State v. Devore

2020 Ohio 4668

Opinion

[Cite as State v. Devore, 2020-Ohio-4668.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : Case Nos. 20CA21 : 20CA22 ADAM M. DEVORE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case Nos. 12CR563 and 12CR742

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 30, 2020

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP ADAM DEVORE, PRO SE RICHLAND CO. PROSECUTOR Inmate No. A704-923 JOSEPH C. SNYDER Richland Correctional Institution 38 South Park St. P.O. Box 8107 Mansfield, OH 44902 Mansfield, OH 44905 Richland County, Case Nos. 20CA21 and 20CA22 2

Delaney, J.

{¶1} This is a consolidated appeal from two judgment entries of the Richland

County Court of Common Pleas, both overruling appellant’s motion to withdraw his guilty

pleas: the Order on Pending Motions of January 27, 2020 [case number 12-CR-742] and

Order on Pending Motions of January 28, 2020 [case number 12-CR-563]. Appellee is

the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On August 13, 2012, appellant was charged by indictment with one count

of domestic violence pursuant to R.C. 2919.25(A), a felony of the fourth degree [Richland

County Court of Common Pleas case number 12-CR-0563].

{¶3} On October 11, 2012, appellant was charged by bill of information with one

count of intimidation pursuant to R.C. 2921.04(B), a felony of the third degree [Richland

County Court of Common Pleas case number 12-CR-0742].

{¶4} On or around October 15, 2012, appellant entered pleas of guilty in both

cases. We note that in the Admission of Guilt/Judgment Entry dated October 15, 2012,

in case number 12-CR-742, the entry notes “Dismiss: Obstructing Justice, Count II,

2921.32, F-5.”

{¶5} We further note that on October 15, 2012, the day he entered his guilty

pleas, appellant signed a Waiver of One-Day Service of the bill of information and a

Waiver of Indictment. The Summons upon the bill of information states “to be served in

court.” Richland County, Case Nos. 20CA21 and 20CA22 3

{¶6} On November 21, 2012, the trial court sentenced appellant to a term of

community control. The record indicates appellant’s period of community control was

successfully terminated on August 27, 2014.

{¶7} On December 12, 2019, appellant filed motions to consolidate both cases

and to withdraw his pleas of guilty. Appellant asserts he received ineffective assistance

of trial counsel during his guilty pleas because he was told his pleas of guilty were in

exchange for dismissal of “Obstructing Justice, Count II” when in fact there is no Count II

in the October 11, 2012 Bill of Information.

{¶8} Appellant further cites a police report dated October 9, 2012, describing

incidents of appellant allegedly harassing the victim in telephone calls from the Richland

County Jail. In pertinent part, the report states, “Per Prosecutor Pigg, Felony Warrants

for Intimidation and Obstructing Justice were completed and served upon [appellant], at

the incident location.”

{¶9} Appellee responded with a memorandum in opposition and appellant

replied. The trial court overruled appellant’s motion to withdraw his guilty pleas on

January 27, 2020.

{¶10} Appellant now appeals from the trial court’s Judgment Entry of January 27,

2020.

{¶11} Appellant raises one assignment of error: Richland County, Case Nos. 20CA21 and 20CA22 4

ASSIGNMENT OF ERROR

{¶12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEVORE BY

ABUSING ITS DISCRETION AND MAKING UNREASONABLE FACTUAL FINDINGS IN

OVERRULING DEVORE’S CRIM.R. 32.1 MOTION TO WITHDRAW GUILTY PLEAS

WITHOUT A HEARING.”

ANALYSIS

{¶13} In his sole assignment of error, appellant argues the trial court should have

permitted him to withdraw his pleas of guilty because he was not charged with obstructing

justice as referenced in the Admission of Guilt/Judgment Entry of October 15, 2012. We

disagree.

{¶14} Appellant did not appeal from his conviction and sentence; this appeal

arose from appellant’s post-sentence motion to withdraw his guilty pleas. A motion to

withdraw plea is governed by the standards set forth in Criminal Rule 32.1, which provides

that a trial court may grant a defendant's post-sentence motion to withdraw a guilty plea

only to correct a manifest injustice. Therefore, “[a] defendant who seeks to withdraw a

plea of guilty after the imposition of sentence has the burden of establishing the existence

of manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

Although no precise definition of “manifest injustice” exists, in general, “manifest injustice

relates to some fundamental flaw in the proceedings which result in a miscarriage of

justice or is inconsistent with the demands of due process.” State v. Walsh, 5th Dist.

Licking No. 14-CA-110, 2015-Ohio-4135, ¶ 16, citing State v. Wooden, 10th Dist. Franklin

No. 03AP–368, 2004–Ohio–588. Under this standard, a post-sentence withdrawal motion Richland County, Case Nos. 20CA21 and 20CA22 5

is allowable only in extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977).

{¶15} A defendant seeking to withdraw a post-sentence guilty plea bears the

burden of establishing manifest injustice based on specific facts contained in the record

or supplied through affidavits attached to the motion. Walsh, supra, 2015-Ohio-4135 at ¶

16, citing State v. Graham, 5th Dist. Delaware No. 12 CAA 11 0082, 2013–Ohio–600.

{¶16} In the instant case, appellant provided his own affidavit stating in pertinent

part that while he was incarcerated and awaiting trial on the domestic violence charge,

he was served with a “paper” by a Mansfield police officer describing a charge of

intimidation and a charge of obstruction of justice. Appellant states, “Said paper appeared

to be another indictment if recollection serves to be correct.” Affidavit ¶ 2. Appellant

acknowledges that he was arraigned and entered guilty pleas on October 12, 2012 to one

charge of domestic violence and one charge of intimidation. Appellant further asserts

that he changed his pleas to guilty in exchange for appellee dropping the nonexistent

count of obstruction. Affidavit ¶ 4.

{¶17} We have often observed a self-serving affidavit or statement is generally

insufficient to demonstrate manifest injustice. State v. Patterson, 5th Dist. Stark No.

2003CA00135, 2004-Ohio-1569, 2004 WL 615751, ¶ 20.

{¶18} Moreover, even assuming appellant’s factual assertions are correct, he has

failed to demonstrate manifest injustice. His argument overlooks the fact that he waived

indictment and one-day service, and was charged in the latter intimidation case via a bill

of information. As the trial court pointed out in the decision overruling the motion to

withdraw the guilty pleas, “[a] bill of information allows a defendant and the State to enter Richland County, Case Nos. 20CA21 and 20CA22 6

a plea bargain prior to charges actually being filed as a bill of information requires the

defendant to waive the right to be indicted by grand jury.” Jan. 28, 2020 Entry, 2.

Appellant claims he was tricked by his own counsel and the prosecutor into pleading guilty

to avoid a non-existent charge. The more likely explanation is that if appellant had not

agreed to plead to the bill of information, the bill would have been withdrawn and appellee

would have sought indictment upon one count of intimidation and one count of

obstruction.

{¶19} Further, we fail to see how these facts create a manifest injustice such that

a fundamental flaw occurred in the proceedings resulting in a miscarriage of justice, or is

inconsistent with the demands of due process. See, State v. Walsh, 5th Dist. Licking No.

14-CA-110, 2015-Ohio-4135, supra, at ¶ 16. Appellant entered pleas of guilty, and was

convicted, upon two counts instead of three. He avoided a fifth-degree felony count of

obstruction of justice. By appellant’s own admissions in the police report attached to his

motion, he could have been indicted upon separate counts for each phone call he made

to the victim threatening her or advising her not to testify.

{¶20} The lengthy delay in filing of appellant’s motion to withdraw guilty pleas is

also problematic. As noted supra, appellant successfully completed his term of

community control in 2014. Five years later, he filed the motion to withdraw his guilty

pleas. The length of passage of time between the entry of a plea and a defendant's filing

of a Crim. R. 32.1 motion is a valid factor in determining whether a “manifest injustice”

has occurred. State v. Lane, 5th Dist. Richland No. 03-CA-89, 2004-Ohio-2235, ¶19,

citing State v. Copeland-Jackson, Ashland App. No. 02COA018, 2003-Ohio-1043. Richland County, Case Nos. 20CA21 and 20CA22 7

{¶21} A reviewing court will not disturb a trial court's decision whether to grant a

motion to withdraw a plea absent an abuse of discretion. State v. Caraballo, 17 Ohio St.3d

66, 477 N.E.2d 627 (1985). In order to find an abuse of discretion, we must determine

that the trial court's decision was unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983). In the instant case, we find no abuse of discretion by the trial court.

{¶22} We find appellant's argument that his plea was in effect not voluntary

because it was induced by appellee’s decision to drop or not indict upon a count of

obstruction is insufficient to demonstrate manifest injustice. See Lane, supra, 5th Dist.

Richland No. 03-CA-89, 2004-Ohio-2235, at ¶ 19. As to appellant’s argument that the

trial court should have held a hearing on the motion, “[a] hearing on a post-sentence

Crim.R. 32.1 motion is not required if the facts alleged by the defendant and accepted as

true by the trial court would not require the court to permit a guilty plea to be withdrawn.”

Id. The trial court in the instant case therefore did not abuse its discretion in failing to hold

a hearing upon appellant’s motion.

{¶23} Finally, appellant’s allegations of ineffective assistance of counsel are not

appropriately raised in a motion to withdraw guilty pleas.

{¶24} Appellant negotiated a sentence of community control before entering the

guilty pleas. Counsel at all times represented appellant. Appellant was sentenced in

accordance with his agreement. Appellant has not explained why he waited over five

years after he entered his plea before filing his motion to withdraw the pleas. State v.

Lathan, 5th Dist. Guernsey No. 09-CA-42, 2010-Ohio-4540, ¶ 42, appeal not allowed, 127 Richland County, Case Nos. 20CA21 and 20CA22 8

Ohio St.3d 1534, 2011-Ohio-376, 940 N.E.2d 987. The trial court did not abuse its

discretion in overruling appellant’s motion to withdraw his pleas of guilty.

{¶25} Appellant’s sole assignment of error is therefore overruled and the judgment

of the Richland County Court of Common Pleas is affirmed.

CONCLUSION

{¶26} Appellant’s sole assignment of error is overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Gwin, J., concur.