[Cite as State v. Alsip, 2014-Ohio-4180.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                              :          APPEAL NO. C-130699
                                                       TRIAL NO. B-1205436
        Plaintiff-Appellee,                 :
                                                            O P I N I O N.
  vs.                                       :

DENNIS ALSIP, JR.,                          :

      Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 24, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,


Ernst & Associates, LLC, and Matthew T. Ernst, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
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F ISCHER , Judge.

       {¶1}    Defendant-appellant Dennis Alsip appeals the decision of the trial

court denying his postsentence motion to withdraw his no-contest plea. Alsip argues

that a manifest injustice occurred when the trial court sentenced him to a maximum

prison term following his plea because his attorney had promised him that he would

not receive the maximum sentence upon pleading no contest. Because we determine

that Alsip failed to present any evidence that he substantially relied on his counsel’s

advice in entering his plea, we affirm the denial of his motion.

       {¶2}     On July 16, 2012, a vehicle driven by Alsip travelled left of center on

the roadway and struck a vehicle driven by Lisa Hasting head-on, killing her. A

grand jury indicted Alsip on two counts of aggravated vehicular homicide under R.C.

2903.06(A)(1) and 2903.06(A)(2). Alsip pleaded no contest to both counts. The

trial court found Alsip guilty and merged the counts for sentencing. On August 12,

2013, the trial court sentenced Alsip to the maximum prison term for a second-

degree felony—eight years—and imposed a lifetime driver’s license suspension.

       {¶3}    On August 16, 2013, Alsip filed a motion to withdraw his no-contest

plea and attached an affidavit in support from his counsel, Matthew Ernst. Ernst

stated that he had discussed Alsip’s case off the record with the trial court and the

prosecuting attorney. Ernst further stated “[i]t was related to me by [the judge] that

Mr. Alsip would not receive the minimum sentence and not receive the maximum

sentence upon entering a plea to the felony of the second degree.” Ernst then

“informed Mr. Alsip that this deal would not be, and was not to be, discussed on the

trial record.” On the basis of this evidence, Alsip argued that his plea was not

voluntarily entered.




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       {¶4}    In response to Alsip’s motion, the state filed a memorandum in

opposition supported by an affidavit from Richard Gibson, the prosecuting attorney

assigned to Alsip’s case. Gibson averred that he, Ernst, and the trial judge had

discussed Alsip’s possible change of plea.          Ernst had “asked [the judge] what

sentence she would impose if Alsip changed his plea to guilty or no contest.” Before

the trial judge had answered, Gibson had told the judge that he would seek the

maximum sentence.       The judge then had “refused to make a commitment on

sentencing, saying only that she normally did not impose a maximum sentence

where a plea of guilty or no contest was entered, but that she would look at

everything before deciding on an appropriate sentence in this case.”

       {¶5}    Without holding an evidentiary hearing, the trial court denied Alsip’s

motion to withdraw his plea. Alsip now appeals.

       {¶6}    In his first assignment of error, Alsip alleges that the trial court

abused its discretion in denying his motion to withdraw his plea under Crim.R. 32.1.

       {¶7}    A trial court may permit a defendant to withdraw a guilty plea after

imposition of a sentence under Crim.R. 32.1 only where “manifest injustice” has

occurred. State v. Shirley, 1st Dist. Hamilton No. C-130121, 2013-Ohio-5216, ¶ 8;

State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the

syllabus. A defendant is not entitled to an evidentiary hearing on a Crim.R. 32.1

motion unless the facts as alleged in the motion merit withdrawal of the plea. State

v. Dye, 1st Dist. Hamilton No. C-120483, 2013-Ohio-1626, ¶ 6. The defendant

carries the burden to demonstrate that a manifest injustice occurred, and a trial

court’s decision on the matter, as well as its decision whether to hold an evidentiary

hearing, is reviewed for an abuse of discretion. State v. Kostyuchenko, 2014-Ohio-

324, 8 N.E.3d 353, ¶ 4 (1st Dist.), citing Smith.


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       {¶8}    Alsip asserts that his counsel’s advice that the trial judge would not

impose the maximum sentence upon a plea resulted in manifest injustice where Alsip

received the statutory maximum.

       {¶9}    Manifest injustice may result from counsel’s statements to a

defendant regarding a promised sentence; however, “[m]anifest injustice does not

ipso facto result” from such statements. State v. Testerman, 1st Dist. Hamilton No.

C-010040, 2001 Ohio App. LEXIS 3605 (Aug. 17, 2001), quoting State v. Blatnik, 17

Ohio App.3d 201, 203, 478 N.E.2d 1016 (6th Dist.1984). A defendant must have

substantially relied upon counsel’s communications regarding a promised sentence

to the defendant’s detriment to create a manifest injustice. See Testerman at *9;

State v. Lagenkamp, 3d Dist. Shelby Nos. C-17-08-03 and C-17-08-04, 2008-Ohio-

5308, ¶ 27.

       {¶10}   In his Crim.R. 32.1 motion, Alsip relies primarily on State v. Collins,

1st Dist. Hamilton No. C-970138, 1998 Ohio App. LEXIS 476 (Feb. 13, 1998). In

Collins, the court reversed a trial court’s decision denying a defendant’s motion to

withdraw his plea postsentence where the defendant’s trial attorney had erroneously

told the defendant that an agreement had been reached among himself, the trial

court, and the prosecutor, to allow the defendant to plead guilty to reduced charges

in exchange for “low end concurrent sentences,” and the trial court had imposed

consecutive sentences.   Id. at *7-8.   In that case, the attorney averred that the

defendant would not have pleaded guilty had the defendant known that consecutive

sentences might be a possibility. State v. Collins, 1st Dist. Hamilton No. C-960170,

1996 Ohio App. LEXIS 4553 (Oct. 16, 1996). Moreover, the defendant testified that

he had pleaded guilty only because his attorney had told him he would receive

concurrent sentences. Collins, 1st Dist. Hamilton No. C-970138, 1998 Ohio App.


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LEXIS 476, at *9. In determining that a manifest injustice had occurred, the court

reasoned that the defendant’s attorney had rendered ineffective assistance by

conveying an inaccurate promise of a sentence to the defendant, and that the

defendant had been induced to enter guilty pleas on that basis.

       {¶11}   Even if we construe the factual allegations in Alsip’s motion as true,

Alsip set forth no evidence to show that he had substantially relied on his attorney’s

statements to him that he would not receive the maximum sentence upon pleading

no contest. See Testerman at *11; Lagenkamp at ¶ 27. Unlike Collins, where the

defendant and his counsel stated that the defendant would not have pleaded guilty

absent the promised sentence, in this case, we do not have any evidence that Alsip

would not have pleaded guilty if he thought the maximum sentence might have been

imposed. Thus, Alsip failed to meet his burden under Crim.R. 32.1, and the trial

court did not abuse its discretion in denying Alsip’s motion without an evidentiary

hearing. See Dye, 1st Dist. Hamilton No. C-120483, 2013-Ohio-1626, at ¶ 6. We

overrule Alsip’s first assignment of error.

       {¶12}   In his second assignment of error, Alsip contends that the trial court

erred in imposing the maximum prison sentence because he lacked a criminal

record. The trial court entered its judgment of conviction on August 12, 2013, and

Alsip did not appeal from that order within 30 days as required by App.R. 4(A)(1).

Therefore, we have no jurisdiction to entertain this assignment of error. See State v.

Blankenship, 4th Dist. Ross No. 13CA3364, 2013-Ohio-5261, ¶ 4.

       {¶13}   In conclusion, we determine that Alsip failed to demonstrate in his

Crim.R. 32.1 motion that a manifest injustice occurred when the trial court sentenced

him to the maximum prison term on his no-contest plea, despite his attorney’s

promise to him that he would not receive the maximum sentence, because Alsip did


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not come forth with any evidence indicating that he had substantially relied upon his

counsel’s advice in choosing to plead. Therefore, we affirm the trial court’s judgment

denying Alsip’s motion.


                                                                     Judgment affirmed.



CUNNINGHAM, P.J., and DEWINE, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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