automatically labeled a sexually oriented offender, and the state did not seek a higher 

label. Appellant and the state stipulated to a six-month prison sentence. With credit 

for time served, he was scheduled to be released on July 31, 2004. 
¶{8} On January 28, 2009, approaching five years after his plea and 

sentencing, appellant filed a motion to withdraw his guilty plea.1

 Initially, he noted that 

the state could not have successfully prosecuted him for attempted unlawful sexual 

conduct with a minor because there was no actual victim. In main part, he claimed 

that the Chief testified in federal court that he told appellant in the third chat that the 

girl was born on January 16, 1988. As this would have made her sixteen, rather than 

fifteen, when contact began on January 24, 2004, appellant urged that the importuning 

charge was improper as well. Appellant’s motion also made arguments concerning 

the Chief’s credibility, noting that the affidavit used by the Kentucky State Police to 

obtain a warrant for appellant’s residence stated that the Chief advised their officer 

that appellant was charged with four felony counts. 

¶{9} On April 27, 2009, the court denied appellant’s motion. After doing so, 

the court also opined that the motion was moot as appellant had already served his 

six-month sentence, notwithstanding the fact that appellant was still obligated to 

register as a sexually oriented offender due to the conviction and was subject to postrelease control for five years after his release from prison (which had not yet occurred 

due to his transfer to federal prison for federal charges). Appellant also unsuccessfully 

sought reconsideration. 

¶{10} Appellant filed notice of appeal from the April 27, 2009 judgment entry, 

which this court construed as timely due to the clerk’s failure to serve the trial court’s 

judgment upon appellant. Appointed counsel filed a brief with one assignment of error. 

This court also agreed to review the legal argument presented in appellant’s request to 

supplement his attorney’s brief in order to review the argument presented in the plea 

withdrawal motion, that he did not commit the offense of importuning. 

¶{11} Appellant through counsel also sought to supplement the record with 

evidence that his prior sexually oriented offender classification had been changed to a 

Tier I sexual offender in December of 2007. This court denied appellant’s motion 

 1

Appellant calls it an Alford plea. However, there is no indication that the plea was anything but 

a straightforward guilty plea. In fact, the transcript of the plea hearing, the Judicial Advice to Defendant, 

and the Defendant’s Response to Court establish that he completely admitted his guilt. See North 

Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. 
believing he wished to supplement the record with items not presented to the trial court 

in order to prove the merits of his appeal. 

¶{12} To the extent that this supplementation was presented to show that a 

plea withdrawal motion is not moot merely because the sentence was served, the 

evidence that he is still subject to registration requirements is reviewable by this court. 

See State v. Golston (1994), 71 Ohio St.3d 224, syllabus (an appeal challenging a 

felony conviction is not moot even if the entire sentence has been served before the 

appeal is decided, because there are many adverse collateral disabilities that 

accompany a felony conviction even after the sentence has been served); Pewitt v. 

Lorain Correctional Institution (1992), 64 Ohio St.3d 470, 472, citing Miner v. Witt

(1910), 82 Ohio St. 237 (an event that causes a case to become moot may be proved 

by extrinsic evidence outside the record); State ex rel. Luchette v. Pasquerilla, 182 

Ohio App.3d 214, 2009-Ohio-2084, ¶48 (7th Dist. sitting for 11th Dist.), citing Am. 

Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, ¶19-39 (7th Dist.) 

(appellate court can look at items outside the record for the limited purpose of 

determining whether an appeal is moot). 

GENERAL LAW ON PLEA WITHDRAWAL

¶{13} Absent a manifest injustice, a motion to withdraw a guilty plea must be 

made prior to the imposition of sentence. Crim.R. 32.1. A manifest injustice occurs 

only in extraordinary circumstances. State v. Smith (1977), 49 Ohio St.2d 261, 264. 

We review the decision to deny a post-sentence motion to withdraw a guilty plea under 

an abuse of discretion standard of review. Id. at 264; State v. Xie (1992), 62 Ohio 

St.3d 521, 527. An abuse of discretion connotes more than an error of law or 

judgment; rather, it implies the trial court's attitude was unreasonable, arbitrary, or 

unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. Evaluating the good 

faith, credibility, and weight of the movant’s assertions in the motion is the province of 

the trial court. Smith, 49 Ohio St.2d at 264. The timing of the motion is relevant in 

making these determinations as undue delay weighs against the movant. Id. 

¶{14} The burden rests on the movant. See id. An evidentiary hearing is not 

warranted on a post-sentence motion to withdraw a guilty 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. McFarland, 7th Dist. 

No. 08JE25, 2009-Ohio-4391, ¶22, citing State v. Bari, 8th Dist. No. 90370, 2008-

Ohio-3663, ¶9. Moreover, the trial court cannot grant a motion to withdraw a plea 

based upon an affidavit which directly contradicts the record. Id. 

APPELLANT’S PRO SE ARGUMENT

¶{15} Appellant argues that the trial court erred in denying his plea withdrawal 

motion because he could not commit importuning if the Chief posed as a sixteen-year 

old. He explains that he did not become aware of this issue until the Chief was asked 

to read the third chat transcript at a federal trial and the Chief then apparently read that 

he advised appellant that the girl’s birth date was January 16, 1988. This would have 

made her sixteen, rather than fifteen, at the time of the contact, which began on 

January 24, 2004. 

¶{16} The chat transcripts were admitted as an exhibit at the 2004 suppression 

hearing in this case. (Tr. 159, 161). At that hearing, appellant testified on direct 

examination that he knew the girl’s profile stated that she was fifteen, but she did not 

act like a fifteen-year-old girl. (Tr. 31, 50-51). He stated that he initially believed that 

the girl was a man because of the responses to sexual comments. (Tr. 33). He 

testified that after he spoke to her on the telephone, he was “shocked” that it was a 

woman. (Tr. 36). He stated that he could tell that it was not a “young kid” and 

estimated her age to be between twenty and twenty-five years of age. (Tr. 36-37, 45). 

¶{17} Nothing regarding the girl’s provision of a birth date was mentioned at 

the suppression hearing. Although the transcripts were admitted at the suppression 

hearing, they were not read to the court in any large part. Notably, defense counsel 

had been provided with the chat transcripts in discovery and even filed a motion trying 

to have them excluded from evidence at trial. More importantly, appellant himself 

testified that he read the chat transcripts the night before the hearing. (Tr. 73). If the 

third chat transcript truly did show that the Chief accidentally provided a birth date for a 

sixteen-year old, appellant had his chance to notice this in preparing for trial and to 

take the case to trial rather than pleading to importuning. In other words, the evidence 

is not new but is original evidence provided in discovery, which appellant failed to 

recognize and utilize. 
¶{18} In addition, appellant’s motion does not indicate when the third chat 

transcript took place. This is important because if he solicited sex with someone with 

a profile stating she was fifteen (which he admits he viewed immediately) and was only 

later informed of the birth date, then the offense would still have occurred; the offense 

does not get erased by the later subtraction mistake on the part of the officer in 

creating a birth date. In other words, the birth date evidence would not have required 

automatic dismissal of the charges outright but would have provided sufficiency and 

weight of the evidence arguments at trial. It is also important to point out that 

appellant fully understood the nature of the importuning charge including that the 

officer had to have posed as a child under sixteen. (Plea Tr. 10-11, 14, 19). 

¶{19} Most importantly for purposes of reviewing the denial of a post-sentence 

plea withdrawal motion, appellant’s motion was lacking in support. He did not have 

the suppression hearing transcribed for the trial court’s review. Thus, it is not properly 

before this court. State v. Ishmail (1978), 54 Ohio St.2d 402, 406. He did not even 

point out to the trial court that the chat transcripts were presented as exhibits at the 

suppression hearing and thus available in the record for the court’s review. Nor did he 

ensure these exhibits were transmitted to this court. 

¶{20} Rather, appellant’s motion referenced only the attached pages out of 

what he claimed was a “proof brief,” which he stated that he filed in federal appeals 

court; said pages made an argument regarding how one is not guilty of importuning if 

the officer posed as a sixteen-year old and claimed that the Chief testified in federal 

court that, in the third chat transcript, he provided a January 16, 1988 date of birth. 

However, appellant did not attach any transcripts from federal court.2

¶{21} He did not submit his own affidavit in support. See Toledo Bar Assn. v. 

Neller, 102 Ohio St.3d 1234, 2004-Ohio-2895, ¶1, 21, 24 (in Ohio, an affidavit must be 

under oath as opposed to an unsworn statement by the writer that the contents are 

correct). Thus, he did not provide a statement that he was unaware of the birth date 

issue at the time of his plea. Moreover, he did not explain why he waited nearly five 

years to seek plea withdrawal. From reading the pages out of some attached brief, it 

 2

Regarding appellant’s statement in his supplemental brief that he thought his current appellate 

attorney was ordering the federal transcripts, we note that if they were not presented to the trial court, 

they cannot be presented to this court on appeal. State v. Ishmail (1978), 54 Ohio St.2d 402, 406. 
can be discerned that he heard the Chief testify in federal court in January of 2006. 

However, his plea withdrawal motion was not filed until January of 2009. This lack of 

explanation regarding timing factors is against his claim as well. Smith, 49 Ohio St.2d 

at 264. Contrary to his suggestion, receipt of a copy of a brief for a federal appeal 

does not excuse his repeated failures to recognize the issue; presumably he attended 

his own federal criminal trial. 

¶{22} For all of these reasons, appellant’s motion was not sufficiently drafted or 

supported to require the trial court to hold a hearing on it or to grant it outright. That is, 

he failed to submit evidentiary documents sufficient to demonstrate a manifest 

injustice. McFarland, 7th Dist. No. 08JE25 at ¶22; State v. Jordan, 10th Dist. No. 

04AP-42, 2004-Ohio-6836, ¶5 (one seeking to withdraw a guilty plea following the 

imposition of sentence bears the burden of establishing a manifest injustice by pointing 

to specific facts either contained in the record or supplied through affidavits submitted 

with the motion.) Thus, appellant’s pro se argument is overruled. 

COUNSEL’S ASSIGNMENT OF ERROR

¶{23} Appellant’s sole assignment of error and issue presented provide 

respectively: 

¶{24} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A 

HEARING REGARDING MR. BLACK’S MOTION TO VACATE HIS GUILTY PLEA.” 

¶{25} “Was Mr. Black’s guilty plea knowingly, voluntarily, and intelligently 

made?” 

¶{26} Appellant’s counsel claims appellant should be permitted to withdraw his 

plea, alleging that it was not knowing, voluntary, or intelligent because the trial court 

misinformed appellant regarding post-release control. However, this argument was 

never presented to the trial court, and one cannot raise arguments such as this for the 

first time on appeal. See, e.g., State v. Awan (1986), 22 Ohio St.3d 120, syllabus; 

State v. Barker (1978), 53 Ohio St.2d 135, 147. In any event, this appellate argument 

would fail even if it had been raised below. 

¶{27} Appellant concedes that he was properly advised of the mandatory five 

years of post-release control he would face after prison and of the fact that if he 

violated post-release control, he could be sent back to prison in increments of nine 
months, not to exceed a maximum of one-half of the total term imposed for the 

offense. (Tr. 13, 21). He points out, however, that the court then stated that if he 

committed a new felony, he could be sent back to prison for twelve months. (Tr. 13). 

¶{28} As appellant points out, the law actually states that if he committed a 

new felony while on post-release control, he could receive a prison term for the 

violation of post-release control up to a maximum of the greater of twelve months or

the period of post-release control for the earlier felony minus any time he spent on 

post-release control. See R.C. 2929.141(B)(1). However, under the following 

analysis, the court’s incomplete oral advice regarding the potential commission of a 

new felony does not warrant plea withdrawal. 

¶{29} Initially, it is notable that in imposing a prison term on an offender, a 

court is statutorily-required to notify the offender that he will be supervised under R.C. 

2967.28 if he is being sentenced for a felony sex offense. R.C. 2929.19(B)(3)(c). The 

court is also statutorily-required to notify the offender that if he violates post-release 

control, the parole board may impose a prison term of up to one-half of the stated 

prison term originally imposed upon the offender. R.C. 2929.19(B)(3)(e). However, 

this notification statute does not state the offender must be told the ramifications of 

committing a new felony while on post-release control. See R.C. 2929.19(B)(3). 

¶{30} In addition, when the Supreme Court discussed the omissions from postrelease notifications in Sarkozy, the Court did not mention the failure to advise the 

defendant about the sanctions for the commission of a new felony while on postrelease control. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509. Rather, the 

Court took issue only with the failure to advise the pleading defendant that he would 

be subject to a mandatory five-year term of post-release control and that the violation 

of the conditions of post-release control could result in a prison term of up to one-half 

of the original prison term. Id. at ¶15, 23-24. This supports the conclusion that the 

notification regarding the commission of a new felony is not part of the requirements 

for a knowing, intelligent, and voluntary plea. 

¶{31} Furthermore, even if this were a partial, as opposed to a full, postrelease control notification, vacation of the plea is not required. Pursuant to Crim.R. 

11(C)(2)(a), the court must determine that the defendant is making the plea voluntarily, 
with understanding of the nature of the charge and of the maximum penalty involved. 

This is the provision said to be implicated in the case of a faulty post-release control 

notification. See Sarkozy, 117 Ohio St.3d 86 at ¶8-11. 

¶{32} Partial post-release control notifications at a plea hearing are evaluated 

under the substantial compliance test for non-constitutional rights. Id. at ¶20, 23. 

Under this test, the appellate court reviews the totality of the circumstances concerning 

the plea to determine whether appellant subjectively understood the effect of the plea. 

Id. The defendant must also show prejudice from the lack of full compliance in order 

to warrant plea withdrawal, i.e. he must show the plea would not have otherwise been 

made. Id. See, also, State v. Berch, 7th Dist. No. 08MA52, 2009-Ohio-2895, ¶27-35 

(confusion over mandatory or discretionary nature of post-release control does not 

invalidate plea where court advised of the correct term and of the sanctions for 

violation of the terms). 

¶{33} Here, the court recited the elements of the offense of importuning. (Tr. 

13-14). Appellant answered that he understood these elements. (Tr. 14). The court 

informed appellant that the maximum prison term was twelve months in prison for fifthdegree felony importuning. (Tr. 12-13). As aforementioned, the court properly 

advised appellant that he was subject to a mandatory term of five years of postrelease control. (Tr. 13, 21). See R.C. 2929.19(B)(3)(c); R.C. 2967.28(B)(1). The 

court also correctly advised that if he violated post-release control, he could be sent 

back to prison in increments of nine months not to exceed a maximum of one-half of 

the total term imposed for the offense. (Tr. 13). See R.C. 2929.19(B)(3)(e); R.C. 

2967.28(F)(3). 

¶{34} The court then stated that commission of a new felony while on postrelease control could result in being sent back to prison for twelve months. (Tr. 13). 

Although the actual language is the greater of twelve months or the time remaining on 

post-release control, the above disclosures constitute substantial compliance with 

Crim.R. 11(C)(2)(a), especially considering that the sanction for committing a new 

felony is not a statutorily-required notification in R.C. 2929.19(B)(3). 

¶{35} To further support this holding, it should be pointed out that paragraph 4 

on page 2 of the written “Judicial Advice to Defendant” correctly imparts the 
information regarding the sanctions for the commission of a new felony. Moreover, in 

“Defendant’s Response to Court,” appellant specifically answered that he understood 

everything stated in the Judicial Advice. Appellant signed this document, and 

appellant stated in open court that he went over the Judicial Advice and the 

Defendant’s Response with his counsel and that he had no questions regarding these 

documents besides a question as to how he would serve post-release control in 

Kentucky. (Tr. 9-10). 

¶{36} This establishes that the defendant was aware of the consequences for 

committing a new felony prior to the time of his plea. See State v. Jones, 116 Ohio 

St.3d 211, 2007-Ohio-6093, ¶53, 55 (considering the written agreement in evaluating 

whether the totality of the circumstances showed that the defendant was aware of the 

information omitted due to substantial rather than strict compliance). As such, there 

was substantial compliance with Crim.R. 11(C)(2)(a), and prejudice to appellant from 

the partial oral disclosure of the consequences of a new felony is lacking. 

¶{37} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.