State v. TunstallState v. Tunstall
Rendered on the 8th day of October, 2010.
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DONNIE D. TUNSTALL, #42966-061, United States Penitentiary Atlanta, Post Office Box 150160, Atlanta, Georgia 30315 Defendant-Appellant, pro se
BROGAN, J.
{¶ 1} Donnie Tunstall appeals pro se from the trial court‘s denial of his
{¶ 2} In his sole assignment of error, Tunstаll contends the trial court erred in overruling his motion without conducting an evidentiary hearing.
{¶ 4} On appeal, Tunstall advances the following three arguments in support of his claim that the trial court erred in overruling his motion without a hearing:
{¶ 5} “1. A motion to withdraw a guilty plea and vacatе the judgment of guilty based on a violation of the defendant‘s constitutional rights should be granted when the defendant contends that he did not knowingly, intelligently, and voluntarily enter into the plea and there is no evidence to the contrary.
{¶ 6} “2. A trial court should hold a hearing on a claim of a violation of a defendant‘s constitutiоnal rights when there are no transcripts available for review.
{¶ 7} “3. A trial court should hold a hearing when ineffective assistance of counsel is alleged by a defendant after entry of a guilty plea.”
{¶ 9} We review a trial court‘s ruling on a post-sentence motion to withdraw a plea and its decision whether to grant a hearing for an abuse of discretion. Xenia v. Jones, Greene App. No. 07-CA-104, 2008-Ohio-4733, ¶6. Under
{¶ 11} With the foregoing guidelines in mind, we find Tunstall‘s arguments to be unpersuasive. As a threshold matter, we note that he entered his guilty pleas in 1995 and did not seek to vacate them until 2009. Notwithstanding the arguments in Tunstall‘s affidavit, this fourteen-year delay militates strongly against his efforts to undo the finality that attached long ago.
{¶ 12} Regarding Tunstall‘s first argument about the knowing, intelligent, and voluntary nature of his pleas, the absenсe of a plea transcript means we must presume the regularity of proceedings below. State v. Wright, Montgomery App. Nos. 23330, 23403, 23404, 23521, 2010-Ohio-1899, ¶14 (“We further note, a transcript of Wright‘s plea in case no. 1978 CR 840 is not before us, and we must presume the regularity of the proceedings below in the absence of a transcript and affirm.“); State v. Hytower, Montgomery App. No. 22363, 2008-Ohio-1754, ¶22 (“The fact that there is no usable
{¶ 13} Tunstall‘s bare affidavit is insufficient to rebut the waiver and plea forms, the trial court‘s entries, and the presumрtion of regularity that attaches in the absence of a plea-hearing transcript. Therefore, we reject the first proposition advanced by Tunstall on appeal. His argument fails because the presumption of regularity applies and the record does contain evidence establishing thаt he knowingly, intelligently, and voluntarily entered his pleas. See, e.g., State v. Plemons, Montgomery App. No. 21039, 2006-Ohio-1608, ¶15 (recognizing that “a defendant‘s own self-serving declarations or affidavits are insufficient to rebut the record on review which shows that his plea was voluntary“); State v. Ridenour, Montgomery App. No. 20538, 2005-Ohio-5238, ¶9 (“Moreover, it is well-established that where the record belies a defendant‘s claim, he is not entitled to a hearing on his motion absent some evidence besides his own self-serving affidavit.“).
{¶ 14} For essentially the same reasons, we also reject Tunstall‘s second
{¶ 15} Finally, we are unpersuaded by Tunstall‘s argument that ineffective аssistance of trial counsel entitled him to withdraw his guilty pleas. As an initial matter, we note that “[a] guilty plea waives the right to allege ineffective assistance of counsel, except to the extent the errors caused the plea to be less than knowing and voluntary.” State v. King, Montgomery App. No. 23325, 2010-Ohio-2839, ¶11; see, also, State v. Carson, Montgomery App. No. 20285, 2004-Ohio-5809, ¶12. In other words, “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurrеd prior to the entry of the guilty plea.” State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130. “[P]oor advice from an attorney doesn‘t render a defendant‘s decision to enter a plea of guilty or no contest less than knowing, intelligent, and voluntary when the advice concerns a matter collateral to either the waiver of rights the plea involves or the рrocedure for entering the plea. Then, the advice is merely another matter that enters a defendant‘s calculus to elect to enter the plea, and misapprehension of his calculus to enter a plea of guilty or no contest does not render the plea less than knowing, intelligent, and voluntary.” State v. Milbrandt, Champaign App. No. 2007-CA-3, 2008-Ohio-761, ¶17. Thus, poor advice does not rise to
{¶ 16} In the present case, the only evidence supporting Tunstall‘s ineffеctive assistance of counsel claim is found in the affidavit accompanying his motion. In that affidavit, Tunstall averred:
{¶ 17} “1. I am the defendant in the above-referred to Criminal Docket Number;
{¶ 18} “2. On or about August 29, 1994, I was charged with the Crimes of Improper Discharge of a Firearm at or into a Habitation, Aggravated Menacing.
{¶ 19} “3. I was unable to afford retainment of a private counsel, and the Court appointed attorney Russell Carter to represent me.
{¶ 20} “4. At the first meeting I informed counsel that I was innocent of the charges.
{¶ 21} “5. Counsel Carter assured me that he would investigate the circumstances of the case, and would file all the necеssary motions for Suppression Hearings prior to trial. I took this in my trust, yet he failed to file to suppress the evidence.
{¶ 22} “6. Mr. Carter‘s only concern was to dispose of this case as quickly and as effectively as possible.
{¶ 23} “7. Mr. Carter failed to explain to me that by entering a guilty plea that I would be surrendering essential сonstitutional rights;
{¶ 24} “8. Nor did Mr. Carter explain to me that by pleading guilty to a crime that I was not guilty of that conviction could and would be used against me at a later time for sentencing enhancement purposes.
{¶ 25} “9. Prior and during this time period I was very abusive with alcohol and
{¶ 26} “10. That counsel coerced me and I tried to get counsel to retract my guilty plea, because I felt if there was a trial mitigating evidence would be brought out.
{¶ 27} “11. That Mr. Carter told me I could not appeal a plea at all, and as such, I felt I had no redress or other avenue in which to pursue relief as a result of the prejudice I was subjected too [sic], and such has been the cause for delay, coupled with my deficient learning capacity.”
{¶ 28} The first deficiency alleged in the affidavit is counsel‘s unspecified failure to “investigate” the case and “file a suppression motion.” Tunstall‘s affidavit makes no effort, however, to identify any particular investigation that should have been performed or to identify any potentially beneficial evidence counsel might have uncovered. Nor does his affidavit identify any grounds that might support granting a supрression motion. Moreover, Tunstall presumably knew when he entered his guilty pleas the extent of his attorney‘s investigation and that a suppression motion had not been filed. His affidavit does not indicate otherwise. The fact that he entered his pleas anyway indicates that these alleged deficiencies did not impact the knowing, intelligent, and voluntary nature of the pleas.
{¶ 29} Tunstall next alleges that his attorney wanted to dispose of his case “as quickly and as effectively as possible.” As a general principle, we see nothing inherently wrong with these goals. Defense counsel promptly assisted Tunstall in negotiating a plea deal that resulted in two firearm specifications and a charge of having a weapon while under disability being dismissed. Absent more, the fact that counsel pursued speedy and effective resolution of Tunstall‘s case is not grounds for finding ineffective assistance of
{¶ 30} Tunstall also alleges that his attorney failed to explain that the guilty pleas would result in the waiver of various constitutional rights. Even if counsel did not explain this, the record reflects that the trial court did so prior to the entry of Tunstall‘s pleas. Tunstall next complains about his attorney‘s failure to explain that his convictions “could and would be used against [him] at a later time for sentencing enhancement purposes.” Tunstall cites nothing, however, establishing that defense counsel had a duty to foresee his client‘s future bank robbery or to warn him about the possibility of an enhanced sentence if he committed federal crimes.
{¶ 31} Tunstall further asserts that he was abusing alcohol and drugs around thе time of his pleas and that he now has “a very bad time recalling the exact conversations.” This admission perhaps calls into question Tunstall‘s present ability to aver with certainty that he was not properly advised in 1995, but it does nothing to establish ineffective assistance of counsel. Tunstall also asserts that he was “triсked by [defense counsel] to plead guilty with the numerous promises.” This vague allegation is belied by the waiver and plea forms in which he admitted that he was entering his pleas “voluntarily and without any promises made to [him] to induce” them.
{¶ 32} Tunstall next avers that defense counsel somehow “coerced him” and refused to seеk retraction of his guilty pleas. An allegation of unspecified coercion, however, is insufficient to rebut the record, which indicates that Tunstall entered his pleas voluntarily.
{¶ 33} As for retraction of the pleas, nothing in the record before us suggests that Tunstall desired or attempted to withdraw the pleas until he discovered the federal
{¶ 35} Tunstall‘s final argument is that his attorney told him he could not appeal from a guilty plea, leading Tunstall to believe he had no avenue оf relief. We fail to see, however, how such advice could have caused Tunstall to enter his guilty pleas involuntarily. Tunstall cannot seriously claim that he would have refused to enter the pleas if he had known that he actually could appeal from them. Assuming, arguendo, that defense counsel or even the trial court misinformed Tunstall about the appealability of a guilty plea, he might have had grounds to seek a delayed appeal. But the failure properly to advise a defendant of his appellate rights has no bearing on the validity of a guilty plea. State v. Nicholas, Portage App. No. 2009-P-0049, 2010-Ohio-1451, ¶26.
{¶ 36} Based on the reasoning set forth above, and with particular emрhasis on the fourteen-year delay between the entry of Tunstall‘s guilty pleas and his motion to vacate them, we cannot say the trial court abused it discretion in denying the motion. Accordingly, we overrule Tunstall‘s assignment of error and affirm the judgment of the Montgomery County Common Pleas Court.
Copies mailed to:
Mathias H. Heck, Jr.
Johnna M. Shia
Donnie D. Tunstall
Hon. Gregory F. Singer