[Cite as State v. Serva,
2021-Ohio-3077.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2020-P-0081
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
JUSTIN A. SERVA,
Trial Court No. 2020 CR 00485
Defendant-Appellant.
OPINION
Decided: September 7, 2021
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Justin A. Serva, appeals the October 19, 2020 Judgment Entry
of the Portage County Court of Common Pleas accepting his guilty plea to one count
Sexual Battery and sentencing him to 60 months imprisonment. For the reasons set forth
herein, the judgment is affirmed.
{¶2} In June 2020, appellant was charged in a five-count indictment: three counts
of Rape, in violation of R.C. 2907.02(A)(2); Kidnapping, in violation of R.C. 2905.01; and
Domestic Violence, in violation of R.C. 2919.25. The alleged victim was his girlfriend.
Appellant ultimately changed his initial not-guilty plea, and pleaded guilty to amended
count one, Sexual Battery, in violation of R.C. 2907.03(A)(5)&(B), a felony of the third
degree.
{¶3} The court modified the bond to personal recognizance allowing for his
release from jail, conditioned on daily reporting and no contact with the victim. The parties
agreed to jointly recommend a 24-month prison sentence if appellant did not commit any
violations before sentencing. All parties understood that if he committed more than a
technical violation, the state would recommend the full 60-month sentence. While
awaiting sentencing appellant tested positive for methamphetamines and failed to meet
all daily reporting requirements.
{¶4} The morning of his sentencing hearing, appellant made an oral motion to
vacate his guilty plea based on an alleged apology letter from the victim calling into
question the veracity of some of her statements to the police. Appellant stated he
recognized the handwriting in the letter as that of the victim; the state had doubts about
its authenticity. The court heard the matter, but ultimately denied the motion, finding
appellant had entered his guilty plea knowingly, intelligently, and voluntarily.
{¶5} The court then sentenced him to 60 months imprisonment, plus a $300 fine
and court costs. Appellant now assigns two errors for our review, which we address
together:
{¶6} [1.] Trial court abused its discretion when it denied Mr. Serva’s
motion to withdraw his guilty plea because his plea was not
knowingly, intelligently, and voluntarily made.
{¶7} [2.] Mr. Serva was denied his right to effective assistance of counsel
guaranteed under the Sixth Amendment of the U.S. Constitution and
Article I, Sections 1, 10, & 16 of the Ohio Constitution.
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{¶8} Though appellant’s motion was made prior to his sentencing, both appellant
and appellee brief the issue as a post-sentence motion to withdraw a guilty plea. “A
defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the
burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio St.2d
261 (1977), paragraph one of the syllabus. On the other hand, “a presentence motion to
withdraw a guilty plea should be freely and liberally granted. Nevertheless, it must be
recognized that a defendant does not have an absolute right to withdraw a plea prior to
sentencing.” State v. Xie,
62 Ohio St.3d 521, 527 (1992). A criminal defendant may
withdraw his guilty plea prior to sentencing if the criminal defendant has presented a
legitimate and reasonable basis for the withdrawal of the guilty plea. State v. Parsons,
9th Dist. Summit No. 22200,
2005-Ohio-268, ¶6.
{¶9} Under either standard, “[a]n appellate court reviews a trial court’s decision
on a motion to withdraw a plea under an abuse-of-discretion standard.” State v. Straley,
159 Ohio St.3d 82,
2019-Ohio-5206, ¶15, citing
Smith, supra, at paragraph two of the
syllabus. The term “abuse of discretion” is one of art, connoting judgment exercised by
a court which neither comports with reason, nor the record. State v. Ferranto,
112 Ohio
St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court
“applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” Thomas v. Cleveland,
176 Ohio App.3d 401, 2008-
Ohio-1720, ¶15 (8th Dist.2008). However, even under the lower standard for a
presentence motion to withdraw, we cannot agree the trial court abused its discretion in
denying appellant his motion to withdraw his guilty plea.
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{¶10} When evaluating motions to withdraw guilty pleas, this court has traditionally
applied the four-part test set forth in State v. Peterseim, 68 Ohio App.2d 211 (8th
Dist.1980):
{¶11} ‘A trial court does not abuse its discretion in overruling
a motion to withdraw: (1) where the accused is represented by highly
competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea, (3)
when, after the motion to withdraw is filed, the accused is given a
complete and impartial hearing on the motion, and (4) where the
record reveals that the court gave full and fair consideration to the
plea withdrawal request.’ State v. David, 11th Dist. Ashtabula No.
2016-A-0029, 2017-Ohio-1102, ¶19, quoting
Peterseim, supra, at
paragraph three of the syllabus.
{¶12} Here, the record indicates that a hearing was held on appellant’s motion,
and a hearing was held on the entry of his plea of guilty. At the former, the trial court
questioned appellant regarding his motion and appellee presented arguments in
opposition to the motion. The trial court considered appellant’s testimony regarding the
letter but did not allow it to be read into evidence as it was hearsay. Nevertheless, the
court reaffirmed that appellant’s plea was knowingly, intelligently, and voluntarily made.
As such, it denied the motion and proceeded to sentence appellant. On appeal, appellant
claims his guilty plea was involuntary as it was based on the incorrect legal advice of trial
counsel. He also claims his counsel was ineffective for failing to request an extension of
time to present additional evidence to support his motion to withdraw.
{¶13} “It is well-settled that ‘a properly licensed attorney practicing in this state is
presumed to be competent.’” State v. Kornet, 11th Dist. Portage No. 2013-P-0001, 2013-
Ohio-3480, ¶31, quoting State v. Prinkey, 11th Dist. Ashtabula No. 2010-A-0029, 2011-
Ohio-2583, ¶30, citing State v. Lytle, 48 Ohio St.2d 391, 397 (1976). “[W]e need not
address the first prong (regarding the deficiency of counsel’s performance) ‘[i]f it is easier
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to dispose of an ineffectiveness claim on the ground of sufficient prejudice ….’” State
v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶43, quoting
Strickland v. Washington,
466 U.S. 668, 697 (1984).
{¶14} Appellant notes that at the hearing on his motion to withdraw, trial counsel
stated he might have counselled appellant different if the letter had been sent earlier;
however, without more, this does not constitute erroneous legal advice or ineffective
assistance. Indeed, counsel advised appellant based on the information available to them
at the time, before the alleged apology letter. Appellant points to no other way in which
his trial counsel’s advice was erroneous.
{¶15} Furthermore, the record shows that trial counsel did not believe the letter to
be completely exculpatory, stating:
{¶16} Well, I think, Your Honor, she steps - - she comes close - - doesn’t
completely say that everything that happened was false. And I think
without getting into the facts, I think, you know, being delicate here,
I think, you know, I think there’s an argument that some of what he
was charged with he’s guilty of, and I think he would probably
acknowledge that, but - -
{¶17} It appears trial counsel did not believe the letter, even if authenticated, was
exculpatory and did not deem it necessary to request a continuance to attempt to
authenticate the letter or present additional evidence. Appellant does not demonstrate
on appeal that trial counsel erred in not presenting additional evidence or that he was
prejudiced by the exclusion.
{¶18} Prior to pleading guilty to an amended Count One, appellant received a full
plea colloquy, a point not in dispute on appeal. The trial court deemed his plea to be
knowingly, intelligently, and voluntarily made. As appellant has not shown that he was
prejudiced by his trial counsel’s failure to provide additional evidence at his motion to
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withdraw or that he relied on the erroneous legal advice of his trial counsel, we cannot
agree that his trial counsel was ineffective or that the trial court erred by deeming his plea
to have been made knowingly, intelligently, and voluntarily.
{¶19} Accordingly, appellant’s assignments of error are without merit.
{¶20} In light of the foregoing, the judgment of the Portage County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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