State v. Darling

                                                                     [Cite as State v. Darling,

.]



                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA


STATE OF OHIO,                                :

                  Plaintiff-Appellee,         :
                                                               No. 109439
                  v.                           :

TEVAUGHN DARLING,                              :

                  Defendant-Appellant.         :


                             JOURNAL ENTRY AND OPINION

                  JUDGMENT: AFFIRMED
                  RELEASED AND JOURNALIZED: February 18, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-15-602351-A


                                        Appearances:

                  Michael C. O’Malley, Cuyahoga County Prosecuting
                  Attorney, and Brandon A. Piteo, Assistant Prosecuting
                  Attorney, for appellee.

                  Patituce & Associates, L.L.C., Kimberly Kendall Corral and
                  Megan M. Patituce, for appellant.


EILEEN A. GALLAGHER, J.:

                   Defendant-appellant Tevaughn Darling appeals the trial court’s

denial of his postconviction motion to withdraw his guilty pleas. Darling contends
that he was denied the effective assistance of counsel and that his guilty pleas were

not knowing, intelligent and voluntary because they resulted from “undue duress,”

“tactics of coercion,” “psychological manipulation” and “[m]isleading advice” from

counsel regarding the aggregate sentence the trial court would impose if he entered

guilty pleas. Darling further contends that the trial court abused its discretion in

denying his motion to withdraw his guilty pleas without a hearing.

               For the reasons that follow, we affirm the trial court.

Procedural History and Factual Background

               In April 2016, Darling pled guilty to one count of conspiracy

(amended Count 1), six counts of drug trafficking (one of which included a one-year

firearm specification) (amended Count 2 and Counts 5, 6, 7, 8 and 21) and one count

of having a weapon while under disability (Count 23), possessing criminal tools

(Count 24) and tampering with evidence (Count 25). Several of the counts included

forfeiture specifications. The parties stipulated that Counts 1 and 2 merged with

each other and with all other counts for sentencing, and the state elected to sentence

Darling on the remaining counts. The trial court sentenced Darling to an aggregate

prison sentence of 14 years.1 The trial court also imposed postrelease control, a fine

of $37,500 and court costs.



      1  Specifically, the trial court sentenced Darling to eight years on Count 5, eight
years on Count 6, eight years on Count 7, eight years on Count 8, one year on the firearm
specification to be served prior to and consecutive to five years on the base charge on
Count 21, 36 months on Count 23, 12 months on Count 24 and 36 months on Count 25.
The trial court ordered that sentences on Counts 5, 6, 7, 8, 23, 24 and 25 be served
concurrently but consecutively to the sentence on Count 21.
              Darling appealed his convictions. Among his assignments of error,

Darling claimed that his guilty pleas were not made knowingly, intelligently and

voluntarily because they were induced by promises that allowed codefendants to

avoid serious felony charges and because of “the existence of other coercive

circumstances surrounding his guilty pleas.”

              This court found that the trial court had “fully complied with Crim.R.

11(C)(2)” and “properly determined” that Darling’s pleas were made knowingly,

intelligently and voluntarily. State v. Darling, 8th Dist. Cuyahoga No. 104517, 2017-

Ohio-7603, ¶ 26 (“Darling I”).       The court affirmed Darling’s convictions but

remanded the case to the trial court for the limited purpose of issuing a nunc pro

tunc entry to incorporate the consecutive sentence findings the trial court had made

at the sentencing hearing into its sentencing journal entry. Id. at ¶ 40.

              On April 25, 2017, while his direct appeal was pending, Darling filed,

pro se, a petition for postconviction relief. In his petition, Darling set forth the

following “grounds for relief”:

      Ground for relief I: Petitioner’s plea was not voluntarily, intelligently,
      or knowingly made in violation of his Due Process Rights under the
      Fifth, Sixth, and Fourteenth Amendments to the United States
      Constitution as a direct and proximate result of psychological trauma
      sustained from being placed in isolation for an extensive amount of
      time at the request of the State’s attorney.

      Ground for relief II: Petitioner’s plea was not voluntarily, intelligently,
      or knowing[ly] made in violation of his Due Process Rights under the
      Fifth, Sixth, and Fourteenth Amendments to the United States
      Constitution as a direct and proximate result of the State’s attorney
      poisoning the potential jury pool with unfounded inflammatory
      accusations and denying him the possibility of a fair trial with an
      impartial jury in violation of Petitioner’s Due Process Rights under the
      Fifth, Sixth, and Fourteenth Amendments to the United States
      Constitution.

               The state opposed the petition. On October 31, 2017, the trial court

denied Darling’s petition for postconviction relief and issued findings of fact and

conclusions of law in support of its decision. The trial court concluded that Darling’s

claims were barred by res judicata. Darling did not appeal that ruling.

               On June 27, 2019, Darling filed a motion to withdraw his guilty pleas.

Darling argued that his guilty pleas were not the result of a “knowing, intelligent,

and voluntary agreement to mutually accepted terms,” but rather, were “the result

of severe psychological distress and undue duress which resulted from state’s

imposition of more than two-hundred days of solitary confinement followed by the

manipulative use of his terminally-ill family and mother to coerce a plea.” He

requested that the trial court allow him to withdraw his guilty pleas “due to a

manifest injustice resulting from a guilty plea made under duress” and because he

was “misled by his counsel’s emphatic push to accept a deal” and “did not know and

understand,” at the time he entered his guilty pleas, “that he would be subject to a

‘double-digit’ prison term of 14-years.”

               Although Darling claimed to have attached two affidavits in support

of his motion — an affidavit he prepared and one from his mother — no affidavits

were submitted with the motion.
              On January 2, 2020, the trial court denied the motion without a

hearing. Darling appealed, raising the following four assignments of error for

review:

      Assignment of Error I: The trial court erred in failing to grant
      defendant’s motion to withdraw a plea where reversal was necessary to
      correct a manifest injustice.

      Assignment of Error II: The appellant received ineffective assistance
      of counsel in violation of his Sixth Amendment right to counsel.

      Assignment of Error III: The trial court erred in denying defendant’s
      motion to withdraw plea where the record fails to establish that he
      entered a knowing, voluntary, intelligent plea.

      Assignment of Error IV: The trial court abused its discretion failing to
      hold a hearing on the appellant’s motion to withdraw guilty plea.

Law and Analysis

              The withdrawal of a guilty plea is governed by Crim.R. 32.1 which

states:

      A motion to withdraw a plea of guilty … 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 defendant bears the burden of establishing the existence of

“manifest injustice.” State v. Smith, 

, 

 (1977),

paragraph one of the syllabus. Manifest injustice is “a clear or openly unjust act,”

State ex rel. Schneider v. Kreiner, 

, 

 (1998),

“that is evidenced by ‘an extraordinary and fundamental flaw in the plea

proceeding,’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640 and
104641, 

, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No.

90141, 

; see also State v. Vinson, 

, 

, ¶ 41 (8th Dist.); State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-

2661, ¶ 17 (‘“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.’”), quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-

Ohio-6123, ¶ 5. A claim of manifest injustice must be supported by specific facts in

the record or through affidavits submitted with the motion. See, e.g., State v.

Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 

, ¶ 10.

               A trial court is not required to hold a hearing on every postsentence

motion to withdraw a guilty plea. See, e.g., State v. Norman, 8th Dist. Cuyahoga

No. 105218, 

; State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,

, ¶ 11. “‘A hearing is required … if the facts alleged by the

defendant, accepted as true, would require that the defendant be allowed to

withdraw the plea.’” Norman at ¶ 16, quoting Vihtelic at ¶ 11; see also State v.

Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-

Ohio-7657, ¶ 11 (“‘A defendant must establish a reasonable likelihood that a

withdrawal of his plea is necessary to correct a manifest injustice before a court must

hold an evidentiary hearing on his motion.’”), quoting State v. Williams, 12th Dist.

Warren No. CA2009-03-032, 

, ¶ 14.

               We review a trial court’s decision to deny a defendant’s postsentence

motion to withdraw a guilty plea under an abuse of discretion standard. See, e.g.,
State v. Romero, 

, 

, 

;

Vinson, 

, 

, at ¶ 42, citing Smith, 

,

, at paragraph two of the syllabus. Likewise, we review a trial court’s

decision whether to hold a hearing on a postsentence motion to withdraw a guilty

plea for an abuse of discretion. See, e.g., State v. Grant, 8th Dist. Cuyahoga No.

107499, 

, ¶ 13.

      Trial Court’s Jurisdiction to Consider Motion to Withdraw Guilty
      Pleas

              We find no abuse of discretion by the trial court in denying Darling’s

motion to withdraw his guilty pleas because a trial court has no jurisdiction to

consider a defendant’s motion to withdraw his or her guilty pleas under Crim.R. 32.1

after a court of appeals has affirmed the defendant’s convictions. See State ex rel.

Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas Judges, 

, 

 (1978). As the Ohio Supreme Court explained

in Special Prosecutors:

      Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and
      determine a motion to withdraw the guilty plea subsequent to an
      appeal and an affirmance by the appellate court. While Crim.R. 32.1
      apparently enlarges the power of the trial court over its judgments
      without respect to the running of the court term, it does not confer
      upon the trial court the power to vacate a judgment which has been
      affirmed by the appellate court, for this action would affect the decision
      of the reviewing court, which is not within the power of the trial court
      to do.

Id.; see also State v. Ketterer, 

, 

, 

 (trial court lacked jurisdiction to consider motion to withdraw guilty plea
where convictions were affirmed but case was remanded for limited purpose of

resentencing on noncapital offenses); State v. Mitchell, 8th Dist. Cuyahoga No.

109178, 

; State v. Jones, 8th Dist. Cuyahoga No. 108226, 2019-

Ohio-4892, ¶ 4-5; Grant at ¶ 14.

              In this case, Darling appealed the trial court’s judgment, and this

court affirmed his convictions. Darling I, 

. After this court

affirmed Darling’s convictions in Darling I, the trial court had no jurisdiction to

consider his subsequent motion to withdraw his guilty pleas.

      Res Judicata

              Furthermore, even if the trial court had jurisdiction to consider

Darling’s claims, consideration of his claims would be barred by the doctrine of res

judicata. Res judicata prevents repeated attacks on a final judgment. It applies to

claims that were raised or could have could on direct appeal and also ‘“bar[s] …

piecemeal claims in successive postconviction relief petitions or motions to

withdraw a guilty plea that could have been raised, but were not, in the first

postconviction relief petition or motion to withdraw a guilty plea.’” State v. Sneed,

8th Dist. Cuyahoga No. 84964, 

, quoting State v. Kent, 4th

Dist. Jackson No. 02CA21, 

; see also State v. Pemberton, 4th

Dist. Gallia No. 10CA, 

 (“[R]es judicata bars [appellant] from

raising claims of ineffective assistance that occurred both ‘on-the-record’ (direct

appeal) and ‘off-the-record’ (postconviction relief) in [a] Crim.R. 32.1 motion.”);
State v. Bene, 11th Dist. Lake Nos. 2019-L-070, 2019-L-071 and 2019-L-072, 2020-

Ohio-1560, ¶ 13-15.

               Because Darling raised, or could have raised, any claims related to the

ineffectiveness of his defense counsel and the unknowing, unintelligent and

involuntary nature of his guilty pleas in his direct appeal or his prior petition for

postconviction relief, his claims are barred by res judicata. See, e.g., Pemberton at

¶ 19 (res judicata barred defendant from raising issues of ineffective assistance of

counsel in Crim.R. 32.1 motion that could have been addressed in direct appeal, his

prior motion for postconviction relief or in a subsequent appeal from the denial of

postconviction relief).

       Absence of Supporting Evidence

               Finally, even if we were to consider Darling’s arguments, we would

find the trial court did not abuse its discretion in denying his motion to withdraw

his guilty pleas.

               Under certain circumstances, ineffective assistance of counsel can

constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g.,

State v. Montgomery, 8th Dist. Cuyahoga No. 103398, 

.

However, Darling has not shown any reasonable likelihood that this is such a case.

               Darling submitted no affidavits or any other relevant evidentiary

materials with his motion to withdraw his guilty pleas to support his claim of

manifest injustice. Darling’s motion to withdraw his guilty pleas (and his appellate

brief) consist of little more than conclusory, self-serving allegations and
unsubstantiated assertions, which are insufficient to demonstrate a manifest

injustice or to warrant a hearing on a motion to withdraw a guilty plea. See, e.g.,

State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 

; State v.

Johnson, 12th Dist. Butler Nos. CA2010-12-327 and CA2011-02-019, 2011-Ohio-

3015, ¶ 13.

              Accordingly, Darling’s assignments of error are overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR