[Cite as State v. Massey, 2017-Ohio-706.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-L-030
        - vs -                                   :

GARY D. MASSEY,                                  :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2014 CR
000344.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Gary D. Massey appeals from the judgment entry of the Lake County

Court of Common Pleas, denying his post sentence motion to withdraw a guilty plea in a

murder case. Finding no error, we affirm.

        {¶2}     The following facts are taken from the DVD of Mr. Massey’s interrogation

by the Eastlake Police Department, May 5, 2014.
       {¶3}    May 5, 2014, Mr. Massey was going to see his psychiatrist, Dr. Neil

Steinberg. Mr. Massey suffers from bipolar disorder and depression, for which he takes

Zoloft, Seroquel, and Lithium. He needed to refill his prescriptions. He contacted his

friend, Timothy Martz, to go with him.1 The men got lost and returned to Mr. Martz’

house in Eastlake, where they began drinking and using illicit drugs. Nobody else was

present. This was about 10:00 a.m. About 11:00 a.m., the men got into an argument

about going to see a mutual friend, “Billy,” with whom Mr. Massey had an argument

several months before. Mr. Martz rushed Mr. Massey, and began hitting him. Mr.

Massey pulled a switch blade from his pocket, and stabbed Mr. Martz in or near the

neck. Mr. Martz fell down, and Mr. Massey stomped on his neck several times. Mr.

Massey noticed blood coming from Mr. Martz’ mouth, and checked him for a pulse,

finding none. Mr. Massey washed his hands, and left.

       {¶4}    The DVD of the interrogation reveals that Mr. Massey had a good recall of

the events resulting in Mr. Martz’ death, but was otherwise confused. The interrogation

commenced about 4:00 p.m., and Mr. Massey had already been booked. However, he

had absolutely no recollection of what he did in the intervening hours. He knew he had

told his wife what had happened, but did not know when or how. The officers’ questions

indicate Mrs. Massey drove him to the police station – but Mr. Massey did not know how

he had arrived.

       {¶5}    May 6, 2014, a complaint and summons charging Mr. Massey with murder

in violation of R.C. 2903.02(A) was filed in the Willoughby Municipal Court. That same

day, he entered a written plea of not guilty. Discovery practice ensued. August 1, 2014,


1. There is a discrepancy in the record as to whether the proper spelling is “Martz” or “Marks.” We use
the spelling found in the indictment.


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the Lake County Grand Jury returned an indictment charging Mr. Massey with murder in

violation of R.C. 2903.02(B), an unclassified felony. August 13, 2014, a change of plea

hearing was held, and Mr. Massey entered a written plea of guilty. The trial court

advanced immediately to sentencing, imposing a term of imprisonment of 15 years to

life.

        {¶6}   February 4, 2016, Mr. Massey moved the trial court to withdraw his guilty

plea, essentially arguing ineffective assistance of counsel, and that he had been

incompetent at the time of the plea. By a judgment entry filed March 7, 2016, the trial

court denied the motion to withdraw. This appeal timely ensued, Mr. Massey assigning

a single error: “The trial court erred and abused its discretion by denying the appellant’s

motion to withdraw his guilty plea.”

        {¶7}   “We review a trial court’s decision to grant or deny a post sentence motion

to withdraw a guilty plea pursuant to Crim.R. 32.1 for abuse of discretion. State v.

Wilkey, 5th Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶21. Regarding this

standard, we recall the term ‘abuse of discretion’ is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record. State v.

Ferranto, 112 Ohio St. 667, 676-678, * * * (1925). An abuse of discretion may be found

when the trial court ‘applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.’ Thomas v. Cleveland, 176

Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)

        {¶8}   “In State v. Derricoatte, 11th Dist. Ashtabula No. 2012-A-0038, 2013-

Ohio-3774, ¶18, we stated:

        {¶9}   “‘This court has defined the term “manifest injustice” as a “clear or openly




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unjust act.” State v. Wilfong, 11th Dist. Lake No. 2010-L-074, 2011 Ohio 6512, ¶12.

Pursuant to this standard, extraordinary circumstances must exist before the granting of

a post-sentencing motion to withdraw can be justified. Id. “The rationale for this high

standard is ‘to discourage a defendant from pleading guilty to test the weight of potential

reprisal, and later withdraw the plea if the sentence is unexpectedly severe.’” (State v.)

Robinson, (11th Dist. Lake No. 2011-L-145,)2012 Ohio 5824, at ¶14, quoting State v.

Caraballo, 17 Ohio St.3d 66, 67, (* * *) (1985).’” (Parallel citations omitted.) State v.

Banks, 11th Dist Lake No. 2015-L-128, 2016-Ohio-4925, ¶7-9.

      {¶10} Mr. Massey presents five issues for review:

      {¶11} “Whether a trial court errs and abuses its discretion by denying a post-

sentencing motion to withdraw a guilty plea, where the record reveals: (1) at time of the

plea, the criminal defendant had no recollection whatsoever of the crime; (2) after years

of medication and therapy, the defendant regains his memory and realizes that it was

the victim that initiated the fight between the defendant and the victim by attacking the

defendant; (3) the defendant had been rushed in making his decision to enter the guilty

plea; (4) the defendant had been told by his trial attorney that the prosecutor would seek

a heavier penalty if the defendant did not enter a guilty plea; and (5) in fact, the only

penalty confronting the defendant under the indictment was the penalty which he

received.”

      {¶12} We deal with these issues out of order.

      {¶13} For his third issue, Mr. Massey asserts he was rushed by trial counsel into

entering a plea deal.    We respectfully find no support for this in the record.      The

complaint and summons issued against him May 6, 2014, and the indictment was




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returned August 1, 2014. Discovery practice had been occurring between the parties

since June 13, 2014. The plea of guilty was entered August 13, 2014. The trial court

carefully examined Mr. Massey as to whether he was satisfied with his counsel’s

representation, and he said he was. The trial court specifically asked whether Mr.

Massey had sufficient time to discuss the case with his counsel. He replied he did. His

trial counsel displayed a full knowledge of the case and evidence while arguing in

mitigation. The third issue lacks merit.

       {¶14} For his fourth issue, Mr. Massey asserts trial counsel told him the state

would seek a term of imprisonment of 30 years to life if he did not plead guilty prior to

the issuance of the indictment. For his fifth issue, he observes that the only sentence

he could have received was that meted out – 15 years to life imprisonment. Being

interrelated, we consider these issues together.

       {¶15} Again, the record does not support Mr. Massey’s assertions. His change

of plea took place 12 days after the indictment issued. And the trial court observed in its

judgment entry denying the motion to withdraw that the state never suggested to the

court it sought any sentence other than that required by law, which is what the trial court

imposed. Further, in the colloquy before accepting Mr. Massey’s change of plea, the

trial court specifically asked him whether he understood he would be sentenced to 15

years to life imprisonment, and Mr. Massey replied he did. This indicates he was fully

aware of the sentence he was to receive. The fourth and fifth issues lack merit.

       {¶16} By his first and second issues, Mr. Massey asserts, essentially, that he

was not in a fit state to enter his plea of guilty, since he could not recollect the events

leading to Mr. Martz’ death at the time of the change of plea. Two portions of the




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change of plea hearing and sentencing hearing are relevant. Each exchange occurred

prior to the change of plea. The first concerns Mr. Massey’s mental clarity at the time of

hearing.

       {¶17} The trial court: “Are you currently under the influence of any drugs,

alcohol, or medication of any kind?”

       {¶18} Mr. Massey: “No. Just my normal meds.”

       {¶19} The trial court: “And what are those?”

       {¶20} Mr. Massey: “It’s Zoloft, Seroquel, and Lithium.”

       {¶21} The trial court: “What was the third one?”

       {¶22} Mr. Massey: “Lithium.”

       {¶23} The trial court: “And when did you last have these drugs?”

       {¶24} Mr. Massey: “Last night.”

       {¶25} The trial court: “Is that the only drugs, alcohol, or medication you’ve had in

the last 48 hours?”

       {¶26} Mr. Massey: “Yes.”

       {¶27} The trial court: And so that’s Zoloft, Seroquel, and Lithium. Do any of

these drugs adversely affect your ability to think clearly?”

       {¶28} Mr. Masse: “No.”

       {¶29} The trial court: “Do they assist you in thinking clearly?”

       {¶30} Mr. Massey: “Yes.”

       {¶31} The trial court: “You’re thinking clearly now?”

       {¶32} Mr. Massey: “Yes.”

       {¶33} The trial court: “No trouble understanding what I’ve said so far?”




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       {¶34} Mr. Massey: “No.”

       {¶35} The trial court: “No trouble understanding what you and your attorney

talked about before we started the hearing?”

       {¶36} Mr. Massey: “No.”

       {¶37} The second exchange occurred immediately prior to Mr. Massey being

handed the written plea of guilty.

       {¶38} The trial court: “Tell me what you did here.”

       {¶39} Mr. Massey: “Well, we got in a fight. I don’t remember exactly everything.

I don’t remember much from drinking. You know. I just read the autopsy, and that’s

what it says, so * * *[.]”

       {¶40} The trial court: “Well, do you remember what you did?”

       {¶41} Mr. Massey: “No, I don’t remember.”

       {¶42} The trial court: “Was anybody else there but you and Mr. Marks (sic)?”

       {¶43} Mr. Massey: “No.”

       {¶44} The trial court: “And do you know how you killed him?”

       {¶45} Mr. Massey: “I imagine by my feet. You know.”

       {¶46} The foregoing exchanges reveal that Mr. Massey was in a clear state of

mind when he entered his plea, but that he had difficulty recollecting the events

resulting in Mr. Martz’ death.       We do not believe this is sufficient to constitute a

“manifest injustice” requiring reversal of the trial court’s judgment. While Mr. Massey

may have become unclear regarding the events resulting in Mr. Martz’ death by the time

of the plea hearing, August 13, 2014, he gave a full and detailed description of them to

the interrogating officers at the time of his confession.




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       {¶47} Mr. Massey argued in his motion to withdraw that after psychiatric

treatment in prison, he now knows the events resulting in Mr. Martz’ death were an

accident. This is not supported by the record. During his interrogation, the officers

asked why he stomped on Mr. Martz’ neck.             Mr. Massey replied that, even having

stabbed Mr. Martz, he remained scared of him, and wanted to make certain Mr. Martz

could not hurt him. This is intent, pure and simple.

       {¶48} Mr. Massey cites to us the opinion in State v. Bennett, 5th Dist. Stark No.

2004CA00369, 2006-Ohio-5632, in which the Fifth District reversed the judgment of the

trial court, denying appellant’s post sentence motion to withdraw his guilty plea, as

support for the proposition that an appellant’s lack of recall regarding the events

constituting a crime can invalidate a guilty plea.

       {¶49} We find Bennett distinguishable. In that case, Bennett and another man

were travelling in a van which ran off the road and struck a third man. Id. at ¶2. The

other man in the van died. Id. Bennett pleaded guilty to aggravated vehicular homicide,

aggravated vehicular assault, OVI, and driving under suspension.              Id. at ¶2, 4.

Eventually, Bennett moved to withdraw his guilty plea and for postconviction relief. Id.

at ¶5-6. After hearing, the trial court denied the motions. Id. at ¶7.

       {¶50} On appeal, the Fifth District reversed. It noted that Bennett had constantly

told authorities that he had no recollection of the accident; that the first person to arrive

at the scene found Bennett unconscious and falling out of the passenger side window of

the van; that an accident reconstructionist testified that damage to the passenger side

window shield of the van corresponded to Bennett’s head injury; and, that Bennett’s hair

and DNA were found on the passenger side dashboard of the van. Bennett at ¶23, 36-




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37, 39, 50-53. Under the circumstances, the Fifth District found the trial court abused its

discretion in denying the motion to withdraw, since evidence showed he may have been

the passenger, not the driver, of the van. Id. at ¶58-59.

       {¶51} Thus, in Bennett, substantial evidence indicated appellant might not be

responsible for the crimes to which he pleaded guilty. In this case, the only evidence

shows Mr. Massey is guilty.

       {¶52} The first and second issues lack merit, as does the assignment of error.

       {¶53} The judgment of the Lake County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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