[Cite as State v. Evans, 2024-Ohio-2679.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

PAULDING COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLANT, CASE NO. 11-23-09

 v.

BILLY J. EVANS, O P I N I O N

 DEFENDANT-APPELLEE.

Appeal from Paulding County Municipal Court

Trial Court No. TRC2301119

Judgment Reversed and Case Remanded

Date of Decision: July 15, 2024

APPEARANCES:

Matthew A. Miller, for Appellant

Timothy C. Holtsberry, for Appellee
Case No. 11-23-09

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WALDICK, J.

{¶1} Plaintiff-appellant, State of Ohio (“the state”), appeals the December 1, 

2023 judgment of the Paulding County Municipal Court, wherein the trial court 

granted a post-sentence motion filed by defendant-appellee, Billy J. Evans 

(“Evans”), seeking to withdraw his plea of guilty in this case. For the reasons set 

forth below, we reverse.

Procedural Background

{¶2} This matter stems from a July 16, 2023 traffic stop, by the Ohio State 

Highway Patrol, of a vehicle driven by Evans. As a result, on or about July 17, 

2023, complaints were filed in the Paulding Municipal Court charging Evans with 

Operating a Vehicle Under the Influence of Alcohol or a Drug of Abuse (“OVI”), 

in violation of R.C. 4511.19(A)(1)(a), and a turn signal violation pursuant to R.C. 

4511.39.

{¶3} On July 20, 2023, an arraignment was held. Evans pled not guilty and 

counsel was appointed to represent him.

{¶4} On August 3, 2023, Evans filed a motion to preserve all tangible 

evidence related to the case, including all audio, video, and mechanical evidence. In 

that same motion, Evans requested the opportunity to inspect, review, and copy all 

such evidence. On that same date, Evans also filed a request for discovery pursuant 

to Crim.R. 16.
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{¶5} On August 17, 2023, a pretrial was held. The pretrial order filed by the 

trial court reflects that, at that time, both parties requested another pretrial, which 

was then set for September 22, 2023.

{¶6} On September 22, 2023, Evans failed to appear for the scheduled pretrial 

and a warrant was subsequently issued for his arrest.

{¶7} After Evans was located, another pretrial was scheduled to be held on 

October 10, 2023 but, on October 6, 2023, Evans requested a continuance of that 

pretrial date on the basis that he was starting a new job that same week. On October 

10, 2023, the trial court granted Evans’ motion for a continuance and rescheduled 

the pretrial for November 13, 2023.

{¶8} On November 13, 2023, the charges were resolved with a negotiated 

plea of guilty. Specifically, Evans pled guilty to the OVI charge and, in exchange, 

the state dismissed the turn signal violation. On that same date, the trial court 

sentenced Evans to three days in jail and a fine of $375.00. The judgment entry of 

conviction and sentence was filed by the trial court on that same date.

{¶9} On November 30, 2023, at 9:16 a.m., Evans filed a motion to withdraw 

his guilty plea pursuant to Crim.R. 32.1. In support, the motion alleged:

Defendant entered a plea of guilty pursuant to a plea 

negotiation. Defendant now believes he has not received from 

Plaintiff all discovery in this case and therefore, moves this Court to 

withdrawal [sic] his plea of guilty and that the Court enter not guilty 

pleas.
Case No. 11-23-09

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(11/30/23, Motion to Withdrawal [sic] Plea). The proof of service signed by Evans’ 

attorney reflects that Evans served the motion on the state by mailing a copy of the 

same, via ordinary U.S. mail, on November 30, 2023. 

{¶10} On December 1, 2023, at 10:25 a.m., the trial court filed a judgment 

entry finding, without elaboration, that Evans’ motion was well taken and ordering 

that the previously tendered plea of guilty be withdrawn. The trial court further 

ordered that pleas of not guilty be entered on Evans’ behalf.

{¶11} On December 5, 2023, the trial court filed a second judgment entry 

reflecting that Evans’ motion to withdraw his guilty plea had been granted and 

scheduling a pretrial for January 8, 2024.

{¶12} On December 7, 2023, the State of Ohio filed a response to the plea 

withdrawal motion and a memorandum in support of the state’s position opposing 

the withdrawal of the guilty plea. The state argued that Evans could not establish a 

manifest injustice, as required to withdraw the plea. The state represented that, after 

Evans filed the motion to withdraw his guilty plea, a conversation with Evans’ 

attorney reflected that the defense claimed to have not received video footage of the 

traffic stop in discovery. The State of Ohio asserted that the video had been 

preserved by the Ohio State Highway Patrol and was provided to defense counsel 

via email on August 14, 2023. Accordingly, the state submitted that Evans’ motion 

to withdraw his guilty plea was without merit as Evans had neither asserted nor 

demonstrated that a manifest injustice existed that permitted him to withdraw a
Case No. 11-23-09

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guilty plea pursuant to Crim.R. 32.1. For those reasons, the state requested that the 

trial court vacate its December 1, 2023 order granting Evans’ motion to withdraw 

his guilty plea and then overrule the motion. Alternatively, the prosecution 

requested that the court vacate the December 1, 2023 judgment and set the matter 

for a hearing at which Evans would be required, pursuant to Crim.R. 32.1, to 

establish a manifest injustice.

{¶13} On December 7, 2023, Evans filed a reply to the state’s response, in 

which defense counsel asserted that, while he had received an email from the state 

on August 14, 2023 concerning the video footage at issue, a link to the archived 

video footage had not been provided to defense counsel and therefore counsel did 

not have access to the video.

{¶14} The trial court took no further docketed action in the case regarding 

Evans’ motion to withdraw his guilty plea and, on December 29, 2023, the State of 

Ohio filed a notice of appeal of the trial court’s December 1, 2023 judgment, 

accompanied by a motion seeking leave to appeal that decision. On February 1, 

2024, this Court granted leave to the state to appeal the judgment at issue. 

{¶15} In the appeal now pending before this Court, the State of Ohio raises 

one assignment of error for our review.

Assignment of Error

The trial court abused its discretion in granting the defendant’s 

post-sentencing motion to withdraw his guilty plea.
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{¶16} In the sole assignment of error, the State of Ohio asserts that the trial 

court erred in summarily granting Evans’ motion to withdraw his guilty plea. The 

state argues that the trial court’s judgment was an abuse of discretion because 

Evans’ motion failed to allege, much less establish, that a manifest injustice exists 

that would justify post-sentence withdrawal of the guilty plea. The state also argues 

that the trial court abused its discretion in granting Evans’ motion because the state 

was given no time to respond to the motion, and because no hearing was held on the 

motion. 

{¶17} Upon review, this Court finds the State of Ohio’s latter contentions to 

be well taken.

Analysis

{¶18} A trial court’s ruling on a motion to withdraw a guilty plea will not be 

reversed in the absence of an abuse of discretion. State v. Edwards, 3d Dist. Union 

No. 14-23-11, 2023-Ohio-3213, ¶ 6. An abuse of discretion suggests the trial 

court’s decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 

Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

{¶19} Crim.R. 32.1 governs motions to withdraw guilty or no contest pleas, 

and 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.
Case No. 11-23-09

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{¶20} As this Court outlined in State v. Steele, 3d Dist. Defiance Nos. 4-22-

06, 4-22-07, 2023-Ohio-178, at ¶ 9: 

A defendant seeking to withdraw a guilty or no-contest plea after 

sentencing bears the burden of demonstrating a “manifest 

injustice.” State v. James, 3d Dist. Hancock No. 5-19-30, 2020-Ohio720, ¶ 11, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph 

one of the syllabus. The Supreme Court of Ohio has defined the 

manifest injustice standard as a “clear or openly unjust act.” State ex 

rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998). “‘A 

defendant is not entitled to withdraw his plea merely because he 

discovers long after the plea has been accepted that his calculus 

misapprehended the quality of the State’s case or the likely penalties 

attached to alternative courses of action.’” State v. Kimpel, 3d Dist. 

Shelby No. 17-17-12, 2018-Ohio-2246, ¶ 16, quoting Brady v. United 

States, 397 U.S. 742, 757, 90 S.Ct. 1463 (1970). “‘A “manifest 

injustice” comprehends a fundamental flaw in the path of justice so 

extraordinary that the defendant could not have sought redress from 

the resulting prejudice through another form of application reasonably 

available to him or her.’” State v. Brooks, 2d Dist. Montgomery No. 

23385, 2010-Ohio-1682, ¶ 8, quoting State v. Hartzell, 2d Dist. 

Montgomery No. 17499, *2 (Aug. 20, 1999). Thus, under this 

standard, “a postsentence withdrawal motion is allowable only in 

extraordinary cases.” Smith at 264.

{¶21} In Steele, supra, this Court also set forth the law as to when a 

hearing on a post-sentence motion to withdraw a guilty plea must be held:

“A hearing on a post-sentence motion to withdraw guilty [or nocontest] plea is not mandatory. It is required only ‘if the facts alleged 

by the defendant and accepted as true would require the court to 

permit that plea to be withdrawn.’” State v. Moore, 3d Dist. Allen No. 

1-11-29, 2012-Ohio-657, ¶ 13, quoting State v. Hamed, 63 Ohio 

App.3d 5, 7 (8th Dist.1989). Thus, before a defendant is entitled to a 

hearing on a post-sentence motion to withdraw a guilty or no contest 

plea, the trial court must determine that the allegations raised by the 

defendant, if true, constitutes a “manifest injustice.” State v. Smith, 3d 

Dist. Hancock Nos. 5-21-05, 5-21-06, 5-21-07, and 5-21-08, 2022-

Ohio-742, ¶ 21, citing Moore at ¶ 13. See State v. Nawman, 2d Dist. 
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Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 13 (“[N]o hearing is 

required on a post-sentence motion to withdraw a plea where the 

motion is supported only by the movant’s own self-serving affidavit, 

at least when the claim is not supported by the record.”).

Id., at ¶ 10.

{¶22} In the instant case, we find that the trial court abused its discretion in 

two ways in summarily granting Evans’ motion to withdraw his guilty plea.

{¶23} First, it was unreasonable and therefore an abuse of discretion for the 

trial court to rule on Evans’ plea-withdrawal motion without allowing the State of 

Ohio a reasonable opportunity to respond. Evans filed the motion to withdraw his 

guilty plea on November 30, 2023, and the trial court granted the motion the very 

next day. That single day did not provide the prosecution any meaningful 

opportunity to respond to the motion. As this Court has noted in an analogous 

context involving a defense motion to dismiss, “‘[u]ntil the other party has a 

reasonable opportunity to file a written response, there is no reasonable 

consideration by the court of the issues involved.’” State v. Corrao, 3d Dist. Union 

Nos. 14-15-14 – 14-15-18, 2015-Ohio-5052, ¶ 12, quoting State v. Diehl, 3d Dist. 

Union No. 14-89-30, 1991 WL 44166, *3 (Mar. 25, 1991).

{¶24} Second, the trial court erred in granting Evans’ motion without first 

holding a hearing on the issues raised by that motion. When taken as a whole, the 

legal authority relating to Crim.R. 32.1 motions outlined above rather clearly 

supports the proposition that a hearing must be held before a post-sentence motion 
Case No. 11-23-09

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to withdraw a guilty plea may be granted. In the absence of a hearing on a postsentence Crim.R. 32.1 motion before the same is granted, a trial court has no 

evidentiary foundation upon which to base a decision that a defendant established 

the requisite manifest injustice, the state has no opportunity to present any evidence 

to rebut the defendant’s claims, and a reviewing court has no record to consider in 

assessing any claim of error made on appeal with regard to the trial court’s decision.

{¶25} As this Court finds that the procedural claims raised by the state require 

reversal of the trial court’s judgment, we do not reach the issue of the substantive 

merit, or lack thereof, of Evan’s motion to withdraw his guilty plea. 

{¶26} The assignment of error is sustained.

Conclusion

{¶27} Having found error prejudicial to the appellant, State of Ohio, the 

judgment of the Paulding County Municipal Court is reversed and the case is 

remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

WILLAMOWSKI, P.J., and ZIMMERMAN, J., concur.