[Cite as State v. Dull, 2020-Ohio-4229.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J
                          Plaintiff-Appellee   :       Hon..Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019CA00158
DAVID KENNETH DULL, JR.                        :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 1993-
                                                   CR-3870(B)

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            August 27, 2020


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    WILLIAM NORMAN
Stark County Prosecutor                            600 Granger Road, 2nd Floor
BY: RONALD MARK CALDWELL                           Brooklyn, OH 44131
Assistant Prosecutor
110 Central Plaza South
Canton, OH 44702
Stark County, Case No. 2019CA00158                                                      2


Gwin, P.J.

       {¶1}   Appellant David Dull appeals the September 23, 2019 judgment entry of the

Stark County Court of Common Pleas overruling his motion to withdraw plea. Appellee

is the State of Ohio.

                                  Facts & Procedural History

       {¶2}   In 1993, Diane Patterson (“Patterson”), the manager of a Red Lobster

restaurant, died as a result of a gunshot wound to the head and stab wounds. $2,500

was taken from the safe in the restaurant. Appellant was a former employee at the

restaurant. During the investigation, Kenneth Souders (“Souders”) alleged that appellant

shot and killed Patterson, while appellant alleged that Souders shot and killed Patterson.

       {¶3}   The Stark County Grand Jury returned an indictment that charged appellant

and Souders with the following: aggravated murder (R.C. 2903.01(A)) with a death

penalty specification and firearm specification; aggravated murder (R.C. 2903.01(B)) with

a death penalty specification and firearm specification; aggravated robbery with a firearm

specification; and aggravated burglary with a firearm specification. Both appellant and

Souders were charged as principal offenders and as accomplices.

       {¶4}   Appellant opted to plead guilty to the charges and accepted a plea offer

from appellee that precluded the death penalty in exchange for a life sentence and for

appellant’s truthful testimony at Souders’ trial. The plea form that appellant signed on

April 11, 1994 provides that, pursuant to Criminal Rule 11(F), appellant and appellee

entered into the following agreement, “in exchange for my full and truthful cooperation

with the State of Ohio in the prosecution of the co-defendant, Kenneth G. Souders, I will
Stark County, Case No. 2019CA00158                                                           3


receive a sentence other than death, specifically outlined below.” The specific sentence

for each count and specification was detailed in the plea form.

       {¶5}   Upon pleading guilty, appellant received the following sentence pursuant to

the plea agreement: aggravated murder – life imprisonment with parole eligibility after

serving 20 years; aggravated murder – life imprisonment with parole eligibility after 20

years; aggravated robbery – indeterminate term of imprisonment of 10 to 25 years;

aggravated burglary – indeterminate term of imprisonment of 10 to 25 years; and firearm

specifications – 3 years actual incarceration for each.        The trial court imposed the

sentences concurrently with each other, and the four three-year terms for the firearm

specifications were imposed concurrently with each other, but consecutive to the

concurrent sentences for the other offenses. Appellant’s aggregate prison term was a

term of life imprisonment with parole eligibility after serving 23 years.

       {¶6}   A single judge accepted appellant’s plea and sentenced appellant.

       {¶7}   Appellant filed a pro se motion to withdraw guilty plea on October 10, 2018,

requesting the trial court allow him to withdraw his guilty plea “to correct a manifest

injustice.” Appellant argued in this motion that a manifest injustice exists in this case for

the following reasons: the trial court lacked jurisdiction to accept his plea of guilty because

there was not a three-judge panel as required by R.C. 2945.06 and Criminal Rule

11(C)(3); the trial court was improperly involved in the plea negotiations; there is newly-

discovered evidence that Souders confessed to another prisoner that he stabbed, shot,

and killed Patterson; and ineffective assistance of counsel.

       {¶8}   On May 23, 2019, appellant filed a motion to supplement his motion to

withdraw plea with his own affidavit. In his affidavit, appellant avers that no one advised
Stark County, Case No. 2019CA00158                                                        4


him of his right to have his guilty pleas determined by a three-judge panel and thus his

plea was not knowingly, intelligently, and voluntarily made. Appellee filed a response to

the motion on July 12, 2019. Appellant filed a reply on August 23, 2019.

       {¶9}   On September 23, 2019, the trial court denied appellant’s motion to

withdraw plea. The trial court found that appellant, “fails to make the required showing of

manifest injustice under Crim.R. 32.1.” Specifically, the trial court overruled appellant’s

argument as to the three-judge panel and his associated ineffective assistance of counsel

claim, finding that: the guilty plea was entered into as part of a negotiated plea agreement

that spared appellant from facing the death penalty; pursuant to State v. Griffin, the

procedures pertaining to capital pleas were not applicable; and appellant’s remedy was

a direct appeal, which appellant never utilized. As to appellant’s remaining arguments,

the trial court found them to be without merit and based upon a misunderstanding of

accomplice liability in Ohio.

       {¶10} Appellant appeals the September 23, 2019 judgment entry of the Stark

County Court of Common Pleas and assigns the following as error:

       {¶11} “I. THE TRIAL COURT ERRED IN DENYING WITHOUT HEARING

APPELLANT’S RULE 32.1 MOTION TO WITHDRAW GUILTY PLEA WHERE

APPELLANT’S CLAIM, THAT INEFFECTIVE ASSISTANCE OF COUNSEL RENDERED

HIS    GUILTY      PLEA     UNCONSTITUTIONAL           AS    NOT     KNOWINGLY         AND

INTELLIGENTLY ENTERED ACCEPTED AS TRUE, ENTITLED HIM TO VACATURE

OF HIS GUILTY PLEA AND CONVICTION.”
Stark County, Case No. 2019CA00158                                                         5


                                                 I.

       {¶12} In his assignment of error, appellant contends the trial court committed error

in denying his motion to withdraw plea without a hearing. Specifically, appellant contends

that since a manifest injustice may result where ineffective assistance of counsel renders

a defendant’s plea not knowingly and intelligently entered, the trial court erred in denying

his motion based upon his ineffective assistance claim. Appellant argues his trial counsel

was deficient in not advising him of his right to have his plea taken by a three-judge panel.

                                        Criminal Rule 32.1

       {¶13} Criminal Rule 32.1 governs the withdrawal of a guilty plea and states 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.” “A motion

made pursuant to Crim.R. 32.1 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.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977).

       {¶14} The defendant bears the burden of proving “manifest injustice.”              Id.

Whether the defendant has sustained that burden is within the sound discretion of the

trial court and we review the trial court’s decision for an abuse of discretion. Id. In order

to find an abuse of discretion, we must determine the trial court’s decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Further, an “undue

delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the
Stark County, Case No. 2019CA00158                                                          6


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

movant and mitigating against the granting of the motion.” State v. Smith, 49 Ohio St.2d

261, 361 N.E.2d 1324 (1977).

       {¶15} Under the manifest injustice standard, a post-sentence withdrawal motion

is allowable only in extraordinary cases. State v. Williams, 5th Dist. Tuscarawas No. 2013

AP 04 0020, 2014-Ohio-5727. A manifest injustice has been defined as a “clear or openly

unjust act.” State v. Congrove, 5th Dist. Delaware No. 09CA090080, 2010-Ohio-2933,

quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 699 N.E.2d 2983 (1998).

“A manifest injustice comprehends a fundamental flaw in the path of justice so

extraordinary that the defendant could not have sought redress from the resulting

prejudice through any form of application reasonably available to him.” State v. Williams,

5th Dist. Tuscarawas No. 2013 AP 04 0020, 2014-Ohio-5727.

                                Ineffective Assistance of Counsel

       {¶16} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel was ineffective, i.e., whether

counsel’s performance fell below an objective standard of reasonable representation and

violative of any of his or her essential duties to their client. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” Id.

       {¶17} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test, whether the defense was
Stark County, Case No. 2019CA00158                                                          7


actually prejudiced by counsel’s ineffectiveness such that the reliability of the outcome of

the trial is suspect. Id. This requires a showing that there is a reasonable probability that,

but for counsel’s unprofessional error, the outcome of the proceeding would have been

different. Id.

                            R.C. 2945.06 and Criminal Rule 11(C)(3)

       {¶18} In order to determine whether the trial court committed error in denying his

motion to withdraw based upon his ineffective assistance of counsel claim, we must

examine R.C. 2945.06, Criminal Rule 11(C)(3), and the associated caselaw existing at

the time appellant entered his plea.

       {¶19} R.C. 2945.06 provides, “if the accused pleads guilty of aggravated murder,

a court composed of three judges shall examine the witnesses, determine whether the

accused is guilty of aggravated murder or any other offense, and pronounce sentence

accordingly.” Pursuant to Criminal Rule 11(C)(3), with respect to aggravated murder,

       If the indictment contains one or more specifications that are not dismissed

       upon acceptance of a plea of guilty or no contest to the charge, or if pleas

       of guilty or no contest to both the charge and one or more specifications are

       accepted, a court composed of three judges shall: (a) determine whether

       the offense was aggravated murder or a lesser offense; and (b) if the

       offense is determined to have been a lesser offense, impose sentence

       accordingly, or (c) if the offense is determined to have been aggravated

       murder, proceed as provided by law to determine the presence or absence

       of the specified aggravating circumstances and of mitigating circumstances,

       and impose sentence accordingly.
Stark County, Case No. 2019CA00158                                                          8


       {¶20} Appellant contends that because the trial court failed to convene a three-

judge panel in accordance with R.C. 2945.06 and Criminal Rule 11(C)(3), his plea was

not knowingly and intelligently made. Appellant argues that if the proper three-judge

panel procedure was utilized, it could have resulted in a finding of guilt of a lesser offense

than aggravated murder and may have resulted in a substantially different sentence.

       {¶21} Appellant cites the Ohio Supreme Court’s case of State v. Parker in support

of his argument. 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846. In Parker, the

Ohio Supreme Court held that a defendant charged with a crime punishable by death who

has waived his right to a jury trial must, pursuant to R.C. 2945.06 and Criminal Rule

11(C)(3), have his case heard and decided by a three-judge panel even if the State agrees

that it will not seek the death penalty.

       {¶22} However, at the time of appellant’s plea, Parker had not yet been decided

and the law in this district was established by State v. Griffin, 73 Ohio App.3d 546, 597

N.E.2d 1178 (5th Dist. 1992), in which we held that the trial court was not required to

follow death penalty procedures where the State of Ohio agreed not to request the death

penalty. At the time of appellant’s plea, the caselaw in this district established that when

a defendant agreed to forego his right to a jury trial in exchange for the prosecutor’s

agreement not to pursue the death penalty, the case could be heard by a single judge.

Id. The Griffin case was not overruled by Parker until 2002.

       {¶23} Thus, based upon the caselaw at the time of appellant’s plea, and at the

time appellant would have appealed his sentence, the failure to convene a three-judge

panel was not reversible error and Ohio law provided that special procedural protections

associated with a capital offense were required only when the death penalty could be
Stark County, Case No. 2019CA00158                                                        9


imposed. State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989; Ahart v.

Bradshaw, 122 Fed.Appx. 188 (6th Cir. 2005). “That this law may have changed a decade

or more later does not justify * * * abandoning the law in place and the convictions based

on it at the time of trial” and the fact that the law may have changed in 2002 does not

mean appellant had a valid ground for appeal in 1994. Id.

       {¶24} With regard to appellant’s ineffective assistance of counsel argument, we

find that counsel’s performance did not fall below an objective standard of reasonable

representation and counsel did not violate any of their essential duties to appellant

because, as detailed above, at the time of appellant’s plea, the caselaw in this district

established that when a defendant agreed to forego his right to a jury trial in exchange for

the prosecutor’s agreement not to pursue the death penalty, the case could be heard by

a single judge. At the time appellant would have appealed his sentence, the failure to

convene a three-judge panel was not reversible error. This caselaw was not overruled

until eight years after appellant’s plea. The law presumes competence on trial counsel’s

part. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); State v. Hurt, 5th Dist.

Muskingum No. CT2019-0053, 2020-Ohio-2754. Trial counsel could not have predicted

the holding in Parker eight years before its issuance.

       {¶25} The trial court additionally overruled appellant’s motion to withdraw because

the proper remedy for his claims was a direct appeal. We agree.

       {¶26} Subsequent to Parker, the Supreme Court clarified that Parker does not

stand for the proposition that a court lacks subject-matter jurisdiction in a death penalty

case if it fails to convene a three-judge panel upon a defendant’s waiver of a jury. Pratts

v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.
Stark County, Case No. 2019CA00158                                                       10


       {¶27} Rather, the Ohio Supreme Court has held that the failure to convene a

three-judge panel to accept a guilty plea renders a judgment voidable, not void, and is

properly challenged on direct appeal. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-

1980, 806 N.E.2d 992; State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-

2053, 807 N.E.2d 344; State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543, 721 N.E.2d

1051 (2000). As stated in Pratts v. Hurley, the “failure to convene a three-judge panel to

accept a guilty plea did not constitute a lack of subject-matter jurisdiction rendering the

court’s judgment void ab initio and subject to collateral attack. It constitutes an error in

the court’s exercise of jurisdiction and must be raised on direct appeal.” Id. While the

Supreme Court recognized that statutes require strict compliance, strict compliance is

“reversible error on direct appeal; but after direct appeal, any error is, in effect, waived

and cannot be remedied through collateral attack.” Id. See also State v. Heddleson, 5th

Dist. Stark No. 2011CA0178, 2011-Ohio-6875; State v. Nooks, 10th Dist. Franklin No.

10AP-108, 2010-Ohio-2982; State v. Porterfield, 11th Dist. Trumbull No. 2008-T-0002,

2008-Ohio-5948; State v. Woods, 8th Dist. Cuyahoga No. 82120, 2003-Ohio-2475.

       {¶28} In this case, it was obvious at the time appellant entered his plea of guilty

that a single judge accepted his plea and imposed sentence. Consequently, appellant’s

argument that his plea was not knowing and voluntary due to the lack of compliance with

R.C. 2945.06 and Crim.R. 11(C)(3) constitutes an error that must have been raised on

direct appeal. Though appellant pled guilty and was sentenced in 1994, he did not seek

a direct appeal of his sentence.

       {¶29} We find this case analogous to State v. Mitchell, 5th Dist. Guernsey No. 07

CA 17 2008-Ohio-101.       Like the appellant in this case, Mitchell was charged with
Stark County, Case No. 2019CA00158                                                               11


aggravated murder. Id. Mitchell entered a negotiated plea and the trial court sentenced

him to life in prison without parole eligibility for forty years. Id. Mitchell did not file a direct

appeal from his sentence. Id. In his appeal of the trial court’s denial of his motion to

withdraw plea without holding a hearing, Mitchell argued the trial court’s failure to empanel

a three-judge panel to hear his plea in an aggravated murder case rendered his plea

involuntary. Id. Additionally, Mitchell asserted manifest injustice existed because his

guilty plea was not knowingly, voluntarily, or intelligently made as required by Criminal

Rule 11(C)(3) due to the alleged ineffective assistance of his trial counsel because his

trial counsel was deficient in not advising him of his right to have his plea taken by a three-

judge panel. Id.

       {¶30} We overruled Mitchell’s assignments of error, finding that his argument

“ignores the fact that the forty-year sentence imposed was part of his negotiated plea

agreement” and finding the proper way to challenge a plea predicated on an error under

R.C. 2545.06 is a direct appeal. Id. Additionally, as to Mitchell’s ineffective assistance

claim, we found Mitchell failed to demonstrate he suffered prejudice and thus did not meet

his burden of proving a manifest injustice. Id.

       {¶31} Similar to our analysis in Mitchell, we find the trial court in this case did not

abuse its discretion in determining that appellant did not meet his burden to show manifest

injustice. While appellant argues that, had a three-judge panel evaluated the facts of the

case and found him guilty of an offense lesser than aggravated murder and the panel

may have sentenced him to a shorter prison term, his argument ignores the fact that the

sentence imposed by the trial court was part of his negotiated plea agreement. Id. As

we noted in Mitchell, without explicit agreement to the sentence, it is “pure conjecture that
Stark County, Case No. 2019CA00158                                                         12


the State would have extended the plea offer at all.” Id.; State v. Woods, 8th Dist.

Cuyahoga No. 82120, 2003-Ohio-2475; State v Nelson, 10th Dist. Franklin No. 11AP-

720, 2012-Ohio-1918.

       {¶32} We cannot say in hindsight that the plea agreement was a bad one, despite

the procedural violation of Criminal Rule 11(C)(3) and R.C. 2945.06. At the plea hearing

and in the plea form, the trial court fully apprised appellant of the constitutional rights he

was giving up in pleading guilty, and appellant unambiguously indicated the voluntary,

intelligent, and knowing nature of his plea. As to appellant’s ineffective assistance claim,

like in Mitchell, we find appellant failed to demonstrate he suffered prejudice and

counsel’s performance did not fall below an objective standard of reasonable

representation. Thus, there is no manifest injustice resulting from ineffective assistance

of counsel. Absent a showing of manifest injustice, the trial court did not abuse its

discretion in denying appellant’s motion to withdraw guilty plea.

       {¶33} Based on the foregoing reasons, we find the trial court did not abuse its

discretion in denying the motion to withdraw plea. We find this case does not come within

the extraordinary category of cases for which vacating a guilty plea is made necessary by

manifest injustice in the results of the plea.

                                                 Hearing

       {¶34} Appellant finally argues that the trial court committed error in not holding a

hearing on his motion to withdraw.

       {¶35} A trial court is not automatically required to hold a hearing on a post-

sentence motion to withdraw guilty plea. State v. Bable, 5th Dist. Fairfield No. 18-CA-32,

2019-Ohio-1209. A hearing must only be held if the facts alleged by the defendant,
Stark County, Case No. 2019CA00158                                                         13


accepted as true, would require that the defendant be allowed to withdraw the plea. State

v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633. Generally, a self-

serving affidavit or statement is insufficient to demonstrate manifest injustice. State v.

Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16.

       {¶36} The decision whether to hold a hearing on a post-sentence motion to

withdraw a guilty plea is left to the discretion of the trial court. State v. Smith, 49 Ohio

St.2d 261, 361 N.E.2d 1324 (1977). Therefore, this Court’s review of the trial court’s

decision not to hold a hearing is limited to a determination of whether the trial court abused

its discretion. State v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633. In

order to find an abuse of discretion, we must determine the trial court’s decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶37} Appellant’s motion to withdraw his guilty plea was filed almost 23 years after

his plea and sentencing. Although not dispositive on its own, “[a]n undue delay between

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

motion under Criminal Rule 32.1 is a factor adversely affecting the credibility of the

movant and mitigating against the granting of the motion.” State v. Martin, 5th Dist.

Richland No. 11CA0116, 2012-Ohio-4394.

       {¶38} In this case, we find the trial court did not abuse its discretion in ruling on

appellant’s motion to withdraw without conducting a hearing on the motion. In appellant’s

affidavit attached to his motion, he avers that no one advised him of his right to have his

guilty pleas determined by a three-judge panel and thus his plea was not knowingly,

intelligently, and voluntarily made. As detailed above, the allegations contained in the
Stark County, Case No. 2019CA00158                                                        14


motion concerning the lack of a three-judge panel are insufficient in this case to

demonstrate a manifest injustice. Further, appellant’s self-serving affidavit is insufficient

to demonstrate a manifest injustice. State v. Aleshire, 5th Dist. Licking No. 2011-CA-73,

2012-Ohio-16. Finally, appellant’s three-judge panel claim could have been raised on

direct appeal which appellant chose not to pursue.

       {¶39} Based on the foregoing, appellant’s assignment of error is overruled.

       {¶40} The September 23, 2019 judgment entry of the Stark County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
