[Cite as State v. Miller, 2016-Ohio-7360.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                          CASE NO. CA2016-01-007
        Plaintiff-Appellee,                        :
                                                                 OPINION
                                                   :             10/17/2016
    - vs -
                                                   :

MICHAEL JASON MILLER,                              :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-04-0645



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Clyde Bennett II, 119 East Court Street, Cincinnati, Ohio 45202, for defendant-appellant



        M. POWELL, P.J.

        {¶1}     Defendant-appellant, Michael J. Miller, appeals from the decision of the Butler

County Court of Common Pleas denying both his petition for postconviction relief ("PCR")

and a motion to withdraw his guilty plea to aggravated murder.

        {¶2}     On April 19, 2015, law enforcement arrested Miller for a murder that occurred

the day before. On April 29, 2015, the Butler County Grand Jury returned a two-count

indictment charging Miller with aggravated murder and aggravated robbery. The following
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day, as part of a plea bargain, Miller pled guilty to aggravated murder and the trial court

sentenced him to life in prison without the possibility of parole.

       {¶3}   Miller did not file a direct appeal of his conviction. However, on October 27,

2015, Miller filed a petition for postconviction relief pursuant to R.C. 2953.21 and a motion to

withdraw his plea pursuant to Crim.R. 32.1, alleging that, due to the ineffective assistance of

trial counsel, Miller did not enter his plea knowingly, intelligently, and voluntarily. Miller

supported his PCR petition and motion to withdraw with his affidavit. In his affidavit, Miller

argued his two retained attorneys were ineffective by failing to obtain discovery and coercing

him into pleading guilty, he signed the plea form without reading it, and he was high on

OxyContin and Xanax at the time of his arrest and experienced severe withdrawal symptoms

at the time of the plea hearing. The trial court dismissed both the petition and motion without

conducting an evidentiary hearing. Miller appeals the trial court's decision, presenting a

single assignment of error for review.

       {¶4}   Assignment of Error No. 1:

       {¶5}   THE TRIAL COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY

HEARING AND FAILING TO SUSTAIN [MILLER'S] MOTION TO SET ASIDE AND VACATE

THE SENTENCE AND MOTION TO WITHDRAW PLEA.

       {¶6}   In his sole assignment of error, Miller argues the trial court erred by denying his

PCR petition and his postsentence motion to withdraw his guilty plea. Specifically, Miller

challenges the trial court's refusal to hold an evidentiary hearing. The trial court found that

Miller failed to set forth substantive grounds to warrant a hearing pursuant to R.C. 2953.21

and that no manifest injustice existed to make the withdrawal of Miller's guilty plea necessary

pursuant to Crim.R. 32.1.

       {¶7}   "[A] postconviction proceeding is not an appeal of a criminal conviction but,

rather, a collateral civil attack on the judgment." State v. Calhoun, 86 Ohio St.3d 279, 281
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(1999). In reviewing both a PCR petition and a postsentence motion to withdraw plea, this

court applies an abuse of discretion standard. State v. Vore, 12th Dist. Warren Nos.

CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10; State v. Pringle, 12th Dist.

Brown No. CA2015-08-023, 2016-Ohio-1149, ¶ 5. "A review under the abuse-of-discretion

standard is a deferential review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.

An abuse of discretion is more than an error of law or judgment. Rather, it suggests the "trial

court's decision was unreasonable, arbitrary or unconscionable." State v. Perkins, 12th Dist.

Clinton No. CA2005-01-002, 2005-Ohio-6557, ¶ 8. A decision is unreasonable where a

sound reasoning process does not support it. AAAA Ents., Inc. v. River Place Community

Urban Redev. Corp., 50 Ohio St.3d 157, 161 (1990). Whereas, arbitrary means "'without

adequate determining principle; * * * not governed by any fixed rules or standard[, and]

'unreasonable' means 'irrational.'" Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356,

359 (1981), quoting Black's Law Dictionary 96, 1379 (5th Ed.1979).

       {¶8}   A defendant who seeks to withdraw a guilty plea postsentence has the burden

of establishing the existence of manifest injustice. Crim.R. 32.1; see also State v. Smith, 49

Ohio St.2d 261, 264 (1977). Generally, a manifest injustice is a "fundamental flaw in the

proceedings" that results in a miscarriage of justice or is inconsistent with the demands of

due process, and only in extraordinary cases will a postsentence withdrawal motion be

allowable. State v. Williams, 12th Dist. Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 11,

citing Smith at 264. "A trial court need not hold an evidentiary hearing on every postsentence

motion to withdraw a guilty plea." Williams at ¶ 14, citing State v. Degaro, 12th Dist. Butler

No. CA2008-09-227, 2009-Ohio-2966, ¶ 13. "A motion made pursuant to Crim.R. 32.1 is

addressed to the sound discretion of the trial court, 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."

Williams at ¶ 13, citing Smith at paragraph two of the syllabus.
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       {¶9}   R.C. 2953.21 governs PCR petitions and likewise does not guarantee an

evidentiary hearing. Rather, "the petitioner must show that there are substantive grounds for

relief that would warrant a hearing based upon the petition, the supporting affidavits, and the

files and records in the case." State v. Watson, 126 Ohio App.3d 316, 324 (12th Dist.1998);

see also R.C. 2953.21(C). Thus, before a court grants a hearing, the petitioner bears the

initial burden to show that the claimed errors resulted in prejudice. Vore at ¶ 11.

       {¶10} When ineffective assistance of counsel is the alleged error underlying a PCR

petition or a motion to withdraw a guilty plea, the defendant must show (1) a deficiency in his

trial counsel's performance, and (2) that there is a reasonable probability that, but for his trial

counsel's errors, he would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992),

citing Stickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Eberle, 12th Dist.

Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 56 (stating ineffective assistance of

counsel is an appropriate basis for seeking a postsentence withdrawal of a guilty plea). Miller

alleged his trial counsel was deficient because he pled guilty twelve days after his arrest,

failed to provide Miller with discovery, coerced Miller to plead guilty, and permitted him to do

so even though Miller was suffering from drug withdrawals.

       {¶11} In support of these arguments, Miller submitted his own affidavit, which the trial

court found to be incredible and self-serving. See State v. Blankenburg, 12th Dist. Butler No.

CA2013-11-197, 2014-Ohio-4621, ¶ 31 (stating a trial court is entrusted to make the

determination of whether to accept an affidavit in support of a PCR petition as true).

Furthermore, "[t]he trial court may, under appropriate circumstances in postconviction relief

proceedings, deem affidavit testimony to lack credibility without first observing or examining

the affiant." Calhoun, 86 Ohio St.3d at 284. "That conclusion is supported by common

sense, the interests of eliminating delay and unnecessary expense, and furthering the

expeditious administration of justice." Id.
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       {¶12} In making this determination, the trial court should consider all the relevant

factors, including (1) whether the judge reviewing the petition also presided at the

proceeding, (2) whether multiple affidavits contain 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 the proceeding. Id. at 285. "Depending on the entire record, one or more

of these or other factors may be sufficient to justify the conclusion that an affidavit asserting

information outside the record lacks credibility." Id.

       {¶13} In finding Miller's affidavit lacked credibility, the trial judge noted that at the plea

hearing both defense counsel and Miller were subject to meticulous inquiry before engaging

in the plea colloquy. The court further noted the thoroughness of this examination, in which

Miller himself indicated he had sufficient time to have frank discussions and consultation with

counsel, he had reviewed the discovery and legal documents with his attorneys, he believed

entering a plea of guilty was the best course of action for him, and he was certain he wished

to plead guilty. Following this discussion, the trial court proceeded to the plea colloquy where

Miller informed the court he was not under the influence of any drugs or medications and he

was satisfied with his counsel, who had done everything they could for him as well as

answered all of his questions. The trial judge found the affidavit submitted in support of

Miller's PCR petition and motion to withdraw plea largely contradicted the trial court's

dialogue with Miller before and during the acceptance of Miller's plea.

       {¶14} Based upon these factors, the trial court determined that Miller's affidavit was

self-serving and "insufficient to rebut a record that clearly demonstrates a knowingly,

intelligently, and voluntarily entered guilty plea." The court further stated, "[it] is clear * * *

that the actual record of the in-court proceedings from April 30, 2015, defeats, contradicts,
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and exposes [Miller's] self-serving [a]ffidavit as incredible." (Emphasis sic.) After a thorough

review of the record, we find no error in the trial court's decision. In so holding, we note

"Ohio courts have consistently held that affidavits from interested parties such as defendants,

co-defendants, and family members are self-serving and may be discounted." State v.

Robinson, 12th Dist. Butler No. CA2013-05-085, 2013-Ohio-5672, ¶ 17. In addition, typically,

a self-serving affidavit is insufficient to establish a manifest injustice.1 Degaro, 2009-Ohio-

2966 at ¶ 11.

        {¶15} Therefore, because we find no error in the trial court's decision that Miller's

affidavit lacked credibility, Miller has failed to show substantive grounds for relief pursuant to

R.C. 2953.21 and that manifest injustice existed to make a withdrawal of his plea necessary

pursuant to Crim.R. 32.1. Specifically, Miller has failed to show his PCR petition or motion to

withdraw plea warranted a hearing because he has not demonstrated a deficiency in his trial

counsel or any prejudice from an alleged deficiency. Moreover, Miller has failed to show

there is a reasonable probability he would have not otherwise pled guilty but for any alleged

errors. Therefore, the trial court did not abuse its discretion in denying Miller's PCR petition

and motion to withdraw plea.

        {¶16} Judgment affirmed.


        S. POWELL and HENDRICKSON, JJ., concur.




1. To clarify, a defendant's affidavit in a case such as this will always be "self-serving" in the sense that it
supports the relief the defendant seeks. The affidavit is not disqualified merely because it is "self-serving."
Rather, an affidavit properly characterized as "self-serving" is subject to the analysis established by the Ohio
Supreme Court in Calhoun to determine the weight to which it is entitled. Calhoun at 285.
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