[Cite as State v. Pointer,
2022-Ohio-1942.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110918
v. :
DENNIS POINTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 9, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-93-294529-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Dennis Pointer, pro se.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Dennis Pointer (“Pointer”) appeals the denial of
his motion to withdraw his 1993 plea of guilty. Whether construed as a motion to
withdraw a guilty plea under Crim.R. 32.1 or a petition for postconviction relief, the
trial court did not err in denying Pointer’s motion. We overrule Pointer’s
assignments of error and affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 10, 1993, Pointer pleaded guilty to murder as alleged in the
indictment in Cuyahoga C.P. No. CR-93-294529-ZA (“294529”). That same day, the
trial court sentenced Pointer to 15 years to life to run concurrently with the sentences
imposed in cases Cuyahoga C.P. No. CR-93-294527-ZA (“294527”) and Cuyahoga
C.P. No. CR-93-294419-ZA (“294419”). In that entry, the trial court also assessed
court costs to Pointer.
Pointer filed a motion to withdraw his guilty plea on August 27, 2021.
The trial court denied this motion on September 2, 2021. Pointer contends that Ohio
law required the state to pursue any unpaid court costs within ten years of the
imposition when he was sentenced. Therefore, Pointer argues that the continued
efforts of the state to collect unpaid fees from his 1993 sentence constitute a violation
of the prohibition on double jeopardy.
This is not the first time that Pointer has sought to withdraw his plea.
Pointer has filed motions to withdraw his plea of guilty on July 30, 2004; August 3,
2004; February 21, 2014; and April 30, 2014. Indeed, this court previously affirmed
the trial court’s denial of Pointer’s motion to withdraw in a prior opinion. State v.
Pointer, 8th Dist. Cuyahoga No. 85195, 2005-Ohio-3587, ¶ 13.
This is also not the first time that Pointer raised the specific complaint
concerning the assessment of court costs below. “[Defendant] is [e]ntitled to have
his money back and to withdraw his guilty plea.” These motions, however styled,
have been denied (the quoted document, filed December 20, 2016, was styled as a
motion to vacate or suspend payment of fine and/or court costs). Pointer filed
similar motions or complaints about the assessment of court costs on November 21,
2016 and July 27, 2016.
Nor is the filing before the trial court Pointer’s first petition for
postconviction relief. This court previously denied postconviction relief for failing
to attach the pertinent commitment papers. Pointer v. Russo, 8th Dist. Cuyahoga
No. 101548, 2014-Ohio-3244, ¶ 4 (aff’d,
144 Ohio St.3d 13,
2015-Ohio-2078,
40
N.E.3d 1071, ¶ 5).
This court has previously dismissed Pointer’s mandamus complaint
praying that respondents “not place a hold” on his prison account for costs
associated with a Franklin County civil action. Pointer v. Ross Corr. Warden, 8th
Dist. Cuyahoga No. 103376, 2015-Ohio-4692, ¶ 1. This court has also previously
denied Pointer’s complaint for a writ of precedendo. Pointer v. Russo, 8th Dist.
Cuyahoga No. 101550,
2014-Ohio-3599, ¶ 4.
In terms of appeals, this appeal is the third arising from Pointer’s
conviction in the case below. First, there was case number 77294. State v. Pointer,
8th Dist. Cuyahoga No. 77294 (Dec. 17, 1999). This court dismissed that appeal on
December 17, 1999. Next, there was case number 85195. State v. Pointer, 8th Dist.
Cuyahoga No. 85195, 2005-Ohio-3587. In that case, Pointer appealed the trial
court’s denial of his motion to withdraw his guilty plea under Crim.R. 32.1. This
court affirmed that judgment of the trial court denying postconviction relief on
July 25, 2005: “Pointer could have raised the issue of the voluntariness of his guilty
plea on direct appeal. Therefore, Pointer is barred by res judicata from raising the
issue in this appeal.” Pointer at ¶ 13.
In 2014, Pointer moved this court to reopen appeals case numbers
77294 and 85195. This court denied this motion. Id. at ¶ 2.
The most recent motion that resulted in this appeal was filed on
August 27, 2019. The trial court denied Pointer’s motion.
On appeal, Pointer filed an “affidavit” attached to his appellate brief.
This affidavit was not filed with the trial court. Exhibit B to appellant’s “affidavit”
indicates that the amount of money at issue is $119.69 as this is the total amount
paid to Cuyahoga County. The total amount outstanding for court costs according
to this exhibit is $186.00. Pointer appeals and assigns the following errors for our
review:
Assignment of Error 1: The trial court erred by failing to consider the
Appellant’s present and future ability to pay court cost pursuant to
Ohio Revised Code Section 2929.19(B)(5).
Assignment of Error 2: The trial court erred by failing to file findings
of facts, and conclusions of law prior to denying appellant motion for
post[-]conviction relief.
Assignment of Error 3: The trial court erred by failing to file an
evidentiary hearing prior to denying Appellant’s motion for postconviction relief.
Assignment of Error 4: The state breached appellant’s plea agreement
contract by ordering appellant to pay court cost in violation of O.R.C.
Section 2305.14 and separation of powers doctrine.
Assignment of Error 5: The state breached appellant plea agreement
contract by acting out-side the scope of their authority by [e]nforcing
Ohio Administrative Code Section 5120-5-03; Court order for payment
of funds from inmates account: In violation of the separation of
power[s] doctrine.
Assignment of Error 6: The state breached appellant plea agreement
by acting out-side the statute of limitation to collect court cost pursuant
to Ohio Revised Code Section 2305.14 (Ten(10) Barr).
II. ANALYSIS AND ARGUMENT
Pointer’s first assignment of error contends that the trial court erred
in sentencing Pointer insofar as the trial court did not consider his ability to pay
court costs before imposing costs. However, Pointer’s contention that the trial court
erred in failing to consider his ability to pay, much like voluntariness, could have
been raised in his previous appeals. “Therefore, Pointer is barred by res judicata
from raising the issue in this appeal.” Pointer, 8th Dist. Cuyahoga No. 85195, 2005-
Ohio-3587, at ¶ 13.
For the remaining assignments of error, Pointer styled his motion
before the trial court as a motion to withdraw his guilty plea under Crim.R. 32.1.
Pointer filed this motion long after the imposition of the original sentence. As a
result, Pointer bears the burden of establishing a manifest injustice entitling Pointer
to withdraw his plea. State v. Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324 (1977),
paragraph one of the syllabus. “The ‘manifest injustice’ standard is an extremely
high standard, which permits the withdrawal of a guilty plea only in extraordinary
cases.” State v. Smith, 8th Dist. Cuyahoga No. 102495,
2016-Ohio-103, ¶ 14. A
manifest injustice is a fundamental flaw in the proceedings that results in a
miscarriage of justice or is inconsistent with the requirements of due process. State
v. McMahon, 12th Dist. Fayette No. CA2009-06-008,
2010-Ohio-2055, ¶ 6. “A
motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the
trial court, and the good faith, credibility and weight of the movant’s assertions in
support of the motion are matters to be resolved by that court.” State v. Simmons,
8th Dist. Cuyahoga No. 91062,
2009-Ohio-2028, ¶ 25. The term “abuse of
discretion” connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
The requisite showing of manifest injustice must be based on specific
facts in the record or supplied through affidavits submitted with the motion. State
v. Hobbs, 8th Dist. Cuyahoga No. 109706, 2021-Ohio-852, ¶ 6.
Here, no affidavit was filed with the original motion. The only
documents are the original sentencing judgment entries for cases 294527 and
294419 and the Ohio Department of Rehabilitation and Correction explanation
which indicated that the money went to the correct location. Appellant filed a
handwritten affidavit attached to his brief before this court. However, an affidavit
is “a written declaration under oath, made without notice to the adverse party.” R.C.
2319.02. “An affidavit may be made in or out of this state before any person
authorized to take depositions.” R.C. 2319.04.
Even if we could consider an affidavit filed for the first time on appeal,
this document is not an affidavit. See Toledo Bar Assn. v. Neller, 102 Ohio St.3d
1234,
2004-Ohio-2895,
809 N.E.2d 1152, ¶ 1 (writing that purported to be signed
under penalty of perjury may not be substituted for an affidavit).
The only documents attached to the motion filed in the trial court
were the original judgment entries and the report from the Department of
Rehabilitation and Correction that stated that the disputed money order “went to
the correct location.” Even if appellant could establish that the state’s collection of
$186 in court costs was wrongful, we have no difficulty in determining that such
collection would not be an extraordinary case justifying the withdrawal of a guilty
plea nearly thirty years later.
In the second assignment of error, Pointer contends that the trial
court erred in failing to issue findings of fact and conclusions of law. However,
“Crim.R. 32.1 does not require a trial court to issue findings of fact and conclusions
of law when deciding a postsentence motion to withdraw a guilty plea.” State v.
Robinson, 8th Dist. Cuyahoga No. 110358, 2022-Ohio-82, ¶ 11. Accordingly, the
trial court did not err in not issuing findings of fact and conclusions of law.
In assignment of error No. 3, Pointer contends that the trial court
erred in failing to hold an evidentiary hearing. However, “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. Rodriguez, 8th Dist. Cuyahoga
No. 103640, 2016-Ohio-5239, ¶ 23. Here, nothing alleged in the motion, even if
accepted as true, establishes that Pointer is entitled to withdraw his plea based on a
manifest injustice.
The trial court did not err in denying appellant’s motion to withdraw
plea.
In addition, this court’s entry of November 2, 2021, construed the
motion as a petition for postconviction relief. Even construing the motion below as
a petition for postconviction relief does not change this outcome. A petition for
postconviction relief must be filed “no later than three hundred sixty-five days after
the date on which the trial transcript is filed in the court of appeals in the direct
appeal of the judgment of conviction[.]” R.C. 2953.21(A)(2). As noted above, this
court dismissed Pointer’s first appeal in 1999. To the extent that the filing below
should be construed as a petition for postconviction relief it is untimely.
Presumably, Pointer would contend that his motion is based on facts
that he was unavoidably prevented from discovering that the state would seek to
recover court costs and so his delayed petition is timely pursuant to R.C.
2953.23(A)(1)(a).
However, even if we agree that Pointer was unavoidably prevented
from discovering that the state would seek to collect the court costs ordered by the
trial court in its judgment of conviction, the statute also requires Pointer to establish,
by clear and convincing evidence, that “but for constitutional error at trial, no
reasonable factfinder would have found the petitioner guilty of the offense which the
petitioner was convicted.” R.C. 2953.23(A)(1)(b). The entirety of Pointer’s
argument is that the state is wrongfully collecting court costs. This does not
establish by clear and convincing evidence that, but for the collection of $186,
Pointer would not have pleaded guilty to murder.
Finally, Pointer contends in assignments of error Nos. 4, 5 and 6 that
the state’s collection of court costs constituted a breach of the terms of the plea
agreement. However, this court has previously determined “that no additional
promises were made by either the State or the trial court regarding the plea
agreement as outlined above. Once Pointer pled guilty, and the trial court sentenced
him, both Pointer and the State had performed their respective parts of the plea
agreement.” Pointer, 8th Dist. Cuyahoga No. 85195, 2005-Ohio-3587, at ¶ 9. Thus,
this court has already rejected Pointer’s argument that the plea agreement in this
case included obligations on the state for conduct after the entry of the plea.
For the foregoing reasons, Pointer has not shown that the trial court
erred in denying his motion and we overrule his assignments of error and affirm the
judgment of the trial court.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court 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
KATHLEEN ANN KEOUGH, P.J., and
LISA B. FORBES, J., CONCUR
