[Cite as State v. Wallace,
2020-Ohio-565.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 18-CA-00015
: 19-CA-00005
JEREMY M. WALLACE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 18-CR-0001
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 18, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH A. FLAUTT CHARLES M. ELSEA
P.O. Box 569 ABBEY M. BECCA
111 N. High St. 190 N. Broad St., Suite 200
New Lexington, OH 43764 P.O. Box 130
Lancaster, OH 43130
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 2
Delaney, J.
{¶1} Appellant Jeremy M. Wallace appeals from the March 23, 2019 Entry of the
Perry County Court of Common Pleas overruling his motion to withdraw his guilty plea.
Appellee is the state of Ohio.
{¶2} This appeal is consolidated from 5th Dist. Perry No. 18-CA-00015 and 19-
CA-00005.
FACTS AND PROCEDURAL HISTORY
{¶3} A statement of the facts underlying appellant’s criminal conviction is not
necessary to our resolution of this appeal. Appellant was accused of providing alcohol to
a group of minors and of having sexual intercourse with an intoxicated minor over the age
of thirteen but under the age of sixteen. Appellant’s D.N.A. was consistent with evidence
from a rape kit obtained from the victim.
{¶4} Appellant was charged by indictment with one count of rape pursuant to
R.C. 2907.02(A)(1)(c),1 a felony of the first degree [Count I], and one count of unlawful
sexual conduct with a minor pursuant to R.C. 2907.04(A) and (B)(3), a felony of the third
degree [Count II]. Appellant entered pleas of not guilty.
1 R.C. 2907.02(A)(1)(c) states in pertinent part:
No person shall engage in sexual conduct with another who is not
the spouse of the offender … when any of the following applies: [t]he other
person's ability to resist or consent is substantially impaired because of a
mental or physical condition or because of advanced age, and the offender
knows or has reasonable cause to believe that the other person's ability to
resist or consent is substantially impaired because of a mental or physical
condition or because of advanced age.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 3
Change-of-plea hearing
{¶5} On August 22, 2018, appellant appeared before the trial court and entered
a plea of guilty to Count I, rape. In exchange for appellant’s change-of-plea, appellee
entered a nolle prosequi upon Count II. The trial court engaged in a colloquy with
appellant, asking him whether he was satisfied with defense trial counsel’s
representation. Appellant replied in the affirmative. The trial court advised appellant of
the maximum possible prison term and fine, and that he would be classified as a Tier III
sex offender requiring lifetime registration. When asked whether he understood,
appellant replied in the affirmative. The trial court inquired whether appellant understood
the implications of post-release control and he replied in the affirmative. The trial court
accepted appellant’s change of plea, found him guilty as charged upon Count I, and
deferred sentencing pending a pre-sentence investigation (P.S.I.).
{¶6} Also at the change-of-plea hearing, appellant filed a written plea of guilty
stating he would be classified as a Tier III sex offender requiring mandatory lifetime
registration. Appellant acknowledged on the written plea form that defense trial counsel
fully explained the implications of the Tier III sex offender designation.
{¶7} Finally, the written plea of guilty advised appellant that he would be required
to complete a 5-year term of post-release control upon his release from prison.
Sentencing hearing
{¶8} On September 27, 2018, appellant appeared for sentencing. Upon inquiry
by the trial court, appellant acknowledged it was “substantially true” that he had sexual
intercourse with the 15-year-old victim while she was highly intoxicated and unable to
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 4
consent. The trial court imposed a prison term of 5 years to be followed by a 5-year term
of post-release control. Appellant was also deemed a Tier III sex offender.
Post-sentence motion to withdraw guilty plea
{¶9} On December 31, 2018, appellant filed a motion to withdraw his guilty plea
on the basis of ineffective assistance of counsel. The motion asserts appellant was
coerced into pleading guilty because he “thought it was the only way to see his daughter
again before she becomes an adult.” Motion, 2. The motion further asserts appellant has
a “bona fide defense” and pled guilty to an offense he did not commit.
{¶10} We note appellant’s sworn affidavit accompanying the motion states in
pertinent part:
….
33. [Minor victim] had approached me and had initiated the
sexual contact that night.
34. The night she was at my house she was walking talking
and laughing with friends and I did not feel she was so intoxicated as
to not know she was impaired in her ability to make decisions.
35. She was awake and participated during the entire
interaction.
….
{¶11} A second affidavit accompanies the motion to withdraw the guilty plea,
submitted by Rikkie Jones, identified as appellant’s paramour at the time of the offense.
This affidavit states, e.g., Jones’ daughter was 16 at the time of the party and Jones
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 5
thought the other guests were the same age; and the minor victim said appellant was
“hot.”
{¶12} We remanded this matter to the trial court on January 19, 2019 to allow the
trial court to rule upon the motion to withdraw the guilty plea. By judgment entry dated
March 28, 2019, the trial court denied appellant’s motion.
{¶13} Appellant now appeals from the trial court’s judgment entry of March 28,
2019.
{¶14} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO
WITHDRAW GUILTY PLEA.”
{¶16} “II. THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON
THE MOTION TO WITHDRAW GUILTY PLEA.”
{¶17} “III. THE TRIAL COURT ERRED IN ENTERING A GUILTY PLEA
WITHOUT ADEQUATE NOTICE TO THE DEFENDANT OF THE MAXIMUM
SANCTION.”
ANALYSIS
I., II., III.
{¶18} Appellant’s three assignments of error are related and will be considered
together. Appellant claims the trial court should have held a hearing on the motion and
permitted him to withdraw his guilty plea, and that he entered the guilty plea without
adequate notice of the maximum sanction. We disagree.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 6
Post-Sentence Motions to Withdraw Guilty Pleas
{¶19} Appellant's motion to withdraw his guilty plea was made pursuant to
Criminal Rule 32.1, stating: “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.” The 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. State v.
Marafa, 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257,
2003 WL
150093, ¶ 8.
{¶20} 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 at paragraph one of the
syllabus.
Hearing Not Required
{¶21} Appellant argues the trial court should have allowed a hearing because the
facts alleged in his pro se motions, if accepted as true, would require the court to permit
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 7
withdrawal of the guilty pleas. A trial court is not automatically required to hold a hearing
on a post sentence motion to withdraw a plea of guilty. A hearing must only be held if the
facts alleged by the defendant, accepted as true, would require that the defendant be
allowed to withdraw the plea. State v. Kent, 10th Dist. Franklin No. 03AP722, 2004–Ohio–
2129, ¶ 8.
{¶22} A trial court's decision whether to hold a hearing on the motion is also
subject to review for abuse of discretion. Smith, supra. The term “abuse of discretion”
implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶23} Appellant argues his claims of manifest injustice require a hearing.
Specifically, he asserts he had inadequate contact with defense trial counsel and was
unaware of the consequences of the guilty plea for contact with his daughter. We reject
appellant’s underlying premise that a trial court must accept his claims as true without
any consideration of their credibility. 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. Wilkey, 5th Dist. Muskingum No. CT2005-0050, 2006-
Ohio-3276, ¶ 21, citing Smith at paragraph two of the syllabus and State v. Caraballo, 17
Ohio St.3d 66, 67,
477 N.E.2d 627 (1985). In this case, the only corroboration of
appellant’s claims are two self-serving affidavits accompanying the motion to withdraw
the guilty plea. Generally, a self-serving affidavit or statement is insufficient to
demonstrate manifest injustice. State v. Patterson, 5th Dist. Stark No. 2003CA00135,
2004-Ohio-1569, ¶ 20.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 8
{¶24} Appellant asserts he entered a guilty plea due to ineffective assistance of
counsel. Ineffective assistance of counsel can form the basis for a claim of manifest
injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. State v. Adames,
5th Dist. No. 16-CA-85, 2017-Ohio-4058,
91 N.E.3d 326, ¶ 18, citing State v. Dalton,
153
Ohio App.3d 286, 292,
2003-Ohio-3813,
793 N.E.2d 509 (10th Dist.).
{¶25} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). In
assessing such claims, “a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ”
Id. at 689,
104 S.Ct. 2052, citing Michel v.
Louisiana,
350 U.S. 91, 101,
76 S.Ct. 158,
100 L.Ed. 83 (1955). “There are countless
ways to provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland,
466 U.S. at
689,
104 S.Ct. 2052. The question is whether counsel acted “outside the wide range of
professionally competent assistance.”
Id. at 690,
104 S.Ct. 2052.
{¶26} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694,
104 S.Ct. 2052.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 9
{¶27} However, under the “manifest injustice” standard, a post-sentence
withdrawal motion is allowable only in extraordinary cases. State v. Hill, 5th Dist. Stark
No. 2015 CA 00036, 2015-Ohio-3312, ¶ 14, citing State v. Aleshire, 5th Dist. Licking No.
09–CA–132, 2010–Ohio–2566, ¶ 60. Furthermore, “ … if a plea of guilty could be
retracted with ease after sentence, the accused might be encouraged to plead guilty to
test the weight of potential punishment, and withdraw the plea if the sentence were
unexpectedly severe. … ” State v. Peterseim, 68 Ohio, App.2d 211, 213,
428 N.E.2d
863 (1980), quoting Kadwell v. United States,
315 F.2d 667 (C.A.9, 1963).
{¶28} In the instant case, appellant does not point to evidence of counsel’s alleged
incompetence in the record. As noted infra, the guilty plea was negotiated. Appellant
now contends, however, that he was innocent of the charges against him and pled guilty
upon trial counsel’s advice because he thought it was the only way he would ever see his
daughter again. See Appellant's Brief at 1. Appellant maintains that he had no contact
with defense trial counsel leading up to his trial date, and he had a “bona fide” defense to
the rape charge. Appellant further contends defense trial counsel did not inform him that
a “potential” consequence of post-release control is having no unsupervised contact with
children under the age of 18. Appellant speculates this condition could affect his ability
to have contact with his own daughter, and therefore his rape conviction is a manifest
injustice. We note the “bona fide defense” asserted by appellant is his self-serving claims
that the 15-year-old intoxicated victim “initiated” the sexual contact and the intercourse
was consensual, claims directly contradicted by appellant’s expressions of remorse at the
sentencing hearing.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 10
{¶29} Moreover, a Crim.R. 32.1 motion is not a challenge to the validity of a
conviction or sentence, and instead only focuses on the plea. See State v. Bush, 96 Ohio
St.3d 235,
773 N.E.2d 522, 2002–Ohio–3993, ¶ 13. We note that the terms of this plea
agreement were negotiated between the parties. Appellee dismissed Count II, a third-
degree felony, and appellant faced a maximum potential prison term of 11 years upon
Count I. In State v. Pepper, 5th Dist. Ashland No.
13 COA 019, 2014–Ohio–364, this
Court emphasized: “In the review of an attempt to withdraw any such negotiated plea
after the fact, we must weigh any imperfections in the process against the possibility that
the defendant is avoiding a much harsher result by resolving the case. We also bear in
mind that the trial court is under a duty pursuant to Crim.R.11 to ensure that the plea
comports with constitutional standards.” Id. at ¶ 40, citing State v. Stowers, 8th Dist.
Cuyahoga No. 48572,
1985 WL 7495 (additional citations omitted).
{¶30} If we were to accept appellant’s argument, a hearing would be required
upon every claim of manifest injustice and the trial court would have no discretion to weigh
the credibility of the allegations. Instead, the Ohio Supreme Court has held a trial court
may, in the sound exercise of its discretion, judge the credibility of the affidavits in
determining whether to accept affidavits as true statements of fact. State v. Amstutz, 5th
Dist. Stark No. 2000-CA-00047, 2001 WL 46324, *2, citing State v. Calhoun,
86 Ohio
St.3d 279,
1999-Ohio-102,
714 N.E.2d 905.
{¶31} The party moving to withdraw the guilty plea must support the allegations
contained in the motion with affidavits and/or the record. Id. In Amstutz, supra, 5th Dist.
Stark No. 2000-CA-00047,
2001 WL 46324, at *2, citing State v. Jackson,
64 Ohio St.2d
107,
413 N.E.2d 819 (1980), we noted a defendant is not entitled to a hearing where he
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 11
or she failed to provide evidentiary-quality materials raising sufficient operative facts
which would entitle the defendant to the requested relief. Appellant was required to
present evidence which met a minimum level of cogency to support his claims.
Id., citing
State v. Combs,
2 Ohio St.3d 112, 115,
443 N.E.2d 169 (1982). A petitioner's self-serving
affidavit does not meet the minimum level of cogency. State v. Kapper,
5 Ohio St.3d 36,
38,
448 N.E.2d 823 (1983).
{¶32} Upon review of the entirety of appellant's claims in support of his motion to
withdraw plea, we are unpersuaded the trial court abused its discretion in declining to find
a manifest injustice warranting the extraordinary step of negating appellant's plea, and
we further find the trial court did not err or abuse its discretion in denying appellant's
motion to withdraw plea without conducting an evidentiary hearing.
Trial Court Complied with Crim.R. 11
{¶33} Finally, appellant asserts the trial court failed to advise him during the
Crim.R. 11 colloquy that his guilty plea and the resulting Tier III sex offender designation
might affect his ability to have contact with his daughter. We note appellant’s argument
is premised upon speculation [“Considering the nature of the charges, there is a high
likelihood that the Adult Parole Authority … could decide to restrict Jeremy’s ability to
see his daughter…” Brief, 17.].
{¶34} The effect of a guilty plea “is a complete admission of the defendant's guilt.”
See, Crim.R. 11(B)(1). The information that a guilty plea is a complete admission of guilt,
along with the other information required by Crim.R. 11, ensures that defendants enter
pleas with knowledge of rights that they would forgo and creates a record by which
appellate courts can determine whether pleas are entered voluntarily. State v. Griggs,
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 12
103 Ohio St.3d 85,
2004-Ohio-4415,
814 N.E.2d 51, ¶ 11, citing State v. Nero,
56 Ohio
St.3d 106, 107,
564 N.E.2d 474 (1990) and State v. Ballard,
66 Ohio St.2d 473, 479–480,
423 N.E.2d 115 (1981). The right to be informed that a guilty plea is a complete admission
of guilt is nonconstitutional and therefore is subject to review under a standard of
substantial compliance. Id. at ¶ 12, citing Nero,
56 Ohio St.3d at 107.
{¶35} Crim.R. 11(C)(2)(a) states the trial court must determine “ … that the
defendant is making the plea voluntarily, with the understanding of the nature of the
charges and of the maximum penalty involved, and if applicable, that the defendant is not
eligible for probation or for the imposition of community control sanctions at the
sentencing hearing.” The Rule requires guilty pleas to be made knowingly, intelligently
and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court
need only “substantially comply” with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475,
423 N.E.2d 115 (1981), citing
State v. Stewart,
51 Ohio St.2d 86,
364 N.E.2d 1163 (1977). In State v. Griggs,
103 Ohio
St.3d 85, 2004–Ohio–4415,
814 N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶36} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with nonconstitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. State v. Nero, [56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990) ]. The test for prejudice is ‘whether the plea would have otherwise
been made.’
Id.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 13
{¶37} Under the substantial-compliance standard, we review the totality of
circumstances surrounding appellant's plea and determine whether he subjectively
understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–
509,
881 N.E.2d 1224 at ¶ 19–20; State v. Alexander, 5th Dist. Stark No.2012CA00115,
2012–Ohio–4843, appeal not allowed,
134 Ohio St.3d 1485, 2013–Ohio–902,
984 N.E.2d
29.
{¶38} Our review of the change-of-plea and sentencing hearing reveals the trial
court advised appellant of his constitutional rights, the potential penalties for each offense,
and the possibility of post-release control. The trial court also inquired as to the
voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R.
11. The record demonstrates the trial court had a meaningful dialogue with appellant, fully
apprising him of the rights he was waiving. See, State v. Tillman, 6th Dist. Huron No. H–
02–004, 2004–Ohio–1967, ¶ 20. The court engaged appellant in a personal inquiry as to
whether he understood the plea agreement and its consequences. Appellant was
represented throughout the hearing. Nothing in the record indicates that appellant was
under the influence of any drug or other substance which would prohibit his understanding
of the court's questions. The record indicates that he understood the terms of the
agreement and entered an intelligent, knowing and voluntary plea. State v. Hendricks,
5th Dist. Muskingum No. CT2016-0010, 2017-Ohio-259, ¶ 35.
{¶39} Nor is there evidence in the record showing that if the court had advised
appellant any differently appellant would not have pled guilty and instead would have
insisted on going to trial. Thus we find no evidence appellant was prejudiced and he does
not point to any such evidence. Hendricks, supra,
2017-Ohio-259 at ¶ 36.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 14
{¶40} The record demonstrates the trial court discussed the charges with
appellant. Specifically, the court informed appellant of the elements of the offenses and
the possible penalties that could result from the convictions. Appellant informed the trial
court that he understood the charges and the possible penalties.
{¶41} The record further demonstrates that the court notified appellant of the
constitutional and non-constitutional rights encompassed by Crim.R. 11(C)(2), and the
effect that a guilty plea would have on such rights. Again, appellant told the court that he
understood the effect of his guilty pleas.
{¶42} The record before us therefore demonstrates the trial court complied with
the statutory prerequisites of Crim.R. 11(C)(2), and appellant entered his guilty plea to
Count I both voluntarily and knowingly. The record further confirms that appellant's
counsel was present at the time of the plea and that his counsel's advice was competent.
{¶43} We find the record indicates appellant answered the trial court’s questions
at the plea hearing correctly and appropriately, and specifically affirmed that he
understood the nature of the charge against him. See State v. Thomas, 97 Ohio St.3d
309, 2002–Ohio–6624, ¶ 38 (noting that the “[d]efendant showed that he understood the
proceedings by meaningfully responding to each of the trial court's questions”). Appellant
affirmed at the plea hearing that he had fully discussed the case with counsel, and
indicated no confusion regarding the proceedings.
{¶44} Accordingly, under the circumstances of the case sub judice, the trial court
did not abuse its discretion in finding no manifest injustice which would warrant the
extraordinary step of withdrawing appellant's guilty pleas. We therefore affirm the trial
court's decision overruling appellant's motions to withdraw his guilty plea.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005 15
{¶45} Appellant’s three assignments of error are overruled.
CONCLUSION
{¶46} Appellant’s three assignments of error are overruled and the judgment of
the Perry County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.
