[Cite as State v. Robinson, 2013-Ohio-5672.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :
                                                           CASE NO. CA2013-05-085
        Plaintiff-Appellee,                          :
                                                                 OPINION
                                                     :            12/23/2013
   - vs -
                                                     :

JOACHIM ROBINSON,                                    :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2007-11-1995



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., 500 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Joachim Robinson, #656898, Lebanon Correctional Institution, P.O. Box 56, Lebanon, Ohio
45036, defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Joachim Robinson, appeals pro se from the Butler County

Court of Common Pleas decision denying his motion to withdraw his guilty plea. For the

reasons outlined below, we affirm.

        {¶ 2} According to the bill of particulars, on January 8, 2006, Robinson, along with his

co-defendant, Christopher Stallworth, as well as another unnamed assailant, broke into the
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Butler County residence of Andrew Donaby and Nicole Nesbitt. During this time, Donaby and

Nesbitt's infant son was also inside the home. Once inside, the trio bound Nesbitt and forced

her and her infant son to stay in a bedroom at gunpoint while they beat Donaby and doused

him with hot oil. The intruders ultimately fled from the scene in Donaby's vehicle with an

undisclosed sum of money and property.

        {¶ 3} On December 5, 2007, while Robinson was in prison on unrelated charges, the

Butler County grand jury returned a 17-count indictment against Robinson stemming from his

role in the January 8, 2006 robbery. The indictment included charges of aggravated robbery,

aggravated burglary, kidnapping, complicity to felonious assault, grand theft, and having

weapons while under disability. After some delay, Robinson agreed to plead guilty to one

count of each of the above named charges with an agreed aggregate sentence of 15 years in

prison. The trial court accepted both the plea agreement and the agreed sentence at a

hearing on May 7, 2009. Robinson did not appeal from his conviction or sentence.

        {¶ 4} On March 20, 2013, nearly four years after entering his guilty plea, Robinson

filed a pro se motion to withdraw his plea. As part of this motion, Robinson claimed he would

not have pled guilty were it not for the allegedly false statements made by Stallworth to the

police implicating him in the crime. Attached to Robinson's motion is an affidavit from

Stallworth, Robinson's co-defendant, who now alleges he was "coerced" by police into
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making "fabricated false statements" implicating Robinson.

        {¶ 5} On April 30, 2013, the trial court issued its decision denying Robinson's motion

to withdraw his guilty plea. In so holding, the trial court found Robinson had failed to

establish the existence of a manifest injustice, thereby allowing him to withdraw his plea.

Robinson now appeals from the trial court's decision, raising three assignments of error for


1. This court affirmed Stallworth's conviction and sentence resulting from his role in the January 8, 2006 robbery
in State v. Stallworth, 12th Dist. Butler No. CA2009-07-202, 2010-Ohio-48.
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review. For ease of discussion, Robinson's three assignments of error will be addressed

together.

        {¶ 6} Assignment of Error No. 1:

        {¶ 7} THE TRIAL COURT ERRED IN DEFENDANT'S FIRST ASSIGNMENT OF

ERROR WHEN IT FAIL TO GIVE FINDINGS OF FACTS AND CONCLUSION OF LAW. [sic]

        {¶ 8} Assignment of Error No. 2:

        {¶ 9} THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT'S SECOND

ASSIGNMENT OF ERROR WHEN TRIAL COURT FAIL TO ALLOWED DEFENDANT-

APPELLATE'S TO WITHDRAW HIS GUILTY PLEA ON THE BASIS NOT KNOWINGLY,

INTELLIGENTLY OR VOLUNTARILY MADE WHICH SHOW A PREJUDICIAL EFFECT.

[sic]

        {¶ 10} Assignment of Error No. 3:

        {¶ 11} THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT'S THIRD

ASSIGNMENT OF ERROR WHEN IT FAIL TO MAKE FINDING OF FACTS AND

CONCLUSION OF LAW ON DEFENDANT-APPELLANT'S INEFFECTIVE-ASSISTANCE

CLAIMS. [sic]

        {¶ 12} In his three assignments of error, Robinson argues the trial court erred by

denying his motion to withdraw his guilty plea. We disagree.

        {¶ 13} Pursuant to Crim.R. 32.1, "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 defendant who seeks to withdraw a plea after the imposition of

sentence has the burden of establishing the existence of a manifest injustice. State v.

Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing State v.

Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. In general, "manifest
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injustice relates to a fundamental flaw in the proceedings that results in a miscarriage of

justice or is inconsistent with the demands of due process." State v. Hobbs, 12th Dist.

Warren No. CA2012-11-117, 2013-Ohio-3089, ¶ 9. "The requirement of demonstrating a

manifest injustice is designed to discourage a defendant from pleading guilty to test the

weight of the potential reprisal, and later attempting to withdraw the plea if the sentence was

unexpectedly severe." Williams at ¶ 13. This sets forth an "extremely high standard" that is

"allowable only in extraordinary cases." State v. Hopkins, 12th Dist. Butler No. CA2012-12-

246, 2013-Ohio-3674, ¶ 9; State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-

Ohio-2055, ¶ 6.

       {¶ 14} The decision to grant or deny a motion to withdraw a guilty or no contest plea is

within the trial court's sound discretion. State v. Carter, 12th Dist. Clinton Nos. CA2010-07-

012 and CA2010-08-016, 2011-Ohio-414, ¶ 16. In turn, an appellate court reviews a trial

court's decision to deny a motion to withdraw a plea under an abuse of discretion standard.

State v. Ward, 12th Dist. Clermont No. CA2008-09-083, 2009-Ohio-1169, ¶ 8, citing State v.

Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of discretion connotes more

than an error of law or judgment; it implies that the trial court's attitude was arbitrary,

unreasonable, or unconscionable. State v. Kelly, 12th Dist. Butler No. CA2013-01-020,

2013-Ohio-3675, ¶ 20; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 15} Throughout his three assignments of error, Robinson argues the trial court

erred by denying his motion to withdraw his guilty plea when it failed to provide findings of

fact and conclusions of law. However, "a trial court, when denying a motion to withdraw a

guilty plea, is not required to make and file findings of fact and conclusions of law." State v.

Johnson, 12th Dist. Butler Nos. CA2010-12-327 and CA2011-02-019, 2011-Ohio-3015, ¶ 14,

quoting State v. Combs, 11th Dist. Portage No. 2007-P-0075, 2008-Ohio-4158, ¶ 49; State v.

Davis, 158 Ohio App.3d 478, 2004-Ohio-5354, ¶ 16 (4th Dist.). In fact, as noted by the Ohio
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Supreme Court, "Crim.R. 32.1 does not require a court to issue findings of fact and

conclusions of law when ruling on a motion to withdraw a guilty plea." State ex rel. Chavis v.

Griffin, 91 Ohio St.3d 50, 51 (2001). Robinson's claim otherwise is therefore without merit

and overruled.

       {¶ 16} Next, Robinson argues the trial court erred in denying his motion to withdraw

his guilty plea because his plea was not knowingly, intelligently and voluntarily made. The

basic tenets of due process require that a guilty plea be made "knowingly, intelligently, and

voluntarily." State v. Manis, 12th Dist. Butler No. CA2011-03-059, 2012-Ohio-3753, ¶ 10,

citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). However, Robinson does not argue

that his guilty plea was not knowingly, intelligently, or voluntarily made due to the trial court's

failure to provide him with the necessary plea colloquy under Crim.R. 11(C). See generally

State v. Whitaker, 12th Dist. Preble No. CA2012-10-013, 2013-Ohio-4434, ¶ 9. Rather,

Robinson merely argues his guilty plea is invalid based on the so-called "new evidence" of

Stallworth's recantation of his prior statements to police implicating Robinson in the crime.

       {¶ 17} Although the affidavit from Stallworth alleges Robinson was not involved in the

January 8, 2006 robbery, it is well-established that the "good faith, credibility, and weight of

the movant's assertions in support of the motion are matters to be resolved" by the trial court.

State v. McGlosson, 12th Dist. Butler No. CA2012-03-057, 2013-Ohio-774, ¶ 32. Moreover,

"Ohio courts have consistently held that affidavits from interested parties such as defendants,

co-defendants, and family members are self-serving and may be discounted." State v.

Nicholson, 8th Dist. Cuyahoga No. 97873, 2012-Ohio-4591, ¶ 19. The trial court, therefore,

could properly determine the affidavit from Stallworth, Robinson's co-defendant whose

conviction and sentence were already affirmed by this court on direct appeal, lacked

sufficient credibility.

       {¶ 18} Furthermore, "recantations of prior witness statements must be examined with
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the utmost suspicion." State v. Linder, 8th Dist. Cuyahoga No. 99350, 2013-Ohio-5018, ¶ 14;

see also United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir.1991) (stating "[r]ecanting

affidavits and witnesses are viewed with extreme suspicion"). This is especially true here

considering the significant lapse in time spanning nearly four years between when Robinson

entered his guilty plea and when he filed his motion to withdraw.

       {¶ 19} Generally, "the delayed disclosure of a witness's recantation weighs against the

believability and truthfulness of the witness." Houston v. State, 8th Dist. Cuyahoga No.

98118, 2012-Ohio-4404, ¶ 41. As this court has consistently stated, "an undue delay

between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a

motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and

militating against the granting of the motion." State v. Resendiz, 12th Dist. Preble No.

CA2009-04-012, 2009-Ohio-6177, ¶ 22, quoting Smith, 49 Ohio St.2d 261 at paragraph three

of the syllabus. In turn, just as the trial court found, the length of time here clearly militates

against the granting of Robinson's motion. See State v. Mootispaw, 12th Dist. Fayette No.

CA2004-02-007, 2005-Ohio-2372, ¶ 7.

       {¶ 20} Robinson also claims he was steadfast in asserting his innocence, thereby

requiring the trial court to allow him to withdraw his guilty plea. However, besides Robinson's

bare assertions to the contrary, there is nothing in the record to support this claim. "A

defendant who has entered a guilty plea without asserting actual innocence is presumed to

understand that he has completely admitted his guilt." State v. Griggs, 103 Ohio St.3d 85,

2004-Ohio-4415, syllabus. In other words, by entering a guilty plea, Robinson not only stated

that he did the acts described in the indictment, but he also admitted guilt of the substantive

crime. State v. Fuller, 12th Dist. Butler No. CA2008-09-240, 2009-Ohio-5068, ¶ 105.

       {¶ 21} As noted by the Eleventh District Court of Appeals, "a change in potential

testimony of a state's witness is insufficient to withdraw a plea postsentence." State v.
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Hudach, 11th Dist. Trumbull No. 2003-T-0110, 2004-Ohio-6949, ¶ 46. Therefore, we find

Robinson has failed to show how this so-called "new evidence" from Stallworth demands the

withdrawal of his guilty plea in order to prevent a manifest injustice. Robinson's argument to

the contrary is without merit and overruled.

       {¶ 22} Finally, Robinson argues the trial court erred in denying his motion to withdraw

his guilty plea because he received ineffective assistance of counsel. Ineffective assistance

of counsel is a proper basis for seeking a post-sentence withdrawal of a guilty plea. State v.

Eberle, 12th Dist. Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 56; State v. Mays, 174

Ohio App.3d 681, 2008-Ohio-128, ¶ 8 (8th Dist.). When an alleged error underlying a motion

to withdraw a guilty plea is the ineffective assistance of counsel, such as the case here, the

defendant must show (1) his counsel's performance was deficient and (2) that there is a

reasonable probability that, but for counsel's errors, he would not have pled guilty. State v.

Finkbine, 12th Dist. Warren No. CA2005-06-068, 2006-Ohio-1788, ¶ 7; State v. Xie, 62 Ohio

St.3d 521, 524 (1992). Counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14.

       {¶ 23} In support of this claim, Robinson argues his trial counsel was ineffective when

he disregarded Robinson's claims of innocence and advised Robinson that he "would be

convicted and spend a lot of time in prison" if he declined the state's plea offer. However,

"an attorney's advice to take a plea deal is not ineffective assistance of counsel." See State

v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37. Rather, these alleged

deficiencies, even if true, constitute nothing more than counsel's attempts to provide

Robinson with informed advice, to relay worst case scenarios to him, and to make

recommendations to him on how to proceed. See Eberle, 2010-Ohio-3563 at ¶ 57. This

certainly cannot be classified as ineffective assistance of counsel.
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       {¶ 24} Moreover, as part of his signed guilty plea, Robinson specifically acknowledged

that his trial counsel advised him of the impact of his guilty plea, that he understood the

ramifications of making such a plea, and that he was satisfied with counsel's advice and

competence. The trial court, therefore, did not abuse its discretion in declining Robinson's

request to withdraw his guilty plea based on his trial counsel's alleged ineffective assistance.

       {¶ 25} In light of the foregoing, having found no merit to any of the claims advanced by

Robinson within his three assignments of error, we find the trial court did not abuse its

discretion in denying Robinson's motion to withdraw his guilty plea. See, e.g., State v.

Youngblood, 2d Dist. Montgomery No. 21078, 2006-Ohio-4390, ¶ 12 (finding claims of

ineffective assistance of counsel and witness recantation are not grounds to permit a

withdrawal of guilty plea).    Accordingly, finding no error in the trial court's decision,

Robinson's three assignments of error are overruled.

       {¶ 26} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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