State v. VanWinkle , 2021 Ohio 3849 ( 2021 )

[Cite as State v. VanWinkle, 2021-Ohio-3849.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-3
:
v. : Trial Court Case No. 2016-CR-66
:
BENJIE VANWINKLE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of October, 2021.
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PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street,
Troy, Ohio 45373
Attorney for Plaintiff-Appellee
STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Courthouse, Ohio 43160
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Benjie VanWinkle appeals from a judgment of the Miami
County Court of Common Pleas, which overruled his “Motion to Withdraw Plea and
Vacate Sentence.” On February 11, 2021, VanWinkle filed a motion for leave to file a
delayed appeal, which we sustained in part and overruled in part in an entry issued on
April 12, 2021.
{¶ 2} We set forth the history of the case in State v. VanWinkle, 2d Dist. Miami No.
2016-CA-25, 2017-Ohio-7642, and repeat it herein in pertinent part:
On March 14, 2016, VanWinkle was indicted for thirteen counts of rape
involving three minor victims. At his arraignment on March 17, 2016, VanWinkle
pled not guilty to all of the counts in the indictment, and the trial court set his bond
at $750,000.00.
Shortly thereafter on April 12, 2016, VanWinkle filed a waiver of his
right to speedy trial. On August 3, 2016, VanWinkle pled guilty to Count I,
Count II, and Count XIII in his indictment. In return for VanWinkle's guilty
pleas, the State agreed to dismiss all of the remaining counts in the
indictment (Counts III–XII). The trial court accepted VanWinkle's guilty
pleas and sentenced him to a mandatory ten years to life in prison on each
count. The trial court ordered that Counts I and II be served concurrently,
but further ordered those sentence to run consecutive to Count XIII, for an
aggregate sentence of twenty years to life in prison.
Id. at ¶ 2-3.
{¶ 3} VanWinkle appealed, and we affirmed the judgment of the trial court, holding
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that the trial court made appropriate findings at sentencing hearing regarding the
imposition of consecutive sentences, but did not include those findings in the termination
entry. We also held that while the trial court’s sentence was not contrary to law, it was
required to incorporate the findings regarding consecutive sentences into its judgment
entry by issuing a nunc pro tunc entry. Therefore, we remanded the matter for an entry
incorporating the trial court’s findings that were made at the sentencing hearing with
respect to the imposition of consecutive sentences, including R.C. 2929.14(C)(4)(b) but
not R.C. 2929.14(C)(4)(c). Id. at ¶ 24-25.
{¶ 4} On September 28, 2020, VanWinkle filed a motion to withdraw his pleas and
vacate his sentence. In his motion to withdraw, VanWinkle argued that he received
ineffective assistance of counsel and that the trial court failed to comply with Crim.R. 11
at his plea hearing. On December 23, 2020, the trial court issued a decision overruling
VanWinkle’s motion to withdraw his guilty pleas for the following reasons: 1) the motion
to withdraw was untimely as it was filed approximately four years after his conviction; 2)
res judicata barred his argument as it related to a violation of Crim.R. 11; and 3)
VanWinkle’s ineffective assistance claim should have been properly raised in a petition
for post-conviction relief pursuant to R.C. 2953.21, because he raised matters outside the
record, and he failed to submit any evidence to support his claim. Additionally, had
VanWinkle filed a petition for post-conviction relief, it would have overruled it as untimely
because he failed to file the petition within 365 days of the filing of the transcript on appeal.
R.C. 2953.21(A)(2).
{¶ 5} It is from this judgment that VanWinkle now appeals.
{¶ 6} On July 14, 2021, appointed appellate counsel for VanWinkle filed a brief
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pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
asserting that there are no potentially meritorious issues to present on appeal. Counsel
asserts a few potentially meritorious issues. On July 19, 2021, this Court gave
VanWinkle 60 days to file a pro se brief assigning any errors for our review. VanWinkle
filed a brief on his own behalf on August 5, 2021, in which he sets forth a sole assignment
of error.
{¶ 7} As this Court has previously noted:
An appellate court, upon the filing of an Anders brief, has a duty to
determine, “after a full examination of the proceedings,” whether the appeal
is, in fact, “wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18
L.Ed. 493; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d
300 (1988). An issue is not frivolous based upon a conclusion that the
State has a strong responsive argument. State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead,
is one about which, “on the facts and law involved, no responsible
contention can be made that offers a basis for reversal.” State v. Marbury,
2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any
issue is not wholly frivolous, we must reject the Anders brief and appoint
new counsel to represent the defendant.
State v. Allen, 2d Dist. Clark No. 2018-CA-60, 2019-Ohio-1253, ¶ 5.
{¶ 8} Appointed counsel’s first potentially meritorious assignment of error is as
follows:
DEFENDANT-APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY,
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AND VOLUNTARILY PLEAD GUILTY IN VIOLATION OF HIS DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.
{¶ 9} In his first assignment, VanWinkle contends that the trial court erred when it
overruled his motion to withdraw his guilty pleas because his guilty pleas were not entered
in a knowing, intelligent, and voluntary manner.
{¶ 10} “We review a trial court's decision on a post-sentence motion to withdraw
guilty plea * * * for an abuse of discretion. * * *.” State v. Ogletree, 2d Dist. Clark No. 2014-
CA-16, 2014-Ohio-3431, ¶ 11. “The lynchpin of abuse-of-discretion review is the
determination whether the trial court's decision is reasonable.” State v. Chase, 2d Dist.
Montgomery No. 26238, 2015-Ohio-545, ¶ 17, citing AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
{¶ 11} Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest
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.” As this Court has previously noted:
* * * The manifest injustice standard demands a showing of
extraordinary circumstances. State v. Smith (1977), 49 Ohio St.2d 261, 361
N.E.2d 1324. Further, the defendant has the burden to prove the existence
of manifest injustice. Id.The term injustice is defined as “the withholding or denial of justice.
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In law, the term is almost invariably applied to the act, fault, or omission of
a court, as distinguished from that of an individual.” Black's Law Dictionary,
5th Ed. A “manifest injustice” comprehends a fundamental flaw in the path
of justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably
available to him or her.
Crim.R. 32.1 derives from the court's inherent power to vacate its
own prior orders when justice so requires. In that regard, it is comparable
to Civ.R. 60(B), which contemplates equitable relief from a final order
subject to certain defects. In this context, it is noteworthy that Civ.R. 60(B)
relief is not a substitute for appellate review of prejudicial error. Doe v.
Trumbull Cty. Children's Services Bd. (1986), 28 Ohio St.3d 128, 502
N.E.2d 605. We believe that the same bar reasonably applies to Crim.R.
32.1.
State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999).
Timeliness of Motion to Withdraw
{¶ 12} The record establishes that VanWinkle entered his pleas on August 3, 2016,
and he was sentenced on September 6, 2016. VanWinkle did not raise any claim
regarding his guilty pleas in his direct appeal. Additionally, VanWinkle did not file the
motion to withdraw his guilty pleas until September 28, 2020, more than four years after
he was convicted and sentenced.
{¶ 13} We recently stated the following in State v. Nawman, 2d Dist. Clark No.
2016-CA-43, 2017-Ohio-7344:
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* * * “Although Crim.R. 32.1 does not contain a time limit for filing a
post-sentence motion to withdraw a plea, a trial court may take into
consideration the passage of time between the entry of the plea and a
defendant's attempt to withdraw it.” (Citations omitted.) Jones, 2d Dist.
Greene No. 07-CA-104, 2008-Ohio-4733 at ¶ 9. “[A]n undue delay
between the occurrence of the alleged cause of a withdrawal of [the] plea
and the filing of a Crim.R. 32 motion is a factor adversely affecting the
credibility of the movant and militating against the granting of the motion.”
State v. Harden, 2d Dist. Montgomery No. 22839, 2009-Ohio-3431, ¶ 7,
citing Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324. Here, Nawman has
failed to provide any explanation for the delay in filing his motion, which
further supports the trial court's decision to overrule it.
Id. at ¶ 16.
{¶ 14} Here, VanWinkle’s delay of over four years in filing his motion to withdraw
his guilty pleas arguably would unfairly prejudice the State in a rape case where the
testimony and memory of more than one child victim was at issue. Furthermore,
VanWinkle “failed to provide any explanation for the delay in filing his motion, which
further supports the trial court's decision to overrule it.” Id. Accordingly, the trial court
reasonably found that the four-year delay in VanWinkle’s filing a motion to withdraw his
guilty pleas was unreasonable. The trial court did not err when it overruled the motion
on that basis.
Res Judicata
{¶ 15} As previously stated, VanWinkle failed to raise any issue in regard to his
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guilty pleas or Crim.R. 11 in his direct appeal.
{¶ 16} “Under the doctrine of res judicata, ‘[a] point or a fact which was actually
and directly in issue in a former action and was there passed upon and determined by a
court of competent jurisdiction may not be drawn in question in any future action between
the same parties or their privies, whether the cause of action in the two actions be identical
or different.’ ” State v. Ulery, 2d Dist. Clark No. 2010-CA-89, 2011-Ohio-4549, ¶ 12,
quoting Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph three
of the syllabus. Applied in the current context, “ ‘claims submitted in support of a Crim.R.
32.1 motion to withdraw plea that could have been raised on direct appeal, but were not
raised in direct appeal, are barred by res judicata.’ ” Id. at ¶ 10, quoting State v. Madrigal,
6th Dist. Lucas Nos. L-10-1142, L-10-1143, 2011-Ohio-798, ¶ 16; accord State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (“Ohio courts of
appeals have applied res judicata to bar the assertion of claims in a motion to withdraw a
guilty plea that were or could have been raised at trial or on appeal”). VanWinkle did not
raise any claim regarding his guilty pleas in his direct appeal. Accordingly, he is
precluded from raising the above argument on appeal from the trial court's denial of his
motion to withdraw his guilty pleas.
{¶ 17} Having thoroughly reviewed the entire record, we conclude that this
potential assignment of error is wholly frivolous.
{¶ 18} Because they are interrelated, appointed counsel’s second potentially
meritorious assignment of error and VanWinkle’s sole assignment of error will be
discussed together. The potential assignment is framed by counsel as follows:
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING
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TRIAL IN VIOLATION OF [VANWINKLE]’S RIGHTS UNDER THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶ 19} VanWinkle argues that he received ineffective assistance of counsel
because: 1) trial counsel failed to examine the agreement made between the trial court
and the prosecutor; 2) trial counsel failed to inform VanWinkle that the plea agreement
had been altered without his knowledge; 3) trial counsel was not present while VanWinkle
was questioned by detectives, after being requested; and 4) trial counsel failed to object
to the trial court, prosecutor, or the victim’s advocate in order to preserve certain
arguments for the purposes of VanWinkle’s direct appeal.
{¶ 20} Both appointed counsel and VanWinkle claim ineffective assistance under
Crim.R. 32. However, their arguments raise issues that occurred outside the record and
that should have properly been raised in a petition for post-conviction relief pursuant to
R.C. 2953.21.
{¶ 21} Post-conviction relief is governed by R.C. 2953.21. The statute provides, in
pertinent part, that:
Any person who has been convicted of a criminal offense * * * and who
claims that there was such a denial or infringement of the person's rights as
to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States, * * * may file a petition in the court that
imposed sentence, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other
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appropriate relief. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).
{¶ 22} “A post[-]conviction proceeding is not an appeal of a criminal conviction, but,
rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,
639 N.E.2d 67 (1994); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,
860 N.E.2d 77, ¶ 48. To prevail on a petition for post-conviction relief, the defendant
must establish a violation of his constitutional rights which renders the judgment of
conviction void or voidable. R.C. 2953.21.
{¶ 23} Had VanWinkle's motion to withdraw his guilty pleas been properly filed as
a petition for post-conviction relief, it would have been overruled as untimely because it
was not filed within 365 days after the trial transcript was filed with this court in
VanWinkle's direct appeal. See R.C. 2953.21(A)(2). In addition, none of the statutory
exceptions for filing untimely petitions applied here. See R.C. 2953.23(A).
{¶ 24} Furthermore, a trial court may dismiss a petition for post-conviction relief
without a hearing “where the petition, the supporting affidavits, the documentary
evidence, the files, and the records do not demonstrate that petitioner set forth sufficient
operative facts to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio
St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus; Gondor at ¶ 51. Here,
VanWinkle failed to submit any evidence at all to support his claims that he received
ineffective assistance of counsel in relation to his decision to plead guilty to three counts
of rape. Therefore, the trial court did not err when it overruled his motion to withdraw his
guilty pleas as it related to VanWinkle’s claims of ineffective assistance of counsel.
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{¶ 25} For the foregoing reasons, we conclude that counsel’s second potential
assignment of error and the argument raised in VanWinkle’s brief are wholly frivolous.
{¶ 26} Having fulfilled our responsibilities pursuant to Anders, and since
VanWinkle’s appeal lacks any arguable merit, the judgment of the trial court is affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies sent to:
Paul M. Watkins
Steven H. Eckstein
Benjie VanWinkle
Hon. Jeannine N. Pratt