State v. Lyons , 2022 Ohio 2224 ( 2022 )

[Cite as State v. Lyons, 2022-Ohio-2224.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 21AP-156
Plaintiff-Appellee, : (C.P.C. No. 16CR-4057)
&
v. : No. 21AP-157
(C.P.C. No. 18CR-5581)
Javon J. Lyons, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 28, 2020
On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.
Wilson, for appellee. Argued: Mark R. Wilson.
On brief: Soroka & Associates, LLC, Roger Soroka, and
Joshua Bedtelyon, for appellant. Argued: Roger Soroka.
APPEALS from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Javon J. Lyons, appeals a judgment entered by the
Franklin County Court of Common Pleas denying his motion to withdraw guilty plea. For
the following reasons, we affirm the trial court judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In the early hours of July 15, 2016, at about 2:30 a.m., Perry Lee Tuttle, Jr.
picked up Dorrell Taylor, Joseph Speights, and T.C.1 from a Columbus area bar and
proceeded to enter a highway heading toward downtown. A few minutes afterward,
shooting erupted from another nearby vehicle; Tuttle was stuck by bullets and lost control
1The indictment used this abbreviation; the record shows T.C. under the age of eighteen at the time of the
shooting.
Nos. 21AP-156 and 21AP-157 2
of his vehicle. Tuttle died, while the other occupants of Tuttle's car—Taylor, Speights, and
T.C.—survived the highway shooting.
{¶ 3} T.C., who was the only survivor to claim he saw the shooters, identified
appellant and another man, Robert Harris, in photo lineups. He told police about an
incident between appellant and a woman at a bar prior to the shooting and described seeing
a vehicle sitting near the bar follow his group onto the highway.2 As a result of the
identification, a warrant was issued for appellant's arrest and a search warrant was issued
for appellant's residence. A gun and a spent bullet, among other items, were recovered
from appellant's home.
{¶ 4} On July 28, 2016, a Franklin County Grand Jury indicted appellant on one
count of aggravated murder pursuant to R.C. 2903.01, two counts of murder pursuant to
R.C. 2903.02, three counts of felonious assault pursuant to R.C. 2903.11, and one count of
having weapons while under disability pursuant to R.C. 2923.13. The aggravated murder,
murder, and felonious assault counts each carried associated firearm, drive-by shooting,
and repeat violent offender ("RVO") specifications. Harris was also indicted in connection
with the shooting.
{¶ 5} Appellant entered a plea of not guilty, and the trial court appointed a public
defender to represent him. Upon appellant's counsel motion, the trial court additionally
appointed a private investigator to assist in preparation of the case and a forensic scientist.
Appellant filed a notice of alibi, naming his girlfriend and younger brother as alibi
witnesses. After appellant's counsel moved to withdraw, the trial court appointed Robert
Krapenc as appellant's new counsel in November 2017. The record indicates appellant's
trial was continued for "[f]urther investigation" on January 18, 2018 and again in February
and April 2018 on the motion of the parties. (Jan. 18, 2018 Entry at 1; Feb. 8, 2018 Entry
at 1; Apr. 10, 2018 Entry at 1.)
{¶ 6} During early April 2018, Harris was tried separately before a jury. The jury
found him not guilty of the charges, and Harris was released. Appellant's counsel moved
the trial court to issue an order directing the court reporter to prepare, at the state's
2 Although the police report is not included in the appellate record, appellant confirms T.C. claimed to see,
when he left the bar, appellant and Harris in the Crown Victoria "from which he was shot" sitting in the parking
lot of the bar and "identified [Harris] and [appellant] as the shooter in a photo lineup." (Appellant's Brief at
1, 27-28.)
Nos. 21AP-156 and 21AP-157 3
expense, a transcript of the proceedings in the Harris case for use in appellant's defense.
The trial court granted appellant's motion. The transcript of the Harris trial was filed in the
record of appellant's murder case on June 1, 2018.
{¶ 7} On September 25, 2018, appellee filed a supplemental response to discovery
indicating a CD of jail calls and a "Jail Call Report" was provided to appellant. (Sept. 25,
2018 Supp. Response to Discovery at 1.) In a motion filed by appellee addressing, in part,
these jail calls, appellee explained:
The Defendant has only made 117 phone calls using his
assigned identification number while incarcerated. Further
investigation by the Columbus Police Department has recently
revealed the Defendant to have used other persons PIN
numbers when placing calls to many witnesses in this case in
addition to [Harris]. These additional calls were recently
discovered and have been turned over to defense counsel.
Upon review of a large number of these recordings the State
now seeks to introduce the statements of the Defendant. An
approximate list including at least 27 specific conversations
involving the topics including: witness tampering, obstruction
of justice and tampering with evidence have been identified
thus far.
(Sept. 24, 2018 Mot. at 1.) The trial court granted appellant's motion for continuance to
review the additional discovery and set trial for November 26, 2018. Appellee filed an
additional supplemental response to request for discovery on November 5, 2018, which
indicated a CD with "[g]un [r]ecovery [p]hotos" was available. (Nov. 5, 2018 Supp. Resp.
at 1.)
{¶ 8} Shortly thereafter, on November 9, 2018, a Franklin County Grand Jury
indicted appellant on one count of tampering with evidence pursuant to R.C. 2921.12 and
one count of obstructing official business pursuant to R.C. 2921.31. Appellant entered a not
guilty plea to those charges, and the trial court consolidated the tampering/obstructing case
with the aggravated murder, murder, and felonious assault case for purposes of trial.
{¶ 9} On November 20, 2018, the trial court held a hearing concerning two plea
offer options presented by appellee. At the hearing, defense counsel stated he discussed
the plea offer with appellant and explained to the trial court that appellant's case had
evolved:
Nos. 21AP-156 and 21AP-157 4
[DEFENSE COUNSEL]: If I may just supplement a little bit,
this case over the last two years has evolved. It's not quite the
same case it was.
Some jail calls have been retrieved by the state and shared with
the defense. Recently about two weeks ago there was
additional jail calls which led to the discovery of a weapon,
which has been test-fired. The casing of that test-fire matches
a casing found at the homicide scene, and a bullet from that gun
matches a bullet that was found in my client's residence.
I have gone over all of this new material, even though we've
only had it for really maybe a week, a week and a half. But I
have reviewed this. We've listened to the jail calls where my
client's voice allegedly is on, looked at the reports for the guns,
things like that.
Additionally, based on those new -- that new information or
new evidence, there is a second indictment as well that is
pending against my client for tampering with evidence and
obstruction of justice, relates to what we believe the state will
try to show is the murder weapon.
(Nov. 20, 2018 Hearing Tr. at 5-6.) Defense counsel stated his view that, "realistically," he
expected the new case would be joined with the murder case for trial, and evidence of the
jail calls leading to a weapon allegedly used in the highway shooting would be introduced.
(Nov. 20, 2018 Hearing Tr. at 6.) Defense counsel continued:
I have spent many hours with [appellant]. I've spent time with
his brother reviewing the evidence and giving my opinion as to
how I think this trial may well end up, what I think his options
are and the possibilities in front of a parole board or flat time.
And I had high hopes in the last couple of days, I think, that I
could get [appellant] to see what it is that I see.
But as of right now, he's indicated he wishes to go to trial and
hope for the best, I guess is the best way to say it.
And I have reviewed everything with him. I have relayed the
offer, and I don't know what more I can do other than just get
ready for trial. Fair enough?
(Nov. 20, 2018 Hearing Tr. at 7.) The appellant answered, "Yeah" and "I'd rather just take
it to trial." (Nov. 20, 2018 Hearing Tr. at 7, 8.) The record indicates the matter was set to
go to trial the following Monday.
{¶ 10} The following day, November 21, 2018, the trial court held a hearing to
address appellant's change of plea. At that hearing, appellant agreed to plead guilty to
Nos. 21AP-156 and 21AP-157 5
involuntary manslaughter pursuant to R.C. 2903.04 as the stipulated lesser-included
offense of murder in Count 3 of the indictment with firearm and drive-by shooting
specifications, three counts of felonious assault without specifications, and tampering with
evidence pursuant to R.C. 2921.12. Under the plea agreement, appellee would move to
dismiss the remaining counts, including aggravated murder and murder, thereby
effectively removing the possibility of a life sentence without parole. The parties jointly
recommended a sentence resulting in a total mandatory period of incarceration of 25 years,
less jail-time credit.
{¶ 11} After outlining the plea agreement and asking questions pertaining to
appellant's competency, the trial court judge addressed appellant personally, including the
following exchange:
THE COURT: Are you satisfied with his representation in this
case here today, sir?
THE DEFENDANT: Yes, sir.
***
THE COURT: All right, sir. I need to make sure you're doing
this voluntarily, freely, and of you own volition. You're not
under the influence of anything today, you have a clear mind,
and you understand what we're doing, correct?
THE DEFENDANT: Yes, sir.
THE COURT: Now, sir, by pleading guilty, you're admitting
that you're guilty in 16CR-4057 to the stipulated lesser included
offense of Count 3, involuntary manslaughter, a felony of the
first degree, with specification 1 and specification 2, and to
Counts 4, 5, and 6, felonious assaults, without specifications,
all felonies of the second degree.
Sir, by pleading guilty in 18CR-5581, you're admitting that
you're guilty of Count 1, tampering with evidence, a felony of
the third degree. [Outlining maximum penalties]
***
Sir, do you understand the nature of the charges to which
you're pleading guilty and the maximum penalties that could
be imposed?
THE DEFENDANT: Yes, sir.
***
[Outlining post-release control and probation]
Nos. 21AP-156 and 21AP-157 6
THE COURT: All right. Now, you also need to understand,
Mr. Lyons, that you're pleading guilty. And if you go ahead and
do that today, you're waiving or giving up * * * Your right to a
jury trial of 12 people who would have to unanimously find you
guilty beyond a reasonable doubt[,] * * * the right of
confrontation, * * * the right to compulsory subpoena process,
* * * the right to appeal a guilty verdict[.] * * * Do you
understand each and every right I have discussed?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Now, sir, has anyone promised you
anything in an effort to get you to change your plea?
THE DEFENDANT: No, sir.
THE COURT: Have you been threatened in any way in an effort
to get you to change your plea?
THE DEFENDANT: No, sir.
THE COURT: Are you waiving and giving up each and every
right and are you pleading guilty knowingly, intelligently, and
voluntarily here today, Mr. Lyons?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Now, counsel has made a joint
recommendation to me as follows [explaining jointly
recommended sentence again].
Sir, even though counsel has made a joint recommendation to
me, which I have just described, do you understand the
sentence is entirely up to me?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Do you have any questions for me about
anything we've gone over so far here today, Mr. Lyons?
THE DEFENDANT: No, sir.
THE COURT: In view of that then, in Case Number 16CR-4057
and 18CR-5581 what is your plea, sir?
THE DEFENDANT: Guilty.
(Nov. 21, 2018 Hearing Tr. at 9, 11-17.)
{¶ 12} The trial court also asked, and appellant agreed, that he read the guilty plea
forms he had signed, reviewed them with his defense counsel and had his questions
answered, and understood and agreed to what the forms said. Those plea forms, dated
November 21, 2018 and filed November 30, 2018, indicate that appellant, represented by
counsel, agreed to withdraw his previously-entered not guilty pleas and instead enter a
Nos. 21AP-156 and 21AP-157 7
guilty plea to the offenses indicated above. The plea forms reflect appellant's understanding
of the maximum prison terms for his offenses, and that the prosecution and defense jointly
recommended a total mandatory period of 25 years of incarceration without judicial/early
release. The signed plea forms further state:
I hereby assert that no person has threatened me, promised me
leniency, or in any other way coerced or induced me to plead
"Guilty'' as indicated above; my decision to plead ''Guilty,"
thereby placing myself completely and without reservation of
any kind upon the mercy of the Court with respect to
punishment, represents the free and voluntary exercise of my
own will and best judgment. I am completely satisfied with the
legal representation and advice I have received from my
counsel.
(Entry of Guilty Pleas at 2.)
{¶ 13} During the change-of-plea hearing, the trial court then asked appellee to
provide a statement of the facts of the case for the record. Appellee stated:
Your Honor, regarding the underlying case, for the record, in
the 16-4057 case, this matter involved Perry Tuttle, Jr. He died
as a result of gunshots fired on or about July 15th of 2016 after
picking up three persons from Rachel's Gentleman's Club on
Brice Road. Those three persons, Your Honor, are the subjects
of Counts 4, 5, and 6. And that's [T.C.], Dorrell Taylor, as well
as Joseph Speights.
There is video surveillance showing that [appellant] and
another individual were at the club along with the three
subjects of the felonious assaults. [Appellant] left about a half
an hour or so before the club closed. Then the victims are seen
leaving in a car. Mr. Perry was called to come and pick those
three people up from Rachel's to give them a ride. He was not
there earlier. He was not involved in any altercation or
anything with [appellant]. As far as I'm aware, they really were
unknown to each other.
However, a car followed the vehicle being driven by Perry
Tuttle, Jr., on the freeway on I-70 heading west in between
Hamilton and James Road. When it pulled up alongside that
vehicle, a hail of gunfire erupted. Approximately, I think, there
were up towards 40 bullet strikes in the car, in the vehicle. The
windows were shot out. Mr. Taylor was shot through the door,
and then also Mr. Perry Tuttle, Jr., Your Honor, did die as a
result of gunshot wounds suffered during that. The car
careened off the side of the road into a barrier, and the car with
[appellant] sped away.
Nos. 21AP-156 and 21AP-157 8
One of the individuals in that vehicle did identify [appellant] as
being a shooter in the car. Further investigation by Columbus
Police gathered evidence over the course of the investigation,
including interviews with other witnesses, video surveillance,
et cetera. [Appellant] was charged in relation to this homicide
event.
Subsequently, while the case was pending, [appellant] had
been using other persons' pin numbers in the jail. The detective
was able to work and to find out those numbers that he was
using and discover phone calls [appellant] had made
contacting other persons and including the codefendant in one
of the phone calls, urging them to locate the firearm used in this
homicide and to destroy it or otherwise get rid of it. There were
some other phone calls associated with that as well. That's the
basis of the 15CR-5581 case.
Judge, that firearm was located. It was found. It was
recovered, and they were able to match a test-firing shell casing
to a shell casing recovered from the freeway shooting linked to
the homicide of Mr. Perry.
I believe that covers it all. This all happened in Franklin
County. The date range for the tampering with evidence would
have been the offense date on July 15th through the arrest date
on July 20th. And the underlying homicide, which is the
subject of Count 3 plea, occurred on or about the early morning
hours of July 15th of 2016.
(Nov. 21, 2018 Hearing Tr. at 18-20.)
Appellant did not, when asked, take exception to the statement of facts for purposes of his
guilty plea. The trial court again asked appellant whether he wished the court to accept his
guilty plea, and appellant replied, "Yes, sir." (Nov. 21, 2018 Hearing Tr. at 21.)
{¶ 14} The trial court accepted appellant's pleas in both cases, entered a nolle as to
the remaining charges, and proceeded to sentencing. Prior to sentencing, both the victim's
father and appellant spoke. In appellant's address, he stated:
THE DEFENDANT: I just want to say I apologize about the
whole situation. And as [the victim's father] said, he didn't
deserve it, whatever the outcome was. I mean, I'm just sorry. I
just want to let the victim's family know that. I hope you accept
my apology.
[VICTIM'S FATHER]: Thank you. We do. I do.
THE DEFENDANT: Sorry.
(Nov. 21, 2018 Hearing Tr. at 25.)
Nos. 21AP-156 and 21AP-157 9
The victim's father accepted appellant's apology. Appellant's counsel requested the trial
court allow appellant to be initially held locally, commenting, "[t]here's a few things locally
he wants to wrap up, so perhaps filing the sentencing entry a week from Friday, give him
about a week and a half to wrap the things that he needs to do before he goes to the next
stage of his life." (Nov. 21, 2018 Hearing Tr. at 24-25.) The trial court accepted the parties'
jointly recommended sentence and agreed to allow appellant to be held a week in the local
jail to allow him to tend to his personal affairs before entering prison.
{¶ 15} On December 3, 2018, the trial court filed judgment entries reflecting its
acceptance of appellant's guilty pleas in both cases and the jointly recommended sentence.
Appellant filed an appeal on December 28, 2018 but then moved to voluntarily withdraw
the appeal. On May 31, 2019, this court granted appellant's motion and dismissed the
appeal.
{¶ 16} Nearly two years after judgment and sentencing, on September 23, 2020,
appellant, represented by counsel, filed a motion to withdraw his guilty plea. Appellant
argued his guilty plea should be set aside due to his "actual innocence" and because he "did
not enter his plea knowingly, intelligently, and voluntarily" due to ineffective assistance of
counsel. (Sept. 22, 2020 Mot. to Withdraw Plea at 3, 10.) He argued his defense counsel
disregarded evidence of appellant's innocence, ignored appellant's insistence on going to
trial, and coerced him into the guilty plea. According to appellant, he had a legitimate
reason for the delay between sentencing and his attempt to withdraw his plea, mostly due
to his need to conduct a "proper investigation" and having to do so amid the logistic
challenges posed by COVID-19. (Mot. to Withdraw Plea at 17-18.)
{¶ 17} Appellant attached to his motion: his own affidavit; transcripts of the
November 20 and 21, 2018 hearings; a new summary report compiled by a private
investigator; the private investigator's reports on two handguns; the private investigator's
review of recording of a January 19, 2017 FaceTime video call between Speights (a surviving
victim who did not see the shooters) and Luanda Johnson (Harris's former girlfriend, who
was also a friend of a dancer at the bar); the private investigator's "Report[s] of Interviews"
with appellant, his mother and brother, Johnson, and Eric Powell (a friend of at least one
of the surviving victims who was allegedly at the bar on the evening of the shooting, spoke
to one victim after leaving the hospital, and was incarcerated on unrelated charges at the
Nos. 21AP-156 and 21AP-157 10
some prison as appellant); and an affidavit from Powell.3 (Mot. to Withdraw Plea, Ex. C
at 1.)
{¶ 18} Appellee filed a memorandum contra on November 6, 2020. Within it,
appellee argued that appellant failed to file his motion to withdraw his guilty plea within a
reasonable amount of time and is therefore untimely, that appellant's claims are barred by
res judicata, and that appellant's claims regarding the voluntariness of his plea, ineffective
assistance of counsel, and actual innocence lack merit.
{¶ 19} Appellant filed a reply with a supporting affidavit from Brea Hall. Hall
asserted personal knowledge regarding appellant's interactions with his defense counsel
based on attending "several meetings with him" and having personal interactions with
defense counsel. (Reply Brief to Memo. Contra, Ex. A, Hall Aff. at 1.) Hall averred that she
always felt defense counsel believed appellant was guilty. In her view, appellant "always
insisted on going to trial and never wanted to accept any plea offer in this matter"; Hall
noted that, at some point, she personally brought trial clothes to the jail for appellant. (Hall
Aff. at 1.)
{¶ 20} On April 7, 2021, the same trial court judge who accepted appellant's guilty
plea denied appellant's motion without a hearing. The trial court determined that
appellant's request to withdraw his plea was untimely, his claims were barred by res
judicata, and that appellant could not show a manifest injustice to warrant withdrawing his
plea. Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 21} Appellant assigns three assignments of error for review:
I. THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO WITHDRAW HIS PLEA
OF GUILTY WHEN IT FOUND HIS CLAIM WAS
UNTIMELY.
II. THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO WITHDRAW HIS PLEA
OF GUILTY WHEN IT WAS FOUND HIS CLAIM OF
ACTUAL INNOCENCE WAS BARRED BY RES
JUDICATA.
3 Although the private investigator suggests he included a report of an interview with Speights, no such
interview or report of interview was included with the report. We note recordings of the interviews conducted
by the private investigator are not in the appellate record.
Nos. 21AP-156 and 21AP-157 11
III. THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO WITHDRAW HIS PLEA
OF GUILTY WHEN IT FOUND THERE WAS NO
MANIFEST INJUSTICE.
III. ANALYSIS
{¶ 22} With his three assignments of error, appellant challenges the trial court's
decision to deny his motion to withdraw his guilty plea. For sake of clarity, we begin by
addressing the issue of res judicata raised in appellant's second assignment of error,
followed by the combined consideration of appellant's first and third assignments of error
concerning appellant's delay in filing his motion and his assertions of manifest injustice.
A. Second Assignment of Error (Res Judicata)
{¶ 23} In his second assignment of error, appellant contends the trial court erred in
denying his motion to withdraw his guilty plea on the basis that his claim of actual
innocence was barred by res judicata. Appellant believes the trial court erred in doing so
considering "the discovery of new evidence of his actual innocence." (Appellant's Brief at
viii.) As the applicability of res judicata is a question of law, we apply a de novo standard of
review. State v. Jefferson, 10th Dist. No. 21AP-306, 2021-Ohio-4188, ¶ 7; Johnson v.
Abdullah, 166 Ohio St.3d.427, 2021-Ohio-3304, ¶ 39.
{¶ 24} "Res judicata generally bars a defendant from raising claims in a Crim.R. 32.1
post-sentencing motion to withdraw a guilty plea that he raised or could have raised on
direct appeal." State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 23; State v. Mobley,
10th Dist. No. 20AP-350, 2021-Ohio-492, ¶ 11. Relatedly, this court has held that res
judicata does not bar claims raised in a motion to withdraw a guilty plea to the extent those
claims are based on new evidence outside of the trial court record and could not have been
raised in an earlier proceeding. See State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-
3266, ¶ 12 (10th Dist.).
{¶ 25} In this case, appellant's motion to withdraw his guilty plea included a new
report from a private investigator that included some information outside of the trial court
record and an affidavit obtained from a person familiar with the shooting and the victims.
Based on Brown, we find appellant's motion and attachments sufficient to avoid the
application of res judicata as to his claim of actual innocence based on new evidence. On
this record, the trial court erred to the extent it concluded otherwise. However, as explained
in addressing the remaining assignments of error, this error is not prejudicial to appellant.
Nos. 21AP-156 and 21AP-157 12
{¶ 26} Accordingly, appellant's second assignment of error is sustained.
B. First and Third Assignments of Error (Undue Delay in Filing the
Motion and Manifest Injustice)
{¶ 27} Appellant's first and third assignments of error challenge the alternative
grounds that the trial court cited in denying his motion. Appellant's first assignment of
error asserts the trial court erred in determining his motion was untimely. Appellant's third
assignment of error contends the trial court erred in determining appellant had not
demonstrated a manifest injustice exists warranting withdrawal of his plea. Because, as
indicated by the trial court, the timing of the filing of a motion to withdraw a guilty plea is
a "factor" affecting the credibility of the movant and viability of the motion, we will consider
appellant's delay in filing his motion as a part of assessing his claims of manifest injustice
under Crim.R. 32.1. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph three of the
syllabus.
{¶ 28} Crim.R. 32.1 permits a motion to withdraw a guilty plea "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
defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the
burden of establishing the existence of manifest injustice." Smith at paragraph one of the
syllabus. "A 'manifest injustice' is a 'clear or openly unjust act,' * * * and relates to a
fundamental flaw in the plea proceedings resulting in a miscarriage of justice." Straley at
¶ 14, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998) and State v.
Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, ¶ 7 (1st Dist.). Manifest injustice " 'is an
extremely high standard' " and a post-sentence withdrawal motion is allowable " 'only in
extraordinary cases.' " State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6,
quoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ¶ 11; Straley at ¶ 14, quoting
Smith at 264.
{¶ 29} "[T]he good faith, credibility and weight of the movant's assertions in support
of the motion are matters to be resolved by that court." Smith at paragraph two of the
syllabus. "An undue delay between the occurrence of the alleged cause for withdrawal of a
guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the
credibility of the movant and militating against the granting of the motion." Id. at
paragraph three of the syllabus.
Nos. 21AP-156 and 21AP-157 13
{¶ 30} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court." Smith at paragraph two of the syllabus. Therefore, "[a]n
appellate court reviews a trial court's decision on a motion to withdraw a plea under an
abuse-of-discretion standard." Straley at ¶ 15, citing Smith at paragraph two of the
syllabus; State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 32.
{¶ 31} Here, appellant asserts two issues created a manifest injustice warranting
withdrawal of his plea: (1) his plea was not knowingly, intelligently, and voluntarily made
due to ineffective assistance of counsel; and (2) his actual innocence. For the following
reasons, we disagree appellant demonstrated a manifest injustice under either theory.
1. Knowing, intelligent, and voluntary nature of his plea due to
ineffective assistance of counsel
{¶ 32} "A manifest injustice occurs when a plea is not knowing, voluntary, and
intelligent." State v. Spivakov, 10th Dist. No. 13AP-32, 2013-Ohio-3343, ¶ 14, citing State
v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 9. "Ineffective assistance of
counsel may constitute manifest injustice requiring post-sentence withdrawal of a guilty
plea" where counsel's errors affected the knowing and voluntary nature of the plea.
Spivakov at ¶ 13, citing State v. Tovar, 10th Dist. No. 11AP-1106, 2012-Ohio-6156, ¶ 9.
State v. McMichael, 10th Dist. No. 11AP-1042, 2012-Ohio-3166, ¶ 14 ("A guilty plea * * *
waives the right to assert ineffective assistance of counsel unless the counsel's errors
affected the knowing and voluntary nature of the plea.").
{¶ 33} "To establish a claim of ineffective assistance of counsel, a defendant must
show that his counsel was deficient and that the deficient performance prejudiced him."
Spivakov at ¶ 13, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). "In cases
seeking the withdrawal of a plea, the second prong of the ineffective-assistance test requires
the defendant to 'show that there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going to trial.' " Columbus v.
Akbar, 10th Dist. No. 15AP-776, 2016-Ohio-2855, ¶ 10, quoting State v. Ketterer, 111 Ohio
St.3d 70, 2006-Ohio-5283, ¶ 89.
{¶ 34} As a preliminary issue, we note that the trial court here held that all of
appellant's claims were barred by res judicata. While appellant challenged that holding on
appeal as it related to his claim of actual innocence based on new evidence, he did not assign
as error the trial court's determination that res judicata barred his claim that he did not
Nos. 21AP-156 and 21AP-157 14
enter his plea knowingly, intelligently, and voluntarily due to ineffective assistance of
counsel. As a result, the trial court's holding that res judicata bars those claims stands
uncontested and serves as an independent basis to affirm the trial court judgment as to
those issues. See State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394, ¶ 16
(discussing an appellant's failure to assign a trial court determination as error as a reason
appellate court should not address that determination on appeal); App.R. 12(A)(1)(b) ("a
court of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error
set forth in the briefs").
{¶ 35} Appellant's claim nevertheless fails on the merits since appellant did not meet
his burden of demonstrating a manifest injustice due to ineffective assistance of counsel
causing him to not enter his plea knowingly, intelligently, and voluntarily. First, appellant
has not shown his counsel was deficient. Appellant asserts his counsel was deficient by
"disregard[ing] all evidence supporting [appellant's strong claim of actual innocence,
ignore[ing] [appellant's] insistence on trial, and inappropriately influec[ing] [appellant's]
guilty plea." (Mot. to Withdraw Plea at 10-11.) In his affidavit, appellant admits his attorney
told him he "had a choice" whether to risk life in prison rather than accept a plea and get
out in 25 years, but then discussed how he believed he was "forced" into taking the plea.
(Mot. to Withdraw Plea, Ex. A, Lyons Aff. at 3.) In addition to his affidavit being internally
inconsistent, appellant's averments and motion amount to defense counsel counseling, in
very strong terms, the likely and dire result (life in prison with no possibility of parole) of
going to trial in this case based on the new evidence found since Harris's acquittal. On this
record, defense counsel's recommendation was within the exercise of reasonable
professional judgment. Strickland at 690 ("[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment."); State v. Murray, 12th Dist. No. CA2015-12-029,
2016-Ohio-4994, ¶ 28 (finding trial counsel's negotiation of a beneficial plea deal and
advice to accept the negotiated plea deal rather than proceeding to trial on the charges and
facing the possibility of multiple convictions and a significantly longer prison sentence was
not deficient).
{¶ 36} Second, appellant failed to show a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty. While appellant now asserts that in the
Nos. 21AP-156 and 21AP-157 15
days immediately prior to the change of plea hearing he saw "signs" defense counsel was
"neglecting his case," felt a "lack of representation," "always insisted on going to trial and
never wanted to accept any plea offer," and was "forced" into a guilty plea, appellant took
the opposite position at the plea hearing. (Lyons Aff. at 1, 4; Hall Aff. at 1.) Specifically,
when given the opportunity to express concerns about his defense counsel, appellant told
the trial court judge he was satisfied with his representation. He agreed he was pleading
guilty "voluntarily, freely, and of [his] own volition" and that he signed, understood, and
agreed with the plea form that indicated no person coerced him into pleading guilty and
was "completely satisfied with the legal representation and advice [he] received from [his]
counsel." (Nov. 21, 2018 Hearing Tr. at 11; Entry of Guilty Pleas at 2.)
{¶ 37} Appellant expressed his knowing, voluntary, and intelligent agreement to
plead guilty within the safeguards of Crim.R. 11. Appellant acknowledges the trial court
complied with Crim.R. 11, and the strong presumption of the plea therefore being
knowingly, voluntarily, and intelligently made. See State v. Harris, 12th Dist. No. CA2017-
11-161, 2018-Ohio-3222, ¶ 9. The record reflects appellant agreed to plead guilty within the
context of knowing that Harris was acquitted but also knowing appellee had recently
discovered jail calls, allegedly with appellant's voice, attempting to have appellant's brother
and Harris destroy a gun that was later located and determined to be consistent with one
used in the highway shooting. Considering appellant's position was that he was not present
at the shooting at all, this new evidence had the potential to damage appellant's (and his
alibi witnesses') credibility and risk the possibility of a life sentence without parole. At the
hearing, faced with this new evidence and having pled guilty, appellant seemed to shoulder
at least some responsibility for the shooting and asked the victim's father to accept his
apology.
{¶ 38} Finally, appellant's assertion that he would not have pled guilty is
undermined by his delay in filing his motion to withdraw his plea. Although Crim.R. 32.1
"does not provide for a time limit after the imposition of sentence, during which a motion
to withdraw a plea of guilty must be made, it has been held that an undue delay between
the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor
adversely affecting the credibility of the movant and militating against the granting of the
motion." Smith at 264.
Nos. 21AP-156 and 21AP-157 16
{¶ 39} Here, appellant asserts he complied with pleading guilty amid his counsel's
pressure with the hope that he could seek to withdraw his plea once out of his counsel's
presence. (Appellant's Brief at 6.) However, even though the trial court agreed to delay
issuing the judgment entry in the case for a week in order to allow appellant to remain in
local jail, there is no record of appellant writing the trial court judge or correctional
reception center to "explain what took place in his courtroom," as appellant suggests he did,
and appellant does not assert in his affidavit that he actually asked to withdraw his plea in
those letters either prior to the trial court issuing its judgment entry or anytime in the weeks
afterward. (Lyons Aff. at 4.)
{¶ 40} In other words, despite knowing the basis for his claim of ineffective
assistance of counsel at the time of the change of plea hearing in late November 2018 and
admittedly contemplating immediately withdrawing his plea once away from his counsel,
appellant waited nearly two years from the plea hearing and judgment to seek withdrawal
of his plea in September 2020. Appellant's contentions that this "minor" delay was
justified—by his intervening attempt at a direct appeal and/or his investigation during the
COVID-19 pandemic that led to "exculpatory evidence"—lacks merit in this case.
(Appellant's Brief at 9, 13.) Appellant provides, and we find, no legal authority requiring a
court considering a motion to withdraw a plea to wholly disregard the time-period a
defendant pursued a direct appeal. Regardless, we note appellant still waited over one year
from the May 31, 2019 dismissal of his direct appeal to file his motion to withdraw his plea.
Further, in this case the COVID-19 pandemic only accounted for the last four or five months
of the delay,4 and still does not explain why appellant waited nearly two years to file his
motion when his claim of ineffective assistance of counsel was apparent at the time he made
his plea. On the record of this case, the trial court did not err in considering the delay
between the date appellant said he was coerced into pleading guilty and the filing of his
motion nearly two years later to be unreasonable and a factor negatively affecting the
credibility of his motion. See, e.g., State v. Gripper, 10th Dist. No. 10AP-1186, 2011-Ohio-
3656, ¶ 8 (finding defendant's filing of his motion to withdraw his guilty plea "nearly two
4In re Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court & Use of
Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166 (stating the Governor of Ohio issued Executive Order
2020-01D and declared a state of emergency in Ohio in response to COVID- 19 on March 9, 2020).
Nos. 21AP-156 and 21AP-157 17
years after his sentencing" to be "[a]n undue delay" negatively affecting the defendant's
credibility and mitigating against granting of the motion).
{¶ 41} On this record, appellant has not demonstrated the alleged ineffective
assistance of counsel prejudiced him. State v. Moncrief, 10th Dist. No. 08AP-153, 2008-
Ohio-4594, ¶ 14 ("Moncrief I") (holding the trial court did not abuse its discretion by
refusing to permit appellant to withdraw his guilty plea where the "appellant's bare
allegations of coercion are contradicted by his own statements" to the trial court); State v.
Johnson, 6th Dist. No. L-16-1280, 2018-Ohio-1656, ¶ 14, quoting State v. Whiteman, 11th
Dist. No. 2001-P-0096, 2003-Ohio-2229, ¶ 20 (" 'a defendant's own self-serving allegations
are insufficient to rebut a record demonstrating that the plea was properly made.' ").
Therefore, because appellant failed to set forth sufficient facts showing his counsel was
deficient or that the alleged deficient performance prejudiced him, appellant failed to
demonstrate a manifest injustice based on the claim that his plea was not knowingly,
intelligently, and voluntarily made due to ineffective assistance of counsel.
{¶ 42} As a result, based on the trial court's unchallenged holding on res judicata on
this issue and appellant's failure to demonstrate a manifest injustice, we conclude the trial
court acted within its discretion in denying appellant's motion to withdraw his guilty plea
on this claim.
2. Claim of actual innocence
{¶ 43} Appellant additionally contends that his claim of innocence justifies the
withdrawal of his guilty plea. "[I]n extraordinary cases, new attestations of fact, which an
effective lawyer might not reasonably have anticipated in counseling his client, may be
adduced after a conviction by plea and give rise to the possibility that actual innocence
marks the conviction as a manifest injustice." State v. Little, 10th Dist. No. 21AP-272,
2022-Ohio-1295, ¶ 14. For the following reasons, we do not agree appellant's motion
demonstrates a manifest injustice arising from his claim of actual innocence.
{¶ 44} First, "[a] defendant's claims of innocence are not sufficient to warrant
withdrawal of a plea knowingly entered." State v. Powers, 4th Dist. No. 03CA21, 2004-
Ohio-2720, ¶ 18. Here, appellant pled guilty when represented by counsel and during a
plea hearing where the trial court undisputedly complied with Crim.R. 11. As previously
explained in this decision, although appellant now takes issue with his counsel's
Nos. 21AP-156 and 21AP-157 18
recommendation to plead guilty considering the new evidence presented by appellee,
appellant neither contested the trial court's holding that this matter was barred by res
judicata nor demonstrated that his plea was not knowingly, intelligently, and voluntarily
made due to ineffective assistance of counsel.
{¶ 45} Second, appellant's claim of actual innocence runs contrary to the record.
The record in this case reflects that during the change-of-plea hearing appellant not only
agreed to plead guilty, but also expressed remorse and accepted some responsibility for the
shooting. Appellant asked the father of the deceased victim to "accept [his] apology,"
expressed that he was "sorry," acknowledged the victim "didn't deserve it," and indicated
he would like to remain in local jail to handle some personal affairs before going to prison.
(Nov. 21, 2018 Hearing Tr. at 25.)
{¶ 46} Third, the evidence of actual innocence put forth by appellant does not
demonstrate a manifest injustice in this case. Appellant does not aver in his own affidavit
that he is innocent. Rather, citing the Harris case and acquittal, appellant asserts he always
wanted to go to trial and was pressured to not do so. However, appellant's belief that he
would have had a good chance of acquittal at trial is different than asserting his innocence.
{¶ 47} In addition to his own affidavit, appellant heavily relies on the new report of
the private investigator. The trial court found the report to be "misleading," "erroneous"
and based on evidence known to appellant at the time of the plea. (Apr. 7, 2021 Trial Court
Decision at 7-8.) We agree. The report is based on unauthenticated and unsworn
summaries of interviews and the investigator's review of existing reports and the Harris
trial. We note neither of the claimed alibi witnesses provided an affidavit in support of
appellant's motion. The report misleadingly claims "no witnesses named [appellant] as the
shooter" and a FaceTime call "eliminat[ed] appellant as the alleged shooter" without
explaining those witnesses never claimed to have seen the shooters and without
interviewing the one victim, T.C., who originally identified appellant and Harris as the
shooters to police. (Mot. to Withdraw Plea, Ex. C, Report of Investigation at 2, 6.)
{¶ 48} Moreover, the private investigator's report does not, as appellant suggests,
show that the jail "calls cannot be linked to [appellant] definitively in any way." (Appellant's
Brief at 23.) To the contrary, the report concedes: "[i]nmate PINS (used to make calls) are
often times easy to obtain"; no information was available as to whether appellant was
Nos. 21AP-156 and 21AP-157 19
housed in the same pod as the inmate; even if appellant was not in the same pod, obtaining
that PIN would be "difficult" (not impossible); the calls were made to appellant's brother
and Harris concerning destroying a gun; detectives found a gun (a "9mm Smith & Wesson
MP") in the location indicated by the inmate caller; and [l]ab result indicated "one of the
[gun]'s test fire casing had corresponding characteristics with one of the spent blazer 9mm
cartridge cases" found at the scene of the shooting. (Mot. to Withdraw Plea, Ex. D-1
Discovery of Smith & Wesson 9MM Handgun at 2, 3.) Nevertheless, the report
concludes,"[t]here is no evidence that this firearm was owned or in the control of
[appellant]" or "ever used in the commission of a crime." (Mot. to Withdraw Plea, Ex. D-1
at 4.)
{¶ 49} The basis for this conclusion—that the Smith & Wesson MP was not used in
the shooting—is the private investigator's determination that the bullet fragments found in
the deceased victim's head and shoulder were determined to be .38 caliber, which according
to the investigator could not be fired from the 9mm Smith & Wesson pistol. This conclusion
does not account for any legal ramifications of that gun being linked, at minimum, to a
spent cartridge at the scene of the shooting. Further, as noted by the trial court, this
conclusion also fails to consider whether the (nearly) identical diameters of .38 caliber and
9mm bullets, as testified to by a firearms expert in the Harris trial, could render the .38
bullet fragments consistent with a 9mm bullet. See Apr. 2018 Harris Trial Tr. at 356-7
(testifying firearm expert opinion that fragments "were of the same size * * * .38 caliber or
9 millimeter caliber. They are the same in diameter " as the other three fragments).5 We
further note that the private investigation report acknowledges that the projectile found in
the wall of appellant's home was found to match the projectiles recovered from Tuttle's
vehicle and shoulder, further linking appellant to the shooting. (Mot. to Withdraw Plea,
Ex. D-2 at 2.) The firearms expert testified to the same during the Harris trial.
{¶ 50} Overall, the new evidence provided by appellant, including the private
investigation report and Powell affidavit, amounts to speculation that third-party drug
dealers had more of a motive to shoot at the car than appellant, and speculation that
appellant and Harris could not have committed the crime since they left the bar before the
5We note that, while appellant devotes time in his brief to contesting seizure of the gun in his home, appellee
does not contend that gun was used in the shooting.
Nos. 21AP-156 and 21AP-157 20
victims6 and allegedly in a different colored car than one described as involved in the
incident. This conclusion ignores the impact of the jail calls and subsequent recovery of the
gun linked to the shooting, and appellant's motion bolsters, rather than diminishes, the
likelihood that those jail calls were in fact made by him. Furthermore, having reviewed
appellant's motion and supporting materials, we find appellant's investigation did not
"uncover exculpatory evidence" that would arguably justify the nearly two-year delay in
filing the motion. (Appellant's Brief at 9.) Contrary to appellant's argument, he has not
called to this court's attention "serious questions" left unanswered, and we note that based
on evidence particular to appellant, his case cannot be considered equivalent to Harris's
case. (Appellant's Brief at 17.) Considering all the above, the trial court did not err in
determining appellant failed to meet the " 'extremely high standard' " of showing manifest
injustice premised on actual innocence. Tabor at ¶ 6, quoting Price at ¶ 11.
3. Lack of hearing
{¶ 51} Appellant adds, as an argument under his third assignment of error, that the
trial court "further erred in not holding a hearing on this matter." (Appellant's Brief at 48.)
Initially, we note that "a court of appeals shall * * * [d]etermine the appeal on its merits on
the assignments of error set forth in the briefs." Huntington Natl. Bank v. Burda, 10th
Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21, citing App.R. 12(A)(1)(b). See also Williams v.
Barrick, 10th Dist. No. 08AP-133, 2008-Ohio-4592, ¶ 28 (holding that appellate courts
"rule[ ] on assignments of error only, and will not address mere arguments").
{¶ 52} Here, appellant did not separately assign this issue as an assignment of error
and did not indicate the lack of a hearing as an issue necessary to resolving the third
assignment of error. (Appellant's Brief at vii, viii.) We further note that in his motion to
withdraw his plea appellant asked the trial court for an oral rather than evidentiary hearing
and, on appeal, in addition to not clearly delineating this issue as an assignment of error,
appellant has not asked this court to remand the matter for a hearing but rather asks this
court to remand his case for a new trial. (Appellant's Brief at 52; Reply Brief at 20.)
6 The parties here agree that video surveillance cameras show appellant and Harris leaving the bar at about
1:54 or 1:55 a.m., the eventual victims leaving the bar at about 2:30 to 2:35 a.m., and that police officers were
dispatched to the scene of the shooting at 2:38 a.m. (Appellant's Brief at 27-29; Appellee's Brief at 4.) A
detective testified during the Harris trial that appellant lived 1.8 miles from the bar. (Apr. 2018 Harris Trial
Tr. at 733.)
Nos. 21AP-156 and 21AP-157 21
{¶ 53} Nevertheless, to the extent the lack of a hearing bears on the third assignment
of error, appellant's argument lacks merit. "A trial court's decision whether to hold a
hearing on a postsentence motion to withdraw is subject to review for abuse of discretion."
State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 12 ("Moncrief II"). We are
further guided by the view that "the good faith, credibility and weight of the movant's
assertions in support of the motion are matters to be resolved by that court." See Smith at
paragraph two of the syllabus. As we stated in State v. Rembert, 10th Dist. No. 16AP-543,
2017-Ohio-1173, ¶ 20:
Under Ohio law, "[a] trial court is not automatically required to
hold a hearing on a post-sentence motion to withdraw a guilty
plea." State v. Walsh, 5th Dist. No. 14-CA-110, 2015-Ohio-4135,
¶ 24, citing State v. Spivakov, 10th Dist. No. 13AP-32, 2013-
Ohio-3343. Rather, "[a] hearing must only be held if the facts
alleged by the defendant, accepted as true, would require that
the defendant be allowed to withdraw the plea." Id. In this
respect, "a movant must establish a reasonable likelihood that
the withdrawal is necessary to correct a manifest injustice
before a hearing is required." State v. Whitmore, 2d Dist. No.
06-CA-50, 2008-Ohio-2226, ¶ 11. In general, "a self-serving
affidavit or statement is insufficient to demonstrate manifest
injustice," and "a hearing is not required if the record indicates
that the movant is not entitled to relief and the movant has
failed to submit evidentiary documents sufficient to
demonstrate a manifest injustice." Walsh at ¶ 24. Thus,
"[w]here the defendant fails to 'carry his burden of presenting
facts from the record or supplied through affidavit that
establish manifest injustice or warrant a hearing,' we are not
required to permit withdrawal of the plea or to hold a hearing."
State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155,
¶ 47, quoting State v. Garcia, 10th Dist. No. 08AP-224, 2008-
Ohio-6421, ¶ 15. See also State v. Mays, 174 Ohio App.3d 681,
2008-Ohio-128, ¶ 6, 884 N.E.2d 607 (8th Dist.) ("A trial court
need not hold an evidentiary hearing on a post-sentence
motion to withdraw a guilty plea if the record indicates the
movant is not entitled to relief and the movant has failed to
submit evidentiary documents sufficient to demonstrate a
manifest injustice.").
{¶ 54} In this case, appellant did not challenge the trial court's determination that
res judicata barred appellant's claim that he did not enter his plea knowingly, intelligently,
and voluntarily due to ineffective assistance of counsel. That holding stands and, under our
case law, a trial court does not abuse its discretion by denying a motion to withdraw a guilty
Nos. 21AP-156 and 21AP-157 22
plea without a hearing where the application of res judicata to the motion is clear. Moncrief
II at ¶ 13. See also Gripper at ¶ 13, 17 (finding the trial court did not err in failing to hold a
hearing on defendant's motion to withdraw his guilty plea where the "argument defendant
submitted to the trial court to support his motion failed as a matter of law" and the
"defendant [wa]s unable to point to anything in the record to support his claim of ineffective
assistance of counsel" aside from claims that ran contrary to the record of the plea and
sentencing hearing).
{¶ 55} Furthermore, we disagree with appellant's assessment that "if the facts
asserted by [a]ppellant had been accepted as true, it would mean there is no evidence
linking him to the crimes * * * and, most notably * * * would show that someone else
committed those crimes." (Appellant's Brief at 48.) Instead, if accepted as true, appellant's
version of the facts would not establish his innocence, but would instead establish that
certain people, who did not see the shooters, speculate that another person had greater
motive to shoot the victims than appellant. In addition, the trial judge, who we note was
the same judge to accept appellant's plea, did not abuse his discretion by evaluating the
credibly of appellant's motion and supporting materials against the record in determining
whether those claims warranted a hearing. See State v. Dye, 1st Dist. No. C-120483, 2013-
Ohio-1626, ¶ 14 (holding trial court did not abuse its discretion in discounting the
credibility of the affidavits without an evidentiary hearing); State v. Miranda, 10th Dist.
No. 13AP-271, 2013-Ohio-5109, ¶ 21, citing State v. Buck, 9th Dist. No. 04CA008516, 2005-
Ohio-2810, ¶ 14, quoting State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ¶ 12 ("An
evidentiary hearing on a post-sentence motion to withdraw a guilty plea is not required if
the 'record indicates that the movant is not entitled to relief and the movant has failed to
submit evidentiary documents sufficient to demonstrate a manifest injustice.' "). See also
Little at ¶ 17-26 (determining the trial court acted within its discretion in determining,
without a hearing, that a complaining witness's recanting affidavit in support of his
assertion of actual innocence lacked credibility under the factors identified in State v.
Calhoun, 86 Ohio St.3d 279, 285 (1999), including whether the affidavit contradicted
evidence in the record).
{¶ 56} On this record, appellant has not established a reasonable likelihood that the
withdrawal of his plea is necessary to correct a manifest injustice, and, therefore, has not
Nos. 21AP-156 and 21AP-157 23
demonstrated the trial court abused its discretion in determining this matter without a
hearing. Little at ¶ 21 citing Rembert ¶ 20. Along these same lines, appellant has not
indicated how the lack of a hearing prejudiced him in this case, considering the trial court's
holdings on res judicata and manifest injustice, and therefore has not demonstrated
reversible error on this basis. App.R. 12(B) and (D) (stating only prejudicial error requires
reversal on appeal).
{¶ 57} After consideration of the record of this case and the arguments and
supporting legal authority provided by the parties on appeal, we conclude the trial court did
not err by considering the timing of appellant's filing of his motion or by determining
appellant has not demonstrated a manifest injustice warranting withdrawal of his plea and
a new trial on this record. As a result, appellant's first and third assignment of error lack
merit.
{¶ 58} Accordingly, appellant's first and third assignments of error are overruled.
IV. CONCLUSION
{¶ 59} Having sustained appellant's second assignment of error and overruled
appellant's first and third assignments of error, we affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.
NELSON, J., concurs.
JAMISON, J., dissents.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
JAMISON, J., dissenting.
{¶ 60} The question whether res judicata bars a motion to withdraw a guilty plea is
a question of law which an appellate court reviews de novo. State v. Muhumed, 10th Dist.
No. 11AP-1001, 2012-Ohio-6155, ¶ 1.
I. LEGAL ANALYSIS
{¶ 61} To facilitate the legal analysis, I shall consider appellant's assignments of
error out of order.
Nos. 21AP-156 and 21AP-157 24
A. Appellant's Second Assignment of Error
{¶ 62} In appellant's second assignment of error, appellant contends that the trial
court erred when it concluded that res judicata barred the claims in his motion to withdraw
his guilty plea. I agree.
{¶ 63} "The first consideration for a trial or appellate court is whether the claims
raised in the motion to withdraw a guilty plea are barred by res judicata." State v. Creech,
7th Dist. No. 2021-Ohio-3020, ¶ 20, citing State v. Reynolds, 3d Dist. No. 12-01-11, 2002-
Ohio-2823, ¶ 27. "Only if the claim is not barred by res judicata should the court proceed to
the manifest injustice standard." Creech at ¶ 20, citing Reynolds at ¶ 27.
{¶ 64} "Ineffective assistance of counsel may constitute a basis for a motion to
withdraw a guilty plea pursuant to Crim.R. 32.1. [T]he doctrine of res judicata, however,
bars review of a claim of ineffective assistance of counsel when such claims were or could
have been asserted on direct appeal." Creech at ¶ 20, citing State v. Straley, 159 Ohio St.3d
82, 2019-Ohio-5206, ¶ 23, State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59. An
exception to res judicata applies for a Crim.R. 32.1 motion to withdraw a guilty plea when
the movant raises claims that were not available on appeal because they are based on
evidence outside the record. State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, ¶ 12
(10th Dist.). See also State v. Cartlidge, 3d Dist. No. 13-21-06, 2021-Ohio-3787, ¶ 9, citing
State v. Brown, 7th Dist. No. 18 CO 0025, 2019-Ohio-2717, ¶ 12, State v. Helton, 3d Dist.
No. 8-08-06, 2008-Ohio-3601, ¶ 13, State v. Fontes, 3d Dist. No. 14-99-03, 1999 Ohio App.
LEXIS 3513. To overcome res judicata, the movant must provide new evidence that was not
a part of the original record in order to overcome res judicata. Cartlidge at ¶ 9.
{¶ 65} Here, much of the evidence presented by appellant in support of his motion
to withdraw his guilty plea was not part of the trial court record and could not have been
raised by appellant in support of an ineffective assistance of counsel claim on direct appeal.
For example, appellant's affidavit contains appellant's recollection of several off-the-record
conversations between appellant and his trial counsel in the critical days surrounding the
withdrawal of his guilty plea. The averments in appellant's affidavit validate his claim he
never intended to plead guilty and that his guilty plea was the result of pressure from his
trial counsel and the trial court.
Nos. 21AP-156 and 21AP-157 25
{¶ 66} Appellant also presented the affidavit of Brea Hall, who claims to have
personal knowledge of conversations between appellant and his trial counsel concerning
trial preparation and strategy. Hall also averred that during critical points in the
proceedings, she provided appellant's trial counsel with potentially exculpatory evidence
that appellant's counsel disregarded. Appellant also produced investigatory materials and
reports issued by True Source containing alleged exculpatory evidence that was either not
discovered by appellant's counsel when it should have been or was not shared with appellant
and disregarded by trial counsel.7 This evidence arguably supports appellant's claim that
deficiencies in the performance of trial counsel prevented him from obtaining evidence to
substantiate reasonable doubt.
{¶ 67} Appellant also produced the August 19, 2019, affidavit of Eric Powell, a friend
of victim Dorell Taylor. In his affidavit, Powell averred that he visited Taylor at the hospital
after the shooting and Taylor told him that appellant had nothing to do with the crime.
Taylor told Powell that a local drug dealer known as Dame shot at their vehicle because of a
recent dispute with Copeland over drugs. The transcript from the Harris trial reveals that
the state did not call Taylor as a witness for the prosecution even though he was in the vehicle
when the shots were fired and sustained a gunshot wound.
{¶ 68} Thus, appellant produced substantial evidence outside the trial court record
to support his claim that his guilty plea was the product of ineffective assistance of trial
counsel and coercion. Because this evidence exists outside the record in appellant's direct
appeal from his conviction and sentence, res judicata does not bar the claim of ineffective
assistance of trial counsel made by appellant in his Crim.R. 32.1 motion. Brown at ¶ 12,
Cartlidge at ¶ 8.
B. Appellant's First Assignment of Error
{¶ 69} In appellant's first assignment of error, appellant contends that the trial court
erred when it denied his motion to withdraw his guilty plea as untimely filed. I agree.
{¶ 70} Unlike other postconviction remedies such a petition for postconviction relief
brought pursuant to R.C. 2953.21 et seq., or a motion for a new trial under Crim.R. 59, there
is no time limitation imposed upon a party moving to withdraw a guilty plea pursuant to
7I would note that an investigator was appointed by the trial court to conduct an investigation of the charges
on behalf of appellant, but the report from the investigation is not part of the record in this case.
Nos. 21AP-156 and 21AP-157 26
Crim.R. 32.1, based on a claim of manifest injustice. State v. Hall, 10th Dist. No. 05AP-957,
2006-Ohio-2742, ¶ 14. "Although Crim.R. 32.1 does not prescribe a time limitation, an
'undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and
the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the
movant and militating against the granting of the motion.' " Hall at ¶ 14, quoting State v.
Smith, 49 Ohio St.2d 261 (1977), at paragraph three of the syllabus.
{¶ 71} In denying appellant's Crim.R. 32.1 motion as untimely filed, the trial court
found as follows:
The length of time between Defendant's plea and his motion
to withdraw his guilty plea is approximately two years.
Defendant explains his delay in filing as a need to gather
evidence, but he does not claim that he was unaware of the
charges to which he plead guilty. Defendant claims he was
coerced into the plea by his Counsel, therefore, no
investigation of that fact was necessary, as he was aware of it
on the date he was sentenced. He could have asked to
withdraw his plea right away, but, instead, waited years.
Defendant's motion indicates he began writing the Court
"immediately" and sent an affidavit, but no letters or affidavits
appear in the record.
(Nov. 6, 2020 State's Memo. Contra Def.'s Mot. to Withdraw Guilty Plea at 2.)
{¶ 72} I have difficulty understanding how appellant's knowledge of the offenses to
which he pleaded guilty would shorten the time needed to conduct a thorough investigation
of the facts underlying appellant's Crim.R. 32.1 motion. Similarly, appellant's
contemporaneous knowledge of the alleged coercion, would not have obviated the need for
appellant to obtain supporting affidavits, including the affidavit from Brea Hall. Nor did it
obviate the need to employ True Source to conduct an extensive investigation in support of
his claim of reasonable doubt. The True Source report also supports appellant's contention
that he would not have pleaded guilty but for counsel's coercive tactics.
{¶ 73} Powell's affidavit is dated August 19, 2019, but he was interviewed by True
Source at the Ross Correctional Facility on April 9, 2020. The True Source report to
appellant's counsel is dated September 20, 2020. Appellant filed his motion to withdraw
his guilty plea on September 23, 2020. Brea Halls' affidavit, dated December 4, 2020, was
filed with the trial court on December 4, 2020. Thus, the record shows appellant promptly
filed his Crim.R. 32.1 motion upon receipt of the supporting affidavits and evidence.
Nos. 21AP-156 and 21AP-157 27
{¶ 74} Moreover, the record in this case shows that on December 28, 2018, appellant
filed a timely notice of appeal from his conviction and sentence. There is no question that
appellant could have asserted an assignment of error alleging that his plea was involuntary
due to ineffective assistance of trial counsel and coercion. While appellant's direct appeal
was pending, however, the trial court's jurisdiction to entertain a Crim.R. 32.1 motion on
the same or similar grounds would have been limited. State v. Wilson, 2d Dist. No. 25482,
2014-Ohio-1764, citing State ex rel. State Fire Marshal v. Curl, 87 Ohio St.3d 568, 570
(2000). Moreover, the Supreme Court of Ohio has also concluded that Crim.R. 32.1 does
not confer upon the trial court the power to vacate a judgment which has been affirmed by
the appellate court, for this action would affect the decision of the reviewing court, which is
not within the power of the trial court to do. State ex rel. Special Prosecutors v. Judges,
Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978).
{¶ 75} Appellant subsequently elected to dismiss his direct appeal to pursue a
Crim.R. 32.1 motion to withdraw his appeal. As will be addressed in my disposition of
appellant's second assignment of error, the evidence produced by appellant in support of his
Crim.R. 32.1 motion exists largely outside the record that would have been available to this
court in a direct appeal. Given the timeframe for appellant to perfect a direct appeal, I
cannot fault appellant for initially pursuing a direct appeal in this court, but upon reflection,
electing to forego the direct appeal in favor of a motion to withdraw his guilty plea.
{¶ 76} This court granted appellant's motion and dismissed appellant's appeal on
May 31, 2019. In my view, the relevant period of time attributable to appellant is the 16-
month period between the date this court granted appellant's motion to dismiss his direct
appeal and the date appellant filed his motion to withdraw his plea. It was not reasonable
for the trial court to attribute "approximately two years" of delay to appellant's alleged lack
of diligence. (State's Memo. Contra Def.'s Mot. to Withdraw Guilty Plea at 2.) Given the
intervening appeal and the extensive investigation necessary to establish appellant's claim
of manifest injustice, I would find appellant's motion to withdraw his guilty plea was timely
filed and the trial court abused its discretion in finding the motion untimely. Thus, it was
also an abuse of discretion for the trial court to consider the timing of appellant's Crim.R.
32.1 motion as a factor adversely affecting the credibility of appellant's affidavit and other
evidence.
Nos. 21AP-156 and 21AP-157 28
{¶ 77} Based on the foregoing, I would sustain appellant's first assignment of error.
C. Appellant's Third Assignment of Error
{¶ 78} In appellant's third assignment of error, appellant argues the trial court erred
when it determined that appellant's motion failed to set forth an actionable claim of manifest
injustice based upon ineffective assistance of trial counsel and coercion. Appellant contends
that his guilty plea was involuntary due to counsel's failure to investigate his case and
prepare a defense based on reasonable doubt. Appellant also contends that his counsel
coerced him into pleading guilty even though he told the trial court and his counsel that he
wanted a trial.
1. Ineffective Assistance of Counsel/Coercion
{¶ 79} "Ineffective assistance of counsel can form the basis for a claim of manifest
injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1." State v.
Hernandez, 10th Dist. No. 11AP-202, 2011-Ohio-5407, ¶ 13, citing State v. Dalton, 153 Ohio
App.3d 286, 2003-Ohio-3813 (10th Dist.). "[A] guilty plea waives the right to assert
ineffective assistance of counsel unless Hug's errors affected the knowing and voluntary
nature of the plea." Hernandez at ¶ 13, citing State v. Hill, 10th Dist. No. 10AP-634, 2011-
Ohio-2869, ¶ 15, citing State v. Spates, 64 Ohio St.3d 269, 272 (1992). "A defendant seeking
to withdraw a guilty plea based on ineffective assistance of counsel must show: (1) that
counsel's performance was deficient, and (2) that there is a reasonable probability that, but
for counsel's errors, the defendant would not have agreed to plead guilty." Hernandez at ¶
13, citing State v. Xie, 62 Ohio St.3d 521 (1992), citing Strickland v. Washington, 466 U.S.
668 (1984).
{¶ 80} "The claim of a coerced plea and ineffective assistance of counsel are, in many
respects, closely related." State v. Watts, 6th Dist. No. L-86-061, 1986 Ohio App. LEXIS
9536 (Dec. 31, 1986). In this instance, appellant contends that he did not enter a knowing,
intelligent, and voluntary plea because he was coerced into pleading guilty by his trial
counsel. This court has previously treated such claims as claims of ineffective assistance of
counsel. See State v. Moncrief, 10th Dist. No. 08AP-153, 2008-Ohio-4594, ¶ 13, Hernandez
at ¶ 13.
{¶ 81} In my view, appellant's affidavits and supporting evidence establish that his
guilty plea was the product of a growing lack of conflict between appellant and trial counsel
Nos. 21AP-156 and 21AP-157 29
that made the plea a product of coercion based upon the circumstances. Appellant's affidavit
contains the following averments regarding his desire to go to trial:
On Thursday November 15, 2018 my attorney (Robert Bob
Krapenc) came to visit me at Franklin county jail. During this
meeting my lawyer informed me on new information that was
pertaining to my case. He said maybe we should start
considering a plea. Something that have never been discussed
or offered the entire time of my case (over 2years) while
preparing for trial.
I responded telling Mr. Krapenc that I would like to carry on
with trial and he told me that he give me time to think about
it and if I changed my mind then he would be back tomorrow
but needs to know because the prosecutor would start
subpoenaing witnesses, I did not hear from Krapenc until
Monday November 19, 2018. When he told me that the
prosecutor said the victim's family wants a year for every year
that the victim was living. I told Krapenc that I did not agree
with the terms and that I would like to carry on with trial as I
have said the full pendency of my case. Krapenc then told me
that I may be called to court tomorrow (November 20, 2018)
because he thought that I would take a plea, which I never
showed any signs of interest. Later that Monday I received a
visit from a close friend that I consider my brother, showing
me phone calls and text messages from my lawyer trying to let
me take a plea after I made my decision to him hours ago.
During my time having Mr. Krapenc as my lawyer I have
always stressed trial.
(Sic passim.) (Sept. 23, 2020 Mot. to Withdraw Guilty Plea Ex. A at 1.)
{¶ 82} The transcript of the proceedings held on November 20, 2018, is consistent
with the relevant allegations in the affidavit. The transcript provides in relevant part as
follows:
THE COURT: Have you spent a lot of time with your lawyer
talking about the potential for your prison time?
THE DEFENDANT: Yes. Since Thursday.
THE COURT: All right. You understand that if things don't go
your way it very well could be that you spend the rest of your
life in prison?
THE DEFENDANT: Yes.
THE COURT: And it's very likely that there would not be
parole in that instance. The years to life with the possibility of
parole is a pretty generous offer under these circumstances,
Nos. 21AP-156 and 21AP-157 30
sir. And I think you should consider it, as your attorney has
told you. Fifteen years sounds like a long time, but it's a lot
less time than life. Do you want to consider it some more and
come back in a few minutes? You have a right to a trial.
Absolutely you do. But I think most people in the courtroom,
if not everyone, wonders about that at this point. You'll get a
fair trial if you want one, but you're looking at a lot of time,
sir.
THE DEFENDANT: I'd rather just take it to trial.
THE DEFENDANT: Yes.
THE COURT: I'm sorry, sir. I can't hear you.
THE DEFENDANT: Trial.
THE COURT: You want a trial?
Okay. Is there anything further we need to discuss at this
point? I am going to go ahead and sustain the motion for
joinder. That will be done.
MR. HUGHES: I don't think so, Your Honor. I mean, the
state's prepared. Everybody's subpoenaed. The evidence is set
to go, so the state is prepared to begin on Monday as
scheduled.
(Emphasis added.) (Nov. 19, 2018 Tr. at 8-9.)
{¶ 83} The proceedings on November 20, 2018, concluded at 2:40 p.m. (Tr. at 9.)
The record shows that at 2:43 p.m. on November 20, 2018, the trial court issued a criminal
disposition sheet scheduling appellant's case for a proceeding to commence on November
26, 2018. This order is consistent with the wishes appellant expressed to the trial court in
the November 20, 2018 proceedings. In his affidavit, appellant relates the events that
occurred after the November 20, 2018 proceeding:
After finalizing trial, I left the courtroom to a holding cell
Where Mr. Krapenc approached me saying that I was stupid
and he don't know what I was thinking, "its like a truck coming
your way and I'm telling you to move and your just standing
there." He said that I would lose if l went to trial and I was just
handing them my life. He then stated that he would have to
just let the state put on a case for two weeks with no objections
because there would not be many to make and that he would
not be able to represent me to the full of capability. I asked
Mr. Krapenc what happened to the doubts in my case. I
mentioned that my codefendant was found not guilty; the only
eye witness testified that he did not see me there; also l had a
good appeal on my case due to an illegal search. He responded
Nos. 21AP-156 and 21AP-157 31
telling me that at this point it didn't matter. After the
conversation took a turn, I was sent back to my county jail cell,
with still the mindset that I would be starting trial on Monday
November 26th 2018.
(Mot. to Withdraw Guilty Plea Ex. A at 2.)
{¶ 84} Following appellant's discussion with his trial counsel, the record shows that
the trial court issued another criminal disposition sheet at 3:27 p.m. scheduling a jury trial
to be held on November 21, 2018. In appellant's affidavit, he discusses the events that took
place on the morning of Wednesday November 21, 2018:
The next day Wednesday 21, 2018, I was called to the a.m.
courts thinking that there must have been error with the
guards or courts because the last understanding I had was
trial on Monday. After being placed in the holding cell, my
lawyer stated that he got me 25years and if I didn't take it then
he could promise me life without parole. I told him that I just
put it on record less than 24hours ago in front of the judge
that I was going to trial He said that I had a choice. I could see
my daughter when she is 25years old or not at all, if I didn't
make a decision then he would have to make one for me. I told
Mr. Krapenc to take me in front of the judge so I can request
for a new counsel to be appointed because I did not feel he was
in my best interest. He stated that the judge was not doing
that, my case has been on the docket too long and it would cost
the courts too much money. The best he could do was take a
year off the offer from the day before (26years) and ask for my
court cost to be waived, which means I would be able to attend
the store my time being incarcerated.
He told me that the judge, prosecutor and the victim's family
was all in the courtroom waiting for me to put the plea on
record. Right there I felt defenseless, as if everyone knew
about this but me. I asked Mr. Krapenc can I discuss this with
my family and come back. He told me that sentencing must be
done today because tomorrow is thanksgiving and Friday the
courts would be closed. I asked if I did agree right now could
I be called back for sentencing which at that moment I was
trying to do whatever I could so I can stop feeling boxed in and
get back to my family. Hoping they can contact the person
with the correct authority to address this matter and he said
no because the prosecutor thinks that you will try to withdraw
the plea by then.
(Sic passim.) (Mot. to Withdraw Guilty Plea Ex. A at 2-3.)
Nos. 21AP-156 and 21AP-157 32
{¶ 85} In my view, the totality of the circumstances surrounding appellant's change
of plea and immediate sentencing corroborate appellant's claim of coercion. In his affidavit,
appellant was adamant that in discussions with his trial counsel he never expressed any
desire to plead guilty. The transcript of the November 20, 2018 proceeding shows that
appellant repeatedly told the trial court he wanted to go to trial.
{¶ 86} There is no dispute that, approximately seven months prior to the time
appellant pleaded guilty, a jury acquitted appellant's co-defendant of all charges arising out
of this incident. Appellant was aware of this fact at the time he told the trial court "I'd rather
just take it to trial." (Emphasis added.) (Tr. at 8-9.) Though additional evidence could be
produced by the prosecution in appellant's jury trial, the fact remains a Franklin County jury
acquitted appellant's co-defendant of all charges arising out of this incident on essentially
the same evidence. Thus, it is certainly reasonable for appellant to believe that he had a
good chance of establishing reasonable doubt in a jury trial.
{¶ 87} Rule 1.2. of the Code of Professional Conduct sets out "Scope of
representation and allocation of authority between client and lawyer," in relevant part as
follows:
(a) Subject to divisions (c), (d), and (e) of this rule, a lawyer
shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be
pursued. * * * A lawyer may take action on behalf of the client
as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client's decision whether to settle a
matter. In a criminal case, the lawyer shall abide by the
client's decision as to a plea to be entered, whether to waive a
jury trial, and whether the client will testify.
(Emphasis added.)
{¶ 88} The trial court record and appellant's affidavit show that appellant informed
his trial counsel on November 19, 2018, he did not agree with the plea offer and he wanted
to go to trial. Appellant claims that following his conversation with trial counsel appellant
was contacted by a close friend who showed him text messages from his trial counsel urging
his friend to convince appellant to plead guilty. Appellant's trial counsel confirmed that he
had spoken with appellant's brother during the November 20, 2018 proceeding.
{¶ 89} Appellant's affidavit and the record of proceedings in the trial court also
establish that the trial court, prosecutor, and appellant's attorney wanted the case resolved
Nos. 21AP-156 and 21AP-157 33
before the Thanksgiving holiday. After taking appellant's plea, the trial court proceeded
immediately to sentencing without first ordering a presentence investigation, as is
customary. Appellant's affidavit permits the inference that the trial court took this unusual
step because the prosecutor, appellant's counsel, and the trial court believed appellant, if
permitted to collect his thoughts and gather with family members, would move the trial
court to withdraw his plea prior to sentencing. "When a defendant claims innocence and
wishes to withdraw a guilty plea prior to sentencing, a comparison of the interests and
potential prejudice to the parties weighs heavily in favor of the interests of the accused."
State v. Cuthbertson, 139 Ohio App.3d 895, 899 (7th Dist.2000).
{¶ 90} The record and appellant's affidavit provides convincing evidence in support
of appellant's claim that he wanted to take his chances at trial and that he was pressured
into pleading guilty. Thus, the evidence supports appellant's claim that his guilty pleas were
not a voluntary waiver of his right to a jury trial but was a guilty plea that resulted from the
need to conclude these matters prior to the Thanksgiving holiday.
{¶ 91} Appellee argues that the combined change of plea and sentencing hearing
held on November 21, 2018, demonstrate compliance with Crim.R. 11. Appellant's affidavit,
however, provides the following explanation:
I was told my judge would ask me question toward the plea as
far as was I forced and do I understand the terms of the plea.
He told me to answer with no and yes, and that I didn't have
to agree to being responsible for the crime toward the victim
but I should say something sincere when asked If I had
anything to say. In return my court cost would be waived and
also l would only have my gun Spec time mandatory. I never
received a piece of paper from my lawyer regarding the plea.
He just asked me to sign a black box in the courtroom and
whispered in my ear that everything was what we discussed,
which I didn't agree to but was forced to.
(Mot. to Withdraw Guilty Plea Ex. A at 3-4.)
{¶ 92} Moreover, appellant's affidavit is not the only evidence produced by appellant
in support of his claim of ineffective assistance of counsel and coercion. Appellant also
presented the affidavit of Brea Hall, who averred as follows:
I have personal knowledge regarding Javon Lyons
interactions and attorney client relationship with Attorney
Krapenc.
Nos. 21AP-156 and 21AP-157 34
I personally had interactions with Attorney Krapenc on Javon
Lyons' behalf, and had several meetings with him.
I always felt that Mr. Krapenc felt Javon Lyons was guilty.
Javon Lyons always insisted on going to trial and never
wanted to accept any plea offer in this matter.
I personally brought trial clothes to the jail for Javon Lyons.
***
I am willing to testify at an evidentiary hearing on this
matter, as to my conversations with Attorney Krapenc and
the evidence we provided to him.
(Emphasis added.) (Dec. 4, 2020 Def's Reply to Pl.'s Memo. Contra Ex. A at 1-2.)8
{¶ 93} When a Crim.R. 32.1 motion raises an ineffective assistance of counsel claim
regarding a guilty plea, " 'the defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty.' " State v. Xie, 62 Ohio St.3d
521, 524 (1992), quoting Hill v. Lockhart, 474 U.S. 52 (1985). In my view, appellant
produced substantial evidence in support of his contention that, but for trial counsel's
coercive tactics, he would not have pleaded guilty.
{¶ 94} In denying appellant's motion to withdraw his guilty plea the trial court found
that appellant's "self-serving" affidavit was insufficient to compel a hearing. Even though
"self-serving affidavits present credibility issues," they must still be given due consideration
in light of the surrounding facts and circumstances. State v. Norris, 8th Dist. No. 107894,
2019-Ohio-3768, ¶ 25, quoting State v. Carter, 8th Dist. No. 104351, 2016-Ohio-8150, ¶ 13.
"[E]ven self-serving affidavits are more or less credible depending on the circumstances of
the case and facts in the record." Norris at ¶ 25, quoting Carter at ¶ 13, citing State v.
Calhoun, 86 Ohio St.3d 279, 285 (1999). In this instance, appellant's affidavit should not
have been summarily disregarded as self-serving in light of the corroboration in the
transcript and Hall's affidavit, which provide corroboration for his claim of coercion.
{¶ 95} Based on the foregoing, I would find that the trial court abused its discretion
when it denied his motion to withdraw his guilty plea because appellant's evidence taken in
the totality of the circumstances establishes the guilty plea was not voluntary.
2. Ineffective Assistance of Counsel/Failure to Investigate
8 The record does not disclose Hall's relationship to appellant.
Nos. 21AP-156 and 21AP-157 35
{¶ 96} "It is axiomatic that in cases where there is a likelihood of some success, the
failure to investigate could warrant a finding that trial counsel was ineffective." State v.
Franklin, 10th Dist. No. 89AP-593 (Oct. 12, 1989). "Under Strickland, '[t]he reasonableness
of counsel's actions may be determined or substantially influenced by the defendant's own
statements or actions,' inasmuch as '[c]ounsel's actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by the
defendant.' " State v. Ibrahim, 10th Dist. No. 17AP-557, 2020-Ohio-3425, ¶ 89, quoting
Strickland at 691. "Assessing 'what investigation decisions are reasonable depends critically
on such information.' " Ibrahim at ¶ 89, quoting Strickland at 690-91.
{¶ 97} In ruling that appellant failed to produce evidence in support of his claim of
manifest injustice, the trial court found as follows:
Defendant is now challenging the evidence and second
guessing his decision to plead guilty. Defendant was aware of
the same evidence at the time he entered his plea. He admits
he was even aware, prior to his plea, that his codefendant's
trial resulted in a not guilty verdict. Therefore, absent any
evidence, Defendant fails to show the manifest injustice
necessary for the Court to allow Defendant to withdraw his
guilty plea.
(Apr. 7, 2021 Decision Den. Def.'s Mot. to Withdraw Guilty Plea at 3.)
{¶ 98} Contrary to the trial court's conclusion, appellant produced substantial
evidence in support of his claim that his guilty plea resulted in a manifest injustice, including
evidence of counsel's ineffective assistance in failing to make a reasonable investigation of
his case, failing to consider exculpatory evidence provided to him when he should have, and
refusing to abide by appellant's decision regarding trial counsel's continued representation.
{¶ 99} As previously noted, a jury acquitted appellant's co-defendant of all charges
arising out of this incident on essentially the same evidence. Appellant and others involved
in appellant's defense, including Hall, provided appellant's trial counsel with information
and evidence in support of appellant's innocence. The transcript of Harris' jury trial was
made available to appellant's trial counsel.
3. True Source Report
{¶ 100} Appellant's investigative team subsequently developed at least one other
suspect who had both motive and opportunity to commit the crimes at issue. After
interviewing numerous witnesses, viewing videotape FaceTime conversations, and
Nos. 21AP-156 and 21AP-157 36
reviewing the transcript from the trial of appellant's co-defendant, appellant's investigative
team concluded that the shooting was likely committed by a local drug dealer who had a
recent dispute with the passengers in the victim's car over a failed drug deal. The evidence
also shows that appellant had no involvement in the drug transaction that gave rise to this
dispute.
{¶ 101} Appellant's investigative team interviewed Eric Powell, a friend of victim
Dorell Taylor. Powell was at Rachel's Bar on the night in question. The investigative
summary of the interview reads in relevant part:
Powell states that he didn't know Javon Lyons prior to
meeting him at the Ross Correctional Institution where he
works as a barber but has seen him before at Rachel's Bar.
Through the course of conversation Powell learned that Lyons
was the person convicted of the I-70 shooting. Powell was
familiar with the case and states he knew that Lyons was not
the shooter, Powell states he has voluntarily come forward
with his knowledge of events and that Lyons hasn't asked him,
threatened him or promised anything for doing so.
(Sept. 23, 2020 Mot. to Withdraw Guilty Plea Ex. G-1 at 2.)
{¶ 102} Appellant submitted Powell's affidavit in support of his motion to withdraw
his guilty plea. In his affidavit, Powell averred that he saw appellant and his co-defendant,
Harris, at Rachel's on the date of the shooting. Powell saw appellant get into a black
Mercedes Benz and leave the club around 1:30 a.m. There is no dispute that the shooting
took place at 2:54 a.m., and that the shooter was in a silver Crown Victoria.
{¶ 103} When Powell learned of the shooting, he went to the hospital and spoke with
Taylor. Powell related the conversation with Taylor in his affidavit as follows:
I asked him what happened and he said he had got shot in his
lower back end. Dorrell also said that the shooting had
something to do with Ty's robbery situation at C1 and it was a
retaliation. I asked him if he thought it was Jay or Robert
because of the situation that occurred last night. Rell said he
know they didn't do it nor played any part in the incident,
because they left Rachel's about an hour- hour and a half
before he did. He said it was Dame from the C1 situation, I
asked him did he see him and he said no. He said he didn't
even see the car because when the first shot went off he tried
to jump to the back seat, and that's when he was shot in the
lower back end. Joe was shooting back and knows who he was
shooting at. Both Joe & Rell told me that it was Dame from
the robbery that was at them. Late September Dame was
Nos. 21AP-156 and 21AP-157 37
gunned down in Reynoldsburg, so after we seen it on the news
we just dropped the conversations about him and tried to
forget that night.
Id. at 5.
{¶ 104} I find it significant that the trial court did not address appellant's claim that
another person committed the crimes. Rather, the trial court, without mentioning
appellant's primary theory of innocence or the evidence appellant produced in support of
his theory, determined that res judicata barred appellant's claims and/or the claims were
untimely filed. In ruling on appellant's first and second assignments of error, I would have
determined res judicata did not bar the timely filed claims of manifest injustice appellant
raised in his Crim.R. 32.1 motion. At a minimum, Powell's affidavit casts serious doubt on
Copeland's initial identification of appellant as one of the shooters.
{¶ 105} In addition to the interview summaries and affidavits included with the
report issued by True Source, Luanda Johnson provided appellant's investigators with video
evidence of a FaceTime call she made to Joseph Speights, one of the passengers in the
victim's vehicle. According to the investigators, Speights confirms that the shooting was
motivated by an attempted robbery during a drug deal, and that appellant was not the
shooter. Hall's affidavit supports appellant's claim that his trial counsel disregarded this
exculpatory evidence when it was made available to the defense. Hall's affidavit provides in
relevant part:
Attorney Krapenc told us that he asked for a continuance
because he requested transcripts from the co-defendant's
trial, that resulted in an acquittal.
I provided the Facetime Video used in Javon Lyons' Motion to
Withdraw Plea to Attorney Krapenc during the initial case and
he never utilized it.
I sent him additional voice recording to Attorney Krapenc that
was also never utilized.
Both recordings in question point to the innocence of Javon
Lyons.
(Def.'s Reply to Pl.'s Memo. Contra Ex. A at 2.)
{¶ 106} Ohio Prof.Cond.R. 1.2 provides that "[a] lawyer shall abide by a client's
decisions concerning the objectives of representation and, as required by Rule 1.4, shall
consult with the client as to the means by which they are to be pursued." In his affidavit,
Nos. 21AP-156 and 21AP-157 38
appellant avers: "I never received a piece of paper or mail from Mr. Krapenc, he stated that
he does not make copies of discoveries which I have a right to, if it's not counsel only. I never
had a chance to fully prepare a defense or fairly review my case because of Mr. Krapenc."
(Mot. to Witdraw Guilty Plea Ex. A at 2.) In light of the evidence developed by True Source,
including Powell's affidavit, appellant's trial counsel provided ineffective representation to
appellant when he failed to pursue the agreed trial strategy based on reasonable doubt as
appellant desired. Appellant provided convincing evidence that he would not have pleaded
guilty had his trial counsel consulted with him regarding potentially exculpatory evidence.
4. Harris Transcript
{¶ 107} According to Hall's affidavit, appellant's counsel told her that he had
requested a continuance of appellant's case to obtain the transcripts from the Harris trial.
Hall's affidavit is corroborated by the record, which shows that on April 10, 2018, appellant's
trial was continued to June 18, 2018, and that the Harris transcripts were filed with the trial
court May 28, 2018. The transcript of the Harris trial essentially provided appellant's trial
counsel with an effective strategy to employ in order to establish reasonable doubt.
{¶ 108} A review of the transcript reveals that Harris' trial counsel completely
discredited the testimony of the state's primary witness, Copeland and Speights, by means
of thorough and effective cross-examination. Harris' trial counsel was able to establish that
on July 15, 2016, Speights had interacted with Harris and appellant at Rachel's and that he
was able to identify both individuals as a result of that interaction. It is clear, however, that
Speights did not see the Crown Victoria before the shots were fired, and he ducked behind
the seats as the other shots rang out. At Harris' trial, Speights could not identify Harris or
appellant as the shooters.
{¶ 109} Copeland's cross-examination revealed multiple incidents where he
previously lied to police about the incident and provided testimony inconsistent with
information he provided to police and his testimony on direct examination. Through
effective cross-examination, Harris' trial counsel established that Copeland's recollection of
the shooting was contrary to the physical evidence in that he insisted at trial that the shots
came from a vehicle on the driver's side of Tuttle's vehicle, when the undisputed physical
evidence established that the bullet holes were on the passenger's side. Even Speights
recalled the shots being fired from a vehicle on the passenger's side.
Nos. 21AP-156 and 21AP-157 39
{¶ 110} The Harris trial transcripts reveal that Harris' trial counsel also challenged
the findings made by Mark J. Hardy, a Forensic Scientist of the Columbus Police Crime
Laboratory ("CPCL"). As a result of effective cross-examination, Harris' trial counsel
obtained concessions from Hardy that he could not positively match the spent projectiles
and bullet fragments found at the scene with any of the shell cases or firearms recovered in
the investigation. Based upon the evidence he examined prior to the Harris trial, Hardy
could not exclude the possibility that seven or more different firearms were used during the
shooting. In closing argument, Harris' trial counsel raised these and other questions
regarding the credibility and probative value of the state's evidence in creating reasonable
doubt among the jurors.
{¶ 111} As previously noted, the outcome of Harris' trial certainly provided
appellant with a reasonable basis to believe that his trial counsel could establish a
reasonable doubt in the mind of the jurors, as they had previously agreed. Under the
circumstances, appellant's trial counsel violated a duty he owed to appellant by failing to
comply with appellant's wishes regarding trial strategy and failing to provide competent
representation. Had counsel done so, appellant's affidavit establishes he would not have
pleaded guilty.
5. CPCL Report
{¶ 112} In denying appellant's Crim.R. 32.1 motion, the trial court concluded:
Defendant's investigator provides misleading information
with respect to the bullet from the victim's head. (Defendant's
Exhibit C.) While he provides a view of bullets standing up to
show a difference in length of the casings, he neglects to
provide a view that would show that the diameter of a 9mm
and .38 caliber are essentially the same. A .38 Special casing
is different than a 9mm casing. However, the diameter of a
9mm bullet is .355 mm and the diameter of a .38 Special bullet
is .357. As a general 'class characteristic,' bullets that measure
three thousandths of an inch are known as .38 caliber as they
are .38 inches in diameter. A .38 caliber bullet fragment is
entirely consistent with a 9mm bullet. The fragment from the
victim was listed as .38 caliber, the gun located, after
Defendant revealed its whereabouts in the jail call, is a 9mm.
Defendant's claims that the victim could not have been shot
by a 9mm are simply erroneous. A review of the Columbus
Police Crime Lab's analysis of the handgun that was
recovered, pursuant to the recording of the Defendant, links
Nos. 21AP-156 and 21AP-157 40
that particular firearm to a spent casing from the crime
scene. This evidence was available and known to Defendant
at the time of the plea.
(Emphasis added.) (Decision Den. Def.'s Mot. to Withdraw Guilty Plea at 7-8.)
{¶ 113} The above-quoted portion of the trial court's ruling is a verbatim recitation of
the state's memorandum in opposition to appellant's motion to withdraw his guilty plea.
The state, however, did not attach a copy of the CPCL supplemental report to its
memorandum, and the report is not part of the trial court record. Thus, there is no evidence
in the record to support the trial court's conclusions regarding the CPCL report.
{¶ 114} Appellant produced evidence casting doubt on the importance of the "jail
calls" appellant allegedly made to his brother that led to the discovery of a 9mm handgun
law enforcement found in a wooded area near appellant's home. After noting that the 9mm
handgun found as a result of the jail calls was "inoperable," appellant's chief investigator
expressed the following opinion about the CPCL supplemental report:
Based upon my review and analysis of the associated reports
and lab results it is my opinion the S&W 9mm M&P Pistol was
not the firearm used in the murder of Mr. Tuttle. There is no
evidence that this firearm was owned or in the control of Mr.
Javon Lyons. There is no evidence this weapon was ever used
in the commission of a crime.
(Mot. to Withdraw Guilty Plea Ex. D-L at 4.)
{¶ 115} There is no dispute that the bullet recovered from the victim was a .38 caliber.
Even if it could be proven that a 9mm handgun can fire a .38 caliber ammunition, a
conclusion which appellant's investigators reject, the report submitted by appellant's
investigative team casts doubt on the probative value of the 9mm handgun found by law
enforcement as a result of the jail calls. (Decision Den. Def.'s Mot. to Withdraw Guilty Plea
at 8.) The CPCL supplemental report was a critical piece of evidence produced by the state
just weeks before the scheduled trial date. Under the circumstances, trial counsel's failure
to mount any challenge to the supplemental report is inexcusable and ineffective assistance.
{¶ 116} Ohio Prof.Cond.R. 1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the representation." Ohio
Prof.Cond.R. 1.3 states that "a lawyer shall act with reasonable diligence and promptness in
Nos. 21AP-156 and 21AP-157 41
representing a client." The evidence produced by appellant and the record in this case
establish that trial counsel violated this fundamental rule of professional conduct.
{¶ 117} The transcript shows that appellant's trial counsel simply accepted the
opinions expressed in the CPCL supplemental report without question:
THE COURT: * * * Mr. Krapenc, I assume you've had
discussions with your client regarding this plea offer?
MR. KRAPENC: Yes, Your Honor, we have.
THE COURT: All right.
MR. KRAPENC: If I may just supplement a little bit, this case
over the last two years has evolved. It's not quite the same case
it was. Some jail calls have been retrieved by the state and
shared with the defense. Recently about two weeks ago there
was additional jail calls which led to the discovery of a
weapon, which has been test-fired. The casing of that test-
fire matches a casing found at the homicide scene, and a
bullet from that gun matches a bullet that was found in my
client's residence.
I have gone over all of this new material, even though we've
only had it for really maybe a week, a week and a half. But I
have reviewed this. We've listened to the jail calls where my
client's voice allegedly is on, looked at the reports for the guns,
things like that.
(Emphasis added.) (Nov. 20, 2018 Tr. at 5-6.)
{¶ 118} "In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments." State v. Bradley, 42 Ohio St.3d 136, 146
(1989), citing Strickland, supra at 691. Here, the record shows that on June 23, 2017,
appellant's former trial counsel moved the trial court to appoint a firearms expert at the
state's expense. In the motion, appellant's former trial counsel provided the following:
The State will be relying on the testimony and work of Mark
J. Hardy, a Forensic Scientist of the Columbus Police Crime
Laboratory. Mr. Hardy examined the firearm recovered, the
spent cartridges, casings, and bullet fragments. To prepare an
adequate defense counsel must have the opportunity to have
this evidence reviewed by an independent forensic scientist.
To protect this defendant's due process rights an independent
expert is necessary.
***
Nos. 21AP-156 and 21AP-157 42
The State's case hinges on the results of the firearm/ballistic
reports provided by the Columbus Police Crime Laboratory.
To ensure that this defendant receives a fair trial and that his
right to due process is not violated an independent expert is
necessary to review the evidence and reports provided by the
State. Counsel is not qualified to review firearm/ballistic
evidence to prepare for trial in this matter, an expert is
needed for preparation of an adequate defense.9
(Emphasis added.) (June 23, 2017 Mot. for Court Appointed Funds and Appointment of
Forensic Expert at 2-4.)
{¶ 119} On June 27, 2017, the trial court granted the motion, appointed a forensic
firearms expert to assist counsel in preparation of the case and allotted the sum of $6,500
for the purpose of retaining expert services. Appellant's former trial counsel withdrew from
the case on November 28, 2017, and attorney Krapenc was appointed.
{¶ 120} In my view, the June 23, 2017, motion filed by appellant's former trial counsel
and the trial court's favorable response shows a reasonable investigation in this case
requires retention of an independent forensic expert for the defense to review
firearm/ballistic reports issued by the CPCL. Here, the significance of the supplemental
report issued by CPCL cannot be overstated, as the report allegedly links the 9mm handgun
associated with appellant to the crime scene.
{¶ 121} "Strickland requires defense counsel 'to make reasonable investigations'
before trial." State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 247, quoting
Strickland at 689. The record reveals that appellant's trial counsel, without the aid of an
independent firearms/ballistics expert, reviewed the supplemental report issued by CPCL
and concluded that appellant had no choice but to plead guilty. The transcript of the
November 20, 2018 proceedings shows that rather than seeking a continuance in order to
investigate the findings in the supplemental lab report and requesting appointment of a
firearm's expert to challenge the opinions expressed therein, appellant's trial counsel
concentrated his efforts on pressuring appellant to plead guilty before the Thanksgiving
holiday. Appellant's affidavit establishes that he would not have pleaded guilty on
9 2929.024 provides in relevant part:
If the court determines that the defendant is indigent and that investigation services, experts, or other services
are reasonably necessary for the proper representation of a defendant charged with aggravated murder at trial
or at the sentencing hearing, the court shall authorize the defendant's counsel to obtain the necessary services
for the defendant, and shall order that payment of the fees and expenses for the necessary services be made
in the same manner that payment for appointed counsel is made pursuant to Chapter 120 of the Revised Code.
Nos. 21AP-156 and 21AP-157 43
November 21, 2018, had his trial counsel requested the services of a firearm's expert to
challenge the CPCL supplemental report.
{¶ 122} In his affidavit, appellant avers that in the meeting with his trial counsel
immediately following the November 20, 2018 proceeding, appellant told his trial counsel:
"[T]ake me in front of the judge so I can request for a new counsel to be appointed because
I did not feel he was in my best interest." (Mot. to Withdraw Guilty Plea Ex. A at 3.)
According to appellant, his trial counsel responded: "the judge was not doing that, my case
has been on the docket too long and it would cost the courts too much money." Id. Ohio
Prof.Cond.R. 1.16(a) provides that "a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if * * *
the lawyer is discharged." Appellant's affidavit establishes his trial counsel violated Rule
1.16(a), by refusing to honor his clients wishes regarding his continued representation.
{¶ 123} The trial court dismissed appellant's affidavit as self-serving without
providing a reasonable explanation for doing so and disregarded other affidavits and
evidence produced by appellant based on an erroneous conclusion that appellant's claims
were barred by res judicata and untimely filed. In my view, appellant has established that
his guilty plea was not voluntary due to ineffective assistance of counsel and coercion. Thus,
the evidence submitted by appellant in connection with his motion establishes withdrawal
of appellant's guilty plea is necessary to correct a manifest injustice. See State v. Williams,
12th Dist. No. CA2009-03-032, 2009-Ohio-6240, ¶ 14. Accordingly, I would hold that the
trial court abused its discretion by denying the motion.
{¶ 124} For the foregoing reasons, I would sustain appellant's third assignment of
error.
II. CONCLUSION
{¶ 125} Based upon the foregoing, I would sustain appellant's first, second, and third
assignments of error, and reverse the judgment of the Franklin County Court of Common
Pleas and remand this matter for the court to vacate the judgments issued December 3,
2018, permit appellant to withdraw his guilty plea, and schedule a jury trial.
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