State v. Nelson

2023 Ohio 2125

Opinion

[Cite as State v. Nelson, 2023-Ohio-2125.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Andrew J. King, J. -vs- : : Case No. 22CA00034 : ZACHARIE NELSON : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 20CR0622

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 26, 2023

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JENNY WELLS BRIAN A. SMITH LICKING CO. PROSECUTOR 123 South Miller Rd., Suite 250 ROBERT ABDALLA Fairlawn, OH 44333 20 S. Second St. Newark, OH 43055 Licking County, Case No. 22CA00034 2

Delaney, J.

{¶1} Appellant Zacharie Nelson appeals from the April 21, 2022 Judgment Entry

of the Licking County Court of Common Pleas overruling his motion to withdraw his guilty

pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellee’s statement of facts in

support of the felony complaint and arrest warrant filed November 20, 2020, and

appellee’s bill of particulars filed December 16, 2020.

{¶3} On November 18, 2020, around 5:08 a.m., Newark police responded to an

apartment on North Cedar Street for a report of an assault. Upon arrival, police found

one male victim, John Doe, unresponsive inside the home with a wound to the right side

of his head. Jane Doe, John’s wife, was rendering aid to John and he was transported to

Grant Medical Center for further treatment.

{¶4} Police interviewed Jane, who stated John was assaulted by appellant. Jane

said appellant was an old acquaintance who gave them a ride home from the area of

North Cedar Street and Tuscarawas Street. After returning to the apartment, the trio hung

out in a makeshift bedroom inside the apartment, talking and smoking crystal

methamphetamine. Jane said appellant became irate and accused Jane and John of

stealing his car keys.

{¶5} Jane stayed in the bedroom while John and appellant looked for the keys.

Jane observed appellant grab a screwdriver which he kept in his hand as he left the room.

Moments later, Jane heard John saying, “You need to leave. You need to leave.” Then Licking County, Case No. 22CA00034 3

she heard John say, “Call the cops.” Several minutes later, Jane left the bedroom to find

John laying on the floor in the hallway, bleeding from his head.

{¶6} Appellant found the car keys in the bedroom and fled the scene before

police arrived.

{¶7} Later that day detectives checked John’s condition at Grant Medical Center

and medical staff advised John had a 3-4 inch wound that fractured and penetrated his

skull, consistent with being stabbed by a long, pointed object. John was treated for a

severe brain bleed but succumbed to his injuries on November 24, 2020.

{¶8} Detectives learned appellant was jailed on an unrelated OVI charge at the

Muskingum County Jail and interviewed him regarding the stabbing. Appellant admitted

stabbing John Doe in the head with a screwdriver and led police to where he threw it

away. The screwdriver was collected as evidence and John Doe’s DNA was found on

the tip.

{¶9} Appellant was charged by indictment as follows: Count I, aggravated

murder pursuant to R.C. 2903.01(B), an unclassified felony; Count II, murder pursuant to

R.C. 2903.02(A), an unclassified felony; Count III, murder pursuant to R.C. 2903.02(B),

an unclassified felony; Count IV, felonious assault pursuant to R.C. 2903.11(A)(2), a

felony of the second degree; and Count V, felonious assault pursuant to R.C.

2903.11(A)(1), a felony of the second degree.

{¶10} Appellant entered pleas of not guilty.

{¶11} On August 3, 2021, appellee moved the trial court to dismiss Counts I and

II of the indictment in exchange for appellant’s pleas of guilty to the remaining counts.

The trial court granted the motion. Appellant then appeared before the trial court and Licking County, Case No. 22CA00034 4

changed his previously-entered pleas of not guilty to ones of guilty upon Counts III, IV,

and V. The trial court ordered and received a pre-sentence investigation (P.S.I.) which it

referenced in sentencing appellant but which is not in the record before us. The trial court

found Counts III, IV and V merged for purposes of sentencing and appellee elected to

sentence upon Count III. The trial court imposed a prison term of 15 years to life.

{¶12} On March 14, 2022, appellant filed a pro se motion to withdraw and/or

vacate his guilty plea on the basis of alleged ineffective assistance of counsel. Appellee

responded with a memorandum in opposition and the trial court scheduled the matter for

a non-oral hearing on April 15, 2022. On April 8, 2022, appellant replied to appellee’s

memorandum in opposition and filed a motion to supplement the record with his Veterans

Administration (VA) medical records.

{¶13} On April 21, 2022, the trial court filed a Judgment Entry overruling

appellant’s motion to withdraw his guilty plea.

{¶14} Appellant now appeals from the trial court’s Judgment Entry of April 21,

2022.

{¶15} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶16} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION TO WITHDRAW AND/OR VACATE GUILTY PLEA AND TO

REINSTATE NOT GUILTY PLEA, IN VIOLATION OF APPELLANT’S RIGHT TO

COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION.” Licking County, Case No. 22CA00034 5

ANALYSIS

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

granted his motion to withdraw his guilty plea. We disagree.

Crim.R. 32.1

{¶18} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and

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.” In

the instant case, appellant’s request was made 7 months after imposition of sentence,

and the standard by which the trial court considered the motion was “to correct manifest

injustice.” State v. Payton, 5th Dist. Muskingum No. CT2022-0038, 2023-Ohio-504, ¶ 20.

{¶19} The accused has the burden of showing a manifest injustice warranting the

withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph one of the syllabus. A manifest injustice is a “clear or openly unjust act.” State

ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 N.E.2d 83.

“Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in

a miscarriage of justice or is inconsistent with the demands of due process.” State v.

Ruby, 9th Dist. Summit No. 23219, 2007-Ohio-244, ¶ 11, quoting State v. Williams, 10th

Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Accordingly, under the manifest injustice

standard, a post-sentence withdrawal motion is allowable only in extraordinary cases.

Smith, supra, 49 Ohio St.2d at 264.

{¶20} The purpose of this standard is to discourage a defendant from pleading

guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence Licking County, Case No. 22CA00034 6

was unexpectedly severe. State v. Jackson, 5th Dist. Delaware No. 04CA-A-11-078,

2005-Ohio-5173, ¶ 14, citing State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627

(1985).

Standard of review

{¶21} Our review of a trial court's decision under Crim.R. 32.1 is limited to a

determination of whether the trial court abused its discretion. State v. Caraballo, 17 Ohio

St.3d 66, 477 N.E.2d 627 (1985). “Abuse of discretion” means an attitude that is

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d

83, 87, 482 N.E.2d 1248 (1985). Most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one backed by no sound

reasoning process which would support that decision. Id. “It is not enough that the

reviewing court, were it deciding the issue de novo, would not have found that reasoning

process to be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result.” Id.

Appellant asserts ineffective assistance of trial counsel

{¶22} Appellant asserts his plea was not made knowingly, intelligently, and

voluntarily due to ineffective assistance of counsel; specifically, defense trial counsel did

not investigate appellant’s mental health status and both mental health and voluntary Licking County, Case No. 22CA00034 7

intoxication could have been argued to a jury as mitigating factors. Appellant supported

his argument with his own self-serving affidavit.1

{¶23} Challenges to guilty pleas based on allegations of ineffective assistance of

counsel during the plea process are evaluated under the familiar two-pronged cause and

prejudice test of Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984);

Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In order to satisfy

the second prong in the context of a guilty plea, appellant must show that “there is a

reasonable probability that, but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill, 474 U.S. at 59.

{¶24} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Because of

the difficulties inherent in determining whether effective assistance of counsel was

rendered in any given case, a strong presumption exists that counsel's conduct fell within

the wide range of reasonable, professional assistance. Id.

{¶25} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, quoting Strickland at 697.

{¶26} Appellant was represented by counsel throughout the pendency of the

case; at the change-of-plea hearing on August 3, 2021, the record establishes appellant

1 Appellant’s arguments altered from his original motion to withdraw plea, then his reply in the trial court, to the instant appeal. The variation in arguments will be addressed infra. Licking County, Case No. 22CA00034 8

and defense trial counsel reviewed an “Admission of Guilt/No Contest” form, which is also

in the record. Appellant and the trial court engaged in a Crim.R. 11 plea colloquy in open

court, on the record, and the trial court reviewed the rights appellant was waiving, the

possible sentence he faced, and all punitive consequences of the pleas of guilty. The

trial court advised appellant that if he changed his plea to guilty, he faced only one

potential sentence of 15 years to life, which is the maximum sentence. T. 13-14.

Appellant indicated on the record that he understood. Id. The trial court asked appellant

whether he was in good physical and mental health and appellant stated he was. T. 15.

Following the discussion appellant entered a counseled plea of guilty to Counts III, IV,

and V.

{¶27} The trial court immediately proceeded to sentencing and imposed a term of

15 years to life in prison.

{¶28} Appellant’s pleas of guilty were entered as part of a plea agreement. By

entering a plea of guilty, the accused is not simply stating that he did the discrete acts

described in the indictment; he is admitting guilt of a substantive crime. United States v.

Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). The guilty plea renders

irrelevant those constitutional violations not logically inconsistent with the valid

establishment of factual guilt and which do not stand in the way of conviction if factual

guilt is validly established. Menna v. New York, 423 U.S. 61 at n. 2, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975). Thus, when a defendant enters a plea of guilty as a part of a plea

bargain he waives all appealable errors, unless such errors are shown to have precluded

the defendant from entering a knowing and voluntary plea. State v. Radel, 5th Dist. Stark Licking County, Case No. 22CA00034 9

No. 2009-CA-00021, 2009-Ohio-3543, ¶ 13, citing State v. Kelley, 57 Ohio St.3d 127, 566

N.E.2d 658 (1991).

{¶29} Even where trial counsel errs, withdrawal of a guilty plea does not

automatically result. In State v. Jackson, 5th Dist. Delaware Nos. 04CA-A-11-078, 04CA-

A-11-079, 2005-Ohio-5173, this Court observed, “A manifest injustice can, under certain

circumstances, arise from erroneous advice of counsel regarding the sentence to be

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

there is overwhelming case law that states that a manifest injustice does not, ipso facto,

result. Id. See also State v. Sabatino, 102 Ohio App.3d 483, 657 N.E.2d 527 (8th

Dist.1995). Likewise, erroneous speculation, as opposed to an erroneous representation,

on the part of counsel does not constitute ineffective assistance of counsel nor warrant

the withdrawal of a guilty plea. Blatnik, supra, at 203; Jackson, supra, at ¶ 23.

{¶30} Appellant’s claim of ineffective assistance of defense trial counsel is based

upon counsel’s alleged “fail[ure] to investigate possible defenses in [appellant’s] case.”

Brief, 7. This premise is speculative and “possible” defenses that counsel may have

rejected do not establish ineffective assistance.

{¶31} First, appellant’s argument is based in part upon his own self-serving

affidavit filed with the motion to withdraw plea. In the affidavit, he asserts he was heavily

intoxicated at the time of the incident and has a history of PTSD and a traumatic brain

injury from his time in the military. On the basis of the affidavit, appellant first argued

before the trial court that defense trial counsel should have sought a mental health

evaluation. Generally, a self-serving affidavit or statement is insufficient to demonstrate

manifest injustice. State v. Adames, 5th Dist. No. 16-CA-85, 2017-Ohio-4058, 91 N.E.3d Licking County, Case No. 22CA00034 10

326, ¶ 29, citing State v. Shiflett, 5th Dist. Licking No. 09 CA 134, 2010-Ohio-3587, ¶ 19;

State v. Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 20.

{¶32} In its memorandum in opposition, appellee pointed out that a self-serving

affidavit was insufficient to establish ineffective assistance as a basis for withdrawing a

guilty plea. Appellant then moved the trial court to supplement the record, for the first

time, with voluminous medical records from the VA and expanded his argument to include

various defenses trial counsel should have explored.

{¶33} As the trial court noted, voluntary intoxication would not have been a

feasible defense; such evidence would only have been admissible to demonstrate

appellant was too intoxicated to have stabbed John Doe. Appellant admitted stabbing

John Doe, and a claim of voluntary intoxication would not have been logical given the

facts of the case.

{¶34} Further, appellant argued defense trial counsel was ineffective in failing to

request a mental evaluation or review his military records because his PTSD, military

background/injuries, or intoxication could have been “mitigating factors to the jury” and

he could have argued “diminished capacity.” “Motion to Withdraw and/or Vacate Guilty

Plea and to Reinstate Not Guilty Plea,” 3-4. It is well established that Ohio does not

recognize the defense of diminished capacity. State v. Fulmer, 117 Ohio St.3d 319, 2008-

Ohio-936, ¶ 66, citing State v. Jackson, 32 Ohio St.2d 203, 206, 291 N.E.2d 432 (1972);

State v. Wilcox, 70 Ohio St.2d 182, 436 N.E.2d 523 (1982), paragraph one of the syllabus.

Where a defendant cannot maintain an insanity defense, “he may not offer expert

testimony in an effort to show that he lacked the mental capacity to form the specific Licking County, Case No. 22CA00034 11

mental state required for a particular crime.” Id. at ¶ 67, citing State v. Gooey, 46 Ohio

St.3d 20, 26, 544 N.E.2d 895 (1989).

{¶35} Appellee also pointed out the flaw in the diminished-capacity argument,

therefore in his Reply, appellant pivoted to assert evidence of PTSD could have

established why he reacted by stabbing John Doe: he felt unable to escape the situation

and could have presented a duress defense. To establish the affirmative defense of

duress, the defendant must demonstrate that he was compelled to commit the crime

under threat, by another person, of imminent death or serious bodily injury. State v.

Womack, 5th Dist. Stark No. 2020CA00096, 2021-Ohio-1309, ¶ 48, citing State v.

Lawson, 2nd Dist. Montgomery No. 2215, 2008-Ohio-1311, ¶ 19. Nothing in the record

indicates a duress defense would have been viable, much less that defense trial counsel

was ineffective for failing to pursue such a defense.

{¶36} On appeal, appellant’s argument has changed yet again. He now argues

his mental state could have established a defense of legal insanity and permitted him to

enter a plea of not guilty by reason of insanity. Brief, 10. An insanity defense required

proof that appellant “did not know, as a result of a severe mental disease or defect, the

wrongfulness of [his] acts.” R.C. 2901.01(A)(14); State v. Tibbetts, 92 Ohio St.3d 146,

164, 749 N.E.2d 226 (2001). “Where facts and circumstances indicate that a plea of not

guilty by reason of insanity would have had a reasonable probability of success, it is

ineffective assistance of counsel to fail to enter the plea.” State v. Brown, 84 Ohio App.3d

414, 616 N.E.2d 1179 (8th Dist.1992). However, if the facts indicate that counsel was

pursuing a reasonable strategy in not so pleading, or where the likelihood of success for Licking County, Case No. 22CA00034 12

the plea is low, the decision is not unreasonable. State v. Twyman, 2d Dist. Montgomery

No. 19086, 2002-Ohio-3558.

{¶37} We fail to discern, and appellant does not reveal, the likelihood of a

successful plea of not guilty by reason of insanity. Appellant would have had the burden

of proving insanity by a preponderance of the evidence but nothing in the record indicates

appellant suffered from such a degree of mental disease or defect. See, State v. Skatzes,

104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 223. Trial counsel had ample

basis to conclude that an insanity plea had no reasonable chance of success. Tibbets,

id., citing State v. Seiber, 56 Ohio St.3d 4, 12, 564 N.E.2d 408 (1990). There is no basis

in the record to establish appellant did not know right from wrong, and the circumstances

of the crime, from which appellant fled and to which appellant confessed, do not support

the premise that appellant did not fully appreciate the wrongfulness of his actions.

{¶38} Further, appellant asserts counsel should have “investigated other

defenses,” implying he didn’t stab John Doe (counsel should have questioned whether

appellant’s DNA was on murder weapon). Brief, 13. To the extent that these arguments

were not raised in appellant’s original argument to the trial court, they will not be

addressed by this Court; new arguments will not be considered for the first time on appeal.

State v. Farthing, 5th Dist. Fairfield No. 2022 CA 0002, 2022-Ohio-4194, ¶ 40, appeal not

allowed, 169 Ohio St.3d 1502, 2023-Ohio-1326, 207 N.E.3d 847. Appellant argues

counsel should have raised various issues to contest or dismiss the aggravated murder

charge, which was in fact dismissed. Appellant argues counsel should have filed a motion

to suppress his police interview without offering any explanation why a suppression Licking County, Case No. 22CA00034 13

motion would have been granted. Appellant argues counsel should have argued self-

defense, which is incompatible with the evidence.

{¶39} Appellant’s arguments are speculative at best and do not establish

ineffective assistance of trial counsel rising to the level of manifest injustice. See, State v.

Szakacs, 8th Dist. Cuyahoga No. 92230, 2009-Ohio-5480, ¶ 17; State v. Pempton,

Cuyahoga App. No. 80255, 2002-Ohio-5831 (holding that defense counsel's failure to

request a psychiatric evaluation of defendant prior to sentencing did not constitute

ineffective assistance).

{¶40} We also note that appellant has not demonstrated he would not have

entered the guilty pleas but for the ineffective assistance of counsel. Defense trial counsel

succeeded in getting the most serious offenses against appellant dismissed. Based on

the circumstances of the case and the resulting sentence, we are unable to find defense

trial counsel ineffective in negotiating appellant’s favorable plea agreement.

{¶41} Appellant did not establish any manifest injustice occurred when he

changed his pleas to guilty. The trial court therefore did not abuse its discretion in

overruling appellant’s motion to withdraw his guilty pleas and the sole assignment of error

is overruled. Licking County, Case No. 22CA00034 14

CONCLUSION

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

Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

King, J., concur.