[Cite as State v. Thomas, 2011-Ohio-4337.]


                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 10-10-17

        v.

JASON C. THOMAS,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 09-CRM-008

                                     Judgment Affirmed

                            Date of Decision: August 29, 2011




APPEARANCES:

        Gene P. Murray for Appellant

        Matthew K. Fox for Appellee




ROGERS, P.J.
Case No. 10-10-17


         {¶1} Defendant-Appellant, Jason Thomas, appeals from the judgment of

the Court of Common Pleas of Mercer County denying his motion to withdraw his

pleas of no contest (“Motion to Withdraw”). On appeal, Thomas contends that the

trial court erred in denying his Motion to Withdraw in three respects: (1) the trial

court erred in finding that he was properly informed of his right to appeal during

the Crim.R. 11 colloquy; (2) the trial court failed to inform him of his right to

appeal during the sentencing hearing, in violation of Crim.R. 32(B);1 and, (3) the

trial court abused its discretion by denying a hearing on previously undiscovered

evidence which is exculpatory in nature. Based on the following, we affirm the

judgment of the trial court.

         {¶2} In January 2009, the Mercer County Grand Jury indicted Thomas on

Count One: felony murder (based on the predicate offense of felonious assault in

violation of R.C. 2903.11) in violation of R.C. 2903.02(B), an unclassified felony;

Count Two: felonious assault in violation of R.C. 2903.11(A)(1), a felony of the

second degree; Count Three, felony murder (based on the predicate offense of

child endangerment in violation of R.C. 2919.22(B)(1), (E)(2)(d)) in violation of

R.C. 2903.02(B), an unclassified felony; Count Four: child endangerment in


1
  We note that the error asserted in Thomas’ second assignment of error was not raised before the trial court
in his Motion to Withdraw. We will discuss this issue in further detail in our analysis of Thomas’ second
assignment of error.
                                                    -2-
Case No. 10-10-17


violation of R.C. 2919.22(B)(1), (E)(2)(d), a felony of the second degree; Count

Five: involuntary manslaughter, (based on the predicate offense of felonious

assault in violation of R.C. 2903.11(A)(1)) in violation of R.C. 2903.04(A), a

felony of the first degree; Count Six: involuntary manslaughter (based on the

predicate offense of child endangerment in violation of R.C. 2919.22(A),

(E)(2)(c)) in violation of R.C. 2903.04(A), a felony of the first degree; Count

Seven: involuntary manslaughter (based on the predicate offense of child

endangerment in violation of R.C. 2919.22(B)(1), (E)(2)(d)) in violation of R.C.

2903.04(A), a felony of the first degree; Count Eight: child endangerment in

violation of R.C. 2919.22(A), (E)(2)(c), a felony of the third degree; and, Count

Nine: reckless homicide in violation of R.C. 2903.041, a felony of the third

degree. The indictment arose from the death of a ten and a half month old child

(“Child”), with whom Thomas resided and for whom Thomas provided care.

       {¶3} On February 2, 2009, Thomas made his initial appearance before the

trial court. At that time the trial court assigned Thomas a court appointed attorney,

as he was found to be indigent, and set arraignment for March 4, 2009.

Subsequently, Thomas filed a motion for continuance of the arraignment, which

the trial court granted. On April 29, 2009, Thomas was arraigned and entered a

plea of not guilty to all counts in the indictment.

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Case No. 10-10-17


         {¶4} On June 3, 2009, the matter proceeded to a change of plea hearing.

Pursuant to a written plea agreement Thomas entered pleas of no contest to Count

One and Count Two of the indictment and the State moved to dismiss all

remaining counts of the indictment.2 Prior to accepting Thomas’ pleas of no

contest the trial court conducted a Crim.R. 11 colloquy, during which it asked:

         The Court: Do you also understand you’re waiving your right to
         appeal the judgment of this court if the court is to find you
         guilty?

         The Defendant: Yes.

Change of Plea Hearing Tr., p. 7.3                     After the colloquy, the State read the

stipulation of facts into the record, and Thomas signed a written stipulation of

facts. The stipulation read:

         On or about January 14, 2009, approximately 7:17 p.m., the
         Celina Police Department received a report of an injured child
         in the City of Celina, County of Mercer, State of Ohio. Celina
         Police officers responded to the child’s residence along with
         emergency medical service personnel and found a 10 [and a half]
         month old child apparently not breathing, unresponsive with
         multiple bruises on his face, chest and abdomen.



2
  On June 4, 2009, the State filed a nolle prosequi on Counts Three, Four, Five, Six, Seven, Eight, and Nine
of the indictment.
3
  We note that during the change of plea hearing Thomas signed a “Waiver of Constitutional Rights Prior to
Entering a Plea of Guilty.” Despite this reference to a plea of guilty, it is clear from the record that Thomas
entered pleas of no contest in open court, was apprised of the consequences of such pleas in open court, and
the same was memorialized in the trial court’s judgment entry, thus rendering reference to a plea of guilty
harmless.
                                                     -4-
Case No. 10-10-17


       The child was taken to Mercer Health, and transferred to
       Children’s Medical Center in Dayton, Ohio, where the child died
       on January 15, 2009. The cause of death was reported to be
       non-accidental multiple blunt force trauma to the child. Also,
       multiple bruises, broken bones and injuries to the child’s
       internal organs were found. The opinion of the treating
       physician at Children’s Medical Center was that the child was
       abused. The injuries and death were consistent with Shaken
       Baby Impact Syndrome.

       Jason Thomas admitted to committing the assault against the
       minor child that resulted in the child’s death.

Thereafter, the trial court accepted Thomas’ pleas of no contest to Counts One and

Two of the indictment, finding that they were entered voluntarily, knowingly, and

intelligently.

       {¶5} On July 22, 2009, the matter proceeded to sentencing. On Count One

of the indictment the trial court sentenced Thomas to a prison term of fifteen years

to life. On Count Two of the indictment the trial court sentenced Thomas to an

eight-year prison term to run concurrently with his sentence in Count One.

       {¶6} On August 4, 2010, Thomas filed a Motion to Withdraw pursuant to

Crim.R. 32.1 arguing: that the trial court improperly informed him of his right to

appeal during the change of plea hearing; that he received ineffective assistance of

counsel; and, that there is previously undiscovered evidence, which is exculpatory

in nature.       In support of his argument concerning previously undiscovered


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Case No. 10-10-17


evidence, Thomas submitted affidavits from Kelly Reck, the Child’s paternal

grandmother, and Sue Thomas, Thomas’ mother. The affidavits were notarized on

June 7, 2010.     Both affiants stated that in December 2009 they met with a

detective of the Celina Police Department who informed them that law

enforcement had no evidence implicating Thomas in the Child’s death, and that

there was evidence that Sidney Steinecker, the Child’s mother, caused the Child’s

death.

         {¶7} On November 15, 2010, the trial court filed its judgment entry

denying Thomas’ Motion to Withdraw, finding, in pertinent part:

         * * * With regard to the claimed new evidence, the affidavit of
         Kelly L. Reck, the paternal grandmother of the child victim, and
         the affidavit of Sue Thomas, the defendant’s mother, claim that
         on December 4, 2009, they were told by Celina Police
         Department Detective Calvin Freeman that the police knew that
         Sidney Steinecker, the victim’s mother, caused his fatal injuries
         and that the police never had any evidence on the defendant.
         First and foremost, those statements are blatant hearsay when
         used to prove the truth of the matter asserted in those
         statements. If the motion had been accompanied by an affidavit
         from Detective Freeman to that same effect, such evidence may
         be a factual basis for the court to consider defendant’s motion to
         withdraw his plea. Furthermore, the motion is not supported by
         any affidavit or statement of the defendant that contradicts the
         stipulation of facts signed by the defendant and acknowledged at
         the change of plea hearing on June 3, 2009.

         The court concludes that there exists insufficient evidence in
         support of defendant’s motion to establish manifest injustice

                                        -6-
Case No. 10-10-17


      sufficient to permit him to withdraw his plea. Furthermore,
      there is insufficient evidence to warrant an evidentiary hearing
      on the motion.

      With regard to the second and third bases for defendant’s
      motion, the court has reviewed the transcript of the change of
      plea hearing. It is apparent from the record that the court
      complied with Criminal Rule 11 during the change of plea
      hearing, specifically with regard to defendant’s claim that the
      court incorrectly advised the defendant that by entering the no
      contest plea he was waiving his right to appeal. That allegation
      is misleading and inaccurate. Specifically, the court did advise
      the defendant that by entering the no contest pleas, he was
      waiving his right to appeal the judgment of the court if the court
      found him to be guilty, that being an accurate statement of an
      effect of his no contest plea. The court did not advise him that
      he could not appeal any other issue other than the court’s
      judgment.

November 15, 2010 Judgment Entry, pp. 2-3.

      {¶8} It is from this judgment Thomas appeals, presenting the following

assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT REVERSIBLY ERRED IN DENYING
      THE    DEFENDANT-APPELLANT’S       MOTION     TO
      WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE
      JUDGMENTS OF GUILTY AND JUDGMENTS OF
      SENTENCES, PURSUANT TO CRIM. R. 32.1, ON GROUNDS
      THAT THE TRIAL COURT HAD ABUSED ITS
      DISCRETION   IN  ORIGINALLY      ADVISING    THE
      DEFENDANT THAT HE WAS WAIVING HIS RIGHT TO
      APPEAL THE JUDGMENT OF THE COURT IF THE COURT
      WAS TO FIND HIM GUILTY, THEREBY DENYING THE

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Case No. 10-10-17


      DEFENDANT HIS FUNDAMENTAL AND SUBSTANTIAL
      RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY
      THE DUE PROCESS CLAUSE OF THE FOURTEENTH
      AMENDMENT TO THE UNITED STATES CONSTITUTION.

                    Assignment of Error No. II

      THE TRIAL COURT REVERSIBLY ERRED IN DENYING
      THE    DEFENDANT-APPELLANT’S       MOTION     TO
      WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE
      JUDGMENTS OF GUILTY AND JUDGMENTS OF
      SENTENCES, PURSUANT TO CRIM. R. 32.1, ON GROUNDS
      THAT AS A MATTER OF LAW, AND AS A MATTER OF AN
      ABUSE OF DISCRETION, THE TRIAL COURT FAILED TO
      NOTIFY THE DEFENDANT-APPELLANT OF HIS RIGHT
      TO APPEAL, UPON HIS SENTENCING IN A SERIOUS
      FELONY CASE, IN VIOLATION OF RULE 32 (B) OF THE
      OHIO RULES OF CRIMINAL PROCEDURE, AND ALSO IN
      VIOLATION    OF   THE   DEFENDANT-APPELLANT’S
      FUNDAMENTAL AND SUBSTANTIAL RIGHT TO DUE
      PROCESS OF LAW, AS GUARANTEED BY THE DUE
      PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
      TO THE UNITED STATES CONSTITUTION.

                    Assignment of Error No. III

      IN AN ABUSE OF ITS DISCRETION, THE TRIAL COURT
      REVERSIBLY ERRED IN DENYING DEFENDANT-
      APPELLANT’S MOTION TO WITHDRAW HIS NO
      CONTEST PLEAS AND VACATE JUDGMENTS OF GUILTY
      AND JUDGMENTS OF SENTENCES, PURSUANT TO CRIM.
      R.   32.1, ON    GROUNDS    THAT    PREVIOUSLY
      UNDISCOVERED      EVIDENCE     FAVORABLE    TO
      DEFENDANT-APPELLANT     HAS    BEEN   RECEIVED,
      SUPPORTED BY AFFIDAVITS, AND WHICH SHOULD
      HAVE BEEN PROVIDED TO THE DEFENSE BY THE
      STATE, AND WAS NOT, IN VIOLATION OF RULE
                                -8-
Case No. 10-10-17


         16(B)(1)(f) OF     THE     OHIO       RULES      OF    CRIMINAL
         PROCEDURE.

         {¶9} Due to the nature of Thomas’ assignments of error we will address his

second assignment of error first, followed by his first and third assignments of

error.

                             Assignment of Error No. II

         {¶10} In his second assignment of error, Thomas contends that the trial

court erred in denying his Motion to Withdraw because the trial court failed to

advise him of his right to appeal during the sentencing hearing in violation of

Crim.R. 32 (B)(2). We disagree.

         {¶11} Review of record reveals that Thomas did not raise the foregoing

sentencing issue in his Motion to Withdraw. A court of appeals is not required to

consider issues not raised before the trial court. State v. Robinson, 3d Dist. No. 8-

97-20, 1999 WL 152890, *1, citing Republic Steel Corp. v. Bd. Of Revision

(1963), 175 Ohio St. 179. Consequently, we decline to consider the merits of

Thomas’ second assignment of error.

         {¶12} However, had Thomas raised the sentencing issue in his Motion to

Withdraw, and had we found his argument meritorious, it would not be grounds to

reverse the trial court’s denial of his Motion to Withdraw, because such an error


                                         -9-
Case No. 10-10-17


bears no relation to the voluntary, knowing, and intelligent nature of his pleas.

See State v. Seaunier, 3d Dist. No. 14-10-12, 2011-Ohio-658, ¶14.

       {¶13} Accordingly, we overrule Thomas’ second assignment of error.

                        Assignments of Error Nos. I & III

       {¶14} In his first assignment of error, Thomas contends that the trial court

erred in denying his Motion to Withdraw because the trial court improperly

advised him of his right to appeal during the Crim.R. 11 colloquy, resulting in

manifest injustice. In his third assignment of error, Thomas contends that the trial

court erred in denying his Motion to Withdraw because affidavits filed with his

motion contained newly discovered information that is exculpatory in nature. We

disagree with both contentions.

                                  Standard of Review

       {¶15} 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.” See, also, State

v. Mata, 3d Dist. No. 1-04-54, 2004-Ohio-6669, ¶6. A defendant who files a post-

sentence motion to withdraw a plea of guilty or no contest bears the burden of

establishing manifest injustice based on specific facts either contained in the

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Case No. 10-10-17


record or supplied through affidavits attached to the motion. State v. Orris, 10th

Dist. No. 07AP-390, 2007-Ohio-6499, ¶8; State v. Langenkamp, 3d Dist. Nos. 17-08-

03, 17-08-04, 2008-Ohio-5308, ¶9, citing State v. Totten, 10th Dist. Nos. 05AP-

278, 05AP-508, 2005-Ohio-6210, ¶5. A manifest injustice is an exceptional defect

in the plea proceedings, State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-

4935, ¶12, or a “clear or openly unjust act.” State v. Walling, 3d Dist. No. 17-04-

12, 2005-Ohio-428, ¶6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d

203, 208, 1998-Ohio-271. Accordingly, a post-sentence motion to withdraw a no

contest plea is only granted in “extraordinary cases.” State v. Cline, 4th Dist. No.

09CA16, 2009-Ohio-6007, ¶7, citing State v. Allison, 4th Dist. No. 06CA9, 2007-

Ohio-789, ¶7, citing State v. Smith (1977), 49 Ohio St.2d 261, 264.

       {¶16} The decision to grant or deny a Crim.R. 32.1 motion is committed to

the sound discretion of the trial court, and “the good faith, credibility and weight

of the movant’s assertions in support of the motion are matters to be resolved by

that court.” Smith, supra, at paragraph two of the syllabus. Appellate review of

the denial of a post-sentence motion to withdraw a no contest plea is therefore

limited to a determination of whether the trial court abused its discretion. Cline,

2009-Ohio-6007, at ¶8. A trial court will be found to have abused its discretion

when its decision is contrary to law, unreasonable, not supported by the evidence,

                                       -11-
Case No. 10-10-17


or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-

18, citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse

of discretion standard, a reviewing court may not simply substitute its judgment

for that of the trial court. State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000

WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

           Notification of Right to Appeal during Crim.R. 11 Colloquy

      {¶17} Initially, we note that consideration of Thomas’ first assignment of

error is barred by res judicata. “[U]nder the doctrine of res judicata, a final

judgment of conviction bars a convicted defendant who was represented by

counsel from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial, which resulted in that judgment of

conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d

93, 1996-Ohio-337, syllabus. Consequently, res judicata will serve to bar all

claims raised in a Crim.R. 32.1 motion that were raised or could have been raised

in a prior proceeding. State v. Coats, 3d Dist. Nos. 10-09-04, 10-09-05, 2009-

Ohio-3534, ¶16, citing State v. Sanchez, 3d Dist. No. 4-06-31, 2007-Ohio-218,

¶18; State v. McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22, citing



                                      -12-
Case No. 10-10-17


State v. Young, 4th Dist. No. 03CA782, 2004-Ohio-2711; State v. Brown, 167

Ohio App.3d 239, 2006-Ohio-3266, ¶7.

          {¶18} In his first assignment of error, Thomas contends that the trial court

erred in denying his Motion to Withdraw because the trial court improperly

advised him of his right to appeal during the Crim.R. 11 colloquy. Because the

alleged error took place during the change of plea hearing, Thomas was or should

have been aware of the error well before the thirty-day period for filing his direct

appeal had elapsed. App.R. 4(A); see Coats, 2009-Ohio-3534, at ¶18; State v.

Hessler, 3d Dist. No. 1-09-04, 2009-Ohio-3155, ¶13. Accordingly, because this

issue comes to us a year after sentencing, without reason for delay, we find that

Thomas is barred by res judicata from raising the foregoing error in his Motion to

Withdraw and, consequently, this appeal. Id.

          {¶19} Although we have found that Thomas’ first assignment of error is

barred by res judicata, we also note that the assignment of error also fails on the

merits.

          {¶20} It is well established that a plea of guilty or no contest must be made

knowingly, intelligently, and voluntarily for it to be valid and enforceable. State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶25. To ensure that a plea in a felony case is

being made knowingly, intelligently, and voluntarily, Crim.R. 11(C)(2) requires the

                                          -13-
Case No. 10-10-17


trial judge to address the defendant personally, to review the rights that are being

waived, and to discuss the consequences of the plea. State v. Stewart (1977), 51

Ohio St.2d 86. Crim.R. 11(C)(2)(c) requires the court to review five constitutional

rights that are waived when entering a guilty or no contest plea in a felony case:

the right to a jury trial, the right to confront one’s accusers, the privilege against

compulsory self-incrimination, the right to compulsory process to obtain

witnesses, and the right to require the state to prove guilt beyond a reasonable

doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶19. A trial court must

strictly comply with Crim.R. 11(C)(2)(c) when advising the defendant of the

constitutional rights that are waived in entering a felony plea. Id. at syllabus.

Prejudice is presumed if the court fails to inform the defendant of the

constitutional rights listed in Crim.R. 11(C)(2)(c). Id. A trial court’s acceptance of a

guilty or no contest plea will be affirmed only if the trial court engaged in

meaningful dialogue with the defendant which, in substance, explained the

pertinent constitutional rights, “in a manner reasonably intelligible to that

defendant.” State v. Ballard (1981), 66 Ohio St.2d 473, paragraph two of the syllabus;

see also Veney, supra, at ¶27.

       {¶21} The nonconstitutional requirements of Crim.R. 11 are subject to

review for substantial compliance rather than strict compliance. State v. Griggs,

                                         -14-
Case No. 10-10-17


103 Ohio St.3d 85, 2004-Ohio-4415, ¶¶11-12. “Substantial compliance means that

under the totality of the circumstances, the defendant subjectively understands the

implications of his plea and the rights he is waiving.” State v. Nero (1990), 56 Ohio

St.3d 106, 108. Furthermore, “a defendant must show prejudice before a plea will

be vacated for a trial court’s error involving Crim.R. 11(C) procedure when

nonconstitutional aspects of the colloquy are at issue.” Veney, 2008-Ohio-5200, at

¶17. In order to demonstrate prejudice, the defendant must show that the plea

would not have been otherwise made. Stewart, 51 Ohio St.2d at 93.

       {¶22} During the plea colloquy the trial court asked Thomas:

       The Court: Do you also understand you’re waiving your right
       to appeal the judgment of this court if the court is to find you
       guilty?

       The Defendant: Yes.

Change of Plea Hearing Tr., p. 7. Thomas contends that the foregoing notification

incorrectly informs him of his right to appeal as it exists subsequent to entering a

plea of no contest. Thomas interprets the trial court’s statement to mean that he

was waiving his right to appeal “any and all judgments of the trial court.” Thomas

App. Br., p. 8. Additionally, Thomas seemingly contends that the trial court must

notify him of the judgments and issues that may be appealed despite entering a

plea of no contest. We disagree on both accounts.
                                        -15-
Case No. 10-10-17


       {¶23} A plea of no contest is not an admission of defendant’s guilt, but is

an admission of the truth of the facts alleged in the indictment, information, or

complaint. Crim.R. 11(B)(2). Consequently, a defendant’s right to appeal is

decidedly limited under a no contest plea. Generally speaking, a no contest plea

waives all nonjurisdictional defects to a felony conviction. State v. Watson, 12th

Dist. No. CA2007-04-020, 2008-Ohio-629, ¶11, citing State v. Palm, 9th Dist. No.

22298, 2005-Ohio-1637, ¶13; State v. Deresse, 5th Dist. No. 09 CA 11, 2009-Ohio-

6725, ¶38. A plea of no contest, however, does not preclude the defendant from

challenging the sufficiency of the indictment, information, or complaint on appeal,

Id., nor does it preclude a defendant from asserting upon appeal that the trial court

prejudicially erred in ruling on a pretrial motion. Crim.R. 12(I).

       {¶24} The trial court’s statement concerning Thomas’ right to appeal was

proper. The context of the trial court’s statement does not support Thomas’

interpretation that the trial court informed Thomas that his plea of no contest

would waive his right to appeal all judgments of the trial court. First, the trial

court used ‘judgment’ in the singular. This fact would not lead a reasonable

person to surmise that the trial court was referring to multiple judgments. Second,

Thomas’ case contains only one judgment, the finding of guilt after the Crim.R. 11

colloquy. Consequently, the only reasonable interpretation of the trial court’s

                                        -16-
Case No. 10-10-17


statement is that Thomas could not appeal the trial court’s finding of guilt, which

is an accurate statement. Accordingly, we find that the trial court’s statement

concerning Thomas’ right to appeal accurately informed him that by virtue of

entering a plea of no contest he could not appeal the trial court’s finding of guilt.

       {¶25} Additionally, we can find no support for Thomas’ contention that the

trial court must notify him of the judgments and issues that may be appealed, nor

has Thomas provided us with any support.            See App.R. 16(A)(7).       Despite

Thomas’ lack of support, in the interest of justice, we will address the merits of

this contention. To ensure that the defendant enters a voluntary, knowing, and

intelligent plea the trial court must determine whether the defendant understands

the waiver of various constitutional and nonconstitutional rights. To ensure the

defendant’s understanding of his or her rights the trial court must conduct a

Crim.R. 11 colloquy. During the Crim.R. 11 colloquy the defendant is apprised of

the rights he or she is waiving by entering their plea, and the effect of those

waivers. Stewart, 51 Ohio St.2d at 88. There is no requirement that the trial court

also notify the defendant of his or her remaining rights (i.e., those that survive the

plea), and for good reason, these rights are not waived by entering a plea.

Consequently, we find that the trial court did not err when it did not inform

Thomas of his remaining appellate rights during the plea colloquy.

                                         -17-
Case No. 10-10-17


       {¶26} In light of the foregoing, we find that the trial court adequately

informed Thomas of the rights he waived by virtue of entering pleas of no contest,

and the effect of those waivers. Consequently, we also find that the trial court did

not abuse its discretion when it denied Thomas’ Motion to Withdraw, with respect

to the issue raised in his first assignment of error.

                                       Affidavits

       {¶27} Initially, we note that Thomas’ third assignment of error, unlike his

first assignment of error is not barred by res judicata, as the evidence proffered in

support of this assignment of error was unknown to Thomas and did not come to

light until several months after Thomas was sentenced. Consequently, we will

address the merits of Thomas’ third assignment of error.

       {¶28} In his third assignment of error, Thomas challenges the trial court’s

determination concerning the credibility of the affidavits attached to his Motion to

Withdraw. Specifically, Thomas contends that the affidavits contain exculpatory

information, and as a result he should have, at the very least, been granted a

hearing. We disagree.

       {¶29} A trial court may, in its discretion, judge the credibility of affidavits

submitted in support of a motion to withdraw a plea in determining whether to

accept the affidavits as true statements of fact. State v. Williams, 12th Dist. No.

                                          -18-
Case No. 10-10-17


CA2009-03-032, 2009-Ohio-6240, ¶17, citing State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-

128, ¶14, citing State v. Robinson, 11th Dist. No. 2003-A-0125, 2005-Ohio-5287, ¶28. To

hold otherwise would require a hearing every time a defendant filed a motion to

withdraw a plea. Id.

       {¶30} Several facts, apparent from the affidavits, support the trial court’s

finding that the affidavits lacked credibility. First, the affidavits were rife with

hearsay. Specifically, the statements that form the basis of Thomas’ contention

that law enforcement did not reveal their belief that Sydney Steinecker, the

mother, caused the child’s death were hearsay. Second, one of the affidavits was

submitted by a biased party, Thomas’ mother, See State v. Yearby, 8th Dist. No.

79000, 2002 WL 120530, *3, while the other was submitted by the child’s paternal

grandmother. Third, the affidavits were filed nearly a year after Thomas was

sentenced, and six months after the affiants allegedly learned of the exculpatory

information. Last, Thomas did not file an affidavit contradicting the facts he

stipulated to during the change of plea hearing. By citing this fact we are not

suggesting that a defendant must file an affidavit contradicting the facts he or she

stipulated to during the change of plea hearing, but we do find the absence thereof

may raise issues concerning the credibility of affidavits offered in support of

defendant’s innocence. Considering the foregoing facts in their totality, we find

                                          -19-
Case No. 10-10-17


that the trial court did not abuse its discretion when it found the affidavits lacked

credibility.4 Consequently, the trial court was not required to conduct a hearing on

Thomas’ Motion to Withdraw, and did not abuse its discretion when it denied

Thomas’ Motion to Withdraw.

         {¶31} Accordingly, we overrule Thomas’ first and third assignments of

error.

         {¶32} Having found no error prejudicial to Thomas herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




4
  We decline to address Thomas’ assertion that the State violated Crim.R. 16 by withholding information
that law enforcement allegedly conveyed to the affiants concerning Thomas’ innocence and Sydney
Steinecker’s guilt, because Thomas failed to adequately argue the assertion and failed to cite authority in
support thereof. App.R. 16(A)(7).
                                                  -20-
