State v. WilfongState v. Wilfong
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 08 CR 000610.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Sheila M. Sexton, McNamara & Loxterman, 8440 Station Street, Mentor, OH 44060 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is predicated upon a final judgment of the Lake County Court of Common Pleas. Appellant, Mark W. Wilfong, contests the validity of the trial court‘s decision overruling his post-sentencing motion to withdraw his guilty plea under
{¶2} In November 2008, the Lake County Grand Jury indicted appellant on two forms of operating a motor vehicle while under the influence of alcohol. Although each of the two counts contained slightly different allegations, both charged appellant with a third-degree felony under
{¶3} Approximately one month after entering an initial plea of not guilty to both counts, appellant negotiated a plea bargain with the state of Ohio. In return for the dismissal of the second count and accompanying specification, appellant agreed to plead guilty to the entire first count, including the main charge of operating a vehicle while under the influence and the
{¶4} Consistent with the terms of the plea bargain, appellant executed a written plea of guilty. In this document, appellant acknowledged that he was pleading guilty to a third-degree felony, and that the sentence for such an offense was a mandatory term of one to five years. Regarding the
{¶5} On the same day appellant signed the written plea, the trial court held an oral hearing concerning the change of plea. In addition to describing the nature of the constitutional rights appellant was waiving, the court gave two explanations covering the
{¶6} At the conclusion of the plea hearing, the trial court accepted appellant‘s guilty plea and referred the case to the adult probation department for a pre-sentencing investigation and report. Upon receiving that report, the trial court conducted a separate sentencing hearing, during which it heard the legal arguments of both trial counsel and allowed appellant to make an oral statement on the record. After considering the various submissions, the court issued its final sentencing judgment. Appellant was ordered to serve consecutive terms of five years on the main charge and two years on the specification, for an aggregate sentence of seven years. The final judgment also imposed a mandatory fine of $1,350 and suspended appellant‘s license to drive for the remainder of his life.
{¶7} Immediately following the imposition of his sentence, appellant did not try to pursue a timely appeal of his conviction. However, after serving 15 months of his seven-year sentence, he filed a motion to withdraw his guilty plea under
{¶8} After the state submitted a written response to the motion to withdraw, the trial court rendered its judgment on the matter without the benefit of an oral hearing. In overruling the motion, the trial court expressly found that acceptance of the guilty plea did not result in a manifest injustice warranting its withdrawal. As to appellant‘s “sentencing” argument, the court concluded that a review of the written guilty plea and the “plea” hearing demonstrated that he was fully informed of the extent of the possible sentence, and that he indicated in response to specific questions that he was aware of the possible maximum sentence for both the main charge and the specification. Concerning the “prior convictions” dispute, the trial court held that, since appellant did not raise this issue during the plea hearing, he was barred from asserting the point after sentencing under the doctrine of res judicata.
{¶9} In challenging the merits of the foregoing determination before this court, appellant has advanced the following assignment of error:
{¶10} “The trial court erred in overruling the defendant-appellant‘s motion to withdraw his guilty plea as he was denied process of law.”
{¶11} Under this sole assignment, appellant essentially states that the trial court
{¶12} As previously indicated, appellant‘s motion before the trial court was made pursuant to
{¶13} As a general proposition, the burden of showing a manifest injustice rests upon the defendant. O‘Connell, 2011-Ohio-652, at ¶31. To carry this burden, the defendant cannot rely solely upon bald assertions stated in the motion; rather, his
{¶14} In applying
{¶15} A review of the prior precedent in our jurisdiction shows that a defendant‘s request to withdraw his guilty plea is often based upon a basic assertion of ineffective assistance of trial counsel. In describing the standard that must be used in considering the merits of such an assertion, this court has emphasized:
{¶16} “A properly licensed attorney is presumed to have rendered effective assistance to a defendant. *** In the context of a guilty plea, the standard of review for ineffective assistance of counsel is whether: (1) counsel‘s performance was deficient;
{¶17} In regard to the necessary causal connection between the guilty plea and the ineffective assistance, our prior precedent indicates that the defendant cannot merely maintain that, if it were not for trial counsel‘s error, he never would have agreed to enter the guilty plea. Madeline, 2002 Ohio App. LEXIS 1348, at *10, citing State v. Sopjack (Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 Ohio App. LEXIS 5572, at *11. “Rather, ineffective assistance of trial counsel is found to have affected the validity of a guilty plea when it precluded a defendant from entering his plea knowingly and voluntarily.” Id.
{¶18} As was noted above, a defendant cannot carry his burden in attacking the validity of his guilty plea simply by making an unsupported assertion. In explaining this principle in the context of an “ineffective assistance” argument, we have stated:
{¶19} “A claim that a guilty plea was induced by ineffective assistance of counsel must be supported by evidence where the record of the guilty plea shows it was voluntarily made. State v. Malesky (Aug. 27, 1992), 8th Dist. No. 61290, 1992 Ohio App. LEXIS 4378; see, also, State v. Kapper (1983), 5 Ohio St.3d 36, ***. In Malesky, the court held:
{¶20} “‘A naked allegation by a defendant of a guilty plea inducement, is insufficient to support a claim of ineffective assistance of counsel, and would not be upheld on appeal unless it is supported by affidavits or other supporting materials,
{¶21} “In Kapper, the Supreme Court adopted the following rationale:
{¶22} “‘“(***) (A)n 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 which shows that his plea was voluntary. (***).“‘” Id. at 38. State v. Gotel, 11th Dist. No. 2006-L-015, 2007-Ohio-888, at ¶11-14.
{¶23} In the instant matter, the primary contention in appellant‘s post-judgment motion to withdraw was that his decision to plead guilty had turned upon the bad advice of his trial counsel regarding the extent of his sentence; i.e., according to him, counsel told him that he would only be given a one-year term for the “drunk-driving” offense and specification. However, in raising this point in the text of his motion, appellant failed to attach any affidavits or other evidentiary materials to actually prove the factual assertion upon which the contention was based.
{¶24} In conjunction with the foregoing, it must also be noted that the trial record before this court readily shows that appellant was fully informed of the extent of the jail term which could be imposed. That is, as part of the written guilty plea and the
{¶25} In relation to the issue of sentencing, appellant also argued in his motion to withdraw that he must be allowed to retract his guilty plea because the trial court had abused its discretion in imposing an aggregate term of seven years. In support of this point, appellant cited a series of prior cases which, according to him, demonstrated that other criminal defendants who had been charged with a third-degree felony under
{¶26} As to this point, this court would emphasize that appellant‘s sentence was obviously not imposed until after he had entered his guilty plea; as a result, any error as to his sentencing would have had no effect upon the validity of the plea. In light of this, it logically follows that if appellant wanted to challenge the propriety of the seven-year term, he could only do so in a timely direct appeal from his conviction. The trial record in the underlying case shows that appellant chose not to pursue that separate remedy when the trial court‘s sentencing judgment was rendered in January 2009. Therefore, appellant was barred under the doctrine of res judicata from raising the question in his subsequent motion to withdraw his guilty plea. See, e.g., State v. Whatley, 9th Dist. No. 24231, 2008-Ohio-6128, at ¶9.
{¶27} Under the third argument in his
{¶28} Regarding this argument, our review of the trial record again indicates that appellant did not attach to his motion any affidavits or other evidentiary materials directly supporting his “coercion” assertion. Hence, since the sole materials before the trial court could only be construed to establish that the guilty plea had been entered voluntarily, appellant again failed to prove that the actions of his trial counsel were deficient in any respect.
{¶29} Under the final aspect of his motion to withdraw, appellant argues that his conviction should not be allowed to stand because his trial counsel never reviewed the issue of whether he had received proper legal representation in his prior five convictions under
{¶30} In attempting to overcome the fact that he did not attach any evidentiary materials to his motion to withdraw, appellant maintains that he could have elaborated upon each of his four arguments if the trial court would have scheduled a hearing on the matter. In considering the need for an oral hearing in regard to a post-sentence motion under
{¶31} In our case, appellant‘s assertion as to the extent of his prison term was clearly contradicted by the information set forth in the written guilty plea and in the
{¶32} For the foregoing reasons, appellant was unable to demonstrate in any of his four arguments that a manifest injustice would continue to exist if he was not allowed to withdraw his guilty plea. Thus, since the trial court did not abuse its sound discretion in overruling appellant‘s post-sentence motion under
{¶33} Consistent with the foregoing analysis, it is the order of this court that the judgment of the trial court is affirmed.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.