{¶ 1} Defendant-appellant, Jeffrey Wittine, appeals from the court's refusal to permit his presentence motion to withdraw his guilty plea to one count of attempted gross sexual imposition. He complains that counsel acted ineffectively by negotiating the plea, that the court abused its discretion by refusing to permit withdrawal of the guilty plea, and that the court improperly influenced the plea negotiations.
{¶ 3} A claim of ineffective assistance of counsel requires the defendant to show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984),
{¶ 4} Wittine maintains that trial counsel failed to interview key witnesses, made no inquiry into the mental or physical condition of the victim, and failed to develop a cohesive trial strategy. However, none of these assertions are supported by evidence in the record. *4
Instead, they rest entirely on Wittine's representations in his appellate brief. As a reviewing court, we cannot add matter to the record before us and decide the appeal on the basis of the new matter. See State v. Ishmail (1978),
{¶ 5} For the same reason, we reject Wittine's argument that counsel's deficient performance forced him to forego trial and enter the guilty plea, thus rendering the plea involuntary under Crim. R. 11(C). This argument likewise relies on matter that is outside the record on appeal, and thus cannot form the basis for review.
{¶ 7} Crim. R. 32.1 permits a defendant to seek withdrawal of a guilty plea before sentence is imposed. Although presentence motions to withdraw guilty pleas should be "freely granted," State v.Peterseim (1980),
{¶ 8} The scope of a hearing on a motion to withdraw a guilty plea is dependent upon the facial validity of the motion itself. In State v.Hall (Apr. 27, 1989), Cuyahoga App. No. 55289, we stated:
{¶ 9} "This court's requirement for a full, fair and impartial hearing on Crim. R. 32.1 motions was first set forth in State v. Peterseim
(1980),
{¶ 10} After making his guilty plea, Wittine retained a new attorney (his third during the case) and counsel filed a motion to withdraw the guilty plea on the day of sentencing. The motion contained this single paragraph:
{¶ 11} "The Defendant, Jeffrey Wittine, discharged his previous counsel * * * and after further discussions with current counsel, he feels that he was not adequately advised of the ramifications of his plea by his former counsel. Therefore, he desires to go to trial at the present time, and it is respectfully requested that he be permitted to withdraw his plea for an additional trial date [sic] and proceed forward at trial."
{¶ 12} When the parties convened for sentencing, the court allowed counsel to be heard on the motion to withdraw the guilty plea. Counsel stated that he was sure that prior counsel "did an excellent job in this case" and "I'm not criticizing anything that [prior counsel's] done." Instead, counsel told the court that Wittine "feels he is not guilty of this offense" and that Wittine believed that he had "numerous defenses which should be brought up in a jury trial." Counsel conceded that " [t]here's no question that you advised [Wittine] of all his rights, as did [prior counsel], but at this point, he's asked me to file a motion to withdraw his plea."
{¶ 13} The court recalled that it had fully advised Wittine of his rights, as required by Crim. R. 11, and that there was no indication that Wittine did not understand those rights. Counsel agreed that Wittine had understood his rights, but that he had not understood the ramifications of his plea. When the court insisted that it had reviewed and discussed the ramifications of the plea with Wittine, counsel replied, "I have no doubt, your Honor, none." *7
{¶ 14} Given the lack of substantive reasons stated as a basis for withdrawing the guilty plea, we find that the court gave Wittine's motion sufficient consideration. As counsel's statements to the court show, Wittine had no legal basis for seeking to withdraw his plea — he simply had a change of heart. Changing one's mind is not a sufficient basis for allowing the withdrawal of a plea. State v.Salter, Cuyahoga App. No. 82488,
{¶ 16} As with the other "factual" representations made by Wittine in this appeal, none of his claims are documented by the transcript of the plea hearings. The plea negotiations between the parties are not a part of the record, and the transcript of the proceedings commences with the plea hearing, by which time the parties had concluded their negotiations. The transcript shows that the only time the court's bailiff spoke on the record was to announce Wittine's case ("Judge, we have Mr. Wittine."). Once again, Wittine's *8 argument relies on matter that is outside the record on appeal; hence, we cannot review this claim. Ishmail, supra.
{¶ 18} We reject Wittine's argument because he "assumes, in error, that because the text of the Ohio Revised Code does not contain the enacting clauses, the statutes contained therein are invalid. That the enacting clauses are not necessarily reprinted in the Ohio Revised Code in no way affects the validity of the statutes themselves." SeeState v. Lininger, Lucas App. No. L-07-1295,
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR