Shaker Hts. v. ThompsonShaker Hts. v. Thompson
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 21, 2026
Criminal Appeal from the Shaker Heights Municipal Court Case No. 02CRB00557
Appearances:
C. Randolph Keller, City of Shaker Heights Chief Prosecutor, for appellee.
Andre D. Thompson, pro se.
DEENA R. CALABRESE, J.:
{¶ 1} Defendant-appellant Andre D. Thompson appeals the trial court‘s judgment denying his renewed motion to withdraw plea and vacate conviction pursuant to
A. Original Proceedings in 2002 and 2003
{¶ 2} On or about July 1, 2002, appellant struck M.L. twice in the head with an open hand, knocking her to the ground. M.L. sustained two scratches to her left shoulder. Appellant was issued a criminal citation alleging that he had caused or attempted to cause physical harm to M.L., a family or household member, in violation of Shaker Heights’ domestic violence ordinance.
{¶ 3} According to the record, appellant appeared in Shaker Heights Municipal Court on February 25, 2003. He executed a plea form indicating that he had been informed of and understood his constitutional rights, that he thereafter “knowingly, intelligently, and voluntarily” chose to proceed in pleading either guilty or no contest, that he waived his right to trial by jury, and that he waived his right to be represented by an attorney. Under the section captioned “Pleading,” which includes a check box labeled “Guilty” and another labeled “No Contest,” appellant checked the box labeled “No Contest.” The form bears appellant‘s signature as well as the signature of a witness.1
{¶ 4} The trial judge, the Honorable K.J. Montgomery, entered judgment the same day.2 The trial court‘s journal entry, also completed on a form and signed by
B. Appellant‘s 2019 Motion to Vacate Conviction
{¶ 5} On December 23, 2019, appellant filed a pleading captioned “Motion to Vacate Conviction for Lack of Fully Knowing and Intelligent Plea.” In his motion, appellant stated that he had been indicted in a federal drug case and was “facing a greatly enhanced sentence because of potential classification as a career offender” because of his 2003 domestic-violence conviction. In arguing that his 2003 plea of no contest was not entered into knowingly and intelligently, appellant claimed he had not been informed that his domestic-violence conviction “could have future adverse legal consequences” and that “fundamental fairness dictates that this conviction be vacated.” In an accompanying sworn statement — not an affidavit —
{¶ 6} In a journal entry dated January 7, 2020, the trial court entered an order stating that appellant‘s “[m]otion can not be considered as prosecutor was not served.”
C. Appellant‘s 2020 Motion to Vacate Conviction
{¶ 7} The record does not indicate that any further action was taken on appellant‘s December 23, 2019 motion. Instead, appellant filed what appears to be an identical copy of his motion to vacate conviction, along with an identical sworn statement, on February 7, 2020. On March 3, 2020, the trial court journalized an entry denying the motion. No appeal followed.
D. Appellant‘s 2025 Motion to Withdraw Plea
{¶ 8} On October 20, 2025, appellant filed the pleading that is the subject of this appeal, captioned “Renewed Motion to Withdraw Plea and Vacate Conviction Pursuant to
{¶ 9} In short, appellant contended that the lack of a transcript or audio recording of the 2003 plea colloquy prevented verification that his plea was made knowingly, intelligently, and voluntarily. Appellant contended that he entered his plea of no contest “without a full appreciation of substantial collateral effects,” rendering the plea “not truly knowing and intelligent.”
{¶ 10} Appellant also advanced arguments grounded in “[e]quity and interests of justice,” including the age of the conviction and his “demonstrated rehabilitation.” He also pointed to continuing “psychological and social consequences” because of his criminal record.
{¶ 11} Appellant attached two exhibits to his motion. Exhibit A purports to be an October 10, 2025 email from a Shaker Heights Municipal Court deputy clerk, albeit in what appears to be a copy-and-paste by appellant rather than a printout. The email indicates that “audio recordings would not be available” for appellant‘s February 25, 2003 hearing because
{¶ 12} The trial court denied the motion to withdraw plea, without opinion, on October 21, 2025. This timely appeal followed.
{¶ 13} Appellant presents four assignments of error for our review:
Assignment of Error I
The trial court erred by entering a conviction based on a no-contest plea when no record exists demonstrating compliance with
Assignment of Error II
The trial court abused its discretion by failing to consider the substantial and ongoing collateral consequences of the conviction, in violation of State v. Sarkozy and State v. Sanders.
Assignment of Error III
The trial court abused its discretion by denying Appellant‘s
Assignment of Error IV
The trial court erred by failing to correct or reconstruct the destroyed plea record under
{¶ 14} We find no merit to any of appellant‘s assigned errors. Accordingly, we affirm the trial court‘s judgment denying his motion to withdraw his plea.
III. Analysis
A. Standard of Review
{¶ 15}
{¶ 16} By its terms,
{¶ 17} “Manifest injustice” has been defined as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998), citing Webster‘s Third New International Dictionary (1986). In this context, such a “clear or openly unjust act” is evidenced by “an extraordinary and fundamental flaw in the plea proceeding.” State v. Hamilton, 2008-Ohio-455, ¶ 8 (8th Dist.), citing State v. Lintner, 2001-Ohio-3360 (7th Dist.), and State v. Wheeler, 2002-Ohio-284 (2d Dist.). See also State v. Morris, 2026-Ohio-37, ¶ 8 (8th Dist.). “[I]t is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.” Smith at 264, citing United States v. Semel, 347 F.2d 228, 229
{¶ 18} “The determination of whether a defendant has demonstrated a manifest injustice is left to the sound discretion of the trial court.” State v. Jones, 2019-Ohio-4355, ¶ 13 (8th Dist.). We therefore “review a trial court‘s determination of whether a defendant demonstrated a manifest injustice for an abuse of discretion.” Id. A trial court “abuses its discretion when it exercises its judgment in an unwarranted way with respect to a matter over which it has discretionary authority.” Hunter v. Troutman, 2025-Ohio-366, ¶ 64 (8th Dist.), citing Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. “The term abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” Hunter at ¶ 64, citing Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). See also State v. McAlpin, 2026-Ohio-148, ¶ 14.
{¶ 19} Furthermore, a trial court “is not required to hold a hearing on every postsentence motion to withdraw a guilty plea.” Jones at ¶ 14, citing State v. Vihtelic, 2017-Ohio-5818, ¶ 11 (8th Dist.), citing State v. Chandler, 2013-Ohio-4671, ¶ 7 (10th Dist.). “‘A hearing is required only if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea.‘”
B. The Lost Record of the Plea Proceeding and the Presumption of Regularity
{¶ 20} In his first assignment of error, appellant essentially argues that because no record of the 2003 plea hearing now exists, Shaker Heights cannot demonstrate that his plea was made knowingly, voluntarily, and intelligently. Ipso facto, he wins: The trial court must permit him to withdraw his plea, and his conviction must be vacated. Such an argument, however, ignores which party is at fault for the unavailability of the transcript or audio recording of the plea. It also impermissibly shifts the burden from appellant to Shaker Heights, conveniently eliminating appellant‘s burden of demonstrating manifest injustice, i.e., that there was an extraordinary and fundamental flaw in the plea proceeding.
{¶ 21} “To invalidate a plea, the record must affirmatively show that the defendant was not informed of his rights or that the plea was otherwise defective.” Olmsted Twp. v. Campanalie, 2025-Ohio-5851, ¶ 14 (8th Dist.), citing Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Nero, 56 Ohio St.3d 106 (1990). Here, there is no transcript or recording of the plea. Shaker Heights cites the five-year retention requirement of
When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
{¶ 22} In other words, where there is no transcript or audio recording, as in this case, “[t]here is no showing of irregularity to contradict the presumption of regularity accorded all judicial proceedings.” Raber at ¶ 19, quoting State v. Sweet, 72 Ohio St.3d 375, 376 (1995). See also State v. Ward, 2017-Ohio-933, ¶ 17 (8th Dist.) (“[A] silent record” means there is no showing of irregularity to contradict the presumption of regularity.).
{¶ 23} The rule announced in Knapp is not without limits. Indeed, in that case the Ohio Supreme Court remanded the matter because even though the plaintiffs could have explored the options of an
{¶ 25} Hunt, like the present action, involved a trial court record in which the transcript of the plea proceeding had been lawfully destroyed under governing records-retention law. In that case, Hunt filed a delayed appeal challenging “different aspects of the guilty plea process, the general crux of which centers on the knowing, voluntary, or intelligent nature of Hunt‘s guilty pleas or the trial court‘s adherence to the guilty plea process in capital cases[.]” (Emphasis added.) Hunt at ¶ 8. As in the present action, the transcript of proceedings had not been preserved, a fact the clerk of courts confirmed:
[R]eview . . . is hampered by the lack of a record from the 1994 convictions. The transcript of proceedings was not indefinitely preserved, and as permitted under
R.C. 2301.20(B) , the transcripts are no longer available. One of the exhibits attached to a motion filed with the trial court dealing with theApp.R. 9(C) statement is a letter from the Cuyahoga County Clerk of Courts confirming that the transcript from Hunt‘s plea hearing was no longer available because ten years had elapsed after his final conviction.
{¶ 26} The trial court also “tacitly indicated the lack of an independent recollection of the proceedings necessary to settling the record through
{¶ 27} This court noted that the Ohio Supreme Court had held that “‘[a] criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his or her own actions.‘” Id. at ¶ 2, quoting State v. Jones, 71 Ohio St.3d 293, 297 (1994). More specifically, where “the record is not kept beyond the period prescribed by [law], the defendant is considered to be ‘at fault’ as contemplated under Jones for nonproduction of the record. In such cases, the presumption of regularity applies.” Hunt at ¶ 5, citing State v. Frazier, 1990 Ohio App. LEXIS 1457 (8th Dist. Apr. 12, 1990). See also Hunt at ¶ 3 (“[A]fter the transcript of proceedings becomes unavailable through time and as permitted [by law], the defendant is considered to be at fault for the lack of a record.“).
{¶ 28} Before continuing our discussion of Hunt, we observe that “‘[i]f a transcript is “unavailable” an appellant has an obligation to provide a complete record pursuant to
{¶ 29} Here, appellant did not submit a proposed
{¶ 30} This returns us to Hunt, 2019-Ohio-1982 (8th Dist.). We are skeptical that any narrative account of the plea hearing filed solely by appellant and alleging a violation of
such a document is insufficient against the presumption of regularity that may be applied in light of Hunt‘s failure to timely prosecute this delayed appeal. Frazier. Hunt cannot profit from self-serving statements that cannot be contested because of his dilatory behavior. Because Hunt is responsible for the nonproduction of the factual record, this appeal can only proceed on those issues for which a factual record is unnecessary. Jones.
Hunt‘s claims that his plea was not knowingly, voluntarily, or intelligently entered or that the trial court failed to comply with the dictates of Green, all of which are dependent on the nonexistent transcript, are without merit. We must presume regularity in the proceedings and that the three-judge panel complied with Green and
Crim.R. 11 . Further, the final entry of conviction indicates that Hunt was notified of his constitutional rights during the plea process and Hunt has not demonstrated any other legal error from the available record of the proceedings.
(Emphasis added.) Hunt at ¶ 10-11.
{¶ 32} Here, appellant waited nearly two decades to file his first two motions to vacate his conviction and more than two decades to file the motion to withdraw his plea. By that time, any audio recording or transcript of the plea proceedings had long since been lawfully destroyed pursuant to
{¶ 33} Furthermore, and similar to Hunt, the record contains a plea form confirming that appellant had been advised of his constitutional rights and that his
{¶ 34} Here, as in Campanalie, the contemporaneous record contains the plea form that appellant signed acknowledging that he had been informed of his rights and that he thereafter “knowingly, intelligently, and voluntarily” chose to enter a plea of no contest.
{¶ 35} Boykin is further distinguishable because there was no suggestion in that case that the lack of a plea colloquy was the defendant‘s own fault. As a result, Hunt remains directly on point. This appeal would “be easily resolved upon reviewing the transcript of the proceedings.” Hunt at ¶ 8. Appellant‘s argument that his plea was not knowingly, voluntarily, or intelligently entered rests not on any allegation that the trial court failed to comply with a specific portion of
{¶ 36} Appellant‘s cases to the contrary either do not support the propositions for which they are cited or are apparent fabrications (or very possibly hallucinated cases generated by one or more artificial intelligence services). In Nero, 56 Ohio St.3d 106 (1990), which actually exists, the Ohio Supreme Court reviewed the record and held that under the totality of the circumstances the trial court had substantially complied with
{¶ 37} Appellant‘s citation to State v. Stewart, 51 Ohio St.2d 86 (1977), is no more helpful than his reference to Nero. In Stewart, the defendant argued that the “trial court failed to advise him that in pleading guilty to murder (
{¶ 38} We agree with Shaker Heights that the remaining cases cited by appellant in support of this assignment of error appear to be fabrications or hallucinations. We therefore decline to consider any of the propositions for which
{¶ 39} Appellant‘s first assignment of error is overruled.4
C. Alleged Failure to Consider Collateral Consequences
{¶ 40} In his second assignment of error, appellant argues that the “trial court abused its discretion by failing to consider the substantial and ongoing collateral consequences of the conviction[.]” Appellant appears to be arguing that the trial court, when issuing its decision on his motion to withdraw, was required to specifically address certain “collateral consequences” that he deems “legally relevant,” such as “housing denial, employment barriers, firearm disability, reputational stigma, and enhanced sentencing exposure[.]” (Appellant‘s brief at p. 8.)
{¶ 42} Notably, appellant again cites cases that either do not stand for the propositions for which he offers them or that appear to be fabricated or hallucinated. State v. Francis, 2004-Ohio-6894, a real case, involved the interplay of
The General Assembly has apparently determined that due to the serious consequences of a criminal conviction on a noncitizen‘s status in this country, a trial court should give the
R.C. 2943.031(A) warning, and that failure to do so should not be subject to the manifest-injustice standard even if sentencing has already occurred.
{¶ 43} In State v. Sarkozy, 2008-Ohio-509, the Ohio Supreme Court held that the trial court had “completely failed” to comply with a portion of
{¶ 44} In short, we fail to see how Francis and Sarkozy aid appellant‘s argument that the trial court was required to specifically advise him of a panoply of collateral consequences at the time of the plea or that the trial court was required to issue findings of fact and conclusions of law (or any written opinion whatsoever) in ruling on his
{¶ 46} Appellant‘s second assignment of error is overruled.
D. Denial of Crim.R. 32.1 Motion Without a Hearing
{¶ 47} In his third assignment of error, appellant argues that the trial court “abused its discretion by denying [his]
{¶ 48} As we discussed in outlining the standard of review, in the context of a postsentence motion to withdraw a plea “‘a hearing is required only if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea[,]‘” and we review for an abuse of discretion. State v. Hubbard, 2025-Ohio-2150, ¶ 11 (8th Dist.), quoting Vihtelic, 2017-Ohio-5818, at ¶ 11 (8th Dist.). “Furthermore, a postsentence motion to withdraw a guilty plea is subject to denial without a hearing ‘when the record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents
{¶ 49} Our resolution of appellant‘s first assignment of error largely moots his third assignment of error. We must presume the regularity of proceedings in the trial court, including its advisements to appellant regarding his constitutional rights and his contemporaneous understanding of those rights, as well as the consequences of his plea.
{¶ 50} In addition, however, appellant failed to submit any “evidentiary documents” to demonstrate a manifest injustice entitling him to extraordinary relief. Appellant‘s motion was not accompanied by an affidavit from him or from anyone else. Moreover, the only “facts” alleged by defendant are his claims that the trial court did not advise him of certain collateral consequences that have allegedly flowed from his conviction, including difficulties obtaining housing, social stigma, enhanced sentencing in unrelated criminal proceedings, and federal firearm disabilities. Once again, appellant supplied no affidavits to establish the supposed collateral consequences that are tangible and subject to verification (for example, an applied sentencing enhancement).
{¶ 51} Moreover, this court has held that “a trial court is not required to inform an accused about collateral consequences to a plea, including potential outcomes that do not have an effect on the sentence when the judge accepts the plea.” State v. Resto, 2020-Ohio-4299, ¶ 26 (8th Dist.), citing State v. Moore, 1998 Ohio App. LEXIS 3293, *4 (8th Dist. Aug. 27, 1998), and State v. Beatty, 2000 Ohio App. LEXIS 5821, *10 (8th Dist. Dec. 14, 2000). “‘[I]n order for a plea to be knowing, voluntary, and intelligent, a defendant must only be made aware of the direct consequences of the plea, and the trial court is not required to inform the defendant of all possible collateral consequences.‘” (Emphasis added.) State v. Radovanic, 2013-Ohio-4157, ¶ 15 (10th Dist.), quoting State v. Dumas, 2008-Ohio-4896, ¶ 14 (8th Dist.). A direct consequence of a plea is “an immediate and automatic consequence.” (Cleaned up.) Radovanic at ¶ 15.
{¶ 52} We agree with Shaker Heights that all of the consequences appellant lists, with the possible exception of the federal firearms disability, are collateral rather than direct consequences of his plea. This includes the potential for sentencing enhancement. See, e.g., King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (“A conviction‘s possible enhancing effect on subsequent sentences has been held to be merely a collateral consequence of a guilty plea, about which a defendant need not be advised, even when there was a pending investigation into the charge upon which the subsequent sentence was based.“).
{¶ 53} As for the firearms disability, appellant‘s arguments are foreclosed by
{¶ 54} In what has clearly become a pattern, appellant cites one real case that does not stand for the proposition offered, State v. Xie, 62 Ohio St.3d 521 (1992). Xie, however, addressed “guidelines for a trial court to use when ruling on a
{¶ 55} The two additional cases appellant cites appear to be hallucinations or fabrications. We decline to address the associated propositions of law.
{¶ 56} The trial court did not abuse its discretion in denying appellant‘s postsentence motion to withdraw without a hearing. Appellant‘s third assignment of error is overruled.
E. Application of App.R. 9(E)
{¶ 57} In his fourth assignment of error, appellant contends that the trial court “erred by failing to correct or reconstruct the destroyed plea record under
{¶ 58} This assignment of error is likewise resolved in large part by our disposition of appellant‘s first assignment of error. Thanks to a delay of more than 20 years, occasioned exclusively by appellant‘s lack of diligence, he alone was to blame for the loss of any transcript or recording of the plea proceedings.
{¶ 59} In addition, as discussed above, appellant took no steps to resolve the record deficiency through either
{¶ 60} Finally, appellant‘s argument regarding the trial court‘s compliance with
{¶ 61} This court denied appellant‘s
{¶ 62} Appellant‘s fourth assignment of error is overruled.
{¶ 63} 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 out of this court directing the Shaker Heights Municipal 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.
DEENA R. CALABRESE, JUDGE
MARY J. BOYLE, P.J., and MICHAEL JOHN RYAN, J., CONCUR