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State v. Nicholson

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MIKE NICHOLSON DEFENDANT-APPELLANT

          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 Prosecutor

          BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, P. J.

         {¶1} 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.

         {¶2} 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."[1] Id. at 208.

         {¶3} 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.

         {¶4} 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 (1992).

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 conviction.

         {¶8} 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.

         {¶9} 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 ...


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