[Cite as State v. Dunlap, 2016-Ohio-5197.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 15 CAA 07 0051
JEFFREY DUNLAP

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 11 CR I 09 0505


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        August 2, 2016



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

CAROL HAMILTON O’BRIEN                        BRIAN G. JONES
PROSECUTING ATTORNEY                          ELIZABETH E. OSORIO
JAHAN S. KARAMALI                             LAW OFFICE OF BRIAN JONES
ASSISTANT PROSECUTOR                          35 North Sandusky Street
140 North Sandusky Street                     Suite 200
Delaware, Ohio 43015                          Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 07 0051                                                2

Wise, J.

       {¶1}   Appellant Jeffrey Dunlap appeals the decision of the Court of Common

Pleas, Delaware County, which denied his post-sentence motion to withdraw his 2012

guilty plea on one count of domestic violence. Appellee is the State of Ohio. The relevant

procedural facts leading to this appeal are as follows:

       {¶2}   On September 23, 2011, the Delaware County Grand Jury issued an

indictment charging appellant as follows: (1) Kidnapping (R.C. 2905.01(A)(4)), a felony of

the first degree; (2) Attempted Rape (R.C. 2923.02(A) and 2907.02(A)(2)), a felony of the

second degree; (3) Abduction (R.C. 2905.02(A)(2)), a felony of the third degree; and (4)

Domestic Violence (R.C. 2919.25(A)), a misdemeanor of the first degree.

       {¶3}   On September 28, 2011, appellant appeared before the trial court for

arraignment, at which time he entered a plea of not guilty on all counts.

       {¶4}   On March 1, 2012, following plea negotiations, appellant appeared with

counsel and pled guilty, via an Alford plea, to Count 4 of the indictment, a first-degree

misdemeanor charge of domestic violence. The State thereupon dismissed Counts 1

through 3 of the aforesaid indictment.

       {¶5}   On April 10, 2012, appellant was sentenced to one year of community

control sanctions and was ordered to pay fines and costs.

       {¶6}   On November 7, 2014, more than two and one-half years later, appellant

filed a motion to seal his record. Furthermore, on December 19, 2014, appellant filed a

motion to withdraw his 2012 guilty plea.
Delaware County, Case No. 15 CAA 07 0051                                                3


        {¶7}   Appellant’s motion to seal his record was implicitly denied.1 Furthermore,

following an evidentiary hearing, the trial court denied the motion to withdraw plea on

June 8, 2015. Appellant filed a notice of appeal on July 8, 2015. He herein raises the

following two Assignments of Error:

        {¶8}   “I.   POST-CONVICTION         COUNSEL       PROVIDED        INEFFECTIVE

ASSISTANCE OF COUNSEL WHEN POST-CONVICTION COUNSEL FAILED TO CALL

TRIAL COUNSEL AS A WITNESS DURING THE EVIDENTIARY HEARING HELD ON

THE DEFENDANT'S MOTION TO VACATE PLEA.

        {¶9}   “II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

FINDING THE DEFENDANT FAILED TO MEET THE BURDEN OF MANIFEST

INJUSTICE THROUGH THE EXHIBITS AND TESTIMONY PRESENTED AT THE

EVIDENTIARY HEARING HELD ON THE DEFENDANT'S MOTION TO VACATE PLEA.

                                            I.

        {¶10} In his First Assignment of Error, appellant contends he was deprived of the

effective assistance of counsel during the evidentiary hearing on his post-sentence

motion to withdraw his guilty plea.

        {¶11} Crim.R. 32.1 states as follows: “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.”




1   See R.C. 2953.36, addressing exceptions to the sealing of criminal records.
Delaware County, Case No. 15 CAA 07 0051                                               4


      {¶12} Appellant’s present argument requires us to initially address whether an

“ineffective assistance” claim is cognizable on appeal in regard to an attorney's

performance in presenting to the trial court a post-sentence Crim.R. 32.1 motion.

      {¶13} It is well-established that a criminal defendant's right to the assistance of

counsel attaches at all “critical stages” of criminal proceedings. See United States v.

Wade, 388 U.S. 218 (1967). Furthermore, the Ohio Supreme Court has made clear that

Crim.R. 32.1 motions are part of the original criminal action and are not collateral

proceedings. See State v. Bush, 96 Ohio St.3d 235, 773 N.E.2d 522, 2002-Ohio-3993, ¶

13.

      {¶14} In State v. Emerson, 5th Dist. Richland No. 14 CA 79, 2015-Ohio-2121, we

adopted the reasoning of the Second District Court of Appeals in State v. Strickland, 2nd

Dist. Montgomery No. 25673, 2014–Ohio–5451, which concluded that a criminal

defendant is entitled to appointed counsel at a hearing on a motion to withdraw a plea,

where the motion was made prior to sentencing, because he or she is entitled to counsel

through each critical stage of the proceeding. Emerson at ¶ 25. We therefore held that an

ineffective assistance claim is cognizable in regard to an attorney's performance in

connection with a presentence Crim.R. 32.1 motion. Id. at ¶ 26. However, by analogy,

Ohio courts “have generally held that there is no absolute right to appointed counsel in

pursuing a postsentence motion to withdraw a guilty plea.” State v. McNeal, 8th Dist.

Cuyahoga No. 82793, 2004-Ohio-50, ¶ 8 (emphasis added), citing State v. Watts (1989),

57 Ohio App.3d 32, 33, 565 N.E.2d 1282 (6th Dist. Lucas). Other Ohio courts “have

suggested that counsel may be necessary if the judge determines that an evidentiary

hearing is required [on a postsentence Crim.R. 32.1 motion].” McNeal, supra, citing State
Delaware County, Case No. 15 CAA 07 0051                                                   5

v. Perry (May 2, 1997), Trumbull App. No. 95-T-5315; State v. Gibson, Trumbull App. No.

2001-T-0094, 2002-Ohio-3153, ¶ 31. But our research reveals no clear case law in Ohio

justifying an unfettered extension of our holding in Emerson beyond presentence Crim.R.

32.1 motions. See, also, State v. Potter, 5th Dist. Stark No. 1995CA00027, 1995 WL

768607.

      {¶15} The term “critical stage” in proceedings has been defined as “those

situations in which there is risk that ‘counsel's absence might derogate from the accused's

right to a fair trial.’ ” State v. Anderson, 7th Dist. Belmont No. 14 BE 0041, 2016-Ohio-

4651, ¶ 12, quoting United States v. Wade, supra, at 226. We note Crim.R. 32.1 itself

does not prescribe a time limitation for filing a motion to withdraw plea after sentencing.

State v. Burkes, 4th Dist. Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 10. Where a

defendant seeks to withdraw his or her plea after the trial court proceedings have

concluded and sentencing has been accomplished (in some instances years afterward),

he or she must meet the high “manifest injustice” standard, and such relief is “allowable

only in extraordinary cases.” See State v. Aleshire, Licking App.No. 09–CA–132, 2010–

Ohio–2566, ¶ 60. Upon review, we therefore conclude a defendant’s advancement of a

postsentence motion to withdraw plea goes well beyond the critical stage of criminal

proceedings, and we therefore will not recognize a claimed error based on ineffective

assistance regarding counsel’s performance in presenting said motion to the trial court.

      {¶16} Accordingly, appellant’s First Assignment of Error is overruled.
Delaware County, Case No. 15 CAA 07 0051                                                  6


                                             II.

       {¶17} In his Second Assignment of Error, appellant contends the trial court abused

its discretion in denying his Crim.R. 32.1 motion to withdraw his guilty plea, post-

sentence. We disagree.

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

determination of whether the trial court abused its discretion. State v. Caraballo (1985),

17 Ohio St.3d 66, 477 N.E.2d 627. In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140.

       {¶19} Ineffective assistance of trial counsel can form the basis for a claim of

manifest injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1. See

State v. Dalton, 153 Ohio App.3d 286, 292, 2003–Ohio–3813, ¶ 18. However, under the

“manifest injustice” standard, a post-sentence withdrawal motion is allowable only in

extraordinary cases. Aleshire, supra, at ¶ 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 (1980), 68 Ohio App.2d 211, 213, 428

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

       {¶20} The gist of appellant’s grounds for relief in his Crim.R. 32.1 motion to

withdraw plea is that he was under the impression that his domestic violence conviction

could be expunged at some future point. At the April 23, 2015 evidentiary hearing on

appellant’s Crim.R. 32.1 motion, appellant, appellant’s brother, and appellant’s father all
Delaware County, Case No. 15 CAA 07 0051                                                  7


testified. A subpoena was issued for appellant’s trial counsel to appear, but for reasons

not evident in the present record, he was not called to the stand, nor was a proffer of his

expected testimony submitted to the court. However, a copy of an email from trial counsel

to appellant, dated more than two years after the plea, includes language suggesting that

trial counsel considered expungement feasible. See Defendant’s Exhibit 2.

       {¶21} The record reveals that Christopher Dunlap, appellant's brother, testified

first. Christopher, who works as a bank loan officer, was involved in some of the meetings

between appellant and trial counsel when plea issues were discussed. He recalled

appellant’s trial counsel telling them during one meeting: “ ‘These are the charges. After

one year we can get this expunged.’ ” Tr., April 23, 2015, at 21. But Christopher noted on

cross he did not recall anyone discussing expungement on the record or “in open court.”

Tr. at 30. He also agreed that the trial court had asked appellant on the day of the plea if

there were any additional agreements or promises, to which appellant had replied “no.”

Tr. at 29.    Christopher also testified that appellant’s trial counsel told appellant

expungement could be obtained “after one year,” but the starting point of said one-year

period was not clearly specified: “*** I would imagine – I assumed that it was [expungable]

from the point in which he -- we stepped foot in the courtroom over here." Tr. at 26-27.

The trial court appeared to take particular note, during the Crim.R. 32.1 hearing, that

despite Christopher’s asserted presence during many of appellant’s meetings with his

attorney, and despite the purported centrality of the expungement issue to appellant’s

plea decisions, Christopher remembered the issue coming up just one time in these

meetings. See Tr. at 34.
Delaware County, Case No. 15 CAA 07 0051                                                   8


       {¶22} Kenneth Eugene Dunlap, appellant's father, testified next. Kenneth, now

semi-retired and living in Georgia, recalled that he was present more often at the meetings

between appellant and trial counsel than was Christopher, appellant’s brother. Tr. at 53.

It was his belief that “the option of getting the offense expunged was critical” when the

plea was decided. Tr. at 45. During cross-examination, Kenneth stated that although he

had “absolutely" wanted appellant to take the case to trial, he believed appellant did not

want to go to court and was "scared to death." Tr. at 56. Kenneth agreed that appellant

was scared of the potential consequences of losing at trial, including the possibility of sex

offender registration. Id. Additionally, Kenneth conceded that he wasn't completely sure

what appellant would have done if he had known his conviction would not be expungable,

noting “I could never be sure of something like that, but I can believe what I think.” Tr. at

57. Kenneth believed there was at least a possibility appellant would have taken the plea

anyway, although he did not “think so.” Tr. at 58.

       {¶23} Appellant then testified as to the reasons he accepted the State's offer and

entered his Alford plea in 2012 to the misdemeanor domestic violence charge. Tr. at 83.

He indicated inter alia that getting the case resolved would have helped him in his child

custody litigation, although appellant apparently waited until after these custody issues

were settled to file for expungement on November 7, 2014. See Tr. at 83, 89. Appellant

suggested that his brother, Christopher, did not “get the whole story.” Tr. at 96. In sum,

appellant testified that he "absolutely 100 percent positively" would not have entered his

plea if he had known it was not expungable. See Tr. at 91. Appellant testified “*** I had

no doubt that I could win the trial based on all the evidence that we had." Tr. at 93. He

insisted: “*** I'm not a lawyer. I didn't go to Notre Dame law school. I don't know the law.
Delaware County, Case No. 15 CAA 07 0051                                                   9


I listened to my attorney and I was advised on what the law is. So a promise and a special

arrangement -- I thought that was the law, okay? [My trial attorney] told me it was an

expungable offense if I did not get arrested or in trouble with the law, okay?" Tr. at 105.

However, while it is not necessarily fatal to his Crim.R. 32.1 motion, appellant

acknowledged that the Crim.R. 11(F) agreement he signed at his change of plea made

no mention of expungement. Tr. at 105.

       {¶24} The case of City of Maple Heights v. McCants, 8th Dist. Cuyahoga No.

80128, 2002-Ohio-1070, is instructive in the case sub judice. In McCants, a defendant

claimed he had been induced into pleading no contest based on the prosecutor (as

opposed to defense counsel) informing him that he could expunge his record. The Eighth

District Court of Appeals held that appellant's reliance on that representation did not

constitute grounds to withdraw his plea. The court referenced the observation of the Ohio

Supreme Court that “[e]xpungement is an act of grace created by the State, and so is a

privilege, not a right." Id., citing State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). The

Eighth District Court proceeded to determine that the trial court had not erred in denying

McCants’ motion to withdraw his plea based on “his mere expectation of being able to

apply for expungement.” Id.

       {¶25} In its June 8, 2015 judgment entry denying appellant's motion to withdraw

his plea, the trial court in the case sub judice determined that the record was “devoid of

any substantiation” for appellant's claim that sealing his record was a “prime reason” for

him agreeing to the Alford plea. The court further noted that the plea resulted in the

dismissal of three remaining felony charges, and that even though the plea agreement

allowed for additional terms of the agreement to be spelled out, said portion was left blank.
Delaware County, Case No. 15 CAA 07 0051                                                 10


Further, appellant, when asked during the plea hearing if there were any other

agreements or promises made, had responded in the negative. In reference to appellant’s

witnesses for the hearing, the court emphasized that “[b]y virtue of their family

relationship, they have an obvious interest in the outcome." Judgment Entry at 3.

       {¶26} The Ohio Supreme Court has aptly held that “* * * the good faith, credibility

and weight of the movant's assertions in support of the [Crim.R. 32.1] motion are matters

to be resolved by [the trial] court.” State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d

1324, paragraph two of the syllabus. In this instance, we are unpersuaded the trial court

abused its discretion in declining to find a manifest injustice warranting the extraordinary

step of negating appellant's prior plea to domestic violence.

       {¶27} Appellant’s Second Assignment of Error is therefore overruled.

       {¶28} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.


JWW/d 0711
