[Cite as State v. Crankfield, 2014-Ohio-2624.]
                             STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                   )
                                                 )   CASE NO.     13 MA 122
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )   OPINION
                                                 )
JABRE CRANKFIELD,                                )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Youngstown
                                                     Municipal Court, Case No. 06CRB2355.


JUDGMENT:                                            Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                              Attorney Dana Lantz
                                                     Prosecuting Attorney
                                                     Attorney Kathleen Thompson
                                                     Assistant Prosecuting Attorney
                                                     26 South Phelps Street, 4th Floor
                                                     Youngstown, Ohio 44503

For Defendant-Appellant:                             Attorney Rhys Cartwright-Jones
                                                     42 North Phelps Street
                                                     Youngstown, Ohio 44503


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                     Dated: June 3, 2014
VUKOVICH, J.
                                                                                     -2-


        {¶1}   Defendant-appellant Jabre Crankfield appeals the decision of the
Youngstown Municipal Court denying his post-sentence motion to withdraw a no
contest plea. His motion claimed that his attorney misadvised him that the offense of
child endangering was expungeable when in fact it was not and that he would not have
pled to the charge had he known the offense was not subject to expungement. On
appeal, he argues only that the trial court erred in failing to hold a hearing before
denying his plea withdrawal motion. For the following reasons, the judgment of the
trial court is affirmed.
                                STATEMENT OF THE CASE
        {¶2}   On September 20, 2006, a child endangering complaint was filed as a
result of a September 16 incident involving a six-month old child. It was alleged that
appellant violated R.C. 2919.22(A), a first degree misdemeanor, which deals with a
parent, guardian, custodian, person with custody or control, or person in loco parentis
who creates a substantial risk to the health or safety of a child by violating a duty of
care, protection, or support.
        {¶3}   On September 26, 2006, the warrant was served, the arraignment was
held, a personal recognizance bond was issued, and appellant pled no contest to the
charge. A presentence investigation was ordered. The trial court’s December 4, 2006
sentencing entry imposed a $250 fine, eighteen months of basic probation, reporting
until the completion of behavioral counseling, and 100 hours of community service in a
children’s program. Appellant’s probation was successfully terminated on May 26,
2008.
        {¶4}   On March 18, 2013, nearly five years after his final discharge, appellant
with different counsel filed an application to seal the record of this conviction under
R.C. 2953.32. An amended application was later filed. A hearing was scheduled for
July 1, 2013. On that day, counsel withdrew the application to seal, apparently upon
realizing that the offense was not subject to expungement.
        {¶5}   On July 9, 2013, approaching seven years since the plea was entered,
appellant filed a plea withdrawal motion under Crim.R. 32.1 and sought a hearing.
                                                                            -3-
The motion explained that appellant received incorrect legal advice from the
attorney who represented him at his plea hearing and he thus entered his plea under
the impression that the offense would be expungeable. He cited the United States
Supreme Court’s Padilla case in support of his claim that the failure to properly advise
on a crucial collateral civil consequence invalidates a plea. Appellant’s affidavit was
attached to the motion wherein he asserted that his attorney advised that the charge
would be expungeable and that if he had known that it was not, then he would not
have entered the plea. The trial court denied the plea withdrawal motion one day after
it was filed, and appellant filed a timely appeal.
                                    ASSIGNMENT OF ERROR
        {¶6}    Appellant’s sole assignment of error provides:
        {¶7}    “THE TRIAL COURT ERRED IN DENYING MR. CRANKFIELD’S
MOTION TO VACATE HIS GUILTY PLEA WITHOUT A HEARING.”
        {¶8}    Appellant urges that his affidavit contained sufficient evidence of
ineffective assistance of counsel at the plea stage so that a hearing was required on
his plea withdrawal motion. He thus essentially contends the mere allegations that
counsel advised him the offense would be subject to expungement and that he would
not have entered a plea had he known the offense was not expungeable automatically
require an evidentiary hearing. He asserts that his case is comparable to our recent
Howard case and that the incorrect advice on expungement is similar to the incorrect
advice on automatic deportation in the United States Supreme Court’s Padilla case.
        {¶9}    The city responds that appellant’s affidavit failed to show a manifest
injustice. The city states that appellant did not submit a transcript of the plea hearing
and thus we are to presume the regularity of those proceedings. However, appellant
does not take issue with the trial court’s plea colloquy or claim that improprieties
occurred at the plea hearing, and he does not suggest that counsel’s ineffectiveness
occurred on the record.1

        1
          The city’s response brief also claims that appellant was barred from filing his motion due to the
time limits for post-conviction relief petitions in R.C. 2953.21 and the failure to show an exception to the
time limitations in R.C. 2953.23. However, it is well-established that a Crim.R. 32.1 motion to withdraw
a guilty plea is a separate and distinct remedy from a civil post-conviction relief petition and that R.C.
2953.21 and R.C 2953.23 do not govern motions under Crim.R. 32.1. See State v. Bush, 96 Ohio St.3d
                                                                                              -4-
       {¶10} “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.” Crim.R. 32.1. This rule establishes a fairly stringent standard for deciding a
post-sentence motion to withdraw a guilty plea, which is met only in extraordinary
circumstances. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The
defendant has the burden of establishing the existence of manifest injustice. Id. The
decision whether to grant or deny a post-sentence motion to withdraw a plea is within
the trial court's sound discretion, and the good faith, credibility, and weight of the
movant's assertions in support of the motion are matters to be resolved by that court.
Id. Undue delay between the event providing the cause for withdrawal and the filing of
the motion weighs against the granting of the motion. Id.
       {¶11} A defendant asserting ineffective assistance in the advice rendered at
the plea stage must show deficient performance and prejudice under the test set forth
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 203 (1985).
See Hill v. Lockhart, 474 U.S 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The
Hill Court explained that the prejudice prong in such context requires the defendant to
show that, but for the deficient performance of counsel, there is a reasonable
probability that he would not have pled guilty and would have insisted on going to trial.
Id. at 59. Notably, the Court added that this will often involve an analysis of whether
the correct information would have changed counsel’s advice regarding the plea or
whether it would have affected the result of a future trial, and the Court contemplated
that predictions would have to be made as to the result of a possible trial. Id. at 59-60.
       {¶12} In Hill, the trial court had denied a request for habeas without a hearing
where the defendant alleged that his attorney provided erroneous advice as to
eligibility for parole under the sentence agreed to in the plea agreement. The United
States Court refused to determine whether erroneous advice by counsel as to parole
eligibility can be deemed constitutionally ineffective assistance of counsel because the
Court found that the allegations did not satisfy the prejudice prong. The Court noted


235, 2002–Ohio–3993, 773 N.E.2d 522, ¶ 11-14. Although timing is a consideration, Crim.R. 32.1 has
                                                                                        -5-
that the petitioner did not allege that, had counsel correctly informed him about his
parole eligibility date, he would have pled not guilty and insisted on going to trial. The
Court also stated that the petitioner alleged no special circumstances that might
support the conclusion that he placed particular emphasis on his parole eligibility in
deciding whether or not to plead guilty. The Court concluded that the petitioner's
mistaken belief that he would become eligible for parole after serving a third of his
sentence would have affected not only his calculation of the time he likely would serve
if sentenced pursuant to the plea agreement, but also his calculation of the time he
likely would serve if he were convicted after trial. Id. at 60.
        {¶13} Unlike the Hill defendant, appellant did allege that he would not have
pled guilty had counsel not rendered the erroneous advice that the offense was
expungeable. However, appellant did not specify that he would have taken the case to
trial. Although he may believe this is implicit, different plea bargaining tactics are also
an option. Notably, appellant pled no contest on the same day that he was served
with the warrant and the same day as his arraignment (showing further negotiations
with the state were an alternative option to taking the case to trial). (This observation
relates to a further analysis infra regarding appellant’s failure to make any reference to
a potential trial strategy or defense to help establish a manifest injustice.) Appellant
also did not allege special circumstances that support a conclusion that he placed
particular emphasis on eligibility for expungement in the future. See id. And, his
mistaken belief as to eligibility would have affected both his future after a no contest
plea and his future had he been convicted after a trial. See id. Thus, the Hill case
does not resolve appellant’s withdrawal motion merely because he did allege that he
would not have pled guilty.
        {¶14} In the Padilla case relied upon by appellant, the defendant argued in
post-conviction filings that his attorney told him that he did not have to worry about his
immigration status upon a plea because he had been in the country for so long. In
actuality, that defendant was subject to automatic deportation.            The Kentucky
Supreme Court found that the defendant was not entitled to relief and that an


no absolute time limits. Id. at ¶ 14.
                                                                                     -6-
evidentiary hearing was required, ruling that neither the failure to advise on the
possibility of removal nor the incorrect advice is a basis for relief as the Sixth
Amendment does not protect a defendant from erroneous advice concerning
“collateral consequences” of a plea.
      {¶15} The United States Supreme Court refused to address whether collateral
consequences advice (versus direct consequences advice) results in ineffective
assistance at a plea because of the unique nature of deportation, i.e. its close
connection to the criminal process. Padilla v. Kentucky, 559 U.S. 356, 365-366, 130
S.Ct. 1473, 176 L.Ed.2d 284 (2010). The Court concluded that counsel must advise a
pleading client of deportation consequences, the deportation consequences of
pleading to a drug charge were straightforward, and thus there was clearly deficient
performance. Id. at 369. The Court characterized the prejudice prong as an inquiry
into whether the results of the proceedings would have been different. Id. at 366. The
Court did not then address the question of prejudice to the defendant as it was not
passed upon below. Id. at 369.
      {¶16} Thus, Padilla only provides some support for appellant’s argument under
the deficient performance prong of the ineffective assistance test. The term “some” is
used in the preceding sentence because the lack of the future ability to apply for
discretionary expungement is not as uniquely and closely connected to the criminal
process as automatic deportation due to the conviction of certain listed offenses.
      {¶17} “[E]xpungement is a privilege, not a right.” State v. Futrall, 123 Ohio
St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. Expungement under R.C 2953.32 is
a civil post-conviction remedy. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009,
772 N.E.2d 1172, ¶ 19. The Supreme Court has pointed out that an application to seal
a record of conviction may not be filed until one year after a misdemeanant’s final
discharge (or three years for a felon). Id., citing R.C. 2953.32(A)(1). “In this regard,
an application to seal a record of conviction is a separate remedy, completely apart
from the criminal action, and is sought after the criminal proceedings have concluded.”
Id. In LaSalle, the Court concluded that the applicable expungement statute is that in
                                                                                        -7-
effect at the time the application for expungement is filed. Id. (the new law would
not apply back to the date of application as it is not retrospective).
       {¶18} “[E]xpungement is an act of grace created by the state.”             State v.
Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996) (and no due process right to
advance notice of whether state will appear at the hearing and present arguments).
The expungement process allows the trial court to make “largely subjective
determinations regarding whether the applicant is rehabilitated and whether the
government's interest in maintaining the record outweighs the applicant's interest in
having the record sealed.” Id. at 640 (and the court can gather information from the
applicant, the prosecutor, and through independent court investigation by way of
probation officials).
       {¶19} In Xie, the appellate court reversed the denial of a pre-sentence plea
withdrawal motion where defense counsel had misinformed defendant of his minimum
parole eligibility, which the defendant allegedly relied upon in entering the plea. State
v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). The Ohio Supreme Court
applied the Strickland test of deficient performance and prejudice. Id. at 524. The
Court suggested that parole eligibility is not a subject conducive to concrete advice as
the 80% reduction for good behavior may never occur. Id. at 524-525, fn.2. The Court
then stated that the appellate court should not have second-guessed the trial court’s
conclusion that the defendant failed to show prejudice as the trial court can choose to
reject the defendant’s contention that he would not have pled guilty but for the
misinformation. Id. at 525-527.
       {¶20} Thus,      even   under    the    liberal   pre-sentence    motion   practice,
misinformation on future possibilities at the time of plea does not require withdrawal
merely because the defendant states that he would not have pled. Still, Xie did not
involve a failure to hold an evidentiary hearing.
       {¶21} In Padilla, the Court refused to find prejudice from the mere incorrect
advice prior to the plea as the issue was not ruled upon below. In remanding, the
Padilla Court did not discuss a hearing requirement even though the Kentucky court
                                                                                   -8-
did not hold one. This suggests that prejudice is not automatic from the mere claim
that one would not have pled if they knew the right advice.
       {¶22} In our Howard case relied upon by appellant, the defendant had a factual
argument regarding his guilt of carrying a concealed weapon as he wished to show
that his permit was not suspended at the time of his arrest, and he had filed a motion
to dismiss the charge which was denied.          He then entered an Alford plea, and
appealed on the grounds presented in the motion to dismiss. This court explained that
his plea waived that argument. See State v. Howard, 7th Dist. No. 10MA154, 2011-
Ohio-4754.    Appellant then sought to withdraw his plea, urging that his attorney
informed him that an Alford plea would allow him to appeal the factual issue and that
he entered the plea with the intent to appeal that issue. The trial court denied the
post-sentence motion without an evidentiary hearing, and the defendant appealed to
this court.
       {¶23} We stated that a hearing on a post-sentence Crim.R. 32.1 motion is not
automatically required. State v. Howard, 7th Dist. No. 12MA41, 2013-Ohio-1437, ¶ 10,
citing State v. Snyder, 7th Dist. No. 08-JE-27, 2009-Ohio-4813, ¶ 15. A hearing is only
required if the facts alleged by the defendant and accepted as true by the trial court
would require the court to permit a guilty plea to be withdrawn. Id. Thus, a defendant
is only entitled to a hearing on a motion to withdraw if the trial court determines the
defendant alleged facts sufficient to prove a manifest injustice. Id.
       {¶24} We then pointed out that a defendant is entitled to the effective
assistance of competent counsel during the plea bargaining process. Id. at ¶ 20, citing
Lafler v. Cooper, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (defendant has the
right to effective assistance of counsel in considering whether to accept plea, and thus,
the two-part Strickland test applies, requiring a showing of deficient performance and
prejudice; where defendant rejected plea based on incorrect legal advice on intent and
lost at trial). We continued by explaining that erroneous advice by counsel at the plea
stage, which induced a decision by a defendant that results in prejudice, is a ground
for vacating the plea. Howard, 7th Dist. No. 12MA41, ¶ 21.
                                                                                        -9-
       {¶25} We then found that if the statements in Howard’s affidavit were true,
then his attorney rendered incorrect advice and he only entered his plea because he
thought he would have a chance to raise his argument concerning his concealed carry
license on appeal. Id. at ¶ 22. We pointed out that the timing of the plea withdrawal
motion and the case history also supported Howard’s position. Id. at ¶ 23. We also
disposed of the state’s argument that even if counsel rendered erroneous advice there
would be no prejudice to Howard, concluding that it appeared that he did have a valid
concealed carry license at the time of arrest. Id. at ¶ 25. We concluded that the trial
court abused its discretion in denying Howard’s motion to withdraw his plea without
holding a hearing, and we reversed and remanded for an evidentiary hearing on the
plea withdrawal motion.
       {¶26} Thus, in Howard, the defendant explained his lost defense, which he had
presented to the trial court from the beginning and which appeared potentially
meritorious. The inability to maintain that defense when counsel said he could was the
difference between conviction and acquittal. That fact was pertinent to prejudice and
to the conclusion that there could be a manifest injustice in that case, requiring a
hearing. Here, there is no statement regarding what appellant’s defense would have
been had he gone to trial. And, the advice in the Howard case dealt directly with the
motion to dismiss filed in the criminal case and the ability to appeal the issues raised in
that motion in the criminal direct appeal.        Thus, Howard involved legal advice
concerning a direct consequence in the criminal action at hand, whereas here,
appellant is admittedly concerned only with a collateral civil remedy.
       {¶27} We note that the Eighth District has stated that a trial court can deny a
plea withdrawal motion without an evidentiary hearing where the defendant claimed
that he would not have pled guilty if he knew he would lose his teaching certificate,
noting the myriad effects following a conviction. City of Shaker Hts v. Elder, 8th Dist.
No. 74242 (July 1, 1999) (although that defendant was not actively misadvised of the
collateral consequences). The Fifth District found no hearing was required before
denying the plea withdrawal motion where the defendant complained that a new law
eliminated the ability to expunge a domestic violence conviction. State v. Rose, 5th
                                                                            -10-
Dist. No. 04-CA-C-04-027, 2004-Ohio-4433, ¶ 12-15 (noting that the defendant
was not misinformed at the time of the plea and that the right to expunge is
discretionary). See also City of Maple Heights v. McCants, 8th Dist. No. 80128 (Mar.
14, 2002) (no vested right, mere expectancy interest that expungement may be
possible; change in law does not invalidate plea even if prosecutor said it could be
expunged in the plea negotiations). Although Rose did not contain misinformation by
counsel, it did deal with a pleading defendant’s reliance on the law that he could have
his conviction expunged and a subsequent change in the law eliminating
expungement.
        {¶28} We also note that it is debatable whether misstatements on basic
collateral civil consequences would even constitute deficient performance under
Strickland.2 As aforementioned, eligibility to attempt expungement in the future (which
can change at the whim of the legislature) is not akin to automatic deportation on the
conviction of a drug crime. Still, the fact that this case involves only a collateral civil
consequence will be considered in evaluating the totality of the circumstances as to
the manifest injustice allegation at issue here.
        {¶29} Appellant pled no contest to first-degree misdemeanor child endangering
in 2006, and the complaint specified that the victim was six months old. The law in
effect at the time of appellant’s plea (and which is still in effect) stated that the
expungement provisions would not apply to:                        “Convictions of an offense in
circumstances in which the victim of the offense was under eighteen years of age
when the offense is a misdemeanor of the first degree or a felony.” R.C. 2953.26(D)
(former), (F) (amended to permit expungement of non-support convictions). A first

        2
          See, e.g., Chaidez v. United States, 113 S.Ct. 1103, 1112, 185 L.Ed.2d 149 (2013) fn.13
(recapping Padilla, noting deportation was not suited to the “collateral versus direct distinction,” and
expressing that Padilla was a special situation); Padilla, 559 U.S. at 365-366 (stating that the “collateral
versus direct distinction [was] ill suited to that deportation case as deportation was unique and
particularly severe), fn.8 (noting the disagreement among courts how to distinguish between direct and
collateral consequences of a conviction), and 388-392, fn.1 (Scalia, J., dissenting) (stating that
misadvice on collateral consequences is not a constitutional issue requiring application of the Strickland
test and deportation should not be an exception and noting that the Court has suggested that
awareness of “direct consequences” is all that is required to validate plea); Hill, 474 U.S. at 57, 60
(declining to rule on whether advice about collateral consequences falls outside the Sixth Amendment's
scope and thus also refusing to rule on whether appellate court correctly held that parole eligibility is a
mere collateral consequence not subject to a Strickland analysis).
                                                                         -11-
degree misdemeanor involving a minor victim has been a bar to expungement
since the enactment of 1999 S 13, which went into effect on March 23, 2000.
        {¶30} Taking appellant’s affidavit as true, there was a rendering of incorrect
legal advice regarding expungement and the law upon which the advice was given
was clear. Yet, the mere claim in an affidavit that one would not have pled guilty is not
enough to allege prejudice in order to require an evidentiary hearing, considering all
the facts of this case.
        {¶31} For further instance, appellant’s affidavit does not swear that he was
otherwise eligible for expungement, i.e. there is no averment that he lacks other
preclusive convictions or a statement as to his rehabilitation. Although the application
for expungement states that he was eligible and the like, this was a motion not an
affidavit.   And, the application for expungement is not part of the motion for plea
withdrawal; nor is his eligibility mentioned in the plea withdrawal motion. Along these
lines, expungement is not automatic upon application and is discretionary with a trial
court. Also as aforementioned, appellant did not specifically state that he would have
insisted on taking the child endangering case to trial. Notably, he pled no contest on
the very day that the warrant was served and the arraignment was held.
        {¶32} Importantly, there is also no statement as to timeliness in appellant’s
plea withdrawal motion, and undue delay is a factor in plea withdrawal. See Smith, 49
Ohio St.2d at 264. Yes, appellant filed his motion immediately after the expungement
hearing during which the motion was withdrawn by counsel apparently on learning that
expungement was not permissible. However, appellant’s plea withdrawal motion did
not explain why he waited so long to seek expungement, which is pertinent and
precursory to why he waited so long to seek plea withdrawal. That is, he waited
almost five years from the termination of his probation when the statute only required
him to wait one year from final discharge. See R.C. 2953.32(A)(1).
        {¶33} On this point, we note that expungement was permissible in 1999. If
expungement were still available in 2006 (at the time of his plea as he allegedly
believed it was), by waiting until 2013, one takes the chance that the statute will
change (as it did for many defendants in 2000). The Supreme Court has held that it is
                                                                                  -12-
the statute in effect at the time of the application for expungement that applies,
and some appellate courts have held that the expectancy in the ability to apply for
expungement is not a reason to vacate a plea. Again, expungement is not automatic,
it is discretionary; expungement statutes change and amendments apply to the date of
application (not the date of conviction).    Further, a person’s record can change,
eliminating eligibility in any event.
       {¶34} In sum, the bare allegations here are not sufficient, even if taken as true,
to allege the extraordinary circumstances necessary for finding a manifest injustice.
That is, the single self-serving sentence that he would have gone to trial if he knew he
could not apply to expunge his conviction is insufficient to require a per se evidentiary
hearing under the non-extraordinary circumstances of this case as they do not
illuminate the manifest injustice. Thus, prejudice from an expectation that he could
apply for expungement (when in fact he could not) is not automatically existent from a
mere statement that he would not have pled if he knew that he would not be eligible to
apply for discretionary expungement in the future, i.e. an evidentiary hearing is not
automatic merely because a defendant alleges he was misadvised on expungement
eligibility and he would not have pled but for that advice. For all of the foregoing,
reasons, we uphold the trial court’s decision to deny the post-sentence plea withdrawal
motion without an evidentiary hearing.      The judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, P.J., concurs.
