[Cite as State v. Wallace, 2020-Ohio-565.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
 -vs-                                           :
                                                :   Case No. 18-CA-00015
                                                :            19-CA-00005
 JEREMY M. WALLACE                              :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Perry County Court of
                                                    Common Pleas, Case No. 18-CR-0001



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             February 18, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 JOSEPH A. FLAUTT                                   CHARLES M. ELSEA
 P.O. Box 569                                       ABBEY M. BECCA
 111 N. High St.                                    190 N. Broad St., Suite 200
 New Lexington, OH 43764                            P.O. Box 130
                                                    Lancaster, OH 43130
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                           2


Delaney, J.

         {¶1} Appellant Jeremy M. Wallace appeals from the March 23, 2019 Entry of the

Perry County Court of Common Pleas overruling his motion to withdraw his guilty plea.

Appellee is the state of Ohio.

         {¶2} This appeal is consolidated from 5th Dist. Perry No. 18-CA-00015 and 19-

CA-00005.

                           FACTS AND PROCEDURAL HISTORY

         {¶3} A statement of the facts underlying appellant’s criminal conviction is not

necessary to our resolution of this appeal. Appellant was accused of providing alcohol to

a group of minors and of having sexual intercourse with an intoxicated minor over the age

of thirteen but under the age of sixteen. Appellant’s D.N.A. was consistent with evidence

from a rape kit obtained from the victim.

         {¶4} Appellant was charged by indictment with one count of rape pursuant to

R.C. 2907.02(A)(1)(c),1 a felony of the first degree [Count I], and one count of unlawful

sexual conduct with a minor pursuant to R.C. 2907.04(A) and (B)(3), a felony of the third

degree [Count II]. Appellant entered pleas of not guilty.




1   R.C. 2907.02(A)(1)(c) states in pertinent part:

                 No person shall engage in sexual conduct with another who is not
         the spouse of the offender * * * when any of the following applies: [t]he other
         person's ability to resist or consent is substantially impaired because of a
         mental or physical condition or because of advanced age, and the offender
         knows or has reasonable cause to believe that the other person's ability to
         resist or consent is substantially impaired because of a mental or physical
         condition or because of advanced age.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                         3


                                     Change-of-plea hearing

       {¶5} On August 22, 2018, appellant appeared before the trial court and entered

a plea of guilty to Count I, rape. In exchange for appellant’s change-of-plea, appellee

entered a nolle prosequi upon Count II. The trial court engaged in a colloquy with

appellant, asking him whether he was satisfied with defense trial counsel’s

representation. Appellant replied in the affirmative. The trial court advised appellant of

the maximum possible prison term and fine, and that he would be classified as a Tier III

sex offender requiring lifetime registration.     When asked whether he understood,

appellant replied in the affirmative. The trial court inquired whether appellant understood

the implications of post-release control and he replied in the affirmative. The trial court

accepted appellant’s change of plea, found him guilty as charged upon Count I, and

deferred sentencing pending a pre-sentence investigation (P.S.I.).

       {¶6} Also at the change-of-plea hearing, appellant filed a written plea of guilty

stating he would be classified as a Tier III sex offender requiring mandatory lifetime

registration. Appellant acknowledged on the written plea form that defense trial counsel

fully explained the implications of the Tier III sex offender designation.

       {¶7} Finally, the written plea of guilty advised appellant that he would be required

to complete a 5-year term of post-release control upon his release from prison.

                                        Sentencing hearing

       {¶8} On September 27, 2018, appellant appeared for sentencing. Upon inquiry

by the trial court, appellant acknowledged it was “substantially true” that he had sexual

intercourse with the 15-year-old victim while she was highly intoxicated and unable to
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                       4


consent. The trial court imposed a prison term of 5 years to be followed by a 5-year term

of post-release control. Appellant was also deemed a Tier III sex offender.

                             Post-sentence motion to withdraw guilty plea

       {¶9} On December 31, 2018, appellant filed a motion to withdraw his guilty plea

on the basis of ineffective assistance of counsel. The motion asserts appellant was

coerced into pleading guilty because he “thought it was the only way to see his daughter

again before she becomes an adult.” Motion, 2. The motion further asserts appellant has

a “bona fide defense” and pled guilty to an offense he did not commit.

       {¶10} We note appellant’s sworn affidavit accompanying the motion states in

pertinent part:

                     * * * *.

                     33. [Minor victim] had approached me and had initiated the

              sexual contact that night.

                     34. The night she was at my house she was walking talking

              and laughing with friends and I did not feel she was so intoxicated as

              to not know she was impaired in her ability to make decisions.

                     35.      She was awake and participated during the entire

              interaction.

                     * * * *.

       {¶11} A second affidavit accompanies the motion to withdraw the guilty plea,

submitted by Rikkie Jones, identified as appellant’s paramour at the time of the offense.

This affidavit states, e.g., Jones’ daughter was 16 at the time of the party and Jones
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                        5


thought the other guests were the same age; and the minor victim said appellant was

“hot.”

         {¶12} We remanded this matter to the trial court on January 19, 2019 to allow the

trial court to rule upon the motion to withdraw the guilty plea. By judgment entry dated

March 28, 2019, the trial court denied appellant’s motion.

         {¶13} Appellant now appeals from the trial court’s judgment entry of March 28,

2019.

         {¶14} Appellant raises three assignments of error:

                               ASSIGNMENTS OF ERROR

         {¶15} “I.     THE TRIAL COURT ERRED IN DENYING THE MOTION TO

WITHDRAW GUILTY PLEA.”

         {¶16} “II. THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON

THE MOTION TO WITHDRAW GUILTY PLEA.”

         {¶17} “III.   THE TRIAL COURT ERRED IN ENTERING A GUILTY PLEA

WITHOUT ADEQUATE NOTICE TO THE DEFENDANT OF THE MAXIMUM

SANCTION.”

                                        ANALYSIS

                                          I., II., III.

         {¶18} Appellant’s three assignments of error are related and will be considered

together. Appellant claims the trial court should have held a hearing on the motion and

permitted him to withdraw his guilty plea, and that he entered the guilty plea without

adequate notice of the maximum sanction. We disagree.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                           6


                        Post-Sentence Motions to Withdraw Guilty Pleas

       {¶19} Appellant's motion to withdraw his guilty plea was made pursuant to

Criminal Rule 32.1, stating: “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.” The standard upon which the trial court is to review a request for a change

of plea after sentence is whether there is a need to correct a manifest injustice. State v.

Marafa, 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257, 2003 WL

150093, ¶ 8.

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

determination of whether the trial court abused its discretion. See State v. Caraballo, 17

Ohio St.3d 66, 477 N.E.2d 627 (1985). 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, 559 N.E.2d 1301 (1990). Furthermore, under the

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,

2010 WL 2297917, ¶ 60, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324

(1977). The accused has the burden of showing a manifest injustice warranting the

withdrawal of a guilty plea. Smith, supra, 49 Ohio St.2d 261 at paragraph one of the

syllabus.

                                      Hearing Not Required

       {¶21} Appellant argues the trial court should have allowed a hearing because the

facts alleged in his pro se motions, if accepted as true, would require the court to permit
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                           7


withdrawal of the guilty pleas. A trial court is not automatically required to hold a hearing

on a post sentence motion to withdraw a plea of guilty. A hearing must only be held if the

facts alleged by the defendant, accepted as true, would require that the defendant be

allowed to withdraw the plea. State v. Kent, 10th Dist. Franklin No. 03AP722, 2004–Ohio–

2129, ¶ 8.

       {¶22} A trial court's decision whether to hold a hearing on the motion is also

subject to review for abuse of discretion. Smith, supra. The term “abuse of discretion”

implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶23} Appellant argues his claims of manifest injustice require a hearing.

Specifically, he asserts he had inadequate contact with defense trial counsel and was

unaware of the consequences of the guilty plea for contact with his daughter. We reject

appellant’s underlying premise that a trial court must accept his claims as true without

any consideration of their credibility. In deciding a motion to withdraw a guilty plea, the

trial court has the discretion to determine the “good faith, credibility and weight of the

movant's assertions * * *.” State v. Wilkey, 5th Dist. Muskingum No. CT2005-0050, 2006-

Ohio-3276, ¶ 21, citing Smith at paragraph two of the syllabus and State v. Caraballo, 17

Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).         In this case, the only corroboration of

appellant’s claims are two self-serving affidavits accompanying the motion to withdraw

the guilty plea.    Generally, a self-serving affidavit or statement is insufficient to

demonstrate manifest injustice. State v. Patterson, 5th Dist. Stark No. 2003CA00135,

2004-Ohio-1569, ¶ 20.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                         8


       {¶24} Appellant asserts he entered a guilty plea due to ineffective assistance of

counsel. Ineffective assistance of counsel can form the basis for a claim of manifest

injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. State v. Adames,

5th Dist. No. 16-CA-85, 2017-Ohio-4058, 91 N.E.3d 326, ¶ 18, citing State v. Dalton, 153

Ohio App.3d 286, 292, 2003-Ohio-3813, 793 N.E.2d 509 (10th Dist.).

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

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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. at 689, 104 S.Ct. 2052, citing Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). “There are countless

ways to provide effective assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at

689, 104 S.Ct. 2052. The question is whether counsel acted “outside the wide range of

professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

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

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                          9


       {¶27} However, under the “manifest injustice” standard, a post-sentence

withdrawal motion is allowable only in extraordinary cases. State v. Hill, 5th Dist. Stark

No. 2015 CA 00036, 2015-Ohio-3312, ¶ 14, citing State v. Aleshire, 5th Dist. Licking No.

09–CA–132, 2010–Ohio–2566, ¶ 60. Furthermore, “ * * * if a plea of guilty could be

retracted with ease after sentence, the accused might be encouraged to plead guilty to

test the weight of potential punishment, and withdraw the plea if the sentence were

unexpectedly severe. * * * ” State v. Peterseim, 68 Ohio, App.2d 211, 213, 428 N.E.2d

863 (1980), quoting Kadwell v. United States, 315 F.2d 667 (C.A.9, 1963).

       {¶28} In the instant case, appellant does not point to evidence of counsel’s alleged

incompetence in the record. As noted infra, the guilty plea was negotiated. Appellant

now contends, however, that he was innocent of the charges against him and pled guilty

upon trial counsel’s advice because he thought it was the only way he would ever see his

daughter again. See Appellant's Brief at 1. Appellant maintains that he had no contact

with defense trial counsel leading up to his trial date, and he had a “bona fide” defense to

the rape charge. Appellant further contends defense trial counsel did not inform him that

a “potential” consequence of post-release control is having no unsupervised contact with

children under the age of 18. Appellant speculates this condition could affect his ability

to have contact with his own daughter, and therefore his rape conviction is a manifest

injustice. We note the “bona fide defense” asserted by appellant is his self-serving claims

that the 15-year-old intoxicated victim “initiated” the sexual contact and the intercourse

was consensual, claims directly contradicted by appellant’s expressions of remorse at the

sentencing hearing.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                         10


       {¶29} Moreover, a Crim.R. 32.1 motion is not a 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. We note that the terms of this plea

agreement were negotiated between the parties. Appellee dismissed Count II, a third-

degree felony, and appellant faced a maximum potential prison term of 11 years upon

Count I. In State v. Pepper, 5th Dist. Ashland No. 13 COA 019, 2014–Ohio–364, this

Court emphasized: “In the review of an attempt to withdraw any such negotiated plea

after the fact, we must weigh any imperfections in the process against the possibility that

the defendant is avoiding a much harsher result by resolving the case. We also bear in

mind that the trial court is under a duty pursuant to Crim.R.11 to ensure that the plea

comports with constitutional standards.” Id. at ¶ 40, citing State v. Stowers, 8th Dist.

Cuyahoga No. 48572, 1985 WL 7495 (additional citations omitted).

       {¶30} If we were to accept appellant’s argument, a hearing would be required

upon every claim of manifest injustice and the trial court would have no discretion to weigh

the credibility of the allegations. Instead, the Ohio Supreme Court has held a trial court

may, in the sound exercise of its discretion, judge the credibility of the affidavits in

determining whether to accept affidavits as true statements of fact. State v. Amstutz, 5th

Dist. Stark No. 2000-CA-00047, 2001 WL 46324, *2, citing State v. Calhoun, 86 Ohio

St.3d 279, 1999-Ohio-102, 714 N.E.2d 905.

       {¶31} The party moving to withdraw the guilty plea must support the allegations

contained in the motion with affidavits and/or the record. Id. In Amstutz, supra, 5th Dist.

Stark No. 2000-CA-00047, 2001 WL 46324, at *2, citing State v. Jackson, 64 Ohio St.2d

107, 413 N.E.2d 819 (1980), we noted a defendant is not entitled to a hearing where he
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                          11


or she failed to provide evidentiary-quality materials raising sufficient operative facts

which would entitle the defendant to the requested relief. Appellant was required to

present evidence which met a minimum level of cogency to support his claims. Id., citing

State v. Combs, 2 Ohio St.3d 112, 115, 443 N.E.2d 169 (1982). A petitioner's self-serving

affidavit does not meet the minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36,

38, 448 N.E.2d 823 (1983).

       {¶32} Upon review of the entirety of appellant's claims in support of his motion to

withdraw plea, 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, and

we further find the trial court did not err or abuse its discretion in denying appellant's

motion to withdraw plea without conducting an evidentiary hearing.

                              Trial Court Complied with Crim.R. 11

       {¶33} Finally, appellant asserts the trial court failed to advise him during the

Crim.R. 11 colloquy that his guilty plea and the resulting Tier III sex offender designation

might affect his ability to have contact with his daughter. We note appellant’s argument

is premised upon speculation [“Considering the nature of the charges, there is a high

likelihood that the Adult Parole Authority * * * could decide to restrict Jeremy’s ability to

see his daughter…” Brief, 17.].

       {¶34} The effect of a guilty plea “is a complete admission of the defendant's guilt.”

See, Crim.R. 11(B)(1). The information that a guilty plea is a complete admission of guilt,

along with the other information required by Crim.R. 11, ensures that defendants enter

pleas with knowledge of rights that they would forgo and creates a record by which

appellate courts can determine whether pleas are entered voluntarily. State v. Griggs,
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                        12


103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11, citing State v. Nero, 56 Ohio

St.3d 106, 107, 564 N.E.2d 474 (1990) and State v. Ballard, 66 Ohio St.2d 473, 479–480,

423 N.E.2d 115 (1981). The right to be informed that a guilty plea is a complete admission

of guilt is nonconstitutional and therefore is subject to review under a standard of

substantial compliance. Id. at ¶ 12, citing Nero, 56 Ohio St.3d at 107.

       {¶35} Crim.R. 11(C)(2)(a) states the trial court must determine “ * * * that the

defendant is making the plea voluntarily, with the understanding of the nature of the

charges and of the maximum penalty involved, and if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions at the

sentencing hearing.” The Rule requires guilty pleas to be made knowingly, intelligently

and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court

need only “substantially comply” with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–

2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio

St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the

following test for determining substantial compliance with Crim.R. 11:

       {¶36} Though failure to adequately inform a defendant of his constitutional rights

would invalidate a guilty plea under a presumption that it was entered involuntarily and

unknowingly, failure to comply with nonconstitutional rights will not invalidate a plea

unless the defendant thereby suffered prejudice. State v. Nero, [56 Ohio St.3d 106, 108,

564 N.E.2d 474 (1990) ]. The test for prejudice is ‘whether the plea would have otherwise

been made.’ Id.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                            13


       {¶37} Under the substantial-compliance standard, we review the totality of

circumstances surrounding appellant's plea and determine whether he subjectively

understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–

509, 881 N.E.2d 1224 at ¶ 19–20; State v. Alexander, 5th Dist. Stark No.2012CA00115,

2012–Ohio–4843, appeal not allowed, 134 Ohio St.3d 1485, 2013–Ohio–902, 984 N.E.2d

29.

       {¶38} Our review of the change-of-plea and sentencing hearing reveals the trial

court advised appellant of his constitutional rights, the potential penalties for each offense,

and the possibility of post-release control. The trial court also inquired as to the

voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R.

11. The record demonstrates the trial court had a meaningful dialogue with appellant, fully

apprising him of the rights he was waiving. See, State v. Tillman, 6th Dist. Huron No. H–

02–004, 2004–Ohio–1967, ¶ 20. The court engaged appellant in a personal inquiry as to

whether he understood the plea agreement and its consequences. Appellant was

represented throughout the hearing. Nothing in the record indicates that appellant was

under the influence of any drug or other substance which would prohibit his understanding

of the court's questions. The record indicates that he understood the terms of the

agreement and entered an intelligent, knowing and voluntary plea. State v. Hendricks,

5th Dist. Muskingum No. CT2016-0010, 2017-Ohio-259, ¶ 35.

       {¶39} Nor is there evidence in the record showing that if the court had advised

appellant any differently appellant would not have pled guilty and instead would have

insisted on going to trial. Thus we find no evidence appellant was prejudiced and he does

not point to any such evidence. Hendricks, supra, 2017-Ohio-259 at ¶ 36.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                         14


       {¶40} The record demonstrates the trial court discussed the charges with

appellant. Specifically, the court informed appellant of the elements of the offenses and

the possible penalties that could result from the convictions. Appellant informed the trial

court that he understood the charges and the possible penalties.

       {¶41} The record further demonstrates that the court notified appellant of the

constitutional and non-constitutional rights encompassed by Crim.R. 11(C)(2), and the

effect that a guilty plea would have on such rights. Again, appellant told the court that he

understood the effect of his guilty pleas.

       {¶42} The record before us therefore demonstrates the trial court complied with

the statutory prerequisites of Crim.R. 11(C)(2), and appellant entered his guilty plea to

Count I both voluntarily and knowingly.      The record further confirms that appellant's

counsel was present at the time of the plea and that his counsel's advice was competent.

       {¶43} We find the record indicates appellant answered the trial court’s questions

at the plea hearing correctly and appropriately, and specifically affirmed that he

understood the nature of the charge against him. See State v. Thomas, 97 Ohio St.3d

309, 2002–Ohio–6624, ¶ 38 (noting that the “[d]efendant showed that he understood the

proceedings by meaningfully responding to each of the trial court's questions”). Appellant

affirmed at the plea hearing that he had fully discussed the case with counsel, and

indicated no confusion regarding the proceedings.

       {¶44} Accordingly, under the circumstances of the case sub judice, the trial court

did not abuse its discretion in finding no manifest injustice which would warrant the

extraordinary step of withdrawing appellant's guilty pleas. We therefore affirm the trial

court's decision overruling appellant's motions to withdraw his guilty plea.
Perry County, Case Nos. 18-CA-00015, 19-CA-00005                                 15


      {¶45} Appellant’s three assignments of error are overruled.

                                   CONCLUSION

      {¶46} Appellant’s three assignments of error are overruled and the judgment of

the Perry County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.
