State v. Nicholson

[Cite as State v. Nicholson, 2021-Ohio-2584.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109762
v. :

MIKE NICHOLSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 29, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-593304-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.

Michael Nicholson, pro se.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Mike Nicholson, pro se, appeals the trial court’s

denial of his postconviction motion to withdraw his guilty pleas. Nicholson

contends that his guilty pleas were unintelligent and unknowing and that the trial
court did not comply with Crim.R. 11(C)(2) because (1) the trial court did not inform

Nicholson that his “entire prison sentence” was mandatory and that he was

ineligible for judicial release and (2) the trial court provided incorrect information

regarding judicial release after Nicholson entered, and the trial court accepted,

Nicholson’s guilty pleas. As such, Nicholson argues, the trial court abused its

discretion in denying his motion to withdraw his guilty pleas. For the reasons that

follow, we affirm the trial court.

Procedural History and Factual Background

On February 19, 2015, a Cuyahoga County Grand Jury indicted

Nicholson on four counts: one count of drug trafficking (Count 1), one count of drug

possession (Count 2), one count of possessing criminal tools (Count 3) and one

count of having weapons while under disability (Count 4). The trafficking count

included a schoolyard specification; all counts included forfeiture specifications.

The charges resulted, at least in part, from execution of a search warrant.

The parties reached a plea agreement. On June 3, 2015, the date

scheduled for trial, the trial court held a change-of-plea hearing. Although

Nicholson initially indicated that he understood the plea agreement, when it came

time to enter his guilty pleas, Nicholson began asking his retained counsel questions

regarding the search warrant and the discovery provided by the state. The trial court

told Nicholson to “take your time and speak with [defense counsel], get your

questions answered.” The trial court further indicated: “[T]his is your moment

here. You’ve got to be certain. I again want to make sure that you have every
question answered. No one is going to accuse me of forcing you to take a plea —

taking a plea if you’re not ready to enter a plea.”

The trial court suspended the proceedings and rescheduled them for

the following day so that Nicholson could further review the discovery and consider

whether he wanted to accept the state’s plea offer or proceed to trial. The trial court

stated: “Mr. Nicholson, this will give you the opportunity to make sure this is a

decision that you want to do.”

When the parties returned to court the following day, Nicholson had

some additional questions regarding the search warrant. He advised the trial court

that he had some disagreements with his existing counsel and that he wanted to

retain new counsel. The trial court stated, “I can give you a relatively brief period of

time to secure new counsel,” and rescheduled the trial for July 6, 2015.

Ultimately, Nicholson did not retain new counsel. On July 1, 2015,

the trial court held a hearing to discuss the status of the case and whether the case

would be proceeding to trial or whether Nicholson would be accepting the state’s

plea offer. Nicholson asked for additional time to speak with retained counsel

privately. The trial court granted Nicholson’s request.

On July 6, 2015, Nicholson appeared with retained counsel and

indicated that he had decided to accept the state’s plea offer. Nicholson pled guilty

to amended Count 1, first-degree felony trafficking in violation of R.C.

2925.03(A)(2), and Count 4, having weapons while under disability in violation of

R.C. 2923.13(A)(3), along with the associated forfeiture specifications. In exchange
for Nicholson’s guilty pleas, the state deleted the schoolyard specification in Count

1 and both Counts 2 and 3 were nolled. The trial court accepted Nicholson’s guilty

pleas, and the matter proceeded directly to sentencing.

At the sentencing hearing, the trial court sentenced Nicholson to an

aggregate sentence of seven years in prison, i.e., seven years on Count 1 and a 30-

month concurrent sentence on Count 4. The trial court also imposed a mandatory

$10,000 fine and five years of mandatory postrelease control, and Nicholson

forfeited two guns, a scale, money and a cell phone.

After the trial court announced Nicholson’s sentence, defense counsel

inquired about judicial release. The following exchange occurred:

[DEFENSE COUNSEL]: Judge, on the record, would there be a chance
to file for a judicial release after three years?

THE COURT: Well, I think because of the sentence imposed, the time
would have to be after, I think, five years, [defense counsel]. So I would
take a look at it.

[DEFENSE COUNSEL]: Okay.

Nicholson did not appeal his convictions.

Approximately one year after his convictions, on June 23, 2016,

Nicholson filed, pro se, a motion to “vacate or set aside the judgment of conviction

or sentence.” He claimed that he was denied effective assistance of counsel because

(1) his retained trial counsel failed to conduct an adequate investigation, (2) his

retained trial counsel never met with him to discuss his case or any plea agreement

prior to his scheduled trial date and (3) his retained trial counsel coerced him into
pleading guilty by leading him to believe that he would receive a three-year prison

sentence if he accepted the state’s plea offer and an 11-year prison sentence if he

refused the plea offer and proceeded to trial. Nicholson did not attach an affidavit

or any other evidence in support of his motion. The trial court denied the motion.

Nicholson did not appeal.

On January 10, 2017, Nicholson filed, pro se, a motion to withdraw

his guilty pleas pursuant to Crim.R. 32.1. He argued that he should be permitted to

withdraw his guilty pleas because (1) his retained counsel had failed to adequately

investigate the case, (2) his retained counsel had failed to request that the search

warrant be unsealed and challenge the search warrant, (3) his retained counsel had

failed to communicate and consult with Nicholson regarding the search warrant and

filing a motion to suppress, (4) the trial court had failed to advise Nicholson he had

the right to appointed counsel when his retained counsel sought to withdraw from

the case and (5) his retained counsel had failed to file a written motion to withdraw

from the case. In support of his motion, Nicholson attached excerpts from the

transcript of the trial court proceedings on June 4, 2015 and July 1, 2015 and an

affidavit from Susane Marchmon, Nicholson’s mother, in which she detailed her

unsuccessful efforts to obtain a copy of the sealed search warrant. The trial court

denied the motion without a hearing. Nicholson appealed.

On appeal, this court affirmed the trial court. This court found that

Nicholson’s claims either were (1) raised or could have been raised in a direct appeal

of his convictions or in his prior motion to “vacate or set aside the judgment of
conviction or sentence” and were, therefore, barred by res judicata or (2)

unsupported by the record. As such, the court concluded that the trial court did not

abuse its discretion in denying Nicholson’s motion to withdraw his guilty pleas.

State v. Nicholson, 8th Dist. Cuyahoga No. 105958, 2018-Ohio-2932, ¶ 4-14.

On April 20, 2020, Nicholson filed a motion for judicial release. The

state opposed judicial release because Nicholson was serving a mandatory term.

The trial court denied Nicholson’s request for judicial release.

On May 7, 2020, Nicholson filed, pro se, a second motion to withdraw

his guilty pleas pursuant to Crim.R. 32.1. Nicholson argued that his guilty pleas were

made “unknowingly and involuntarily” and that the trial court had failed to comply

with Crim.R. 11(C) because the trial court did not inform him that his sentence on

the trafficking count was mandatory and that he was ineligible for judicial release.

Nicholson asserted that if he had known that his prison sentence was mandatory, he

“would not have pled guilty.” In support of his motion, Nicholson pointed to the

transcripts of the proceedings below. He also attached a copy of the trial court’s

sentencing journal entry and a document dated July 14, 2015, which Nicholson

described as “the 2 page report of Nicholson’s sentence information provided to him

at the time of his admission into prison” (the “sentence summary”). Paragraph two

of the sentence summary, which stated, “You have ___ years of actual

incarceration/mandatory time,” was left blank. The summary stated that “[i]f one

of the following paragraphs does NOT apply, it will be left blank.”
 The state opposed the motion, arguing that Nicholson had “offer[ed]

nothing to support his claim” that Nicholson had not “identified any Crim.R. 11

deficiency” and that his claims were barred by res judicata.

On May 21, 2020, the trial court denied the motion without a hearing.

Nicholson appealed, raising the following three assignments of error for review:

Assignment of Error I: The trial court violated Appellant Nicholson’s
rights to due process of law and Criminal Rule 11(C) when it accepted
Appellant’s guilty pleas without informing him that his sentence was
mandatory.

Assignment of Error II: The trial court erred in denying Nicholson’s
motion to withdraw his guilty pleas because his plea was not entered
knowingly and intelligently when the trial court failed to inform him
that his sentence was mandatory and that he was ineligible for judicial
release.

Assignment of Error III: The trial court erred in applying res judicata
to Appellant’s claims.

Nicholson’s assignments of error are interrelated. Accordingly, we

address them together.

Law and Analysis

The withdrawal of a guilty plea is governed by Crim.R. 32.1, which

states:

A motion to withdraw a plea of guilty * * * 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.

The defendant bears 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. Manifest injustice has been described 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), “that is evidenced by ‘an extraordinary and fundamental flaw in

the plea proceeding.’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640

and 104641, 2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga

No. 90141, 2008-Ohio-455, ¶ 8; see also State v. Vinson, 2016-Ohio-7604, 73

N.E.3d 1025, ¶ 41 (8th Dist.); State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-

Ohio-2661, ¶ 17 (‘“Manifest injustice relates to some fundamental flaw in the

proceedings which result[s] in a miscarriage of justice or is inconsistent with the

demands of due process.’”), quoting State v. Williams, 10th Dist. Franklin No.

03AP-1214, 2004-Ohio-6123, ¶ 5. A claim of manifest injustice must be supported

by specific facts in the record or through affidavits submitted with the motion. See,

e.g., State v. Darling, 8th Dist. Cuyahoga No. 109439, 2021-Ohio-440, ¶ 12; State v.

Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 10.

Postsentence withdrawal of a guilty plea is permitted “‘only in extraordinary cases.’”

McElroy at ¶ 30, quoting State v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-

Ohio-5239, ¶ 22.

A trial court is not required to hold a hearing on every postsentence

motion to withdraw a guilty plea. See, e.g., State v. Norman, 8th Dist. Cuyahoga

No. 105218, 2018-Ohio-2929, ¶ 16; State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,

2017-Ohio-5818, ¶ 11. “‘A hearing is required * * * if the facts alleged by the

defendant, accepted as true, would require that the defendant be allowed to
withdraw the plea.’” Norman at ¶ 16, quoting Vihtelic at ¶ 11; see also State v.

Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-

Ohio-7657, ¶ 11 (“‘A defendant must establish a reasonable likelihood that a

withdrawal of his plea is necessary to correct a manifest injustice before a court must

hold an evidentiary hearing on his motion.’”), quoting State v. Williams, 12th Dist.

Warren No. CA2009-03-032, 2009-Ohio-6240, ¶ 14.

We review a trial court’s decision to deny a defendant’s postsentence

motion to withdraw a guilty plea under an abuse-of-discretion standard. See, e.g.,

Vinson at ¶ 42, citing Smith at paragraph two of the syllabus. We likewise review a

trial court’s decision whether to hold a hearing on a postsentence motion to

withdraw a guilty plea for an abuse of discretion. See, e.g., State v. Grant, 8th Dist.

Cuyahoga No. 107499, 2019-Ohio-796, ¶ 13.

Nicholson contends that withdrawal of his guilty pleas is necessary to

correct a manifest injustice because his guilty pleas were not entered knowingly and

intelligently due to the trial court’s failure to inform him that his seven-year prison

sentence for trafficking was mandatory and that he was ineligible for judicial release.

Nicholson’s arguments are meritless.

Res Judicata

Res judicata applies to postsentence motions to withdraw guilty

pleas. See, e.g., Darling, 2021-Ohio-440, at ¶ 17-18; Nicholson, 2018-Ohio-2932, at

¶ 5. Res judicata prevents repeated attacks on a final judgment. It applies to claims

that were raised or could have been raised on direct appeal and also ‘“bar[s] * * *
piecemeal claims in successive postconviction relief petitions or motions to

withdraw a guilty plea that could have been raised, but were not, in the first

postconviction relief petition or motion to withdraw a guilty plea.’” State v. Sneed,

8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 17, quoting State v. Kent, 4th

Dist. Jackson No. 02CA21, 2003-Ohio-6156, ¶ 6; see also State v. Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59-60 (res judicata bars the assertion

of claims in a motion to withdraw a guilty plea that were, or could have been, raised

in a prior proceeding).

Nicholson could have raised any claims related to the trial court’s

alleged failure to comply with Crim.R. 11(C) or the alleged unknowing, unintelligent

or involuntary nature of his guilty pleas through a direct appeal or in his prior

postconviction motions. As such, his claims are barred by res judicata, and the trial

court did not abuse its discretion in denying his motion to withdraw his guilty pleas

without a hearing.

Nicholson’s Claims Are Not Supported by the Record

Further, even if we were to consider the merits of Nicholson’s

arguments, we would still find that the trial court did not abuse its discretion in

denying Nicholson’s motion to withdraw his guilty pleas.

First, there is no requirement that a trial court provide information

regarding eligibility or ineligibility for judicial release prior to accepting a

defendant’s guilty pleas. Although a plea may be invalidated if a defendant shows

that he or she was given misinformation regarding judicial release that prejudicially
impacted his or her decision to enter a plea, see, e.g., State v. Davner, 2017-Ohio-

8862, 100 N.E.3d 1247, ¶ 57 (8th Dist.), State v. Williams, 8th Dist. Cuyahoga Nos.

104078 and 104849, 2017-Ohio-2650, ¶ 15, and State v. Ealom, 8th Dist. Cuyahoga

No. 91455, 2009-Ohio-1365, ¶ 10-28, there is no requirement that judicial release

be explained or that a defendant be informed regarding his or her eligibility or

ineligibility judicial release to comply with Crim.R. 11(C)(2). State v. Williams, 8th

Dist. Cuyahoga No. 109091, 2020-Ohio-4467, ¶ 24. “While a trial court must inform

a defendant of the ‘maximum penalty involved, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control,’ it does not

have to tell the defendant that he or she is not eligible for judicial release.” State v.

Robinson, 8th Dist. Cuyahoga Nos. 106676 and 106980, 2018-Ohio-4863, ¶ 24,

quoting Crim.R. 11(C)(2)(a); see also State v. McGill, 8th Dist. Cuyahoga No.

108469, 2020-Ohio-575, ¶ 17 (“Crim.R. 11 generally does not require courts to

inform a defendant of his eligibility for judicial release.”). Even though the trial

court arguably provided incorrect information regarding judicial release at the

conclusion of the sentencing hearing1 — after Nicholson had entered, and the trial

court had accepted, Nicholson’s guilty pleas — and even though it appears the

sentence summary Nicholson received after sentencing did not reflect that his

seven-year sentence was mandatory, Nicholson could not have relied upon that

1 The trial court did not state definitively that Nicholson would be eligible for
judicial release. As indicated above, the trial court stated: “I think, because of the
sentence imposed, the time would have to be after, I think, five years * * *[.] So I would
take a look at it.”
postsentencing misinformation in deciding to enter his guilty pleas and, therefore,

it could not have rendered Nicholson’s guilty pleas unintelligent, unknowing or

involuntary.

Second, although Nicholson contends that he was not informed by the

trial court, prior to the acceptance of his guilty pleas, that his “entire sentence” on

the trafficking count was a mandatory term, the record reflects otherwise. On

June 3, 2015, during the initial plea colloquy, the following exchange occurred:

THE COURT: Now, Mr. Nicholson, the potential for incarceration that
you’re facing in Count 1 drug trafficking, it is a mandatory term. It
would be a minimum period of 3 years, a maximum period of 11 years.

Do you understand that, sir?

DEFENDANT NICHOLSON: Yes, your Honor.

THE COURT: All right. That’s on Count 1.

(Emphasis added.)

When the parties returned to court on July 1, 2015 to discuss the case

status, including whether Nicholson had retained new counsel and whether he

intended to proceed to trial or enter a plea, the trial court again informed Nicholson

that “the F1s include mandatory time.” During the plea colloquy on July 6, 2015,

when Nicholson ultimately entered his guilty pleas, the trial court again informed

Nicholson:

THE COURT: * * * Mr. Nicholson, for you, this felony of the first
degree, it carries with it a mandatory term of incarceration minimum
of three years, maximum of 11 years.

Do you understand that, sir?
 DEFENDANT NICHOLSON: Yes, your Honor.

(Emphasis added.)

Thus, it is clear from the record that the trial court informed

Nicholson, before he entered his guilty pleas, that whatever sentence was ultimately

imposed on the trafficking count — between a minimum of three years and a

maximum of 11 years — it would be a “mandatory” term.

State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619 (8th Dist.), and State v.

Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, which Nicholson cites in

support of his arguments are distinguishable. First, in those cases, the defendants

challenged their convictions on direct appeal; res judicata did not apply. Tutt at ¶ 1,

11; Smith at ¶ 2. Further, in Tutt, the transcript revealed that the trial court did not

inform the defendant at the change-of-plea hearing that certain offenses to which

the defendant later pled no contest included a mandatory prison term, and there

was nothing else in the record to indicate that the defendant subjectively

understood, prior to the trial court’s acceptance of his no contest pleas, that he would

have to serve a mandatory prison sentence on those offenses or what that mandatory

prison term might be. Tutt at ¶ 17-28.

In Smith, the trial court informed the defendant during the change-

of-plea hearing that “the offense carries a term of mandatory incarceration, as a

result of which, * * * you’re not eligible for judicial release during any mandatory

period of incarceration” but did not notify the defendant of the number of years that
were mandatory. Smith at ¶ 9. Although all 14 years of the defendant’s sentence

were mandatory, the defendant was informed in the plea form that was filed in the

case that only three years of the potential 40-year sentence he faced were

mandatory, precluding judicial release during those three years: “I understand the

MAXIMUM sentence is a basic prison term of 40 years of which 3 yrs is mandatory.

I am not eligible for judicial release during the mandatory imprisonment.” Id. at

¶ 10-11. Considering the totality of the circumstances, the Fifth District concluded

in that case that the defendant could have subjectively understood that only three

years of his sentence were mandatory, after which he could be released on judicial

release and placed on community control and, as such, his no contest pleas were not

made knowingly, intelligently and voluntarily. Id. at ¶ 11-13.

That is not the case here. As shown above, the transcript in this case

clearly shows that Nicholson was informed by the trial court — repeatedly — before

he entered his guilty pleas that whatever prison term he received on the trafficking

count would be a “mandatory term.”

The record further reflects that the trial court took ample precautions

to make sure Nicholson understood the rights he was giving up, the consequences

he would face by pleading guilty and that Nicholson was making an informed

decision to plead guilty to the offenses at issue rather than proceed to trial. When

Nicholson expressed reservations about entering guilty pleas because he had not

had sufficient time to review the discovery produced by the state, the trial court

suspended the proceedings and rescheduled them for the following day, so that
Nicholson could spend additional time reviewing the discovery and consider what

he wanted to do. When the parties returned to court the following day, and

Nicholson advised the trial court that he wanted to retain new counsel due to

disagreements with his existing counsel, the trial court granted Nicholson a

continuance to find new counsel. The trial court repeatedly encouraged Nicholson

to ask questions during the proceedings, made sure those questions were answered

to Nicholson’s satisfaction and instructed Nicholson to enter his guilty pleas only if

and when he was “ready to enter a plea.”

Finally, Nicholson submitted no affidavits or any other relevant

evidentiary materials with his motion to withdraw his guilty pleas to support his

claim of manifest injustice. Conclusory, self-serving allegations and

unsubstantiated assertions are insufficient to demonstrate a manifest injustice or to

warrant a hearing on a motion to withdraw a guilty plea. See, e.g., Darling, 2021-

Ohio-440, at ¶ 21; State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60,

¶ 61; State v. Johnson, 12th Dist. Butler Nos. CA2010-12-327 and CA2011-02-019,

2011-Ohio-3015, ¶ 13.

Accordingly, Nicholson’s assignments of error are overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___
EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR