 [Cite as State v. Cain, 2014-Ohio-2670.]




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

 STATE OF OHIO                                  :
                                                :     Appellate Case No. 2013-CA-31
         Plaintiff-Appellee                     :
                                                :     Trial Court Case No. 11-CR-368
 v.                                             :
                                                :
 JUSTIN CAIN                                    :     (Criminal Appeal from
                                                :     (Common Pleas Court)
         Defendant-Appellant                    :
                                                :
                                            ...........
                                            OPINION
                               Rendered on the 20th day of June, 2014.
                                            ...........

ANTHONY E. KENDELL, by JANNA L. PARKER, Atty. Reg. #0075261, Miami County
Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
       Attorneys for Plaintiff-Appellee

JUSTIN CAIN, #A665-130, Lebanon Correctional Institution, Post Office Box 56, Lebanon,
Ohio 45036
       Defendant-Appellant, pro se

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

HALL, J.,

       {¶ 1}       Justin Cain appeals pro se from the trial court’s denial of his Crim.R. 32.1
delayed motion to withdraw guilty pleas.

       {¶ 2}      Cain advances two assignments of error. The first challenges the trial court’s

denial of a suppression motion before he entered his pleas. The second challenges the trial court’s

denial of his motion to withdraw the pleas.

       {¶ 3}      The record reflects that Cain was charged with rape and two counts of gross

sexual imposition involving a child under the age of ten. After the trial court overruled a

suppression motion, Cain entered into a negotiated plea agreement. It provided for him to plead

guilty to the charges against him in exchange for the dismissal of an age specification that would

have allowed a prison sentence of life without parole. The parties also negotiated a recommended

twenty-one-year prison term in exchange for the guilty pleas. Cain was convicted and sentenced

consistent with the plea agreement. More than one year later, he filed a delayed motion to

withdraw his pleas under Crim.R. 32.1. The trial court denied the motion, and this appeal

followed.

       {¶ 4}      As a means of analysis, we turn first to Cain’s second assignment of error.

There he contends the trial court erred in denying his plea-withdrawal motion. The only legal

argument he makes is a claim of actual innocence. Cain asserts that the trial court erred in

denying his plea-withdrawal motion where he maintained his innocence. In support of his motion

below, Cain argued, without elaboration, that he, the prosecutor, and the trial court all mistakenly

had believed his “alleged acts” constituted rape and gross sexual imposition. (Doc. #24). In

denying his motion, the trial court noted that Cain had entered his guilty pleas as part of a

negotiated agreement that eliminated a potential life sentence and recommended a

twenty-one-year sentence. Based on the limited allegations in Cain’s motion and supporting

affidavit, the trial court found no manifest injustice warranting withdrawal of the pleas.
[Cite as State v. Cain, 2014-Ohio-2670.]
        {¶ 5}     We review a trial court’s ruling on a plea-withdrawal motion for an abuse of

discretion. State v. Perkins, 2d Dist. Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. After

sentencing, withdrawal of a plea is allowed only in an extraordinary case where a manifest

injustice exists. Id. at ¶ 30. We see no manifest injustice here and no abuse of discretion in the

trial court’s ruling. Cain’s motion and supporting affidavit offered no explanation how or why the

involved parties mistakenly had believed that his alleged conduct constituted rape and gross

sexual imposition. Nor did the motion and affidavit cite anything to support his current claim of

actual innocence. Under these circumstances, we certainly cannot say the trial court abused its

discretion in denying the motion. The second assignment of error is overruled.

        {¶ 6}     In his first assignment of error, Cain attempts to challenge the trial court’s denial

of a suppression motion he filed before entering his guilty pleas. He argues that incriminating

statements he made to police should have been suppressed. His appellate brief includes an

affidavit in which he attempts to establish that the statements were involuntary and were provided

in violation of his right to counsel.

        {¶ 7}     It is well settled, however, that a guilty plea waives a defendant’s ability to

challenge a suppression ruling. See, e.g., State v. Shelton, 2d Dist. Montgomery No. 22202,

2008-Ohio-4016, ¶ 7; State v. Graves, 2d Dist. Montgomery No. 20818, 2005-Ohio-5579, ¶ 19.

Moreover, even if Cain had not waived his ability to challenge the suppression ruling, he would

have been required to have pursued a direct appeal, which he did not file. He cannot now

challenge the suppression ruling in the context of an appeal from the denial of a delayed

plea-withdrawal motion. As for the affidavit accompanying Cain’s appellate brief, we cannot

consider it. State v. Alford, 2d Dist. Montgomery No. 25715, 2013-Ohio-5045, ¶ 11 (recognizing

that “a party cannot introduce new evidence on appeal”). The first assignment of error is
                                                                                  4


overruled.

       {¶ 8}   The judgment of the Miami County Common Pleas Court is affirmed.

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



FAIN, and WELBAUM, JJ., concur.



Copies mailed to:

Anthony E. Kendell
Janna L. Parker
Justin Cain
Hon. Christopher Gee
