State v. Dunlap

2020 Ohio 4375

• Court: Ohio Court of Appeals
• Decided: September 9, 2020
• Docket: 2020 CA 00029
• Status: Published

Opinion

[Cite as State v. Dunlap, 2020-Ohio-4375.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 00029 KYLE J. DUNLAP

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2018 CR 00710

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 9, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES SAMUEL H. SHAMANSKY PROSECUTING ATTORNEY DONALD L. REGENSBURGER PAULA M. SAWYERS COLIN E. PETERS ASSISTANT PROSECUTOR ASHTON C. GAITANOS 20 South Second Street, Fourth Floor 523 South Third Street Newark, Ohio 43055 Columbus, Ohio 43215 Licking County, Case No. 2020 CA 00029 2

Wise, John, J.

{¶1} Appellant, Kyle J. Dunlap, appeals his conviction and sentence after a

negotiated guilty plea in the Licking County Court of Common Pleas. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 4, 2018, Appellant was indicted with one count of Illegal

Assembly or Possession of Chemicals for the Manufacture of Drugs, in violation of R.C.

2925.041, a felony in the second degree, and two counts of Illegal Manufacture of

Drugs; Illegal Cultivation of Marihuana, in violation of R.C. 2925.04, both felonies of the

second degree.

{¶3} On April 18, 2019, the State of Ohio and the Appellant reached a

negotiated plea agreement. In exchange for the Appellant pleading guilty to all three

charges of the indictment, the State would defer at sentencing and not argue that the

applicable presumption in favor of a prison term should apply.

{¶4} On August 13, 2019, Appellant entered a plea of guilty to Counts One,

Two, and Three to the indictment. After accepting Appellant’s guilty plea, the trial court

proceeded to sentencing. Trial counsel for Appellant referenced Appellant’s efforts to

assist investigators by proffering information to the Central Ohio Drug Enforcement

Task Force (“CODE”) in hopes to mitigate the sentence.

{¶5} When asked for a recommendation, the prosecuting attorney stated he

didn’t “believe that there was any cooperation with the Central Ohio Drug Enforcement

Task Force. I don’t believe that the individual that he mentions being in the county jail

had anything to do with anything that was provided by this Defendant.” Licking County, Case No. 2020 CA 00029 3

{¶6} The trial court then sentenced Appellant to an eight-year mandatory prison

term.

{¶7} Thereafter, Appellant filed Appellant’s Motion to Withdraw Plea. In an

Affidavit to support the motion, Appellant asserts that his trial counsel assured him it

was overwhelmingly likely that he would be placed on probation if he entered a plea of

guilty to the original indictment. Counsel predicted there was a 99% likelihood that

Appellant would be placed on probation and that any period of incarceration would not

exceed sixty days of local jail time. Affidavit further asserts trial counsel told Appellant

he had spoken to the judge the previous day, who had remarked that trial counsel must

have been pleased that the case was resolving in the manner he hoped it would.

{¶8} The trial court denied Appellant’s Motion to Withdraw Plea, finding that the

Appellee’s statements at sentencing were made to correct the record, and there was no

breach of the parties’ plea agreement. The court also noted that the comments did not

affect the sentence imposed. The trial court found the Appellant failed to demonstrate

that a plea withdrawal was necessary to prevent manifest injustice, and that Appellant

failed to provide sufficient evidentiary support to justify conducting an evidentiary

hearing.

ASSIGNMENT OF ERROR

{¶9} On March 19, 2020, Appellant filed a notice of appeal. He herein raises

the following three Assignments of Error:

{¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO

BREACH OF THE PLEA AGREEMENT BETWEEN THE PARTIES AND THAT

APPELLANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OF THE Licking County, Case No. 2020 CA 00029 4

PARTIES’ AGREEMENT OR WITHDRAWAL OF HIS GUILTY PLEA, IN VIOLATION

OF HIS RIGHTS GUARANTEED BY THE OHIO AND UNITED STATES

CONSTITUTIONS.

{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN

DENYING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE SAID

PLEA WAS ENTERED INVOLUNTARILY AND IN REASONABLE RELIANCE ON HIS

FORMER ATTORNEY’S ASSURANCES THAT A GUILTY PLEA WOULD RESULT IN

A SENTENCE MORE LENIENT THAT THE SENTENCE IMPOSED.

{¶12} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST

FOR AN EVIDENTIARY HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY

PLEA, IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE OHIO AND

UNITED STATES CONSTITUTIONS.”

I.

{¶13} In Appellant’s First Assignment of Error, Appellant argues that Appellee’s

comments during sentencing breached his plea agreement with the State, and the trial

court must either grant the withdrawal of the plea or require specific performance of the

agreement and be resentenced by a different judge. We disagree.

{¶14} Plea agreements are subject to contract-law principles. State v. Felder, 5th

Dist. Muskingum No. CT2017-0037, 2018-Ohio-826, ¶16. They should be construed

strictly against the government. State v. Walsh, 5th Dist. Licking No. 14-CA-110, 2015-

Ohio-4135, ¶17. The prosecutor must fulfill any promise made in a plea agreement

which induced the defendant to plea. Id. To show the plea agreement was broken, the

defendant must show the prosecutor did not fulfill the promise. Id. A prosecutor’s failure Licking County, Case No. 2020 CA 00029 5

to fulfill the terms of the plea agreement may “render a defendant’s plea involuntary and

undermine the constitutionality of a conviction based upon that plea.” Id.

{¶15} An agreement for the prosecution to defer on sentencing does not

preclude the government’s participation at the sentencing hearing. State v. Shrider, 5th

Dist. Muskingum No. CT2017-0089, 2018-Ohio-3539, ¶21. Such agreement only

restricts the government’s attempts to influence the sentence by presenting the court

with conjecture, opinion, or disparaging information already in the court’s possession.

Id. The government’s disclosure of relevant factual information or efforts to correct

misstatements do not rise to the level of taking a position on the sentence and does not

violate the plea agreement. Id.

{¶16} In State v. Shrider, the State agreed to make no recommendation as to

sentencing. Id. at ¶22. At the sentencing hearing, the State disclosed to the court that

the defendant failed a drug screen while on bond. Id. The State also referred the letters

from the victim’s family to the trial court. Id. The trial court in Shrider held this level of

participation by the government in the sentencing hearing is not tantamount to taking a

position at sentencing. Id. at ¶24.

{¶17} In this case, the State agreed to defer at sentencing and refrain from

arguing that the presumption in favor of a prison term should apply. At the sentencing

hearing, the trial court asked if the prosecution wished to make a sentencing

recommendation. Appellee stated he had “one correction of record.” T. 26. Appellee

continued stating, “I don’t believe that there was any cooperation with the Central Ohio

Drug Enforcement Task Force. I don’t believe that the individual that he mentions being

in the county jail had anything to do with anything that was provided by the Defendant.” Licking County, Case No. 2020 CA 00029 6

T. 26-27. We find Appellee was correcting the record regarding the State’s

understanding of the level of cooperation Appellant provided to CODE as is permissible

under Shrider.

{¶18} Appellant’s First Assignment of Error is overruled.

II.

{¶19} In Appellant’s Second Assignment of Error, Appellant argues the trial court

abused its discretion in denying Appellant’s motion to withdraw his guilty plea. Appellant

contends the plea was entered involuntarily as Appellant reasonably relied on his former

attorney’s assurances that a guilty plea would result in a sentence more lenient than the

sentence imposed. We disagree.

{¶20} Crim.R. 32.1 states:

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.

{¶21} This Court’s review of the trial court’s ruling on a post-sentence motion to

withdraw plea is “limited to a determination of whether the trial court abused its

discretion. State v. Wallace, 5th Dist. Perry No.18-CA00015, 2020-Ohio-565, ¶20. As an

appellate court may not substitute its judgment for that of the trial court, a post-sentence

withdrawal motion should only be granted in extraordinary cases. Id. Appellant has the

burden of establishing a manifest injustice warranting the withdrawal of a guilty plea. Id.

{¶22} A manifest injustice may occur if counsel provides erroneous advice of

counsel regarding the sentence to be imposed. State v. Radel, 5th Dist. Stark No. 2009- Licking County, Case No. 2020 CA 00029 7

CA-00021, 2009-Ohio-3543, ¶13. Manifest injustice under Crim.R. 32.1 does not

automatically result from trial counsel’s erroneous advice or incorrect speculation

regarding the sentence to be imposed. Id. “[A] defendant’s mistaken belief or impression

regarding the consequences of his plea is not sufficient to establish that such plea was

not knowingly and voluntarily made.” Id. However, a guilty plea entered into because of

a “counsel’s representation, as opposed to counsel’s likely prediction, that such a plea

would result in a lesser sentence than the sentence actually received” the trial court

must permit post-sentence withdrawal of a guilty plea to prevent manifest injustice.

State v. Blatnik, 17 Ohio App.3d 201, 203, 478 N.E.2d 1016, 1020 (6th Dist. 1984).

{¶23} In Blatnik, the record indicated the defendant pled guilty and was then

sentenced. Id. at 204. The defendant does not assert any plea arrangement had been

made concerning the length of his sentence. Id. The defendant also does not assert his

counsel represented to him a sentence the state had promised. Id. The defendant only

asserts counsel speculated, incorrectly, on the length of the sentence. Id. The Sixth

District Court of Appeals found “[a]ccording to the overwhelming weight of authority, this

bare assertion does not, in and of itself, constitute manifest injustice.” Id.

{¶24} In this case, Appellant asserts trial counsel predicted a 99% likelihood he

would be placed on probation and that any period of incarceration would not exceed

sixty days of jail time. Appellant contends these assurances by trial counsel led

Appellant to believe an arrangement had been made with respect to his sentence.

However, nothing in the record shows that trial counsel told Appellant an agreement

regarding sentencing had been reached, nor did trial counsel say with a certainty that a Licking County, Case No. 2020 CA 00029 8

specific sentence would occur. Trial counsel merely predicted, albeit inaccurately, what

he thought the sentence might be.

{¶25} Appellant also asserts his trial counsel informed him the day before

sentencing he conversed with the sentencing judge who commented about counsel

being pleased that the case was concluding in the manner that he hoped it would.

However, no representation from the trial counsel to Appellant that an agreement to the

length of sentencing had been made, only inaccurate speculation by the trial counsel

that due to the trial court’s comments the sentencing would be more lenient than that

imposed.

{¶26} Therefore, according to the overwhelming weight of authority, the bare

assertion of the attorney’s prediction of the sentence does not, in and of itself, constitute

manifest injustice.

{¶27} Appellant’s Second Assignment of Error is overruled.

III.

{¶28} In the Appellant’s Third Assignment of Error, Appellant argues the trial

court erred in denying Appellant’s request for an evidentiary hearing on his motion to

withdraw his guilty plea. We disagree.

{¶29} As noted above, Crim.R. 32.1 states:

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. Licking County, Case No. 2020 CA 00029 9

{¶30} Though Crim.R. 32.1 does not expressly require an evidentiary hearing, a

hearing is only required if the facts alleged in the motion are accepted as true by the

trial court, and those facts would require that the plea be withdrawn. State v. Smith, 1st

Dist. Hamilton No. C-180081, 2019-Ohio-3642, ¶34. The decision to hold a hearing is

discretionary and may be reversed only if the court abused its discretion. Id. In Smith,

the defendant, as well as his attorney, submitted affidavits demonstrating that, because

of defendant’s counsel’s drug addiction, he was incapable of functioning as counsel

under the Sixth Amendment. Id. at ¶42.

{¶31} The defendant must support the allegations made in their motion to

withdraw a guilty plea with affidavits and/or the record. State v. Hutchinson, 5th Dist. No.

16-CA-108, 2018-Ohio-200, 104 N.E.3d 91, ¶43. The defendant is “not entitled to a

hearing where he or she failed to provide evidentiary-quality materials raising sufficient

operative facts which would entitle the defendant to the requested relief.” Id. The

defendant must present evidence which meets a minimum level of cogency to support

his or her motion. Id.

{¶32} In Hutchinson, on October 18, 2016, the defendant pleaded guilty to:

felonious assault of a police officer and the second accompanying firearm specification;

improper handling of a firearm in a motor vehicle; violation of a protection order; forgery;

and possession of criminal tools. Id. at ¶19. Appellant entered an Alford plea to Count II,

which was amended to attempted felonious assault and the accompanying firearm

specification. Id. Licking County, Case No. 2020 CA 00029 10

{¶33} Between October 31, 2016, and November 15, 2016, the defendant filed a

series of motions to withdraw his guilty plea, arguing he blacked out and had no

memory of telling his trial counsel he agreed to the plea agreement. Id. at ¶20-21.

{¶34} Appellee responded to these motion on November 3, 2016, and

November 17, 2016. Id. at ¶21-22.

{¶35} On November 29, 2016, the trial court entered a “Decision and Order

Denying Defendant’s Motions to Withdraw Guilty Pleas.” Id. at ¶24.

{¶36} This Court held a petitioner’s self-serving affidavit does not meet the

minimum level of cogency. Id. at ¶43. “[A] trial court may assess the credibility of a

movant’s assertions.” Id. at 44.

{¶37} In this case, Appellant submitted a self-serving affidavit, as well as a

recorded telephone conversation allegedly between Appellant’s trial counsel and “John,”

an acquaintance of the Appellant, with no accompanying authentication.

{¶38} Ohio Evid.R. 901 states:

(A) General Provision: The requirement of authentication as a

condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.

{¶39} The recording of the telephone conversation was not accompanied by any

authentication, making it inadmissible under Ohio Evid.R. 901 and not “evidentiary-

quality material.” As such, the only remaining affidavit is Appellant’s self-serving

affidavit, which does not meet the minimum level of cogency to support Appellant’s

claims of manifest injustice. Licking County, Case No. 2020 CA 00029 11

{¶40} Appellant’s Third Assignment of Error is overruled.

{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is hereby affirmed.

By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, J., concur.

JWW/b 0903