State of Ohio, Plaintiff-Appellee, v. Wendell L. Callahan, Defendant-Appellant.
No. 22AP-221
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 17, 2022
2022-Ohio-4103
MENTEL, J.
(C.P.C. No. 16CR-341); (ACCELERATED CALENDAR)
On brief: Wendell L. Callahan, pro se.
APPEAL from the Franklin County Court of Common Pleas
DECISION
Rendered on November 17, 2022
MENTEL, J.
{¶ 1} Defendant-appellant, Wеndell L. Callahan, pro se, appeals from a March 15, 2022 decision and entry denying his motion for leave for an oral hearing and motion to withdraw his guilty plea.
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} By indictment filed March 1, 2016, plaintiff-appellee, State of Ohio, charged appellant with eight counts of aggravated murder in violation of
{¶ 4} On December 18, 2017, appellant, pursuаnt to a plea agreement, entered a plea of guilty to three counts of aggravated murder (Counts One, Four, and Seven), and aggravated burglary (Count Ten). The aggravated murdеr counts did not include the specifications asserted in the indictment. The remaining counts were dismissed nolle prosequi. The parties provided a joint sentence recommеndation of 66 years to life, which was adopted by the trial court. Specifically, the trial court sentenced appellant to “TWENTY (20) YEARS TO LIFE ON COUNTS ONE, FOUR AND SEVEN TO BE SERVED CONSECUTIVELY WITH EACH OTHER AND CONSECUTIVE TO SIX (6) YEARS ON COUNT TEN at the OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS.” (Capitalization sic.) (Dec. 26, 2017 Jgmt. Entry.) Apрellant did not file a direct appeal.
{¶ 5} On July 28, 2021, appellant filed a motion for leave for an oral hearing and motion to withdraw his guilty plea pursuant to Crim.R. 32.1. On August 4, 2021, appellant filеd a motion for leave to supplement his motion to withdraw his guilty plea. On August 11, 2021, the state filed a combined motion in opposition to appellant‘s motions. A reply brief was filed on August 27, 2021. Appellant filed a motion for leave to file an amended motion to withdraw his guilty plea instanter on September 13, 2021. On September 16, 2021, the state filed a memorandum in oppоsition to appellant‘s September 13, 2021 motion. A reply brief was filed on October 1, 2021.
{¶ 6} On March 15, 2022, the trial court denied appellant‘s motion to withdraw his guilty plea and motion for an oral hearing. The trial court first addressed appellant‘s claim that his prior trial counsel was ineffective based on lack of preparation. The trial court rejected appellant‘s claim finding the argument lacked merit and his affidavit, attached to the motion, was self-serving. (Mar. 15, 2022 at 4.) The trial court also concluded that appellant‘s claim of actual innocence was barred by res judicata as appellant had failed to assert this argument in a direct appeal. The trial court provided an аlternative analysis that, even if the argument was not barred by res judicata, appellant‘s claim of actual innocence lacked credibility and was not supported by the evidence.
{¶ 7} Appellant filed a timely notice of appeal on April 6, 2022.
{¶ 8} Appellant assigns the following as trial court error:
- Abuse of Discretion
- Ineffective Assistance Of Counsel
- Cumulative Effect Doctrine
(sic passim.)
III. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 9} In appellant‘s first assignment of error, he argues the trial court abused its discretion by failing to hold а hearing regarding his motion to withdraw his guilty plea.
{¶ 10} Pursuant to Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest 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.” It is well-established law that a motion tо withdraw a guilty plea after a sentence has been imposed will only be granted in cases of a manifest injustice. State v. Stumpf, 32 Ohio St.3d 95, 104 (1987). It is the defendant‘s burden to demonstrate the existence of the manifest injustice. State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-8139, ¶ 13, citing State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. ” ‘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.’ ” State v. Morgan, 10th Dist. No. 12AP-241, 2012-Ohio-5773, ¶ 10, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Given the high standard at issue, the granting of a motion to withdraw a guilty plea is only permitted in the most ” ‘extraordinary of cases.’ ” State v. Muscroft, 10th Dist. No. 20AP-423, 2021-Ohio-3342, ¶ 10, quoting State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 14, quoting Smith, 49 Ohio St.2d 261, 264 (1977).
{¶ 11} Whether to grant a motiоn pursuant to Crim.R. 32.1 falls within the sound discretion of the trial court. State v. Little, 10th Dist. No. 21AP-272, 2022-Ohio-1295, ¶ 10, quoting Smith at paragraph one of the syllabus. ” ‘[T]his court‘s review of the trial court‘s denial of a post-sentence motion to withdrаw a guilty plea or the decision not to hold a hearing is limited to a determination of whether the trial court abused its discretion.’ ” Little
{¶ 12} Upon review, we find the trial court‘s ruling denying appellant‘s motion for an oral hearing on his motion to withdraw his guilty plea was not an abuse of discretion. First, appellant‘s claims are precluded under the doctrine of res judicata as they could have been asserted on direct appeal. ” ‘It is wеll established by pertinent Ohio case law that claims submitted in support of a Crim.R. 32.1 motion to withdraw plea that could have been raised on direct appeal, but were not raised in direct appeal, are barred by res judicata.’ ” State v. Jordan, 12th Dist. No. CA2014-04-051, 2015-Ohio-575, ¶ 14, quoting State v. Hendrix, 12th Dist. No. CA2012-05-109, 2012-Ohio-5610, ¶ 11, quoting State v. Madrigal, 6th Dist. No. L-10-1142, 2011-Ohio-798, ¶ 16; State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59-60. There is no dispute that appellant failed to file a direct appeal of his conviction and sentenсe in this case. Because appellant could have raised these issues on direct appeal, but did not, this issue is precluded by res judicata. Arguendo, even if this argument was nоt barred by res judicata, the record does not support appellant‘s claim. Most notably, the motion relies heavily on appellant‘s self-serving affidavit. The affidavit lacks credibility and is not supported by other available evidence in the record. Without additional evidence to support appellant‘s claim that a manifest injustice occurred, it is more than reasonable that the trial court did not find it necessary to hold an oral hearing on this matter. ” ‘An evidentiary hearing on a post-sentence motion to withdrаw a guilty plea is not required if the “record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifеst injustice.” ’ ” State v. Miranda, 10th Dist. No. 13AP-271, 2013-Ohio-5109, ¶ 21, quoting State v. Buck, 9th Dist. No. 04CA008516, 2005-Ohio-2810, ¶ 14, quoting State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ¶ 12. Accordingly, the trial court did not abuse its discretion in denying appellant‘s motion for an oral hearing on this matter. Appellant‘s first assignment of error is overruled.
{¶ 13} In appеllant‘s second assignment of error, he argues the counsel was ineffective by failing to request a competency evaluation or hearing on this issue.
{¶ 14} As an initial matter, we find that, for the first time on appeal, appellant has raised the issue of a competency evaluation. “A first principle of appellate jurisdiction is that a party оrdinarily may not present an argument on appeal that it failed to raise below.” State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Failure to raise an issue at the trial court level waives it on appeal. State v. Villareal, 10th Dist. No. 21AP-588, 2022-Ohio-1473, ¶ 14 (further citation omitted.). Because appellant failed to raise this issue with the trial court, we conclude the issue was waived on appeal.1 Accordingly, appellant‘s second assignment of error is overruled.
C. Appellant‘s Third Assignment of Error
{¶ 15} In appellant‘s third assignment of error, he argues that the cumulative error doctrine warrants withdraw of his guilty plea as these purported errоrs deprived him of his constitutional rights.
{¶ 16} “Under the doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors * * * deprives a defendant of thе constitutional right to a fair trial even though each of the errors does not individually constitute cause for reversal.” State v. Allen, 8th Dist. No. 102385, 2016-Ohio-102, ¶ 53. After a review of the entire record as well as consideration of appellant‘s identified assignments of error, we find no cumulative errors that deprived appellant of his constitutional rights. As such, we find no basis for considering, let alоne finding, cumulative error in this case. State v. Hall, 10th Dist. No. 13AP-747, 2014-Ohio-1647, ¶ 28, citing Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 124, citing State v. Garner, 74 Ohio St.3d 49, 64 (1995) (“Because we failed to find any error in our discussion of appellant‘s * * *
{¶ 17} As such, appellant‘s third assignment of error is overruled.
IV. CONCLUSION
{¶ 18} Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, and JAMISON, JJ., concur.