[Cite as State v. Ables, 2012-Ohio-3377.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 11CA22 : v. : : DECISION AND JEFFREY A. ABLES, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: July 24, 2012
APPEARANCES:
Jeffrey A. Ables, Petersburg, Virginia, pro se, Appellant.
Gary D. Kenworthy, Circleville City Law Director, and Jeffrey A. Catri, Circleville City Assistant Law Director, Circleville, Ohio, for Appellee.
Kline, J.:
{¶1} Jeffrey A. Ables (hereinafter “Ables”) appeals the judgment of the
Circleville Municipal Court. Ables contends that the trial court erred by not granting his
postsentence Crim.R. 32.1 motion, but we disagree for the following reasons. First, a
Crim.R. 32.1 motion is not the appropriate vehicle for Ables’s ineffective-assistance-of-
counsel claim. And second, the doctrine of res judicata bars Ables’s remaining Crim.R.
32.1 arguments. As a result, the trial court did not abuse its discretion by denying
Ables’s Crim.R. 32.1 motion, and we affirm the judgment of the trial court.
I. Pickaway App. No. 11CA22 2
{¶2} On October 6, 2009, Ables pled guilty to three counts of passing bad
checks, all first-degree misdemeanors. The trial court then sentenced Ables
accordingly.
{¶3} In May 2011, Ables requested copies of the bad checks from the Clerk of
Courts for Circleville Municipal Court. The clerk of courts responded that “[t]here are no
copies of any checks within [Ables’s] case file.”
{¶4} On October 17, 2011, Ables filed his Crim.R. 32.1 motion. Ables
essentially argued (1) that he was innocent of passing bad checks and (2) that he
received ineffective assistance of counsel. To demonstrate his innocence, Ables
produced the following exhibits: (1) a copy of the plea agreement, (2) articles of
organization for Ables’s business, (3) a copy of the police incident report, and (4) a
witness statement from the victim. And to demonstrate ineffective assistance of
counsel, Ables swore to an affidavit that outlines his trial counsel’s alleged misdeeds.
{¶5} On October 27, 2011, the trial court denied Ables’s Crim.R. 32.1 motion.
{¶6} Ables appeals the trial court’s decision, but he has not asserted any
assignments of error. Instead, Ables’s appellate brief contains the following
“STATEMENT OF ISSUES”: I. “The checks written to Lee Holt Enterprises Inc. were
drawn on a corporate account registered in the State of Ohio.” II. “Corporate veil was
never pierced by the prosecution.” III. “The alleged checks were never presented to the
corporation’s bank for consideration of cashing purposes.” IV. “The corporation’s
account possessed enough funds to cash the checks written to Lee Holt Enterprises
Inc.” V. “There was never any signing of the plea agreement.” VI. “This transaction
took place in Fairfield County, Ohio, not Pickaway County, Ohio, therefore venue would Pickaway App. No. 11CA22 3
be placed in Fairfield County.” VII. “Counsel Robert Fais was ineffective for not
challenging the above issues.” VIII. “Counsel Robert Fais would not recuse himself
after finding out that there would be a conflict of interest between him and the
defendant’s secretary.” IX. “The defendant’s plea and admission resulted from
confusion and lack of legal advice from his counsel Robert Fais.” X. “The defendant
inquired about the discovery and was told by the Clerk of Court’s [sic] in Pickaway
County that there is [sic] no checks in the file.” And XI. “The Affidavit of the defendant
shows that he was deliberately misled by counsel Robert Fais.”
{¶7} Based on Ables’s Statement of Issues, we will infer the following
assignment of error: “The trial court erred when it denied Ables’s postsentence Crim.R.
32.1 motion.”
II.
{¶8} In his sole assignment of error, Ables contends that the trial court erred
when it denied his motion to withdraw his guilty pleas.
{¶9} “[T]he decision whether to grant a Crim.R. 32.1 motion to withdraw a plea
lies in a trial court’s sound discretion and should not be reversed absent an abuse of
that discretion.” State v. Nickelson, 4th Dist. No. 10CA21, 2011-Ohio-1352, ¶ 7, citing
State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph two of the syllabus.
An abuse of discretion connotes more than a mere error of judgment; it implies that the
court’s attitude is arbitrary, unreasonable, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶10} Ables filed his Crim.R. 32.1 motion more than two years after he was
sentenced. And significantly, “Crim.R. 32.1 requires a defendant making a Pickaway App. No. 11CA22 4
postsentence motion to withdraw a plea to demonstrate manifest injustice because it is
designed ‘to discourage a defendant from pleading guilty to test the weight of potential
reprisal, and later withdraw the plea if the sentence was unexpectedly severe.’” State v.
Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 9, quoting State v.
Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). “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. Current, 2d Dist. No.
2010 CA 31, 2012-Ohio-1851, ¶ 7.
A.
{¶11} As an initial matter, we find that Crim.R. 32.1 is the improper vehicle for
Ables’s ineffective-assistance-of-counsel claim. This is so because Ables’s ineffective-
assistance-of-counsel claim relies upon matters outside the record.
Matters outside the record that allegedly corrupted the
defendant’s choice to enter a plea of guilty or no contest so
as to render the plea less than knowing and voluntary are
proper grounds for an R.C. 2953.21 petition for post-
conviction relief. In 1996, the General Assembly limited the
number of such petitions to but one, which must be filed
within 180 days after the time for appeal has expired, absent
certain narrow showings that R.C. 2953.23(A) requires.
Since then, grounds formerly presented in support of
petitions for post-conviction relief are now more frequently Pickaway App. No. 11CA22 5
employed to support Crim.R. 32.1 motions, which are not
subject to similar limitations. Nevertheless, the availability of
R.C. 2953.21 relief on those same grounds removes them
from the form of extraordinary circumstance demonstrating a
manifest injustice which is required for Crim.R. 32.1 relief.
State v. Moore, 2d Dist. C.A. No. 24378, 2011-Ohio-4546, ¶
14, quoting State v. Hartzell, 2d Dist. No. 17499, 1999 WL
957746, *2 (Aug. 20, 1999).
{¶12} Ables’s ineffective-assistance-of-counsel claim relies upon the matters
discussed in his affidavit. For example, Able says that his attorney (1) made various
misrepresentations and (2) had a conflict of interest. These matters, however, are not
in the record from the original proceeding. Therefore, Ables’s ineffective-assistance-of-
counsel claim relies upon evidence outside the record, and a petition for post-conviction
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[Cite as State v. Ables, 2012-Ohio-3377.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 11CA22 : v. : : DECISION AND JEFFREY A. ABLES, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: July 24, 2012
APPEARANCES:
Jeffrey A. Ables, Petersburg, Virginia, pro se, Appellant.
Gary D. Kenworthy, Circleville City Law Director, and Jeffrey A. Catri, Circleville City Assistant Law Director, Circleville, Ohio, for Appellee.
Kline, J.:
{¶1} Jeffrey A. Ables (hereinafter “Ables”) appeals the judgment of the
Circleville Municipal Court. Ables contends that the trial court erred by not granting his
postsentence Crim.R. 32.1 motion, but we disagree for the following reasons. First, a
Crim.R. 32.1 motion is not the appropriate vehicle for Ables’s ineffective-assistance-of-
counsel claim. And second, the doctrine of res judicata bars Ables’s remaining Crim.R.
32.1 arguments. As a result, the trial court did not abuse its discretion by denying
Ables’s Crim.R. 32.1 motion, and we affirm the judgment of the trial court.
I. Pickaway App. No. 11CA22 2
{¶2} On October 6, 2009, Ables pled guilty to three counts of passing bad
checks, all first-degree misdemeanors. The trial court then sentenced Ables
accordingly.
{¶3} In May 2011, Ables requested copies of the bad checks from the Clerk of
Courts for Circleville Municipal Court. The clerk of courts responded that “[t]here are no
copies of any checks within [Ables’s] case file.”
{¶4} On October 17, 2011, Ables filed his Crim.R. 32.1 motion. Ables
essentially argued (1) that he was innocent of passing bad checks and (2) that he
received ineffective assistance of counsel. To demonstrate his innocence, Ables
produced the following exhibits: (1) a copy of the plea agreement, (2) articles of
organization for Ables’s business, (3) a copy of the police incident report, and (4) a
witness statement from the victim. And to demonstrate ineffective assistance of
counsel, Ables swore to an affidavit that outlines his trial counsel’s alleged misdeeds.
{¶5} On October 27, 2011, the trial court denied Ables’s Crim.R. 32.1 motion.
{¶6} Ables appeals the trial court’s decision, but he has not asserted any
assignments of error. Instead, Ables’s appellate brief contains the following
“STATEMENT OF ISSUES”: I. “The checks written to Lee Holt Enterprises Inc. were
drawn on a corporate account registered in the State of Ohio.” II. “Corporate veil was
never pierced by the prosecution.” III. “The alleged checks were never presented to the
corporation’s bank for consideration of cashing purposes.” IV. “The corporation’s
account possessed enough funds to cash the checks written to Lee Holt Enterprises
Inc.” V. “There was never any signing of the plea agreement.” VI. “This transaction
took place in Fairfield County, Ohio, not Pickaway County, Ohio, therefore venue would Pickaway App. No. 11CA22 3
be placed in Fairfield County.” VII. “Counsel Robert Fais was ineffective for not
challenging the above issues.” VIII. “Counsel Robert Fais would not recuse himself
after finding out that there would be a conflict of interest between him and the
defendant’s secretary.” IX. “The defendant’s plea and admission resulted from
confusion and lack of legal advice from his counsel Robert Fais.” X. “The defendant
inquired about the discovery and was told by the Clerk of Court’s [sic] in Pickaway
County that there is [sic] no checks in the file.” And XI. “The Affidavit of the defendant
shows that he was deliberately misled by counsel Robert Fais.”
{¶7} Based on Ables’s Statement of Issues, we will infer the following
assignment of error: “The trial court erred when it denied Ables’s postsentence Crim.R.
32.1 motion.”
II.
{¶8} In his sole assignment of error, Ables contends that the trial court erred
when it denied his motion to withdraw his guilty pleas.
{¶9} “[T]he decision whether to grant a Crim.R. 32.1 motion to withdraw a plea
lies in a trial court’s sound discretion and should not be reversed absent an abuse of
that discretion.” State v. Nickelson, 4th Dist. No. 10CA21, 2011-Ohio-1352, ¶ 7, citing
State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph two of the syllabus.
An abuse of discretion connotes more than a mere error of judgment; it implies that the
court’s attitude is arbitrary, unreasonable, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶10} Ables filed his Crim.R. 32.1 motion more than two years after he was
sentenced. And significantly, “Crim.R. 32.1 requires a defendant making a Pickaway App. No. 11CA22 4
postsentence motion to withdraw a plea to demonstrate manifest injustice because it is
designed ‘to discourage a defendant from pleading guilty to test the weight of potential
reprisal, and later withdraw the plea if the sentence was unexpectedly severe.’” State v.
Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 9, quoting State v.
Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). “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. Current, 2d Dist. No.
2010 CA 31, 2012-Ohio-1851, ¶ 7.
A.
{¶11} As an initial matter, we find that Crim.R. 32.1 is the improper vehicle for
Ables’s ineffective-assistance-of-counsel claim. This is so because Ables’s ineffective-
assistance-of-counsel claim relies upon matters outside the record.
Matters outside the record that allegedly corrupted the
defendant’s choice to enter a plea of guilty or no contest so
as to render the plea less than knowing and voluntary are
proper grounds for an R.C. 2953.21 petition for post-
conviction relief. In 1996, the General Assembly limited the
number of such petitions to but one, which must be filed
within 180 days after the time for appeal has expired, absent
certain narrow showings that R.C. 2953.23(A) requires.
Since then, grounds formerly presented in support of
petitions for post-conviction relief are now more frequently Pickaway App. No. 11CA22 5
employed to support Crim.R. 32.1 motions, which are not
subject to similar limitations. Nevertheless, the availability of
R.C. 2953.21 relief on those same grounds removes them
from the form of extraordinary circumstance demonstrating a
manifest injustice which is required for Crim.R. 32.1 relief.
State v. Moore, 2d Dist. C.A. No. 24378, 2011-Ohio-4546, ¶
14, quoting State v. Hartzell, 2d Dist. No. 17499, 1999 WL
957746, *2 (Aug. 20, 1999).
{¶12} Ables’s ineffective-assistance-of-counsel claim relies upon the matters
discussed in his affidavit. For example, Able says that his attorney (1) made various
misrepresentations and (2) had a conflict of interest. These matters, however, are not
in the record from the original proceeding. Therefore, Ables’s ineffective-assistance-of-
counsel claim relies upon evidence outside the record, and a petition for post-conviction
relief would have been the proper vehicle for Ables to raise this argument. See State v.
Whitaker, 4th Dist. No. 10CA3349, 2011-Ohio-6923, ¶ 11.
{¶13} Accordingly, to the extent that Ables claims ineffective assistance of
counsel, a Crim.R. 32.1 motion is not the proper vehicle for relief.
B.
{¶14} Next, we find that res judicata bars Ables’s remaining Crim.R. 32.1
arguments. “[T]he doctrine of res judicata bars a defendant from raising any issue in a
post-sentence Crim.R. 32.1 motion to withdraw guilty plea that could have been raised,
but was not, on direct appeal.” State v. LaPlante, 4th Dist. No. 11CA3215, 2011-Ohio-
6675, ¶ 8. Here, Ables essentially claims that “new evidence” demonstrates his Pickaway App. No. 11CA22 6
innocence. But all of this supposedly new evidence was available to Ables in October
2009. As a result, Ables could have made all of his Crim.R. 32.1 arguments on direct
appeal. (Ables complains that, in May 2011, the Clerk of Courts did not produce the
relevant bad checks. But this fact does not affect our res-judicata analysis. There is no
evidence that the checks were unavailable to Ables during the original proceedings, and
he could have made any check-related arguments on direct appeal.)
C.
{¶15} In conclusion, we find the following: (1) Crim.R. 32.1 relief is not the
appropriate vehicle for Ables’s ineffective-assistance-of-counsel claim, and (2) the
doctrine of res judicata bars Ables’s remaining Crim.R. 32.1 arguments. Accordingly,
the trial court did not abuse its discretion, and we affirm the trial court’s judgment.
JUDGMENT AFFIRMED. Pickaway App. No. 11CA22 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Circleville Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.