[Cite as Richmond Hts. v. McEllen, 2013-Ohio-3151.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99281




                      CITY OF RICHMOND HEIGHTS
                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                     JOHN McELLEN
                                                            DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                                      Criminal Appeal from the
                                     Lyndhurst Municipal Court
                                      Case No. 00 CRB 00325

        BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT

Richard H. Drucker
700 West St. Clair Avenue
Suite 214
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Jonathan D. Greenberg
Prosecuting Attorney
City of Richmond Heights
Walter & Haverfield, P.L.L.
1301 East Ninth Street
Suite 3500
Cleveland, Ohio 44114-1821
FRANK D. CELEBREZZE, JR., J.:

          {¶1} Defendant-appellant, John McEllen, appeals from the trial court’s judgment

denying his postsentence motion to withdraw his plea. Finding no merit to the appeal, we

affirm.

                             I. Factual and Procedural History

          {¶2} On May 9, 2000, appellant entered a plea of guilty to a charge of domestic

violence, a first-degree misdemeanor, in the Lyndhurst Municipal Court, Cuyahoga

County, Ohio. Prior to entering his guilty plea, appellant waived his right to an attorney.

 On the same day, the trial court found appellant guilty and sentenced him to ten days in

jail and a $250 fine.

          {¶3} On November 9, 2012, appellant filed a motion to vacate his guilty plea. On

November 13, 2012, the trial court denied appellant’s motion without a hearing.

          {¶4} Appellant now brings this timely appeal, raising one assignment of error for

review:

          I. The trial court erred, and abused its discretion and caused [appellant] a
          manifest injustice when it accepted an uncounseled guilty plea while he was
          intoxicated, which plea has summarily barred him from employment, then
          denied [appellant’s] motion to vacate guilty plea without granting an oral
          hearing to consider the case’s merits, and before even receiving the
          prosecution’s brief in response.
                                   II. Law and Analysis

                                     A. Crim.R. 32.1

       {¶5} In his sole assignment of error, appellant argues that the trial court abused its

discretion when it denied his motion to withdraw his guilty plea pursuant to Crim.R. 32.1.

       {¶6} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty * * * 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.” Crim.R. 32.1.

       {¶7} Thus, pursuant to Crim.R. 32.1, a postsentence motion to withdraw a guilty

plea, such as appellant’s, may be granted only to correct a manifest injustice. State v.

Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “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.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus. A manifest injustice is a fundamental flaw in the

proceedings that results in a miscarriage of justice or is inconsistent with the requirements

of due process. State v. McMahon, 12th Dist. No. CA2009-06-008, 2010-Ohio-2055,

¶ 6.

       {¶8} A postsentence motion to withdraw a guilty plea is allowable only under

extraordinary circumstances and is left up to the discretion of the trial court. Smith at

264. Accordingly, we review the trial court’s decision on a motion to withdraw a guilty
plea for an abuse of discretion. McMahon at ¶ 9. An abuse of discretion implies that the

trial court acted unreasonably, arbitrarily, or unconscionably. Id.

       {¶9} Similarly, the trial court’s decision to deny the motion without a hearing is

granted deference. State v. Woods, 8th Dist. No. 84993, 2005-Ohio-3425. “Deference

especially attends in a case in which the record demonstrates the court conducted the

original plea hearing and was familiar with the facts of the case. In such circumstances,

the trial court is in the best position to assess the credibility of the movant’s assertions.”

(Citations omitted.) State v. Atkinson, 8th Dist. No. 85773, 2005-Ohio-5348, ¶ 13-14.

       {¶10} In the case at hand, appellant claims that as a result of his May 9, 2000

domestic violence conviction, he has endured adverse employment consequences that he

could not have reasonably foreseen. Furthermore, appellant contends that he was under

the influence of drugs and alcohol at the time he entered his plea. Thus, he submits that

“when an uncounseled plea is accepted from an intoxicated individual, and that plea

effectively prevents that individual from securing employment, a trial court’s failure to

vacate the plea constitutes a manifest injustice.”

       {¶11} On review, we find no abuse of discretion in the trial court’s denial of

appellant’s motion without a hearing. As an initial matter, we find no manifest injustice

arising from the fact that appellant failed to appreciate the potential consequences his

conviction may have on his future employment.           See Xenia v. Jones, 2d Dist. No.

07-CA-104, 2008-Ohio-4733 (no manifest injustice where defendant failed to appreciate

consequences of plea on teaching license); See also State v. Perri, 11th Dist. No.
2006-P-0018, 2006-Ohio-5185 (trial court not required to ensure defendant aware of

possible consequences of plea on future employment in Air Force).               Appellant’s

argument amounts to an error in judgment, which, unfortunately for appellant, is not a

sufficient basis for granting a Crim.R. 32.1 motion. State v. Roach, 11th Dist. No. 9-040,

1982 Ohio App. LEXIS 12054 (Dec. 23, 1982).

       {¶12} Furthermore, appellant’s lengthy delay in seeking to withdraw his guilty

plea militates against his claim that he was intoxicated at the time of his plea hearing.

Although Crim.R. 32.1 does not contain a time limit for filing a postsentence motion to

withdraw a plea, an undue delay between the occurrence of the alleged cause for

withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor

adversely affecting the credibility of the movant and militating against the granting of the

motion. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

       {¶13} Here, the credibility of appellant’s claim that he was intoxicated at the time

he entered his plea is strongly called into question by the fact that he did not immediately

seek to withdraw his guilty plea once the alleged effects of the drugs and alcohol

diminished. Instead, he waited over 12 years before seeking relief from the claimed

error, and he has made no attempt to explain the undue delay in pursuing his claim.

       {¶14} Additionally, the record supports the state’s position that appellant failed to

submit evidentiary documents sufficient to demonstrate a manifest injustice.          Here,

appellant relies solely on his affidavit attached to his motion to withdraw his plea, in

which he avers that “he was experiencing significant problems with drug and alcohol
addiction and was in a highly emotional state and physically sick” at the time of his plea.

However, this court has previously held that a movant’s self-serving affidavit is

insufficient to demonstrate manifest injustice. State v. Simmons, 8th Dist. No. 91062,

2009-Ohio-2028, ¶ 30. Accordingly, appellant’s self-serving affidavit is insufficient to

establish a manifest injustice.

                                     B. Crim.R. 11(D)

       {¶15} Alternatively, appellant argues that the trial court abused its discretion when

it failed to vacate his plea because, due to his intoxication, he did not knowingly and

intelligently waive his right to counsel as guaranteed by the Sixth Amendment and

Crim.R. 11(D).

       {¶16} Crim.R. 11(D) sets forth the procedure a trial judge must follow when

accepting a plea involving a serious misdemeanor:

       In misdemeanor cases involving serious offenses the court may refuse to
       accept a plea of guilty or no contest, and shall not accept such plea without
       first addressing the defendant personally and informing the defendant of the
       effect of the pleas of guilty, no contest, and not guilty and determining that
       the defendant is making the plea voluntarily. Where the defendant is
       unrepresented by counsel the court shall not accept a plea of guilty or no
       contest unless the defendant, after being readvised that he or she has the
       right to be represented by retained counsel, or pursuant to Crim.R. 44 by
       appointed counsel, waives this right.

       {¶17} Initially, we note that appellant failed to raise this issue in his Crim.R. 32.1

motion. It is well-settled law that issues not raised in the trial court may not be raised for

the first time on appeal because such issues are deemed waived. State v. Comen, 50

Ohio St.3d 206, 211, 553 N.E.2d 640 (1990).
       {¶18} Notwithstanding, we find that appellant’s guilty plea was entered pursuant

to the requirements of Crim.R. 11(D) and was therefore intelligently and knowingly

made. Here, the record reflects that appellant signed a written “Statement of Rights,”

which expressly stated that he had been informed of his constitutional rights prior to

entering his plea, including “his right to retain counsel even if he intends to plead guilty.”

 Moreover, as previously discussed, appellant has failed to present credible evidence to

support his contention that he was intoxicated at the time he entered his plea.

Accordingly, we are unable to conclude that appellant’s waiver of counsel was not

knowingly and intelligently made.

       {¶19} Based on the foregoing, the trial court did not abuse its discretion in denying

appellant’s Crim.R. 32.1 motion without holding a hearing.

       {¶20} Appellant’s sole assignment of error is overruled.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Lyndhurst

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
