State v. GilbreathState v. Gilbreath
THOMAS M. KOLLIN, Atty. Reg. No. 0095950, 2290 Lakeview Drive, Suite A, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant
OPINION
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On December 14, 2017, a Clark County grand jury returned an indictment charging Gilbreath with single counts of failure to comply with the order or signal of a police officer, vandalism, obstructing official business, and felonious assault of a peace officer. The charges arose after Gilbreath engaged in a high speed chase with Springfield police officers on the night of November 22, 2017, and caused damage to a police cruiser.
{¶ 3} The police report prepared as a result of the incident indicated that on the night in question, police officers were investigating a report of suspicious activity involving a vehicle in the area of Sherman Avenue and Farlow Street in Springfield, Ohio. After the investigating officers arrived at the scene, they observed the subject vehicle stopped in front of a house on Sherman Avenue; the officers parked their police cruisers both at the front and rear of the vehicle. When one of the officers attempted to exit his cruiser to approach the vehicle, the driver, later identified as Gilbreath, put the vehicle into reverse and hit the back of the cruiser, causing the officer to have to jump back into the cruiser to avoid being hit. After hitting the police cruiser, Gilbreath drove away and led the officers on a high-speed chase until he crashed into a vehicle parked on West Euclid
{¶ 4} On June 14, 2018, Gilbreath, who was represented by counsel, entered a guilty plea to a reduced charge of attempted felonious assault of a peace officer in violation of
{¶ 5} Over a year later, on June 11, 2020, Gilbreath filed a pro se motion to withdraw his guilty plea; a supporting affidavit and the police report were attached to the motion. In the motion, Gilbreath argued that his guilty plea should be vacated based on ineffective assistance of counsel. Specifically, Gilbreath argued that his trial counsel provided ineffective assistance because counsel induced him to plead guilty to attempted felonious assault of a peace officer, an offense which Gilbreath claimed he could not have been convicted of at trial. Gilbreath claimed that he could not have been convicted of attempted felonious assault because the police report showed that he was acting “under
{¶ 6} Gilbreath now appeals from the trial court‘s decision denying his post-sentence motion to withdraw guilty plea, raising a single assignment of error for review.
Assignment of Error
{¶ 7} Gilbreath contends that the trial court erred by denying his post-sentence motion to withdraw his guilty plea. We disagree.
{¶ 8} Appellate courts review a trial court‘s ruling on a motion to withdraw a guilty plea for abuse of discretion. State v. Rozell, 2018-Ohio-1722, 111 N.E.3d 861, ¶ 25 (2d Dist.), citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Most instances of abuse of discretion occur when a trial court makes a decision that is unreasonable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process that would support that decision.” Id. “‘Absent an abuse of discretion on the part of the trial court ***, its decision must be affirmed.‘” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, ¶ 11, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
{¶ 9} “Under
{¶ 10} A defendant may establish a manifest injustice “‘by showing that he did not enter the guilty plea in a knowing, intelligent, or voluntary manner.‘” State v. Leifheit, 2d Dist. Clark No. 2019-CA-78, 2020-Ohio-5106, ¶ 16, quoting State v. Riley, 4th Dist. Washington No. 16CA29, 2017-Ohio-5819, ¶ 18. (Other citations omitted.) “To ensure that a defendant is entering a felony plea knowingly, intelligently, and voluntarily, the trial court must engage the defendant personally and explain the rights set forth in
{¶ 11} In this appeal, Gilbreath does not specifically argue that the trial court failed to engage him personally and explain the rights set forth in
{¶ 12} Gilbreath also argues that his guilty plea should have been vacated due to his trial counsel‘s providing ineffective assistance. It is well established that “[i]neffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.” State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). As previously discussed, Gilbreath argued in his motion to withdraw his guilty plea that his trial counsel was ineffective because
{¶ 13} It is true that “‘felonious assault is reduced to aggravated assault if the offender is ‘under the influence of sudden passion or in a sudden fit of rage *** brought on by serious provocation occasioned by the victim.‘” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 33 (2d Dist.) quoting
{¶ 14} Contrary to Gilbreath‘s claim otherwise, the content of the police report in question did not support the offense of attempted aggravated assault; the police report did not establish serious provocation on the part of the investigating officers, as nothing in the police report indicated that the officers engaged in conduct that would have incited an ordinary person to use deadly force against them. The police report merely established that the officers parked their cruisers at the front and rear of Gilbreath‘s
{¶ 15} Furthermore, Gilbreath fails to consider the fact that he was originally charged with felonious assault of a peace officer, not attempted felonious assault of a peace officer, and that there were several other charges brought against him, including failure to comply with the order or signal of a police officer, vandalism, and obstructing official business, for which he could have been tried and possibly found guilty. Gilbreath‘s trial counsel, however, negotiated a favorable plea agreement that resulted in the State‘s dismissal of the charges for failure to comply, vandalism, and obstructing official business and reduction of the original charge of felonious assault to attempted felonious assault. In doing so, Gilbreath‘s trial counsel significantly lessened Gilbreath‘s sentencing exposure. Accordingly, we fail to see how counsel was ineffective in negotiating Gilbreath‘s guilty plea to attempted felonious assault of a peace officer.
{¶ 16} We also note that the affidavit Gilbreath attached to his motion to withdraw his guilty plea merely averred that he would not have pled guilty to attempted felonious assault of a peace officer but for his counsel‘s advice. By itself, such a self-serving affidavit is insufficient to demonstrate a manifest injustice warranting the withdrawal of his guilty plea. State v. Honaker, 10th Dist. Franklin No. 04AP-146, 2004-Ohio-6256, ¶ 9, citing State v. Laster, 2d Dist. Montgomery No. 19387, 2003-Ohio-1564 (“generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice“).
{¶ 17} For his final argument, Gilbreath contends that the trial court should have allowed him to withdraw his guilty plea, or, at the very least, should have held an evidentiary hearing on his motion to withdraw his guilty plea, based on: (1) the number of
{¶ 18} With regard to Gilbreath‘s age, at no point in time did Gilbreath ever argue before the trial court that his young age caused an issue that prevented him from knowingly, intelligently, and voluntarily entering his guilty plea. “‘It is settled law that issues raised for the first time on appeal and not having been raised in the trial court are not properly before this court and will not be addressed.‘” State v. Luther, 2d Dist. Montgomery No. 28908, 2021-Ohio-2697, ¶ 21, quoting State v. Schneider, 2d Dist. Greene No. 1995-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995). Therefore, because the trial court was not given the opportunity to consider the claim that Gilbreath‘s young age affected the knowing, intelligent, and voluntary nature of his guilty plea, it will not be addressed for the first time in this appeal. See State v. Becraft, 2017-Ohio-1464, 89
{¶ 19} All of the other circumstances argued by Gilbreath, i.e., the number of appellate counsels appointed in his case, the long duration of this appeal, and the fact that he received the maximum possible prison sentence, have no bearing on the validity of his guilty plea, as those matters could not have affected the knowing, intelligent, and voluntary nature of his plea. In fact, when ruling on Gilbreath‘s motion to withdraw his guilty plea, it would have been impossible for the trial court to even consider the number of appellate counsels appointed to Gilbreath or the duration of this appeal, since the appeal was not even in existence at the time the trial court ruled on Gilbreath‘s motion.
{¶ 20} For the foregoing reasons, we find that the trial court did not abuse its discretion in denying Gilbreath‘s motion to withdraw his guilty plea. The record establishes that the trial court reasonably determined that Gilbreath failed to demonstrate a manifest injustice warranting the withdrawal of his plea. Accordingly, Gilbreath‘s assignment of error is overruled.
Conclusion
{¶ 21} Having overruled Gilbreath‘s sole assignment of error, the judgment of the trial court is affirmed.
DONOVAN, J. and EPLEY, J., concur.
Ian A. Richardson
Thomas M. Kollin
Hon. Douglas M. Rastatter