State v. Thomas

[Cite as State v. Thomas, 2011-Ohio-4337.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-10-17
v.
JASON C. THOMAS, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 09-CRM-008
Judgment Affirmed
Date of Decision: August 29, 2011
APPEARANCES:
Gene P. Murray for Appellant
Matthew K. Fox for Appellee
ROGERS, P.J.
Case No. 10-10-17
{¶1} Defendant-Appellant, Jason Thomas, appeals from the judgment of
the Court of Common Pleas of Mercer County denying his motion to withdraw his
pleas of no contest (“Motion to Withdraw”). On appeal, Thomas contends that the
trial court erred in denying his Motion to Withdraw in three respects: (1) the trial
court erred in finding that he was properly informed of his right to appeal during
the Crim.R. 11 colloquy; (2) the trial court failed to inform him of his right to
appeal during the sentencing hearing, in violation of Crim.R. 32(B);1 and, (3) the
trial court abused its discretion by denying a hearing on previously undiscovered
evidence which is exculpatory in nature. Based on the following, we affirm the
judgment of the trial court.
{¶2} In January 2009, the Mercer County Grand Jury indicted Thomas on
Count One: felony murder (based on the predicate offense of felonious assault in
violation of R.C. 2903.11) in violation of R.C. 2903.02(B), an unclassified felony;
Count Two: felonious assault in violation of R.C. 2903.11(A)(1), a felony of the
second degree; Count Three, felony murder (based on the predicate offense of
child endangerment in violation of R.C. 2919.22(B)(1), (E)(2)(d)) in violation of
R.C. 2903.02(B), an unclassified felony; Count Four: child endangerment in
1
We note that the error asserted in Thomas’ second assignment of error was not raised before the trial court
in his Motion to Withdraw. We will discuss this issue in further detail in our analysis of Thomas’ second
assignment of error.
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violation of R.C. 2919.22(B)(1), (E)(2)(d), a felony of the second degree; Count
Five: involuntary manslaughter, (based on the predicate offense of felonious
assault in violation of R.C. 2903.11(A)(1)) in violation of R.C. 2903.04(A), a
felony of the first degree; Count Six: involuntary manslaughter (based on the
predicate offense of child endangerment in violation of R.C. 2919.22(A),
(E)(2)(c)) in violation of R.C. 2903.04(A), a felony of the first degree; Count
Seven: involuntary manslaughter (based on the predicate offense of child
endangerment in violation of R.C. 2919.22(B)(1), (E)(2)(d)) in violation of R.C.
2903.04(A), a felony of the first degree; Count Eight: child endangerment in
violation of R.C. 2919.22(A), (E)(2)(c), a felony of the third degree; and, Count
Nine: reckless homicide in violation of R.C. 2903.041, a felony of the third
degree. The indictment arose from the death of a ten and a half month old child
(“Child”), with whom Thomas resided and for whom Thomas provided care.
{¶3} On February 2, 2009, Thomas made his initial appearance before the
trial court. At that time the trial court assigned Thomas a court appointed attorney,
as he was found to be indigent, and set arraignment for March 4, 2009.
Subsequently, Thomas filed a motion for continuance of the arraignment, which
the trial court granted. On April 29, 2009, Thomas was arraigned and entered a
plea of not guilty to all counts in the indictment.
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{¶4} On June 3, 2009, the matter proceeded to a change of plea hearing.
Pursuant to a written plea agreement Thomas entered pleas of no contest to Count
One and Count Two of the indictment and the State moved to dismiss all
remaining counts of the indictment.2 Prior to accepting Thomas’ pleas of no
contest the trial court conducted a Crim.R. 11 colloquy, during which it asked:
The Court: Do you also understand you’re waiving your right to
appeal the judgment of this court if the court is to find you
guilty?
The Defendant: Yes.
Change of Plea Hearing Tr., p. 7.3 After the colloquy, the State read the
stipulation of facts into the record, and Thomas signed a written stipulation of
facts. The stipulation read:
On or about January 14, 2009, approximately 7:17 p.m., the
Celina Police Department received a report of an injured child
in the City of Celina, County of Mercer, State of Ohio. Celina
Police officers responded to the child’s residence along with
emergency medical service personnel and found a 10 [and a half]
month old child apparently not breathing, unresponsive with
multiple bruises on his face, chest and abdomen.
2
On June 4, 2009, the State filed a nolle prosequi on Counts Three, Four, Five, Six, Seven, Eight, and Nine
of the indictment.
3
We note that during the change of plea hearing Thomas signed a “Waiver of Constitutional Rights Prior to
Entering a Plea of Guilty.” Despite this reference to a plea of guilty, it is clear from the record that Thomas
entered pleas of no contest in open court, was apprised of the consequences of such pleas in open court, and
the same was memorialized in the trial court’s judgment entry, thus rendering reference to a plea of guilty
harmless.
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The child was taken to Mercer Health, and transferred to
Children’s Medical Center in Dayton, Ohio, where the child died
on January 15, 2009. The cause of death was reported to be
non-accidental multiple blunt force trauma to the child. Also,
multiple bruises, broken bones and injuries to the child’s
internal organs were found. The opinion of the treating
physician at Children’s Medical Center was that the child was
abused. The injuries and death were consistent with Shaken
Baby Impact Syndrome.
Jason Thomas admitted to committing the assault against the
minor child that resulted in the child’s death.
Thereafter, the trial court accepted Thomas’ pleas of no contest to Counts One and
Two of the indictment, finding that they were entered voluntarily, knowingly, and
intelligently.
{¶5} On July 22, 2009, the matter proceeded to sentencing. On Count One
of the indictment the trial court sentenced Thomas to a prison term of fifteen years
to life. On Count Two of the indictment the trial court sentenced Thomas to an
eight-year prison term to run concurrently with his sentence in Count One.
{¶6} On August 4, 2010, Thomas filed a Motion to Withdraw pursuant to
Crim.R. 32.1 arguing: that the trial court improperly informed him of his right to
appeal during the change of plea hearing; that he received ineffective assistance of
counsel; and, that there is previously undiscovered evidence, which is exculpatory
in nature. In support of his argument concerning previously undiscovered
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evidence, Thomas submitted affidavits from Kelly Reck, the Child’s paternal
grandmother, and Sue Thomas, Thomas’ mother. The affidavits were notarized on
June 7, 2010. Both affiants stated that in December 2009 they met with a
detective of the Celina Police Department who informed them that law
enforcement had no evidence implicating Thomas in the Child’s death, and that
there was evidence that Sidney Steinecker, the Child’s mother, caused the Child’s
death.
{¶7} On November 15, 2010, the trial court filed its judgment entry
denying Thomas’ Motion to Withdraw, finding, in pertinent part:
* * * With regard to the claimed new evidence, the affidavit of
Kelly L. Reck, the paternal grandmother of the child victim, and
the affidavit of Sue Thomas, the defendant’s mother, claim that
on December 4, 2009, they were told by Celina Police
Department Detective Calvin Freeman that the police knew that
Sidney Steinecker, the victim’s mother, caused his fatal injuries
and that the police never had any evidence on the defendant.
First and foremost, those statements are blatant hearsay when
used to prove the truth of the matter asserted in those
statements. If the motion had been accompanied by an affidavit
from Detective Freeman to that same effect, such evidence may
be a factual basis for the court to consider defendant’s motion to
withdraw his plea. Furthermore, the motion is not supported by
any affidavit or statement of the defendant that contradicts the
stipulation of facts signed by the defendant and acknowledged at
the change of plea hearing on June 3, 2009.
The court concludes that there exists insufficient evidence in
support of defendant’s motion to establish manifest injustice
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sufficient to permit him to withdraw his plea. Furthermore,
there is insufficient evidence to warrant an evidentiary hearing
on the motion.
With regard to the second and third bases for defendant’s
motion, the court has reviewed the transcript of the change of
plea hearing. It is apparent from the record that the court
complied with Criminal Rule 11 during the change of plea
hearing, specifically with regard to defendant’s claim that the
court incorrectly advised the defendant that by entering the no
contest plea he was waiving his right to appeal. That allegation
is misleading and inaccurate. Specifically, the court did advise
the defendant that by entering the no contest pleas, he was
waiving his right to appeal the judgment of the court if the court
found him to be guilty, that being an accurate statement of an
effect of his no contest plea. The court did not advise him that
he could not appeal any other issue other than the court’s
judgment.
November 15, 2010 Judgment Entry, pp. 2-3.
{¶8} It is from this judgment Thomas appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT REVERSIBLY ERRED IN DENYING
THE DEFENDANT-APPELLANT’S MOTION TO
WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE
JUDGMENTS OF GUILTY AND JUDGMENTS OF
SENTENCES, PURSUANT TO CRIM. R. 32.1, ON GROUNDS
THAT THE TRIAL COURT HAD ABUSED ITS
DISCRETION IN ORIGINALLY ADVISING THE
DEFENDANT THAT HE WAS WAIVING HIS RIGHT TO
APPEAL THE JUDGMENT OF THE COURT IF THE COURT
WAS TO FIND HIM GUILTY, THEREBY DENYING THE
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DEFENDANT HIS FUNDAMENTAL AND SUBSTANTIAL
RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY
THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT REVERSIBLY ERRED IN DENYING
THE DEFENDANT-APPELLANT’S MOTION TO
WITHDRAW HIS NO CONTEST PLEAS AND TO VACATE
JUDGMENTS OF GUILTY AND JUDGMENTS OF
SENTENCES, PURSUANT TO CRIM. R. 32.1, ON GROUNDS
THAT AS A MATTER OF LAW, AND AS A MATTER OF AN
ABUSE OF DISCRETION, THE TRIAL COURT FAILED TO
NOTIFY THE DEFENDANT-APPELLANT OF HIS RIGHT
TO APPEAL, UPON HIS SENTENCING IN A SERIOUS
FELONY CASE, IN VIOLATION OF RULE 32 (B) OF THE
OHIO RULES OF CRIMINAL PROCEDURE, AND ALSO IN
VIOLATION OF THE DEFENDANT-APPELLANT’S
FUNDAMENTAL AND SUBSTANTIAL RIGHT TO DUE
PROCESS OF LAW, AS GUARANTEED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
Assignment of Error No. III
IN AN ABUSE OF ITS DISCRETION, THE TRIAL COURT
REVERSIBLY ERRED IN DENYING DEFENDANT-
APPELLANT’S MOTION TO WITHDRAW HIS NO
CONTEST PLEAS AND VACATE JUDGMENTS OF GUILTY
AND JUDGMENTS OF SENTENCES, PURSUANT TO CRIM.
R. 32.1, ON GROUNDS THAT PREVIOUSLY
UNDISCOVERED EVIDENCE FAVORABLE TO
DEFENDANT-APPELLANT HAS BEEN RECEIVED,
SUPPORTED BY AFFIDAVITS, AND WHICH SHOULD
HAVE BEEN PROVIDED TO THE DEFENSE BY THE
STATE, AND WAS NOT, IN VIOLATION OF RULE
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16(B)(1)(f) OF THE OHIO RULES OF CRIMINAL
PROCEDURE.
{¶9} Due to the nature of Thomas’ assignments of error we will address his
second assignment of error first, followed by his first and third assignments of
error.
Assignment of Error No. II
{¶10} In his second assignment of error, Thomas contends that the trial
court erred in denying his Motion to Withdraw because the trial court failed to
advise him of his right to appeal during the sentencing hearing in violation of
Crim.R. 32 (B)(2). We disagree.
{¶11} Review of record reveals that Thomas did not raise the foregoing
sentencing issue in his Motion to Withdraw. A court of appeals is not required to
consider issues not raised before the trial court. State v. Robinson, 3d Dist. No. 8-
97-20, 1999 WL 152890, *1, citing Republic Steel Corp. v. Bd. Of Revision
(1963), 175 Ohio St. 179. Consequently, we decline to consider the merits of
Thomas’ second assignment of error.
{¶12} However, had Thomas raised the sentencing issue in his Motion to
Withdraw, and had we found his argument meritorious, it would not be grounds to
reverse the trial court’s denial of his Motion to Withdraw, because such an error
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bears no relation to the voluntary, knowing, and intelligent nature of his pleas.
See State v. Seaunier, 3d Dist. No. 14-10-12, 2011-Ohio-658, ¶14.
{¶13} Accordingly, we overrule Thomas’ second assignment of error.
Assignments of Error Nos. I & III
{¶14} In his first assignment of error, Thomas contends that the trial court
erred in denying his Motion to Withdraw because the trial court improperly
advised him of his right to appeal during the Crim.R. 11 colloquy, resulting in
manifest injustice. In his third assignment of error, Thomas contends that the trial
court erred in denying his Motion to Withdraw because affidavits filed with his
motion contained newly discovered information that is exculpatory in nature. We
disagree with both contentions.
Standard of Review
{¶15} Crim.R. 32.1 provides that “[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.” See, also, State
v. Mata, 3d Dist. No. 1-04-54, 2004-Ohio-6669, ¶6. A defendant who files a post-
sentence motion to withdraw a plea of guilty or no contest bears the burden of
establishing manifest injustice based on specific facts either contained in the
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record or supplied through affidavits attached to the motion. State v. Orris, 10th
Dist. No. 07AP-390, 2007-Ohio-6499, ¶8; State v. Langenkamp, 3d Dist. Nos. 17-08-
03, 17-08-04, 2008-Ohio-5308, ¶9, citing State v. Totten, 10th Dist. Nos. 05AP-
278, 05AP-508, 2005-Ohio-6210, ¶5. A manifest injustice is an exceptional defect
in the plea proceedings, State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-
4935, ¶12, or a “clear or openly unjust act.” State v. Walling, 3d Dist. No. 17-04-
12, 2005-Ohio-428, ¶6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d
203, 208, 1998-Ohio-271. Accordingly, a post-sentence motion to withdraw a no
contest plea is only granted in “extraordinary cases.” State v. Cline, 4th Dist. No.
09CA16, 2009-Ohio-6007, ¶7, citing State v. Allison, 4th Dist. No. 06CA9, 2007-
Ohio-789, ¶7, citing State v. Smith (1977), 49 Ohio St.2d 261, 264.
{¶16} The decision to grant or deny a Crim.R. 32.1 motion is committed 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.” Smith, supra, at paragraph two of the syllabus. Appellate review of
the denial of a post-sentence motion to withdraw a no contest plea is therefore
limited to a determination of whether the trial court abused its discretion. Cline,
2009-Ohio-6007, at ¶8. A trial court will be found to have abused its discretion
when its decision is contrary to law, unreasonable, not supported by the evidence,
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or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-
18, citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse
of discretion standard, a reviewing court may not simply substitute its judgment
for that of the trial court. State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000
WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
Notification of Right to Appeal during Crim.R. 11 Colloquy
{¶17} Initially, we note that consideration of Thomas’ first assignment of
error is barred by res judicata. “[U]nder the doctrine of res judicata, a final
judgment of conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d
93, 1996-Ohio-337, syllabus. Consequently, res judicata will serve to bar all
claims raised in a Crim.R. 32.1 motion that were raised or could have been raised
in a prior proceeding. State v. Coats, 3d Dist. Nos. 10-09-04, 10-09-05, 2009-
Ohio-3534, ¶16, citing State v. Sanchez, 3d Dist. No. 4-06-31, 2007-Ohio-218,
¶18; State v. McDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22, citing
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State v. Young, 4th Dist. No. 03CA782, 2004-Ohio-2711; State v. Brown, 167
Ohio App.3d 239, 2006-Ohio-3266, ¶7.
{¶18} In his first assignment of error, Thomas contends that the trial court
erred in denying his Motion to Withdraw because the trial court improperly
advised him of his right to appeal during the Crim.R. 11 colloquy. Because the
alleged error took place during the change of plea hearing, Thomas was or should
have been aware of the error well before the thirty-day period for filing his direct
appeal had elapsed. App.R. 4(A); see Coats, 2009-Ohio-3534, at ¶18; State v.
Hessler, 3d Dist. No. 1-09-04, 2009-Ohio-3155, ¶13. Accordingly, because this
issue comes to us a year after sentencing, without reason for delay, we find that
Thomas is barred by res judicata from raising the foregoing error in his Motion to
Withdraw and, consequently, this appeal. Id.{¶19} Although we have found that Thomas’ first assignment of error is
barred by res judicata, we also note that the assignment of error also fails on the
merits.
{¶20} It is well established that a plea of guilty or no contest must be made
knowingly, intelligently, and voluntarily for it to be valid and enforceable. State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶25. To ensure that a plea in a felony case is
being made knowingly, intelligently, and voluntarily, Crim.R. 11(C)(2) requires the
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Case No. 10-10-17
trial judge to address the defendant personally, to review the rights that are being
waived, and to discuss the consequences of the plea. State v. Stewart (1977), 51
Ohio St.2d 86. Crim.R. 11(C)(2)(c) requires the court to review five constitutional
rights that are waived when entering a guilty or no contest plea in a felony case:
the right to a jury trial, the right to confront one’s accusers, the privilege against
compulsory self-incrimination, the right to compulsory process to obtain
witnesses, and the right to require the state to prove guilt beyond a reasonable
doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶19. A trial court must
strictly comply with Crim.R. 11(C)(2)(c) when advising the defendant of the
constitutional rights that are waived in entering a felony plea. Id. at syllabus.
Prejudice is presumed if the court fails to inform the defendant of the
constitutional rights listed in Crim.R. 11(C)(2)(c). Id. A trial court’s acceptance of a
guilty or no contest plea will be affirmed only if the trial court engaged in
meaningful dialogue with the defendant which, in substance, explained the
pertinent constitutional rights, “in a manner reasonably intelligible to that
defendant.” State v. Ballard (1981), 66 Ohio St.2d 473, paragraph two of the syllabus;
see also Veney, supra, at ¶27.
{¶21} The nonconstitutional requirements of Crim.R. 11 are subject to
review for substantial compliance rather than strict compliance. State v. Griggs,
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103 Ohio St.3d 85, 2004-Ohio-4415, ¶¶11-12. “Substantial compliance means that
under the totality of the circumstances, the defendant subjectively understands the
implications of his plea and the rights he is waiving.” State v. Nero (1990), 56 Ohio
St.3d 106, 108. Furthermore, “a defendant must show prejudice before a plea will
be vacated for a trial court’s error involving Crim.R. 11(C) procedure when
nonconstitutional aspects of the colloquy are at issue.” Veney, 2008-Ohio-5200, at
¶17. In order to demonstrate prejudice, the defendant must show that the plea
would not have been otherwise made. Stewart, 51 Ohio St.2d at 93.
{¶22} During the plea colloquy the trial court asked Thomas:
The Court: Do you also understand you’re waiving your right
to appeal the judgment of this court if the court is to find you
guilty?
The Defendant: Yes.
Change of Plea Hearing Tr., p. 7. Thomas contends that the foregoing notification
incorrectly informs him of his right to appeal as it exists subsequent to entering a
plea of no contest. Thomas interprets the trial court’s statement to mean that he
was waiving his right to appeal “any and all judgments of the trial court.” Thomas
App. Br., p. 8. Additionally, Thomas seemingly contends that the trial court must
notify him of the judgments and issues that may be appealed despite entering a
plea of no contest. We disagree on both accounts.
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{¶23} A plea of no contest is not an admission of defendant’s guilt, but is
an admission of the truth of the facts alleged in the indictment, information, or
complaint. Crim.R. 11(B)(2). Consequently, a defendant’s right to appeal is
decidedly limited under a no contest plea. Generally speaking, a no contest plea
waives all nonjurisdictional defects to a felony conviction. State v. Watson, 12th
Dist. No. CA2007-04-020, 2008-Ohio-629, ¶11, citing State v. Palm, 9th Dist. No.
22298, 2005-Ohio-1637, ¶13; State v. Deresse, 5th Dist. No. 09 CA 11, 2009-Ohio-
6725, ¶38. A plea of no contest, however, does not preclude the defendant from
challenging the sufficiency of the indictment, information, or complaint on appeal,
Id., nor does it preclude a defendant from asserting upon appeal that the trial court
prejudicially erred in ruling on a pretrial motion. Crim.R. 12(I).
{¶24} The trial court’s statement concerning Thomas’ right to appeal was
proper. The context of the trial court’s statement does not support Thomas’
interpretation that the trial court informed Thomas that his plea of no contest
would waive his right to appeal all judgments of the trial court. First, the trial
court used ‘judgment’ in the singular. This fact would not lead a reasonable
person to surmise that the trial court was referring to multiple judgments. Second,
Thomas’ case contains only one judgment, the finding of guilt after the Crim.R. 11
colloquy. Consequently, the only reasonable interpretation of the trial court’s
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statement is that Thomas could not appeal the trial court’s finding of guilt, which
is an accurate statement. Accordingly, we find that the trial court’s statement
concerning Thomas’ right to appeal accurately informed him that by virtue of
entering a plea of no contest he could not appeal the trial court’s finding of guilt.
{¶25} Additionally, we can find no support for Thomas’ contention that the
trial court must notify him of the judgments and issues that may be appealed, nor
has Thomas provided us with any support. See App.R. 16(A)(7). Despite
Thomas’ lack of support, in the interest of justice, we will address the merits of
this contention. To ensure that the defendant enters a voluntary, knowing, and
intelligent plea the trial court must determine whether the defendant understands
the waiver of various constitutional and nonconstitutional rights. To ensure the
defendant’s understanding of his or her rights the trial court must conduct a
Crim.R. 11 colloquy. During the Crim.R. 11 colloquy the defendant is apprised of
the rights he or she is waiving by entering their plea, and the effect of those
waivers. Stewart, 51 Ohio St.2d at 88. There is no requirement that the trial court
also notify the defendant of his or her remaining rights (i.e., those that survive the
plea), and for good reason, these rights are not waived by entering a plea.
Consequently, we find that the trial court did not err when it did not inform
Thomas of his remaining appellate rights during the plea colloquy.
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{¶26} In light of the foregoing, we find that the trial court adequately
informed Thomas of the rights he waived by virtue of entering pleas of no contest,
and the effect of those waivers. Consequently, we also find that the trial court did
not abuse its discretion when it denied Thomas’ Motion to Withdraw, with respect
to the issue raised in his first assignment of error.
Affidavits
{¶27} Initially, we note that Thomas’ third assignment of error, unlike his
first assignment of error is not barred by res judicata, as the evidence proffered in
support of this assignment of error was unknown to Thomas and did not come to
light until several months after Thomas was sentenced. Consequently, we will
address the merits of Thomas’ third assignment of error.
{¶28} In his third assignment of error, Thomas challenges the trial court’s
determination concerning the credibility of the affidavits attached to his Motion to
Withdraw. Specifically, Thomas contends that the affidavits contain exculpatory
information, and as a result he should have, at the very least, been granted a
hearing. We disagree.
{¶29} A trial court may, in its discretion, judge the credibility of affidavits
submitted in support of a motion to withdraw a plea in determining whether to
accept the affidavits as true statements of fact. State v. Williams, 12th Dist. No.
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Case No. 10-10-17
CA2009-03-032, 2009-Ohio-6240, ¶17, citing State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-
128, ¶14, citing State v. Robinson, 11th Dist. No. 2003-A-0125, 2005-Ohio-5287, ¶28. To
hold otherwise would require a hearing every time a defendant filed a motion to
withdraw a plea. Id.{¶30} Several facts, apparent from the affidavits, support the trial court’s
finding that the affidavits lacked credibility. First, the affidavits were rife with
hearsay. Specifically, the statements that form the basis of Thomas’ contention
that law enforcement did not reveal their belief that Sydney Steinecker, the
mother, caused the child’s death were hearsay. Second, one of the affidavits was
submitted by a biased party, Thomas’ mother, See State v. Yearby, 8th Dist. No.
79000, 2002 WL 120530, *3, while the other was submitted by the child’s paternal
grandmother. Third, the affidavits were filed nearly a year after Thomas was
sentenced, and six months after the affiants allegedly learned of the exculpatory
information. Last, Thomas did not file an affidavit contradicting the facts he
stipulated to during the change of plea hearing. By citing this fact we are not
suggesting that a defendant must file an affidavit contradicting the facts he or she
stipulated to during the change of plea hearing, but we do find the absence thereof
may raise issues concerning the credibility of affidavits offered in support of
defendant’s innocence. Considering the foregoing facts in their totality, we find
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that the trial court did not abuse its discretion when it found the affidavits lacked
credibility.4 Consequently, the trial court was not required to conduct a hearing on
Thomas’ Motion to Withdraw, and did not abuse its discretion when it denied
Thomas’ Motion to Withdraw.
{¶31} Accordingly, we overrule Thomas’ first and third assignments of
error.
{¶32} Having found no error prejudicial to Thomas herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
4
We decline to address Thomas’ assertion that the State violated Crim.R. 16 by withholding information
that law enforcement allegedly conveyed to the affiants concerning Thomas’ innocence and Sydney
Steinecker’s guilt, because Thomas failed to adequately argue the assertion and failed to cite authority in
support thereof. App.R. 16(A)(7).
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