State v. Watters , 2017 Ohio 5640 ( 2017 )

[Cite as State v. Watters, 2017-Ohio-5640.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-G-0094
- vs - :
MATTHEW M. WATTERS, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C
000141.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, Nicholas A. Burling, Assistant Prosecuting
Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Plaintiff-Appellee).
Matthew M. Watters, pro se, PID: A680-384, Lake Erie Correction Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Matthew M. Watters, appeals the trial court’s denial of his post-
sentencing motion to withdraw his guilty plea, asserting that the affidavit accompanying
the motion was sufficient to demonstrate his plea was involuntary. We affirm.
{¶2} In August 2015, the Geauga County Grand Jury indicted appellant on nine
felonies and one misdemeanor. The charges arose from appellant’s attempt to flee
from two undercover police officers after an unplanned meeting at a Geauga County
residence. The chase began when appellant drove his car a short distance across a
lawn while an officer was reaching into the window of appellant’s driver’s door
attempting to take the keys. After appellant was in custody, the police found a firearm
and heroin. Appellant admitted he went to Geauga County to sell illegal drugs.
{¶3} Three months after indictment, appellant pleaded guilty to one count of
possession of heroin, a second-degree felony under R.C. 2925.11(A) & (C)(6), one
count of having a weapon under disability, a third-degree felony under R.C.
2923.13(A)(3), and one count of failure to comply with a police officer’s order or signal,
a third-degree felony under R.C. 2921.331(A) & (C)(5). The remaining charges were
dismissed. At the plea hearing, appellant was fully advised of the ramifications of his
guilty plea.
{¶4} Sentencing was deferred pending a presentence investigation and
submission of sentencing briefs. The trial court held a sentencing hearing. Thereafter,
the court imposed a five-year prison term for possession of heroin, a 30-month prison
term for having a weapon under a disability, and a 30-month prison term for failure to
comply, consecutive, for an aggregate term of ten years.
{¶5} Appellant did not timely appeal. However, four months after the
sentencing appellant moved this court for leave to file a delayed appeal. We granted
that motion, and a separate appeal ensued.
{¶6} On the same day appellant moved this court for delayed appeal, he
moved the trial court to withdraw his guilty plea under Crim.R. 32.1. In an affidavit
attached to the motion, appellant averred that he pleaded guilty because his trial
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attorney told him the “judge/prosecutor” agreed that he would receive a sentence of 2-4
years. He further averred that his counsel told him to deny that any promises were
made to induce him to plea. Appellant argued that his guilty plea was, therefore,
involuntary.
{¶7} This court remanded to the trial court for disposition of the motion to
withdraw. The trial court overruled the motion noting that appellant was thoroughly
questioned during the plea hearing, and appellant specifically stated that no promises
had been made to him to obtain his guilty plea.
{¶8} Appellant appeals asserting one assignment of error:
{¶9} “The trial court erred by denying Mr. Watters’ motion to withdraw guilty
plea via an abuse of discretion.”
{¶10} In claiming that a manifest injustice has occurred as a result of the denial
of his motion to withdraw his guilty plea, appellant contends that the factual assertions
in his accompanying affidavit are sufficient to show that his guilty plea was not
voluntarily. He further contends that the trial court should have accepted his unrebutted
assertions as true. Based upon this, he maintains that the trial court abused its
discretion in overruling his motion without benefit of a hearing.
{¶11} Crim.R. 32.1 provides that if a trial court has already imposed sentence in
a criminal action, the withdrawal of a guilty plea will only be allowed “to correct manifest
injustice.” “‘Manifest injustice relates to some fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.’” State v. Conteh, 10th Dist. Franklin No. 09AP-490, 2009-Ohio-6780, ¶13,
quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶5.
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“The burden of proving ‘manifest injustice’ lies with a defendant, and an appellate court
reviews a trial court’s determination of whether that standard has been met by the
defendant for an abuse of discretion.” State v. Reinhardt, 1st Dist. Hamilton No. C-
130560, 2014-Ohio-4071, ¶11.
{¶12} As to whether an evidentiary hearing must be held before ruling or a post
sentencing motion to withdraw plea, this court has stated:
{¶13} “Although a trial court must hold a hearing if there is a reasonable basis
for the withdrawal of a presentence guilty plea if the request is made before sentencing,
the same is not true if the request is made after the trial court has already sentenced a
party. State v. Hudach, 11th Dist. No. 2003-T-0110, 2004-Ohio-6949, at ¶28. In
arriving at its decision, a trial court has the discretion to determine the credibility and
weight of the movant’s contentions. Id. at ¶29. Hence, a trial court’s decision on a
postsentence motion to withdraw a guilty plea will be reversed only for an abuse of
discretion. Id. at ¶30. In those situations where the trial court must consider a
postsentence motion to withdraw a guilty plea, a hearing is only required if the facts
alleged by the defendant, and accepted as true, would require the trial court to permit
withdrawal of the plea. State v. Kerns (July 14, 2000), 11th Dist. No. 99-T-0106, 2000
Ohio App. LEXIS 3202, at 5.” State v. Robinson, 11th Dist. Ashtabula No. 2003-A-
0125, 2005-Ohio-5287, ¶8.
{¶14} However, a trial court is permitted to assess the credibility of an affidavit
before determining whether to grant a motion to withdraw. Robinson at ¶28. In State v.
Calhoun, 86 Ohio St. 3d 279, 714 N.E.2d 905 (1999), the Ohio Supreme Court
delineated a set of factors for a trial court to employ when assessing the credibility of
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affidavits accompanying petitions for postconviction relief. Some Ohio appellate courts
apply the Calhoun factors for purposes of assessing the credibility of affidavits
accompanying postsentencing motions to withdraw. See Robinson, supra, at ¶27-28,
citing State v. Christley, 11th Dist. Portage No. 99-P-022, 2000 Ohio App. LEXIS 2140
(May 29, 2000); State v. Mynatt, 1st Dist. Hamilton Nos. C-100298 & C-100319, 2011-
Ohio-1358. The Calhoun holding has been summarized in the following manner:
{¶15} “In deciding a Crim.R. 32.1 motion, the [trial] court must accord due
deference to a supporting affidavit. But the court has the discretion to judge the
credibility of an affidavit without first conducting an evidentiary hearing on the motion. In
assessing an affidavit’s credibility, and thus determining the need for a hearing, the
court must consider all relevant factors, including (1) whether the judge reviewing the
motion also presided at the plea hearing, (2) whether multiple affidavits contain nearly
identical language or otherwise appear to have been drafted by the same person, (3)
whether the affidavit contains or relies on hearsay, (4) whether the affiant is related to
the defendant or otherwise interested in the success of his efforts, (5) whether the
affidavit contradicts defense evidence, (6) whether the affidavit is contradicted by any
other sworn statement of the affiant, and (7) whether the affidavit is internally
inconsistent.” State v. Dye, 1st Dist. Hamilton No. C-120483, 2013-Ohio-1626, ¶11.
{¶16} Only the first and third factors are relevant to our analysis. As to the first
factor, the trial judge who reviewed the motion to withdraw is the same judge who
accepted appellant’s guilty plea. Moreover, the trial judge relied upon his knowledge
from the plea hearing in deciding the motion to withdraw. The trial court noted: (1) he
thoroughly questioned appellant during the plea hearing; (2) appellant said that no
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promises were made to him in order secure his change of plea; and (3) the guilty plea
was entered knowingly, willingly and voluntarily. A review of the plea transcript readily
supports the trial judge’s findings and conclusion. Thus, as permitted, the trial court
found appellant’s affidavit not credible.
{¶17} Moreover, after pronouncing sentence, the trial court asked appellant if he
had any questions regarding his sentence; appellant said he had none. Given that
appellant would have then known that the alleged “deal” had been breached, he could
have raised questions. Instead, he waited four months to file his motion to withdraw.
This further undermines the credibility of the affidavit.
{¶18} As to the third Calhoun factor, appellant’s entire affidavit was based upon
hearsay, further eroding the affidavit’s credibility.
{¶19} Appellant has failed to show an abuse of discretion. State v. Pace, 11th
Dist. Ashtabula No. 2015-A-0041, 2016-Ohio-1158, ¶6, quoting State v. Beechler, 2nd
Dist. No. 09CA-54, 2010-Ohio-1900, ¶62.
{¶20} The judgment of the Geauga County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
TIMONTY P. CANNON, J.,
concur.
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