Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-15-593304-A
ATTORNEY FOR APPELLANT Steve W. Canfil.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor, Anthony Thomas Miranda Assistant County
BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
J. STEWART, P. J.
Defendant-appellant Mike Nicholson pleaded guilty to drug
trafficking and having a weapon while under disability. He
did not file a direct appeal, but one year after conviction,
filed a pro se motion to "vacate or set aside the
judgment of conviction or sentence." That petition
claimed that retained trial counsel gave ineffective
assistance of counsel by failing to conduct a reasonable
investigation of the charges and that retained counsel
coerced Nicholson into pleading guilty. The court denied the
petition without a hearing. Nicholson then filed a pro se
Crim.R. 32.1 motion to withdraw his guilty plea. The motion
to withdraw the guilty plea contained four grounds, all of
which were related to the performance of retained counsel:
that retained counsel failed to investigate the case, that
retained counsel failed to consult with Nicholson, that the
court failed to advise Nicholson that he had the right to
appointed counsel when retained counsel sought to withdraw
from the case, and that retained counsel failed to file a
written motion to withdraw from the case. The court denied
this motion without a hearing. Nicholson appeals.
The motion to withdraw the guilty plea was filed
postsentence, so it could only be granted to "correct
manifest injustice." See Crim.R. 32.1. The term
"manifest injustice" is not defined by Crim.R.
32.1, but the most often cited formulation of the phrase was
given in State ex rel Schneider v. Kreiner, 83 Ohio
St.3d 203, 1998-Ohio-271, 699 N.E.2d 83, where the Ohio
Supreme Court defined a "manifest injustice" as a
"clear or openly unjust act." Id. at
It may be better to say that the postsentence withdrawal of a
guilty plea is allowed to prevent an obviously unfair result.
This has been defined as "some fundamental flaw in the
proceedings which result[s] in a miscarriage of justice or is
inconsistent with the demands of due process." State
v. Hall, 10th Dist. Franklin No. 03AP-433,
2003-Ohio-6939. See also State v. Tekulve, 188 Ohio
App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st
Dist.) (defining "manifest injustice" as an
"extraordinary and fundamental flaw in a plea proceeding
"); State v. Durrette, 8th Dist. Cuyahoga No.
104050, 2017-Ohio-7314, ¶ 22.
Regardless of what definition is used, it is well established
that a postsentence withdrawal motion should be granted only
in extraordinary cases. State v. Smith, 49 Ohio
St.2d 261, 264, 361 N.E.2d 1324 (1977). "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."
Id. at paragraph two of the syllabus. We therefore
review a trial court's refusal to grant a postsentence
motion to withdraw a guilty plea for an abuse of discretion.
State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715
In addition, postsentence motions to withdraw guilty pleas
are, in essence, postconviction motions to which the doctrine
of res judicata applies. Res judicata bars the assertion of
claims in a motion to withdraw a guilty plea that were, or
could have been, raised in a prior proceeding. State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d
9, ¶ 59. In this context, a prior proceeding consists of
a direct appeal or any "postconviction proceedings in
which an issue was or could have been raised." State
v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42
(8th Dist). Thus, we have held that res judicata bars
"the assertion of claims in a motion to withdraw a
guilty plea that were, or could have been, raised at trial or
on direct appeal." State v. McGee, 8th Dist.
Cuyahoga No. 91638, 2009-Ohio-3374, ¶ 9.
Nicholson's first basis for seeking withdrawal of his
guilty plea is that trial counsel "failed to conduct an
adequate pretrial investigation of the case, neglecting to
request that the search warrant be unsealed and challenge the
validity of the alleged search warrant prior to advising me
to plead guilty." This claim undeniably relied on facts
outside the record on appeal, so it could not have been
raised on direct appeal. State v. Smith, 17 Ohio
St.3d 98, 101, 477 N.E.2d 1128 (1985), fn. 1. Nevertheless,
this same claim was raised in Nicholson's earlier motion
to vacate his conviction. Attachment 9A to that petition
claimed that "trial counsel was ineffective and did not
conduct a reasonable investigation of discovery and neglected
to request important documents that could have been
beneficial in my defense." And Attachment 9B to the
petition claimed that "I do not recall seeing any copy
of the search warrant, my attorney told me that it
doesn't matter because I signed a 'consent to
search.'" This issue was thus raised in the motion
to vacate the conviction, so the first basis for relief in
the motion to withdraw the guilty plea is res judicata.
The second basis for seeking withdrawal of the guilty plea is
that retained counsel "proved deficient where he failed
to visit, return calls, and consult with me to learn my
desires to obtain the search warrant and pursue a motion to
suppress, prior to making any plea agreement or proceed to
trial." This claim overlaps with the claims raised in
Attachment 9A to the petition to vacate the conviction, where
Nicholson alleged that "my trial attorney never met with
me to discuss my case or any plea before trial." In
addition, the second basis for relief contained the same
argument raised in the motion to vacate the conviction
regarding retained counsel's refusal to file a motion to
suppress based on Nicholson's consent to search. We also
note that Nicholson made this same complaint regarding
retained counsel's failure to file a motion to suppress
to the trial judge before entering his guilty plea. Retained
counsel told the court at the time of the guilty plea that he
discussed at length with Nicholson how a motion to suppress
evidence based on a lack of consent had no viability. The
record shows the issue was not newly discovered and was, in
fact, raised prior to the motion to withdraw the guilty plea,
so it could have been raised in the motion to vacate the
The third basis for seeking withdrawal of the guilty plea is
that after orally seeking the removal of retained counsel,
the court failed to advise Nicholson that he had the right to
appointed counsel and further failed to advise him that
retained counsel had to file a written motion to withdraw.
The record gives no basis for Nicholson's claim that the
court was obligated to inform him of his right to appointed
counsel. The record shows that at the start of the case, the
court assigned counsel for Nicholson. Nicholson then retained
his own attorney, but at a later point told the ...