[Cite as State v. Heard, 2014-Ohio-371.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26965

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JOHN R. HEARD                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 04 01 0093 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: February 5, 2014



        HENSAL, Judge.

        {¶1}     John Heard appeals an order of the Summit County Court of Common Pleas that

denied his motion to withdraw his guilty plea. For the following reasons, this Court affirms.

                                                I.

        {¶2}     In 2004, Mr. Heard pleaded guilty to one count of rape, two counts of felonious

assault, and nine counts of endangering children, and the trial court sentenced him to life

imprisonment with parole eligibility after ten years. Mr. Heard appealed his sentence, but this

Court upheld it. In May 2013, Mr. Heard moved to withdraw his plea, arguing that his lawyer

had been ineffective for not properly investigating the charges and for forcing him to plead

guilty. He also argued that the prosecution wrongfully withheld exculpatory evidence. After the

State opposed the motion, the trial court denied it, noting that Mr. Heard had not presented any

evidence in support of his allegations. Mr. Heard has appealed, assigning as error that the trial

court incorrectly denied his motion to withdraw his plea.
                                                 2


                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRORNEOUSLY DENIED DEFENDANT-
       APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WITHOUT A
       HEARING [ON] DETERMINING FACTOR OF TRUTH OR INNOCENCE
       WHEN HIS GUILTY PLEA WAS INDUCE[D] BY INEFFECTIVE
       ASSISTANCE OF COUNSEL AND PROSECUTOR MISCONDUCT
       THEREBY DENYING APPELLANT[‘S] RIGHT TO DUE PROCESS AND
       TRIAL BY JURY UNDER THE FOURTEENTH AMENDMENT OF THE
       UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
       OHIO CONSTITUTION.

       {¶3}    Mr. Heard argues that, before he entered his guilty plea, he did not know that the

victim’s medical records indicated that the victim’s injuries were consistent with an accidental

fall. He also argues that the prosecution failed to disclose that a witness had told an investigator

that the victim’s injuries were from a fall. He, therefore, contends that his trial lawyer was

ineffective for not properly investigating the charges against him and that the prosecution

engaged in misconduct by not disclosing its investigator’s records.

       {¶4}    Criminal Rule 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.” Mr. Heard acknowledges that, because he filed his motion after sentencing, he must

demonstrate manifest injustice. “Manifest injustice” is a “clear or openly unjust act” that is a

“miscarriage of justice or is inconsistent with the demands of due process.” State v. Ford, 9th

Dist. Summit No. 26260, 2012-Ohio-4028, ¶ 5, quoting State ex rel. Schneider v. Kreiner, 83

Ohio St.3d 203, 208 (1998).

       {¶5}    It is within the trial court’s sound discretion whether to grant a motion to

withdraw a plea. State v. Smith, 49 Ohio St.2d 261, 264 (1977). “An appellate court reviews a
                                                3


trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard.”

State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32. An abuse of discretion “implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983). An appellate court may not substitute its judgment for that of the

trial court when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d

161, 169 (1990).

       {¶6}    Although Mr. Heard alleged in his motion to withdraw his plea that he had

uncovered exculpatory evidence, he did not present any evidence to the trial court. This Court

has explained that, “[i]f a movant fails to submit evidentiary documents sufficient to demonstrate

manifest injustice he is not entitled to withdraw his guilty plea.” State v. Buckwald, 9th Dist.

Lorain No. 09CA009695, 2010-Ohio-3543, ¶ 7, quoting State v. Brown, 9th Dist. Summit No.

24831, 2010-Ohio-2328, ¶ 12. In his reply brief, Mr. Heard asserts that he attached the evidence

to his motion as exhibits. There are no such documents, however, in the trial court record. We

also note that Mr. Heard did not refer to any exhibits in his motion. While Mr. Heard has

attached several documents to his appellate brief and reply brief, this Court may not consider

evidence that was not presented to the trial court. State v. Ishmail, 54 Ohio St.2d 402, 406

(1978) (explaining that a reviewing court is “limited to what transpired in the trial court as

reflected by the record made of the proceedings.”). Accordingly, in light of the fact that Mr.

Heard did not present any evidence to the trial court to support of his allegations of ineffective

assistance of counsel and prosecutorial misconduct, we conclude that the court did not abuse its

discretion when it denied his motion to withdraw his plea. Mr. Heard’s assignment of error is

overruled.
                                                 4


                                                III.

       {¶7}    The trial court did not abuse its discretion when it denied Mr. Heard’s motion to

withdraw his plea. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       JENNIFER HENSAL
                                                       FOR THE COURT

MOORE, P. J.
BELFANCE, J.
CONCUR.

APPEARANCES:

JOHN R. HEARD, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
