Ohio Appellate Reports


STATE v. DZODZOMENYO, Unpublished Decision (1-5-2007)
2007-Ohio-22 STATE OF OHIO, Plaintiff-Appellee v. SAMUEL
DZODZOMENYO, Defendant-Appellant. No. 20128. Court of
Appeals of Ohio, Second District. Rendered on January 5,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] T.C. Case No. 99-TRC-3596, (Criminal Appeal
from Kettering Municipal Court).

JAMES F. LONG, Dayton, Atty. Attorneys for

DANIEL J. O’BRIEN, Dayton, Atty. Attorney for



{¶ 1} Defendant-Appellant, Samuel Dzodzomenyo,
appeals a judgment of the Kettering Municipal Court
overruling a motion to withdraw his plea of guilty to the
charge of DUI. Dzodzomenyo asserts that the trial court
improperly denied his motion to withdraw the plea because
of Dzodzomenyo’s inability to comprehend the English
language and because there is no record of the trial
court’s compliance with Crim. R. 11, which violate his due
process and equal protection rights under the Constitution.
Finding that the record does not support Dzodzomenyo’s
allegations, we affirm the trial court’s denial of the

{¶ 2} On March 12, 1999, Dzodzomenyo was arrested by
the Kettering Police Department and charged with Driving
Under the Influence of Alcohol and Resisting Arrest. On
September 20, 1999, after the trial court overruled a
motion to suppress, Dzodzomenyo, being represented by
retained counsel, entered a negotiated plea of guilty to the
DUI charge, and he was immediately sentenced.

{¶ 3} Thereafter, more than two years later, on
October 31, 2001, Dzodzomenyo filed a motion to withdraw
his plea. The basis for the motion was that he did not
understand, and was not advised by the Court, of the
ramifications of his plea, and that he has suffered serious
consequences at his work as a result of his conviction. At
the hearing on his motion, Dzodzomenyo testified that his
attorney never advised him that he had a right to proceed
to trial, and instead, coerced him into entering the
negotiated plea.

{¶ 4} The trial court overruled the motion to
withdraw the plea on August 22, 2003, and it is from that
judgment that the defendant now appeals, setting forth a
single assignment of error for our review.


{¶ 5} “The trial court committed prejudicial error
in not setting aside the defendant’s guilty plea where the
defendant’s knowledge and comprehension of the English
language its nuances (sic) is very limited, the defendant
being from Ghana, West Africa, and the defendant failing to
obtain his certification by the State of Ohio as a
psychologist because of his lack of fluency, comprehension
and understanding of the English language and there being
no rule 11 record to show the defendant’s understanding of
the proceeding, all in violation of defendant’s rights
under the due process clause and the equal protection
clause of the United States and Ohio Constitutions.”

{¶ 6} This Court reviews a motion to withdraw a
guilty plea under the abuse of discretion standard. State
v. Xie (1992), 62 Ohio St.3d 521, 526. An abuse of
discretion demonstrates “perversity of will, passion,
prejudice, partiality, or moral delinquency.” Pons v. Ohio
State Med. Bd., 66 Ohio St.3d

{¶ 7} 619, 621, 1993-Ohio-122. Unless it is
established that the trial court acted unjustly or
unfairly, an appellate court cannot find that an abuse of
discretion occurred. Xie, 62 Ohio St.3d at 526, quoting
Barker v. United States (C.A.10, 1978), 579 F.2d 1219, 1223.

{¶ 8} A motion to withdraw a guilty plea is governed
by Crim.R. 32.1, which provides:

{¶ 9} “A motion to withdraw a plea of guilty . . .
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} Since Dzodzomenyo filed the motion to
withdraw his guilty plea over two years after the
imposition of his sentence, the trial court could only
grant his motion to withdraw his plea if it found a
manifest injustice.

{¶ 11} The Supreme Court of Ohio has stated that the
requirement in Crim.R. 32.1 that there be a manifest
injustice before a court can allow a withdrawal of a guilty
plea limits the availability of withdrawals to
“extraordinary cases.” State v. Smith (1977), 49 Ohio St.2d
261. The burden of demonstrating a “manifest injustice”
rests with the defendant, and the decision whether to grant
a motion to withdraw a guilty plea rests within the sound
discretion of the trial court. Id. Accordingly, this court
will not reverse a trial court’s denial

{¶ 12} of a motion to withdraw a plea of guilty
absent an abuse of discretion on the part of the trial

{¶ 13} In the instant case, Dzodzomenyo argues that
the trial court erred in denying his motion to withdraw his
guilty plea because he has a limited understanding of the
English language, which caused him to not understand the

{¶ 14} However, because Dzodzomenyo testified at the
motion hearing, the trial court was in the best position to
determine whether he was sufficiently proficient in the
language to understand the proceedings. In fact, the court
stated in the hearing, upon overruling an objection by the

{¶ 15} “COURT: Court has certainly been listening to
the Defendant testify at this point and time (sic) the
Court’s also aware this is a medical doctor who has been in
this country since 1989, (sic) these proceedings that we’re
discussing at this point took place in 1999 approximately
ten (10) years after his arrival in the US. I’ll give the
appropriate amount of weight to that statement [that he had
language problems.] Continue.”

{¶ 16} Therefore, we find that the trial court
properly considered the evidence before it and that the
record fails to demonstrate that this was an extraordinary
case that results in a manifest injustice, nor that there
was any perversity of will, passion, prejudice, partiality,
or moral delinquency by the court in making the
determinations. Therefore, there has been no abuse of

{¶ 17} Dzodzomenyo also argues that the trial court
failed to comply with the requirements of Crim.R. 11 in the
plea stage of these proceedings. We find this argument not
well taken for two reasons.

{¶ 18} First, the trial court properly found that
Crim.R. 11 does not apply to traffic cases. See: State v.
Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419. The applicable
rule in this instance is Traf.R. 10(D), which provides that
the court “shall not accept such pleas without first
informing the defendant of the effect of the plea of guilty,
no contest, and not guilty.” The effects of these pleas are
outlined in Traf.R. 10(B). Since Dzodzomenyo’s entire
argument rests on the claim that he did not understand the
constitutional rights relating to the presumption of
innocence and reasonable doubt, and because these matters
are not within the mandatory notices required by Traf.R.
10(D), we find this proposition to be not well taken.

{¶ 19} Second, Dzodzomenyo has failed to provide
this court with a transcript of the change of plea
proceedings, and argues that because the trial court
destroyed the tape recording of these proceedings, as a
matter of course, prior to his motion to withdraw the plea,
that this court should presume a lack of regularity in the
proceedings. However, it is the obligation of the appellant
to portray errors occurring in the trial court. App.R.
9(B), 10(A). And, in the case of the unavailability of a
transcript, the appellant may file a statement of the
evidence in lieu thereof. App.R. 9(C),(D). When the record
fails to portray the errors assigned, we must presume the
regularity of the proceedings below, and we must,
therefore, reject this argument. State v. Bernhard, Greene
App. No. 2004-CA-66, 2005-Ohio-1052; State v. Jones,
Montgomery App. No. 20862, 2006-Ohio-2640.

{¶ 20} For the foregoing reasons, the judgment of
the Kettering Municipal Court is hereby affirmed.

WOLFF, J., and DONOVAN, J., concur.

(Hon. Sumner E. Walters, retired from the Third Appellate
District, sitting by assignment of the Chief Justice of the
Supreme Court of Ohio).