[Cite as State v. Kinsinger, 2011-Ohio-2826.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                               :

        Plaintiff-Appellee                                  :            C.A. CASE NO. 23966

v.                                                          :            T.C. NO.   06CR55

CHARLES S. KINSINGER                             :              (Criminal appeal from
                                                                       Common Pleas Court)
        Defendant-Appellant                      :

                                                            :

                                                ..........

                                                OPINION

                          Rendered on the            10th       day of       June    , 2011.

                                                ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, P. O. Box 231, Harveysburg, Ohio
45032
      Attorney for Defendant-Appellant

                                                ..........

KLINE, J. (by assignment)

        {¶ 1} Charles S. Kinsinger (hereinafter “Kinsinger”) appeals the judgment of

the Montgomery County Court of Common Pleas, which denied Kinsinger’s motion

to withdraw his no contest pleas. On appeal, Kinsinger contends that the trial court

abused its discretion by denying his motion without first conducting an evidentiary
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hearing. Because Kinsinger has not established that the withdrawals of his pleas

are necessary to correct a manifest injustice, we disagree.           Accordingly, we

overrule Kinsinger’s assignment of error and affirm the judgment of the trial court.

                                               I

       {¶ 2} In 2006, Kinsinger faced an eleven-count indictment for various

sexual offenses. L.B. (hereinafter “Lisa”) was Kinsinger’s girlfriend at the time, and

the charges in the indictment related to Kinsinger’s sexual conduct with L.B.’s two

male children.

       {¶ 3} After reaching a plea agreement, the state dismissed two counts of

rape, one count of gross sexual imposition, one count of gross sexual imposition

(person under 13), and two counts of importuning. Kinsinger then pled no contest

to one count of rape (person under 13), three counts of unlawful sexual contact with

a minor, and one count of importuning.             As a result of the plea agreement,

Kinsinger received a total of six years in prison.

       {¶ 4} On March 10, 2009, Kinsinger filed his MOTION TO WITHDRAW

GUILTY PLEA PURSUANT TO CRIM.R. 32.1. (We will refer to Kinsinger’s motion

by its given title even though Kinsinger actually pled no contest to the various

crimes.) Kinsinger based his motion to withdraw on two different claims. First,

Kinsinger claimed that his trial counsel was ineffective for advising Kinsinger to

plead no contest. And second, Kinsinger claimed due process violations based on

the police not obtaining parental consent before interviewing the minor victims.

       {¶ 5} In support of his motion, Kinsinger submitted the affidavit of his

brother, Richard Kinsinger, Jr., (hereinafter “Richard”). Richard’s affidavit states
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the following: “I have spoken with [one of the victims]. From this conversation it is

my understanding that [this victim] was tricked by the police officer into stating that

he was involved in a sexual relationship with my brother, Charles. It is further my

understanding that [this victim] was interviewed by the police at his school without

his mother’s knowledge or her being present. * * * I have also spoken with [L.B.][.] *

* * From these conversations it is my understanding that during [L.B.’s] relationship

with Charles, her children were never left alone or out of her sight around my

brother.” Kinsinger also submitted two personal letters from L.B. as well as her

unsigned affidavit. According to Kinsinger, L.B. had agreed to sign the affidavit but

was unable to do so.

       {¶ 6} The trial court denied Kinsinger’s motion without conducting an

evidentiary hearing. In making its decision, the trial court relied on the Incident

Report of the Montgomery County Sheriff’s Office. The Incident Report contained

Kinsinger’s admission that he had oral sex with the victims on several occasions.

As the trial court found, Kinsinger “was facing the potential of life in prison but that

charge was dismissed as a result of plea negotiations.            The Defendant had

admitted the offenses to police detectives.          Under the circumstances, the

Defendant has not demonstrated a ‘manifest injustice.’               Accordingly, the

Defendant’s Motion to Withdraw his Pleas is OVERRULED[.]”

       {¶ 7} Kinsinger appeals and asserts the following assignment of error: “THE

TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO WITHDRAW

GUILTY PLEA WITHOUT A HEARING SINCE HE WOULD NOT HAVE ENTERED

THIS PLEA BUT FOR THE INEFFECTIVENESS OF COUNSEL AND THE
                                                                                     4

MISCONDUCT OF THE GOVERNMENT.”

                                               II

         {¶ 8} In his sole assignment of error, Kinsinger contends that the trial court

abused its discretion by denying the motion to withdraw his guilty plea without a

hearing.

         {¶ 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.”

State v. Tunstall, Montgomery App. No. 23730, 2010-Ohio-4926, at ¶9 (citation

omitted). An abuse of discretion connotes more than a mere error of judgment; it

implies that the court’s attitude is arbitrary, unreasonable, or unconscionable.

State v. Adams (1980), 62 Ohio St.2d 151, 157.

         {¶ 10} “[T]o prevail on a post-sentence motion to withdraw a plea, a movant

must show a manifest injustice that needs to be corrected.”          State v. Stewart,

Greene App. No. 2003-CA-28, 2004-Ohio-3574, at ¶6, citing Crim.R. 32.1; State v.

Stumpf (1987), 32 Ohio St.3d 95, 104. “A manifest injustice has been defined as

‘a clear or openly unjust act’ that involves ‘extraordinary circumstances.’” State v.

Minker, Champaign App. No. 2009 CA 16, 2009-Ohio-5625, at ¶25, quoting Stewart

at ¶6.     “A hearing on a post-sentence motion to withdraw a * * * plea is not

necessary if the facts alleged by the defendant, even if accepted as true, would not

require the court to grant the motion[.]” State v. Burkhart, Champaign App. No.

07-CA-26, 2008-Ohio-4387, at ¶12, citing State v. Blatnik (1984), 17 Ohio App.3d

201, 204. “To obtain a hearing, ‘a movant must establish a reasonable likelihood

that the withdrawal is necessary to correct a manifest injustice[.]’” Tunstall at ¶9,
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quoting State v. Whitmore, Clark App. No. 06-CA-50, 2008-Ohio-2226, at ¶11.

      {¶ 11} Kinsinger bases his appeal on two distinct claims. First, Kinsinger

claims that he pled no contest based on the ineffective assistance of counsel.

Under this argument, Kinsinger contends that his trial counsel overestimated the

amount of evidence against Kinsinger. And second, Kinsinger claims that he pled

no contest because of governmental misconduct. Under this argument, Kinsinger

claims that state officials interviewed the victims without parental consent.         For

these reasons, Kinsinger contends that he should be allowed to withdraw his no

contest pleas.

                            A. Ineffective Assistance of Counsel

      {¶ 12} In his ineffective-assistance-of-counsel argument, Kinsinger claims

that “his attorney’s performance was deficient in that counsel overestimated the

weight of the evidence against Mr. Kinsinger.” Brief of Appellant at 4.

      {¶ 13} “Ineffective assistance of counsel is a basis for post-sentence

withdrawal of a guilty plea.”     State v. Sylvester, Montgomery App. No. 22289,

2008-Ohio-2901, at ¶13. To demonstrate ineffective assistance of counsel in a

motion to withdraw a plea, Kinsinger “must show that 1) [his] counsel’s performance

was deficient; and 2) there is a reasonable probability that but for counsel’s error,

[he] would not have pled [no contest].” Id., quoting State v. Xie (1992), 62 Ohio

St.3d 521, 524, in turn citing Strickland v. Washington (1984), 466 U.S. 668.

      {¶ 14} We     find   that   the   trial   court   correctly   rejected   Kinsinger’s

ineffective-assistance-of-counsel argument. Here, the evidence against Kinsinger

is overwhelming. As the trial court found, “The record in this case * * * contains the
                                                                                      6

Incident Report which was presented to the Court at the time of the Defendant’s no

contest pleas. In that Report, the detective indicates that the Defendant admitted

that he had oral sex with both of the victims, one of whom was under thirteen (13),

on several occasions.        This ‘confession’ was recorded on videotape and the

Defendant provided a written statement.” February 24, 2010 Judgment Entry at 3.

In light of these facts, we cannot find that Kinsinger’s trial counsel “overestimated”

the amount of evidence against him. Moreover, as the trial court noted, Kinsinger

“was facing mandatory life imprisonment for one of the charges that the State of

Ohio dismissed in exchange for the pleas.” Id. Because of this, we cannot find

that Kinsinger’s trial counsel was deficient for negotiating a plea agreement that

resulted in a six-year prison sentence.

       {¶ 15} Accordingly,        as       it      relates        to         Kinsinger’s

ineffective-assistance-of-counsel argument, we find that the trial court did not abuse

its discretion.

                                “B. Governmental Misconduct

       {¶ 16} In his governmental-misconduct argument, Kinsinger claims that

government officials interviewed the victims without obtaining parental consent.

Kinsinger argues that “such an allegation should call into question the veracity of

the statements set forth by the alleged victims.” Brief of Appellant at 5.

       {¶ 17} Here, we find that the trial court did not abuse its discretion by

rejecting Kinsinger’s governmental-misconduct argument.            Initially, because

Kinsinger confessed to the crimes, we once again note that the evidence against

him is overwhelming. This overwhelming evidence weighs heavily against finding a
                                                                                    7

manifest injustice in the present case.      Second, as the trial court noted, the

“Incident Report * * * indicates that the children’s statements implicating the

Defendant were given during interviews conducted by the Clark County Advocacy

Center with the permission of their mother, Defendant’s then girlfriend, [L.B.].”

February 24, 2010 Judgment Entry at 4. Clearly, the trial court found this evidence

to be more credible than the hearsay-filled affidavit of Kissinger’s brother. This is

significant because “[a] trial court may, in the exercise of its discretion, judge the

credibility of affidavits in determining whether to accept the affidavits as true

statements   of   fact.”    State   v.   Knowles,   Cuyahoga     App.   No.   95239,

2011-Ohio-1685, at ¶22, citing State v. Mays, 174 Ohio App.3d 681,

2008-Ohio-128, at ¶14 (other citation omitted).

      {¶ 18} Finally, “‘[a] hearing on a post-sentence motion to withdraw a * * *

plea is not necessary if the facts alleged by the defendant, even if accepted as true,

would not require the court to grant the motion[.]’” Tunstall at ¶9, quoting State v.

Burkhart, Champaign App. No. 07-CA-26, 2008-Ohio-4387, at ¶12. And here, we

agree with the trial court’s finding that “[t]he interview of a minor as a victim does

not have any constitutional implications” for Kinsinger.        February 24, 2010

Judgment Entry at 4. As the trial court noted, “Even when a minor is charged with

a crime, there is no right to have a parent at such an interview. ‘[T]hough the

greatest care must be taken to assure a juvenile’s admissions are voluntary,

parental presence is not constitutionally mandated.’” Id., quoting State v. Bobo

(1989), 65 Ohio App.3d 685, 690, in turn citing In re Gault (1967), 387 U.S. 1. On

appeal, Kinsinger has cited no authority in support of his parental-consent
                                                                                    8

argument.       Thus, even if the police failed to obtain parental consent before

interviewing the victims, Kinsinger cannot establish grounds for relief.

          {¶ 19} Accordingly, as it relates to Kinsinger’s governmental-misconduct

argument, we find that the trial court did not abuse its discretion.

                                               III

          {¶ 20} For the foregoing reasons, we find that Kinsinger has not established

a reasonable likelihood that the withdrawals of his pleas are necessary to correct a

manifest injustice.     As a result, we find that the trial court did not abuse its

discretion by denying Kinsinger’s motion without a hearing. And accordingly, we

overrule Kinsinger’s sole assignment of error and affirm the judgment of the trial

court..

                                      ..........

FAIN, J. and DONOVAN, J., concur.

(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew T. French
Thomas W. Kidd, Jr.
Hon. Barbara P. Gorman, Administrative Judge
(Hon. Michael T. Hall, trial judge)
