State v. ShiflettState v. Shiflett
For Plaintiff-Appellee
KENNETH OSWALT PROSECUTING ATTORNEY 20 South Second Street Newark, Ohio 43055
For Defendant-Appellant
VERNON W. SHIFLETT PRO SE 7998 Hickory Ridge Court Lewis Center, Ohio 43035
Wise, J.
{¶1} Appellant Vernon W. Shiflett appeals the denial of his pro se motion to withdraw plea pertaining to his 2005 conviction, in the Licking County Court of Common Pleas, on multiple counts related to the sale of unregistered securities. The relevant facts leading to this appeal are as follows.
{¶2} On October 30, 2003, the Licking County Grand Jury handed down a multi-count indictment against appellant on 107 charges, including securities violations, receiving stolen property, and engaging in a pattern of corrupt activity. The charges stemmed from appellant‘s involvement in two different schemes, one involving the sale of promissory notes and the other based on the sale of interests in partnerships.
{¶3} The trial court, subsequent to appellant‘s arraignment, severed the counts into two case numbers, 03CR00476 and 04CR00640.
{¶4} On February 16, 2005, in case 03CR00476, appellant pled guilty to twenty-six counts of selling unregistered securities (
{¶5} Also on February 16, 2005, in case 04CR00640, appellant pled no contest to nineteen counts of selling unregistered securities (
{¶7} On September 28, 2009, appellant filed a pro se motion to withdraw pleas, pursuant to
{¶8} Appellant timely filed a notice of appeal and herein raises the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY AND NO CONTEST PLEAS BECAUSE COUNSEL FAILED TO ACCURATELY EXPLAIN TO APPELLANT THE ELEMENTS OF THE OFFENSE AND POSSIBLE LEGAL DEFENSES AVAILABLE TO HIM AT THE TIME APPELLANT WAS PERSUADED TO ENTER HIS PLEAS, AND BECAUSE COUNSEL MISINFORMED APPELLANT THAT HE HAD NO LEGAL DEFENSE WHEN APPELLANT DID IN FACT HAVE A VIABLE LEGAL DEFENSE WHICH COULD POSSIBLY HAVE PERSUADED A JURY TO RETURN VERDICTS OF NOT GUILTY.
{¶10} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO WITHDRAW HIS PLEAS OF GUILTY AND NO CONTEST WHEN IT CONSTRUED APPELLANT‘S MOTION AS A PETITION FOR POST CONVICTION RELIEF AND HELD THAT THE STATUTES, RULES AND PROCEDURES FOR A PETITION FOR POST CONVICTION RELIEF APPLIED TO A MOTION TO WITHDRAW PLEA, WHEN APPELLANT‘S MOTION WAS CLEARLY CAPTIONED ‘MOTION TO WITHDRAW
I.
{¶11} In his First Assignment of Error, appellant contends the trial court erred in denying his motion to withdraw guilty and no contest pleas. We disagree.
{¶12}
{¶13} Thus, the standard upon which the trial court is to review a request for a change of plea after sentence is whether there is a need to correct a manifest injustice. State v. Marafa, Stark App.Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257, ¶ 8. Ineffective assistance of counsel can form the basis for a claim of manifest injustice to support withdrawal of a guilty plea pursuant to
{¶14} Appellant first directs us to
{¶15} The crux of appellant‘s argument for plea withdrawal is apparently based on his claim that his trial counsel failed to advise him to assert as a defense that appellant had relied on purported earlier consultations with other attorneys, prior to selling the promissory notes, that said notes were not required to be registered as securities. Thus, appellant argues, his trial attorneys failed to advise him to utilize a “reliance on advice of counsel” defense to challenge the allegation that he “knowingly and intentionally” sold unregistered securities in violation of former
{¶16} “ *** I never had an intention to steal money or to defraud anyone, and had went [sic] to great expense to determine if I was in compliance with Ohio and Federal law. I relied upon legal advice I was given and believed I was not violating any Ohio securities law. I really did not want to plead guilty. [Trial Counsel] Attorney Mooney told me that it was irrelevant that I had neither knowingly nor intentionally violated any law,
{¶17} Affidavit of Appellant, August 6, 2009, at paragraph 8.
{¶18} Our research has revealed scant discussion of “advice of counsel” defenses in Ohio criminal securities prosecutions. In a related vein, the Tenth District Court of Appeals, in Chiles v. M.C. Capital Corp. (1994), 95 Ohio App.3d 485, 642 N.E.2d 1115, held as follows: “ *** [A] person violates
{¶19} Nonetheless, generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. See State v. Patterson, Stark App. No. 2003CA00135, 2004-Ohio-1569, ¶ 20, citing State v. Laster, Montgomery App. No. 19387, 2003-Ohio-1564. We find the only other relevant documents attached to appellant‘s motion to withdraw are copies of transcripts from his plea hearing and copies of five brief letters to appellant from Attorney Jeffrey Catri, dated April, July and November 2000. In these letters, Catri opines that appellant‘s “DMR,” “MDR,” “RDM 12” and “Verndor 12” limited liability partnerships did not require registration under federal and Ohio law. While these letters might carry some weight in a potential advice-of-counsel defense concerning the partnership-based counts, they fall far short of the
{¶20} Furthermore, we are mindful in the case sub judice that although appellant was indicted in 2003, nearly all the events surrounding the unregistered securities offenses stem from 1999 and 2000, approximately ten years prior to appellant‘s filing of his
{¶21} Accordingly, upon review, we find the trial court acted within its discretion in concluding that appellant had failed to meet his burden of demonstrating a manifest injustice warranting withdrawal of his 2005 pleas. We therefore find no reversible error
{¶22} Appellant‘s First Assignment of Error is overruled.
II.
{¶23} In his Second Assignment of Error, appellant argues the trial court erred in construing his motion to withdraw plea as a petition for post-conviction relief.
{¶24} Appellant correctly points out that in State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, the Supreme Court of Ohio held that the specific time limits of
{¶26} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
/S/ JOHN W. WISE___________________
/S/ W. SCOTT GWIN__________________
/S/ WILLIAM B. HOFFMAN_____________
JUDGES
JWW/d 714
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to appellant.
/S/ JOHN W. WISE__________________
/S/ W. SCOTT GWIN_________________
/S/ WILLIAM B. HOFFMAN____________
JUDGES