[Cite as State v. Mills, 2019-Ohio-2205.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.     29224

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PHIL D. MILLS                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2016-04-1091-A

                                  DECISION AND JOURNAL ENTRY

Dated: June 5, 2019



        CARR, Judge.

        {¶1}     Defendant-Appellant Phil Mills appeals, pro se, from the judgment of the Summit

County Court of Common Pleas denying his motion to withdraw his guilty plea. This Court

affirms.

                                                 I.

        {¶2}     In 2016, following a traffic stop, Mills was indicted on one count of having

weapons while under disability, one count of carrying concealed weapons, and one count of

improperly handling firearms in a motor vehicle. Trial counsel filed a motion to suppress which

was denied following a hearing.

        {¶3}     Thereafter, Mills entered a written plea of guilty to having weapons while under

disability and improperly handling a firearm in a motor vehicle. The third charge was dismissed.

The trial court merged the two remaining counts and Mills was sentenced to a term of 18 months
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on the offense of having weapons while under disability. The judgment entry was journalized

August 14, 2017.

        {¶4}     Mills did not file a direct appeal. However, in July 2018, Mills filed a motion to

withdraw his guilty plea based upon ineffective assistance of counsel and requested a hearing.

Mills attached an affidavit to his motion and to his reply. In his affidavit, Mills averred that at

“no point since [his] suppression hearing did [his] attorney make [him] aware that [he] was able

to appeal [his] suppression hearing. Also, [he] was not made aware by [his] attorney at [his] plea

and sentencing hearing that a guilty plea wa[i]ved [his] right to appeal ([his] suppression

hearing) in a higher court. Only until [he] was admitted to [prison] was [he] aware of the option

of entering a no-contest plea, which would’ve reserved [his] right to appeal [his] suppression

hearing.”      In addition, Mills submitted, inter alia, transcripts of the suppression, plea, and

sentencing hearings. The State opposed the motion. Ultimately, the trial court denied Mills’

motion without a hearing.

        {¶5}     Mills then filed a motion for a delayed appeal, which this Court granted. Mills

appears pro se and raises three assignments of error, which will be addressed together to

facilitate our discussion.

                                                 II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED [ITS] DISCRETION WHEN DETERMINING
        IF APPELLANT ENTERED HIS GUILTY PLEA KNOWINGLY,
        INTELLIGENTLY AND VOLU[N]TARILY.

                                  ASSIGNMENT OF ERROR II

        COUNSEL WAS INEFFECTIVE, IN VIOLATION OF SIXTH AMENDMENT
        TO THE U.S. CONSTITUTION, DURING PLEA AND SENTENCING
        NEGOTIATIONS, WHEN HE FAILED TO ADVISE APPELLANT THAT HE
        HAD A RIGHT TO APPEAL HIS MERITABLE SUPPRESSION MOTION,
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       AND A PLEA OF NO-CONTEST (OR GOING TO TRIAL, IF THE TRIAL
       COURT HADN’T ACCEPTED HIS NO-CONTEST PLEA) WOULD BE A
       BETTER OPTION (RESERVING HIS RIGHT TO APPEAL). [SIC.]

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED [ITS] DISCRETION WHEN [IT] DENIED
       APPELLANT’S REQUEST FOR AN EVIDENTIARY HEARING.

       {¶6}    Mills argues in his first two assignments of error that the trial court erred in

denying his motion to withdraw his guilty plea. Mills argues in his third assignment of error that

the trial court abused its discretion in failing to grant him a hearing.

       {¶7}    Mills argued in his motion in the trial court that his trial counsel provided

ineffective assistance as he was never advised by counsel that he could appeal the ruling on his

motion to suppress or that he waived his right to appeal the issue by pleading guilty. Mills also

claimed that trial counsel never explained what a no-contest plea was or that such a plea would

preserve his right to appeal the denial of his motion to suppress.

       {¶8}    “Crim.R. 32.1 provides that a trial court ‘after sentence may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea’ to correct a

‘manifest injustice.’” State v. Bravo, 9th Dist. Summit No. 27881, 2017-Ohio-272, ¶ 6. It is the

defendant’s burden to demonstrate the existence of a manifest injustice. State v. Robinson, 9th

Dist. Summit No. 28065, 2016-Ohio-8444, ¶ 11.                 “Manifest injustice relates to some

fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent

with the demands of due process.” (Internal quotations and citations omitted.) Id. “An appellate

court reviews a trial court’s order denying a motion to withdraw a guilty plea for an abuse of

discretion.” State v. West, 9th Dist. Lorain No. 17CA011110, 2018-Ohio-1176, ¶ 6. “A trial

court may, in its sound discretion, evaluate the credibility of the affidavits attached to a motion to

withdraw a guilty plea to determine whether to accept the affidavits as true statements of fact.”
                                                 4


Robinson at ¶ 11. “[A] hearing on a post-sentence motion to withdraw a plea is not always

required.” West at ¶ 6. “An evidentiary hearing on a post-sentence motion to withdraw a guilty

plea is not required when the movant fails to submit evidentiary materials demonstrating a

manifest injustice.” Robinson at ¶ 11.

       {¶9}    “Ineffective assistance of counsel can form the basis for a claim of manifest

injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1.” State v. Graham, 9th

Dist. Summit No. 28153, 2017-Ohio-908, ¶ 8. In addition, “[t]his Court has held that [a] guilty

plea is not voluntary if it is the result of ineffective assistance of counsel.” (Internal quotations

and citation omitted.) Bravo at ¶ 7.

       {¶10} “This Court uses a two-step process as set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), to determine whether a defendant’s right to the effective assistance of

counsel has been violated.” Bravo, 2017-Ohio-272, ¶ 8.

       When the Strickland test is applied to guilty pleas, the defendant must first show
       that counsel’s performance was deficient. Next, the defendant must show that
       there is a reasonable probability that but for counsel’s errors, he would not have
       pleaded guilty. [T]he mere fact that, if not for the alleged ineffective assistance,
       the defendant would not have entered the guilty plea, is not sufficient to establish
       the necessary connection between the ineffective assistance and the plea; instead,
       the ineffective assistance will only be found to have affected the validity of the
       plea when it precluded the defendant from entering the plea knowingly and
       voluntarily.

(Internal quotations and citations omitted.) Bravo at ¶ 9, quoting State v. Gegia, 157 Ohio

App.3d 112, 2004-Ohio-2124, ¶ 17 (9th Dist.).

       {¶11} “The Ohio Supreme Court has recognized that a court need not analyze both

prongs of the Strickland test, where the issue may be disposed upon consideration of one of the

factors.” Bravo at ¶ 10.
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       {¶12} In his motion in the trial court, Mills did not address the second prong of the

Strickland test. Instead, Mills explained why he believed the denial of his motion to suppress

would have been overturned on appeal if he had been able to appeal it. Mills did not argue or

aver that, were it not for his counsel’s alleged deficient performance, he would not have pleaded

guilty, nor did he demonstrate that any alleged deficiency precluded him from entering the plea

knowingly and voluntarily. See id. at ¶ 9. The State raised this issue in its brief in opposition in

the trial court, and Mills even conceded that he failed to meet the standard in his reply brief;

however, Mills did not rectify the issue.

       {¶13} Given the foregoing, we cannot say that the trial court abused its discretion in

denying Mills’ motion to withdraw his guilty plea without a hearing.

       {¶14} Mills’ three assignments of error are overruled.

                                                III.

       {¶15} Mills’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



CALLAHAN, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

PHIL D. MILLS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
