[Cite as State v. Ford, 2011-Ohio-3527.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY



STATE OF OHIO,                                            CASE NO. 14-11-01

   PLAINTIFF-APPELLEE,

  v.

DUSTIN M. FORD,                                                 OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Union County Common Pleas Court
                           Trial Court No. 2009-CR-0196

                                      Judgment Affirmed

                              Date of Decision: July 18, 2011




APPEARANCES:

        Alison Boggs for Appellant

        Terry L. Hord for Appellee
Case No. 14-11-01


SHAW, J.

       {¶1} Defendant-Appellant, Dustin M. Ford (“Ford”), appeals the December

7, 2010 judgment of the Union County Court of Common Pleas overruling his

motion to withdraw his guilty plea and petition for post-conviction relief.

       {¶2} On October 23, 2009, the Union County Grand Jury indicted Ford on

five counts of trafficking in heroin, in violation of R.C. 2925.03(A)(1),(C)(6)(b)

and R.C. 2925.03(A)(1),(C)(6)(c), felonies of the third and fourth degrees; five

counts of possession of heroin, in violation of R.C. 292511(A),(C)(6)(a) and R.C.

292511(A),(C)(6)(a), felonies of the fourth and fifth degrees; and one count of

engaging in a pattern of corrupt activity, in violation of R.C. 2923(A)(1),(B)(1), a

felony of the first degree.

       {¶3} On December 23, 2009, Ford pled guilty to five counts of trafficking

in heroin and to one count of engaging in a pattern of corrupt activity. On

February 11, 2010, Ford appeared for sentencing. At the sentencing hearing, the

prosecution presented the testimony of two City of Marysville Detectives, both of

whom participated in the investigation resulting in Ford’s charges. On March 5,

2010, the trial court sentenced Ford to serve fourteen years in prison.         Ford

subsequently appealed his sentence to this Court.

       {¶4} On July 23, 2010, while his appeal was still pending, Ford filed a

motion to withdraw his guilty plea with the trial court. As the basis for his motion,

Ford stated that his guilty plea was “less than knowingly, intelligently, and

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Case No. 14-11-01

voluntarily made” due to the alleged misinformation given to him by his trial

counsel about what his sentence would be if he pled guilty to some of the charges.

Notably, Ford raised and fully briefed this issue on appeal, claiming that he

received ineffective assistance from his trial counsel.

       {¶5} On August 30, 2010, this Court issued its decision on Ford’s appeal,

affirming the sentence imposed by the trial court and overruling Ford’s assignment

of error alleging that he received ineffective assistance of counsel.

       {¶6} On November 17, 2010, Ford filed a petition for post-conviction

relief, alleging a violation of his constitutional rights because his trial counsel was

deficient and prejudicial to his case.

       {¶7} On November 23, 2010, the trial court heard Ford’s testimony

regarding the merits of his motion to withdraw his guilty plea and petition for

post-conviction relief.

       {¶8}   On December 7, 2010, the trial court overruled Ford’s motion and

petition, specifically noting that Ford failed to demonstrate a manifest injustice.

Ford subsequently appealed the trial court’s decision, asserting the following

assignment of error.

                               ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT APPLIED THE
       WRONG STANDARD IN OVERRULING DEFENDANT-
       APPELLANT’S MOTION TO WITHDRAW HIS PLEA. THE
       COURT ABUSED ITS DISCRETION IN MAKING ITS
       DECISION.


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       {¶9} On appeal, Ford argues that the trial court erred in overruling his

motion to withdraw his guilty plea and his petition for post-conviction relief when

the only evidence before the trial court was Ford’s testimony and the State

presented no evidence to refute his testimony.         Specifically, Ford testified

regarding several conversations he had with his court-appointed attorney in the

course of his representation during the trial proceedings, all of which occurred

outside the record.

       {¶10} At the November 23, 2010 hearing on his motion and petition, Ford

testified that in these conversations, his trial counsel had assured him that he

would receive a prison sentence of four years and eleven months and placement

into a rehabilitation facility if he pled guilty to some of the charges in the

indictment. Ford explained that he refused a previous offer from the State of a

nine-year sentence in exchange for his guilty plea because he wanted to take his

case to trial. Ford maintained that eventually he decided to forego trial and plead

guilty with no recommendation of sentence from the prosecution because of his

trial counsel’s representations about his potential sentence. Ford was adamant at

the hearing that he would not have pled guilty but for his trial counsel’s assurances

that he would only serve four years and eleven months in prison in exchange for

his guilty plea.

       {¶11} Ford also maintained that his trial counsel represented to him that, if

he signed the plea bargain agreement, the prosecutor would not make a sentencing


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recommendation or otherwise participate in the sentencing proceedings. Notably,

the only evidence of these conversations with his trial counsel was Ford’s own

testimony.

       {¶12} On cross-examination, the prosecutor presented a document signed

by Ford evidencing his change of plea. Ford admitted on the stand that at the time

he changed his plea, he understood that he was subject to the maximum potential

sentence for each of the counts.     Ford also admitted he understood that the

sentence for each count could ultimately be run consecutively and/or concurrently

to one another.

       {¶13} Ford further acknowledged that he and the State did not have any

agreements in place with regard to a specific sentencing term at the time he

entered his guilty plea. Ford also admitted that he understood that the ultimate

sentencing decision would be determined by the presiding judge. Ford identified

his signature on the document stating that he entered his guilty plea knowingly,

intelligently and voluntarily.

       {¶14} Moreover, Ford recalled that when he appeared for sentencing on

February 11, 2010, the trial court informed him that he was not adequately advised

of post-release control at his change of plea hearing. Ford further recalled that

after properly informing him of post-release control on the record, the trial court

specifically explained to him that he had the right to withdraw his guilty plea

because post-release control was not fully addressed at his change of plea hearing.


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Case No. 14-11-01

Ford also admitted that, at that time, he stated on the record that he wished to

waive any right to withdraw his plea and proceed with sentencing.

           1. Petition for Post-Conviction Relief

           {¶15} As the basis for his petition, Ford argues that he detrimentally relied

on the representations of his trial counsel that he would receive a sentence of four

years and eleven months and placement in a rehabilitation facility if he pled guilty

to some of the charges listed in the indictment.

           {¶16} At the outset, we note that Ford’s petition for post-conviction relief

is untimely because it was not filed within 180 days from the time the transcript in

his direct appeal was filed with this Court as required by R.C. 2953.21(A)(2). The

record demonstrates that the transcripts from these proceedings were filed with

this Court on May 5, 2010. Ford did not file his petition for post-conviction relief

until November 17, 2010—at which point 196 days had elapsed.

           {¶17} Ford also fails to demonstrate that he is entitled to file his petition

after the expiration of the 180 days pursuant to R.C. 2953.23(A)(1).1 Furthermore,

this Court addressed on his direct appeal the same contentions that Ford presents

as the basis of his petition and found them to be without merit. Thus, the petition
1
    R.C. 2953.23(A)(1) permits the filing of a delayed petition only if both of the following apply:
           (a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the
           facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the
           period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
           earlier petition, the United States Supreme Court recognized a new federal or state right that
           applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based
           on that right.

           (b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial,
           no reasonable factfinder would have found the petitioner guilty of the offense of which the
           petitioner was convicted * * *.

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Case No. 14-11-01

was res judicata. Accordingly, for these reasons, we cannot find that the trial court

erred in overruling Ford’s petition for post-conviction relief.

        2. Motion to Withdraw Guilty Plea

        {¶18} Ford argues that because he relied on the representations of his trial

counsel that he would only receive a sentence of four years and eleven months, his

guilty plea was not made knowingly, intelligently and voluntarily.2

        {¶19} Our review of this assignment of error begins by noting that an

appellate court will not disturb a trial court’s denial of a motion to withdraw a

guilty plea absent an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d

722, 725, 651 N.E.2d 1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361

N.E.2d 1324. Abuse of discretion connotes more than an error of judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.

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

“ ‘the result must be so palpably and grossly violative of fact or logic that it

evidences not the exercise of will but the perversity of will, not the exercise of

judgment but the defiance of judgment, not the exercise of reason but instead

passion or bias.’ ” State v. Orwick, 153 Ohio App.3d 65, 2003-Ohio-2682, 790


2
  We acknowledge that Crim.R. 32.1 arguably does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw a guilty plea subsequent to an appeal and an affirmance by the appellate
court. See, State v. Rose, 3rd Dist. No. 9-06-39, 2007-Ohio-1627; State v. Allen, 12th Dist. No. CA2006-
01-001, 2006-Ohio-5990, ¶¶ 14-15; State v. Craddock, 8th Dist. No. 87582, 2006-Ohio-5915, ¶ 10; State v.
Smith, 8th Dist. No. 82062, 2003-Ohio-3675, ¶¶ 8-9, appeal not allowed, 100 Ohio St.3d 1486, 2003-Ohio-
5992; State v. Kovacek, 9th Dist. No 02CA008115, 2002-Ohio-7003, ¶¶ 7-8; State v. Laster, 2nd Dist. No.
19387, 2003-Ohio-1564, ¶ 9, appeal not allowed, 94 Ohio St.3d 1434, 2002-Ohio-5651. However, in the
interests of justice we elect to proceed by addressing the assignment of error on its merits.


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N.E.2d 1238, quoting State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 473 N.E.2d

264.

       {¶20} Criminal Rule 32.1 states: “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.” A motion to withdraw a plea

filed after a defendant is sentenced will be granted only to correct a manifest

injustice with the burden of establishing the existence of a manifest injustice being

placed upon the individual seeking vacation of the plea. Crim.R. 32.1; Smith, 49

Ohio St.2d at 264, 361 N.E.2d 1324. A manifest injustice is an exceptional defect

in the plea proceedings, State v. Vogelsong, 3rd Dist. No. 5-06-60, 2007-Ohio-

4935, ¶ 12, or a “ ‘clear or openly unjust act,’ ” State v. Walling, 3rd Dist. No. 17-

04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio

St.3d 203, 208, 699 N.E.2d 83, 1998-Ohio-271. “Accordingly, a post-sentence

motion to withdraw a guilty plea is only granted in ‘extraordinary cases.’ ” State

v. Driskill, 3rd Dist. Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶ 32, quoting

Smith, supra.

       {¶21} Here, Ford argues that the trial court erred in overruling his motion to

withdraw his guilty plea when the only evidence before the trial court was his own

testimony that he detrimentally relied on his trial counsel’s representations, and

this evidence was not refuted by the State. Ford further contends that the burden


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was on the prosecution to present Ford’s trial counsel in court to challenge his

testimony.

       {¶22} Ford appears to misconstrue his burden in an action requesting a

court to grant a post-sentence motion to withdraw a guilty plea. “A defendant who

seeks to withdraw a plea of guilty after the imposition of sentence has the burden

of establishing the existence of manifest injustice.” Smith, 49 Ohio St.2d 261, 361

N.E.2d 1324 (emphasis added). The only evidence Ford chose to present to the

court in satisfaction of this burden was his own self-serving testimony about

conversations that he had with his trial counsel outside of the record.

       {¶23} It is well within the discretion of the trial court to weigh the

credibility of a witness and assess whether his or her testimony is reliable.

Moreover, given the fact that nothing in the record demonstrates his plea was not

knowingly, intelligently and voluntarily made, and the fact that a post-sentence

motion to withdraw a plea is granted in only “extraordinary cases,” it was perhaps

incumbent on Ford to present more evidence than his self-serving statements in

support of his motion. See State v. Kapper (1983), 5 Ohio St.3d 36, 38, 448

N.E.2d 823 (holding a “[d]efendant’s own self-serving declarations or affidavits

alleging a coerced guilty plea are insufficient to rebut the record on review which

shows that his plea was voluntary”); see, also, State v. Mull, 11th Dist. No.2008-L-

128, 2009-Ohio-3654, at ¶ 45 (stating “[g]enerally, a self-serving affidavit or

statement is insufficient to demonstrate manifest injustice”). For example, there is


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nothing in the record to suggest that Ford did not have the ability to subpoena his

own trial counsel to testify at the hearing.

       {¶24} Accordingly, we conclude that the trial court’s decision to overrule

Ford’s post-sentence motion to withdraw his plea on the basis that he failed to

demonstrate a manifest injustice does not constitute an abuse of discretion.

       {¶25} For all these reasons, Ford’s assignment of error is overruled and the

judgment of the Union County Court of Common Pleas is affirmed.

                                                               Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jnc




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