[Cite as State v. Malone, 2013-Ohio-2605.]


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

STATE OF OHIO                                        C.A. No.     12CA010153

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ERIC B. MALONE                                       COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   09CR078640

                                 DECISION AND JOURNAL ENTRY

Dated: June 24, 2013



        HENSAL, Judge.

        {¶1}     Defendant-Appellant, Eric Malone, appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     On August 20, 2009, Eric Malone was indicted by the Lorain County Grand Jury

on: (1) one count of aggravated burglary, a first degree felony, (2) gross sexual imposition, a

third degree felony, and (3) assault, a first degree misdemeanor. At his arraignment, Malone

entered a plea of not guilty to the charges. While the case was pending, he was indicted in case

number 79566 on an unrelated robbery charge with a repeat violent offender specification. In the

case subject to this appeal, the state amended the indictment dropping the gross sexual

imposition charge.       On February 17, 2010, Malone pled guilty to the remaining charges of

aggravated burglary and assault. At the same hearing, he also pled guilty to the indictment in

case number 79566.
                                                 2


       {¶3}    One sentencing hearing was held in both cases on June 11, 2010. The court

sentenced Malone to four years in prison on the aggravated burglary charge and four months in

prison on the assault charge. These sentences were to run concurrently, but consecutively and

prior to his sentence of four years’ incarceration in case number 79566. The court indicated that

it was structuring the sentence in this manner so as to increase Malone’s chance for early judicial

release from prison.

       {¶4}    Malone filed a pro se motion to withdraw his guilty plea on December 27, 2011.

The trial court denied his motion without a hearing. He filed a timely appeal of the trial court’s

decision, and raises two assignments of error for our review. For ease of analysis, this Court

combines Malone’s assignments of error.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN OVERRULING MR. MALONE’S MOTION
       TO WITHDRAW HIS GUILTY PLEA.

                                  ASSIGNMENT OF ERROR II

       MR. MALONE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
       WHEN DEFENSE COUNSEL FAILED TO PROPERLY INFORM HIM OF
       THE STRENGTH OF THE STATE’S CASE AND TO CONDUCT A PROPER
       PRETRIAL INVESTIGATION.

       {¶5}    Malone argues that the trial court erred when it denied his motion to withdraw his

guilty plea as he did not receive the effective assistance of trial counsel and that his guilty plea

was not entered into knowingly, intelligently and voluntarily. This Court disagrees.

       {¶6}    Malone’s motion was filed pursuant to Criminal Rule 32.1, which 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
                                                 3


conviction and permit the defendant to withdraw his or her plea.” “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. No. 26260, 2012-Ohio-4028, ¶ 5, quoting State ex rel.

Schneider v. Kreiner, 83 Ohio St. 3d 203, 208 (1998). 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 trial court’s decision on a motion to withdraw a plea under

an abuse-of-discretion standard.” State v. Frances, 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).

       {¶7}    In order to prove a claim of ineffective assistance of counsel, Malone must

demonstrate that counsel’s performance was deficient and that he was prejudiced by the deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). A “deficient performance” is

one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio

St.3d 136, (1989) paragraph two of the syllabus. To establish prejudice, a defendant must show

that “there exists a reasonable probability that, were it not for counsel’s errors, the result of the

trial would have been different.” Id. at paragraph three of the syllabus. “[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.’” Strickland at

689.
                                                  4


       {¶8}    “Plea bargains involve complex negotiations suffused with uncertainty, and

defense counsel must make strategic choices in balancing opportunities * * * and risks * * *.”

Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 736 (2011). The United States Supreme Court

has cautioned that a “strict adherence to the Strickland standard [is] all the more essential when

reviewing the choices an attorney made at the plea bargain stage.” Id. at 741.

       {¶9}    At the plea hearing, the trial court judge stated that:

       [i]nitially, I had discussed with counsel there’s -- I think the State’s position was
       they thought that their case was very strong in Case No. 79566, but there were
       some issues about Case No. 78640; in particular, as to whether they’re going to be
       able to establish either the Felony 1 [aggravated burglary] or the GSI.

Malone alleged in his motion that this statement from the judge was the first time he heard about

the prosecution’s potentially weak case against him and that his counsel misrepresented to him

the strength of the prosecution’s case when she advised him to plead guilty. Malone does not set

forth trial counsel’s specific “misrepresentations.”

       {¶10} There is no evidence in the record that counsel failed to either evaluate the

strength or weakness of the prosecution’s case or to relay the information counsel did have to

Malone. As such, the trial court was given no evidence upon which it could find that counsel’s

performance was deficient. Counsel negotiated for the resolution of two pending cases that

involved three felony charges and one first degree misdemeanor charge that had a maximum

combined potential prison sentence of eighteen years.          These negotiations resulted in the

prosecution’s agreement to dismiss the second degree felony charge and a reduced sentence in

exchange for Malone’s guilty plea in both cases. Given the “highly deferential” scrutiny this

Court must give counsel’s judgment as dictated by Strickland, especially at the plea bargain

stage, the trial court did not err in denying Malone’s motion as he failed to provide the court with
                                                 5


evidence that counsel fell below an objective standard of reasonableness in her representation

during the negotiated plea deal. Strickland at 689.

       {¶11} Malone further argues that if his counsel had requested a copy of the preliminary

hearing transcript, it would have revealed the prosecution’s allegedly weak evidence on the gross

sexual imposition and aggravated burglary charges. According to Malone, counsel should have

then filed a motion to dismiss on the basis of contradictory statements made at the preliminary

hearing. From the record, it appears that both Malone and his counsel were present at the

preliminary hearing.    Counsel would have then been aware of any potential evidentiary

weaknesses without the necessity of a transcript. Malone has therefore, failed to set forth any

evidence that counsel’s performance was deficient for allegedly failing to obtain the transcript.

       {¶12} Furthermore, Malone did not present any evidence in support of his claim that he

would have proceeded to trial but for counsel’s evaluation of the case. He attached only a copy

of the bill of particulars to his motion to withdraw his guilty plea. Since Malone has failed to

proffer any evidence in support of his assertion that he was prejudiced as a result of his counsel’s

alleged deficient performance, his claim of ineffective assistance of counsel must fail. Bradley,

42 Ohio St.3d 136, at paragraph three of the syllabus.

       {¶13} Malone has not submitted sufficient evidence to satisfy the elements of deficient

performance and prejudice required to succeed on his claim of ineffective assistance of counsel.

Accordingly, the trial court did not abuse its discretion in denying his motion to withdraw his

plea as Malone did not demonstrate manifest injustice.

       {¶14} Malone also attacks the validity of his guilty plea by arguing that it was not

entered knowingly, intelligently and voluntarily due to counsel’s alleged misrepresentations

regarding the strength of the prosecution’s case. He relies upon the same arguments made in his
                                                 6


first assignment of error, which this Court has overruled. Given the lack of evidence in the

record as noted above, this Court finds no merit to his assertion.

       {¶15} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 9, quoting State v. Engle, 74 Ohio St.3d

525, 527 (1996). Pursuant to Criminal Rule 11, the trial court must engage the defendant in a

colloquy prior to accepting a guilty plea to ensure that he is fully informed of the consequences

of the plea and that it is made knowingly, intelligently and voluntarily. State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, ¶¶ 25-26.

       {¶16} A review of the record indicates the trial court engaged Malone in the plea

colloquy required by Criminal Rule 11 and found that he made a knowing, intelligent and

voluntary waiver of his constitutional rights. At no time during the plea hearing did Malone

indicate to the court that he did not wish to enter a guilty plea or express any concern about the

fact he allegedly just learned the prosecution may have had difficulty proving some of the

charges against him.

       {¶17} Moreover, Malone’s sentencing hearing occurred almost four months after the

hearing wherein Malone alleged he was led to believe the prosecution could not have proven at

least one of the charges to which he pled. Malone failed to set forth any evidence that he

discussed the issue of this allegedly new knowledge with his trial counsel during the four months

between the plea and sentencing hearings. Malone also does not claim that his trial counsel was

somehow deficient for not modifying her original advice to change his pleas. Despite having the

opportunity to speak at his sentencing, he did not seek to withdraw his guilty plea; although, he
                                                 7


did ask the court for drug treatment. Based upon a review of the record, this Court finds that the

trial court did not err in finding that Malone’s plea was made knowingly, intelligently and

voluntarily. Likewise, the Court did not abuse its discretion by denying his motion to withdraw

his guilty plea.

        {¶18} Malone also argues that the trial court should have held a hearing on his motion to

withdraw his plea. There is no requirement to hold a hearing on a motion to withdraw a plea if

the “defendant fails to submit sufficient evidentiary materials in support of his post-sentence

motion * * *.” State v. Jackson, 9th Dist. No. 26509, 2013-Ohio-783, ¶ 6. Malone did not

submit any evidence to substantiate his claim that manifest injustice occurred; he only attached a

copy of the bill of particulars. Based upon the insufficient evidence attached to his motion, the

trial court did not abuse its discretion by ruling on the motion without a hearing.

        {¶19} To the extent that Malone’s second assignment of error attempts to raise a claim

of ineffective assistance of counsel that is separate and distinct from his motion to withdraw, this

Court notes such a claim is more appropriately raised in a petition for post-conviction relief as

any evidence in support of such a claim would require evidence outside of the record. State v.

Sheppard, 9th Dist. No. 10CA0041-M, 2011-Ohio-3516, ¶ 8 (Post-conviction relief is the more

appropriate avenue to raise an ineffective assistance of counsel claim when the evidence

supporting the claim would likely take the form of affidavits or other evidence outside the record

on appeal.). A post-conviction relief petition, however, would be untimely in this case as it

would exceed the statutory time limit for filing of 180 days after the expiration of the time for

filing a direct appeal unless Malone could establish that his motion fell under one of the

exceptions to the time limit. R.C. 2953.21(A)(2) and 2953.23.

        {¶20} Malone’s first and second assignments of error are overruled.
                                                 8


                                                III.

       {¶21} Malone’s two assignments of error are overruled. The judgment of the Lorain

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 Lorain, 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




BELFANCE, P. J.
CONCURS.
                                              9


CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶22} I agree with the majority’s conclusion that the trial court’s judgment should be

affirmed. I write separately because I would affirm solely on the basis of res judicata as the

issues Malone now raises could have been raised by way of direct appeal. State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175 (1967),

paragraph nine of the syllabus.


APPEARANCES:

DENISE G. WILMS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
