STATE OF OHIO, Plaintiff-Appellee -vs- JOSEPH F. HOLSON, JR., Defendant-Appellant
Case No. 13 COA 020
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 3, 2014
2014-Ohio-365
Hon. John W. Wise, P. J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 09 CRI 066. JUDGMENT: Affirmed.
For Plaintiff-Appellee
RAMONA J. ROGERS PROSECUTING ATTORNEY PAUL T. LANGE ASSISTANT PROSECUTOR 110 Cottage Street, Third Floor Ashland, Ohio 44805
For Defendant-Appellant
JAMES H. BANKS Post Office Box 40 Dublin, Ohio 43017
Wise, P. J.
{¶1}. Appellant Joseph F. Holson, Jr. appeals from the decision of the Court of Common Pleas, Ashland County, which denied his motion to withdraw his 2010 guilty plea and vacate his corresponding conviction and sentence for complicity in the illegal use of a minor in nudity-oriented material and for possession of cocaine. The relevant facts leading to this appeal are as follows.
{¶2}. On February 19, 2009, law enforcement officers entered the residence of appellant and Colleen L. Pepper on Township Road 1335 in Ashland, Ohio, pursuant to a search warrant. Officers found cocaine, prescription drugs (not prescribed to either appellant or Pepper), and various items of drug paraphernalia. Officers also found a number of homemade pornographic videos which had been filmed in the house.
{¶3}. One of the videos depicts appellant and Pepper viewing a seventeen-year-old female, M.B., who is seen trying on lingerie and in various states of nudity. At points in the video, close-up filming was conducted showing the victim‘s anus, vagina, and breasts. M.B. later provided a statement to investigating police officers indicating that she was seventeen years old at the time of the video and was a junior in high school.
{¶4}. In August 2009, with the assistance of retained counsel, appellant pled guilty in the Ashland County Common Pleas Court to a bill of information containing one count of complicity to illegal use of a minor in nudity-oriented material, a felony of the fifth degree, and one count of possession of cocaine, also a felony of the fifth degree.
{¶6}. On January 31, 2013, over three years after he was sentenced, appellant filed a “motion to withdraw guilty plea and vacate conviction and sentence.” On February 8, 2013, the State filed a response to the motion.
{¶7}. On February 13, 2013, the trial court denied part of appellant‘s motion without a hearing and scheduled the remaining portions for a hearing.1
{¶8}. In May 2013, the trial court conducted a hearing in regard to appellant‘s decision to subpoena the Ashland County Prosecutor to testify regarding the motion to withdraw guilty plea. Following this hearing, the trial court ordered the parties to file additional legal memoranda. On May 28, 2013, the State filed a memorandum of law and therein requested that the court deny the remaining claims in appellant‘s motion to withdraw guilty plea without conducting a hearing.
{¶9}. On June 10, 2013, the trial court overruled, in its entirety, appellant‘s motion to withdraw guilty plea and vacate conviction and sentence.
{¶10}. Appellant presently raises the following three Assignments of Error:
{¶11}. “I. THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEAS AND VACATE HIS CONVICTIONS DESPITE THE FACT THAT BOTH APPELLANT AND
{¶12}. “II. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA AND VACATE HIS CONVICTIONS PURSUANT TO R.C. SECTION 2953.21 AND FURTHER ERRED IN FINDING THAT THE APPELLANT ASSERTED HIS SAID MOTION BASED SOLELY ON CRIMINAL RULE 32.1.
{¶13}. “III. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SET ASIDE HIS GUILTY PLEAS TO CORRECT MANIFEST INJUSTICE PURSUANT TO CRIMINAL RULE 32.1 BASED UPON NEWLY DISCOVERED EVIDENCE AND/OR INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶14}. We will address appellant‘s second assigned error first.
II.
{¶15}. In his Second Assignment of Error, appellant argues the trial court erred in failing to treat his motion to withdraw guilty plea and vacate his conviction and sentence as a petition for post-conviction relief, and in failing to grant same. We disagree.
{¶16}. The Ohio Supreme Court has clearly held that post-conviction relief pursuant to
{¶17}. The aforesaid time requirements for PCR petitions are set forth in
{¶18}. “Except as otherwise provided in
{¶19}. In turn,
{¶20}. “Whether a hearing is or is not held on a petition filed pursuant to
{¶21}. “(1) Both of the following apply:
{¶22}. “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of
{¶23}. “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶24}. “(2) The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing was performed under
{¶25}. “***”
{¶26}. In the case sub judice, the record clearly reveals that appellant‘s motion to withdraw plea and vacate conviction was filed more than three years after the court issued its entry of sentence. Thus, appellant would have had to rely on
{¶27}. We therefore hold the trial court did not err in declining to treat appellant‘s motion to withdraw guilty plea as a petition for post-conviction relief.
{¶28}. Appellant‘s Second Assignment of Error is overruled.
I., III.
{¶29}. In his First Assignment of Error, appellant contends the trial court erred in declining to conduct an evidentiary hearing on his motion to withdraw his 2010 guilty plea and vacate his conviction and sentence. In his Third Assignment of Error, appellant argues the trial court erred in failing to grant said motion. We disagree on both counts.
{¶30}.
{¶31}. Our review of the trial court‘s decision under
{¶32}. A hearing on a post-sentence motion to vacate a prior plea is not required unless the facts as alleged by the defendant, if accepted as true, would require the plea to be withdrawn. See City of Uhrichsville v. Horne (Dec. 26, 1996), Tuscarawas App. No. 96AP090059, 1996 WL 753208. Generally, a self-serving affidavit of the movant is insufficient to demonstrate manifest injustice. See State v. Wilkey, Muskingum App.No. CT2005-0050, 2006-Ohio-3276, ¶ 26.
Age of Victim
{¶33}. Appellant‘s first basis for withdrawal of his guilty plea centers on the age of M.B., the victim of the pornographic video which formed the basis of the charge of complicity in the illegal use of a minor in nudity oriented material. Attached to the motion to withdraw plea is an affidavit appearing to be executed by M.B. on October 24, 2012, in which she avers that the filming at issue happened after her eighteenth birthday, which took place in early 2008. Another affidavit, appearing to be executed by J.S., the older sister of M.B., also contains an averment that M.B. was over the age of eighteen when the video was made.
Ineffective Assistance of Trial Counsel
{¶35}. Appellant, via his own affidavit attached to the motion to withdraw his plea, also presented numerous allegations of ineffective assistance of trial counsel related to the entry of his plea. These included, inter alia, claims that his trial counsel: (1) failed to review the search warrant affidavit, obtain discovery, and investigate the age of the victim; (2) gave him erroneous information upon which he relied in pleading; (3) assured him he would only receive community control; (4) failed to advise him regarding property forfeiture; (5) failed to apprise him or inaccurately apprised him of the ramifications of a sex offender classification; (6) failed to inform him of additional restrictions stemming from his plea and conviction; (7) did not properly clarify the issue of additional potential charges by the prosecutor; (8) misled him regarding trial counsel‘s desire to run for a municipal judgeship; and (9) failed to advise him of his appellate rights.
{¶36}. The record before us contradicts a number of appellant‘s claims or, in the alternative, shows the trial court at multiple points ensured that appellant was informed of his rights. For example, appellant signed a waiver of rights and guilty plea form,
Additional Claims
{¶37}. Appellant also continues to urge that the trial court judge made his determinations based on “passion and prejudice” against him. Appellant‘s Brief at 17. However, as this issue has been redressed by the Ohio Supreme Court, we will not herein revive it.
{¶38}. Finally, appellant points out several claimed discrepancies or gaps in the pre-sentence investigation report, essentially using the PSI (which was not finalized until after the plea hearing) as a means of showing issues his trial counsel may have missed. We find none of these arguments persuasive under a “manifest injustice” standard. We further find no merit in appellant‘s speculative assertion that the trial court did not properly review the PSI in addressing the motion to withdraw plea.
{¶39}. Under the “manifest injustice” standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire, Licking App.No. 09-CA-132, 2010-Ohio-2566, ¶ 60, citing Smith, supra, at 264. The length of passage of time between the entry of a plea and a defendant‘s filing of a
{¶40}. In its response brief, the State asserts that appellant entered a negotiated plea to the two fifth-degree felonies, even though the nudity-oriented material charge could have been brought as a second-degree felony. In the review of an attempt to withdraw any such negotiated plea after the fact, we must weigh any imperfections in the process against the possibility that the defendant is avoiding a much harsher result by resolving the case. We also bear in mind that the trial court is under a duty pursuant to
{¶41}. Upon review of the entirety of appellant‘s claims in support of his motion to withdraw plea, we are unpersuaded the trial court in the case sub judice abused its
{¶42}. Appellant‘s First and Third Assignments of Error are therefore overruled.
{¶43}. For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Ashland County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.