[Cite as State v. Thomas, 2014-Ohio-1512.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99972




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 SHERMAN THOMAS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                              Criminal Appeal from the
                       Cuyahoga County Court of Common Pleas
             Case Nos. CR-07-498296-B, CR-07-502143-A, CR-08-510295-A
                                and CR-09-519703-C

        BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 10, 2014
APPELLANT

Sherman Thomas, pro se
Inmate No. A564455
P.O. Box 8107
Mansfield, Ohio 44905


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} In 2009, defendant-appellant, Sherman Thomas, entered guilty pleas in Case

Nos. CR-08-510295-A, CR-07-502143-A, CR-07-498296-B, and CR-09-519703-C. As

a result of these pleas, Thomas was sentenced to ten years in prison. Thomas timely filed

notices of appeal in each case, which were consolidated. However, this court sua sponte

dismissed the appeal for failure to file an appellate brief pursuant to App.R. 18(C). State

v. Thomas, 8th Dist. Cuyahoga No. 93351

       {¶2} In 2013, Thomas moved the trial court for postconviction relief, or in the

alternative, to allow him to withdraw his guilty pleas in each of the cases. The trial court

summarily denied each motion.

       {¶3} Thomas now appeals these decisions, raising four assignments of error, which

will be addressed together where appropriate.

                                 I. Postconviction Petition

       {¶4} In his first and third assignments of error, Thomas contends that the trial

court improperly dismissed his postconviction petition without conducting an evidentiary

hearing or making findings of fact and conclusions of law.

       {¶5} R.C. 2953.21 governs postconviction relief petitions. R.C. 2953.21(C) and

(G) require a trial court to make and file findings of fact and conclusions of law setting

forth its findings on the issues presented and a substantive basis for its disposition of each

claim for relief advanced in the petition. State v. Kinstle, 3d Dist. Allen No. 1-12-32,
2013-Ohio-850, ¶ 10. “‘Findings of fact and conclusions of law are mandatory under

R.C. 2953.21 if the trial court dismisses the petition.’” State ex rel. Carrion v. Harris, 40

Ohio St.3d 19, 530 N.E.2d 1330 (1988), quoting State v. Lester, 41 Ohio St.2d 51, 322

N.E.2d 656 (1975), paragraph two of the syllabus.

       {¶6} A trial court need not issue findings of fact and conclusions of law or conduct

an evidentiary hearing, however, when it dismisses an untimely postconviction relief

petition because the time limit for filing a motion for postconviction relief is

jurisdictional. State v. Dilley, 8th Dist. Cuyahoga No. 99680, 2013-Ohio-4480, ¶ 9; State

v. Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8.                      Under R.C.

2953.21(A)(2), a petition must be filed no later than 180 days after the date on which the

trial transcript is filed in the court of appeals in the direct appeal of the conviction, or if

no appeal is taken, no later than 180 days after the expiration of time for filing the appeal.

 Here, the trial transcript was filed in the court of appeals in Thomas’s direct appeal on

July 1, 2009. He filed his postconviction petition in February 2013, over three years

after the trial transcript was filed. Accordingly, Thomas’s petition was untimely.

       {¶7} However, under R.C. 2953.23, the trial court may entertain an untimely

petition for postconviction relief if the petition meets two conditions. First, the petitioner

must demonstrate either that he was unavoidably prevented from discovering the facts on

which he relies in the petition or that the United States Supreme Court has, since his last

petition, recognized a new federal or state right that applies retroactively to the petitioner.

R.C. 2953.23(A)(1)(a). Second, the petitioner must show by clear and convincing
evidence that a reasonable factfinder would not have found him guilty but for

constitutional error at trial. R.C. 2953.23(A)(1)(b).

       {¶8} Unless the defendant makes the showings required by R.C. 2953.23(A), the

trial court lacks jurisdiction to consider either an untimely or a successive petition for

postconviction relief. State v. Carter, 2d Dist. Clark No. 03CA-11, 2003-Ohio-4838, ¶

13, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st Dist.1998).

       {¶9} In his petition for postconviction relief, Thomas did not allege any new

factual evidence in his case. Rather, he contends that his petition meets the exceptions

set forth in R.C. 2953.23 based on the United States Supreme Court decisions in Lafler v.

Cooper, 566 U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,

566 U.S. ___, 132 S.Ct. 1399, 182 L.E.2d 379 (2012). Thomas argues that Lafler and

Frye collectively recognize a new retroactive right with respect to the Sixth Amendment

right to effective assistance of counsel during the plea bargaining process.

       {¶10} However, contrary to the arguments raised in Thomas’s petition, this court

has held that Lafler and Frye do not create a new retroactive right. State v. Marsh, 8th

Dist. Cuyahoga No. 99219, 2013-Ohio-3147, ¶ 11, citing State v. Hicks, 8th Dist.

Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 14. Thus, Thomas has failed to demonstrate

that he meets one of the exceptions to the timely filing requirement set forth in R.C.

2953.23(A)(1). Accordingly, the trial court properly denied Thomas’s request for relief

without holding a hearing or issuing findings of fact and conclusions of law because it

was without jurisdiction to review the untimely petition. See Masters at ¶ 11.
      {¶11} Thomas’s first and third assignments of error are overruled.

        II. Motion to Withdraw Guilty Plea — Effective Assistance of Counsel

      {¶12} In this fourth assignment of error, Thomas contends that the trial court

erred in summarily denying his request to withdraw his guilty plea.

      {¶13} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest injustice the

court after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.”

      {¶14} A defendant who attempts to withdraw a guilty plea after sentence has

been imposed bears the burden of demonstrating a manifest injustice. State v. Smith, 49

Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. This court has

explained:

      [a] manifest injustice is defined as a “clear or openly unjust act,
      extraordinary and fundamental flaw in the plea proceeding.” Again,
      “manifest injustice” comprehends a fundamental flaw in the path of justice
      so extraordinary that the defendant could not have sought redress from the
      resulting prejudice through another form of application reasonably available
      to him or her.

(Citations omitted.) State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶

13.   Further, “[a] trial court is not required to hold an evidentiary hearing on a

post-sentence motion to withdraw a guilty plea, except when the facts, as alleged by the

defendant, indicate a manifest injustice would occur if the plea was allowed to stand.”

State v. Britford, 10th Dist. Franklin No. 11AP-646, 2012-Ohio-1966, ¶ 12.
       {¶15} We therefore review a trial court’s refusal to allow a postsentence motion to

withdraw a guilty plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 527,

584 N.E.2d 715 (1992).

       {¶16} In this case, Thomas moved to withdraw his plea postsentence on the basis

that he received ineffective assistance of counsel during the plea proceedings, which

Thomas raises as his second assignment of error. In his motion, he contends that he was

denied effective assistance of counsel because his trial counsel (1) failed to communicate

with him prior to the plea hearing, and (2) failed to conduct pretrial discovery.

       {¶17}     To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of reasonable

representation and that he was prejudiced by that performance. State v. Drummond, 111

Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. (1984).               Prejudice is

established when the defendant demonstrates “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

       {¶18} Notwithstanding that Thomas could have raised this issue in a direct appeal,

we find that he was not denied effective assistance of counsel.      The record before this

court demonstrates that although Thomas may have been confused over the status of his

cases, he and his counsel met prior to the start of the court proceedings and discussed
Thomas’s cases.     After a lengthy discussion on the record by the parties regarding

defense counsel’s investigation and preparation of the case, Thomas remarked:

       THE DEFENDANT: No. I understand. But I just — like I was saying
       before, I didn’t know. But now, after hearing this, I know he really been
       doing everything he said he was doing. And I just want to apologize to him,
       because I say he really doing what he supposed to be doing.

       {¶19} After Thomas expressed his concerns about counsel, the trial court gave

Thomas and defense counsel additional time to discuss the case. Following a recess and

before any plea was stated on the record, the following exchange took place:

       THE COURT: Do you feel like you have a satisfactory understanding of
       what’s happening now?

       THE DEFENDANT: Yes.

       {¶20} Thereafter, the prosecutor stated on the record the plea agreement and the

trial court engaged in the following colloquy with Thomas:

       THE COURT: * * * Mr. Thomas, you have had an opportunity to speak
       with your attorney to your satisfaction?

       THE DEFENDANT: Yes.

       ***

       THE COURT: Okay. Are you satisfied with the job that [defense counsel]
       has done for you?

       THE DEFENDANT: Yes.

       {¶21} The trial court advised Thomas of his Crim.R. 11 rights, and Thomas

entered guilty pleas to the counts and specifications stated by the court and pursuant to the

plea agreement previously indicated. The record demonstrates that his defense counsel
negotiated a plea with the state involving four different cases, each containing multiple

offenses and specifications, some of which carried mandatory prison terms. At no time

during the actual plea proceeding did Thomas indicate that he did not understand the

nature of the plea agreement, his rights he was waiving, or that he was confused about the

proceedings.     Accordingly, Thomas has failed to demonstrate how counsel’s

performance was prejudicial.

       {¶22} Finally, Thomas contends he was denied effective assistance of counsel

because his trial counsel received a subsequent remedial suspension from the practice of

law. The mere fact that his trial counsel was suspended based on an unrelated matter that

occurred two years after Thomas entered into his guilty pleas, is irrelevant and

insufficient to withstand his burden of proving counsel’s representation was deficient in

Thomas’s case.

       {¶23} Because we find Thomas was not denied effective assistance of counsel, the

trial court did not abuse its discretion in denying his postsentence motion to withdraw his

guilty plea. Accordingly, his second and fourth assignments of error are overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
