State v. Newkirk

2020 Ohio 5554

• Court: Ohio Court of Appeals
• Decided: December 4, 2020
• Docket: H-19-024
• Status: Published

Opinion

[Cite as State v. Newkirk, 2020-Ohio-5554.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

State of Ohio Court of Appeals No. H-19-024

Appellee Trial Court No. CRI 2019 0589

v.

Lee Michael Newkirk DECISION AND JUDGMENT

Appellant Decided: December 4, 2020

*****

James Joel Sitterly, Huron County Prosecuting Attorney, and Melissa A. Angst, Assistant Prosecuting Attorney, for appellee.

Danielle C. Kulik, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Lee Michael Newkirk, appeals the judgment of the Huron County

Court of Common Pleas, convicting him, following a guilty plea, of one count of rape in

violation of R.C. 2907.02(A)(2), a felony of the first degree, and one count of sexual

battery in violation of R.C. 2907.03(A)(2) and (B), a felony of the second degree, and sentencing him to an agreed upon prison term of 15 years. For the reasons that follow,

we affirm.

I. Facts and Procedural Background

{¶ 2} On July 19, 2019, the Huron County Grand Jury returned a four-count

indictment against appellant, charging him with one count of rape in violation of R.C.

2907.02(A)(1)(b) and (B), a felony of the first degree; one count of sexual battery in

violation of R.C. 2907.03(A)(2) and (B), a felony of the second degree; one count of

sexual battery in violation of R.C. 2907.03(A)(1) and (B), a felony of the second degree;

and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4) and (C)(2), a

felony of the third degree. The charges stemmed from appellant’s sexual assault of a

three-year-old child.

{¶ 3} On November 19, 2019, appellant withdrew his initial plea of not guilty, and

entered a plea of guilty to the count of rape, with an amendment removing the allegation

that the victim was under the age of ten, and a plea of guilty to one count of sexual

battery. In exchange, the state agreed to dismiss the remaining counts. Additionally, the

parties agreed to a recommended prison sentence of eight years on the count of rape, and

a mandatory seven years on the count of sexual battery, to be served consecutively for a

total prison term of 15 years.

{¶ 4} At the hearing, the trial court conducted a detailed Crim.R. 11 plea colloquy

and accepted appellant’s guilty plea. The court noted that the parties jointly agreed to

proceed immediately to sentencing, and asked appellant’s trial counsel if appellant was

2. waiving any further presentence investigation. Trial counsel responded in the

affirmative. The court then proceeded to impose the recommended sentence.

{¶ 5} Thereafter, on December 16, 2019, appellant moved to withdraw his guilty

plea, and requested a hearing on his motion. In the motion, appellant alleged that the

DNA evidence provided in discovery was not dispositive of guilt, and that appellant’s

former trial counsel never requested the epithelial DNA testing. Furthermore, appellant

alleged that he has a medical diagnosis of “ADHD borderline Asperger’s Syndrome,” and

that he was on an Individualized Education Plan (IEP) in school. Thus, he contended that

his ability to understand the plea was also an issue.

{¶ 6} On January 7, 2020, the trial court denied appellant’s motion to withdraw his

guilty plea without a hearing. The trial court found that appellant agreed to the state’s

recitation that the sexual assault examination of the victim revealed penetration, that

appellant’s DNA was found in sperm fractions from the victim’s underwear, that the

victim told her mother that her vagina hurt because appellant had stuck his finger in her

vagina, and that there were two incidents of sexual conduct each committed with a

separate animus. Further, the trial court found that appellant was fully advised of his

rights, and made a knowing, intelligent, and voluntary decision to plead guilty.

II. Assignments of Error

{¶ 7} Appellant has timely appealed his judgment of conviction as well as the

denial of his motion to withdraw his guilty plea, and now asserts three assignments of

error for our review:

3. 1. THE COURT FAILED TO ADVISE THE DEFENDANT

ABOUT WAIVING A PRESENTENCE INVESTIGATION AND DID

NOT ASK THE DEFENDANT ANY QUESTIONS IN REGARDS TO

THE WAIVER.

2. THE COURT ABUSED ITS DISCRETION BY NOT

ALLOWING A HEARING ON COMPETENCY AFTER IT WAS

RAISED IN A MOTION TO WITHDRAW A PLEA.

3. THE DEFENDANT DID NOT HAVE EFFECTIVE

ASSISTANCE OF COUNSEL WHEN NO MOTIONS WERE FILED

AND INCARCERATION PRECEDED A PLEA.

III. Analysis

{¶ 8} In his first assignment of error, appellant argues that the trial court erred

when it asked his trial counsel instead of him whether there was a waiver of a presentence

investigation report. However, a trial court does not need to order a presentence

investigation report in a felony case where community control is not being imposed.

State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992), syllabus; State v. Scott, 6th

Dist. Sandusky No. S-15-012, 2016-Ohio-1480, ¶ 42 (“Where it has been determined that

a defendant is not eligible for community control, the trial court does not err in refusing

to order a presentence investigation report.”); Crim.R. 32.2 (“Unless the defendant and

the prosecutor in the case agree to waive the presentence investigation report, the court

shall, in felony cases, order a presentence investigation and report before imposing

community control sanctions or granting probation.” (Emphasis added.)). Here, the

4. parties agreed that appellant was not eligible for community control. Thus, he did not

have a right to a presentence investigation report that he could waive, and the trial court

did not err in failing to ask him to waive that nonexistent right.

{¶ 9} Accordingly, appellant’s first assignment of error is not well-taken.

{¶ 10} In his second assignment of error, appellant argues that the trial court

abused its discretion in denying his post-sentence motion to withdraw his guilty plea

without a hearing on the issue of appellant’s competency.

A motion to withdraw a guilty plea “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.” Crim.R. 32.1. “A manifest injustice is

defined as a ‘clear or openly unjust act.’ * * * Manifest injustice is an

extremely high standard, and a defendant may only withdraw his guilty

pleas in extraordinary cases.” State v. Harmon, 6th Dist. Lucas No. L-10-

1195, 2011-Ohio-5035, ¶ 12. The burden is on the defendant to establish

the existence of such injustice. State v. Smith, 49 Ohio St.2d 261, 361

N.E.2d 1324 (1977), paragraph one of the syllabus. * * * [B]ecause a

motion to withdraw a guilty plea is addressed to the sound discretion of the

trial court, we review a trial court’s judgment on such a motion under an

abuse of discretion standard. Smith, supra, at 264. Accordingly, we will

only reverse a trial court’s denial of a motion to withdraw a guilty plea if

the court’s attitude in reaching its judgment was unreasonable, arbitrary, or

5. unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

State v. Adams, 6th Dist. Lucas No. L-13-1169, 2014-Ohio-4110, ¶ 7.

{¶ 11} “An evidentiary hearing on a post-sentence motion to withdraw a guilty

plea ‘is not required if the facts as alleged by the defendant, and accepted as true by the

court, would not require that the guilty plea be withdrawn.’” State v. Skaggs, 6th Dist.

Wood No. WD-04-002, 2004-Ohio-6653, ¶ 7, quoting State v. Patterson, 5th Dist. Stark

No. 2003CA00135, 2004-Ohio-1569, ¶ 18. “Generally, a self-serving affidavit or

statement is insufficient to demonstrate manifest injustice.” Id. In deciding a motion to

withdraw a guilty plea, the trial court has the discretion to determine the “good faith,

credibility and weight of the movant’s assertions.” State v. Smith, 49 Ohio St.2d 261, 361

N.E.2d 1324 (1977), paragraph two of the syllabus; State v. Hutchison, 2018-Ohio-200,

104 N.E.3d 91, ¶ 38 (5th Dist.).

{¶ 12} Here, in support of his motion to withdraw his guilty plea, appellant

cursorily alleged that he had a medical diagnosis of “ADHD borderline Asperger’s

Syndrome,” and that he was on an Individualized Education Plan (IEP) in school, and

thus he may have been unable to understand the plea. Appellant provided no

documentary or affidavit evidence to support his assertions.

{¶ 13} More importantly, appellant’s assertion of an inability to understand the

plea proceedings is dramatically contradicted by the record. Appellant stated at the

hearing that he has a high school education, that he was not on any medication that

affected his ability to think clearly about entering his plea, that he had never been

6. diagnosed mentally ill or incompetent, and that he understood the charges to which he

was pleading guilty. Furthermore, appellant’s responses to the trial court’s questions

were clear and contextually appropriate, and appellant asked insightful questions about

the community notification requirement and judicial early release.

{¶ 14} In support of his argument on appeal that it was questionable whether he

could understand the plea, appellant points to only one exchange wherein the trial court

asked appellant if he had a full opportunity to discuss the charges with his trial counsel

and appellant replied, “Yes, best we could.” Appellant indirectly suggests that the phrase

“best we could” indicates that he was incapable of meaningfully discussing the charges.

Immediately after that exchange though, the trial court asked appellant a series of

questions to which he responded in the affirmative: “Have you shared with her all the

information that you know that’s relevant to these charges?”; “Has she provided you with

the information the State gave with regard to their -- with regard to what they intend to

prove?”; “Have you had a chance to discuss with her any possible defenses you might

have to these charges?”; “Are you satisfied with her advice and competence?”; “Have

you had a chance to review [the plea agreement] with [trial counsel]?”; “Do you believe

you understand all the terms and conditions that are set out in that document?”.

{¶ 15} Therefore, we find no support in the record for appellant’s allegation that

he was unable to understand the plea agreement or was incompetent, and we hold that the

trial court did not abuse its discretion when it denied appellant’s post-sentence motion to

withdraw his guilty plea without a hearing.

{¶ 16} Accordingly, appellant’s second assignment of error is not well-taken.

7. {¶ 17} Finally, in his third assignment of error, appellant argues that his trial

counsel was ineffective for failing to raise the issue of competency, and for failing to

have the DNA investigated.

{¶ 18} To prevail on a claim of ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. “The object of an ineffectiveness claim is not to

grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” Id. at 697.

{¶ 19} Regarding counsel’s failure to raise the issue of competency, as we

discussed above, there is nothing in the record to suggest that appellant was incompetent

or incapable of understanding the nature and effect of his guilty plea. Thus, appellant has

not demonstrated that a reasonable probability exists that any motion on the issue of

competency would have been successful.

{¶ 20} As to the failure to investigate the DNA evidence, the record shows that the

state provided evidence, including laboratory reports, in response to appellant’s request

for discovery. While the record does not include the laboratory reports themselves,

appellant does not identify anything in the record that would call into question the DNA

evidence. In fact, during the plea hearing, appellant agreed that it was true that DNA

8. from his sperm was found inside the victim’s underwear. Thus, appellant has failed to

demonstrate that a reasonable probability exists that any further investigation of the DNA

evidence would have resulted in a different outcome in the proceedings.

{¶ 21} Therefore, because appellant has failed to demonstrate any prejudice from

trial counsel’s performance, his claim of ineffective assistance of counsel is without

merit.

{¶ 22} Accordingly, appellant’s third assignment of error is not well-taken.

IV. Conclusion

{¶ 23} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Huron County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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