STATE OF OHIO, Plaintiff-Appellee, v. LARRY A. PISHNER, JR., Defendant-Appellant.
CASE NO. 2021-P-0063
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
Decided: June 21, 2022
[Cite as State v. Pishner, 2022-Ohio-2099.]
THOMAS R. WRIGHT, P.J.
Criminal Appeal from the Court of Common Pleas, Trial Court No. 2016 CR 00512. Judgment: Affirmed
Seneca Konturas, P.O. Box 662, Aurora, OH 44202 (For Defendant-Appellant).
OPINION
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Larry A. Pishner, Jr., appeals the judgment denying his motion to withdraw his guilty plea. We affirm.
{¶2} In 2016, Pishner was charged with felonious assault, two counts of attempted murder, and domestic violence. These charges stemmed from a violent altercation between Pishner and his then wife. Thereafter, one count of attempted murder was dismissed.
{¶3} Subsequently, pursuant to a plea agreement, Pishner entered a guilty plea to one count of felonious assault, a felony of the second degree in violation of
{¶4} On December 20, 2019, Pishner filed a post-sentence motion to withdraw his plea, arguing that defense counsel was ineffective for failing to seek competency and mental health evaluations. Following a hearing, the trial court denied the motion.
{¶5} On May 17, 2021, Pishner filed a “motion to withdraw guilty plea after sentence
{¶6} The trial court summarily denied Pishner‘s May 17, 2021 motion without hearing.
{¶7} Pishner advances two assigned errors. Relative to both assigned errors, we note at the outset that Pishner raised seven grounds for relief in his motion, but only the first two of these grounds are based upon discovery of the body camera footage. On appeal, Pishner‘s arguments are premised on the body camera footage. Accordingly, we limit our review to the denial of Pishner‘s motion insofar as he relied on the body camera footage.
{¶9} Mindful of the limited basis of Pishner‘s appeal and the distinction between petitions for postconviction relief and motions to withdraw guilty pleas, we proceed to discuss Pishner‘s assigned errors, the first of which states:
{¶10} “The trial court erred in denying Mr. Pishner‘s
{¶11}
{¶12} Postconviction petitions “filed under
{¶13} Pishner acknowledges that his motion was not timely filed under
{¶14} Therefore, Pishner cannot meet the requirements of
{¶15} In his second assigned error, Pishner maintains:
{¶17}
“A manifest injustice standard is an extremely high standard, which permits withdrawal of a plea only in extraordinary cases.” [State v. Gibson, 11th Dist. Portage No. 2007-P-0021, 2007-Ohio-6926, ¶ 20], quoting State v. Allen, 8th Dist. Cuyahoga No. 86684, 2006-Ohio-3164, 2006 WL 1705134, ¶ 10. “The manifest injustice standard ‘comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.‘” [Gibson at ¶ 20], quoting State v. Thomson, 6th Dist. Lucas No. L-05-1213, 2006-Ohio-1224, 2006 WL 664246, ¶ 48, citing State v. Woods, 8th Dist. Cuyahoga No. 82120, 2003-Ohio-2475, 2003 WL 21101507, ¶ 16.
“The burden is on the defendant to establish the existence of such injustice. * * * ‘The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.‘” [Gibson] at ¶ 21, quoting Thomson at ¶ 49, citing State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
“The motion [to withdraw a guilty plea] is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant‘s assertions in support of the motion are matters to be resolved by that court.” Id. at ¶ 22, quoting State v. Gegia, 11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, 2004 WL 574623, ¶ 20, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The phrase ‘abuse of discretion’ is one of art, connoting judgment exercised by a court, which does not comport with reason or the record.” State v. Petway, 11th Dist. Lake No. 2016-L-084, 2017-Ohio-7954, 2017 WL 4335274, ¶ 7, citing State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925).
State v. Ober, 11th Dist. Portage Nos. 2018-P-0034 & 2018-P-0035, 2019-Ohio-843, ¶ 14-16.
{¶18} “[I]f a defendant shows that he or she did not enter a plea knowingly, intelligently or voluntarily, the defendant may establish a manifest injustice sufficient to warrant withdrawal of the guilty plea under
In the present case, newly discovered evidence has become available by means of a freedom of request (sic.) by Defendant‘s family and military friends. This evidence establishes the events that transpired were not factually stated by the State. The Defendant requested body camera evidence numerous times, and such evidence was not produced or entered into the record. The evidence was made believed to not exist, which prejudiced the Defendant by the State‘s withholding of requested evidence. * * *
(Emphasis added.) Accordingly, the factual predicate for Pishner‘s claim of ineffective assistance of counsel advanced in his second assigned error is inconsistent with his motion, and we cannot say the trial court erred by failing to grant his motion on this basis.
{¶20} Pishner‘s motion suggests that the withholding of the video footage constituted a violation of his due process rights pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
“[A] prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence.” United States v. Olsen, 737 F.3d 625, 628 (9th Cir.2013) (Kozinski, C.J., dissenting), citing Brady [at 87]. The same due process violation occurs when the prosecution suppresses evidence that bears upon the credibility of a government witness. Id., citing Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
State v. Trimble, 11th Dist. Portage No. 2015-P-0038, 2016-Ohio-1307, ¶ 26. We note that some cases question whether a movant may demonstrate a manifest injustice based upon an alleged Brady violation premised on suppression of purportedly exculpatory evidence. See State v. Riley, 4th Dist. Washington No. 16CA29, 2017-Ohio-5819, ¶ 31. However, we do not reach this issue here, because, as set forth above, Pishner‘s merit brief abandons the factual predicate for a Brady violation, i.e., the suppression of evidence by a prosecutor.
{¶21} Nonetheless, we have reviewed the video footage and Pishner‘s allegations concerning contradictory or incomplete police reports and statements. The video seemingly corroborates Pishner‘s allegations that he relatively quickly opened the door for police officers, that he was injured, that he made an oral statement to officers regarding the reasons for the altercation, that he expressed despondence, and that the officers removed blood evidence.
{¶22} However, Pishner‘s motion indicates that he was aware of these facts through his personal knowledge or police reports prior to entering his plea, and the video serves as corroborating evidence. Although Pishner believes that corroboration of these facts would have supported only a lesser charge, none of these facts necessarily negate the elements of second-degree felonious assault. See
{¶24} Accordingly, Pishner has failed to establish that the trial court erred in denying his post-sentence motion to withdraw his guilty plea, and his second assigned error lacks merit.
{¶25} The judgment is affirmed.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.