[Cite as State v. Hale, 2014-Ohio-3322.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100447




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                           ISIAH B. HALE
                                                      DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-09-529253-A

        BEFORE: Keough, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     July 31, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Michael J. Cheselka
75 Public Square, Suite 920
Cleveland, Ohio 44113-2084
KATHLEEN ANN KEOUGH, J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision

allowing defendant-appellee, Isiah Hale, to withdraw his guilty plea. For the reasons that

follow, we affirm.

       {¶2} In 2009, Hale was charged with murder, aggravated robbery, kidnapping, and

having a weapon while under disability.          Hale’s codefendant, was charged with

conspiracy and having a weapon while under disability. In 2010, Hale pleaded guilty to

an amended count of involuntary manslaughter with a three-year firearm specification.

He was sentenced to a total prison term of eight years.

       {¶3} On January 5, 2011, Hale filed a motion to withdraw his guilty plea on the

basis that the state disclosed at the trial of Hale’s codefendant that gunshot primer residue

was found on the victim’s hand, which was information requested by Hale during pretrial

discovery, but was not disclosed to him. The state opposed the motion, and in May 2011

the trial court conducted a hearing on the motion.

       {¶4} In August 2013, the trial court granted Hale’s motion to withdraw his plea by

written decision.

       The Defendant’s Motion to Withdraw his Guilty Plea, entered into on April
       22, 2010, to correct a manifest injustice pursuant to rule 32.1 of the Ohio
       Rules of Criminal Procedure is granted.

       The Defendant, Isiah B. Hale, along with a Co-Defendant, was charged
       with Murder, pursuant to Ohio Revised Code Sections 2903.02(A) and (B)
       with Firearm Specifications. There were two additional felony offenses
       referencing Mr. Hale. Throughout the pre-trial discovery process, the
       Defendant maintained that he acted in self-defense. On March 5, 2010, the
       results of a gunshot residue test conducted by the Cuyahoga County
       Coroner’s Office were received. The test results reflected that the murder
       victim, Montrell Stonewall, did indeed have gunshot primer residue on his
       right hand.

       The defense requested, pursuant to Rule 16 of the Ohio Rules of Criminal
       Procedure, any evidence material to the defense including the results of any
       gunshot residue tests performed on the victim. The State produced the
       requested discovery information in its possession. That information
       included information from the Coroner’s Office — absent any results of the
       gunshot residue test. Defense counsel relied on the fact that no gunshot
       residue test had been performed and advised Mr. Hale to forgo his
       affirmative defense of self-defense. Subsequently Mr. Hale entered a
       change of plea to Involuntary Manslaughter.

       On January 4, 2011, the State disclosed, during the trial of the
       Co-Defendant that a gunshot residue test had indeed been performed on the
       victim. The results proved positive for the presence of gunshot primer
       residue on the right hand of the victim. The Co-Defendant was acquitted.

       The Defense also alleges a Brady violation. Brady v. Maryland, 373 U.S.
       83. The elements necessary to trigger a Brady violation are:

              (i)     The evidence must be favorable to the accused;

              (ii)    The evidence must have been either willfully or
                      inadvertently suppressed by the government;

              (iii)   Prejudice must have ensued.

       It is the opinion of the Court that the Defendant’s burden of proof is met
       under a Brady analysis as well. It must be said that no one believes that the
       State intentionally or willfully withheld the gunshot residue test results.

       This delayed disclosure was material to the issues of guilt as it substantiated
       the Defendant’s self-defense defense and was tantamount to a manifest
       injustice mandating the granting of the Defendant’s Motion to Withdraw his
       Guilty Plea.

       {¶5} The state appeals this decision, raising as its sole assignment of error that the

trial court erred in granting Hale’s motion to withdraw his guilty plea.
       {¶6} “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.” Crim.R. 32.1. The Supreme Court of Ohio has defined “manifest injustice” as a

clear or openly unjust act. State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208,

699 N.E.2d 83 (1998). This standard permits a defendant to withdraw his plea only in

extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

The defendant moving for a postsentence withdrawal of a guilty plea, has the burden of

establishing the existence of a manifest injustice. Id. at paragraph one of syllabus.

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

sound discretion of the trial court. Id. at paragraph two of the syllabus. We will not

reverse a trial court’s decision absent an abuse of discretion. Id., citing State v. Xie, 62

Ohio St.3d 521, 584 N.E.2d 715 (1992). A trial court abuses its discretion when its

judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶8} In this case, the state contends that the disclosure of the gunshot residue test

does not constitute a manifest injustice that necessitates the vacation of conviction and

withdrawal of Hale’s guilty plea. Specifically, the states directs this court to the fact that

Hale acknowledged shooting the victim while the victim was pointing a gun at him, but

that Hale never stated that he was being shot at by the victim. The state seems to allude
that only after learning about the presence of the gunshot primer residue, did Hale’s story

change. These arguments were made and rejected in the trial court.

       {¶9} The evidence and testimony that was adduced at the hearing on Hale’s motion

shows that in 2010, a trace evidence report was generated by the coroner’s office

following the examination of the victim.        Contained in that report was a finding

indicating that gunshot primer residue was detected on the victim’s right hand. Despite

discovery being requested by Hale, the defense did not receive this report. In fact, the

record reveals that this report was not released to either the state or the defense until

January 2011, the day prior to the start of the trial against Hale’s codefendant. It is clear

that the withholding of the report was inadvertent by the coroner’s office, and not willful

by the state.

       {¶10} However, it cannot be said that when a defendant is maintaining a defense

of self-defense and the trace evidence report indicates that the victim had gunshot primer

residue on his hand, that this evidence would not be considered potentially exculpatory.

Without knowledge of this potentially exculpatory evidence, it cannot be said that Hale

entered his plea knowingly, intelligently, and voluntarily. The trial court’s decision

finding that a manifest injustice was demonstrated by Hale was neither arbitrary,

unreasonable, or unconscionable. The court heard all the testimony and reviewed all the

evidence in making its decision. The trial court did not abuse its discretion in granting

Hale’s motion to withdraw his guilty plea. Accordingly, the state’s assignment of error

is overruled.
       {¶11} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
