State v. Ray , 2020 Ohio 4769 ( 2020 )

[Cite as State v. Ray, 2020-Ohio-4769.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
:
STATE OF OHIO :
: Appellate Case No. 2019-CA-31
Plaintiff-Appellee :
: Trial Court Case No. 2017-CR-136
v. :
: (Criminal Appeal from
WALTER EUGENE RAY : Common Pleas Court)
:
Defendant-Appellant :
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OPINION
Rendered on the 2nd day of October, 2020.
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SAMUEL ADAM USMANI, Atty. Reg. No. 0097223, Champaign County Prosecutor’s
Office, Appellate Division, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road NE, Bloomingburg,
Ohio 43106
Attorney for Defendant-Appellant
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FROELICH, J.
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{¶ 1} Walter Eugene Ray appeals from the trial court’s judgment denying, without
a hearing, his post-sentence motion to withdraw his guilty plea. For the following
reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} According to the record, on June 18, 2017, Ray and his girlfriend, Carly
Bradley, went from Springfield to the home of Carly’s sister, Ashley, and Ashley’s
boyfriend, Jimmy Huffman, in Urbana. Ray asserts that he and Carly went to retrieve
Carly’s make-up kit and that, while they drove, Ashley asked Carly if Ray had any
marijuana to sell. The State asserts that the purpose of the visit was to sell marijuana.
Regardless, Ray indicated that he had “an eighth” of marijuana and intended to sell it.
Ray had a firearm with him that, due to a pending domestic violence charge, he allegedly
could not lawfully possess.
{¶ 3} After Ray entered Ashley and Huffman’s residence, Ray and Huffman had
an altercation. The State acknowledged at Ray’s sentencing hearing that “the victim’s
[Huffman’s] real motive was to confront [Ray] and [Carly] about his suspicion that [Ray]
had stolen property from their residence.” Ray and Huffman provided conflicting
versions as to whom had started the fight. Ray sustained injuries to his back, forearm,
hand, head, and face; Ray and Huffman disagree about how those injuries occurred.
Ray was able to grab his gun, and he shot Huffman three times; one of the bullets
shattered Huffman’s femur and the other two caused “relatively superficial” wounds.
{¶ 4} On June 29, 2017, Ray was indicted on a nine counts: two counts of felonious
assault; one count of having a weapon while under disability; one count of improperly
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handling firearms in a motor vehicle; two counts of carrying a concealed weapon; two
counts of trafficking in marijuana; and one count of possession of marijuana. Several of
the offenses included firearm specifications and a forfeiture specification (the handgun).
Ray retained an attorney and was represented by that attorney throughout the pendency
of his case.
{¶ 5} Approximately three months later, in September 2017, Ray pled guilty to one
count of felonious assault, a second-degree felony, and one count of trafficking in
marijuana, a fourth-degree felony. Ray also pled guilty to the forfeiture specification
attached to the felonious assault charge. In return for Ray’s guilty pleas, the State
agreed to dismiss all of the remaining counts and specifications, to remain silent as to
whether the sentences should be concurrent or consecutive, and to recommend and
review a presentence investigation report. The trial court accepted the guilty pleas and
referred the matter for a presentence investigation.
{¶ 6} At sentencing, the trial court imposed seven years in prison for the felonious
assault and 18 months for trafficking in marijuana, to be served concurrently. The trial
court also ordered the forfeiture of the handgun recovered from Ray and imposed fines
totaling $1,250. We affirmed Ray’s conviction on direct appeal. State v. Ray, 2d Dist.
Champaign No. 17-CA-33, 2018-Ohio-3293.
{¶ 7} On October 8, 2019, nearly two years after his sentencing, Ray filed a motion
to withdraw his plea, claiming that his plea was not knowing, intelligent, and voluntary due
to ineffective assistance of counsel. He asserted that his trial counsel induced him to
plead guilty, despite being told that he had been attacked with a knife by the victim and
acted in self-defense. Ray said that he also informed his attorney that Carly’s family
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members had extorted money from him and that Carly had threatened to tell the police
that he hit her, had a gun, and sold drugs. Ray further claimed that his attorney told him
that he would receive a sentence of four years, and that his attorney did not help him write
a letter in support of a non-prison sentence, which Ray claims the trial court had told him
that he could file. Ray supported his motion with his own affidavit and an affidavit from
his father. Ray requested a hearing on his motion.
{¶ 8} The trial court denied Ray’s motion without a hearing. The trial court
emphasized that Ray’s answers at the plea hearing contradicted his assertions that he
was pressured by defense counsel to plead guilty, that he was promised a four-year
sentence, that he was told to write a letter in support of a non-prison sentence, and that
he had a defense to the charges. The court noted that it had used a four-year sentence
as an example in explaining post-release control and surmised that Ray based his claim
that he was promised a four-year sentence on that example. The court concluded that
Ray’s purported expectation was “wholly unsupported by the record, given the Court’s
plea colloquy with [Ray].” The court further stated that “the record shows that Defendant
decided to plead guilty, after weighing the pros and cons of a possible self-defense claim
with his attorney.” The court found nothing in the record that showed Ray was told he
should write a letter. The court found no basis for a hearing on Ray’s motion.
{¶ 9} Ray appeals from the trial court’s judgment.
II. Post-Sentence Motion to Withdraw Plea
{¶ 10} In his sole assignment of error, Ray claims that his plea should have been
vacated as not knowing, intelligent, and voluntary due to ineffective assistance of counsel.
Ray’s appellate brief is virtually identical to his motion to withdraw his plea and raises the
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same arguments.
{¶ 11} Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice. Crim.R. 32.1; State v.
Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16. “A ‘manifest injustice’
comprehends a fundamental flaw in the path of justice so extraordinary that the defendant
could not have sought redress from the resulting prejudice through another form of
application reasonably available to him or her.” State v. Brooks, 2d Dist. Montgomery No.
23385, 2010-Ohio-1682, ¶ 8, citing State v. Hartzell, 2d Dist. Montgomery No. 17499,
1999 WL 957746 (Aug. 20, 1999).
{¶ 12} Ineffective assistance of counsel can provide a basis for seeking a post-
sentence withdrawal of a guilty plea. Wilson at ¶ 17. “When the alleged error underlying
a motion to withdraw a guilty plea is ineffective assistance of counsel, the defendant must
show that (1) trial counsel’s performance was deficient; and (2) there is a reasonable
probability that, but for counsel’s errors, the defendant would not have entered a plea.”
Id.; see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 13} Withdrawal of a plea after sentencing is permitted only in the most
extraordinary cases. State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-
2555, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “The
defendant bears the burden of establishing the existence of a manifest injustice, and
whether that burden has been met is an issue within the sound discretion of the trial court.”
Wilson at ¶ 18.
{¶ 14} “[A]n evidentiary hearing is not required on every post-sentence motion to
withdraw a plea. The movant must establish a reasonable likelihood that withdrawal of
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his plea is necessary to correct a manifest injustice before a trial court must hold a hearing
on his motion.” (Citation omitted.) State v. Stewart, 2d Dist. Greene No. 2003-CA-28,
2004-Ohio-3574, ¶ 6. “[N]o hearing is required on a post-sentence motion to withdraw a
plea where the motion is supported only by the movant’s own self-serving affidavit, at
least when the claim is not supported by the record.” Id.{¶ 15} At the outset, we note that Ray filed his motion to withdraw his plea two
years after he was sentenced. “Although Crim. R. 32.1 does not contain a time limit for
filing a post-sentence motion to withdraw a plea, a trial court may take into consideration
the passage of time between the entry of the plea and a defendant’s attempt to withdraw
it.” (Citations omitted.) State v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733,
¶ 9. “[A]n undue delay between the occurrence of the alleged cause of a withdrawal of
[the] plea and the filing of a Crim.R. 32 motion is a factor adversely affecting the credibility
of the movant and militating against the granting of the motion.” State v. Harden, 2d Dist.
Montgomery No. 22839, 2009-Ohio-3431, ¶ 7, citing Smith, 49 Ohio St.2d 261, 361
N.E.2d 1324. Here, Ray has failed to provide any explanation for the delay in filing his
motion, which supports the trial court’s decision to overrule it. See State v. Nawman, 2d
Dist. Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 16 (defendant failed to explain more than
two-year delay between sentencing and filing of motion to withdraw plea).
{¶ 16} We have reviewed the transcript of the plea hearing, as well as the affidavits
of Ray and his father. Ray’s plea hearing fully complied with Crim.R. 11.
{¶ 17} At the beginning of the plea hearing, the prosecutor articulated the terms of
the plea agreement: Ray would plead guilty to felonious assault (Count 1), the forfeiture
specification to Count 1, and trafficking in marijuana (Count 8), and in exchange the State
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would dismiss the remaining charges and specifications, agree to remain silent on the
issue of consecutive or concurrent sentencing, and recommend a presentence
investigation report, which it would review. Defense counsel agreed that the prosecutor
provided an accurate summary of the agreement. The plea agreement did not include a
recommended sentence.
{¶ 18} Ray and his father stated in their affidavits that Ray’s trial counsel said that
Ray would get four years if he entered a plea. However, discussing Ray’s possible
sentence at the sentencing hearing, the trial court made clear that it was not involved in
the parties’ plea negotiations and it had not agreed to provide Ray with a particular
sentence. The court stated:
THE COURT: All right. Your lawyer and the Prosecutor have talked to
each other about this case. I haven’t been involved in those discussions.
I haven’t told anyone what I will do regarding sentence. The only thing that
the lawyers know is that I’ll seek to follow the law. Do you understand that?
[RAY]: Yes, sir.
THE COURT: In some counties, and I don’t know if Clark County is one of
these counties, some Judges actively participate in sentencing. And the
reason that I don’t do that is because, in my opinion, the lawyers know more
about the case than I do. So for me to agree to something upfront, I don’t
think it is fair to either the State of Ohio or you as a Defendant. I want to
reserve the right to make a decision after I learn about the case and not
beforehand.
So in this county, in this Court, I take the position that I stay out of
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plea negotiations. The Court will listen to the recommendations of both
lawyers. And sometimes the Court will follow those recommendations.
Sometimes the Court won’t. Do you understand that?
[RAY]: Yes, sir.
THE COURT: At the time of sentencing the Court has to decide what to
do with your case. * * *
Later during the plea hearing, when asked if anyone had made promises (“except what
you heard in court today”) to induce his plea, Ray responded, “No, sir.”
{¶ 19} In short, Ray’s assertion that defense counsel told him that he would receive
a four-year sentence is contradicted by his sworn statements at the plea hearing. In
addition, the trial court expressly informed Ray that it was not bound by the
recommendations of the parties and would decide his sentence at sentencing.
{¶ 20} The trial court and defense counsel also addressed the issue of self-
defense at the plea hearing. Toward the end of the hearing, the trial court asked Ray,
“Do you have any defense to the charges, meaning, any reason you should be found no
guilty?” Defense counsel asked to interject and told the court: “This case did involve a
potential defense of self-defense. Mr. Ray and I have discussed the strengths and
weaknesses of the case and the risks and benefits of going to trial. And so while there
are facts in his favor, after talking with me and after talking with his father, I believe he’s
made an intelligent decision to enter a plea of guilty.” Ray confirmed that he heard and
understood what his attorney had said.
{¶ 21} The trial court continued:
This question that I ask, it is not unusual that it sometimes trips
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people up. Because there are some cases where an individual will sit there
and say, yeah, I think there is a reason that I’m not guilty. And I understand
that. But it goes back to what I said earlier about do you understand that
when you enter a plea of guilt, it is a complete admission of guilt. * * * And
what I’m trying to do in this instance is make sure that as you are entering
your plea of guilt knowingly, intelligently, and voluntarily, that you’ve taken
into consideration all of the facts of your case.
There are instances where people will say that there are reasons
why certain things happened. It may not rise to the level of an affirmative
defense, but there are factors. And they are called mitigating factors. Or
factors in mitigation that people will use to explain to a Judge to say, Judge,
I know that these are the charges. And I know the Prosecutor said these
are very serious offenses. But this information I want you to use it because
I want you to understand that there is a reason why things should be looked
at in a different way, and those reasons are favorable to my case. And that
is different than saying, Judge, I have a legal reason why I’m not guilty. Do
you understand the distinction?
[RAY]: Yes, sir.
THE COURT: Now, your lawyer has indicated that you and he have
discussed this matter. And the concept of self-defense is a very complex
one. And there are certain risks to obviously going to trial. But I want to
make sure that if you are entering a plea of guilt, that at sentencing you are
not going to come back and say, well, I’m not really guilty of this because I
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did it in self-defense. Because that would be asserting a defense to the
crime versus saying, Judge, I think there are some factors that I want you
to consider that make my conduct less serious than more serious.
At this juncture, Ray and his trial counsel conferred. When asked again if he had a
defense to the charge, Ray responded, “No, sir.”
{¶ 22} The record thus reflects that Ray’s attorney was aware of the facts
underlying the charges, and that he and Ray had discussed the viability of asserting the
affirmative defense of self-defense, as well as the pros and cons of going to trial versus
entering a guilty plea. Ray’s father stated in his affidavit that he believed that Ray had a
defense of self-defense and thought Ray should have gone to trial; Ray’s father also
stated that Ray repeatedly indicated that he wanted to go to trial. However, the record
reflects that, at the plea hearing, Ray elected to forego a possible self-defense argument
and enter a guilty plea.
{¶ 23} Ray further claims that the trial court told him that he could write a letter to
explain why he should not receive a prison term, and that trial counsel failed to assist him
with that letter. We find nothing in the record to support Ray’s belief that he was told to
write a letter on his own behalf. Rather, the trial court informed Ray at the plea hearing
that there was a presumption in favor of prison for the felonious assault charge and that
Ray and his attorney would “have the opportunity to tell the Court why you should not be
sentenced to prison.”
{¶ 24} Defense counsel requested and received a continuance of the original
sentencing hearing date so that counsel could file a sentencing memorandum that
provided information regarding mitigation. Defense counsel filed a sentencing
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memorandum on October 24, 2017, emphasizing that Ray was the subject of a
“prolonged attack before he opened fire.” Moreover, defense counsel argued at
sentencing that Huffman lured Ray to his home and provoked the shooting; counsel asked
for minimum, concurrent sentences. Ray declined to speak on his own behalf.
{¶ 25} On this record, Ray has not demonstrated that his defense counsel acted
deficiently with respect to Ray’s decision to enter a plea, as opposed to going to trial and
claiming self-defense, or as to Ray’s presentation of mitigating information. Although
Ray claims that he would not have entered his plea had defense counsel not told him that
he would receive four years in prison, the record further shows that the trial court informed
Ray that it would decide his sentence at sentencing, and Ray expressed his
understanding. Ray has not demonstrated that his defense counsel provided ineffective
assistant, resulting in a manifest injustice that warrants the vacation of his plea.
{¶ 26} Finally, we have held “that matters outside the record that allegedly
corrupted the defendant’s choice to enter a guilty or no contest plea so as to render that
plea less than knowing and voluntary, such as ineffective assistance provided by a
defendant’s trial counsel, are proper grounds for post-conviction relief pursuant to R.C.
2953.21 and that the availability of that relief removes defendant’s claims from the type
of extraordinary circumstances that demonstrate a manifest injustice, which is required
for Crim.R. 32.1 relief.” Nawman, 2d Dist. Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 15,
citing State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, *2 (May 10,
2002) and State v. Moore, 2d Dist. Montgomery No. 24378, 2011-Ohio-4546, ¶ 13-15;
see also State v. Preston, 2d Dist. Montgomery No. 28451, 2020-Ohio-1042, ¶ 14; State
v. Dixon, 2d Dist. Clark No. 2017-CA-80, 2019-Ohio-1385, ¶ 10.
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{¶ 27} Ray’s assignment of error is overruled.
III. Conclusion
{¶ 28} The trial court’s judgment will be affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Samuel Adam Usmani
George A. Katchmer
Hon. Nick A. Selvaggio