FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2014-10-3052
WEST, pro se, Appellant.
DEWINE, Attorney General, and MICAH R. AULT, Assistant
Attorney General, for Appellee.
DECISION AND JOURNAL ENTRY
HENSAL, PRESIDING JUDGE.
Jason West appeals a judgment of the Summit County Court of
Common Pleas that dismissed his petition for post-conviction
relief. For the following reasons, this Court affirms.
Mr. West pleaded guilty to 17 counts of telecommunications
harassment, one count of menacing by stalking, one count of
obstruction of official business, two counts of intimidation
of a crime victim or witness, and one count of intimidation.
The trial court sentenced him to a total of 10 years
imprisonment. This Court upheld his convictions on appeal,
but vacated his sentence in part and remanded the matter so
that the trial court could properly impose post-release
control. Meanwhile, Mr. West petitioned for post-conviction
relief, arguing that his trial counsel were ineffective, that
he should be allowed to withdraw his guilty pleas, that he
was deprived of the right to a fair and unbiased trial, and
that a certain investigator should not have been allowed to
work on his case. The trial court dismissed Mr. West's
petition, concluding that his claims were without merit and
barred under the doctrine of res judicata. Mr. West has
appealed, assigning five errors. We have rearranged and
combined some of the assignments of error for ease of
OF ERROR II
ERRED IN DENYING POST-CONVICTION RELIEF CLAIM FOR WITHDRAWAL
OF GUILTY PLEA.
Mr. West argues that his trial counsel's ineffectiveness
deprived him of the opportunity to withdraw his plea before
sentencing. He, therefore, argues that his petition for
post-conviction relief should be granted and that he be
allowed to withdraw his plea. "[A] trial court's
decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial
court's finding on a petition for postconviction relief
that is supported by competent and credible evidence."
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,
To prevail on a claim of ineffective assistance of counsel,
Mr. West must establish (1) that his counsel's
performance was deficient to the extent that "counsel
was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and (2) that but for
his counsel's deficient performance the result of the
trial would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A deficient
performance is one that falls below an objective standard of
reasonable representation. State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph two of the syllabus. A court,
however, "must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.'" Strickland at 689, quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955). In
addition, to establish prejudice, Mr. West must show that
there existed a reasonable probability that, but for
counsel's errors, the outcome of the proceeding would
have been different. State v. Sowell, 148 Ohio St.3d
554, 2016-Ohio-8025, ¶ 138.
According to Mr. West, before his sentencing hearing, he told
his attorney that he wanted to withdraw his plea. His
attorney allegedly spoke to the trial judge about it in
chambers and was told that the request was denied and that
Mr. West would have to raise the issue on appeal. Mr. West
contends that, when he attempted to speak during the
sentencing hearing, his attorney silenced him. He also
contends that his appellate counsel refused to argue the
issue on appeal because there was no record of the
conversation in chambers and no motion to withdraw was made
during the sentencing hearing. In support of his argument,
Mr. West submitted an affidavit from his wife that
corroborated Mr. West's recounting of his conversation
with his attorney after the attorney spoke to the trial judge
We will begin by examining whether Mr. West was prejudiced by
his counsel's representation because it is dispositive.
Criminal Rule 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." "A
motion made pursuant to Crim.R. 32.1 is addressed to the
sound discretion of the trial court * * *." State v.
Smith,49 Ohio St.2d 261 (1977), paragraph two of the
syllabus. "At the same time, the extent of the trial
court's exercise of discretion * * * is determined by the
particular provisions that govern the motion the defendant is
proceeding under * * *." State v. Francis, 104
Ohio St.3d 490, 2004-Ohio-6894, ¶ 33. "[A]
presentence motion to withdraw a guilty plea should be freely
and liberally granted." State v. Xie, 62 Ohio
St.3d 521, 527 (1992). ...