[Cite as State v. Welly, 2016-Ohio-863.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-15-37

        v.

ERIC J. WELLY,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                             Trial Court No. 14CR0193

                                       Judgment Affirmed

                              Date of Decision: March 7, 2016




APPEARANCES:

        John M. Kahler, II for Appellant

        Stephanie J. Reed for Appellee
Case No.13-15-37


ROGERS, J.

           {¶1} Defendant-Appellant, Eric Welly, appeals the judgment of the Court

of Common Pleas of Seneca County denying his petition for post-conviction

relief/motion to withdraw guilty plea without an evidentiary hearing. For the

reasons that follow, we affirm the judgment of the trial court.

           {¶2} On July 23, 2014, the Seneca County Grand Jury returned a one count

indictment against Welly charging him with one count of rape in violation of R.C.

2907.02(A)(1)(b) and 2907.02(B), a felony of the first degree. Welly entered a

plea of not guilty to the lone charge.

           {¶3} On September 30, 2014, Welly filed a motion to remove or replace his

court appointed counsel.               Welly later asked the court to have his motion

withdrawn, which was granted by the court.

           {¶4} After a period of plea negotiations, Welly agreed to plead guilty to a

lesser included offense of rape in violation of R.C. 2907.02(A)(1)(b) and

2907.02(B), a felony of the first degree, on November 17, 2014.1

           {¶5} During the change of plea hearing, the following exchanges took place

between the court and Welly.

           The Court:       Mr. Welly, it’s important to understand that I will be
                            imposing a sentence of 25 years to life in this
                            particular case. That’s a long time in prison. I want to
                            make sure that when you enter this plea of guilty, this

1
    Although the guilty plea form was filed on November 18, 2014, it was signed on November 17, 2014.

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                    is your decision. You’ve had enough time to think
                    about it. Speak with whoever you wanted to. And I
                    realize that the original charge was life without parole.
                    So, but there is at least 25 years before you may be
                    considered for parole. All right.

Nov. 17, 2014 Hrg., p. 5.

       The Court:   Satisfied with [counsel’s] representation?

       Welly:       Yes, sir.

Id. at p. 6-7.

       The Court:   Do you understand the nature of the charge and the
                    possible defense you might have?

       Welly:       Yes, sir.

       The Court:   Are you entering this plea voluntarily and of your own
                    free will?

       Welly:       Yes, sir.

       The Court:   Has anybody threatened you?

       Welly:       No, sir.

       The Court:   Any promises other than that which is contained in the
                    sentence recommendation?

       Welly:       No, sir.

Id. at p. 10-11.

       The Court:   And again, are you entering this plea voluntarily?

       Welly:       Yes, sir.



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       The Court:    Again, Mr. Welly, you’re looking at an awful long
                     time in prison before you’re even eligible. I want to
                     make sure you’ve given this enough thought, spoke
                     with [your attorney], family, friends, whomever.

       Welly:        Yes, sir.

       The Court:    And you’re sure this is what you want to do?

       Welly:        Yes, sir.

       The Court:    Very well then you may sign the plea.

Id. at p. 12-13.

       {¶6} As a result of Welly’s guilty plea, the court found Welly guilty, and

the case proceeded immediately to sentencing, where the court sentenced Welly to

an indefinite prison sentence of 25 years to life. Welly was also classified as a

Tier III sex offender.

       {¶7} Welly appealed his conviction and sentence on December 16, 2014.

Welly obtained new counsel for his direct appeal. On appeal, Welly argued that

the trial court failed to comply with Crim.R. 11 during his change of plea hearing.

This court affirmed, finding that the trial court complied with the requirements of

Crim.R. 11. State v. Welly, 3d Dist. Seneca No. 13-14-43, 2015-Ohio-2734, ¶ 6

(“Welly I”).

       {¶8} On September 1, 2015, Welly filed a petition for post-conviction

relief/motion to withdraw guilty plea. In his petition, Welly argued that he was

denied effective assistance of counsel because his trial counsel refused to take

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Welly’s case to trial and told Welly that Welly’s only option was to accept the

State’s plea deal.    Additionally, Welly argued that the interrogating officer

threatened him and coerced him into confessing. He also argued that he obtained

newly discovered evidence that proved he was innocent. Welly’s sister, Sarah

Toombs, filed an affidavit stating that she had been engaging in Facebook

messages with the victim’s mother. During these conversations, the mother told

Toombs that the victim told the mother that Welly did not touch him. Toombs

attached screenshots from her conversation with the victim’s mother as an exhibit.

Welly also filed an affidavit proclaiming his innocence and reiterating the facts

contained in his petition.

       {¶9} Regarding his motion to withdraw guilty plea, Welly argued that he

was coerced into pleading guilty by his trial counsel. Moreover, Welly argued that

he was not thinking clearly that day as he was under the influence of Risperdal,

“which is a treatment for schizophrenia.” (Docket No. 40, p. 3). Finally, he

argued that he did not enter into his plea voluntarily, knowingly, or intelligently

because of his low intelligence.

       {¶10} On September 23, 2015, the State filed its response opposing Welly’s

petition/motion.

       {¶11} The trial court denied Welly’s petition/motion on October 23, 2015.

In its decision, the court found that it had complied with Crim.R. 11 during the


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change of plea hearing. It found that Risperdal helped Welly think clearly. In

regard to Toombs’s affidavit, the court found that it was all hearsay and did

nothing to support Welly’s petition. The court found the same with Welly’s

affidavit.

       {¶12} Welly filed this timely appeal, presenting the following assignment

of error for our review.

                              Assignment of Error

       THE TRIAL COURT ERRED IN DENYING THE
       APPELLANT’S PETITION FOR POSTCONVICTION
       RELIEF AND MOTION TO WITHDRAW GUILTY PLEA
       WITHOUT AN EVIDENTIARY HEARING.

       {¶13} In his sole assignment of error, Welly argues that the trial court erred

by denying his petition for post-conviction relief and his motion to withdraw his

guilty plea without holding an evidentiary hearing. Specifically, Welly argues that

his petition for post-conviction relief should have been granted because: (1) he

was denied effective assistance of counsel; (2) he was coerced into confessing to

the charge; and (3) newly discovered evidence proved his innocence. Regarding

his motion to withdraw his guilty plea, Welly argues that the trial court erred

because: (1) he was under the influence of Risperdal, which did not allow him to

think clearly during his change of plea hearing; (2) his low intelligence level

precluded him from entering into an intelligent plea; and (3) he was denied

effective assistance of counsel. We disagree.

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       {¶14} Initially, we note that Welly has combined two separate arguments

into one assignment of error. Loc.R. 11(A) states that “[e]ach assignment of error

must be separately argued in the briefs unless the same argument, and no other,

pertains to more than one assignment of error.” A petition for post-conviction

relief and a motion to withdraw a guilty plea are two separate vehicles available to

criminal defendants, each with its own distinct standard of review. While this sort

of argument is against our local rules, in the interest of justice, we elect to address

Welly’s arguments.

                         Petition for Post-Conviction Relief

       {¶15} R.C. 2953.21, Ohio’s post-conviction relief statute, provides those

convicted of a felony offense “ ‘a remedy for a collateral attack upon judgments of

conviction claimed to be void or voidable under the United States or the Ohio

Constitution.’ ” State v. Scott-Hoover, 3d Dist. Crawford No. 3-04-11, 2004-

Ohio-4804, ¶ 10, quoting State v. Yarbrough, 3d Dist. Shelby No. 17-2000-10,

2001 WL 454683, *3 (Apr. 30, 2001). “A petitioner must establish that there has

been a denial or infringement of his constitutional rights in order to prevail on a

petition for post-conviction relief.” State v. Wyerick, 3d. Mercer No. 10-07-23,

2008-Ohio-2257, ¶ 11. Further,

       [A] petition for post-conviction relief is subject to dismissal without
       a hearing when the record, including the dialogue conducted
       between the court and the defendant pursuant to Crim.R. 11,
       indicates that the petitioner is not entitled to relief and that the

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       petitioner failed to submit evidentiary documents containing
       sufficient operative facts to demonstrate that the guilty plea was
       coerced or induced by false promises.

State v. Kapper, 5 Ohio St.3d 36, 38 (1983).

       {¶16} “In reviewing whether the trial court erred in denying a petitioner’s

motion for post-conviction relief without a hearing, the appellate court applies an

abuse of discretion standard.” State v. Howald, 3d Dist. Union No. 14-08-23,

2008-Ohio-5404, ¶ 11, citing State v. Campbell, 10th Dist. Franklin No. 03AP-

147, 2003-Ohio-6305, citing State v. Calhoun, 86 Ohio St.3d 279, 284 (1999). A

trial court will be found to have abused its discretion when its decision is contrary

to law, unreasonable, not supported by the evidence, or grossly unsound. State v.

Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying

the abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58,

2013-Ohio-1939, ¶ 12.

       {¶17} “[I]n reviewing the documentary evidence in support of the petition,

the trial court may judge their credibility in determining whether to accept the

affidavits as true statements of fact for the purpose of showing substantive grounds

for relief.” Howald at ¶ 11, citing Calhoun at 284. The court should consider the

relevant factors when accessing the credibility of affidavits:

       (1) whether the judge reviewing the postconviction relief petition
       also presided at the trial, (2) whether multiple affidavits contain

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       nearly identical language, or otherwise appear to have been drafted
       by the same person, (3) whether the affidavits contain or rely on
       hearsay, (4) whether the affiants are relatives of the petitioner, or
       otherwise interested in the success of the petitioner’s efforts, and (5)
       whether the affidavits contradict evidence proffered by the defense
       at trial.

Calhoun at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756 (1st

Dist.1994). “Moreover, a trial court may find sworn testimony in an affidavit to

be contradicted by evidence in the record by the same witness, or to be internally

inconsistent, thereby weakening the credibility of that testimony.” Id.

       {¶18} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of the syllabus. “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Id. at paragraph three of the syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103 (1997).

       {¶19} Further, the court must look to the totality of the circumstances and

not isolated instances of an allegedly deficient performance. State v. Barnett, 3d

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Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 45. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’ ” Id., quoting Smith v.

Murray, 477 U.S. 527, 535, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

       {¶20} In reviewing an effective assistance of counsel challenge, we are

reminded that

       [j]udicial scrutiny of counsel’s performance is to be highly
       deferential, and reviewing courts must refrain from second-guessing
       the strategic decisions of trial counsel. To justify a finding of
       ineffective assistance of counsel, the appellant must overcome a
       strong presumption that, under the circumstances, the challenged
       action might be considered sound trial strategy.

State v. Carter, 72 Ohio St.3d 545, 558 (1995).

       {¶21} If the defendant’s ineffective assistance of counsel claim is related to

a guilty plea, then the defendant must show that “there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty * * *.” Hill v.

Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1987).

       {¶22} When a defendant enters a plea of guilty, he is making a “complete

admission of the defendant’s guilt.” Crim.R. 11(B)(1). “A criminal defendant

who pleads guilty is limited on appeal; he may only attack the voluntary, knowing,

and intelligent nature of the plea and ‘may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry

of the guilty plea.’ ” State v. Mata, 3d Dist. Allen 1-04-54, 2004-Ohio-6669, ¶ 12,

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quoting State v. Spates, 64 Ohio St.3d 269, 272 (1992), quoting Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). “A guilty

plea constitutes a waiver of a claim of ineffective assistance of counsel unless

counsel’s conduct affected the voluntary nature of the plea.” Mata at ¶ 13, citing

Spates at 273.

       {¶23} Upon a review of the record, including Welly’s attached affidavit,

Welly has failed to show how his trial counsel affected the voluntariness of his

plea. The only “evidence” of any alleged wrongdoing was contained in Welly’s

affidavit, but the trial court did not find his affidavit to be credible. In its entry

denying Welly’s petition, the court found that the affidavit was not “clear and

convincing evidence of actual innocence.” (Docket No. 42, p. 5).

       {¶24} Further, Welly’s own statements during the change of plea hearing

were inconsistent with his claims in his affidavit. Although Welly had earlier filed

a motion to remove his trial counsel, at the change of plea hearing, Welly stated

that he was satisfied with his counsel’s advice. Moreover, the trial court, knowing

the mandatory sentence involved, made sure that Welly was entering into the plea

voluntarily. On at least three separate occasions during the hearing, the trial court

asked Welly if entering a guilty plea is what Welly wanted to do. Each time,

Welly responded by saying “yes, sir.”




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       {¶25} Welly also claimed that he was unable to enter a plea voluntarily

because of the effects of the drug Risperdal, which he had taken before the

hearing. This claim is clearly unsupported by the record. During the hearing, the

court asked Welly if he was, at that time, under the influence of alcohol or any

other drug. Welly stated that he had taken Risperdal. Next, the trial court asked

whether Risperdal either helped or hindered Welly’s ability to think clearly.

Welly responded that the drug helped him think clearly.

       {¶26} In short, Welly has failed to show how his trial counsel’s

representation fell below any objective standards of reasonable representation.

Other than his statements contained in his affidavit, Welly failed to present any

evidentiary documents containing sufficient operative facts to support his claim.

Thus, the trial court did not abuse its discretion in denying Welly’s petition

regarding his ineffective assistance of counsel arguments.

       {¶27} Welly also argues that his petition should be granted because he was

coerced into confessing to the charge by the interrogating officer. In support of

this claim, Welly points to his affidavit where he stated that the officer threatened

to make things worse if Welly did not confess. As we stated supra, the trial court

did not find Welly’s affidavit to be credible. Therefore, he failed to submit the

necessary evidence needed to support a petition for post-conviction relief.




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Accordingly, the trial court did not abuse its discretion in denying Welly’s petition

in this regard.

       {¶28} Finally, Welly argues that he should have been granted an

evidentiary hearing because of newly discovered evidence that proved his

innocence. In support of this claim, Welly submitted the affidavit of Toombs.

The trial court conducted the same credibility determination as it had with Welly’s

and found that Toombs’s affidavit lacked credibility. Specifically, the trial court

noted that the statements contained in the affidavit were hearsay. Upon review of

the statements contained in Toombs’s affidavit, we highlight that not only are the

statements hearsay, but some are even hearsay contained within hearsay (e.g., the

victim’s statements to his mother, which were then stated by the mother to

Toombs). Additionally, although not highlighted by the trial court, we find that

Toombs’s affidavit is less credible given her status as Welly’s sister, and the

statements contained in the affidavit clearly show that she was very interested in

the success of Welly’s case. See Calhoun, 86 Ohio St.3d at 285, citing Moore, 99

Ohio App.3d at 754-756. Because Welly’s argument was solely supported by

Toombs’s affidavit, he failed to present sufficient documentary evidence to

warrant a hearing on his petition. Accordingly, the trial court did not abuse its

discretion in denying Welly’s petition without a hearing in regard to the newly

discovered evidence argument.


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                          Motion to Withdraw Guilty Plea

       {¶29} Appellate review of the trial court’s denial of a motion to withdraw a

guilty or no contest plea is limited to whether the trial court abused its discretion.

See State v. Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995), citing State v.

Smith, 49 Ohio St.2d 261, 264 (1977). An abuse of discretion connotes more than

an error of law or judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Nagle, 11th Dist. Lake No. 99-L-089, 2000

WL 777835, *4 (June 16, 2000), citing Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). When applying an abuse of discretion standard, a reviewing

court may not simply substitute its judgment for that of the trial court. Id.

       {¶30} 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.” The party moving to withdraw the plea of

guilty bears the burden of establishing a manifest injustice. See Smith at paragraph

one of the syllabus. A manifest injustice is an exceptional defect in the plea

proceedings, State v. Vogelsong, 3d Dist. Hancock No. 5-06-60, 2007-Ohio-4935,

¶ 12, or a “ ‘clear or openly unjust act.’ ” State v. Walling, 3d Dist. Shelby No.

17-04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kriener, 83 Ohio




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St.3d 203, 208 (1998). Accordingly, a post-sentence motion to withdraw a guilty

plea is only granted in “extraordinary cases.” Smith at 264.

       {¶31} In State v. Carter, 3d Dist. Allen No. 1-11-36, 2011-Ohio-6104, this

court stated that “[i]t has long been held that a trial court has no authority to even

consider a motion to withdraw a plea after a conviction has been affirmed; or, if

there was no appeal, after the time for filing the original appeal has passed.” Id. at

¶ 11; see also State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of

Common Pleas, 55 Ohio St.2d 94, 97-98 (1978) (“[Crim.R. 32.1 does not confer

upon the trial court the power to vacate a judgment which has been affirmed by

the appellate court, for this action would affect the decision of the reviewing court,

which is not within the power of the trial court to do.”). Under this well-settled

law, the trial court could not consider Welly’s motion to withdraw his guilty plea

because this court had previously affirmed his plea and resulting conviction in

Welly I.

       {¶32} Even if the trial court had the authority to consider the motion,

Welly’s motion, at least in regard to his arguments about his mental state, would

still fail based on the doctrine of res judicata. In State v. Szefcyk, 77 Ohio St.3d 93

(1996), the Supreme Court of Ohio found that a final judgment of conviction bars

a defendant from raising an issue in any subsequent proceeding that could have

been raised in a prior proceeding. Id. at syllabus. As a result, res judicata


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precludes all claims raised in a Crim.R. 32.1 motion that could have been raised in

a prior proceeding. State v. Sanchez, 3d Dist. Defiance No. 4-06-31, 2007-Ohio-

218, ¶ 18; State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, ¶ 7 (10th

Dist.); State v. McDonald, 11th Dist. Lake No. 2003-L-155, 2004-Ohio-6332, ¶

22. Here, Welly could have raised the issues of his low intelligence and the fact

that he was not thinking clearly due to the Risperdal in his initial appeal.

However, he did no such thing. As a result, res judicata bars his claim related to

these arguments in this appeal.

       {¶33} Welly’s ineffective assistance of counsel argument is not barred by

res judicata because it is “based on evidence outside the record.” State v. Bradley,

3d. Dist. Union No. 14-08-27, 2008-Ohio-6071, ¶ 7, citing State v. Medsker, 3d

Dist. Allen No. 1-04-24, 2004-Ohio-4291.      However, as we found supra, Welly

was not denied effective assistance of counsel. Thus, the court did not abuse its

discretion by denying Welly’s motion to withdraw his guilty plea.

       {¶34} Accordingly, we overrule Welly’s sole assignment of error.

       {¶35} Having found no error prejudicial to the appellant, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr


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