[Cite as State v. Greenlee, 2017-Ohio-849.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 27039
                                                    :
 v.                                                 :   T.C. NO. 15CRB2444
                                                    :
 KIEL GREENLEE                                      :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                 Rendered on the ___10th __ day of _____March_____, 2017.

                                               ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 W. Third Street,
Rm. 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. No. 0086838, 120 W. Second Street, Suite 603, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

KIEL T. GREENLEE, 6124 Clematis Drive, Dayton, Ohio 45449
      Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} Defendant-appellant Kiel Greenlee appeals a decision of the Dayton

Municipal Court denying his post-sentence motion to withdraw his guilty and motion to
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dismiss. Greenlee filed a timely notice of appeal with this Court on March 8, 2016.

      {¶ 2} On May 4, 2015, Greenlee was charged by complaint with criminal

damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree. At

his arraignment, Greenlee pled not guilty and was released on his own recognizance.

The record establishes that Greenlee’s first and second appointed attorneys withdrew

from his representation. The trial court appointed a third attorney to represent Greenlee

on August 20, 2015.

      {¶ 3} Shortly thereafter on October 5, 2015, Greenlee pled guilty to an amended

charge of disorderly conduct, in violation of R.C. 2917.11, a misdemeanor of the fourth

degree. In exchange for Greenlee’s guilty plea, the State agreed to dismiss an additional

charge in a separate case as well. On the plea of guilty to disorderly conduct, the trial

court sentenced him to thirty days in jail, suspended, placed him on supervised probation

for six months, and ordered him to pay restitution in the amount of $349.84. The trial

court also ordered Greenlee to pay court costs but suspended a fine in the amount of

$200.00. The trial court issued Greenlee’s judgment entry of conviction on October 5,

2015. Greenlee did not file a direct appeal of his conviction and sentence imposed on

October 5, 2015.

      {¶ 4} However, on November 10, 2015, Greenlee filed a pro se motion to withdraw

his guilty plea and a motion to dismiss. The State filed a response to Greenlee’s motion

to withdraw on November 19, 2015. On March 1, 2016, the trial court issued an entry

denying Greenlee’s motion to withdraw and motion to dismiss.        On March 8, 2016,

Greenlee filed a notice of appeal of the trial court’s decision denying his motion to

withdraw and motion to dismiss. Additionally, upon a motion from Greenlee, the trial
                                                                                         -3-


court issued an entry staying the execution of Greenlee’s sentence pending the outcome

of his appeal.

       {¶ 5} We note that on May 18, 2016, we issued an order overruling Greenlee’s

request to prosecute a direct appeal of the judgment entry of conviction filed by the trial

court on October 5, 2015. Therein, we limited Greenlee’s instant appeal to any issues

arising from the trial court’s March 1, 2016, decision denying his motion to withdraw and

motion to dismiss. We further note that on September 9, 2016, Greenlee’s appointed

appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), in which he alleged that no arguably meritorious issues

exist on appeal. In an order issued on September 13, 2016, we granted Greenlee sixty

days from the date of the order in order to file a pro se appellate brief. Thereafter, on

October 6, 2016, Greenlee filed a pro se appellate brief in which he argues that his motion

to withdraw and motion to dismiss should have been granted by the trial court because

his counsel was ineffective for advising him to enter a guilty plea to disorderly conduct.

The State filed a responsive brief on December 19, 2016, and the instant appeal is now

properly before us.

       {¶ 6} Greenlee did not set forth specific assignments of error in his appellate brief

as required by App.R. 16(A). However, upon reading his brief, we are able to discern

that Greenlee contends that the trial court erred when it overruled his motion to withdraw

his guilty plea. As discussed in State v. Peoples, 2d Dist. Miami No. 2005 CA 20, 2006–

Ohio–4162, the failure to set forth specific assignments of error is grounds for

dismissal. Id. at ¶ 24. However, in the interest of justice, we will review this matter in

order to determine whether the trial court erred when it denied his post-sentence motion
                                                                                           -4-


to withdraw and motion to dismiss in light of his allegation that he received ineffective

assistance of counsel.

       {¶ 7} We further note that Greenlee captioned his original motion as a “motion to

withdraw his guilty plea and motion to dismiss.” For clarity’s sake, the only issue in the

instant appeal is whether the trial court abused its discretion when it denied Greenlee’s

post-sentence motion to withdraw his guilty plea.          There are no apparent issues

regarding a motion to dismiss.

       {¶ 8} “We review the alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, * * *. Pursuant to those cases, trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction

based on ineffective assistance of counsel, it must be demonstrated that trial counsel's

conduct fell below an objective standard of reasonableness and that his errors were

serious enough to create a reasonable probability that, but for the errors, the result of the

trial would have been different. Id. Hindsight is not permitted to distort the assessment

of what was reasonable in light of counsel's perspective at the time, and a debatable

decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel.” (Internal citation omitted.) State v. Mitchell, 2d Dist. Montgomery

No. 21957, 2008–Ohio–493, ¶ 31.

       {¶ 9} Entry of a voluntary guilty plea waives the right to raise ineffective assistance

of counsel claims, except to the extent that ineffective assistance caused the guilty plea to
                                                                                         -5-

be less than knowing or voluntary. State v. Kidd, 2d Dist. Clark No. 03CA43, 2004-Ohio-

6784, ¶ 16.

       {¶ 10} We review a trial court's decision on a post-sentence motion to withdraw a

guilty plea and on a decision granting or denying a hearing on the motion for an abuse of

discretion. Xenia v. Jones, 2d Dist. Greene No. 07–CA–104, 2008–Ohio–4733, ¶ 6; State

v. Perkins, 2d Dist. Montgomery No. 25808, 2014–Ohio–1863, ¶ 27.             “An abuse of

discretion is the trial court's ‘failure to exercise sound, reasonable, and legal decision-

making.’ ” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011–Ohio–5070, ¶ 16,

quoting State v. Beechler, 2d Dist. Clark No. 09–CA–54, 2010–Ohio–1900, ¶ 62. (Other

citation omitted.) “Absent an abuse of discretion on the part of the trial court in making

the ruling, its decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715 (1992).

       {¶ 11} Crim.R. 32.1 provides that a trial court may grant a defendant's post-

sentence motion to withdraw a guilty plea only to correct a manifest injustice.

Accordingly, a defendant who moves to withdraw his plea bears the burden of

establishing a manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002–Ohio–2278, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus. “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 another form of application reasonably

available to him or her.” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010–Ohio–

1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746,

*2 (Aug. 20, 1999). Under this standard, a post sentence motion to withdraw is allowable
                                                                                         -6-

only in extraordinary cases. Smith at 264.

       {¶ 12} “A hearing on a post-sentence motion to withdraw a guilty plea is not

necessary if the facts alleged by the defendant, even if accepted as true, would not require

the court to grant the motion to withdraw the guilty plea.” State v. Mogle, 2d Dist. Darke

Nos. 2013–CA–4, 2013–CA–5, 2013–Ohio–5342, ¶ 17, quoting State v. Burkhart, 2d

Dist. Champaign No. 07–CA–26, 2008–Ohio–4387, ¶ 12. In other words, “[t]o obtain a

hearing, ‘a movant must establish a reasonable likelihood that the withdrawal is

necessary to correct a manifest injustice[.]’ ” State v. Tunstall, 2d Dist. Montgomery No.

23730, 2010–Ohio–4926, ¶ 9, quoting State v. Whitmore, 2d Dist. Clark No. 06–CA–50,

2008–Ohio–2226, ¶ 11. “[W]e have held that no hearing is required on a post-sentence

motion to withdraw a plea where the motion is supported only by the movant's own self-

serving affidavit, at least when the claim is not supported by the record.” (Citations

omitted.) State v. Stewart, 2d Dist. Greene No. 2003–CA–28, 2004–Ohio–3574, ¶ 6.

       {¶ 13} At the plea hearing, the following exchange occurred:

              The Court: All right.    Mr. Greenlee how do you plead to the

       disorderly conduct?

              Greenlee: Guilty[,] Your Honor.

              Q: Sir, do you understand that my [sic] pleading guilty that’s a

       complete admission of guilt to the charge?

              A: Yes[,] Your Honor.

              Q: Any threats or promises been made to get you to plead guilty?

              A: No[,] Your Honor.

              The Court: And [addressing the State] the factual basis for the clerk?
                                                                                 -7-


       The State: Your Honor[,] [Greenlee] was at MJ’s bar here in Dayton

[Ohio] on Jefferson Street. [Greenlee] was told that the after hours time

had arrived and he could no longer be drinking alcohol.           [Greenlee]

objected to that and was threatening to the bartenders there and then kicked

a glass door cracking it. In response they tried to remove him from the

establishment.

       The Court: Ok[,] Mr. Greenlee[.]       Do you understand that’s the

factual basis for your plea of guilty to disorderly conduct.

       Greenlee: Yes[,] Your Honor.

       Q: So this is a misdemeanor of the fourth degree and it does carry a

possible maximum penalty of thirty days of incarceration and a possible

maximum fine of $250.00. Sir, you do have a right to have your case tried

by a judge or jury and the right to question those witnesses that will testify

against you. If you would like to present evidence on your own behalf and

to subpoena witnesses to appear in court [sic]. You do not have to testify

on your own behalf and the State cannot force you to do so. The State

must prove each and every element of the offense of disorderly conduct

that’s been filed against you beyond a reasonable doubt.         Sir, do you

understand those rights?

       A: Yes[,] Your Honor.

       Q: Sir[,] do you give up those rights and enter a plea of guilty to the

charge of disorderly conduct?

       A: Yes[,] Your Honor.
                                                                                       -8-


      ***

             The Court: Ok, all right. Let’s see what I’m gonna do here[.] I’m

      gonna place you on supervised probation for six months or until the

      community control sanctions are completed[.] So as soon as you get these

      done the sooner this case will be over. Do you know what I’m saying?

             Greenlee: Yes[,] I’m gonna try to take this from the money I get from

      [my] G.I. Bill to take care of this Your Honor.

             Q: *** So that will be thirty days suspended. Placed on supervised

      probation for a period not to exceed six months or until community control

      sanctions are (inaudible) in the restitution amount of [$349.84]. Complete

      anger management and sir no contact with MJ’s Bar and James Frances.

      Ok?

             A: Yes[,] Your Honor.

             Q: All right[.] So you have a [$200.00] fine and we’ll suspend that

      fine. Have you pay court costs.

      {¶ 14} Upon review, we conclude that Greenlee has failed to establish a manifest

injustice warranting the withdrawal of his plea. In his brief, Greenlee argues that the

criminal complaint filed against him by the State was based “solely [upon] inadmissible

hearsay evidence.”    Greenlee further asserts that the remaining evidence the State

planned to use against him had the case gone to trial was “irrelevant” and insufficient to

convict of the charged offense. The evidence of which Greenlee speaks was a recorded

online Facebook conversation and the contents of a surveillance camera video.

However, the fact remains that Greenlee pled guilty to the amended reduced charge of
                                                                                          -9-

disorderly conduct and took responsibility for the offense. State v. Fannon, 2d Dist.

Montgomery No. 25957, 2014-Ohio-2673; see also State v. Greathouse, 158 Ohio

App.3d 135, 2004–Ohio–3402, 814 N.E.2d 502, ¶ 8 (2d Dist.) (“A guilty plea admits the

facts set forth in the indictment”).

       {¶ 15} In the instant case, the recitation of facts by the State establish that

Greenlee committed the offense of criminal damaging, a misdemeanor of the second

degree, and he benefitted by the reduction to a fourth degree misdemeanor charge of

disorderly conduct. Greenlee pled guilty, thereby relieving the State of the necessity of

proving the facts. Greathouse at ¶ 8. Therefore, Greenlee’s argument challenging the

sufficiency of the evidence forming the basis of the complaint against him fails to establish

that a manifest injustice occurred or that his appointed trial counsel was ineffective.

       {¶ 16} We also note that Greenlee argued that his appointed appellate counsel

was ineffective for filing an Anders brief, effectively forcing him to proceed on appeal

without counsel. Specifically, Greenlee contends that his appointed appellate counsel

was deficient for making only minimal effort to contact him and also for failing to properly

research the pertinent legal issues. Upon review, we find that this is not the correct stage

in the proceedings for Greenlee to argue that he received ineffective assistance of

appellate counsel. When an Anders brief has been filed by appointed counsel, our

review is limited to whether any arguably meritorious issues exist on appeal. If so, we

appoint new counsel to brief any issues we have discovered, as well as any additional

legal issues new counsel may uncover through his or her own research.

       {¶ 17} Greenlee’s sole assignment of error is overruled.

       {¶ 18} Additionally, the record of the plea hearing establishes that Greenlee was
                                                                                            -10-


fully advised of all constitutional and non-constitutional rights he was waiving. The trial

court engaged Greenlee in a complete Crim.R. 11 colloquy. In particular, the trial court

advised Greenlee that, by pleading guilty, he was waiving: (1) his right to a jury trial; (2)

his right to confront his accusers; (3) his right to compulsory process to obtain witnesses;

(4) his right to require the state to prove his guilt beyond a reasonable doubt; and (5) his

privilege against compulsory self-incrimination.          The trial court further explained the

nature of the charge and the maximum penalty Greenlee could face if the court accepted

his plea of guilty.   Greenlee stated he understood the rights he was waiving and

specifically stated he desired to plead guilty to one count of disorderly conduct. Lastly,

Greenlee acknowledged his ability to pay the restitution order imposed by the trial court.

The record demonstrates Greenlee understood the rights he was waiving and knowingly,

intelligently, and voluntarily entered the guilty plea.

       {¶ 19} Accordingly, we conclude that the trial court did not err in denying

Greenlee's motion to withdraw his guilty plea. Having conducted an independent review

of the record pursuant to Anders, we find this appeal to be wholly frivolous. There are

no meritorious issues for appeal. Therefore, the judgment of the trial court is affirmed.

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

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Amy B. Musto
Carl Bryan
Kiel T. Greenlee
Hon. Carl Sims Henderson
