State v. GripperState v. Gripper
Rendered on July 26, 2011
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Santi Gripper, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendant-appellant, Santi Gripper, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to withdraw his guilty plea. Defendant assigns a single error:
APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL LIED TO THE APPELLANT AND THE TRIAL COURT VIOLATED HIS FOURTEENTH AMENDMENT RIGHT WHEN IT REFUSED TO ALLOW THE
APPELLANT TO WITHDRAW HIS GUILTY PLEA BASED ON COUNSEL‘S INSUFFICIENT PERFORMANCE.
Because the trial court properly denied defendant‘s motion to withdraw his guilty plea, we affirm.
I. Facts and Procedural History
{¶2} On October 3, 2007, the Franklin County Grand Jury indicted defendant on one count of murder in violation of
{¶3} Nearly two years later, on April 28, 2010, defendant filed a motion for leave to file a delayed appeal, which this court denied. State v. Gripper (July 20, 2010), 10th Dist. No. 10AP-398 (Memorandum Decision). In the meantime, defendant on May 18, 2010 filed in the trial court a motion to withdraw his guilty plea pursuant to
{¶4} Defendant‘s sole assignment of error asserts the trial court erred when it denied defendant‘s motion to withdraw his guilty plea.
{¶5} A defendant may seek to withdraw a plea pursuant to
{¶6} Defendant bears the burden of establishing a manifest injustice based on specific facts in the record or facts supplied through affidavits attached to the motion. State v. Hagler, 10th Dist. No. 10AP-291, 2010-Ohio-6123, ¶7, citing State v. Orris, 10th Dist. No. 07AP-390, 2007-Ohio-6499. Because a
{¶7} Although the term “manifest injustice” has been variously defined, “it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary cases.” State v. Smith (1977), 49 Ohio St.2d 261, 264, citing United States v. Semel (C.A.Va. 1965), 347 F.2d 228, cert. denied, 382 U.S. 840, 86 S.Ct. 90. “A
{¶8} Initially, we note defendant did not file his motion to withdraw his guilty plea until nearly two years after his sentencing. “An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶9} Moreover, the reason defendant posits to support his motion lacks merit. Defendant seeks to withdraw his guilty plea because the trial court‘s failure to inform him he would be subject to post-release control if he were eventually released from prison created a manifest injustice such that his plea was not knowing, intelligent, and voluntary. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, paragraph two of the syllabus (stating that “[i]f the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with
{¶10} In denying defendant‘s motion to withdraw his guilty plea, the trial court correctly concluded post-release control under
{¶11} On appeal, defendant does not challenge the trial court‘s conclusion regarding post-release control. Instead, defendant raises additional issues he did not address in the trial court, suggesting the trial court erred in denying his motion to withdraw his guilty plea because his trial counsel rendered ineffective assistance of counsel. “Ineffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.” State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶14, citing State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶18. Because, however, defendant did not raise the ineffective assistance of counsel in the trial court, he waived this issue. State v. Burge (1993), 88 Ohio App.3d 91, 93, citing State v. Comen (1990), 50 Ohio St.3d 206, 211; State v. Linehan (Sept. 4, 1998), 2d Dist. No. 16841 (noting “[i]t is exiomatic that a litigant‘s failure to raise an issue in the trial court waives his right to raise that issue on appeal“).
{¶12} Even if we were to consider his argument, it lacks merit. Defendant contends his trial counsel was ineffective in (1) advising him he would receive, at most, a sentence of 10 years if he entered a guilty plea to the murder charge, (2) failing to fully explain the plea agreement to defendant who did not completely comprehend it due to his
{¶13} In the end, defendant is unable to point to anything in the record to support his claim of ineffective assistance of counsel. Despite his assertion that he did not understand the plea proceedings, the record of the plea and sentencing hearing indicates otherwise. The trial court specifically asked defendant whether he could “read and write the English language,” to which defendant replied, “Yes, sir.” (Tr. 4.) The trial court then inquired of defendant whether his attorney “explained everything to [him],” “answered all [his] questions,” and whether defendant was “satisfied with his counsel and his advice.” (Tr. 5.) Defendant answered affirmatively and on the record said his counsel explained the guilty plea form to him before he signed it.
{¶15} Although defendant also alleges on appeal he was unaware that by pleading guilty he was giving up his right to appeal his conviction, the record again does not support his argument. The trial court told defendant he was “giving up [his] right to trial” so “there won‘t be any appeal,” and defendant again stated he understood. (Tr. 8-9.) As a result, even if we were to consider his ineffective assistance of counsel contentions, they lack merit.
{¶16} In light of defendant‘s two-year delay in filing his motion to withdraw his guilty plea, the lack of merit in the argument he asserted in the trial court to support his motion, and his failure to raise in the trial court, or support with affidavits, his ineffective assistance of counsel claim, defendant did not demonstrate the manifest injustice needed to warrant withdrawing his guilty plea. Accordingly, the trial court did not abuse its discretion in denying defendant‘s motion to withdraw his guilty plea.
{¶17} For the sake of completeness, we also note the trial court did not err in failing to hold a hearing on defendant‘s motion to withdraw his guilty plea. Defendant
III. Disposition
{¶18} Accordingly, we overrule defendant‘s sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and CONNOR, JJ., concur.
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