[Cite as State v. Turner, 2016-Ohio-3200.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :  C.A. CASE NO. 26801
                                                   :
 v.                                                :  T.C. NO. 14CR2504
                                                   :
 EDWARD L. TURNER                                  :  (Criminal appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :
                                              ...........

                                             OPINION

                    Rendered on the ___27th___ day of ___May___, 2016.

                                              ...........

MEAGAN D. WOODALL, Atty, Reg. No. 0093466, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

EDWARD L. TURNER, #711-599, Madison Correctional Institution, P. O. Box 740,
London, Ohio 43140
     Defendant-Appellant

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

DONOVAN, P.J.

        {¶ 1} Defendant-appellant, Edward L. Turner, acting pro se, appeals a decision of

the Montgomery County Court of Common Pleas, Criminal Division, denying his motion

to withdraw his guilty plea. Turner filed a timely notice of appeal with this Court on

August 17, 2015.

        {¶ 2} On August 27, 2014, Turner was indicted for the following offenses, to wit: I)
                                                                                          -2-


felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of

the second degree; II) felonious assault (deadly weapon), in violation of R.C.

2903.11(A)(2), a felony of the second degree; III) having a weapon while under disability

(prior offense of violence), in violation of 2929.13(A)(2), a felony of the third degree; IV)

tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), a felony of the

third degree; and V) having a weapon while under disability (prior drug conviction), in

violation of R.C. 2929.13(A)(3), a felony of the third degree. Both counts of felonious

assault were accompanied by mandatory three-year firearm specifications.              At his

arraignment on September 2, 2014, Turner pled not guilty to all of the charges in the

indictment.

       {¶ 3} Thereafter, on November 26, 2014, Turner pled guilty to tampering with

evidence (alter/destroy), as well as both counts of having a weapon while under disability.

In return for his guilty plea, the State agreed to dismiss both counts of felonious assault

and their attendant firearm specifications. Turner and the State also agreed that his

aggregate sentence would range between three and five years for the three guilty pleas.

The trial court accepted Turner’s pleas and found him guilty on all three counts.

       {¶ 4} On December 11, 2014, the trial court merged the two convictions for having

a weapon while under disability. The trial court then sentenced Turner to 36 months in

prison for the merged count of having a weapon while under disability and 24 months for

tampering with evidence.       The trial court ordered that the sentences be served

consecutively for an aggregate prison term of five years (60 months). Turner’s judgment

entry of conviction was filed on December 16, 2014. The record establishes that Turner

did not file a direct appeal of his conviction and sentence.
                                                                                         -3-


       {¶ 5} However, approximately seven months later on July 10, 2015, Turner filed a

motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. In his motion to withdraw,

Turner argued that his counsel was ineffective for not objecting when the trial court failed

to make the requisite findings pursuant to R.C. 2929.14(C)(4) before imposing

consecutive sentences. In a decision issued on July 22, 2015, the trial court denied

Turner’s motion to withdraw.

       {¶ 6} It is from this judgment that Turner now appeals.

       {¶ 7} As they are all interrelated, Turner’s three assignments of error will be

discussed together as follows:

       {¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT IN GRANTING THE STATE OF OHIO A SUMMARY JUDGMENT IN

VIOLATION OF HIS ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW

AS GUARANTEED BY THE 14TH AMENDMENT, U.S. CONSTITUTION, AS WELL AS

ARTICLE 1, S/S10, OHIO CONSTITUTION.”

       {¶ 9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT IN NOT ORDER [sic] AND CONDUCTING AN EVIDENTIARY HEARING

BEFORE ENTERING JUDGMENT IN THE CASE IN VIOLATION OF HIS ABSOLUTE

RIGHT TO PROCEDURAL DUE PROCESS OF LAW AS GUARANTEED UNDER THE

OHIO AND U.S. CONSTITUTION.”

       {¶ 10} “IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT NOT TO

MODIFY DEFENDANT-APPELLANT’S FIVE (5) YEAR SENTENCE TO A JUDGMENT

OF THREE (3) YEARS IN VIOLATION OF HIS ABSOULTE RIGHT TO PROCEDURAL

PROCESS OF LAW.”
                                                                                           -4-


       {¶ 11} In the instant appeal, Turner contends that the trial court erred when it

denied his post-sentence motion to withdraw his guilty pleas. Specifically, Turner argues

that his motion to withdraw should have been granted because his trial counsel failed to

object when the trial court imposed consecutive sentences without first making the

requisite statutory findings under R.C. 2929.14(C)(4). Turner also asserts that the trial

court should have held an evidentiary hearing during which he could have presented

documentation to support his motion to withdraw. Lastly, Turner argues that because

the trial court failed to make the proper findings under R.C. 2929.14(C)(4), “he was

presumed to be entitled to concurrent sentences that totaled no more than thirty-six (36)

months rather than the sixty (60) months imposed.”

       {¶ 12} We review a trial court's decision on a post-sentence motion to withdraw a

guilty plea and on a decision granting or denying a hearing on the motion for an abuse of

discretion.   Xenia v. Jones, 2d Dist. Greene No. 07–CA–104, 2008–Ohio–4733, ¶

6; State v. Perkins, 2d Dist. Montgomery No. 25808, 2014–Ohio–1863, ¶ 27. “An abuse

of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal decision-

making.’ ” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011–Ohio–5070, ¶ 16,

quoting State v. Beechler, 2d Dist. Clark No. 09–CA–54, 2010–Ohio–1900, ¶ 62. (Other

citation omitted.) “Absent an abuse of discretion on the part of the trial court in making

the ruling, its decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715 (1992).

       {¶ 13} Crim.R. 32.1 provides that a trial court may grant a defendant's post-

sentence motion to withdraw a guilty plea only to correct a manifest injustice.

Accordingly, a defendant who moves to withdraw his plea bears the burden of
                                                                                          -5-

establishing a manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002–Ohio–2278, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus. “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.” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010–Ohio–

1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746,

*2 (Aug. 20, 1999). Under this standard, a post sentence motion to withdraw is allowable

only in extraordinary cases. Smith at 264.

       {¶ 14} “A hearing on a post-sentence motion to withdraw a guilty 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 to withdraw the guilty plea.” State v. Mogle, 2d Dist. Darke

Nos. 2013–CA–4, 2013–CA–5, 2013–Ohio–5342, ¶ 17, quoting State v. Burkhart, 2d

Dist. Champaign No. 07–CA–26, 2008–Ohio–4387, ¶ 12. In other words, “[t]o obtain a

hearing, ‘a movant must establish a reasonable likelihood that the withdrawal is

necessary to correct a manifest injustice[.]’ ” State v. Tunstall, 2d Dist. Montgomery No.

23730, 2010–Ohio–4926, ¶ 9, quoting State v. Whitmore, 2d Dist. Clark No. 06–CA–50,

2008–Ohio–2226, ¶ 11. “[W]e have held that no hearing is required on a post-sentence

motion to withdraw a plea where the motion is supported only by the movant's own self-

serving affidavit, at least when the claim is not supported by the record.” (Citations

omitted.) State v. Stewart, 2d Dist. Greene No. 2003–CA–28, 2004–Ohio–3574, ¶ 6.

       {¶ 15} We recently addressed a strikingly similar situation in State v. Walz, 2d Dist.

Montgomery No. 26131, 2014-Ohio-4712, wherein the defendant entered guilty pleas to
                                                                                           -6-

two counts of felonious assault and one count of failure to comply. Id. at ¶ 4. The trial

court merged the felonious assault convictions. Id. It then imposed a five-year sentence

for felonious assault and a consecutive one-year sentence for failure to comply. Id. The

defendant did not appeal. Id. Approximately five months later, the defendant filed a pro

se Crim.R. 32.1 motion to withdraw his guilty pleas. Id. at ¶ 5. Pertinent to the instant

appeal, the defendant argued that his counsel was ineffective at sentencing for failing to

object to a lack of consecutive-sentence findings on the felonious assault and failure-to-

comply charges. Id.

      {¶ 16} Ultimately, we affirmed the judgment of the trial court denying the

defendant’s motion to withdraw, stating as follows:

             Here the manifest injustice Walz alleged was ineffective assistance

      of trial counsel.   Specifically, he alleged that his guilty pleas were not

      entered knowingly, intelligently, and voluntarily because he was deprived of

      effective assistance of counsel at sentencing.           As set forth above, he

      claimed counsel, at sentencing, * * * failed to object to a lack of consecutive-

      sentence findings * * *.

             The foregoing sentencing-related arguments have nothing to do with

      the guilty pleas that preceded sentencing. Even if we assume, arguendo,

      the existence of some error or ineffective assistance of counsel at

      sentencing,     those   issues   fail   to   establish    a   manifest   injustice

      warranting withdrawal of the guilty pleas themselves.         Walz's arguments

      are not even directed toward the pleas, which were the only proper subject

      of his Crim.R. 32.1 motion. [State v. Ogletree, 2d Dist. Clark No. 2014–
                                                                                           -7-


       CA–16, 2014–Ohio–3431,] ¶ 19–20 (finding that the trial court's alleged

       failure to make consecutive-sentence findings did not constitute grounds

       for withdrawing a plea under Crim.R. 32.1).       Because Walz has not

       demonstrated entitlement to withdraw his guilty pleas even if his allegations

       are true, the trial court was not required to hold an evidentiary hearing.

Walz at ¶ 8-9.

       {¶ 17} Initially, we note that the transcript of the sentencing hearing clearly

indicates that the trial court made the requisite findings pursuant to R.C. 2929.14(C)(4)

before it imposed consecutive sentences. Additionally, on December 15, 2014, the trial

court issued a “Supplemental Termination Entry: Findings in Support of Consecutive

Sentences” in which it journalized its findings pursuant to R.C. 2929.14(C)(4) in support

of its decision to impose consecutive sentences. Moreover, the parties agreed to a

sentence within the range of three to five years.       Nevertheless, Turner’s sentencing

argument has nothing to do with whether he entered his guilty pleas knowingly,

intelligently, or voluntarily. Walz at ¶ 10. Therefore, in accordance with our prior holding

in   Walz,   we   find   that   Turner   has   not   demonstrated    a   manifest    injustice

warranting withdrawal of his guilty pleas, and the trial court did not err when it declined to

hold an evidentiary hearing on his motion to withdraw.

       {¶ 18} Lastly, we reiterate that in Ogletree, we held that an argument about a lack

of consecutive-sentence findings could not be raised in the context of a

Crim.R. 32.1 motion to withdraw a guilty plea. We further opined that the issue could

have been raised in a direct appeal and, therefore, that res judicata also precluded it from

being raised in a post-judgment context. Ogletree at ¶ 21–22. In another recent case,
                                                                                       -8-


this court held that the absence of required consecutive-sentence findings renders the

sentence imposed contrary to law and “not merely voidable, but void.” State v.

Rammel, 2d Dist. Montgomery Nos. 24871, 24872, 2013–Ohio–3045, ¶ 19 (Rammel II).

However, in State v. Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2014–Ohio–

1281 (Rammel III ), we further recognized, citing R.C. 2953.08(D)(1), that an agreed

sentence is not reviewable on appeal. Id. at ¶ 10. And, we have recently held that

findings to justify a consecutive sentence are unnecessary when the sentence is an

agreed sentence. State v. Weese, 2d Dist. Clark No. 2013–CA–61, 2014–Ohio–3267,

¶ 5; accord State v. Sergent, -- Ohio St.3d --, 2016-Ohio-2696 (a trial court judge is not

required to make a separate consecutive-sentence finding if presented with a jointly

recommended sentence that contains consecutive sentences).             But regardless of

whether res judicata would apply, we agree with Ogletree that a lack of consecutive-

sentence findings does not constitute grounds for withdrawing a plea under Crim.R. 32.1,

which is the only issue before us.

       {¶ 19} Turner’s first, second, and third assignments of error are overruled.

       {¶ 20} All of Turner’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                       ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Meagan D. Woodall
Edward L. Turner
Hon. Mary L. Wiseman
