State v. Skally

2025 Ohio 761

• Court: Ohio Court of Appeals
• Decided: March 6, 2025
• Docket: 2024 CA 00089
• Status: Published

Opinion

[Cite as State v. Skally, 2025-Ohio-761.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : KAMERON D. SKALLY, : Case No. 2024 CA 00089 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2018-CR-00830

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 6, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS KAMERON SKALLY, Pro Se Prosecuting Attorney Inmate #769180 Licking County, Ohio Mansfield Correctional Institution P.O. Box 788 By: KENNETH W. OSWALT Mansfield, Ohio 44901 Assistant Prosecuting Attorney 20 S. Second Street, 4th Floor Newark, Ohio 43055 Baldwin, P.J.

STATEMENT OF THE FACTS AND THE CASE

{¶1} On November 8, 2018, a detective from the Newark Police Department filed

a Criminal Complaint/Arrest Warrant against the appellant. The Statement of Facts

attached to the detective’s Complaint set forth the following:

On November 7, 2018, officers with the Newark Police Department

responded to 147 S. Westmoor Ave., Apt. A, Newark, Licking County, Ohio,

for a report of shots fired and a possible suicide. Upon arriving, the officers

found the victim, dead, laying in bed, with a gunshot wound to the left side

of her neck, and an AR-15 assault rifle lying on the left side of her. A

supposed “suicide note” had been sent via text to the victim’s mother a few

minutes prior to the Defendant calling 911. The Defendant was interviewed

and ultimately admitted that he had sent the “suicide note” via text to the

victim’s mother, then shot & killed the victim, & then called 911 to report a

suicide.

{¶2} The appellant was arrested, and on or about November 8, 2018, appeared

before a magistrate and requested appointed counsel. The trial court appointed counsel

for the appellant on November 13, 2018.

{¶3} On November 15, 2018, the appellant was indicted on the following

charges: Count One, Aggravated Murder in violation of R.C. 2903.01(A), an unclassified

felony; Count Two, Murder in violation of R.C. 2903.02(A), an unclassified felony; Count

Three, Tampering with Evidence in violation of R.C. 2021.12(A)(2), a felony of the third

degree; and, a firearm specification in violation of 2941.145(A) in connection with Counts One and Two. On November 16, 2018, the appellant waived arraignment and pleaded

not guilty. The appellant’s trial counsel filed a request for discovery and various pretrial

motions, including but not limited to a motion for evaluation of the appellant’s competence.

The trial court granted the motions, including the request for a competency evaluation. A

February 10, 2019, evaluation reported that the appellant was “capable of understanding

the nature and objective of legal proceedings against him and is capable of assisting

counsel in his own defense.” On March 1, 2019, the trial court issued a Judgment Entry

in which it found that the appellant was competent to stand trial and scheduled the matter

for jury trial.

{¶4} On April 18, 2019, the appellant filed a Motion for Leave to Enter a Plea of

Not Guilty by Reason of Insanity, which the trial court granted the same day. On May 14,

2019, the trial court issued a Judgment Entry in which it found that the issue of the

appellant’s sanity had been raised, and therefore ordered that the appellant submit to an

evaluation by a forensic psychiatrist. The evaluation occurred, and a June 11, 2019,

report found that there was “insufficient evidence to support that the [appellant] did not

know the wrongfulness of the acts with which he is charged.” A second evaluation of the

appellant’s sanity was requested, which was approved by the trial court.

{¶5} The parties subsequently entered into a plea agreement in which the

appellant agreed to plead guilty to Counts One and Three of the indictment, as well as

the firearm specification, and the appellee agreed to dismiss Count Two of the indictment.

On December 17, 2019, the appellant filed a Notice of Intent to Enter Plea of Guilty

pursuant to a plea agreement, and the matter was scheduled for a Change of Plea and

Sentencing Hearing on January 28, 2020. On January 22, 2020, the appellant filed a Defendant’s Sentencing Memorandum in which he provided information regarding his

background as well as information related to the application of factors for sentencing,

including a number of letters written on the appellant’s behalf, and requested that the trial

court impose a prison sentence of twenty-three years to life.

{¶6} The Change of Plea and Sentencing Hearing proceeded on January 28,

2020. The trial court accepted the appellant’s plea of guilty to Counts One and Three, and

the firearm specification, and granted the appellee’s Motion to Dismiss Count Two. The

parties were permitted to present evidence regarding sentencing; the appellant sought a

sentence of twenty-three (23) years to life, and the appellee sought a sentence of twenty-

eight (28) years to life. The trial court issued a Nunc Pro Tunc - Judgment of Conviction

and Sentence on January 29, 2020, in which it set forth the fact that it personally

addressed the appellant and advised him of his rights pursuant to Crim.R. 11, and found

that the appellant made a knowing, voluntary, and intelligent decision to withdraw his not

guilty plea and enter a plea of guilty to the aforesaid counts. The court accepted the

appellant’s pleas of guilty, and sentenced him to twenty-five (25) years to life on Count

One and three (3) years on Count Three, to be served concurrently, and three (3) years

on the Firearm Specification charge, to be served consecutively, for a total aggregate

sentence of twenty-eight (28) years to life, with credit for time served. No direct appeal

was taken from this decision.

{¶7} On March 24, 2023, the appellant filed a Notice of Appeal “from the

judgment entry of conviction, entered in this court on the 9th day of March, 2023,” as well

as a Motion for Leave to File Delayed Appeal with this Court in which he argued that he

was not aware that he had a right to appeal since he “took a plea deal.” On April 18, 2023, this Court issued a Judgment Entry denying the appellant’s request for leave to file

delayed appeal because he had failed to attach a copy of the entry he sought to appeal,

and noting that the lower court case did not contain an entry dated March 9, 2023.

{¶8} On June 28, 2023, the appellant filed with this Court 1 numerous documents,

including a Notice of Delayed Appeal, and a Motion for Leave to Appeal in which he

argued that his appeal was delayed because he was incarcerated and did not have

access to the law library computers. On July 13, 2023, this Court issued a Judgment Entry

denying the appellant’s Motion for Leave to Appeal.

{¶9} On January 12, 2024, the appellant filed yet another Motion for Delayed

Appeal with this Court in which he sought leave to file a delayed appeal based upon the

fact that he had “no law libray [sic] access,” and “[t]here is no time deadline for an appeal.”

This Court issued a Judgment Entry on January 29, 2024, which held that “[t]his Court

has previously denied Appellant’s request for delayed appeal of the January 29, 2020

entry in Licking County Case Number 23CA00054. Res judicata bars successive motions

for delayed appeal. See State v. Mackey, 2024-Ohio-5372, (4th Dist. Scioto). Upon

consideration, Appellant’s motion is denied.”

{¶10} On July 8, 2024, the appellant filed with the trial court a Motion to Withdraw

Guilty Plea, as well as a Motion for Appointment of Counsel for Motion to Withdraw Guilty

Plea, with the trial court. On August 22, 2024, the trial court issued a Decision and Order

Denying Defendant’s Motion to Withdraw Guilty Plea Post Sentence, finding that the

appellant had failed to establish a manifest injustice warranting the withdrawal of his guilty

plea, and denied the motion. On September 23, 2024, the appellant filed a Notice of

1 The appellant filed documents with the trial court on this date as well. Appeal from the trial court’s August 22, 2024, judgment. In addition, the appellant filed a

Motion for Appointment of Counsel, and a Praecipe for Court Recording and Transcript

of the January 28, 2020, sentencing hearing, both of which were denied by the trial court

on September 24, 2024.

{¶11} On October 22, 2024, the appellant filed a Notice of Appeal for Motion of

Appointment of Counsel and Motion for Preparation of Transcripts, as well as another

Motion for Appointment of Counsel and another Praecipe for Court Recording and

Transcript of the January 28, 2020, Sentencing Hearing. On December 26, 2024, the

appellant filed his Brief of Appellant in which he sets forth the following two assignments

of error:

{¶12} “I. A SITUATION OF MANIFEST INJUSTICE EXISTS TO THE PREJUDICE

OF THE DEFENDANT WHEN THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS

PROTECTED UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO

CONSTITUTION BY DENYING APPELLANT APPOINTMENT OF COUNSEL.”

{¶13} “II. A SITUATION OF MANIFEST INJUSTICE EXISTS TO THE

PREJUDICE OF THE DEFENDANT WHEN THE TRIAL COURT VIOLATED

APPELLANT’S RIGHTS PROTECTED UNDER THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION BY DENYING APPELLANT

PREPARATION OF TRANSCRIPTS.”

{¶14} The appellant submits that the “trial court should have appointed appellate

counsel and ordered the preparation of transcripts for an Appellant in order to perfect an appeal as of right, especially relating to the transcripts at sentencing, necessary for a

post-sentence motion to withdraw guilty plea pursuant to Crim.R. 32.1.” We disagree.

ANALYSIS

{¶15} The appellant’s assignments of error are interrelated, and as such we shall

address them together.

{¶16} An appeal as of right is defined by App.R. 3(A), which states: “An appeal as

of right shall be taken by filing a notice of appeal with the clerk of the trial court within the

time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing

of a notice of appeal does not affect the validity of the appeal, but is ground only for such

action as the court of appeals deems appropriate, which may include dismissal of the

appeal. Appeals by leave of court shall be taken in the manner prescribed by Rule 5.” As

set forth above, the appellant failed to appeal within thirty days following the trial court’s

January 28, 2020, Judgment of Conviction and Sentence or the January 29, 2020, Nunc

Pro Tunc - Judgment of Conviction and Sentence. As such, he failed to perfect his “appeal

as of right,” and therefore may appeal only by leave. The appellant’s multiple efforts to

appeal by leave were denied by this Court.

{¶17} In an effort to circumvent these adverse rulings, the appellant filed a Motion

to Withdraw Guilty Plea. Crim.R. 32.1 states that: “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.” (Italics added.)

{¶18} This Court stated in State v. Hutchison, 2018-Ohio-200 (5th Dist.) that “[t]he

standard upon which the trial court is to review a request for a change of plea after sentence is whether there is a need to correct a manifest injustice.” (Citation omitted.) Id.

at ¶ 34. The Hutchinson Court went on to state:

Our review of the trial court's decision under Crim.R. 32.1 is limited

to a determination of whether the trial court abused its discretion. See State

v. Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985). An appellate court

may not substitute its judgment for that of the trial court when reviewing a

matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d 161, 169,

559 N.E.2d 1301 (1990). Furthermore, under the manifest injustice

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

extraordinary cases. State v. Aleshire, 5th Dist. Licking No. 09-CA-132,

2010-Ohio-2566, 2010 WL 2297917, ¶ 60, citing State v. Smith, 49 Ohio

St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused has the burden of

showing a manifest injustice warranting the withdrawal of a guilty plea.

Smith, supra, 49 Ohio St.2d 261, 361 N.E.2d 1324 at paragraph one of the

syllabus.

Id. at ¶35. The appellant’s entitlement to the appointment of counsel thus turns on whether

he has sufficiently established manifest injustice and the existence of extraordinary

circumstances. He has not.

{¶19} Our brethren at the Tenth District Court of Appeals discussed manifest

injustice in the context of a post-sentence motion to withdraw a guilty plea:

“Manifest injustice” is defined as a “ ‘fundamental flaw in the

proceedings which result[s] in a miscarriage of justice or is inconsistent with

the demands of due process.’ ” State v. Lowe, 10th Dist. No. 14AP-481, 2015-Ohio-382, 2015 WL 428061, ¶ 6, quoting State v. Williams, 10th Dist.

No. 03AP-1214, 2004-Ohio-6123, 2004 WL 2616430, ¶ 5. “It has also been

defined as ‘a clear or openly unjust act,’ which exists only in extraordinary

cases.” State v. Cottrell, 8th Dist. No. 95053, 2010-Ohio-5254, 2010 WL

4254512, ¶ 15, citing State v. Owens, 8th Dist. No. 94152, 2010-Ohio-3881,

2010 WL 3279170, citing State ex rel. Schneider v. Kreiner, 83 Ohio St.3d

203, 208, 699 N.E.2d 83 (1998).

Accordingly, a post-sentence withdrawal of a guilty or no contest plea

is permissible only in extraordinary cases under the manifest injustice

standard. State v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256,

2004 WL 2674624, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 264, 361

N.E.2d 1324 (1977). “And generally, res judicata bars a defendant from

raising claims in a Crim.R. 32.1 post-sentencing motion to withdraw a guilty

plea that he raised or could have raised on direct appeal.” State v. Straley,

159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, citing State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.

State v. Enyart, 2023-Ohio-3373, ¶¶ 17-18 (10th Dist.). The appellant has failed to

establish a fundamental flaw in his representation such that a miscarriage of justice

occurred. There has been no showing that the decision of the trial court was clear or

openly unjust, nor is there evidence of manifest injustice or extraordinary circumstances

present herein. {¶20} Furthermore, the issue of appointment of counsel to represent an appellant

in withdrawing a plea after sentence has been imposed was discussed by this Court in

State v. Dunlap, 2016-Ohio-5197 (5th Dist.):

. . . Ohio courts “have generally held that there is no absolute right to

appointed counsel in pursuing a postsentence motion to withdraw a guilty

plea.” State v. McNeal, 8th Dist. Cuyahoga No. 82793, 2004–Ohio–50, ¶ 8

(emphasis added), citing State v. Watts (1989), 57 Ohio App.3d 32, 33, 565

N.E.2d 1282 (6th Dist.Lucas). Other Ohio courts “have suggested that

counsel may be necessary if the judge determines that an evidentiary

hearing is required [on a postsentence Crim.R. 32.1 motion].” McNeal,

supra, citing State v. Perry (May 2, 1997), Trumbull App. No. 95–T–5315;

State v. Gibson, Trumbull App. No.2001–T–0094, 2002–Ohio–3153, ¶ 31.

But our research reveals no clear case law in Ohio justifying an unfettered

extension of our holding in Emerson beyond presentence Crim.R. 32.1

motions. See, also, State v. Potter, 5th Dist. Stark No.1995CA00027, 1995

WL 768607.

Id. at ¶ 14. The appellant does not have an absolute right to appointed counsel in the

pursuit of his post-sentence motion to withdraw guilty plea, and he has failed to provide

sufficient evidence of extraordinary circumstances.

{¶21} The issue was discussed by this Court in the context of a motion for leave

to file a motion for new trial in State v. Smith, 2019-Ohio-1339 (5th Dist.):

Further, in Pennsylvania v. Finely, 481 U.S. 551, 555, 107 S.Ct.

1990, 95 L.Ed.2d 539 (1987), the Supreme Court of the United States held: We have never held that prisoners have a constitutional right to

counsel when mounting collateral attacks upon their convictions, see

Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d

718 (1969), and we decline to so hold today. Our cases establish that

the right to appointed counsel extends to the first appeal of right, and

no further. Thus, we have rejected suggestions that we establish a

right to counsel on discretionary appeals. We think that since a

defendant has no federal constitutional right to counsel when

pursuing a discretionary appeal on direct review of his conviction, a

fortiori, he has no such right when attacking a conviction that has

long since become final upon exhaustion of the appellate process.

(Citations omitted.)

Appellant's motion was a collateral attack of his conviction. As such,

the trial court was not required to provide counsel to appellant at the hearing

on his motion for leave to file a motion for new trial.

Upon review, we find the trial court did not err in not providing

appellant with counsel at the hearing.

Id. at ¶¶ 11-13. The appellant’s post-sentence Motion to Withdraw Guilty Plea does not

fall into the category of “first appeal of right” as that term is defined by the appellate rules

and applicable case law. Thus, he does not have the right to appointed counsel for his

Motion to Withdraw Guilty Plea. Nor did the trial court abuse its discretion when it denied

the appellant’s Motion to Withdraw, as the appellant has failed to establish a fundamental

flaw in the proceedings which resulted in a miscarriage of justice or that is inconsistent with the demands of due process. Accordingly, the appellant’s first assignment of error is

without merit, and is overruled.

{¶22} Furthermore, the appellant has appealed the denial of appointed counsel

for purposes of his post-sentence motion to withdraw plea, and the trial court did not refer

to the proceedings of January 28, 2020 in rendering its decision to deny that request. The

appellant was therefore not entitled to preparation of a transcript of the January 28, 2020,

hearing.

Courts have long recognized that an indigent defendant has a

constitutional right to a transcript at public expense for an appeal. See State

ex rel. Copeland v. Judges of Court of Appeals of Third Appellate Dist., 67

Ohio St.2d 1, 5 (1981); Griffin v. Illinois, 351 U.S. 12, 19-20 (1956) (plurality

opinion). However, this right is subject to certain limitations. For instance,

the Supreme Court of Ohio has held that an indigent defendant's right is

dependent upon having either (1) “a present appeal as of right from his [or

her] conviction,” or (2) “an actual appeal pending pursuant to the allowance

of a motion for leave to appeal.” (Citations omitted.) State ex rel. Braxton v.

Parrino, 176 Ohio St. 318, 319 (1964).

State v. Nagy, 2019-Ohio-3058, ¶ 28 (11th Dist.). The appellant failed to file an appeal as

of right from his conviction within thirty days from the January 28, 2020, sentencing

hearing or January 29, 2020 Nunc Pro Tunc – Judgment of Conviction and Sentence,

and he does not have an appeal pending pursuant to the allowance of a motion for leave

to appeal. In fact, this Court has denied two motions for leave to appeal filed by the

appellant. Accordingly, he has no right to a transcript of the January 28, 2020, proceedings at public expense, the trial court did not err is so holding, and the appellant’s

second assignment of error is also without merit.

CONCLUSION

{¶23} Based upon the foregoing, we hereby overrule the appellant’s assignments

of error numbers one and two, and affirm the decision of the Licking County Court of

Common Pleas.

By: Baldwin, P.J.

Hoffman, J. and

King, J. concur.