{¶ 3} Subsequently, on November 6, 2003, the Stark County Grand Jury indicted appellant on five counts of attempted aggravated murder in violation of R.C.
{¶ 4} Thereafter, on December 10, 2003, appellant withdrew his former not guilty plea and pled guilty to all of the charges contained in the indictment. At the December 10, 2003, hearing, the trial court stated on the record, in relevant part, as follows:
{¶ 5} "THE COURT: Having said all this, I want you to understand what has been brought to my attention and approved and what I would do is between the Prosecutor's office and your attorney and discussions with you, you understand that *3 you're going to receive a prison sentence that's going to total here 20 years? You understand that?
{¶ 6} "DEFENDANT ROCKWELL: Yes I do.
{¶ 7} "THE COURT: And, again, from all the ranges of sentences that you could get here if you were going to go to trial, you could get a sentence that could be less, could get a sentence that could be much more depending on how the Court would determine and depending on what you were found guilty of. Do you understand?
{¶ 8} "DEFENDANT ROCKWELL: Yes, I do.
{¶ 9} "THE COURT: It says in essence, this is an agreed upon sentence. In return for your plea of guilty, the State has recommended the sentence, the Court has approved it. Do you understand it is a 20-year sentence?
{¶ 10} "DEFENDANT ROCKWELL: Yes I do."
{¶ 11} (T. December 10, 2003 at 12-13).
{¶ 12} As memorialized in a Judgment Entry filed on December 15, 2003, appellant was sentenced to an aggregate term of twenty years in prison.State v. Rockwell, No. 2004CA00193,
{¶ 13} Appellant failed to file a timely appeal, but was granted leave to file a delayed appeal. This Court appointed counsel to represent him.
{¶ 14} Appellant filed a pro se brief raising the following assignments of error:
{¶ 15} "1. Appellant was deprived of his Sixth Amendment right to trial by jury where his sentence exceeded the maximum permitted by statute in the absence of additional fact finding beyond that inherent in the guilty plea, and where the fact findings *4 were not made by a jury and Appellant was not advised that he had the right to have the additional fact-finding made by a jury.
{¶ 16} "2. The trial court erred and abused its discretion in imposing court costs against appellant who was adjudged indigent prior to sentencing, and then issuing a garnishment order, in violation of the Appellant's right to due process of law, as well as in violation of Ohio law."
{¶ 17} Appointed counsel filed a supplemental brief, raising the following assignments of error: "1. The trial court erred in sentencing the appellant to a term greater than the minimum; 2. The trial court erred in basing its sentence of a prison term for a first degree felony on facts that were not stipulated; 3. The trial court erred in sentencing the appellant to consecutive prison terms."
{¶ 18} On Sept. 26, 2005, this court affirmed the sentence, finding that "appellant was sentenced to the twenty year sentence that was recommended jointly by the defense and the prosecution."Rockwell, supra at ¶ 19. Because "the trial court imposed the agreed upon sentence and . . . the sentence did not exceed the maximum sentence," the court found there was no need to make the findings" otherwise required under R.C.
{¶ 19} Again, appellant failed to file a timely appeal to the Ohio Supreme Court, but filed a motion for leave to file a delayed appeal on Nov. 21, 2005. On Jan. 25, 2006, the court denied his motion for leave.State v. Rockwell (2006),
{¶ 20} On February 21, 2006, appellant filed a petition for writ of habeas corpus pursuant to
{¶ 21} On June 21, 2007 appellant filed a motion for judicial release per R.C.
{¶ 22} On October 5, 2007 appellant filed a motion to withdraw his plea of guilty in the trial court. The trial court, by judgment entry filed December 12, 2007, overruled appellant's motion stating: " . . . The defendant has not provided sufficient proof of being *6 promised judicial release. The record in this matter indicates that the defendant knew that his sentence would be twenty (20) years. Further, the defendant in the appellate process in previous pleadings never suggested that he was promised judicial release or that his counsel had informed him that he would receive judicial release in three (3) years. The defendant provides nothing except for his own personal affidavit to substantiate this fact. The record during the plea of guilty is silent concerning the defendant in any manner being considered for judicial release. To the contrary, the defendant was advised on several occasions that he would be receiving a twenty (20) years sentence. . . ."State v. Rockwell, Stark County Court of Common Pleas Case No. 2003-CR-1418, Judgment Entry, (filed Dec. 12, 2007), at 1.
{¶ 23} It is from the trial court's December 12, 2007 Judgment Entry that appellant appeals raising the following five assignments of error:
{¶ 24} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM A. POLICE UNFILLABLE [sic] PROMISE AND COERCED CONFESSION WHERE [SIC] THE RESULT OF AN INVOLUNTARY PLEA.
{¶ 25} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM B: COUNSEL'S RELAYED THREAT AND COERCED GUILTY PLEA.
{¶ 26} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM C: FAILURE TO *7 INFORM OF PROBATION INELIGIBILITY RESULTED IN A LESS THAN INTELLIGENT PLEA.
{¶ 27} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM D: LACK OF MENTAL CULPABILITY RESULTED IN A LESS THAN INTELLIGENT PLEA.
{¶ 28} "V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ITS DENIAL OR HOLD AN EVIDENTIARY HEARING ON APPELLANT'S CLAIM E: AFFIRMATIVE DEFENSES OF INSANITY AND INTOXICATION WHERE NOT RECOGNIZED RESULTED[sic] INEFFECTIVE ASSISTANCE OF COUNSEL."
{¶ 31} "(E) Determination and judgment on appeal. The appeal will be determined as provided by App. R. 11. 1. It shall be in sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form."
{¶ 32} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts and legal issues are more complicated. Crawford v. Eastland ShoppingMall Assn. (1983), 11 Ohio App. 3d 158.
{¶ 33} Further, we note a reviewing court is not authorized to reverse a correct judgment merely because it was reached for the wrong reason.State v. Lozier (2004),
{¶ 34} This appeal shall be considered in accordance with the aforementioned rules.
{¶ 36} A plea of guilty constitutes a complete admission of guilt. Crim. R. 11 (B) (1). "By entering a plea of guilty, the accused is not simply stating that he did the *9
discreet acts described in the indictment; he is admitting guilt of a substantive crime." United v. Broce (1989),
{¶ 37} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need only "substantially comply" with the rule when dealing with the non-constitutional elements of Crim. R. 11(C). State v. Ballard,
{¶ 38} "Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with non-constitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.[State v. Nero (1990),
{¶ 40} The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith (1977),
{¶ 41} Although a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made before sentencing, the same is not true if the request is made after the trial court has sentenced the defendant. State v. Xie (1992),
{¶ 42} With respect to statements made during change of plea hearings, the United States Supreme Court has stated, "the representation of the defendant, his lawyer, and the prosecutor in such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Machibroda v. UnitedStates (1962),
{¶ 43} Importantly, "an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim. R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion." State v.Bush,
{¶ 44} In the case at bar, appellant entered his plea in December 2003. Appellant's motion to withdraw that plea was filed nearly four (4) years later on October 5, 2007. Additionally, it is worth noting that appellant did not file the motion to withdraw until after: 1). this Court affirmed the trial court's judgment entry of conviction and sentence on direct appeal; 2). the Ohio Supreme Court overruled appellant's motion to file a delayed appeal; 3). the United States District Court denied his petition for writ of habeas corpus; and 4). the trial court overruled his motion for judicial release.
{¶ 47} In State v. Kapper (1983),
{¶ 48} "`As in the case of ineffective assistance of counsel, an allegation of a coerced guilty plea involves actions over which the State has no control. Therefore, the defendant must bear the initial burden of submitting affidavits or other supporting materials to indicate that he is entitled to relief. Defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review that shows that his plea was voluntary. A letter or affidavit from the court, prosecutors or defense counsel alleging a defect in the plea process may be sufficient to rebut the record on review and require an evidentiary hearing.' We find this rationale persuasive." Kapper,
{¶ 49} Additionally, Ohio courts recognize an exception to the doctrine of res judicata in post conviction proceedings when the petitioner presents new and competent evidence outside the record. See, e.g., State v. Elmore, 5th Dist. No. 2005-CA-32,
{¶ 50} The rationale is also persuasive in the context of a motion to withdraw guilty plea. The defendant who seeks to withdraw his guilty plea has the burden to demonstrate manifest injustice, and cannot rely solely on his self-serving assertions and allegations with respect to counsel's representation of him.
{¶ 52} Appellant has not factually substantiated his claim. Further, the record does not indicate that appellant has made any effort to show that he could not with reasonable diligence have discovered and produced evidence of alleged police coercion before he entered his plea or during his initial appeal to this Court.
{¶ 53} In the case at bar, appellant's bare assertions of coercion are self-serving and insufficient to show manifest injustice. See State v.Brown,
{¶ 55} "`A lawyer has a duty to give the accused an honest appraisal of his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.'" Brown v. UnitedStates (C.A.D.C. 1959),
{¶ 56} In the case at bar, appellant admitted that he had met with his attorney, discussed the case and the plea bargain, and was satisfied with the legal advice she had given him. Further appellant stated that no one had threatened him and that it was his voluntary choice to plead guilty. Indeed, appellant indicated that he understood all of the proceedings, the rights he was waiving, the implications of his plea and the sentence he would receive.
{¶ 57} Because appellant in this case failed to allege the kind of "prejudice" necessary to satisfy the second half of the Strickland v.Washington test, the appellant has not shown that the ultimate result that was reached was either unfair or unreliable. *16 The record of this case supports a finding that trial counsel was simply giving appellant an honest appraisal of his case.
{¶ 59} The record does not support appellant's contention that his guilty pleas were influenced by any alleged representations by trial counsel that he would be eligible to apply for judicial release. InState v. Nero (1990),
{¶ 60} "While the record in the instant case indicates that the trial judge did inform Nero of the constitutional rights he was waiving by pleading guilty, it is undisputed that the judge did not inform Nero, as Crim. R. 11(C) (2) (a) requires, that Nero was ineligible for probation. Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. Stewart, supra." Id. at 108,
{¶ 61} At neither, the plea portion of the hearing nor the sentencing phase of the hearing was there any mention, by either the trial court or trial counsel, regarding *17 appellant's eligibility for judicial release. The State indicated to the trial court that this was a negotiated plea. (T. at 3). Appellant agreed. (Id. at 12-13). The trial court further informed appellant, prior to accepting his plea of the maximum sentences for each offenses and the possibility that the sentences could be ordered to be served consecutively. (T. at 10-12). Appellant acknowledged that he understood. (Id.). Appellant acknowledged that the recommended sentence was for twenty years. (T. at 12-13). Appellant acknowledged to the trial court that, other than the recommendation of a twenty-year sentence no other promises were made. (T. at 13-14).
{¶ 62} At no time during either the plea or sentencing phase of the hearing, did appellant ask any questions regarding the penalties involved for the charges to which he was pleading guilty, nor did appellant inquire as to any possibilities for judicial release or applying for the same. Appellant made no mention of a promise of judicial release in the motion for judicial release that he filed with the trial court on June 21, 2007.
{¶ 63} Appellant had a powerful incentive to enter a guilty plea, even with the understanding that he would serve twenty years. Appellant was originally indicted on five counts of attempted aggravated murder in violation of R.C.
{¶ 64} Appellant does not maintain that he was told he would be eligible for judicial release only if he pleaded guilty, nor has he otherwise indicated any "special circumstances" that might support a reasonable inference that judicial release was particularly important.Hill,
{¶ 65} If, in fact, appellant subjectively held some such belief that he would be eligible for judicial release there is no evidence of it in the record or that such belief was essential to his decision to plead guilty. "[Petitioner] wants us to rely on his allegedsubjective impression of what his plea bargain was, rather than the bargain outlined in the record. The record in the case indicates that [Petitioner] responded negatively (and, he wants us to believe,untruthfully) to a judge's inquiry as to whether any promises had been made to him in order to get him to so plead.
{¶ 66} "If we were to rely on [Petitioner's] alleged subjective impression rather than the record, we would be rendering the plea colloquy meaningless, for any convict who alleges that he believed the plea bargain was different from that outlined in the record could withdraw his plea, despite his own statements during the plea colloquy (which he now argues were untruthful) indicating the opposite. This we will not do, for the plea colloquy process exists in part to prevent petitioner's such as Ramos from making the precise claim that is today before us. Where the court has scrupulously followed the required procedure, the defendant is bound by his statements in response to that court's inquiry." Ramos v. Rogers,
{¶ 67} We hold, therefore, that the totality of the circumstances indicates that the appellant knew he was ineligible for judicial release and was not prejudiced by the trial court's failure to comply with Crim. R. 11(C) (2). In the case at bar, the trial court substantially complied with the requirements of Crim. R. 11(C). State v. Nero, supra. E. Counsels Failure to Recognize Lack of Mental Culpability, Insanity and Intoxication
{¶ 68} Appellant contends in assignments of error four and five that his trial counsel was ineffective because she did not challenge or investigate the lack of mental culpability, insanity and intoxication as possible defenses at trial. Appellant contends that this failure rendered his plea involuntary. We disagree.
{¶ 69} In the context of a criminal trial a trial court's failure to hold a competency hearing does not rise to constitutional proportions unless the record contains sufficient indicia of incompetency. State v.Bock (1986),
{¶ 70} Under the doctrine of res judicata, a final judgment bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of *20
due process that the defendant raised or could have raised at trial or on appeal. State v. Szefcyk (1996),
{¶ 71} As the federal court has noted, appellant did not challenge the voluntary nature of his plea in either the delayed appeal in this Court or in the habeas petition in the federal court. Appellant was not only represented on his appeal as of right by different counsel, but appellant filed his own pro se brief on appeal. Appellant provides no explanation for not raising this issue in his appeal, in his writ of habeas corpus in the United States District Court or in his motion for judicial release filed in the trial court. Accordingly, appellant's claim is barred. *21
{¶ 72} Additionally, after a careful review of the record in the case at bar, we are satisfied that no evidence exists to suggest appellant was incompetent at the time he entered his negotiated plea in the case at bar.
2). Voluntary Intoxication.
{¶ 73} Appellant next claims that he was so intoxicated that he could not have formed the specific intent to commit the crimes with which he was charged. We disagree.
{¶ 74} A defendant may present non-expert testimony in an effort to prove that he was so intoxicated as to be mentally unable to intend anything ([i.e.] unconscious) [.]State v. Wilcox (1982),
{¶ 75} We have reviewed the evidence and find that there was sufficient evidence from which reasonable minds could find appellant acted with specific intent. Appellant admitted to the police that he had purchased the lighter fluid weeks earlier *22 because he had thought about committing the crimes earlier; he further admitted to parking his car on a nearby street and then walking to the residence; after appellant doused the home with lighter fluid and lighting a burner on the stove he left the residence and threw the empty cans of lighter fluid out the car window; after arriving home appellant listened to his police scanner; with scanner in hand appellant attempted to return to the scene, but decided not to return when he heard on the police scanner that the fire department and the police department were at the scene.
{¶ 76} There is nothing in the record of this case to suggest that appellant was so intoxicated as to be mentally unable to intend anything, i.e. unconscious. The mere fact that a defendant is intoxicated does not make him incapable of acting with purpose.State v. Huertas (1990),
{¶ 77} The record does not show that counsel either performed deficiently or prejudiced appellant by failing to pursue a voluntary-intoxication defense. State v. Campbell (2000),
3). Insanity.
{¶ 78} A plea of not guilty by reason of insanity is an affirmative defense that must be proven by a preponderance of the evidence. R.C.
{¶ 79} There is nothing in the record of this case to suggest that appellant suffered from a "severe mental disease or defect." Accordingly, based upon the record before us, counsel could have tactically decided that an insanity defense had no reasonable chance of success. Counsel need not raise every conceivable, tenuous defense on the vague hope that some jury might accept it.
{¶ 80} Further, the partial defense of diminished capacity is not recognized in Ohio. State v. Jackson (1972),
{¶ 81} The non-certified copies of appellant's medical records submitted by the appellant in support of his motion to withdraw his plea of guilty are dated September 3, 2003. The offenses are alleged to have occurred on September 30, 2003. The appellant presented no evidence as to how any condition occurring on September 3, 2003 affected the appellant on September 30, 2003 and continued to affect him at the time he entered his plea on December 10, 2003. Accordingly, the records are of marginal significance. "Evidence presented outside the record must meet some threshold standard of cogency' to advance the petitioner's claim beyond mere hypothesis." State v. Brown (Jan. 14, 2000), Lucas App. No.L-99-1251, quoting State v. Lawson (1995),
{¶ 82} Appellant has failed to establish a manifest injustice warranting the withdrawal of his guilty plea. State v. Smith (1977),
{¶ 83} Since appellant's claim was not supported by anything in the record, the trial court did not abuse its discretion in this case by overruling appellant's post-sentence motion to withdraw his negotiated guilty plea without first conducting an evidentiary hearing.
{¶ 84} Appellant's five assignments of error are overruled in their entirety. *25
{¶ 85} For the foregoing reasons, Common Pleas, Ohio, is affirmed.
*26Gwin, P.J., Edwards, J., and Delaney, J., concur.