State v. Johnson , 2021 Ohio 1333 ( 2021 )

[Cite as State v. Johnson, 2021-Ohio-1333.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28905
:
v. : Trial Court Case No. 2000-CR-788
:
RONALD G. JOHNSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 16th day of April, 2021.
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MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
RONALD G. JOHNSON, #A518-770, 2240 Hubbard Road, Youngstown, Ohio 44505
Defendant-Appellant, Pro Se
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DONOVAN, J.
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{¶ 1} Defendant-appellant Ronald G. Johnson, acting pro se, appeals from an
order of the Montgomery County Court of Common Pleas, which overruled his motion for
relief from judgment and to correct jail-time credit and his motion to withdraw his guilty
plea. Johnson filed a timely notice of appeal on September 18, 2020.
{¶ 2} The record establishes that in 2000, Johnson was indicted for carrying a
concealed weapon and having a weapon while under disability; the count of having a
weapon while under disability included a one-year firearm specification. Johnson pled
guilty to having a weapon while under disability along with the one-year firearm
specification in exchange for dismissal of the carrying a concealed weapon count. The
trial court sentenced Johnson to three years in prison for having a weapon while under
disability, as well an additional, consecutive year for the firearm specification, for an
aggregate sentence of four years in prison. Johnson did not appeal from his conviction.
{¶ 3} On July 28, 2020, Johnson filed a motion for relief from judgment and to
correct jail-time credit, in which he argued that the Ohio Supreme Court’s decision in a
previous mandamus action that he had filed was unconstitutional. See Johnson v. Moore,
149 Ohio St.3d 716, 2017-Ohio-2792, 77 N.E.3d 967, ¶ 7 (holding that Johnson's petition
for a writ of habeas corpus was properly dismissed because it failed to state a claim and
determining that the Bureau of Sentence Computation had correctly calculated Johnson's
sentence and he therefore was not entitled to immediate release). On August 11, 2020,
Johnson filed a motion to withdraw his plea, arguing that he received ineffective
assistance when his trial counsel promised him that the trial court would impose an
aggregate sentence of three years if he pled guilty, but the court imposed an aggregate
sentence of four years following his plea. On August 30, 2020, the trial court overruled
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both of Johnson’s motions.
{¶ 4} It is from this judgment that Johnson now appeals.
{¶ 5} Because they are interrelated, we will discuss all three of Johnson’s
assignments of error together:
TRIAL COURT DID ABUSE ITS DISCRETION BY FAILING TO
HAVE THE REQUESTED AND REQUIRED HEARING ON THE
ASSERTED CLAIMS.
TRIAL COURT DID ABUSE ITS DISCRETION BY OVERRULING
THE POST-CONVICTION MOTIONS WITHOUT ANY ADJUDICATION ON
ASSERTED CLAIMS.
TRIAL COURT DID ABUSE ITS DISCRETIONBY FAILING TO
PERMIT APPELLANT TO WITHDRAW PLEA OF GUILTY WHEN THE
PRIMA FACIE [sic] ESTABLISHED ASSERTED CLAIMS REQUIRE TRIAL
COURT TO GRANT MANIFEST INJUSTICE.
{¶ 6} Initially, we note that Johnson confines his arguments to the trial court’s
decision overruling his motion to withdraw his guilty plea. Taken together, Johnson
appears to be arguing that the trial court erred when it denied his motion to withdraw his
guilty plea without conducting a hearing on that motion, because he adduced sufficient
evidence that a manifest injustice had occurred.
{¶ 7} Crim.R. 32.1 governs the withdrawal of guilty pleas and provides: “A motion
to withdraw a plea of guilty or no contest may be made only before sentence is imposed;
but to correct manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.”
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{¶ 8} As this Court has previously noted:
Although “a presentence motion to withdraw a guilty plea should be
freely and liberally granted[,] * * * a defendant does not have an absolute
right to withdraw a plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521,
527, 584 N.E.2d 715 (1992). In such situations, “the trial court must
conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea.” Id. Furthermore, “[a]bsent an abuse of
discretion on the part of the trial court in making the ruling, its decision must
be affirmed.” Id.In contrast, “[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.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977), paragraph one of the syllabus. The Supreme Court of Ohio has
defined “manifest injustice” as “ ‘a clear or openly unjust act.’ ” State ex rel.
Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998),
quoting Webster's Third New International Dictionary 1164, 1375 (1986).
The Supreme Court of Ohio has also stressed that post-sentence
withdrawal “is allowable only in extraordinary cases.” (Citation omitted.)
Smith at 264. Furthermore, “[a] motion made pursuant to Crim.R. 32.1 is
addressed to the sound discretion of the trial court, and the good faith,
credibility and weight of the movant's assertions in support of the motion are
matters to be resolved by that court.” Id. at paragraph two of the syllabus.
State v. Berry, 2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, ¶ 26-28.
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{¶ 9} “Moreover, an evidentiary hearing is not required on every post-sentence
motion to withdraw a plea. The movant must establish a reasonable likelihood that
withdrawal of his plea is necessary to correct a manifest injustice before a trial court must
hold a hearing on his motion.” State v. Baker, 2018-Ohio-669, 105 N.E.3d 1271, ¶ 13 (2d
Dist.) quoting State v. Stewart, 2d Dist. Greene No. 2002-CA-28, 2004-Ohio-3574, ¶ 6.
{¶ 10} We agree with Johnson that manifest injustice sufficient to allow post-
sentence withdrawal of a guilty plea may be established by ineffective assistance of
counsel. See, e.g., State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d
509, ¶ 18 (10th Dist.); State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116,
¶ 9; State v. Nawman, 2d Dist. Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 12.
{¶ 11} Ineffective assistance of counsel is shown when “(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.” State v. Wilson, 2d Dist.
Montgomery No. 26354, 2015-Ohio-1584, ¶ 17, citing State v. Jordan, 12th Dist. Warren
No. CA2014-04-051, 2015-Ohio-575, ¶ 12, and Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 12} Trial courts have sound discretion over motions to withdraw pleas, and they
assess the “good faith, credibility and weight of the movant's assertions in support of the
motion * * *.” Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph two of the syllabus.
We therefore review for abuse of discretion, which requires us to find that the trial court's
attitude was “unreasonable, arbitrary or unconscionable.” (Citations omitted.) State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 13} We note that Johnson filed his motion to withdraw his plea approximately
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20 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. Here,
Johnson failed to provide any explanation for the delay in filing his motion, which
supported the trial court's decision to overrule it. See Nawman, 2d Dist. Clark No. 2016-
CA-43, 2017-Ohio-7344, at ¶ 16 (where the defendant failed to explain a more than two-
year delay between sentencing and filing of motion to withdraw plea).
{¶ 14} “The more time that passes between the defendant's plea and the filing of
the motion to withdraw it, the more probable it is that evidence will become stale and that
witnesses will be unavailable. The state has an interest in maintaining the finality of a
conviction that has been considered a closed case for a long period of time. It is certainly
reasonable to require a criminal defendant who seeks to withdraw a plea to do so in a
timely fashion rather than delaying for an unreasonable length of time.” State v. Francis,
104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 40.
{¶ 15} We also note that Johnson has failed to provide the transcript of his plea
hearing, so we must assume regularity in the proceedings and that the trial court fully
complied with Crim.R. 11. As this Court has stated, “ ‘absent a transcript of the
proceedings, this Court must presume regularity in the proceedings before the trial
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court.’ ” State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-4508, ¶ 26, citing
State v. Kreuzer, 2d Dist. Greene No. 98-CA-100, 1999 WL 959206, *5 (Aug. 6, 1999).
{¶ 16} As previously stated, Johnson contends that his trial counsel promised him
that the trial court would impose an aggregate sentence of three years if he pled guilty,
rather than the four-year aggregate sentence that was imposed. Approximately 20 years
later, Johnson filed a motion to withdraw his guilty plea, claiming ineffective assistance in
his counsel’s allegedly promising him a three-year sentence. We must assume that
Johnson was present at his sentencing hearing, and even if he did not pay attention to
the trial court at the hearing, Johnson admitted in his affidavit that he became aware of
the four-sentence immediately after he began his term of incarceration in the Ohio prison
system.
{¶ 17} In Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, we stated:
Jones entered her pleas in August 2004 and did not move to
withdraw them until September 2007. In her affidavit, she admitted
discovering in April 2005—just eight months after entering her pleas—that
the convictions would impact her ability to teach. Yet she waited nearly
two and one-half more years before attempting to vacate the pleas. The
trial court appropriately took this unreasonable delay into account in
overruling her motion. * * *
(Emphasis added.) Id. at ¶ 10.
{¶ 18} In Jones, we found that a delay of two and one-half years was unreasonable
when filing a motion to withdraw the defendant’s pleas. Here, Johnson waited over 20
years to file a motion to withdraw, which was clearly unreasonable under the
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circumstances.
{¶ 19} Johnson additionally argues that he should have been permitted to withdraw
his plea because he alleges that he discovered in 2020 that his trial counsel had been
engaged in a sexual relationship with Johnson’s fiancée at the time Johnson entered his
plea in 2000. However, other than his own self-serving statements in his affidavit
attached to his motion to withdraw his guilty plea, Johnson provided the trial court with no
additional evidence regarding his allegations of sexual misconduct. Johnson’s
allegations against his former counsel, standing alone, were insufficient to demonstrate
a manifest injustice or to support the withdrawal of his plea. See State v. Stewart, 2d Dist.
Greene No.2003-CA-28, 2004-Ohio-3574, ¶ 6. Furthermore, “we have held that no
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.” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-
3431, ¶ 13, citing Stewart at ¶ 6. We therefore conclude that the trial court did not abuse
its discretion when it overruled Johnson’s motion for relief from judgment and to correct
jail-time credit and his motion to withdraw his guilty plea without conducting a hearing.
{¶ 20} Johnson’s first, second, and third assignments of error are overruled.
{¶ 21} All of Johnson’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Ronald G. Johnson
Hon. Richard Skelton