[Cite as State v. Foose, 2012-Ohio-6273.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 11 MA 206
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
EUGENE FOOSE                                  )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 85 CR 339(C)

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Rhys B. Cartwright-Jones
                                                   42 N. Phelps Street
                                                   Youngstown, Ohio 44503-1130


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                   Dated: December 18, 2012
[Cite as State v. Foose, 2012-Ohio-6273.]
WAITE, P.J.


        {¶1}     In 1996, Appellant Eugene Foose was involved in the armed robbery

and shooting deaths of patrons and a bartender at the Newport Inn in Youngstown.

Appellant was a juvenile at the time. In 1997, Appellant, who was to be tried as an

adult, was charged with six counts of complicity to commit aggravated murder,

complicity to commit attempted aggravated murder with a firearms specification, and

complicity to commit aggravated robbery. Appellant entered into a plea agreement

with the state and pleaded guilty to an amended indictment.         Prior to accepting

Appellant’s plea, the court explained the duration of his sentence and reminded him

of the rights he would waive by entering a plea. The court sentenced Appellant to a

total of 43 years in prison, which is the minimum sentence he could have received

based on his plea.

        {¶2}     Appellant now seeks to withdraw the plea but has failed to produce any

credible evidence or argument that could not have been raised at the time his plea

was entered. Appellant’s motion to withdraw his guilty plea, filed nearly fourteen

years after the entry of plea, is not reasonable. The judgment of the trial court

denying Appellant’s motion to withdraw plea is affirmed.

                                  Factual and Procedural History

        {¶3}     Appellant was one of six men involved in an armed robbery and several

shootings at the Newport Inn in 1996. When Appellant entered his guilty plea to

three of the seven counts against him in the original indictment, three other men

involved in the shootings had been convicted in separate trials. Both Appellant, who

was sixteen at the time, and the last remaining defendant waived their probable
                                                                                        -2-

cause hearing and agreed to be tried as adults. Appellant, with the consent of the

victims, then reached a plea agreement under which the state would move to dismiss

multiple aggravated murder, attempted aggravated murder, and mass murder

specifications from the indictment. The remaining charges in the indictment were

complicity to aggravated murder, attempted aggravated murder with a firearms

specification, and aggravated robbery.      Appellant signed a Crim.R. 11 plea form

specifying in his own handwriting the charges to which he would plead: count 1:

complicity to commit aggravated murder; count 4: complicity to attempt to commit

aggravated murder with a firearms specification; and count 6: complicity to commit

aggravated robbery. The Crim.R. 11 plea form included Appellant’s representation

that he had received and was satisfied with the advice of counsel and a statement

that he understood that by pleading guilty he waived his constitutional and statutory

rights to a jury trial and his right to require the State of Ohio to prove every element of

the charges against him beyond a reasonable doubt. (11/4/97 Guilty Plea, p., 1.)

Appellant also listed in his plea form the sentencing ranges to the three counts

included in his plea: count 1 was 20 years to life imprisonment; count 4 was 10 to 25

years and count 6 was 10 to 25 years. There was also a firearm specification of 3

years, mandatory. He also certified that his plea was freely and voluntarily made.

Appellant was also examined by the court in open court during his plea hearing. The

trial court asked whether Appellant was satisfied with the representation and advice

he received from his attorney. Appellant confirmed that he was. The court then

explained:
                                                                                -3-

THE COURT:       You understand that you are entitled, like any other

defendant in any other case, to important constitutional and statutory

rights, and those rights start with your right to a jury trial * * * You have

the right to require the State of Ohio to prove your guilt beyond a

reasonable doubt on each and every element contained in that

indictment right there. You have the right to have your attorney cross

examine any witnesses that the State of Ohio would call at trial. If you

had any witnesses that you wanted to bring forward to testify for you,

you could do so by having subpoenas issued for them to appear * * *

Do you understand all of those rights?


THE DEFENDANT [APPELLANT]: Yes, sir.


THE COURT: Do you understand that if you plead guilty to this amend

-- this criminal rule 11 agreement that Mr. Franken has indicated, that

you’re giving up all of those rights? Do you understand that”


THE DEFENDANT [APPELLANT]: Yes, sir.


THE COURT: You also understand that the Court upon acceptance of

your plea may proceed with judgment and sentence immediately and

that you could be sentenced to, in Count 1, from 20 years to life; in

Count 4, from 10 to 25 years; in Count 6, from 10 to 25 years with a

mandatory three years on the firearm specification and that you could

be sentenced, if this was consecutive, to 40 years to life, actually 43
                                                                                    -4-

      years with the three years on the firearm specification; do you

      understand all of that?


      THE DEFENDANT [APPELLANT]: Yes, sir.

(10/29/97 Plea Hearing Tr., pp. 3-6.) After explaining his rights to Appellant and

confirming that he understood his plea, the court dismissed four of the seven counts

against him, including the mass murder charge and five additional firearms

specifications, and found that “the plea has been freely and voluntarily made with full

knowledge of the consequences thereof” and that the “defendant[appellant] was

advised of all of his constitutional rights; that he understood, waived and rejected

them before entering his plea.” (10/29/97 Plea Hearing Tr., p. 7.) Appellant signed

his plea on October 29, 1997, and it was entered in the record on November 4, 1997.

According to a 2009 statement by Appellant’s mother, after Appellant’s sentencing

hearing and in response to her questions about the length of the sentence,

Appellant’s trial counsel told his mother that he would “talk” to Appellant and to the

judge in ten years. (5/5/11 Reply Instanter, Exh. 1.)

      {¶4}   Several years later, on July 15, 2010, Appellant filed a petition to

withdraw his guilty plea. The state opposed the petition on December 10, 2010.

Appellant filed a motion for leave to reply to the state’s opposition instanter, which

was accepted by the court on May 5, 2011. The court overruled Appellant’s petition

to withdraw his guilty plea on November 30, 2011. Appellant filed a timely appeal of

the entry denying his petition to withdraw his guilty plea. On appeal, Appellant’s
                                                                                     -5-

single assignment of error challenges the court’s discretion to deny his petition to

withdraw his plea.

                                  Argument and Law

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR.

       FOOSE’S CRIMINAL RULE 32.1 MOTION TO WITHDRAW HIS

       GUILTY PLEA.

       {¶5}   Criminal Rule 32.1 governs the withdrawal of a guilty or no contest plea.

Ordinarily a motion to withdraw a plea may be made only prior to sentencing,

however, the trial court is permitted to “set aside the judgment of conviction and

permit the defendant to withdraw his or her plea” to “correct manifest injustice.”

       {¶6}   A defendant seeking to withdraw a plea of guilty after the imposition of

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

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

“The logic behind this precept is to discourage a defendant from pleading guilty to

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

unexpectedly severe.” State v. Caraballo, 17 Ohio St.3d 66, 67, 47 N.E.2d 627

(1985).

       {¶7}   When a defendant seeks to withdraw a guilty plea the request is

“addressed 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, paragraph two of the syllabus. The review of a
                                                                                        -6-

trial court’s decision in these matters “is somewhat limited as a motion made

pursuant to Crim. R. 32.1 is left to the sound discretion of the trial court. It is that

court which determines the credibility of a defendant’s claim in support of the motion.”

Caraballo at 67, citing Smith, supra, paragraph two of the syllabus. “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.” Id., paragraph three of

the syllabus, also State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-5643, 773 N.E.2d

522, ¶14. “Under Crim.R. 11(B)(1), ‘[t]he plea of guilty is a complete admission of the

defendant’s guilt’ * * * ‘a counseled plea of guilty is an admission of factual guilt which

removes issues of factual guilt from the case.” (Internal citation omitted.) State v.

Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶92, citing State v.

Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), paragraph one of the syllabus. In

cases involving non-capital offenses, where the death penalty is not sought by the

prosecution, a guilty plea waives any challenge to the sufficiency of the evidence.

Ketterer at ¶93, also Carpenter v. Mohr, 163 F.3d 938, 946, (C.A.6, 1998).

       {¶8}   Appellant contends that he should be allowed to withdraw his plea

because he was too intoxicated to possess the mental state necessary to commit the

crimes to which he pled guilty. Appellant supports this claim with the affidavit of one

of his former co-defendants. The co-defendant now claims that Appellant remained

in the van and did not enter the Newport Inn during the commission of the various

crimes because he had blacked out due to ingesting a combination of marijuana and
                                                                                   -7-

prescription drugs. The affiant also swears that Appellant did not have a firearm on

his person while he was in the van. In addition to the affidavit of his co-defendant,

Appellant further contends that he should be allowed to withdraw his plea because,

according to a sworn statement from his mother, after Appellant entered his plea and

was sentenced defense counsel told her that: “after Eugene [does] ten years, he

would go talk to Eugene and then he will talk to the Judge.” (5/5/11 Reply Instanter,

Exh. 1.)

      {¶9}   Turning to Appellant’s claims regarding his mental state at the time the

crimes were committed, Appellant’s guilty plea to a non-capital offense is a waiver of

any challenge to the mental element of the crimes.         To demonstrate manifest

injustice in this instance. Appellant would have to produce evidence that there was

some defect in the waiver made during his plea. Smith, supra. In addition to making

a showing of manifest injustice, he must show that his request was made within a

reasonable time and without undue delay. Smith, paragraphs one and two of the

syllabus. Even if the information attached to Appellant’s petition is correct, nothing

suggests that the information Appellant has produced was not available to him prior

to the entry of his plea. Appellant’s own mental state during the commission of the

crimes could not have been unknown to him at the time he entered his plea and

Appellant’s co-defendant is not a new witness or a witness unavailable to him at the

time of his plea. All of this information remained in Appellant’s possession for the

thirteen years that elapsed between the entry of his plea and his 2010 petition to

withdraw that plea. The fact that Appellant did not present a defense at the time and
                                                                                       -8-

has not raised this defense for the intervening thirteen years adversely impacts the

credibility of his argument. Id., paragraphs two and three of the syllabus.          This

appears to be a classic case of a change of heart, thirteen years after the plea was

entered.   Under these circumstances the trial court was entitled to discredit the

information contained in the affidavit of the co-defendant, and we defer to that

credibility determination. Id., paragraph two of the syllabus. Further, Appellant at no

time alleges that he was under the influence of any substance at the time he entered

his plea and stated that he understood the effect of the plea, including waiver.

       {¶10} Appellant also contends that his plea was not voluntarily entered due to

the misadvice of counsel. The sole evidence he offers in support of this contention is

a 2009 statement by his mother. According to this statement, Appellant’s defense

attorney promised to “talk to” Appellant and to the judge after ten years in prison had

elapsed. According to Appellant’s mother, this statement was made to her after the

sentencing hearing concluded. Counsel contends that this statement can only be

construed as a promise to seek judicial release after 10 years, a contention we find to

be a stretch, at the very least. Even if counsel is accurate, Appellant is not entitled to

the relief he seeks. Appellant, at the time he entered his plea, could in no way have

relied on a statement made to his mother after he was sentenced. Further, even if

the statement is taken at face value and given the benefit of complete credibility,

Appellant could not have reasonably believed that a promise by the lawyer to talk to

him and to the judge was a guarantee that he would be released in ten years. Even

if Appellant would have been entitled to seek judicial release in 10 years, which he is
                                                                                    -9-

not based on his crimes [see former R.C. 2929.20(A)], a request for such release

does not, of course, guarantee such relief will be granted. Moreover, because the

alleged statement was made after he entered his plea, such misplaced reliance could

not have altered his decision to plead guilty. The transcript of the hearing and his

plea form clearly indicate Appellant was aware of his potential sentence as a result of

the plea was 43 years to life in prison. Unlike the defendant in State v. Mays, 174

Ohio App.3d 681, 2008-Ohio-128, which Appellant urges us to apply, Appellant has

not identified a pre-plea misstatement of substantive law.     Instead, he claims he

received a post-sentence promise that his lawyer would have a conversation with the

judge. None of the circumstances which might reasonably be expected to flow from

this “promise” remotely suggests the level of manifest injustice present in Mays and

required in order to grant Appellant’s request. Once again, we must note that the

information presented by Appellant’s mother was also available to Appellant for at

least the last several years.

       {¶11} Appellant, who has waived any challenge to the mental element of his

crimes and has not shown any improper pre-plea promise was made to influence his

plea, has not discharged his burden to show the existence of a manifest injustice.

Ketterer, supra; Crim.R. 32.1. Appellant’s tardy presentation of evidence available to

him prior to and immediately after his plea hearing fourteen years later constitutes

undue delay.     Smith, supra, paragraph three of the syllabus and Bush, supra.

Appellant’s single assignment of error is overruled.

                                      Conclusion
                                                                                -10-

       {¶12} Appellant’s guilty plea waived any challenge to the sufficiency of the

evidence. Ketterer, supra. Appellant’s petition to withdraw his guilty plea failed to

demonstrate manifest injustice in any way and it appears this petition was made only

after undue delay. Smith, supra. For these reasons, his single assignment of error is

overruled and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
