State v. BarrettState v. Barrett
Rendered on September 29, 2011
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Nicholas E. Barrett, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, Nicholas E. Barrett, appeals pro se from the judgment of the Franklin County Court of Common Pleas denying his motion to withdraw guilty plea pursuant to
{¶3} On April 4, 2007, appellant was indicted by a Franklin County Grand Jury on two counts of felonious assault with specification, one count of tampering with evidence, and onе count of having a weapon while under disability (“WUD“). On August 6, 2007, appellant entered pleas of guilty to one count of tampering with evidence and one count of WUD. Prior to sentencing, appellаnt filed a motion to withdraw guilty plea, which was granted by the trial court on January 18, 2008.
{¶4} On April 28, 2008, appellant entered pleas of guilty to two counts of felonious assault without specification, both seсond-degree felonies in violation of
{¶5} On January 13, 2009, a request for probation revocation was filed. On January 30, 2009, though finding appellant to be in violation of his probation, the trial court permitted appellant to continue on probation with additional conditions. On October 2, 2009, another request for probation revocation was filed, and on November 6, 2009, a resentencing hearing was held. At this time, the trial court imposed seven years on еach of the felonious assault convictions to be served concurrently, and four years on the WUD conviction to be served consecutively, for an aggregate sentence of 11 years to be served consecutively to case No. 08CR-2168. Additionally, appellant was awarded 217 days of jail-time credit.
{¶6} On June 11, 2010, asserting his trial counsel was ineffective, appellant filed a motion to withdraw his previously entered guilty pleas pursuant to
[1.] The trial court erred in binding the defendant-appellant over for two (2) counts of felonious assault and one сount of having [a] weapon under disability.
[2.] A trial court does have the subject matter jurisdiction over ineffective assistance of counsel.
{¶7} The arguments made under each assignment of error аre unclear. Therefore, we will address both assignments of error as one and treat them as an assertion that the trial court abused its discretion in overruling appellant‘s motion to
{¶8} “Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a misсarriage of justice or is inconsistent with the demands of due process.” State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶5. ” ‘[I]t is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.’ ” State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-3656, ¶7, quoting State v. Smith (1977), 49 Ohio St.2d 261, 264. A defendаnt seeking to withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attached to the motion. State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499.
{¶9} 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. Williams, citing State v. Kent, 10th Dist. No. 03AP-722, 2004-Ohio-2129.
{¶10} A trial court‘s decision to deny a post-sentence motion to withdraw a plea of guilty and the decision whether to hold a hearing on the motion are subject to review for abuse of discretion. Smith. “The term ‘abuse of discretion’ connotes more than an error
{¶11} In deciding a
{¶12} In the trial court, appellant argued his post-sentence motion to withdraw guilty plea should be granted because his trial counsel was ineffective for not asserting that (1) his equal protection rights were violated; (2) his speedy trial rights were violated; and (3) the indictment was defective. On appeal, appеllant does not raise these issues, but, instead, contends in a conclusory fashion that his trial counsel was ineffective because appellant should have been convicted of aggravаted menacing and WUD, rather than felonious assault and WUD. We ascertain that appellant is asserting two reasons for this contention: (1) aggravated menacing is a lesser-included offense of felonious assault, therefore, the trial court should have convicted him of aggravated menacing; and (2) after he discovered the two women were in the vehicle, “the appellant shot at the vehicle ‘in a joking way’ only to just frighten the two (2) women, but [not] to ‘serious[ly] physically harm anybody!’ ” (Appellant‘s Brief at 7.) Therefore, appellant states that he seeks to withdraw his previously entered pleas “so that he can [accept], [agree] and [sign] the correct guilty plea agreement of [aggravated menacing with having weapon while under disability].” (Appellant‘s Brief at 1.)
{¶13} It is well-settled law that issues not raised in the trial court may not be raised for the first time on appeal because such issues are deemed waived. State v. Totten, 10th Dist. No. 05AP-278, 2005-Ohio-6210, ¶9, citing State v. Comen (1990), 50 Ohio St.3d 206, 211. Further, “it has been specifically held that failure to present an argument in a post-sentence motion to withdraw a guilty plea waives the argument for purposes of appeal.” Id., citing State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶33. Thus, appellant has waived his argument that because his convictions “should have been” for aggravated menacing rather than felonious assault his trial counsel was ineffective.
{¶14} Also, we note that appellant‘s motion to withdraw his guilty pleas was filed ovеr one and one-half years after his sentencing. Though not dispositive on its own, “[a]n undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing оf a motion under
{¶15} Moreover, a defendant seeking to withdraw a guilty plea post-sentencе bears the burden of establishing manifest injustice based on specific facts either contained in the record or supplied through affidavits attached to the motion. Orris at ¶8; Smith at paragraph one of the syllabus. The good faith, credibility, and weight to be given to assertions made by a defendant in support of a motion to withdraw a guilty plea are matters to be resolved by the trial court. State v. Smith, 10th Dist. No. 07AP-985, 2008-Ohio-2802, ¶10. While aрpellant attached an affidavit to his motion stating that he believed his counsel was ineffective, the affidavit contains no statements regarding the specific allegations made to this cоurt on appeal. Additionally, a self-serving affidavit made by the moving party is generally not sufficient to demonstrate manifest injustice. Id.; State v. Moncrief, 10th Dist. No. 08AP-153, 2008-Ohio-4594, ¶13.
{¶17} For all of the above reasons, we find appellant‘s motiоn to withdraw guilty plea failed to demonstrate a manifest injustice had occurred. Accordingly, appellant‘s two assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.