[Cite as State v. Rice, 2017-Ohio-122.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
          Plaintiff-Appellee                    :   Appellate Case No. 27045
                                                :
 v.                                             :   Trial Court Case No. 2011-CR-3213
                                                :
 LAWRENCE E. RICE, JR.                          :   (Criminal Appeal from
                                                :   Common Pleas Court)
          Defendant-Appellant                   :
                                                :

                                           ...........

                                          OPINION

                            Rendered on the 13th day of January, 2017.

                                           ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                          .............




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Lawrence E. Rice, Jr., appeals from the decision of the

Montgomery County Court of Common Pleas overruling his post-sentence motion to

withdraw no contest plea. For the reasons outlined below, the judgment of the trial court

will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On September 23, 2011, the Montgomery County Grand Jury returned an

indictment charging Rice with one count of possessing heroin in violation of R.C.

2925.11(A); one count of possessing marijuana in violation of R.C. 2925.11(A); and one

count of possessing drug paraphernalia in violation of R.C. 2925.14(C)(1). The drugs

and drug paraphernalia were discovered as the result of an open air canine sniff of a

vehicle Rice was driving after he was stopped for a window tint violation and for making

an improper left-hand turn.

       {¶ 3} Following his indictment, Rice, with the assistance of counsel, filed multiple

motions to suppress arguing that the police lacked proper justification for stopping and

searching his vehicle. Rice also sought to suppress any statements he made to police

after his arrest and challenged the reliability of the open air canine sniff of his vehicle.

The trial court held a hearing on Rice’s motion to suppress, which it subsequently denied

on June 5, 2012.

       {¶ 4} Thereafter, Rice entered a no contest plea to the possession of heroin charge

in exchange for the State dismissing the other two charges for possessing marijuana and

drug paraphernalia. After accepting his plea, on September 27, 2012, the trial court
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sentenced Rice to four years in prison and suspended his driver’s license for a period of

six months.

       {¶ 5} Rice appealed from his conviction challenging the trial court’s decision

overruling his motion to suppress. Rice argued that his motion to suppress should have

been granted because the police did not possess a reasonable, articulable suspicion to

initiate a traffic stop of his vehicle. Rice also challenged the reliability of the open air

canine sniff performed on his vehicle.      On March 22, 2013, we issued an opinion

affirming the trial court’s decision overruling Rice’s motion to suppress. State v. Rice, 2d

Dist. Montgomery No. 25438, 2013-Ohio-1070.

       {¶ 6} Over two and a half years later, on November 30, 2015, Rice filed a pro se

motion to withdraw his no contest plea arguing that his plea was not knowingly and

voluntarily entered because his trial counsel had rendered ineffective assistance in

handling his motion to suppress. Specifically, Rice alleged that his trial counsel failed to

fully investigate and explain the legal concept of probable cause and that such failure

caused him to be uninformed at the time he entered his no contest plea. Rice also

alleged that the trial court had a duty to investigate and explain the issue of probable

cause to him. The State did not file a response to Rice’s motion.

       {¶ 7} On February 5, 2016, the trial court issued a written decision overruling

Rice’s motion to withdraw his no contest plea without holding a hearing. In overruling

the motion, the trial court determined that Rice had failed to establish a manifest injustice

warranting the withdrawal of his plea. Rice now appeals from that decision, raising one

assignment of error for review.
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                                 Assignment of Error

      {¶ 8} Rice’s sole assignment of error is as follows:

      THE TRIAL COURT DENIED APPELLANT DUE PROCESS AND ERRED

      IN OVERRULING THE MOTION TO WITHDRAW PLEA WITHOUT A

      HEARING.

      {¶ 9} Under his sole assignment of error, Rice contends that his plea withdrawal

motion set forth issues warranting a hearing on the motion, and that the trial court erred

in failing to hold such a hearing. We disagree.

      {¶ 10} “We review a trial court’s ruling on a post-sentence motion to withdraw a

plea and its decision whether to grant a hearing for an abuse of discretion.” State v.

Tunstall, 2d Dist. Montgomery No. 23730, 2010-Ohio-4926, ¶ 9, citing Xenia v. Jones, 2d

Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. An abuse of discretion is the trial

court’s “ ‘failure to exercise sound, reasonable, and legal decision-making.’ ” State v.

Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 16, quoting State v.

Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62. (Other citation omitted.)

“Absent an abuse of discretion on the part of the trial court in making the ruling, its

decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

      {¶ 11} Crim.R. 32.1 provides that a trial court may grant a defendant’s post-

sentence motion to withdraw a guilty plea only to correct a manifest injustice.

Accordingly, a defendant who moves to withdraw his plea bears the burden of

establishing a manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.

19013, 2002 WL 940186, * 1 (May 10, 2002), citing State v. Smith, 49 Ohio St.2d 261,
                                                                                            -5-


361 N.E.2d 1324 (1977), paragraph one of the syllabus.              “ ‘A “manifest injustice”

comprehends a fundamental flaw in the path of justice so extraordinary that the defendant

could not have sought redress from the resulting prejudice through another form of

application reasonably available to him or her.’ ” State v. Brooks, 2d Dist. Montgomery

No. 23385, 2010-Ohio-1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No.

17499, 1999 WL 957746, *2 (Aug. 20, 1999). Under this standard, “a postsentence

withdrawal motion is allowable only in extraordinary cases.” (Citation omitted.) Smith

at 264.

       {¶ 12} It is well established that “ ‘[i]neffective assistance of counsel can constitute

manifest injustice sufficient to allow the post-sentence withdrawal of [a] plea.’ ” State v.

Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton,

153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). To establish

a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged

test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Specifically, the defendant must show that: (1) defense counsel’s performance was so

deficient that he was not functioning as the counsel guaranteed under the Sixth

Amendment to the United States Constitution; and (2) that defense counsel’s errors

prejudiced the defendant. Id. at 687. With regards to a plea withdrawal motion, to

demonstrate prejudice, the defendant must show that “there is a reasonable probability

that, but for counsel’s errors, the defendant would not have entered a plea.” State v.

Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 17, citing Strickland. “The

failure to make either showing defeats a claim of ineffectiveness of trial counsel.

Strickland at 687.
                                                                                           -6-


       {¶ 13} A hearing on a post-sentence plea withdrawal motion is not necessary if the

facts alleged by the defendant, even if accepted as true, would not require the court to

grant the motion to withdraw the plea. State v. Burkhart, 2d Dist. Champaign No. 07-

CA-26, 2008-Ohio-4387, ¶ 12; State v. Mogle, 2d Dist. Darke Nos. 2013-CA-4, 2013-CA-

5, 2013-Ohio-5342, ¶ 17. In other words, “[t]o obtain a hearing, ‘a movant must establish

a reasonable likelihood that the withdrawal is necessary to correct a manifest injustice[.]’ ”

Tunstall, 2d Dist. Montgomery No. 23730, 2010-Ohio-4926 at ¶ 9, quoting State v.

Whitmore, 2d Dist. Clark No. 06-CA-50, 2008-Ohio-2226, ¶ 11. “[W]e have held that no

hearing is required on a post-sentence motion to withdraw a plea where the motion is

supported only by the movant’s own self-serving affidavit, at least when the claim is not

supported by the record.” (Citations omitted.) State v. Stewart, 2d Dist. Greene No.

2003-CA-28, 2004-Ohio-3574, ¶ 6.

       {¶ 14} In this case, other than the bare assertion in his motion that trial counsel

failed to fully investigate and explain the legal concept of probable cause, Rice offers

nothing, not even a self-serving affidavit, to substantiate his claim that counsel failed in

that regard. We also note that the motion to suppress filed by Rice’s trial counsel on

October 6, 2011, which challenged the search and seizure of Rice’s vehicle, specifically

recited the law as it relates to probable cause and argued that Rice’s seizure was without

probable cause. This demonstrates that the issue of probable cause was known by

Rice’s trial counsel and was not overlooked as Rice implies in his motion. We further

note that Rice does not allege in his motion that he would not have pled no contest but

for his counsel’s alleged failure with regards to investigating and explaining probable

cause. Thus, Rice has not established either of the two prongs in Strickland that are
                                                                                           -7-


required to succeed on an ineffective assistance claim. Accordingly, Rice’s motion fails

to establish a viable ineffective assistance claim that would constitute a manifest injustice

necessitating the withdrawal of his no contest plea.

       {¶ 15} Moreover, Rice’s allegations regarding his trial counsel’s explanation and

investigation of probable cause, or lack thereof, rely on matters outside the record. This

court has held that matters outside the record that allegedly corrupted the defendant’s

choice to enter a guilty or no contest plea so as to render that plea less than knowing and

voluntary, such as ineffective assistance provided by a defendant’s trial counsel, are

proper grounds for post-conviction relief pursuant to R.C. 2953.21 and that the availability

of that relief removes defendant’s claims from the type of extraordinary circumstances

that demonstrate a manifest injustice, which is required for Crim.R. 32.1 relief. Hartzell,

2d Dist. Montgomery No. 17499, 1999 WL 957746 at *2. Accord State v. Moore, 2d Dist.

Montgomery No. 24378, 2011-Ohio-4546, ¶ 13-15.

       {¶ 16} As for Rice’s claim that the trial court failed to explain probable cause to him

at the plea hearing, we note that Rice has provided no evidence of such a failure, as he

did not file a transcript of the plea hearing with this court as required by App.R. 9. “[A]n

appellate court cannot determine whether manifest injustice occurred at a plea hearing,

where the defendant fails to provide a transcript[.]” State v. Kerby, 2d Dist. Clark No. 09-

CA-39, 2010-Ohio-562, ¶ 17, citing State v. Smith, 11th Dist. Trumbull No. 2007-T-0076,

2008-Ohio-1501, ¶ 20. In the absence of a plea hearing transcript, we must presume

the regularity of the proceedings below. (Citation omitted.) State v. Wright, 2d Dist.

Montgomery Nos. 23330, 23403, 23404, 23521, 2010-Ohio-1899, ¶ 14; Moore at ¶ 11.

Accordingly, we must presume the regularity of the proceedings, i.e., that the trial court
                                                                                          -8-


complied with all requirements of Crim.R. 11(C), thus indicating that Rice’s no contest

plea was knowingly and voluntarily entered.

       {¶ 17} Lastly, we note that Rice’s motion to withdraw his plea was filed over two

and a half years after we affirmed his direct appeal and over three years after he was

sentenced.    “Although Crim. R. 32.1 does not contain a time limit for filing a post-

sentence motion to withdraw a plea, a trial court may take into consideration the passage

of time between the entry of the plea and a defendant’s attempt to withdraw it.” (Citations

omitted.) Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733 at ¶ 9. “[A]n undue

delay between the occurrence of the alleged cause of a withdrawal of [the] plea and the

filing of a Crim.R. 32 motion is a factor adversely affecting the credibility of the movant

and militating against the granting of the motion.” State v. Harden, 2d Dist. Montgomery

No. 22839, 2009-Ohio-3431, ¶ 7, citing Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324.

Here, Rice has failed to provide any explanation for the delay in filing his motion, which

further supports the trial court’s decision to overrule it.

       {¶ 18} For the foregoing reasons, we find the trial court did not abuse its discretion

in overruling Rice’s motion to withdraw his no contest plea without a hearing, as we agree

that Rice failed to establish a reasonable likelihood that the withdrawal of his plea was

necessary to correct a manifest injustice.

       {¶ 19} Rice’s sole assignment of error is overruled.



                                         Conclusion

       {¶ 20} Having overruled Rice’s sole assignment of error, the judgment of the trial

court is affirmed.
                                                -9-


                                .............



DONOVAN, P.J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Jay A. Adams
Hon. Gregory F. Singer
