[Cite as State v. Redavide, 2016-Ohio-7804.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 26929
                                                     :
 v.                                                  :   Trial Court Case No. 2012-CR-3731
                                                     :
 JOSHUA M. REDAVIDE                                  :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 18th day of November, 2016.

                                                ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

RICHARD HEMPFLING, Atty. Reg. No. 0029986, Flanagan Lieberman Hoffman &
Swaim, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                               .............

HALL, J.

        {¶ 1} Joshua M. Redavide appeals from the trial court’s denial of his R.C. 2953.21
                                                                                             -2-


petition for post-conviction relief.

       {¶ 2} Redavide advances two assignments of error. First, he contends the trial

court erred in applying the Crim.R. 32.1 manifest-injustice standard applicable to post-

sentence plea-withdrawal motions. Second, he claims the trial court’s denial of his petition

after a hearing is against the weight of the evidence and is an abuse of discretion.

       {¶ 3} The record reflects that Redavide was indicted on one count of involuntary

manslaughter. The case proceeded to trial, where the State presented evidence that he

had participated in a fight that resulted in the death of one victim. On the third day of trial,

Redavide informed the trial court that he wanted to enter a no-contest plea. The trial court

proceeded to conduct a full Crim.R. 11 plea hearing, and Redavide signed a plea form.

The trial court accepted the plea and found him guilty. At sentencing, the trial court

imposed a nine-year prison term.

       {¶ 4} On direct appeal, this court affirmed the trial court’s judgment.1 In so doing,

we reviewed a transcript and a video of the plea hearing and rejected an assignment of

error challenging the knowing, intelligent, and voluntary nature of Redavide’s no-contest

plea. See State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-Ohio-3056, ¶ 8-22.

       {¶ 5} While Redavide’s direct appeal was pending, he filed an August 2014 petition

for post-conviction relief pursuant to R.C. 2953.21. (Doc. #10). Therein, he sought to

vacate his conviction and sentence on the basis that he did not enter a knowing,

intelligent, and voluntary plea. Redavide supported the petition with his own affidavit in

which he claimed his attorney had pressured him to plead no contest and had told him he



1 Although we affirmed the judgment, we remanded the case to allow the trial court to
correct a clerical error in its termination entry.
                                                                                        -3-


would receive a three-to-five year prison sentence if he pled and a statutory maximum

sentence if he did not. He also suggested that his attorney was unprepared for trial. The

State moved for summary judgment on the petition. (Doc. # 14). Redavide then

supplemented his petition with an affidavit from his cousin, Emma Henderson, who stated

that defense counsel had said the sentence would be “three to five years max” if Redavide

pled and that he “definitely would get the maximum sentence” if he did not. (Doc. # 17).

The State responded with an affidavit from Redavide’s trial counsel, Griff Nowicki, who

denied the allegations against him and insisted that he had been prepared for trial.

Nowicki also averred that he had discussed the statutory sentencing range with Redavide

and his family but had not assured them of any particular sentence and certainly not a

maximum sentence of three to five years. (Doc. # 20).

       {¶ 6} Upon review, the trial court found the State entitled to summary judgment

with regard to defense counsel’s alleged lack of preparation. The trial court found a

genuine issue of material fact, however, with regard to whether defense counsel had

pressured Redavide to plead or had assured him that he would receive no more than

three to five years in prison if he pled. (Doc. # 31). The trial court proceeded to hold an

August 26, 2015 evidentiary hearing on these issues.

       {¶ 7} During the hearing, Redavide repeated his claim that defense counsel had

pressured him to plead no contest and had told him he would receive a three-to-five year

prison sentence if he pled and a maximum sentence if he did not. Henderson also testified

at the hearing. She claimed defense counsel had said Redavide would receive “three to

five years max” if he pled and 10 years if he did not. Redavide’s final witness was another

of his cousins, Martha Hawkins. She testified that she was present when Henderson
                                                                                           -4-


asked defense counsel what would happen if Redavide pled no contest. According to

Hawkins, defense counsel responded that he would receive three to five years in prison.

Hawkins could not recall what defense counsel said with regard to the sentence if

Redavide did not plead no contest, but she recalled it being “a lot higher than three to

five.”

         {¶ 8} The final witness at the hearing was defense counsel Nowicki. He testified

that he became convinced during the course of trial that a plea would be in Redavide’s

best interest. He reached this conclusion after cross examining witnesses who testified

about Redavide’s involvement in the fight. Nowicki also explained that the State was

preparing to present emotionally-charged testimony from the victim’s family members,

and he was concerned about the effect it might have on the trial court at sentencing.

Nowicki denied telling Redavide he would receive a specific sentence if he pled.

According to Nowicki, he spoke in terms of “possibilities and probabilities.” Based on his

experience and the way the trial was going, he told Redavide that the sentence was likely

to be more harsh if the trial continued and less harsh if he entered a plea. Nowicki also

discussed sentencing ranges and explained that a “low end” sentence would be three to

five years in prison. He denied assuring Redavide of a three-to-five year sentence. He

also denied telling Redavide that a maximum sentence would be imposed if the case

proceeded through trial. Nowicki explained that he was “shooting for” a low-end sentence

and “kind of had that expectation” but did not promise it. Instead, he told Redavide that

he would do what he could to help obtain a low-end sentence.

         {¶ 9} After hearing the evidence, the trial court filed an October 26, 2015 decision,

order, and entry overruling Redavide’s post-conviction relief petition. In relevant part, the
                                                                                          -5-


trial court reasoned:

              In review of the evidence presented at the hearing, in addition to the

       Rule 11 colloquy, the Court finds that the Petitioner has wholly failed to

       present credible evidence of an overborne will or a promised sentence

       made by his previous attorney, Mr. Nowicki

              First, the Court notes that none of the testimony deduced at the

       hearing suggested actions by Mr. Nowicki which would have overborne the

       will of the Petitioner. Petitioner testified that Mr. Nowicki had made decisions

       with which Petitioner did not agree and that his confidence in Mr. Nowicki’s

       preparedness was dwindling. However, Petitioner did not address these

       concerns with Mr. Nowicki, nor did he attempt to tell the Court about his

       feelings should they have caused him to decide to plead. Despite

       Petitioner’s feelings regarding Mr. Nowicki, at no point during his testimony

       did Petitioner testify that Mr. Nowicki cajoled, overtly exerted persuasion, or

       twisted the arm of Petitioner in an effort to get him to plead. Further, neither

       of the Petitioner’s witnesses testified that Mr. Nowicki was persistent,

       intolerable, or overwhelming when discussing the possibility of pleading to

       the charges as indicated. Based on the testimony presented, the Court finds

       that the Petitioner’s will was not overborne by his attorney.

              Second, the Court finds that no specific or general promise of a

       sentence was made which could reasonably have been relied upon by the

       Petitioner. The Court is reminded that Petitioner, during his plea, was

       specifically asked whether he was making a voluntary plea, whether any
                                                                                  -6-


threats or force was used to persuade the Petitioner to plead, and whether

any promises were made to the Petitioner to plead. Petitioner unequivocally

stated that his plea was voluntary, and neither threats/force nor promises

were made. Petitioner admitted during his hearing testimony that he

understood that he could have received up to eleven years for his sentence,

and during his plea Petitioner told this Court that he understood he could be

sentenced up to eleven years imprisonment. Petitioner argues that he did

not understand the colloquy, and assumed that the Court’s line of

questioning did not include the alleged promise of three to five years

sentence made by his attorney. The Court finds this argument not credible

since Petitioner took the time to interrupt the Court on other issues

regarding his plea that he did not understand, but he did not interrupt the

Court to inquire as to the alleged promise of his attorney.

       Further, Petitioner, Ms. Henderson, and Ms. Hawkins each testified

regarding an alleged statement made by Mr. Nowicki after the second day

of trial. Ms. Henderson testified that she was curious as to what would

happen if Petitioner pled, to which she alleges Mr. Nowicki’s answer was

“three to five years max.” However, none of the witness[es] testified that Mr.

Nowicki promised three to five years upon the Petitioner’s plea. Neither Ms.

Henderson nor Ms. Hawkins were present for the continued discussions

regarding the Petitioner’s plea on the third day of trial, testimonial evidence

which would have surely impacted the sentence of the Petitioner. Petitioner

was present for these discussions, but did not testify that Mr. Nowicki
                                                                                           -7-

       promised Petitioner a certain amount of years for pleading [no contest] at

       that point in trial. Based on Petitioner’s failure to establish testimony of a

       promised sentence, the Court finds that manifest injustice has not occurred.

(Doc. # 36 at 10-11).

       {¶ 10} In his first assignment of error, Redavide contends the trial court erred in

applying a “manifest injustice” standard to his petition for post-conviction relief. He claims

that standard is applicable to post-sentence plea-withdrawal motions under Crim.R. 32.1,

not post-conviction relief petitions under R.C. 2953.21.

       {¶ 11} Upon review, we agree with Redavide that the manifest-injustice standard

did not apply here. As he notes, the standard applies to post-sentence plea-withdrawal

motions under Crim.R. 32.1. State v. Wheeler, 2d Dist. Montgomery No. 18717, 2002 WL

91304, *1 (Jan. 25, 2002). In that context, “[a] ‘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.” Id., quoting State v. Hartzell, 2d Dist. Montgomery

No. 17499, 1999 WL 957746 (Aug. 20, 1999).

              Matters outside the record that allegedly corrupted the defendant’s

       choice to enter a plea of guilty or no contest so as to render the plea less

       than knowing and voluntary are proper grounds for an R.C. 2953.21 petition

       for post-conviction relief. In 1996 the General Assembly limited the number

       of such petitions to but one, which must be filed within 180 days after the

       time for appeal has expired, absent certain narrow showings that R.C.

       2953.23(A) requires. Since then, grounds formerly presented in support of
                                                                                             -8-


       petitions for post-conviction relief are now more frequently employed to

       support Crim.R. 32.1 motions, which are not subject to similar limitations.

       Nevertheless, the availability of R.C. 2953.21 relief on those same grounds

       removes them from the form of extraordinary circumstance demonstrating

       a manifest injustice which is required for Crim.R. 32.1 relief.

(Emphasis added.) Wheeler, at *2, quoting Hartzell.2

       {¶ 12} Because Redavide challenged the knowing, intelligent, and voluntary

nature of his plea by relying on matters outside the record, and because he did so within

the time required for seeking statutory post-conviction relief, we believe his petition, which

invoked R.C. 2953.21, should be analyzed using the standards governing such petitions,

not the manifest-injustice standard governing motions under Crim.R. 32.1. Despite this

conclusion, we find no reversible error for at least two reasons. First, Redavide himself

recited the manifest-injustice standard in his petition, arguing that “ ‘if a guilty plea is

entered pursuant to counsel’s representations * * * that such a plea would result in a

lesser sentence than the sentence actually received, it is necessary to permit post-

sentence withdrawal of the guilty plea in order to prevent manifest injustice.’ ” (Doc. # 10

at 5, quoting State v. Collins, 1st Dist. Hamilton No. C-970138, 1998 WL 57791 (Feb. 13,

1998)). An appellant cannot obtain reversal based on an error that he induced the trial

court to make. See, e.g., State v. Carswell, 9th Dist. Summit No. 23119, 2006-Ohio-5210,

¶ 20-21 (applying the invited-error doctrine where the appellant erroneously suggested

the manifest-injustice standard in his motion and the trial court used that standard in its


2 The time for filing a post-conviction relief petition has since been amended. It is now
365 days after the transcript is filed in the direct appeal or, if no appeal is filed, 365 days
after the expiration of the time for filing an appeal.
                                                                                           -9-


ruling). Second, despite the trial court’s reference to the absence of a manifest injustice,

we are firmly convinced that the outcome below did not turn on the trial court’s reference

to that standard. Rather, resolution of the issue before the trial court turned on witness

credibility and which of two competing versions of events the trial court believed. In that

context, the trial court’s reference to the manifest-injustice standard constituted, at most,

harmless error which we view as the court’s response to the petitioner’s argument that he

should be permitted to withdraw his plea to prevent a manifest injustice. Accordingly, the

first assignment of error is overruled.

       {¶ 13} In his second assignment of error, Redavide challenges the trial court’s

decision as being against the weight of the evidence and an abuse of discretion. He

contends the trial court based its decision on factual errors rather than credibility

determinations. First, he claims the trial court incorrectly stated that he never testified

about defense counsel cajoling him, overtly exerting persuasion on him, or twisting his

arm to get him to plead. Although he did not use those exact words, Redavide points out

that he did testify about defense counsel “pushing” him to plead and “act[ing] like [he] had

no choice.” Second, he claims the trial court incorrectly stated that neither of his witnesses

mentioned defense counsel being persistent, intolerable, or overwhelming when

discussing a plea. Although no witness used those words, Redavide notes that

Henderson testified about defense counsel being “very persistent” and “pushing the idea

of him going ahead and pleading.” Third, Redavide challenges the trial court’s finding that

none of his witnesses testified about defense counsel promising a three-to-five year

sentence. Again, although his witnesses did not use the word “promise,” he notes that he

presented testimony about defense counsel saying he would receive “three to five years
                                                                                          -10-


max.” He asserts that the trial court never expressed disbelief of this testimony, which

implied a promise or guarantee of a three-to-five year sentence.

       {¶ 14} We review a trial court’s denial of post-conviction relief under R.C. 2953.21

for an abuse of discretion, and we will not disturb a ruling that is supported by competent,

credible evidence. State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905,

¶ 45. With this standard in mind, we find Redavide’s arguments to be unpersuasive. We

reject his assertion that the trial court made its decision based on factual errors rather

than permissible credibility determinations. The record establishes that the trial court

disbelieved Redavide’s claims about defense counsel impermissibly pressuring him to

plead no contest and assuring him of a three-to-five year sentence. Indeed, at the outset

of its analysis, the trial court stated: “In review of the evidence presented at the hearing,

in addition to the Rule 11 colloquy, the Court finds that the Petitioner has wholly failed to

present credible evidence of an overborne will or a promised sentence made by his

previous attorney, Mr. Nowicki.” (Emphasis added.) (Doc. # 36 at 10).

       {¶ 15} At another point in its ruling, the trial court stated: “Mr. Nowicki testified,

which the court found credible, that he did not once make a promise about a certain

sentence the Petitioner might receive from the judge, and advised during every plea

discussion that the sentence would always be up to the judge.” (Emphasis added.) (Id. at

7). This credibility determination by the trial court reasonably supports a conclusion that

defense counsel did not promise, guarantee, or assure Redavide that he would receive

any particular sentence. The trial court was not required to recite each of the foregoing

words, which in the present context mean essentially the same thing. The trial court’s

credibility determination that defense counsel did not promise a particular sentence and
                                                                                           -11-

said the sentence would be up to the judge necessarily rendered not credible the defense

witnesses’ competing testimony that defense counsel said Redavide would receive a

sentence of “three to five years max” if he pled. It is apparent to us that the trial court

believed and credited defense counsel’s testimony while disbelieving and not crediting

the testimony presented by Redavide and his witnesses. As the trier of fact, the trial court

had discretion to make these credibility determinations.

       {¶ 16} In conclusion, we find competent, credible evidence to support the trial

court’s denial of Redavide’s petition. The trial court’s decision is neither against the weight

of the evidence nor an abuse of discretion. Accordingly, the second assignment of error

is overruled.

       {¶ 17} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                       .............

DONOVAN, P.J., and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck
Andrew T. French
Richard Hempfling
Hon. Gregory F. Singer
