[Cite as State v. Stiger, 2020-Ohio-1242.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-19-1026

        Appellee                                      Trial Court No. CR0201801665

v.

Dominique Stiger                                      DECISION AND JUDGMENT

        Appellant                                     Decided: March 31, 2020

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        W. Alex Smith, for appellant.

                                               *****

        MAYLE, J.

                                             Introduction

        {¶ 1} The defendant-appellant, Dominique Stiger, entered a plea pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a single count of

gross sexual imposition, and the Lucas County Court of Common Pleas sentenced him to
serve 42 months in prison. Stiger promptly filed a motion to withdraw his plea, which

the trial court denied. On appeal, Stiger argues that the trial court abused its discretion by

denying the motion. For the following reasons, we affirm.

                                        Background

       {¶ 2} On April 13, 2018, Stiger was indicted on three counts: rape, in violation of

R.C. 2907.02(A)(1)(b) and (B), a felony the first degree (Count 1), gross sexual

imposition, in violation of R.C. 2907.05(B) and (C)(2), a felony of the third degree

(Count 2), and rape, in violation of R.C. 2907.02(A)(1)(b) and (B), a felony of the first

degree (Count 3).

       {¶ 3} At a change-of-plea hearing on October 23, 2018, Stiger expressed his

intention to enter an Alford plea to the gross sexual imposition offense. In exchange, the

state agreed not to prosecute either rape charge. The state also agreed to remain silent at

Stiger’s sentencing hearing.

       {¶ 4} In support of the plea, the state asserted that, had the matter proceeded to

trial, it would have presented evidence that Stiger “did touch [the four-year-old victim]

on her vagina [and] touch[ed] her on her buttocks with both his hands and with his penis

[and] additionally did penetrate her vagina with his hand” on September 8, 2017. The

state alleged that Stiger committed “acts of a very similar nature” against the same victim

on February 13, 2018. Both incidents were alleged to have occurred at Stiger’s home in

Toledo, Ohio. The state also said that it would have presented a videotaped interview of

the victim by the Lucas County Children’s Services Bureau and testimony from several




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witnesses, including the victim’s grandmother, the sexual assault nurse examiner, a child

abuse expert witness, and a polygraph examiner with the Ohio Bureau of Criminal

Investigation and Identification. The polygraph examiner would have testified that Stiger

provided “deceptive responses” while undergoing the exam, and the defense stipulated

that the testimony was admissible.

       {¶ 5} Upon questioning by the court, Stiger confirmed that while he “den[ied]

committing the act [of] gross sexual imposition, * * * [he] wish[ed] to plead guilty in

order to avoid the risk of a greater penalty for the more serious offense[s].” After the

court advised Stiger of his rights as required by Crim.R. 11—which included an

advisement that the charge against him carried a maximum prison sentence of five

years—the court accepted Stiger’s plea, found him guilty, and referred the matter for a

presentence investigation.

       {¶ 6} At the December 13, 2018 sentencing hearing, Stiger’s counsel told the court

that when the “ramifications” of a guilty verdict were explained to Stiger for “the

hundredth time,” Stiger agreed that he “didn’t want to take the risk of being imprisoned

for life.” Stiger, himself, then made a lengthy statement in which he questioned some of

the evidence against him and again professed his innocence.

       {¶ 7} In response, the court told Stiger that it “want[ed] to make sure [Stiger] had

the full opportunity to do whatever [he] want[ed] regardless of the consequences.” The

court halted the proceedings so that Stiger and his counsel could discuss the matter.

When the hearing resumed, Stiger confirmed his desire to continue with the plea. By




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judgment entry dated December 14, 2018, the trial court sentenced Stiger to 42 months in

prison, found him to be a Tier III Sex Offender under R.C. Chapter 2950, and imposed a

mandatory five-year term of postrelease control.

       {¶ 8} One week later, on December 21, 2018, Stiger filed a motion to withdraw

his plea. The trial court denied the motion by order journalized on January 16, 2019, and

it is from this order that Stiger appeals. He raises the following assignment of error for

our review:

              The Trial Court erred when it denied the defendant’s motion to

       withdraw plea. [sic]

                                 Law and Analysis

      A. The trial court properly denied Stiger’s motion to withdraw his plea.

       {¶ 9} Stiger argues that it was an abuse of discretion to deny his motion because

he “expressed his innocence from day one and continues to express it.” The state

maintains that Stiger is merely unhappy with his sentence, which is not a “manifest

injustice” justifying withdrawal of his plea.

       {¶ 10} 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.” A “manifest injustice relates to some

fundamental flaw in the proceedings which results in a miscarriage of justice or is

inconsistent with the demands of due process.” State v. White, 10th Dist. Franklin No.




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17AP-633, 2018-Ohio-3461, ¶ 5. A defendant who seeks to withdraw a post-sentence

guilty plea bears the burden of establishing the existence of a manifest injustice. State v.

Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 14.

       {¶ 11} A manifest injustice will be found to exist “only in extraordinary cases.”

State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). That is, the law

recognizes that “if a plea of guilty could be retracted with ease after sentence had been

imposed, the accused might be encouraged to plead guilty to test the weight of potential

punishment, and withdraw the plea if the sentence were unexpectedly severe.”

(Quotations omitted.) State v. Blatnik, 17 Ohio App.3d 201, 203, 478 N.E.2d 1016 (6th

Dist.1984), citing Smith at 264. Recently, the Supreme Court of Ohio clarified that a

defendant seeking to withdraw a plea after sentencing must show that the purported error

“caused him to forgo trial and plead guilty instead.” Straley at ¶ 17 (finding no manifest

injustice where trial court incorrectly informed the defendant at sentencing that the

parties’ recommended aggregate sentence was mandatory when, in fact, only a portion

was mandatory).

       {¶ 12} We review a trial court’s decision denying a motion to withdraw a plea for

an abuse of discretion. Smith at paragraph two of the syllabus. “A trial court will be

found to have abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound.” (Quotations omitted.) State v. Johnson,

6th Dist. Lucas L-18-1214, 2019-Ohio-4613, ¶ 19.




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       {¶ 13} Here, Stiger claims that his case is “unique” because he did not enter a

“traditional guilty plea” but instead entered a plea pursuant to North Carolina v. Alford.1

       {¶ 14} In North Carolina v. Alford, the United States Supreme Court held that a

guilty plea may be accepted despite a defendant’s protestations of innocence. An Alford

plea may be accepted in Ohio under the following conditions:

              Where the record affirmatively discloses that: (1) defendant’s guilty

       plea was not the result of coercion, deception or intimidation; (2) counsel

       was present at the time of the plea; (3) counsel’s advice was competent in

       light of the circumstances surrounding the indictment; (4) the plea was

       made with the understanding of the nature of the charges; and,

       (5) defendant was motivated either by a desire to seek a lesser penalty or a

       fear of the consequences of a jury trial, or both, the guilty plea has been

       voluntarily and intelligently made.

State v. West, 134 Ohio App.3d 45, 49-50, 730 N.E.2d 388 (1st Dist.1999).

       {¶ 15} Initially, we note that Stiger does not challenge the trial court’s compliance

with Crim.R. 11, nor does he challenge any other aspect of the plea hearing. In fact,




1
  In his brief, Stiger also refers to nine “factors” in support of his claim that a “manifest
injustice has occurred.” Those factors, commonly referred to as “Fish factors,” after
State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995), apply to pre-
sentencing motions to withdraw and, therefore, have no applicability in this case. See,
e.g., State v. Eversole, 6th Dist. Erie Nos. E-05-073, E-05-076, E-05-074, E-05-075,
2006-Ohio-3988, ¶ 13, citing Fish.




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Stiger specifically acknowledges that he “received appropriate representation,” that the

trial court “conducted [his] Crim.R. 11 colloquy * * * appropriately” and that he was

advised of the “nature of the charges and potential sentences.” Stiger merely argues that

the trial court should have allowed him to withdraw his plea because “he always has

maintained his innocence.” But, “[p]leading guilty * * * without admitting guilt is

exactly the point of an Alford plea.” State v. Domanick, 10th Dist. Franklin No. 17AP-

628, 2018-Ohio-936, ¶ 17 (Finding that the trial court did not abuse its discretion in

refusing the defendant to withdraw his Alford plea after sentencing in the absence of any

evidence that a manifest injustice occurred). In fact, many defendants enter such a plea

merely because they “fear[] the unknown outcomes and consequences of a trial.” Id.

And under Alford, a trial court may accept such guilty pleas of “defendants who maintain

their innocence.” In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-970, 804 N.E.2d 476, ¶

13. Consequently, Stiger’s argument that he has consistently maintained his innocence

throughout this case—without more—does not somehow establish the existence of a

manifest injustice.

       {¶ 16} Stiger also complains that the trial court failed to hold a hearing before

denying his motion to withdraw his plea. But a trial court is not required to hold a

hearing on a post-sentence motion to withdraw a plea if the facts alleged by the

defendant, even if accepted as true, do not demonstrate a reasonable likelihood that

withdrawal of the plea is necessary to correct a manifest injustice. State v. Harmon, 6th

Dist. Lucas No. L-10-1195, 2011-Ohio-5035, ¶ 13. Upon review, Stiger’s single page




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motion—which was based entirely on his “insist[ence] [of] innocence” and a desire “to

take this matter to trial”—does not demonstrate a reasonable likelihood that withdrawal

of the plea is necessary to correct a manifest injustice. Therefore, the trial court was not

required to hold a hearing before denying Stiger’s motion.

                                        Conclusion

       {¶ 17} In conclusion, because Stiger did not meet his burden of showing a

manifest injustice, we find that the trial court did not abuse its discretion by denying his

post-sentence motion to withdraw his plea. Therefore, we find Stiger’s assignment of

error is not well-taken. The January 16, 2019 judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, Stiger is hereby ordered to pay the

costs of this appeal.

                                                                         Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Christine E. Mayle, J.
                                                _______________________________
Gene A. Zmuda, P.J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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