[Cite as State v. Hill, 2012-Ohio-1754.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsTRACY J. HILL 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. CT11-0061 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Common Pleas Court, Case No. 

 CR2010-0168 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: April 16, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

ROBERT L. SMITH DAVID A. SAMS 

Assistant Prosecuting Attorney P.O. Box 40 

27 North Fifth Street West Jefferson, Ohio 43162 

Zanesville, Ohio 43701 
Muskingum County, Case No. CT11-0061 2

Hoffman, P.J. 

{¶1} Defendant-appellant Tracy J. Hill appeals the October 14, 2011 Judgment 

Entry entered by the Muskingum County Court of Common Pleas denying her motion to 

withdraw plea. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} On May 31, 2011, Appellant filed a motion to withdraw her plea stating the 

state of Ohio failed to honor the plea bargain agreed upon. Appellant was indicted on 

one count of drug possession, and entered a plea of guilty in return for the State’s 

agreement to recommend community control. The trial court sentenced Appellant to a 

prison term of ten months on November 2, 2010. 

{¶3} On January 3, 2011, Appellant applied for judicial release. On January 

10, 2011, the State filed a responsive pleading indicating it would take no position with 

regard to the motion in light of the plea negotiations. Via Judgment Entry of January 12, 

2011, the trial court denied Appellant’s application for judicial release. 

{¶4} On February 7, 2011, Appellant filed another motion for judicial release. 

On February 15, 2011, the State filed a response indicating it would take no position 

with respect to the motion. Via Judgment Entry dated February 22, 2011, the trial court 

denied Appellant’s motion for judicial release. 

{¶5} On March 8, 2011, Appellant filed another motion for judicial release. The 

State did not file a responsive pleading. Via Judgment Entry of March 21, 2011, the trial 

court denied Appellant’s motion for judicial release. 

 

1

 A rendition of the facts is unnecessary for our resolution of this appeal. 
Muskingum County, Case No. CT11-0061 3

{¶6} On May 31, 2011, Appellant moved the trial court to withdraw her plea of 

guilty. Via Judgment Entry of October 14, 2011, the trial court denied the motion. 

{¶7} Appellant now appeals, assigning as error: 

{¶8} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS IN 

VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS WHEN THE TRIAL 

COURT DENIED HER MOTION TO WITHDRAW HER PLEA.” 

{¶9} Crim. R. 32.1 governs the withdrawal of a guilty plea and states “[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.” 

{¶10} An appellate court reviews a trial court's decision on a motion to withdraw 

a plea under an abuse of discretion standard. State v. Francis, 104 Ohio St.3d 490, 820 

N.E.2d 355, 2004–Ohio–6894. 

{¶11} On October 4, 2010, Appellant appeared before the trial court and entered 

a plea of guilty to the one count set forth in the indictment. In the Change of Plea form, 

executed by Appellant, the State agreed to recommend Appellant “be placed on 

Community Control and submit to an alcohol/drug evaluation by Pamela Wells-Exline, 

successfully complete any recommendations she may make.” The plea agreement did 

not contain any agreement with regard to future proceedings. The trial court proceeded 

to accept Appellant’s change of plea. 

{¶12} On November 2, 2010, Appellant appeared before the trial court for 

sentencing. The trial court ordered Appellant serve a ten month prison sentence. 

Appellant did not appeal the sentence. 
Muskingum County, Case No. CT11-0061 4

{¶13} Appellant repeatedly moved the trial court for judicial release. The State 

filed written responses on two occasions, on which it recounted the plea negotiations 

and deferred to the Court for ruling on Appellant’s application for judicial release. On 

two occasions, the State maintains it did not have an opportunity to respond. 

{¶14} Appellant then moved the trial court to withdraw the plea of guilty asserting 

breach of the plea bargain by the State. Appellant claims the State breached its 

promise to recommend community control by deferring to the trial court its determination 

of Appellant’s application for judicial release rather than making an additional 

recommendation with respect thereto. 

{¶15} A review of the written plea agreement provides there was not an 

agreement between the State and Appellant as to a recommendation for judicial release 

after sentencing. The State read the terms of the agreement into the record and the 

Court reviewed the entire plea agreement with Appellant. The Court indicated to 

Appellant it was not bound by the terms of the agreement and could order any sentence 

authorized by law. The plea agreement addressed only the joint recommendation for 

purposes of sentencing. It did not address either party’s responsibility in the event the 

Court did not abide by their agreement or in the event Appellant was placed on 

community control and violated the terms thereof. 

{¶16} Based on the foregoing, we find Appellant has not demonstrated the State 

breached the terms of the plea agreement and the trial court did not abuse its discretion 

in denying Appellant’s motion to withdraw plea. 
Muskingum County, Case No. CT11-0061 5

{¶17} The October 14, 2011 Judgment Entry of the Muskingum County Court of 

Common Pleas is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Wise, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 
Muskingum County, Case No. CT11-0061 6

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

TRACY J. HILL : 

 : 

 Defendant-Appellant : Case No. CT11-0061 

 

 For the reasons stated in our accompanying Opinion, the October 14, 2011 

Judgment Entry of the Muskingum County Court of Common Pleas is affirmed. Costs 

assessed to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer___________________

 HON. SHEILA G. FARMER 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE