[Cite as Beavercreek v. Kelly, 2017-Ohio-8761.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
CITY OF BEAVERCREEK : : Plaintiff-Appellee : Appellate Case No. 2017-CA-33 : v. : Trial Court Case No. 93-CRB-01981 : IAIN M. KELLY : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 1st day of December, 2017.
BRITTANY A. DOGGETT, Atty. Reg. No. 0090704, Fairborn Municipal Court Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 865 South Dixie Drive, Vandalia, Ohio 45377 Attorney for Defendant-Appellant
............. -2-
FROELICH, J.
{¶ 1} Iain M. Kelly appeals from a judgment of the Fairborn Municipal Court, which
denied his motion to withdraw his 1993 no contest plea to attempted domestic violence.
For the following reasons, the trial court’s judgment will be affirmed.
I. Background and Procedural History
{¶ 2} Kelly seeks to withdraw the plea that he entered in 1993. As an initial
matter, the original documents from the 1993 proceedings apparently no longer exist.
The record does not contain a plea hearing transcript, the final judgment entry of
conviction, or any other document from 1993. Rather, the record of the 1993
proceedings consists of a computerized summary of the case, which identifies the charge
and statutory section, the violation date, a summary of the docket (with three items), the
hearing date, the judge, and a summary of the disposition. The only additional evidence
before us related to the 1993 proceedings are Kelly’s affidavit, which is attached to his
motion to withdraw his plea, and his testimony at the hearing on his motion.
{¶ 3} According to the record before us, on November 1, 1993, Kelly pled no
contest to attempted domestic violence, in violation of R.C. 2919.25. Kelly was
sentenced to ten days in jail, nine of which were suspended, and he was ordered to
complete an anger management class and to pay a $100 fine and $50 in court costs.
The trial court received a certificate of completion of an anger management class in
February 1994.
{¶ 4} In September 1996, as part of the Omnibus Consolidated Appropriations Act
of 1997, Congress passed the Lautenberg Amendment to the 1968 Gun Control Act, 18
U.S.C. 922(g)(9). The Amendment makes it unlawful for any person “who has been -3-
convicted in any court of a misdemeanor crime of domestic violence” to ship, transport,
possess, or receive any firearm or ammunition in or affecting commerce. Id.
{¶ 5} The term “misdemeanor crime of domestic violence” is defined as a
misdemeanor under federal, state, or tribal law that “has, as an element, the use or
attempted use of physical force, or the threatened use of a deadly weapon, committed
by a current or former spouse, parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or by a person similarly
situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. 921(a)(33)(A).
Kelly apparently concedes that the Lautenberg Amendment’s prohibition applies to his
conviction for “attempted domestic violence,” in violation of R.C. 2919.25.
{¶ 6} On March 9, 2017, Kelly filed a motion to withdraw his plea, pursuant to
Crim.R. 32.1, claiming that his plea was not made knowingly, intelligently, and voluntarily.
He asserted that he did not know, and could not have known, that his 1993 plea would
result in a federal prohibition against his possession and ownership of firearms. He
argued that the loss of his right to possess firearms constituted a manifest injustice.
Citing 18 U.S.C. 921(a)(33)(B)(ii), which generally provides that a person is not
considered to have been convicted of an offense if the conviction has been expunged or
set aside, Kelly requested an opportunity to withdraw his plea and enter a new plea to a
different offense “that does not change the judgment, sentence, or offense level.” Kelly
supported his motion with an affidavit, documentation regarding his licensure in
optometry, his resume, and other evidence reflecting his good character and contributions
to the community. -4-
{¶ 7} The trial court conducted a hearing on Kelly’s motion, during which Kelly
testified. According to his testimony, Kelly is self-employed as an optometrist, and he
attested to the accuracy of the attachments to his motion. He entered a plea in 1993,
with the advice of counsel, but there was no discussion of his right to possess firearms.
He testified that he would not have entered his plea had he known that it would result in
the relinquishment of his firearm rights. Kelly indicated that he became aware of the
Lautenberg Amendment in 2016.
{¶ 8} At the conclusion of the hearing, the trial court orally overruled Kelly’s motion.
The court noted that, as an optometrist, Kelly’s livelihood was not affected by the
Lautenberg Amendment, and it found that Kelly’s 23-year delay in knowing that his rights
were affected made his argument “a little bit disingenuous.” The court found that the
impact to Kelly did “not rise to the level of manifest injustice.”
{¶ 9} On May 17, 2017, the trial court filed a written entry overruling the motion to
withdraw his plea, consistent with its oral pronouncement.
{¶ 10} Kelly appeals from the trial court’s judgment. His sole assignment of error
states that “the lower court erred by denying Dr. Kelly’s motion to vacate his plea when
he had no way of knowing that his plea to a misdemeanor offense would lead to the
permanent revocation of his Second Amendment right to bear arms.”
II. Motion to Withdraw Plea
{¶ 11} Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice. Crim.R. 32.1; State v.
Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16. “A ‘manifest injustice’
comprehends a fundamental flaw in the path of justice so extraordinary that the defendant -5-
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, citing State v. Hartzell, 2d Dist. Montgomery No. 17499,
1999 WL 957746 (Aug. 20, 1999).
{¶ 12} Withdrawal of a plea after sentencing is permitted only in the most
extraordinary cases. State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-
2555, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The
defendant bears the burden of establishing the existence of a manifest injustice, and
whether that burden has been met is an issue within the sound discretion of the trial court.”
Wilson at ¶ 18.
{¶ 13} At the outset, Kelly has not established that his 1993 plea was not made
knowingly, intelligently, and voluntarily. The record does not include a transcript of the
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[Cite as Beavercreek v. Kelly, 2017-Ohio-8761.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
CITY OF BEAVERCREEK : : Plaintiff-Appellee : Appellate Case No. 2017-CA-33 : v. : Trial Court Case No. 93-CRB-01981 : IAIN M. KELLY : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 1st day of December, 2017.
BRITTANY A. DOGGETT, Atty. Reg. No. 0090704, Fairborn Municipal Court Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 865 South Dixie Drive, Vandalia, Ohio 45377 Attorney for Defendant-Appellant
............. -2-
FROELICH, J.
{¶ 1} Iain M. Kelly appeals from a judgment of the Fairborn Municipal Court, which
denied his motion to withdraw his 1993 no contest plea to attempted domestic violence.
For the following reasons, the trial court’s judgment will be affirmed.
I. Background and Procedural History
{¶ 2} Kelly seeks to withdraw the plea that he entered in 1993. As an initial
matter, the original documents from the 1993 proceedings apparently no longer exist.
The record does not contain a plea hearing transcript, the final judgment entry of
conviction, or any other document from 1993. Rather, the record of the 1993
proceedings consists of a computerized summary of the case, which identifies the charge
and statutory section, the violation date, a summary of the docket (with three items), the
hearing date, the judge, and a summary of the disposition. The only additional evidence
before us related to the 1993 proceedings are Kelly’s affidavit, which is attached to his
motion to withdraw his plea, and his testimony at the hearing on his motion.
{¶ 3} According to the record before us, on November 1, 1993, Kelly pled no
contest to attempted domestic violence, in violation of R.C. 2919.25. Kelly was
sentenced to ten days in jail, nine of which were suspended, and he was ordered to
complete an anger management class and to pay a $100 fine and $50 in court costs.
The trial court received a certificate of completion of an anger management class in
February 1994.
{¶ 4} In September 1996, as part of the Omnibus Consolidated Appropriations Act
of 1997, Congress passed the Lautenberg Amendment to the 1968 Gun Control Act, 18
U.S.C. 922(g)(9). The Amendment makes it unlawful for any person “who has been -3-
convicted in any court of a misdemeanor crime of domestic violence” to ship, transport,
possess, or receive any firearm or ammunition in or affecting commerce. Id.
{¶ 5} The term “misdemeanor crime of domestic violence” is defined as a
misdemeanor under federal, state, or tribal law that “has, as an element, the use or
attempted use of physical force, or the threatened use of a deadly weapon, committed
by a current or former spouse, parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or by a person similarly
situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. 921(a)(33)(A).
Kelly apparently concedes that the Lautenberg Amendment’s prohibition applies to his
conviction for “attempted domestic violence,” in violation of R.C. 2919.25.
{¶ 6} On March 9, 2017, Kelly filed a motion to withdraw his plea, pursuant to
Crim.R. 32.1, claiming that his plea was not made knowingly, intelligently, and voluntarily.
He asserted that he did not know, and could not have known, that his 1993 plea would
result in a federal prohibition against his possession and ownership of firearms. He
argued that the loss of his right to possess firearms constituted a manifest injustice.
Citing 18 U.S.C. 921(a)(33)(B)(ii), which generally provides that a person is not
considered to have been convicted of an offense if the conviction has been expunged or
set aside, Kelly requested an opportunity to withdraw his plea and enter a new plea to a
different offense “that does not change the judgment, sentence, or offense level.” Kelly
supported his motion with an affidavit, documentation regarding his licensure in
optometry, his resume, and other evidence reflecting his good character and contributions
to the community. -4-
{¶ 7} The trial court conducted a hearing on Kelly’s motion, during which Kelly
testified. According to his testimony, Kelly is self-employed as an optometrist, and he
attested to the accuracy of the attachments to his motion. He entered a plea in 1993,
with the advice of counsel, but there was no discussion of his right to possess firearms.
He testified that he would not have entered his plea had he known that it would result in
the relinquishment of his firearm rights. Kelly indicated that he became aware of the
Lautenberg Amendment in 2016.
{¶ 8} At the conclusion of the hearing, the trial court orally overruled Kelly’s motion.
The court noted that, as an optometrist, Kelly’s livelihood was not affected by the
Lautenberg Amendment, and it found that Kelly’s 23-year delay in knowing that his rights
were affected made his argument “a little bit disingenuous.” The court found that the
impact to Kelly did “not rise to the level of manifest injustice.”
{¶ 9} On May 17, 2017, the trial court filed a written entry overruling the motion to
withdraw his plea, consistent with its oral pronouncement.
{¶ 10} Kelly appeals from the trial court’s judgment. His sole assignment of error
states that “the lower court erred by denying Dr. Kelly’s motion to vacate his plea when
he had no way of knowing that his plea to a misdemeanor offense would lead to the
permanent revocation of his Second Amendment right to bear arms.”
II. Motion to Withdraw Plea
{¶ 11} Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice. Crim.R. 32.1; State v.
Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16. “A ‘manifest injustice’
comprehends a fundamental flaw in the path of justice so extraordinary that the defendant -5-
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, citing State v. Hartzell, 2d Dist. Montgomery No. 17499,
1999 WL 957746 (Aug. 20, 1999).
{¶ 12} Withdrawal of a plea after sentencing is permitted only in the most
extraordinary cases. State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-
2555, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The
defendant bears the burden of establishing the existence of a manifest injustice, and
whether that burden has been met is an issue within the sound discretion of the trial court.”
Wilson at ¶ 18.
{¶ 13} At the outset, Kelly has not established that his 1993 plea was not made
knowingly, intelligently, and voluntarily. The record does not include a transcript of the
plea hearing, and we therefore presume the regularity of those court proceedings. E.g.,
State v. Rice, 2d Dist. Montgomery No. 27045, 2017-Ohio-122, ¶ 16. Nothing in the
record indicates that Kelly’s counsel rendered ineffective assistance related to the plea.
And, Kelly presented no evidence at the hearing on his motion to withdraw his plea that,
at the time of the plea, his plea was not knowing, intelligent, and voluntary. Rather, he
testified that, knowing what he knows now about the Lautenberg Amendment, which was
enacted after his plea, he would not today make the same plea that he did in 1993.
{¶ 14} The trial court did not abuse its discretion in determining that Kelly did not
establish that, as a result of the Lautenberg Amendment, his 1993 conviction constituted
a manifest injustice that warranted the withdrawal of his plea. Undue delay in filing a
Crim.R. 32.1 motion “is a factor adversely affecting the credibility of the movant and -6-
militating against the granting of the motion.” State v. Smith, 49 Ohio St.2d 261, 264,
361 N.E.2d 1324 (1977); State v. Harden, 2d Dist. Montgomery No. 23742, 2010-Ohio-
5282, ¶ 18. Here, approximately 23 years passed between Kelly’s conviction and his
motion to withdraw his plea, and approximately 20 years had passed between the
enactment of the Lautenberg Amendment and Kelly’s motion. This length of time
militates against a finding that Kelly has suffered a manifest injustice due to the statutory
restriction of his firearm rights.
{¶ 15} Further, we have held that a defendant’s lack of notice about the Lautenberg
Amendment at the time of his or her plea does not justify vacation of a plea. In State v.
Taylor, 2d Dist. Greene No. 2010-CA-46, 2012-Ohio-963, the defendant pled no contest
to domestic violence in 2010 (14 years after the enactment of the Lautenberg
Amendment), and the trial court sentenced him to 180 days in jail. During the hearing,
the trial court failed to inform Taylor, as required by R.C. 2943.033(C), that 18 U.S.C.
922(g)(9) (the Lautenberg Amendment) would impose firearm restrictions on him as a
result of the conviction. The next day, the trial court brought Taylor back to court to
inform him that it had failed to provide the required notice, and it gave Taylor the option
to withdraw his plea. Although Taylor accepted that offer, the trial court did not file an
entry vacating the plea, and the court later informed Taylor that R.C. 2943.033(C)
prohibits a plea from being vacated for failure to give the required notice. Taylor
appealed from his conviction.
{¶ 16} In affirming the trial court’s judgment, we relied upon R.C. 2943.033(C),
effective June 24, 2008, which states:
Prior to accepting a guilty plea or plea of no contest to an indictment, -7-
information, or complaint that charges a person with a misdemeanor offense
of violence, the court shall inform the defendant either personally or in
writing that under 18 U.S.C. 922(g)(9) it may be unlawful for the person to
ship, transport, purchase, or possess a firearm or ammunition as a result of
any conviction for a misdemeanor offense of violence. The plea may not
be vacated based on a failure to inform the person so charged regarding
the restrictions under 18 U.S.C. 922(g)(9).
(Emphasis added.)
{¶ 17} We commented in Taylor that, while the Ohio legislature has decided to
require trial courts to advise defendants of the restrictions imposed by 18 U.S.C.
922(g)(9), “the legislature has chosen not to allow a defendant who is not advised of the
restriction to withdraw his plea due to the lack of notice. In other words, the General
Assembly has prescribed that trial courts should advise defendants of the federal firearm
restriction, but it has deliberately chosen to prescribe no consequence resulting from a
trial court’s failure to do so.” Taylor at ¶ 34. We further commented that “a trial court is
not required to determine, and advise a defendant of, every collateral consequence that
may result from a plea to a misdemeanor in order to render that plea knowing and
voluntary.” Id. at ¶ 35.
{¶ 18} Kelly’s plea was entered before the enactment of 18 U.S.C. 922(g)(9),
whereas Taylor’s plea was entered after its enactment, but we find this distinction to be
of little significance here. Even when the trial court is required to notify a defendant about
the effects of the Lautenberg Amendment, the Ohio legislature has deemed that the lack
of the required notice, alone, does not constitute grounds to withdraw a plea. To allow -8-
Kelly to withdraw his plea based on his recently-acquired knowledge of the restrictions
imposed by 18 U.S.C. 922(g)(9) would be inconsistent with R.C. 2943.033(C).
{¶ 19} Finally, the trial court reasonably concluded that nothing in Kelly’s personal
circumstances indicated that his conviction resulted in a manifest injustice due to the
Lautenberg Amendment. As stated by the trial court, the right to possess a firearm is not
imperative to Kelly’s livelihood, as he is an optometrist. Kelly has not articulated any
specific circumstances that would cause the Lautenberg Amendment’s restrictions to
pose a manifest injustice to him, as opposed to all misdemeanor offenders to whom the
restrictions apply.
{¶ 20} Kelly’s assignment of error is overruled.
III. Conclusion
{¶ 21} The trial court’s judgment will be affirmed.
.............
HALL, P. J. and DONOVAN, J., concur.
Copies mailed to:
Brittany A. Doggett Stephen D. Behnke Hon. Beth W. Cappelli