State v. Leifheit ( 2020 )

[Cite as State v. Leifheit, 2020-Ohio-5106.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-78
:
v. : Trial Court Case No. 2017-TRC-3984
:
MICHAEL J. LEIFHEIT : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of October, 2020.
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MATTHEW B. DIBARTOLA, Atty. Reg. No. 0088702, Assistant Prosecuting Attorney,
Clark County Municipal Court, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
Attorney for Plaintiff-Appellee
JEFFREY D. SLYMAN, Atty. Reg. No. 0010098, 211 Kenbrook Drive, Suite 5, Vandalia,
Ohio 45377
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Michael J. Leifheit, appeals from a judgment of the
Clark County Municipal Court denying his motion to withdraw guilty plea. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On May 12, 2017, Leifheit pled guilty to operating a vehicle under the
influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a). After accepting
Leifheit’s guilty plea, the trial court issued an entry granting Leifheit limited driving
privileges from May 16, 2017 through July 23, 2017. The entry stated that Leifheit was
only permitted to drive for work-related purposes, and that he could “operate ONLY his
personal vehicle, as his CDL [commercial driver’s license] remains suspended.”
{¶ 3} On June 20, 2017, the matter proceeded to a sentencing hearing. During
the sentencing hearing, the trial court ordered Leifheit to pay a fine of $375 and court
costs. The trial court also ordered Leifheit to serve 13 days in jail, with ten days
suspended, and three days credited for Leifheit’s completing a three-day intervention
program. The trial court also suspended Leifheit’s operator’s license for one year.
{¶ 4} Two days after sentencing, the trial court issued a second entry granting
Leifheit limited driving privileges from June 22, 2017 to October 16, 2017. Like the first
entry, the second entry only permitted Leifheit to drive for work-related purposes. The
second entry, however, did not make any reference to Leifheit’s CDL suspension.
{¶ 5} Approximately two years later, on May 31, 2019, Leifheit filed a letter he
wrote to the trial court regarding his CDL. In the letter, Leifheit advised the trial court
that he had recently attempted to renew his CDL at the Bureau of Motor Vehicles (“BMV”),
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but was prohibited from doing so due to his OVI conviction. Because a CDL was
necessary for his employment, Leifheit requested the trial court to “drop [his OVI] to a
lesser charge” so that he could renew his CDL. Letter (May 31, 2019). Shortly
thereafter, on June 3, 2019, Leifheit filed a second letter in which he asked the trial court
to issue an order to renew his CDL.
{¶ 6} The trial court treated Leifheit’s letters as a motion to renew his operator’s
license and CDL. Following a hearing on the matter, on June 24, 2019, the trial court
issued an order permitting Leifheit to renew his operator’s license. However, with regard
to Leifheit’s CDL, the trial court found that Leifheit “has an indefinite suspension regarding
his CDL and that said disqualification shall remain even while [Leifheit] is renewing said
operator’s license.”
{¶ 7} After the trial court declined to issue an order to renew Leifheit’s CDL, on
August 12, 2019, Leifheit filed a motion to withdraw his guilty plea. In support of his
motion, Leifheit argued that he did not knowingly, intelligently, and voluntarily plead guilty
to the 2017 OVI offense because at the time he entered his plea, he was unaware that
an OVI conviction could cause his CDL to be suspended indefinitely. Leifheit argued
that the trial court should have notified him of the adverse effect his guilty plea could have
on his CDL by giving the following admonishment at the plea hearing:
For those of you that have a commercial driver’s license, convictions
of certain offenses may have an adverse effect on your ability to maintain
your commercial driver’s license—even if you were not in a commercial
vehicle at the time of the incident. Before you enter a plea you may wish
to seek legal advice as to the consequences of a conviction on your
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commercial driver’s license.
Motion to Withdraw Guilty Plea – Exhibit B.
{¶ 8} Leifheit also argued that his plea was not knowingly, intelligently, and
voluntarily entered due to his trial counsel’s providing ineffective assistance.
Specifically, Leifheit claimed that his trial counsel failed to advise him of the adverse
effects his guilty plea could have on his ability to maintain his CDL. Leifheit claimed this
failure prejudiced him since his CDL was suspended indefinitely and was required for his
employment.
{¶ 9} Leifheit offered no sworn testimony, affidavits, or other evidence in support
of the claims in his motion. Instead, Leifheit simply attached a February 2019 notice
from the BMV advising that his CDL was expiring on May 31, 2019, and a copy of the
judicial admonishment that Leifheit claimed the trial court should have given at his plea
hearing. See Motion to Withdraw Guilty Plea- Exhibits A and B.
{¶ 10} On October 23, 2019, the trial court held a hearing on Leifheit’s motion to
withdraw guilty plea. During the hearing, the trial court confirmed that Leifheit had two
prior OVI convictions, one from 2005 and one from 2011. Leifheit advised the trial court
that he only recalled the 2011 conviction, but that he had no reason to doubt the court’s
records indicating that he was also convicted in 2005. Although Leifheit told the trial
court that he had no idea his prior OVI convictions would impact his CDL, Leifheit’s trial
counsel later clarified that there was “no question that [Leifheit] knew that there was an
impact on his CDL license.” Motion Hearing Tr. (Oct. 23, 2019), p. 7. Rather, Leifheit’s
counsel explained that it was not until Leifheit received the trial court’s June 24, 2019
entry denying the motion to renew his CDL that Leifheit became aware of the indefinite
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suspension on his CDL. Therefore, Leifheit, through his counsel, claimed that he should
be able to withdraw his guilty plea because, prior to his plea, neither the trial court nor his
previous trial counsel had advised him that his CDL could be subject to an indefinite
suspension as a result of his OVI conviction.
{¶ 11} Following the hearing, the trial court denied Leifheit’s motion to withdraw
guilty plea. In so holding, the trial court found that Leifheit was not credible based on the
statements he made regarding his prior OVI convictions. The trial court also found that
Leifheit’s claim regarding his prior counsel’s failure to advise him of the possibility that his
CDL could be indefinitely suspended was insufficient by itself to demonstrate ineffective
assistance of counsel.
{¶ 12} With regard to the judicial admonishment, the trial court found that even if it
had given the admonishment attached to Leifheit’s motion, it would not have cured
Leifheit’s complaint since the admonishment did not provide notice of an indefinite CDL
suspension. Lastly, the trial court found that Leifheit failed to explain the 27-month delay
in filing the motion to withdraw his guilty plea, and that this undue delay mitigated against
granting the motion.
{¶ 13} Leifheit now appeals from the trial court’s order denying his motion to
withdraw guilty plea, raising a single assignment of error for review.
Assignment of Error
{¶ 14} Under his assignment of error, Leifheit contends that the trial court erred in
denying his motion to withdraw guilty plea because he did not knowingly, intelligently, and
voluntarily plead guilty to the OVI offense at issue. Leifheit claims that his guilty plea
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was not knowing, intelligent, and voluntary because neither the trial court nor his trial
counsel advised him that the resulting conviction could adversely affect his ability to
maintain his CDL. Leifheit asserts that he never would have pled guilty if he had known
that an indefinite suspension of his CDL was possible. According to Leifheit, the
resulting indefinite suspension of his CDL prejudiced him because maintaining a CDL
was necessary for his employment. For these reasons, Leifheit believes his plea and
sentence should be vacated. We disagree.
Crim.R. 32.1 – Standard of Review
{¶ 15} Under Crim.R. 32.1, a trial court may “permit a defendant to withdraw a
guilty plea after imposition of sentence only to correct a manifest injustice.” State v.
Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16; Crim.R. 32.1. (Other
citations omitted.) “ ‘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.’ ” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010-Ohio-1682, ¶ 8, quoting
State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999).
Therefore, “[w]ithdrawal of a plea after sentencing is permitted only in the most
extraordinary cases.” State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-
4769, ¶ 13, citing State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-2555,
¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).
{¶ 16} “[A] defendant ordinarily may establish a manifest injustice within the
context of Crim.R. 32.1 by showing that he did not enter the guilty plea in a knowing,
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intelligent, or voluntary manner.” State v. Riley, 4th Dist. Washington No. 16CA29,
2017-Ohio-5819, ¶ 18, citing State v. Fry, 7th Dist. Mahoning No. 12 MA 156, 2013-Ohio-
5865, ¶ 12 (“A guilty plea that was not entered knowingly, intelligently, or voluntarily,
creates a manifest injustice that would entitle a defendant to withdraw a guilty plea.”);
State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012-Ohio-199, ¶ 13 (“If a
defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of
due process and is void.”); State v. Hall, 4th Dist. Jackson No. 99CA847, 2000 WL
245492, *2 (Feb. 25, 2000) (“A trial court violates a defendant's due process rights, and
hence may produce a manifest injustice, if it accepts a guilty plea that the defendant did
not enter knowingly, intelligently, and voluntarily.”).
{¶ 17} “ ‘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.’ ” State v.
Hawke, 2d Dist. Greene Nos. 2019-CA-24 and 2019-CA-25, 2020-Ohio-511, ¶ 14,
quoting State v. Yapp, 2015-Ohio-1654, 32 N.E.3d 996, ¶ 9 (8th Dist.), citing Smith at
paragraph two of the syllabus. “ ‘Consequently, an appellate court’s review of a trial
court’s denial of a post[-]sentence motion to withdraw a guilty plea is limited to a
determination of whether the trial court abused its discretion.’ ” (Citations omitted.) Id.,quoting Yapp at ¶ 9. An abuse of discretion occurs when a trial court’s decision is
“unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
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Trial Court Advisement at Plea Hearing
{¶ 18} In an attempt to establish manifest injustice, Leifheit first argues that his
guilty plea to the OVI offense at issue was less than knowing, intelligent, and voluntary
because the trial court failed to advise him at the plea hearing that the resulting OVI
conviction could adversely affect his ability to maintain a CDL. According to Leifheit,
such notification was necessary for purposes of advising him of the effect of his guilty
plea as required by Traf.R. 10(D) and Crim.R. 11(E). We find no merit to Leifheit’s claim.
{¶ 19} Traf.R. 10 governs pleas in traffic cases and section (D) of that rule provides
the following:
In misdemeanor cases involving petty offenses, except those
processed in a traffic violations bureau, the court may refuse to accept a
plea of guilty or no contest and shall not accept such pleas without first
informing the defendant of the effect of the plea of guilty, no contest, and
not guilty.
Traf.R. 10(D). See also Crim.R. 11(E).
{¶ 20} Pursuant to Traf.R. 10(D), the trial court is only required to inform the
defendant of the effect of his guilty plea before accepting it. State v. MacConnell, 2d
Dist. Montgomery No. 21109, 2006-Ohio-1973, ¶ 10. “The Supreme Court of Ohio has
clarified that a trial court need only advise a defendant of the information contained in
Traf.R. 10(B) to satisfy Traf.R. 10(D)’s requirement of ‘informing the defendant of the
effect of the plea.’ ” State v. Clark, 2d Dist. Greene No. 2007-CA-33, 2008-Ohio-1977,
¶ 25, quoting State v. Darden, 2d Dist. Greene No. 2005-CA-109, 2006-Ohio-2908, ¶ 16,
citing State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 28.
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{¶ 21} Traf.R. 10(B)(1) defines the effect of a guilty plea as being “a complete
admission of the defendant’s guilt.” See also Crim.R. 11(B)(1). Accordingly, when
informing a defendant of the effect of his guilty plea to a misdemeanor, petty offense, the
trial court is only required to advise the defendant that a guilty plea is a complete
admission of guilt. State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-
2059, ¶ 14; State v. Rush, 2d Dist. Greene No. 2015-CA-54, 2016-Ohio-4895, ¶ 3; State
v. Martin, 2d Dist. Clark No. 2015-CA-107, 2017-Ohio-763, ¶ 11. “The trial court is not
required to advise a defendant of every conceivable consequence of his plea.” State v.
Rice, 5th Dist. Stark No. 2013CA00197, 2014-Ohio-3487, ¶ 20.
{¶ 22} In this case, it is undisputed that Leifheit’s OVI was a misdemeanor, petty
offense. See Traf.R. 2(D); R.C. 4511.19(G)(1)(b); Faulkner at ¶ 13-14. Therefore,
when accepting Leifheit’s guilty plea, the trial court was only required to advise Leifheit
that his guilty plea was a complete admission of his guilt. Leifheit does not argue that
the trial court failed to give such an advisement at the plea hearing. Leifheit instead
mistakenly claims that the trial court was required to inform him that his guilty plea could
adversely affect his ability to maintain a CDL, and more specifically, that it could result in
an indefinite suspension of his CDL. Such an advisement, however, was not required
by Traf.R. 10(D) or by the analogous provision in Crim.R. 11(E). Accordingly, any failure
on the part of the trial court to give such an advisement did not render Leifheit’s guilty
plea less than knowing, intelligent, and voluntary.
{¶ 23} As a further matter, the record on appeal contains no transcript of the plea
hearing. “It is well-established that ‘an appellate court cannot determine whether
manifest injustice occurred at a plea hearing, where the defendant fails to provide a
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transcript[.]’ ” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, ¶ 15,
quoting State v. Kerby, 2d Dist. Clark No. 2009-CA-39, 2010-Ohio-562, ¶ 17. “In the
absence of a plea hearing transcript, we must presume the regularity of the proceedings
below.” Id., citing State v. Wright, 2d Dist. Montgomery Nos. 23330, 23403, 23404, and
23521, 2010-Ohio-1899, ¶ 14. Therefore, we must presume that the trial court properly
advised Leifheit regarding the effect of his guilty plea to the OVI offense at issue.
{¶ 24} Because there is nothing in the record indicating that the trial court failed to
give the required advisement at the plea hearing, we do not find that the trial court
engaged in any conduct that rendered Leifheit’s guilty plea less than knowing, intelligent,
and voluntary. Consequently, we find no manifest injustice in that regard.
Ineffective Assistance of Counsel
{¶ 25} Leifheit next contends that his guilty plea was less than knowing, intelligent,
and voluntary due to his trial counsel’s providing ineffective assistance. Specifically,
Leifheit claims that his trial counsel failed to advise him that pleading guilty to the OVI
offense at issue could result in an indefinite suspension of his CDL. Leifheit claims that
this failure prejudiced him because his CDL was indefinitely suspended following his plea,
which caused him to lose his employment. We again find no merit to Leifheit’s claim.
{¶ 26} It is well established that “[i]neffective assistance of counsel can provide a
basis for seeking a post-sentence withdrawal of a guilty plea.” State v. Griffin, 2d Dist.
Clark No. 2014-CA-123, 2016-Ohio-229, ¶ 15, citing Wilson, 2d Dist. Montgomery No.
26354, 2015-Ohio-1584 at ¶ 17. “When the alleged error underlying a motion to
withdraw a guilty plea is ineffective assistance of counsel, the defendant must show that
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(1) trial counsel’s performance was deficient; and (2) there is a reasonable probability
that, but for counsel’s errors, the defendant would not have entered a plea.” Wilson at
¶ 17, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
{¶ 27} In attempting to establish deficient performance on the part of his trial
counsel, Leifheit merely provided a bare, unsworn assertion that his trial counsel failed to
advise him of the possibility that his CDL could be suspended indefinitely as a result of
pleading guilty to the OVI offense at issue. We addressed a similar situation in State v.
Laster, 2d Dist. Montgomery No. 19387, 2003-Ohio-1564. In Laster, the defendant filed
a motion to withdraw a guilty plea, arguing that he was “misled into a plea of guilty upon
erroneous advice of counsel.” Id. at ¶ 8. We explained that, if true, this “would possibly
render [defendant’s] plea less than knowing and voluntary and, therefore, he would be
allowed to change his plea.” Id. However, because there was nothing in the record
supporting the defendant’s ineffective assistance claim, we found that the trial court
correctly overruled the motion to withdraw. Id. In this regard, we stated the following:
[W]here nothing in the record supports a defendant’s claim that his
plea was not knowingly and voluntarily made other than his own self-serving
affidavit or statement, the record is insufficient to overcome the presumption
that the plea was voluntary. An argument grounded on matters outside the
record can only be addressed by a post[-]conviction relief motion.
(Citations omitted.) Id. Accord State v. Armstrong, 2d Dist. Montgomery No. 27138,
2017-Ohio-474, ¶ 17; State v. Johnson, 2d Dist. Champaign No. 2018-CA-27, 2019-Ohio-
1259, ¶ 10.
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{¶ 28} Here, Leifheit’s bare assertion regarding his counsel’s advice, or lack
thereof, was insufficient to overcome the presumption that his guilty plea was valid. See
Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, at ¶ 16, citing State v.
Burkhart, 2d Dist. Champaign No. 07-CA-26, 2008-Ohio-4387, ¶ 12. Therefore,
Leifheit’s claim by itself was insufficient to establish a manifest injustice warranting the
withdrawal of his guilty plea. Leifheit’s claim was also based on matters outside of the
record that should have been addressed in a petition for post-conviction relief. Laster at
¶ 8. Accord State v. Goney, 2d Dist. Greene No. 2017-CA-43, 2018-Ohio-2115, ¶ 61.
A “ ‘manifest injustice,’ as is required to withdraw a guilty plea, 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.” Laster at ¶ 8, citing State v. Wheeler, 2d Dist.
Montgomery No. 18717, 2002 WL 91304, *1 (Jan. 25. 2002). Accord State v. Redavide,
2016-Ohio-7804, 73 N.E.3d 1171, ¶ 11 (2d Dist.). “Thus[,] the availability of the post
relief conviction route removes claims based on matters outside the record from the form
of extraordinary circumstances demonstrating a manifest injustice.” Laster at ¶ 8; Goney
at ¶ 61.
{¶ 29} For all the foregoing reasons, we do not find that the trial court abused its
discretion in overruling Leifheit’s motion to withdraw guilty plea. Accordingly, Leifheit’s
sole assignment of error is overruled.
Conclusion
{¶ 30} Having overruled Leifheit’s assignment of error, the judgment of the trial
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court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Matthew B. DiBartola
Jeffrey D. Slyman
Hon. Denise L. Moody