[Cite as State v. Clark, 2017-Ohio-120.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2015-CA-26
                                                 :
 v.                                              :   Trial Court Case No. 2014-CR-288
                                                 :
 WILLIAM H. CLARK                                :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 13th day of January, 2017.

                                            ...........

R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County
Prosecutor’s Office, 504 South Broadway Street, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
     Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                             -2-




       {¶ 1} Defendant-appellant, William H. Clark, appeals from the decision of the

Darke County Court of Common Pleas dismissing his pro se motion for a new trial. In

support of his appeal, Clark claims that the trial court erred in failing to recast and consider

his Crim.R. 33 motion for new trial as a Crim.R. 32.1 motion to withdraw guilty plea given

the fact that his conviction was based on an Alford plea of guilty and not a trial. Clark

also contends that his motion and supporting affidavits warranted an evidentiary hearing,

which he asks this court to order on remand. For the reasons outlined below, which are

different than those argued by Clark, the judgment of the trial court will be reversed and

remanded for further proceedings consistent with this opinion.



                            Facts and Course of Proceedings

       {¶ 2} On November 24, 2014, the Darke County Grand Jury returned an indictment

charging Clark with 11 counts of rape of a person less than 13 years of age in violation of

R.C. 2907.02(A)(1)(b). The charges stemmed from allegations that between July 2011

and August 2014, Clark sexually abused his minor stepchild.

       {¶ 3} After the parties exchanged discovery materials, on February 13, 2015, Clark

entered a plea agreement wherein the State agreed to dismiss six and amend five of the

rape counts to sexual battery of a stepchild less than thirteen years of age in violation of

R.C. 2907.03(A)(5),(B). In exchange, Clark agreed to enter an Alford plea of guilty to the

five amended sexual battery counts. As part of the plea agreement, the parties also

agreed to jointly recommend that Clark serve a mandatory, aggregate sentence of 25

years in prison, with five years of mandatory postrelease control to be served on each of
                                                                                         -3-


the sexual battery counts consecutively.       It was also agreed that Clark would be

designated a Tier III sex offender.

       {¶ 4} At Clark’s plea hearing, the trial court conducted a Crim.R. 11 plea colloquy

and accepted Clark’s Alford plea to the five counts of sexual battery after finding that his

plea was knowingly, intelligently, and voluntarily entered.          The trial court then

immediately proceeded to sentencing, during which the court imposed the agreed-upon,

mandatory sentence of 25 years in prison.

       {¶ 5} On August 5, 2015, six months after entering his plea, Clark filed a pro se

motion with the trial court captioned “Defendant’s Motion for New Trial Pursuant to

Criminal Rule 33(A)(6).” Despite never going to trial, Clark requested a new trial on

grounds that he recently discovered the victim had admitted to his wife (the victim’s

mother) in November 2014, that the accusations against him were false. Clark claims

that he became aware of this information through a July 7, 2015 correspondence from his

wife. Clark also claims that the State’s caseworker was made aware of the supposed

false allegations in November 2014, but the “exculpatory” information provided to the

caseworker was never disclosed to his defense counsel in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the event that he was barred from

relief under Crim.R. 33, Clark requested the trial court to review his motion for new trial

as a petition for postconviction relief under R.C. 2953.21(A).

       {¶ 6} Clark attached two affidavits in support of his motion. One of the affidavits

was prepared by his wife, who averred that in the beginning of November 2014, the victim

(her daughter) told her that it was not Clark who had abused her, but two of the victim’s

uncles.   After the victim changed her story and accused Clark of being one of her
                                                                                            -4-


abusers, Clark’s wife averred that she had called and advised the caseworker that the

victim had changed her story.        According to Clark’s wife, the caseworker merely

responded by saying “that might happen.” Clark’s wife also averred that on November

19, 2014, the victim told her that she had decided to accuse Clark of abuse so she could

live with her biological father, and then moved in with her biological father on November

22, 2014.

       {¶ 7} The second supporting affidavit was prepared by Clark himself.              In his

affidavit, Clark averred that he was innocent, the victim had made false allegations

against him, and that the State was made aware of the false allegations, but failed to

inform his trial counsel about them. He also generally averred that his plea was made

under duress, and not “willfully, intelligently, or knowingly made, but coerced to avoid [an]

enhanced penalty[.]”

       {¶ 8} On October 19, 2015, the trial court issued a written decision dismissing

Clark’s motion without an evidentiary hearing. In dismissing the motion, the trial court

held, in relevant part, that:

       [T]he Court disagrees with the Defendant’s motion under Criminal Rule

       33(A) for the reason that there was no trial wherein the alleged errors could

       have occurred. In this case the Defendant entered pleas of Guilty. In the

       absence of a trial, the provisions of Criminal Rule 33 are not available to the

       Defendant.

Judgment Entry—Defendant’s Motion for a New Trial (Oct. 19, 2015), Darke County

Common Pleas Court Case No. 14-CR-288, Docket No. 23, p. 2. The trial court did not

discuss postconviction relief or the affidavits filed in support of Clark’s Brady violation
                                                                                              -5-


claim.

         {¶ 9} Clark now appeals from the trial court’s decision dismissing his motion for

new trial, raising one assignment of error for review.



                                    Assignment of Error

         {¶ 10} Clark’s sole assignment of error is as follows:

         THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CLARK WHEN

         IT DENIED HIS MOTION FOR A NEW TRIAL.

         {¶ 11} Under his single assignment of error, Clark contends that since he entered

an Alford plea of guilty as opposed to going to trial, the trial court erred by failing to recast

and consider his pro se Crim.R. 33(A) motion for new trial as a Crim.R. 32.1 motion to

withdraw guilty plea. Clark claims that this failure resulted in the trial court ignoring the

Brady violation claim he raised in his motion and supporting affidavits. According to

Clark, the information contained in his motion and affidavits warranted an evidentiary

hearing, which he now requests this court order on remand.

         {¶ 12} It is well-established that “irregular ‘no name’ motions must be categorized

by a court in order for the court to know the criteria by which the motion should be judged.”

State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10. Accord State

v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 (“[c]ourts may recast

irregular motions into whatever category necessary to identify and establish the criteria

by which the motion should be judged”).            Under certain circumstances, it is also

appropriate for courts to recast motions that are unambiguously named and presented

under a specific rule when said rule has no application to the judgment at issue. See,
                                                                                            -6-

e.g., Schlee (finding the trial court did not err in recasting a Civ.R. 60(B) motion filed in a

criminal case as a petition for postconvicition relief given that Civ.R. 60(B) has no

application to judgments in criminal cases and the motion could have been properly filed

as a petition for postconviction relief under Crim.R. 35); State v. Hamberg, 2015-Ohio-

5074, 53 N.E.3d 918, ¶ 10-12 (1st Dist) (finding the trial court should have recast

defendant’s Crim.R. 33 motion for new trial as a petition for postconviction relief because

the motion was filed after the defendant’s conviction, supported by evidence outside the

record, and sought an order vacating his sentence based on an alleged violation of

constitutional rights).   However, some motions may not be recast by a trial court.

Schlee at ¶ 13. For example, a court may not recast a Crim.R. 32.1 motion to withdraw

guilty plea that is based on a constitutional violation as a R.C. 2953.21 petition for

postconviciton relief since a Crim.R. 32.1 motion and postconviction relief petition “exist

independently,” i.e., invoke independent grounds for relief. Id. at ¶ 13, citing Bush at

¶ 13-14.

       {¶ 13} In this case, Clark unambiguously captioned his motion as a “Motion for

New Trial Pursuant to Criminal Rule 33(A)(6).” Since Clark entered an Alford plea of

guilty, a Crim.R. 33 motion for new trial was clearly an improper mechanism for Clark to

challenge his conviction. See Hamberg at ¶ 10 (“a Crim.R. 33 motion for a new trial does

not provide means for challenging a conviction entered upon a guilty plea”), citing State

v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868 (1948), paragraph thirteen of the syllabus (“[a]

plea of guilty in a criminal case precludes the defendant from thereafter making a motion

for new trial”). Nevertheless, in the event relief was not proper under Crim.R. 33, Clark

specifically requested the trial court to review his motion as a petition for postconviction
                                                                                          -7-


relief under R.C. 2953.21(A).

       {¶ 14} “Postconviction relief is a means by which the petitioner may present

constitutional issues to the court that would otherwise be impossible to review because

the evidence supporting those issues is not contained in the record of the petitioner's

criminal conviction.” (Citations omitted.) State v. Monroe, 2015-Ohio-844, 29 N.E.3d

391, ¶ 37 (10th Dist.). “Postconviction relief is a remedy sought by a defendant who has

either been tried and found guilty beyond a reasonable doubt, or who has pled guilty and

has been convicted.” State v. Calhoun, 86 Ohio St.3d 279, 283, 714 N.E.2d 905 (1999).

       {¶ 15} R.C. 2953.21(A), the statute that governs postconviction relief, provides the

following:

        (1)(a) Any person who has been convicted of a criminal offense or

        adjudicated a delinquent child and who claims that there was such a denial

        or infringement of the person’s rights as to render the judgment void or

        voidable under the Ohio Constitution or the Constitution of the United

        States * * * may file a petition in the court that imposed sentence, stating

        the grounds for relief relied upon, and asking the court to vacate or set

        aside the judgment or sentence or to grant other appropriate relief. The

        petitioner may file a supporting affidavit and other documentary evidence

        in support of the claim for relief.

        ***

        (2) * * * If no appeal is taken, except as otherwise provided in section

        2953.23 of the Revised Code, the petition shall be filed no later than three

        hundred sixty-five days after the expiration of the time for filing the appeal.
                                                                                             -8-


       {¶ 16} Clark’s motion, which essentially requested the court to vacate his

conviction and sentence based on a constitutional violation concerning alleged Brady

material, meets the statutory definition of a timely petition for postconviction relief.

Although Clark briefly stated in his motion that the effect of the alleged Brady violation

“raises question to [his] plea of guilty being willfully, knowingly, and or/intelligently made,”

and he generally averred in his affidavit that his plea was not “willfully, intelligently or

knowingly made,” Clark did not specifically argue for a withdrawal of his plea nor cite any

legal authority that is indicative of a motion to withdraw guilty plea. Rather, his motion

specifically invoked relief under R.C. 2953.21(A), which is an entirely different form of

relief from a Crim.R. 32.1 motion. Moreover, to the extent that Clark’s claim concerns

an alleged Brady violation that relies upon exculpatory evidence, which is outside the

record and therefore not before this court, his motion is more appropriately considered a

petition for post-conviction relief. See State v. McCann, 4th Dist. Lawrence No. 12CA18,

2013-Ohio-2992, ¶ 15; State v. Laster, 2d Dist. Montgomery No. 19387, 2003-Ohio-1564,

¶ 8.

       {¶ 17} That said, since a Crim.R. 33 motion for new trial was clearly an erroneous

mechanism for Clark’s claim for relief, and since R.C. 2953.21(A) was specifically invoked

by Clark’s motion, we find that the trial court should have reviewed the motion as a petition

for postconviction relief as opposed to dismissing the motion solely based on the

inapplicability of Crim.R. 33.

       {¶ 18} As for the evidentiary hearing, R.C. 2953.21(C) and (E) provide that:

       (C) * * * Before granting a hearing on a petition filed under division (A) of

       this section, the court shall determine whether there are substantive
                                                                                           -9-


       grounds for relief. In making such a determination, the court shall consider,

       in addition to the petition, the supporting affidavits, and the documentary

       evidence, all the files and records pertaining to the proceedings against the

       petitioner, including, but not limited to, the indictment, the court's journal

       entries, the journalized records of the clerk of the court, and the court

       reporter's transcript. The court reporter's transcript, if ordered and certified

       by the court, shall be taxed as court costs. If the court dismisses the petition,

       it shall make and file findings of fact and conclusions of law with respect to

       such dismissal.

       ***

       (E) Unless the petition and the files and records of the case show the

       petitioner is not entitled to relief, the court shall proceed to a prompt hearing

       on the issues even if a direct appeal of the case is pending. * * *

       {¶ 19} Under these provisions, “a criminal defendant seeking to challenge his

conviction through a petition for postconviction relief is not automatically entitled to a

hearing.” (Citation omitted.) Calhoun, 86 Ohio St.3d at 282, 714 N.E.2d 905. “Before

granting an evidentiary hearing on the petition, the trial court shall determine whether

there are substantive grounds for relief, (R.C. 2953.21[C]), i.e., whether there are grounds

to believe that ‘there was such a denial or infringement of the person’s rights as to render

the judgment void or voidable under the Ohio Constitution or the Constitution of the United

States.’ ” (Emphasis deleted.) Id. at 283, quoting R.C. 2953.21(A)(1). In determining

whether there are grounds for such relief, the trial court is required to consider Clark’s

petition and the supporting affidavits.     R.C. 2953.21(C).     Thus, Clark has the initial
                                                                                            -10-


burden to provide evidence containing sufficient operative facts to demonstrate a

cognizable claim of constitutional error. State v. Kapper, 5 Ohio St.3d 36, 37-38, 448

N.E.2d 823 (1983).

       {¶ 20} Generally, self-serving affidavits submitted by a defendant in support of his

claim for postconviction relief are insufficient to trigger the right to a hearing or to justify

granting the petition under R.C. 2953.21.        Kapper at 38; State v. Perkins, 2d Dist.

Montgomery No. 24397, 2011-Ohio-5070, ¶ 15.              “Though we recognize that every

affidavit submitted by a post-conviction relief petitioner is to some degree or another ‘self-

serving,’ such affidavits should not lightly be deemed false as they are by definition a

statement that the affiant has sworn to be truthful and made under penalty of perjury.”

State v. Padgett, 2d Dist. Montgomery No. 17658, 1999 WL 1127398, * 3 (Dec. 10, 1999),

citing Calhoun at 284.         Nevertheless, “the trial court may, under appropriate

circumstances in postconviction relief proceedings, deem affidavit testimony to lack

credibility without first observing or examining the affiant.” Calhoun at 284.

       {¶ 21} In accessing the credibility of affidavits, the Supreme Court in Calhoun

provided the following relevant factors to be considered:

       (1) whether the judge reviewing the postconviction relief petition also

       presided at the trial, (2) whether multiple affidavits contain nearly identical

       language, or otherwise appear to have been drafted by the same person,

       (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants

       are relatives of the petitioner, or otherwise interested in the success of the

       petitioner's efforts, and (5) whether the affidavits contradict evidence

       proffered by the defense at trial. Moreover, a trial court may find sworn
                                                                                          -11-


       testimony in an affidavit to be contradicted by evidence in the record by the

       same witness, or to be internally inconsistent, thereby weakening the

       credibility of that testimony.

Calhoun, 86 Ohio St.3d at 285, 714 N.E.2d 905, citing State v. Moore, 99 Ohio App.3d

748, 754-756, 651 N.E.2d 1319 (1st Dist.1994).

       {¶ 22} “Depending on the entire record, one or more of these or other factors may

be sufficient to justify the conclusion that an affidavit asserting information outside the

record lacks credibility.” Id. “Such a decision should be within the discretion of the trial

court.” Id. “A trial court that discounts the credibility of sworn affidavits should include

an explanation of its basis for doing so in its findings of fact and conclusions of law, in

order that meaningful appellate review may occur.” Id.

       {¶ 23} In this case, it appears as though a number of the Calhoun factors apply to

discount the credibility of Clark’s supporting affidavits. However, it is not this court’s

place to judge the credibility of the affidavits or to rule on Clark’s motion/petition, as the

decision to grant or dismiss the petition with or without a hearing falls within the sound

discretion of the trial court. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 45, 58.

       {¶ 24} For reasons different from those argued under his assignment of error,

Clark’s sole assignment of error is sustained.



                                        Conclusion

       {¶ 25} The judgment of the trial court is reversed and the cause is remanded for

the trial court to review Clark’s motion as a petition for postconviction relief under R.C.
                                                                               -12-


2953.21 and to issue a ruling on the petition in accordance with Crim.R. 35.



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



FROELICH, J. and HALL, J., concur.



Copies mailed to:

R. Kelly Ormsby, III
Richard L. Kaplan
Hon. Jonathan P. Hein
