[Cite as State v. Turner, 2016-Ohio-3200.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26801
:
v. : T.C. NO. 14CR2504
:
EDWARD L. TURNER : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___27th___ day of ___May___, 2016.
...........
MEAGAN D. WOODALL, Atty, Reg. No. 0093466, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
EDWARD L. TURNER, #711-599, Madison Correctional Institution, P. O. Box 740,
London, Ohio 43140
Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant, Edward L. Turner, acting pro se, appeals a decision of
the Montgomery County Court of Common Pleas, Criminal Division, denying his motion
to withdraw his guilty plea. Turner filed a timely notice of appeal with this Court on
August 17, 2015.
{¶ 2} On August 27, 2014, Turner was indicted for the following offenses, to wit: I)
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felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of
the second degree; II) felonious assault (deadly weapon), in violation of R.C.
2903.11(A)(2), a felony of the second degree; III) having a weapon while under disability
(prior offense of violence), in violation of 2929.13(A)(2), a felony of the third degree; IV)
tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), a felony of the
third degree; and V) having a weapon while under disability (prior drug conviction), in
violation of R.C. 2929.13(A)(3), a felony of the third degree. Both counts of felonious
assault were accompanied by mandatory three-year firearm specifications. At his
arraignment on September 2, 2014, Turner pled not guilty to all of the charges in the
indictment.
{¶ 3} Thereafter, on November 26, 2014, Turner pled guilty to tampering with
evidence (alter/destroy), as well as both counts of having a weapon while under disability.
In return for his guilty plea, the State agreed to dismiss both counts of felonious assault
and their attendant firearm specifications. Turner and the State also agreed that his
aggregate sentence would range between three and five years for the three guilty pleas.
The trial court accepted Turner’s pleas and found him guilty on all three counts.
{¶ 4} On December 11, 2014, the trial court merged the two convictions for having
a weapon while under disability. The trial court then sentenced Turner to 36 months in
prison for the merged count of having a weapon while under disability and 24 months for
tampering with evidence. The trial court ordered that the sentences be served
consecutively for an aggregate prison term of five years (60 months). Turner’s judgment
entry of conviction was filed on December 16, 2014. The record establishes that Turner
did not file a direct appeal of his conviction and sentence.
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{¶ 5} However, approximately seven months later on July 10, 2015, Turner filed a
motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. In his motion to withdraw,
Turner argued that his counsel was ineffective for not objecting when the trial court failed
to make the requisite findings pursuant to R.C. 2929.14(C)(4) before imposing
consecutive sentences. In a decision issued on July 22, 2015, the trial court denied
Turner’s motion to withdraw.
{¶ 6} It is from this judgment that Turner now appeals.
{¶ 7} As they are all interrelated, Turner’s three assignments of error will be
discussed together as follows:
{¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-
APPELLANT IN GRANTING THE STATE OF OHIO A SUMMARY JUDGMENT IN
VIOLATION OF HIS ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW
AS GUARANTEED BY THE 14TH AMENDMENT, U.S. CONSTITUTION, AS WELL AS
ARTICLE 1, S/S10, OHIO CONSTITUTION.”
{¶ 9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-
APPELLANT IN NOT ORDER [sic] AND CONDUCTING AN EVIDENTIARY HEARING
BEFORE ENTERING JUDGMENT IN THE CASE IN VIOLATION OF HIS ABSOLUTE
RIGHT TO PROCEDURAL DUE PROCESS OF LAW AS GUARANTEED UNDER THE
OHIO AND U.S. CONSTITUTION.”
{¶ 10} “IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT NOT TO
MODIFY DEFENDANT-APPELLANT’S FIVE (5) YEAR SENTENCE TO A JUDGMENT
OF THREE (3) YEARS IN VIOLATION OF HIS ABSOULTE RIGHT TO PROCEDURAL
PROCESS OF LAW.”
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{¶ 11} In the instant appeal, Turner contends that the trial court erred when it
denied his post-sentence motion to withdraw his guilty pleas. Specifically, Turner argues
that his motion to withdraw should have been granted because his trial counsel failed to
object when the trial court imposed consecutive sentences without first making the
requisite statutory findings under R.C. 2929.14(C)(4). Turner also asserts that the trial
court should have held an evidentiary hearing during which he could have presented
documentation to support his motion to withdraw. Lastly, Turner argues that because
the trial court failed to make the proper findings under R.C. 2929.14(C)(4), “he was
presumed to be entitled to concurrent sentences that totaled no more than thirty-six (36)
months rather than the sixty (60) months imposed.”
{¶ 12} We review a trial court's decision on a post-sentence motion to withdraw a
guilty plea and on a decision granting or denying a hearing on the motion for an abuse of
discretion. Xenia v. Jones, 2d Dist. Greene No. 07–CA–104, 2008–Ohio–4733, ¶
6; State v. Perkins, 2d Dist. Montgomery No. 25808, 2014–Ohio–1863, ¶ 27. “An abuse
of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal decision-
making.’ ” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011–Ohio–5070, ¶ 16,
quoting State v. Beechler, 2d Dist. Clark No. 09–CA–54, 2010–Ohio–1900, ¶ 62. (Other
citation omitted.) “Absent an abuse of discretion on the part of the trial court in making
the ruling, its decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d
715 (1992).
{¶ 13} Crim.R. 32.1 provides that a trial court may grant a defendant's post-
sentence motion to withdraw a guilty plea only to correct a manifest injustice.
Accordingly, a defendant who moves to withdraw his plea bears the burden of
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establishing a manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No.
19013, 2002–Ohio–2278, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324
(1977), paragraph one of the syllabus. “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, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746,
*2 (Aug. 20, 1999). Under this standard, a post sentence motion to withdraw is allowable
only in extraordinary cases. Smith at 264.
{¶ 14} “A hearing on a post-sentence motion to withdraw a guilty plea is not
necessary if the facts alleged by the defendant, even if accepted as true, would not require
the court to grant the motion to withdraw the guilty plea.” State v. Mogle, 2d Dist. Darke
Nos. 2013–CA–4, 2013–CA–5, 2013–Ohio–5342, ¶ 17, quoting State v. Burkhart, 2d
Dist. Champaign No. 07–CA–26, 2008–Ohio–4387, ¶ 12. In other words, “[t]o obtain a
hearing, ‘a movant must establish a reasonable likelihood that the withdrawal is
necessary to correct a manifest injustice[.]’ ” State v. Tunstall, 2d Dist. Montgomery No.
23730, 2010–Ohio–4926, ¶ 9, quoting State v. Whitmore, 2d Dist. Clark No. 06–CA–50,
2008–Ohio–2226, ¶ 11. “[W]e 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.” (Citations
omitted.) State v. Stewart, 2d Dist. Greene No. 2003–CA–28, 2004–Ohio–3574, ¶ 6.
{¶ 15} We recently addressed a strikingly similar situation in State v. Walz, 2d Dist.
Montgomery No. 26131, 2014-Ohio-4712, wherein the defendant entered guilty pleas to
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two counts of felonious assault and one count of failure to comply. Id. at ¶ 4. The trial
court merged the felonious assault convictions. Id. It then imposed a five-year sentence
for felonious assault and a consecutive one-year sentence for failure to comply. Id. The
defendant did not appeal. Id. Approximately five months later, the defendant filed a pro
se Crim.R. 32.1 motion to withdraw his guilty pleas. Id. at ¶ 5. Pertinent to the instant
appeal, the defendant argued that his counsel was ineffective at sentencing for failing to
object to a lack of consecutive-sentence findings on the felonious assault and failure-to-
comply charges. Id.
{¶ 16} Ultimately, we affirmed the judgment of the trial court denying the
defendant’s motion to withdraw, stating as follows:
Here the manifest injustice Walz alleged was ineffective assistance
of trial counsel. Specifically, he alleged that his guilty pleas were not
entered knowingly, intelligently, and voluntarily because he was deprived of
effective assistance of counsel at sentencing. As set forth above, he
claimed counsel, at sentencing, * * * failed to object to a lack of consecutive-
sentence findings * * *.
The foregoing sentencing-related arguments have nothing to do with
the guilty pleas that preceded sentencing. Even if we assume, arguendo,
the existence of some error or ineffective assistance of counsel at
sentencing, those issues fail to establish a manifest injustice
warranting withdrawal of the guilty pleas themselves. Walz's arguments
are not even directed toward the pleas, which were the only proper subject
of his Crim.R. 32.1 motion. [State v. Ogletree, 2d Dist. Clark No. 2014–
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CA–16, 2014–Ohio–3431,] ¶ 19–20 (finding that the trial court's alleged
failure to make consecutive-sentence findings did not constitute grounds
for withdrawing a plea under Crim.R. 32.1). Because Walz has not
demonstrated entitlement to withdraw his guilty pleas even if his allegations
are true, the trial court was not required to hold an evidentiary hearing.
Walz at ¶ 8-9.
{¶ 17} Initially, we note that the transcript of the sentencing hearing clearly
indicates that the trial court made the requisite findings pursuant to R.C. 2929.14(C)(4)
before it imposed consecutive sentences. Additionally, on December 15, 2014, the trial
court issued a “Supplemental Termination Entry: Findings in Support of Consecutive
Sentences” in which it journalized its findings pursuant to R.C. 2929.14(C)(4) in support
of its decision to impose consecutive sentences. Moreover, the parties agreed to a
sentence within the range of three to five years. Nevertheless, Turner’s sentencing
argument has nothing to do with whether he entered his guilty pleas knowingly,
intelligently, or voluntarily. Walz at ¶ 10. Therefore, in accordance with our prior holding
in Walz, we find that Turner has not demonstrated a manifest injustice
warranting withdrawal of his guilty pleas, and the trial court did not err when it declined to
hold an evidentiary hearing on his motion to withdraw.
{¶ 18} Lastly, we reiterate that in Ogletree, we held that an argument about a lack
of consecutive-sentence findings could not be raised in the context of a
Crim.R. 32.1 motion to withdraw a guilty plea. We further opined that the issue could
have been raised in a direct appeal and, therefore, that res judicata also precluded it from
being raised in a post-judgment context. Ogletree at ¶ 21–22. In another recent case,
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this court held that the absence of required consecutive-sentence findings renders the
sentence imposed contrary to law and “not merely voidable, but void.” State v.
Rammel, 2d Dist. Montgomery Nos. 24871, 24872, 2013–Ohio–3045, ¶ 19 (Rammel II).
However, in State v. Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2014–Ohio–
1281 (Rammel III ), we further recognized, citing R.C. 2953.08(D)(1), that an agreed
sentence is not reviewable on appeal. Id. at ¶ 10. And, we have recently held that
findings to justify a consecutive sentence are unnecessary when the sentence is an
agreed sentence. State v. Weese, 2d Dist. Clark No. 2013–CA–61, 2014–Ohio–3267,
¶ 5; accord State v. Sergent, -- Ohio St.3d --, 2016-Ohio-2696 (a trial court judge is not
required to make a separate consecutive-sentence finding if presented with a jointly
recommended sentence that contains consecutive sentences). But regardless of
whether res judicata would apply, we agree with Ogletree that a lack of consecutive-
sentence findings does not constitute grounds for withdrawing a plea under Crim.R. 32.1,
which is the only issue before us.
{¶ 19} Turner’s first, second, and third assignments of error are overruled.
{¶ 20} All of Turner’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Meagan D. Woodall
Edward L. Turner
Hon. Mary L. Wiseman
State v. Turner
Combined Opinion