[Cite as State v. Eckley, 2019-Ohio-6.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                       JUDGES:
                                                    Hon. John W. Wise, P. J.
        Plaintiff-Appellee                          Hon. Patricia A. Delaney, J.
                                                    Hon. Earle E. Wise, Jr., J.
-vs-
                                                    Case No. 18 COA 014
SHANNON ECKLEY

        Defendant-Appellant                         OPINION



CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, 12 CRI 127


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          January 2, 2019


APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

CHRISTOPHER R. TUNNELL                          GRETCHEN A. HOLDERMAN
PROSECUTING ATTORNEY                            LILLIE & HOLDERMAN
COLE F. OBERLI                                  2003 St. Clair Avenue
ASSISTANT PROSECUTOR                            Cleveland, Ohio 44114
110 Cottage Street
Ashland, Ohio 44805

For Amicus Curiae

JOHN SALEM
NORTHEAST OHIO HUMAN
TRAFFICKING LAW CLINIC
1340 West 65th Street
Cleveland, Ohio 44102
Ashland County, Case No. 18 COA 014                                                       2

Wise, John, P. J.

       {¶1}   Defendant–Appellant Shannon Eckley appeals the decision of the Court of

Common Pleas, Ashland County, which, following our prior remand for a hearing,

overruled her motion to withdraw her guilty plea to two counts of child endangering under

R.C. 2919.22(B)(2)/(4). Plaintiff-Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows.

                    State Prosecution of Appellant Eckley for Child Endangering

       {¶2}   On or about October 25, 2012, appellant was caught shoplifting candy at a

convenience store. Although responding police officers offered her a ride home, she

refused, stating she would rather go to jail than return to the house where she and her

young daughter resided with two roommates, Jessica Hunt and Jordie Callahan. When

the police went to the residence in question to further investigate, Hunt and Callahan

showed the officers videos of appellant beating her young daughter.

       {¶3}   On October 25, 2012, a complaint was filed in the Ashland County Common

Pleas Court charging appellant with two counts of child endangering, R.C. 2919.22(B)(2)

and R.C. 2919.22(B)(4), felonies of the third degree. On October 31, 2012, appellant

entered an initial plea of not guilty. A bill of information setting forth the same charges

was presented on December 7, 2012.

       {¶4}   However, on December 17, 2012, appellant appeared with counsel before

the trial court and entered a plea of guilty to both counts. A presentence investigation was

ordered, and a sentencing hearing was conducted by the court on February 11, 2013.

During the time between the guilty plea and the sentencing hearing, further investigation

occurred into the conduct of Hunt and Callahan. Among other things, Sergeant Darcy
Ashland County, Case No. 18 COA 014                                                       3


Baker of the Ashland Police Department prepared a letter to the trial court judge reporting

that appellant had been living under harsh, captive conditions with Hunt and Callahan. At

the sentencing hearing, defense counsel for appellant stated that the case was unlike any

he had encountered in his career, stating that appellant had basically been “held hostage

by two persons” who had threatened and assaulted her. Sentencing Tr. at 5. The guilty

plea was nonetheless entered and the trial court accepted same.

      {¶5}   The trial court proceeded to sentence appellant to community control,

including residential sanctions of 150 days in the Ashland County Jail, probation

supervision through the Ohio Adult Parole Authority for a period of four years, and 200

hours of community service. See Judgment Entry of Sentence, February 12, 2013.

                   Federal Prosecution of Jessica Hunt and Jordie Callahan

      {¶6}   As set forth in a written opinion of the United States Court of Appeals for the

Sixth Circuit, Hunt and Callahan were thereafter prosecuted under federal labor human

trafficking laws. See United States v. Callahan, 801 F.3d 606, 613 (6th Cir. 2015). The

facts as set forth in the opinion of the Sixth Circuit tell the story of “two vulnerable

individuals—S.E. [Appellant], a developmentally-disabled young woman, and her minor

daughter ***—held in subhuman conditions and subjected to continual and prolonged

abuse.” United States v. Callahan, supra, at 613. Appellant was described as having a

documented history of cognitive impairment, and she and her daughter struggled to “eke

out an existence at the margins of society.” Id. Appellant was kicked out of her mother's

house at the age of eighteen and was often thereafter homeless, living on social security

benefits and other government assistance. Id. In 2010, she had been arrested for

shoplifting. After she was released from jail for that incident in May 2010, she moved in
Ashland County, Case No. 18 COA 014                                                        4


with Hunt and Callahan. They forced appellant to clean the apartment, do yardwork, care

for their dogs, and run their errands. Id. at 614. They made appellant and her child sleep

in an unfinished basement, and later in a sparsely furnished bedroom, locking them inside

at night without access to bathroom facilities. Id.

       {¶7}    The Sixth Circuit opinion further describes the dehumanizing and physical

abuse of appellant. Appellant complied with the incessant work demands of Hunt and

Callahan because she believed they would physically assault her if she resisted, as they

had done in the past. Appellant and her daughter were typically fed one meal a day,

consisting of unheated canned food, bread, and unrefrigerated lunch meat. Id. at 615.

When appellant tried to take food from the refrigerator, Hunt beat her. Id. Appellant was

also violently attacked one occasion when she attempted an escape. Id.

       {¶8}    Hunt and Callahan also concocted a scheme to physically injure appellant

to force her to obtain prescription pain killers. Id. They also ordered appellant to beat her

daughter while they recorded the acts on their cell phones. They then threatened to show

the videos to law enforcement if appellant ever failed to follow their orders or “snitched”

on them. Id.

                            Appellant’s Motion to Withdraw Guilty Plea

       {¶9}    On November 21, 2016, appellant filed a motion in the trial court to withdraw

her guilty plea or, in the alternative, to seal the record, arguing based on facts discovered

following the federal prosecution and the issuance of the aforementioned written opinion

of the United States Court of Appeals for the Sixth Circuit in the criminal cases of Hunt

and Callahan, more extensive information about the abuse appellant had suffered at the
Ashland County, Case No. 18 COA 014                                                        5


hands of Hunt and Callahan had become known.1 The State filed a response, and

appellant filed a supplement attaching the opinion of the Sixth Circuit, as well as a copy

of the federal indictment filed against Hunt and Callahan.

       {¶10} In the instant case, via a judgment entry issued on February 28, 2017, the

trial court overruled the motion to withdraw the plea without an evidentiary hearing. The

court found inter alia the plea was voluntary, intelligent, and knowing at the time it was

entered.

                                     Appellant’s First Appeal

       {¶11} Appellant thereupon appealed to this Court from the February 28, 2017

judgment of the trial court. Upon review, we held the trial court had abused its discretion

in failing to hold an evidentiary hearing on appellant’s motion to withdraw her guilty pleas.

We therefore reversed the trial court’s decision and remanded the case for a hearing on

November 6, 2017. See State v. Eckley, 5th Dist. Ashland No. 17-COA-009, 2017-Ohio-

8455 (“Eckley I”).2

                              Proceedings Following Our Remand

       {¶12} Following our remand, the trial court set the matter for a hearing on January

29, 2018. Appellant tendered Maureen Guirguis of Case Western Reserve University as

an expert witness on human trafficking. However, the State objected to any expert

testimony from Guirguis on the grounds that appellant had failed to timely provide a




1   In that case, the Sixth Circuit Court of Appeals affirmed Hunt's and Callahan's
convictions of conspiracy, forced labor, and acquiring a controlled substance by
deception, the forced labor violation including the offense of kidnapping or attempted
kidnapping.
2  Eckley I contains a more detailed account of the factual history of the matter again
before us.
Ashland County, Case No. 18 COA 014                                                       6


written expert report pursuant to Crim.R. 12. The hearing was therefore adjourned and

rescheduled for March 12, 2018.

      {¶13} In the meantime, the State filed a motion in limine concerning Guirguis as a

witness. The trial court granted the State’s motion and limited Guirguis' testimony to her

areas of expertise, which the court determined to be internet human trafficking and drug-

related human trafficking.

      {¶14} At the March 12, 2018 hearing, the trial court first took judicial notice of the

outcome of the federal labor human trafficking case described in United States v.

Callahan, supra. Appellant then presented testimony from the federal prosecutor that had

helped handle the case against Callahan and Hunt. Appellant then had Guirguis take the

stand, as further discussed infra. The State of Ohio did not present any witnesses, but it

introduced into the record certified copies of appellant's change of plea hearing and

sentencing hearing.

       {¶15} The trial court, via a judgment entry issued on March 15, 2018, denied

appellant's motion to withdraw her guilty plea.

       {¶16} On March 29, 2018, appellant filed a notice of appeal. She herein raises the

following two Assignments of Error:

       {¶17} “I.   THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

DEFENDANT-APPELLANT'S           MOTION TO WITHDRAW               PLEA     TO    CORRECT

MANIFEST INJUSTICE WHERE THE EVIDENCE SHOWS THAT DEFENDANT-

APPELLANT WAS IN CAPTIVITY AT THE TIME OF THE OFFENSE CONDUCT AND

WAS FORCED BY HER CAPTORS TO SPANK HER CHILD.
Ashland County, Case No. 18 COA 014                                                      7


      {¶18} “II.   THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

UNREASONABLY IN REFUSING TO RECOGNIZE MAUREEN GUIRGUIS, DIRECTOR

OF THE HUMAN TRAFFICKING CLINIC AT CASE WESTERN RESERVE UNIVERSITY

SCHOOL OF LAW, AS AN EXPERT ON HUMAN TRAFFICKING ISSUES, AND,

FURTHER ACTED ARBITRARILY IN LIMITING ITS CONSIDERATION OF HER

TESTIMONY.”

                                                I.

      {¶19} In her First Assignment of Error, appellant contends the trial court abused

its discretion in denying her motion to withdraw her 2012 plea to two counts of child

endangering. We disagree.

      {¶20} Crim.R. 32.1 states as follows: “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.”

      {¶21} Our review of a trial court's decision under Crim.R. 32.1 is limited to a

determination of whether the trial court abused its discretion. State v. Caraballo (1985),

17 Ohio St.3d 66, 477 N.E.2d 627. In order to find an abuse of that 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 (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140. The Ohio Supreme Court has held that “* * * the good faith,

credibility and weight of the movant's assertions in support of the [Crim.R. 32.1] motion

are matters to be resolved by [the trial] court.” State v. Smith (1977), 49 Ohio St.2d 261,

361 N.E.2d 1324, paragraph two of the syllabus.
Ashland County, Case No. 18 COA 014                                                      8


      {¶22} A Crim.R. 32.1 motion is not a collateral challenge to the validity of a

conviction or sentence, and instead only focuses on the plea. See State v. Bush, 96 Ohio

St.3d 235, 773 N.E.2d 522, 2002–Ohio–3993, ¶ 13. Under the aforesaid “manifest

injustice” standard, a post-sentence withdrawal motion is allowable only in extraordinary

cases. State v. Aleshire, 5th Dist. Licking No. 09–CA–132, 2010–Ohio–2566, ¶ 60, citing

Smith, supra, at 264.

      {¶23} We first consider the timing of the motion to withdraw plea in the case sub

judice. Crim.R. 32.1 contains no strict time requirements. State v. Helms, 7th Dist.

Mahoning No. 14 MA 96, 2015-Ohio-1708, ¶ 10. However, we have recognized that the

length of passage of time between the entry of a plea and a defendant's filing of a Crim.R.

32.1 motion is a valid factor in determining whether a “manifest injustice” has occurred.

State v. Croskey, 5th Dist. Richland No. 2017 CA 0102, 2018-Ohio-2078, ¶18, citing State

v. Copeland–Jackson, 5th Dist. Ashland No. 02COA018, 2003–Ohio–1043, ¶ 7. In this

instance, appellant entered her plea of guilty to the two child endangering counts on

December 17, 2012. Her motion to withdraw her plea (along with her alternate motion for

sealing of the record) was filed on November 21, 2016, nearly four years later.

      {¶24} In her motion, appellant argued, inter alia: “*** [Appellant’s] charges in the

instant case – and the fact that she was required to spend time in jail – in many ways

ended up being a blessing. While [she] was in custody, she was interviewed extensively

by the Ashland Police, and thereafter by the FBI, which eventually led to uncovering the

fact that [she] and her daughter had actually been kidnapped, abused, and forced to live

in subhuman conditions by Callahan and Hunt.” Motion at 6.
Ashland County, Case No. 18 COA 014                                                    9


      {¶25} But we observe that appellant's trial counsel, at the 2013 sentencing

hearing, specifically stated he was aware of a defense of duress, but he did not change

course and pursue taking it to trial, even though he had obtained a letter from an

investigating Ashland police officer, Sgt. Darcy Baker. See Sentencing Tr. at 4. Citing

that letter, appellant’s trial counsel’s sentencing memorandum of February 8, 2013 states

among other things that Hunt and Callahan “would encourage, if not order, [appellant] to

physically abuse her young child.”

      {¶26} Appellant’s defense counsel had specifically stated at sentencing:

             Your Honor, this is a case unlike any that I have seen in the 30 years

      that I have been doing this type of work. It was about a week ago that

      [Assistant Prosecutor] Mr. Lange and the Prosecutor's office properly

      notified me that there was more to the facts of this case, that [sic] had been

      revealed to me, even by my own client, and it was late last week that I was

      served with Sergeant Baker's letters which the Court has in its possession,

      and that is when I really became aware of the magnitude of behaviors that

      occurred in that household.

             The first thought that I had was rather than a sentencing

      memorandum, is file a motion to withdraw the plea, and having discussed

      the matter with the State and also reviewing the mens rea requirement in

      this case, which is reckless, it was my thought that yes, in deed [sic], the

      State could prove the reckless state of mind required to commit this crime.

      {¶27} Sentencing Tr. at 3–4.

      {¶28} Defense counsel had then continued:
Ashland County, Case No. 18 COA 014                                                        10


              However, the situation involved Shannon Eckley, basically being

       held hostage by two persons who threatened her, they assaulted her, the

       child was apparently put in danger by these two persons and those facts, I

       believe, if I understand correctly, will be leading to some criminal charges

       themselves.

              Now, Shannon may be a victim, but the child is a victim, and we are

       here for that reason, Your Honor. The question, and we could probably

       never answer, is suppose that Shannon Eckley had resisted, we will never

       know what kind of harm or how seriously this child might have been injured

       had they done that. Now, she is not a strong-willed person, unlike so many

       people that commit this crime where there are anger issues.

       {¶29} Sentencing Tr. at 5.

       {¶30} The 2013 sentencing memorandum, as previously noted, likewise indicates

that appellant's counsel at sentencing was aware that appellant was encouraged or

ordered by her captors to hit her child. See Sentencing Memorandum at 1. We recognize

that the full details of appellant's abuse at the hands of Hunt and Callahan may not have

been known at the time of the change of plea and sentencing hearings, but the potential

structure of a duress defense, i.e., that appellant was ordered to hit her child while herself

being threatened with physical violence, was apparent at the time of sentencing, when

appellant could have withdrawn her plea prior to finalization of the convictions.

       {¶31} Furthermore, even though appellant's defense counsel at sentencing likely

did not fully know the full extent of the abuse, appellant was unfortunately familiar with

the terrible facts. While her experience was undoubtedly traumatic, appellant had four
Ashland County, Case No. 18 COA 014                                                       11


months between her arrest and her sentencing to say something on her behalf, but she

apparently revealed little at that time. Furthermore, two months passed between the date

of her plea and the trial court’s issuance of her sentence. Later, when presenting her

motion to withdraw, appellant did not take the stand to explain her silence.

       {¶32} In addition, as previously noted, the trial court sentenced appellant to

community control, including residential sanctions of 150 days in the Ashland County Jail,

probation supervision through the Ohio Adult Parole Authority for a period of four years,

and 200 hours of community service. See Judgment Entry of Sentence, February 12,

2013. The parties herein do not dispute that appellant has now served her residential

sanction time, probation, and community service requirements. Thus, although there may

be some lingering costs to be paid, appellant’s sentence appears virtually completed. We

also again note appellant’s motion to withdraw her plea sought, in the alternative, to seal

the record of her conviction; however, such a remedy is barred under Ohio law due to the

nature of her offenses. See R.C. 2953.36.

       {¶33} In misdemeanor cases, a motion to withdraw a guilty plea after a sentence

has been served and the fine paid is not moot if the appellant can assert a collateral

disability. See, e.g., City of Maple Hts. v. McCants, 8th Dist. Cuyahoga No. 80128, 2002-

Ohio-1070, f.n. 2 (citations omitted). However, the Ohio Supreme Court has held that

felony convictions result in collateral disabilities as a matter of law. State v. Farris, 1st

Dist. Hamilton No. C-150567, 2016-Ohio-5527, ¶ 3, citing State v. Golston, 71 Ohio St.3d

224, 643 N.E.2d 109 (1994), syllabus. In the case sub judice, appellant claimed

somewhat vaguely in her motion to withdraw plea that she had “recently made application

for a new job.” See Motion at 3. While there was no onus on appellant under Ohio law to
Ashland County, Case No. 18 COA 014                                                            12


demonstrate a collateral disability in this instance, we find under such circumstances a

trial court can still consider, as part of its overall Crim.R. 32.1 “manifest injustice” analysis,

what future impact a felony conviction might have on a movant, particularly where a

number of years has passed and the potential for incarceration has ended. In the present

case, appellant’s lack of testimony at the Crim.R. 32.1 hearing of March 12, 2018 severely

limited the trial court’s ability to factor into its decision what specific negative impact her

convictions will have on her potential employment.

       {¶34} Upon review, we are unpersuaded the trial court abused its discretion in

declining to find a manifest injustice warranting the extraordinary step of negating

appellant's plea following its evidentiary hearing upon our prior remand.

       {¶35} Appellant's First Assignment of Error is therefore overruled.

                                                   II.

       {¶36} In her Second Assignment of Error, appellant argues the trial court abused

its discretion in failing to fully recognize one of her witnesses, a law professor and law

clinic co-director from Case Western Reserve University School of Law, as an expert on

human trafficking, and in limiting its consideration of her testimony. We disagree.

       {¶37} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

Our task is to look at the totality of the circumstances in the case sub judice, and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman, 5th Dist. Stark No.

1999CA00027, 2000 WL 222190.
Ashland County, Case No. 18 COA 014                                                       13


      {¶38} Evid.R. 702 reads as follows:

             A witness may testify as an expert if all of the following apply:

             (A) The witness' testimony either relates to matters beyond the

      knowledge or experience possessed by lay persons or dispels a

      misconception common among lay persons;

             (B) The witness is qualified as an expert by specialized knowledge,

      skill, experience, training, or education regarding the subject matter of the

      testimony;

             (C) The witness' testimony is based on reliable scientific, technical,

      or other specialized information. To the extent that the testimony reports the

      result of a procedure, test, or experiment, the testimony is reliable only if all

      of the following apply:

             (1) The theory upon which the procedure, test, or experiment is

      based is objectively verifiable or is validly derived from widely accepted

      knowledge, facts, or principles;

             (2) The design of the procedure, test, or experiment reliably

      implements the theory;

             (3) The particular procedure, test, or experiment was conducted in a

      way that will yield an accurate result.

      {¶39} In the case sub judice, at the Crim.R. 32.1 evidentiary hearing of March 12,

2018, appellant called Maureen Guirguis, co-founder and co-director of the human

trafficking law clinic at Case Western Reserve University School of Law in Cleveland,

Ohio. She is a 1998 summa cum laude graduate of the Cleveland-Marshall College of
Ashland County, Case No. 18 COA 014                                                       14


Law. Her resume lists nearly three pages of formal presentations she has conducted

since early 2015. In addition to her extensive background in the study of human trafficking,

Guirguis had the opportunity to meet appellant and review her case.

       {¶40} We note that at an earlier hearing on January 29, 2018, the trial court had

in essence partially accepted Guirguis as an expert on human trafficking, limiting her

recognized expertise to “drug-related human trafficking” and “internet human trafficking.”

But appellant had failed at that time to provide the State of Ohio with an expert report by

Guirguis under Crim.R. 12, and the matter was continued. The State, on March 6, 2018,

filed a motion in limine to prevent Guirguis from testifying in the matter. Appellant filed a

response to the motion in limine on March 12, 2018. The trial court thereupon granted the

State’s motion in part and limited Guirguis' testimony for purposes of the March 12, 2018

hearing to what it considered her areas of expertise. See Tr. at 5-6.

       {¶41} Despite the foregoing, and despite the fact Guirguis was not presented as

a psychological expert, appellant’s counsel was permitted to ask Guirguis if appellant’s

child endangering acts were of her free will. See Tr., March 12, 2018, at 61. Guirguis

responded as follows to this crucial question. “I came to the conclusion that they were not

of her free will because of the coercion that she was suffering under and the force and

the daily beatings and all of the other degradation that she was dealing with at the time.”

Id. at 61-62.

       {¶42} The record also reveals that at the March 12, 2018 hearing, the trial court

took judicial notice of the outcome of the federal case in which Jordie Callahan and

Jessica Hunt were prosecuted for labor human trafficking. Appellant also presented

testimony from retired Assistant United States Attorney Thomas Getz, the lead prosecutor
Ashland County, Case No. 18 COA 014                                                        15


in the federal criminal case against Callahan and Hunt. Getz thus described for the trial

court some of the horrors and brutal treatment appellant had undergone at the hands of

Callahan and Hunt.

       {¶43} It is well-established that an appellant, in order to secure reversal of a

judgment, must show that a recited error was prejudicial to her. Tate v. Tate, 5th Dist.

Richland No. 02-CA-86, 2004-Ohio-22, ¶ 15, citing Ames v. All American Truck & Trailer

Service, 6th Dist. Lucas No. L-89-295, 1991 WL 16509. Also, the weight to be given to

the evidence and the credibility of the witnesses are issues for the trier of fact. See, e.g.,

State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180. Under the circumstances

presented, we are unpersuaded that the trial court abused its discretion in its rulings

concerning Guirguis’ expert testimony.

       {¶44} Appellant's Second Assignment of Error is overruled.

       {¶45} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Ashland County, Ohio, is hereby affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.



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