State v. Green

[Cite as State v. Green, 2019-Ohio-1303.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2018-T-0063
- vs - :

BENJAMIN N. GREEN, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2000 CR 00574.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor; Christopher Becker and Ashleigh Musick,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481-1092 (For Plaintiff-Appellee).

David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For
Defendant-Appellant).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Benjamin N. Green, appeals a judgment in the Trumbull County

Court of Common Pleas denying his Crim.R. 32.1 motion to withdraw a guilty plea without

conducting a hearing or issuing findings of fact and conclusions of law. We affirm the trial

court’s judgment.

{¶2} As an initial point, Green cited facts in his opening brief based on (1) the

two volumes of transcript from the January 11, 2002 hearing on his motion to suppress,
and (2) Green’s affidavit, which he states is appended to his motion to “vacate” his plea.

Neither of these sources were made part of the record on appeal.

{¶3} “The duty to provide a transcript for appellate review falls upon the

appellant.” State v. Bolden, 11th Dist. Lake No. 2014-L-121, 2016-Ohio-4727, ¶61. “This

is because an appellant has the burden to show error by reference to matters in the

record.” Id., citing State v. Skaggs, 53 Ohio St.2d 162, 163 (1978). “This principle is

recognized in App.R. 9(B), which provides that ‘* * * the appellant shall in writing order

from the reporter a complete transcript or a transcript of such parts of the proceedings not

already on file as he deems necessary for inclusion in the record * * *.’” Id.

{¶4} Therefore, neither the transcript from the suppression hearing nor the

affidavit missing from the motion to vacate are considered by this court. The following

facts are supported by the record in this matter:

{¶5} On August 28, 2000, Mr. John Williamson was shot and killed near the

intersection of Austin Avenue and Oak Street, Warren, Ohio, while riding his bicycle. He

was 18 years old at the time of his death, 4”3’ in height, and weighed approximately 97

pounds.

{¶6} Police detained Green, who was fleeing from the direction of the crime

shortly after the shooting, in a nearby church parking lot. He was subsequently brought

into the Warren Police Department for questioning. Det. Sgt. Al Bansky and Det. Jeff

Hoolihan are the detectives that met with Green in an interrogation room at the Warren

Police Department. Green was 16 years old at the time of the interrogation.

{¶7} Before beginning the interrogation, Green was presented with a Warren

Police Department waiver of rights form. Green was read the rights form by Det. Sgt.

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Bansky, he read the form back to the detectives, and he signed it as witnessed by the

detectives. The transcript of Green’s interview, Green’s written statement, and the

findings of fact and conclusions of law in the judgment entry denying Green’s motion to

suppress, indicate that Green knowingly and willingly waived his rights either orally or in

writing—including his right to counsel—no less than three times in less than two hours.

{¶8} Neither detective was in uniform during the interrogation. Green stated

repeatedly that he was comfortable, willing to talk to the detectives on camera, and

understood that he could stop talking and request an attorney at any time. Green was

permitted to take multiple breaks during the interrogation. Green stated multiple times

that he understood his rights and that he had not been threatened, intimidated, or

promised anything in exchange for his willingness to talk with detectives.

{¶9} During the interrogation, Green gave a detailed oral and written description

of the events that occurred on August 28, 2000, which led to the death of Mr. Williamson.

Green encountered the victim while walking down the street where the murder occurred.

Initially suspecting that the victim may have had a gun in his right pocket, Green shot at

the victim using a .25 caliber chrome automatic firearm at least four times, striking him

twice. The final gunshot to strike the victim, fired by Green to the back of the victim’s

head from approximately two feet away, was fatal. Green further stated that following the

fatal shot, he fled the scene on foot and threw the murder weapon in the woods. Green

agreed to help the detectives locate the weapon. It was later retrieved—consistent with

Green’s version of events—in the woods where Green claimed to have thrown it while

fleeing.

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 {¶10} Sometime after Green had given his oral and written statement, and

unbeknownst to him, his parents arrived with an attorney retained to represent him. Police

refused to allow both the parents and the attorney to have access to Green, as he had

already waived his rights and had not requested an attorney at any time during the

interrogation.

{¶11} Green was indicted on one count of aggravated murder with a firearm

specification (R.C. 2903.01(A) and 2941.145) on September 9, 2000. On October 5,

2000, Green entered a plea of not guilty at his arraignment on the indictment. Between

that time and his change of plea in 2002, Green’s defense counsel filed motions

challenging Green’s competency to stand trial, requesting recusal of the judge, and to

suppress all illegally obtained evidence during the investigation into the murder, including

statements Green made to detectives on August 28, 2000.

{¶12} The motion to suppress was filed on October 12, 2000, and was

supplemented on May 7, 2001. A hearing on the motion was held on January 11, 2002.

On January 18, 2002, the trial court issued its findings of fact and conclusions of law

overruling the motion. Considering the totality of the circumstances of the interrogation,

the court found that Green knowingly, intelligently, and voluntarily waived his Miranda

rights. The court further found that the presence of Green’s parents and an attorney on

his behalf were irrelevant because of his valid waiver of rights.

{¶13} That same day, Green appeared with counsel and entered a plea of guilty

to an amended indictment charging him with one count of murder with a firearm

specification (R.C. 2903.02 and 2941.145). He was sentenced to 15 years to life for the

murder and 3 years for the firearm specification, to run prior to and consecutively. This

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sentence was subject to time served from August 28, 2000. Green did not appeal the

sentence, nor did he challenge the ruling on the motion to suppress.

{¶14} After serving nearly eighteen years of his prison sentence, Green filed a

motion to withdraw his guilty plea on May 16, 2018, which the state opposed. The trial

court denied the motion on June 14, 2018 without a hearing. No findings of fact or

conclusions of law were issued.

{¶15} Green filed a timely notice of appeal and raises the following assignment of

error for our review:

{¶16} “Defendant-Appellant’s sole assignment of error is that the trial court erred

in denying the motion to vacate guilty plea filed by defendant-appellant.”

{¶17} Under his sole assignment of error, Green raises several issues which are

briefed by both sides, but which are not specifically assigned as separate errors. The

following issues are presented:

[1.] Did the trial court err in not holding a hearing on defendant-
appellant’s motion to vacate his guilty plea?

[2.] Did the trial court err in not providing findings of facts and
conclusions of law to explain the basis of its decision to deny
defendant-appellant’s motion to vacate his guilty plea?

[3.] Do [sic] the trilogy of United States Supreme Court cases decided
during the period from 2005 through 2012 and made retroactive bear
directly upon the validity of defendant-appellant’s motion to vacate
his guilty plea?

[4.] Has the defendant-appellant shown that “manifest injustice”
occurred in this case?

[5.] Did the trial court abuse its discretion in not granting defendant-
appellant’s motion to vacate his guilty plea in light of the obvious
“manifest injustice” shown by defendant-appellant?

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 [6.] Did Warren police detectives Bansky and Hoolihan violate
defendant-appellant’s constitutional rights?

[7.] Did Warren police detectives Bansky and Hoolihan
unconstitutionally deny defendant-appellant access to his parents?

[8.] Did Warren police detectives Bansky and Hoolihan
unconstitutionally deny defendant-appellant access to counsel?

[9.] Was the threat of a sentence of life without parole
unconstitutional?

{¶18} In arguing his sole assignment of error, Green includes contentions that

should be listed as separate assignments of error because they require different legal

analyses. Courts of appeal must determine each appeal “on its merits on the assignments

of error set forth in the briefs under App.R. 16[.]” App.R. 12(A)(1)(b). Generally, appellate

courts rule on assignments of error only and do not address mere arguments. Bonn v.

Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-Ohio-2313, ¶9.

{¶19} It is common, however, for an appellate court to take assignments of error

from appellant’s brief arguments rather than outright refuse to address the argument in

the interest of justice. See State v. Shook, 4th Dist. Pike No. 13CA841, 2014-Ohio-3403

(although defendant’s brief did not contain a separate statement of the assignments of

error, rather than dismiss the appeal, the appellate court synthesized an assignment of

error from the argument portion of the brief); Carter-Jones Lumber Co. v. Denune, 132

Ohio App.3d 430 (10th Dist.1999) (“the error assigned from the trial court’s judgment is

readily discernible” from appellant’s “‘[s]tatement of issues presented,’” and there is “no

prejudice to appellees resulting from the appellant’s failure to comply with App.R.

16(A)(3)”). See also Germadnik v. Auld, 11th Dist. Trumbull No. 2017-T-0113, 2018-

Ohio-2889, ¶11 (although not properly briefed in a separate assignment of error, an issue

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raised by the appellant was considered because the appellee was afforded an opportunity

to respond).

{¶20} In the present matter, Green clearly assigns additional errors in his “Issues

Presented” section which are argued in his brief. Further, the state has acknowledged

and fully counter-argued against these errors in its answer brief. Therefore, there would

be no prejudice to the state for this Court to reach the merits of these errors where

applicable on appeal. Therefore, we move forward to rule on the merits. For clarity and

convenience, we combine and consider related issues.

{¶21} The first and fifth issues Green presented for review as to why the trial court

erred state:

[1.] “[T]he trial court err[ed] in not holding a hearing on defendant-
appellant’s motion to vacate his guilty plea[.]”

[5.] “[T]he trial court abuse[d] its discretion in not granting defendant-
appellant’s motion to vacate his guilty plea in light of the obvious
“manifest injustice” shown by the defendant-appellant[.]”

{¶22} “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 (1977), paragraph one of the syllabus, citing Crim.R. 32.1.

“Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest

injustice.” State v. Gibson, 11th Dist. Portage No. 2007-P-0021, 2007-Ohio-6926, ¶33

(citations omitted). The motion “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.” Smith, supra, at paragraph two of the

syllabus. Such a motion is allowable only in extraordinary circumstances. Id. at 264.

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 {¶23} “An appellate court will review the trial court’s determination of the Crim.R.

32.1 motion for an abuse of discretion.” State v. Desellems, 11th Dist. Lake No. 98-L-

053, 1999 WL 753996, *3 (Feb. 12, 1999) (citation omitted). An abuse of discretion is the

trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.

Dean, 11th Dist. Trumbull No. 2015-T-0136, 2016-Ohio-8422, ¶11, citing State v.

Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law

Dictionary 11 (8th Ed.2004).

{¶24} Likewise, “the decision on whether or not a court is to hold a hearing on a

defendant’s Crim.R. 32.1 motion to withdraw a plea is reviewed to determine whether the

trial court committed an abuse of discretion.” State v. Alexander, 8th Dist. Cuyahoga No.

72028, 1998 WL 72491, *3 (Feb. 19, 1998), citing Smith, supra, at paragraph two of the

syllabus.

{¶25} “While a trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of a 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 the defendant.” Gibson, supra, at ¶32, quoting State v. Wilkey, 5th

Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, ¶25, citing State v. Xie, 62 Ohio St.

3d 521 (1994), paragraph one of the syllabus. “In those situations where the trial court

must consider a post-sentence motion to withdraw a guilty plea, a hearing is only required

if the facts alleged by the defendant, and accepted as true, would require withdrawal of

the plea.” Id. “An evidentiary hearing on a post-sentence motion to withdraw a guilty plea

‘is not required if the facts as alleged by the defendant, and accepted as true by the court,

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would not require that the guilty plea be withdrawn.’” Id. at ¶33, quoting State v.

Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶18 (citation omitted).

{¶26} Under these circumstances, we find that Green’s motion has not

demonstrated the “manifest injustice” necessary to allow withdrawal of his guilty plea

under Crim.R. 32.1. He has presented no supporting affidavits, documentary evidence,

files, or other evidence in support of the motion to withdraw his guilty plea from 2002. The

records exist just as they did at the determination of the suppression motion on January

18, 2002, which the trial court denied after setting forth findings of fact and conclusions

of law as to Green’s interrogation and valid waiver of Miranda rights. Green solely relies

on inapposite and factually dissimilar case law that he argues “articulated a sentencing

philosophy for the treatment of juvenile offenders who are charged and tried as adults”

and demonstrates “evolving standards” for treating juvenile offenders that should be

retroactively imposed here. Under these circumstances, Green has not set forth sufficient

operative facts to establish substantive grounds for relief. The trial court did not abuse

its discretion in failing to hold a hearing on the matter or in denying the motion.

{¶27} The second issue appellant presented for review as to why the trial court

erred states: “[T]he trial court err[ed] in not providing findings of facts and conclusions of

law to explain the basis of its decision to deny defendant-appellant’s motion to vacate his

guilty plea[.]”

{¶28} “There is no duty for a trial court to issue findings of fact and conclusions of

law when denying a Crim.R. 32.1 motion to withdraw a guilty plea.” State v. Dewey, 11th

Dist. Ashtabula No. 98-A-0027, 1998 WL 964499, *4 (Dec. 4, 1998), citing State ex rel.

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Hagwood v. Jones, 8th Dist. Cuyahoga No. 72084, 1997 WL 209289, *1 (Apr. 24, 1997);

State v. Marshall, 6th Dist. Wood No. WD-88-63, 1989 WL 72239, *2 (June 30, 1989).

{¶29} Here, Green is confusing a motion brought pursuant to Crim.R. 32.1 with a

petition for postconviction relief under R.C. 2953.21. If a trial court dismisses a petition

for postconviction relief under the latter, “it shall make and file findings of fact and

conclusions of law[.]” R.C. 2953.21(H). A trial court has no such duty when denying a

Crim.R. 32.1 motion to withdraw a guilty plea.

{¶30} In support of his position, Green cites to this court’s decision in State v.

Emerine, 11th Dist. Lake No. 2017-T-0091, 2018-Ohio-2458. In that case, we found that

a trial court, due to the mandate in the postconviction statute, was required to make

findings of fact and conclusions of law. Id. at ¶8. Emerine did not involve a post-sentence

motion to withdraw a guilty plea, which has no such mandate.

{¶31} In the case sub judice, the motion filed by Green bore the caption “Motion

to withdraw guilty plea” and referenced Crim.R 32.1 in both the original motion and all

briefing regarding the issue. Further, the request is one to withdraw a plea after a

sentence has been imposed—which is properly brought under Crim. R. 32.1—and not to

void or alter a judgment. Finally, Green’s arguments for withdrawing the guilty plea are

rooted in the “manifest injustice” legal standard, which is language taken directly from

Crim.R. 32.1. Therefore, the trial court could clearly overrule the motion without issuing

findings of fact and conclusions of law.

{¶32} The next set of issues Green presented for review as to why the trial court

erred, which relate directly to the hearing on Green’s motion to suppress held on January

11, 2002, state:

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 [6.] Warren police detectives Bansky and Hoolihan violate[d]
defendant-appellant’s constitutional rights[.]

[7.] Warren police detectives Bansky and Hoolihan unconstitutionally
den[ied] defendant-appellant access to his parents[.]

[8.] Warren police detectives Bansky and Hoolihan unconstitutionally
den[ied] defendant-appellant access to counsel[.]

[9.] [T]he threat of a sentence of life without parole [was]
unconstitutional[.]

{¶33} As stated above, “[t]he duty to provide a transcript for appellate review falls

upon the appellant.” Bolden, supra, at ¶61. “When portions of the transcript necessary

for resolution of assigned errors are omitted from the record, the reviewing court has

nothing to pass upon and thus, as to those assigned errors, the court has no choice but

to presume the validity of the lower court’s proceedings, and affirm.” Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199 (1980).

{¶34} Because no transcript of the January 11, 2002 hearing was incorporated

into the record in the present matter, we are forced to rely solely on the findings of fact

and conclusions of law issued by the trial court following the hearing. There, the trial court

utilized the appropriate totality-of-the-circumstances approach from State v. Edwards, 49

Ohio St.2d 31 (1976), overruled on other grounds, sub nom. Edwards v. Ohio, 438 U.S.

911 (1978). Citing the testimony and evidence in detail, the court determined that Green

effectively waived his Miranda rights. The conclusions of law state that “[t]he Court,

having heard the testimony of the witnesses and having reviewed the video and audio

taped statements of the Defendant and all exhibits and the totality of the circumstances

the Defendant knowingly, intelligently and voluntarily waived his Miranda warnings.”

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 {¶35} Throughout the issues raised in his brief and reply brief, Green argues that

the constitutional issues regarding interrogations and charging of juveniles did not exist

prior to a “trilogy of cases” decided by the United States Supreme Court since the time of

his plea. He contends these cases establish “a philosophy of dealing with juvenile

offenders” that is applicable to the determination of voluntariness of his oral, written, and

videotaped confessions on August 28, 2000. In addition, he contends they have an

impact on what level of punishment was constitutionally available to the state.

{¶36} In fact, all three Supreme Court cases in the “trilogy” are regarding

treatment of juveniles for sentencing purposes. None of them have any bearing on

interrogations of juveniles or whether juvenile confessions are deemed valid. Roper v.

Simmons, 543 U.S. 551 (2005), syllabus (“The Eighth and Fourteenth Amendments forbid

imposition of the death penalty on offenders who were under the age of 18 when their

crimes were committed.”); Graham v. Florida, 560 U.S. 48, 82 (2010) (“The Constitution

prohibits the imposition of a life without parole sentence on a juvenile offender who did

not commit homicide.”); Miller v. Alabama, 567 U.S. 460, 489 (2012) (“Graham, Roper,

and our individualized sentencing decisions make clear that a judge or jury must have the

opportunity to consider mitigating circumstances before imposing the harshest possible

penalty for juveniles.”) (emphasis added).

{¶37} Because these Supreme Court cases are inapposite, the interrogation

issues were already properly heard by the trial court and decided after the hearing on the

suppression motion, from which the trial court issued findings of fact and conclusions of

law. “During a hearing on a motion to suppress evidence, the trial judge acts as the trier

of fact and, as such, is in the best position to resolve factual questions and assess the

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credibility of witnesses.” State v. Lett, 11th Dist. Trumbull No. 2008-T-0116, 2009-Ohio-

2796, ¶13, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. “An

appellate court reviewing a motion to suppress is bound to accept the trial court’s findings

of fact where they are supported by competent, credible evidence.” Id.

{¶38} Under Ohio law, as it stands presently and in 2000, a juvenile may

voluntarily make a confession in the absence of his parents where he or she knowingly,

intelligently, and voluntarily waives Miranda rights. See, e.g., In re Watson, 47 Ohio St.3d

86, 89-90 (1989); State v. Stewart, 176 Ohio St. 156, 159-160 (1964); State v. Bell, 48

Ohio St. 2d 270, 276-277 (1976), rev’d on other grounds, sub nom. Bell v. Ohio, 438 U.S.

637 (1978).

{¶39} It is important to note that there was no direct appeal taken after Green’s

plea and conviction. As such, in addition to the other reasons stated herein, many of his

claims would be barred by res judicata. See, e.g., State v. Gegia, 11th Dist. Portage No.

2003-P-0026, 2004-Ohio-1441, ¶24; State v. Cale, 11th Dist. Lake No. 2000-L-034, 2001

WL 285794, *3 (Mar. 23, 2001).

{¶40} Furthermore, there is no evidence in the record of the alleged threat by a

prosecutor of a life sentence without the possibility for parole. Green references an

affidavit that was appended to the motion to withdraw his plea; however, that affidavit is

not present in the record or on the docket for this case. We thus have nothing to review

and—just as with the missing transcript discussed above—have no choice but to presume

the validity and regularity of the trial court's proceedings, deferring to the court’s

determination following the hearing on the motion to suppress as valid. See Bolden,

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supra, at ¶61; State v. Locke, 11th Dist. Lake No.2014-L-053, 2015-Ohio-1067, ¶90,

quoting Knapp, supra, at 199.

{¶41} Green’s sole assignment of error is without merit with regard to all issues

raised. There is nothing in the record to suggest that the trial court’s ruling on Green’s

confession was improper or in error. As such, in view of a valid confession that he did, in

fact, commit the offense in question, Green has not established the existence of a

“manifest injustice” that would support withdrawal of his guilty plea.

{¶42} The judgment of the Trumbull County Court of Common Pleas is affirmed.

MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.

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