State v. Wise

[Cite as State v. Wise, 2021-Ohio-3190.]

COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2021CA0001
JACOB J. WISE :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Coshocton County
Court of Common Pleas, Case No.
2018CR0148

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 13, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON W. GIVEN JUSTIN M. WEATHERLY
Coshocton County Prosecutor Henderson, Mokhtari & Weatherly
318 Chestnut Street 1231 Superior Avenue, East
Coshocton, OH 43812 Cleveland, OH 44114
[Cite as State v. Wise, 2021-Ohio-3190.]

Gwin, P.J.

{¶1} Defendant-appellant Jacob J. Wise [“Wise”] appeals from the Coshocton

County Court of Common Pleas December 11, 2020 Judgment Entry that denied his

motion to withdraw his Alford Pleas after sentencing.

Facts and Procedural History

{¶2} On September 21, 2018 the Defendant, Jacob J. Wise, was indicted by the

Coshocton County Grand Jury on a single count of Rape of a minor less than ten years

old in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The potential

penalties involved a sentence of fifteen years to life in prison or life in prison without the

possibility of parole.

{¶3} On March 12, 2019 Wise’s original trial counsel filed a motion to withdraw.

On March 25, 2019, new trial counsel for Wise filed a Notice of Substitution of Counsel.

{¶4} On July 29, 2019 the Coshocton County Grand Jury amended the

Defendant's earlier indictment, to reflect the following:

1. One count of Rape of a minor less than 10 years of age in violation

of R.C. 2907.02(A)(1)(b), a felony of the first degree;

2. One count of Rape of a minor less than 10 years of age in violation

of R.C. 2907.02(A)(1)(b), a felony of the first degree;

3. One count of Rape of a minor less than 13 years of age in violation

of R.C. 2907.02(A)(1)(b), a felony of the first degree; and

4. Three counts of Gross Sexual Imposition in violation of R.C.

2907.05(A)(4), felonies of the third degree.
Coshocton County, Case No. 2021CA0001 3

{¶5} On September 10, 2019, Wise filed a Motion for a Change of Plea. [Docket

Entry No. 105]. On September 20, 2019, Wise filed a written Waiver of Jury Trial. [Docket

Entry No. 119]. On that same day, after negotiations, and with the approval of the minor

victim and the minor victim’s parents, the s t ate entered into an agreement with

Wise. Under that agreement Wise pled guilty, pursuant to North Carolina v. Alford, 400

U.S. 25 (1970), to an amended Count One, Rape in violation of R.C. 2907.02(A)(1 )(b) a

felony of the first degree, amended Count Two, Rape in violation of R.C. 2907.02(A)(1)(b)

a felony of the first degree, and Count Three, Rape in violation of R.C. 2907.02(A)(1)(b)

a felony of the first degree. The parties also entered into a joint sentencing

recommendation of a minimum prison term of ten years and a maximum term of life in

prison. The State of Ohio agreed to a dismissal of counts four, five and six. The joint

sentencing recommendation was made pursuant to an agreement of the parties that the

sentence would not include the possibility of the penalties involved with a minor victim

under the age of ten years, but would only include the single penalty for a minor victim

under the age of thirteen years but older than ten years. Change of Plea Transcript, Sept.

20, 2019 at 2-3.

{¶6} Wise, pursuant to these agreed terms, entered an Alford plea to amended

count One, amended Count Two, and Count Three of the Indictment. The trial court

proceeded directly to sentencing and sentenced Wise to an aggregate prison term of a

minimum of ten years and a maximum of life in prison, this being the minimum term

available.

{¶7} Wise did not file an appeal.
Coshocton County, Case No. 2021CA0001 4

{¶8} On November 18, 2020, Wise filed a motion with the trial court to vacate

his plea. Wise argued that he did not understand the nature of an Alford plea

and his two trial counsel were ineffective. The sta te filed a memorandum

opposing the motion. By Judgement Entry filed December 11, 2020, the trial court

overruled Wise’s motion.

Assignments of Error

{¶9} Wise raises three Assignments of Error,

{¶10} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DENIED MR. WISE'S MOTION TO VACATE GUILTY PLEA BY FAILING TO FIND

MANIFEST INJUSTICE.

{¶11} “II. THE TRIAL COURT ERRED BY NOT FINDING MR. WISE'S PRIOR

COUNSEL RENDERED INEFFECTIVE ASSISTANCE.

{¶12} “III. THE TRIAL COURT ERRED WHEN IT DID NOT HOLD A HEARING

ON THE APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA.”

I & III.

{¶13} In his First and Third Assignments of Error, Wise maintains that the trial

court erred by overruling his post-sentence motion to vacate his Alford plea, and that the

trial court erred by not first conducting a hearing on his motion.

Standard of Appellate Review.

{¶14} Under Crim.R. 32.1, “[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.” A motion made pursuant to Crim.R. 32.1 is left to the sound
Coshocton County, Case No. 2021CA0001 5

discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph two of the syllabus. Thus, we review the trial court’s decision denying

appellant’s motion under an abuse of discretion standard. State v. Francis, 104 Ohio

St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.

{¶15} The standard upon which the trial court is to review a request for a change

of plea after sentence is whether there is a need to correct a manifest injustice. State v.

Marafa, 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257, ¶ 8.

{¶16} Although no precise definition of “manifest injustice” exists, in general,

“‘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.’” State v.

Wooden, 10th Dist. Franklin No. 03AP–368, 2004–Ohio–588, ¶10, quoting State v. Hall,

10th Dist. Franklin No. 03AP–433, 2003–Ohio–6939; see, also, State v. Odoms, 10th

Dist. Franklin No. 04AP–708, 2005–Ohio–4926, quoting State ex rel. Schneider v.

Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83(1998) (“[a] manifest injustice has been

defined as a ‘clear or openly unjust act’”).

{¶17} An appellate court may not substitute its judgment for that of the trial court

when reviewing a matter pursuant to this standard. Berk v. Matthews, 53 Ohio St.3d 161,

169, 559 N.E.2d 1301 (1990). Furthermore, under the manifest injustice standard, a post-

sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire,

5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, 2010 WL 2297917, ¶ 60, citing State

v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused has the burden

of showing a manifest injustice warranting the withdrawal of a guilty plea. Smith, supra,

49 Ohio St.2d 261, 361 N.E.2d 1324 at paragraph one of the syllabus.
Coshocton County, Case No. 2021CA0001 6

{¶18} A trial court is not automatically required to hold a hearing on a post

sentence motion to withdraw a plea of guilty. “A hearing on a post-sentence Crim. R. 32.1

motion is not required if the facts alleged by the defendant and accepted as true by the

trial court would not require the court to permit a guilty plea to be withdrawn.” State v.

Wynn, 131 Ohio App.3d 725, 728, 723 N.E.2d 627, 629 (8th Dist. 1998); State v. Blatnik,

17 Ohio App.3d 201, 204, 478 N.E.2d 1016, 1020(6th Dist. 1984); State v. Aleshire, 5th

Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶71; State v. Kent, 10th Dist. Franklin No.

03AP722, 2004-Ohio-2129, ¶ 8.

{¶19} A trial court’s decision whether to hold a hearing on the motion is also

subject to review for abuse of discretion. Smith, supra. An abuse of discretion can be

found where the reasons given by the court for its action are clearly untenable, legally

incorrect, or amount to a denial of justice, or where the judgment reaches an end or

purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit

No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No.

13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006–

CA–41, 2006–Ohio–5823, ¶54.

Issue for Appellate Review: Whether the trial court’s decision to deny Wise’s

motion to vacate his Alford plea without a hearing was untenable, legally incorrect, or

amounts to a denial of justice, or reaches an end or purpose not justified by reason and

the evidence.

{¶20} A criminal defendant’s choice to enter a plea of guilty is a serious decision.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. “Due process

requires that a defendant’s plea be made knowingly, intelligently, and voluntarily;
Coshocton County, Case No. 2021CA0001 7

otherwise, the defendant’s plea is invalid.” State v. Bishop, 156 Ohio St.3d 156, 2018-

Ohio-5132, 124 N.E.3d 766, ¶ 10 (lead opinion), citing Clark at ¶ 25.

{¶21} Crim.R. 11(C)(2) governs the process that a trial court must follow before

accepting a plea of guilty to a felony charge. Bishop at ¶ 11 (lead opinion). Most relevant

here, Crim.R. 11(C)(2)(c) requires the court to notify the defendant that he has certain

constitutional rights and to determine whether he understands that by pleading guilty, he

is waiving those rights. The court may not accept a guilty plea without first doing the

following:

Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

Id. Crim.R. 11(C)(2)(c) requires the court to communicate this information so that the

defendant can make an intelligent and voluntary decision whether to plead guilty. State

v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 18, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

{¶22} Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.
Coshocton County, Case No. 2021CA0001 8

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme

Court noted the following test for determining substantial compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly, failure to comply with non-constitutional

rights will not invalidate a plea unless the defendant thereby suffered

prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

The test for prejudice is ‘whether the plea would have otherwise been

made.’ Id. Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant’s] plea and determine

whether he subjectively understood [the effect of his plea]. See, State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

{¶23} With respect to statements made during change of plea hearings, the United

States Supreme Court has stated, “the representation of the defendant, his lawyer, and

the prosecutor in such a hearing, as well as any findings made by the judge accepting the

plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity. The subsequent

presentation of conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly incredible.”

Machibroda v. United States, 368 U.S. 487, 497, 82 S.Ct. 510, 515(1962).

{¶24} An Alford plea is a plea of guilty with a contemporaneous protestation of

innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970). A

court may accept an Alford plea if the following requirements are met:
Coshocton County, Case No. 2021CA0001 9

Where the record affirmatively discloses that: (1) defendant’s guilty

plea was not the result of coercion, deception or intimidation; (2) counsel

was present at the time of the plea; (3) counsel’s advice was competent in

light of the circumstances surrounding the indictment; (4) the plea was

made with the understanding of the nature of the charges; and, (5)

defendant was motivated either by a desire to seek a lesser penalty or a

fear of the consequences of a jury trial, or both, the guilty plea has been

voluntarily and intelligently made.

State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), paragraph one of the

syllabus.

{¶25} Wise argues that the trial court abused its discretion by failing to find that a

manifest injustice occurred. In making his argument Wise points to three areas where his

plea was deficient and thus manifestly unjust. Those areas are: 1) Wise was not aware

of the potential sentences he was facing; 2) Wise did not understand the implications of

a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970); and 3) The trial court

proceeded directly to sentencing without ordering a pre-sentence investigation.

1. Potential sentence.

{¶26} Prior to the beginning of the change of plea on September 20, 2019, the

prosecutor outlined the negotiated plea agreement for the trial judge,

It's my understanding, based on my conversations with [defense

counsel], that he would are going to have a change of plea today. In order

to facilitate that change of plea, the state is going to have to make two

motions. The first motion would be to amend Count 1 and 2. Count 1 and 2
Coshocton County, Case No. 2021CA0001 10

would be amended to reflect somewhat of a fiction in this case; however, to

get to the sentencing range the parties have agreed to, it is necessary. That

amendment would be to reflect that the victim in this case was between the

ages of 10 and 13 when the crime occurred and not under 10 as was

originally reflected in the indictment.

The state is also going to make a motion to enter a nolle prosequi of

counts 4 through 6, which would be the third degree felony gross sexual

imposition counts. It's my understanding, based on my conversations with

[defense counsel], that Mr. Wise will enter pleas to Amended Count 1,

Amended Count 2, and Count 3.

The state will enter into a joint sentencing recommendation with the

defense. That joint sentencing recommendation will be for a sentence of a

minimum of 10 years and a maximum of life in prison on each count to be

run concurrent.

The state also has no objection to plea being entered pursuant to the

case of North Carolina v Alford. And, when the time for parole comes, the

state has agreed to be silent and take no position on parole. However, as I

have explained to [defense counsel], the victims obviously would still retain

the right to give victim impact and input at the time of any parole hearings.

That's the entire agreement as the state understands it.

Change of Plea Transcript, Sept. 20, 2019 at 2-3.

{¶27} The trial judge then inquired of Wise,
Coshocton County, Case No. 2021CA0001 11

THE COURT: Thank you. Mr. Wise, before the court accepts any

change of plea of guilty on your behalf, let me ask you: You've heard from

both the prosecuting attorney on behalf of the State of Ohio and you've

heard from Mr. Joslyn as your attorney. Have both of them accurately stated

to the court the negotiations and the agreement as you understand them to

be?

THE DEFENDANT: Yes, sir.

THE COURT: Have the penalties covering the offenses been

explained to your satisfaction?

THE DEFENDANT: Yes, sir.

THE COURT: And have your statutory and constitutional rights,

including any applicable affirmative defense been explained to your

satisfaction?

THE DEFENDANT: Yes, sir.

Change of Plea Transcript, Sept. 20, 2019 at 4. The trial court then explained each of

the amended charges to which Wise had agreed to plead guilty together with the penalties

involved for each charge. Change of Plea Transcript, Sept. 20, 2019 at 4-6. When asked

if he had any questions “concerning the nature of the charges contained in amended

Count 1 and 2, or Count 3, or the penalties that apply to those offenses,” Wise responded,

“No, Your Honor.” Change of Plea Transcript, Sept. 20, 2019 at 7. The trial court reviewed

each of the constitutional rights that Wise was waiving if he were to enter his Alford pleas.

Change of Plea Transcript, Sept. 20, 2019 at 8-11. When asked if he understood each of

his constitutional rights, or if he had any questions concerning his rights of the procedures
Coshocton County, Case No. 2021CA0001 12

that have taken place, Wise responded that he did not. Change of Plea Transcript, Sept.

20, 2019 at 8; 9; 10. When asked by the trial judge if he understood that the “effect of a

plea of guilty is one of complete admission of your guilt and that the court upon

acceptance of your plea of guilty may chose [sic.] to proceed immediately with judgment

and sentencing,” Wise responded that he understood. Change of Plea Transcript, Sept.

20, 2019 at 8.

{¶28} Our review of the change-of-plea and sentencing hearing reveals the trial

court advised Wise of his constitutional rights, the potential penalties for each offense,

the possibility of post-release control, as well as the sexual offender registration

requirements. The trial court also inquired as to the voluntariness of Wise’s Alford plea of

guilty. In short, the trial court complied with Crim.R. 11. The record demonstrates the trial

court had a meaningful dialogue with Wise, fully apprising him of the rights he was

waiving. See, State v. Tillman, 6th Dist. Huron No. H-02-004, 2004-Ohio-1967, 2004 WL

835845, ¶ 20. The court engaged Wise in a personal inquiry as to whether he understood

the plea agreement and its consequences. Wise was represented throughout the hearing

by two attorneys. Nothing in the record indicates that Wise was confused, mislead or

otherwise failed to understand the pleas agreement and its consequences. The record

indicates that he understood the terms of the agreement and entered an intelligent,

knowing and voluntary plea. State v. Hendricks, 5th Dist. Muskingum No. CT2016-0010,

2017-Ohio-259, 2017 WL 334440, ¶ 35. In the case at bar, the trial judge gave Wise

several opportunities to ask questions or bring any concerns to his attention. He did not.
Coshocton County, Case No. 2021CA0001 13

2. Wise understood the implications of Alford plea.

{¶29} Upon discussion with the trial court and his two attorneys, Wise notified the

court that he would be pleading guilty by way of an Alford plea Change of Plea Transcript,

Sept. 20, 2019 at 3;7-8.. The trial court again discussed with Wise the specific effect of

an Alford plea and inquired as to whether appellant was entering the Alford plea

voluntarily and knowingly Change of Plea Transcript, Sept. 20, 2019 at 13-14. Wise

informed the trial court that he understood the effect of his plea and that it was being

made voluntarily and knowingly Change of Plea Transcript, Sept. 20, 2019 at 14. Wise

signed the written plea of guilty forms in open court. Change of Plea Transcript, Sept. 20,

2019 at 17.

{¶30} The trial court further inquired of Wise,

THE COURT: Do you have any evidence to present which would

raise doubt as to your guilt or might show that you are innocent of these

crimes?

THE DEFENDANT: No, sir.

Change of Plea Transcript, Sept. 20, 2019 at 11. Wise told the judge that he understood

everything that has gone on this far. Id. at 12. He further told the judge that complete

confidence in his attorneys to represent him skillfully and diligently in this matter. Id. at

11.

{¶31} Wise does not elucidate with any specificity or particularity the exact basis

for his claim that he lacked understanding of the Alford plea. In addition, Wise waited

over thirteen months before filing his motion to vacate the plea in the trial court.
Coshocton County, Case No. 2021CA0001 14

{¶32} Pursuant to the charges in the amended indictment, Wise faced a potential

maximum prison sentence of two consecutive terms of life in prison without the possibility

of parole, a minimum of 10 years and a maximum of life in prison, and an additional

twenty-five (25) year prison sentence. In exchange for his Alford plea, Wise received the

agreed upon aggregate prison term of a minimum of ten years and a maximum of life in

prison, this being the minimum term available.

{¶33} In this case, the record affirmatively discloses that: (1) Wise’s guilty plea

was not the result of coercion, deception or intimidation; (2) Wise’s two attorneys were

present at the time of the plea; (3) their advice was competent in light of the circumstances

surrounding the plea (4) the plea was made with the understanding of the nature of the

charges; and, (5) the plea was motivated either by a desire to seek a lesser penalty or a

fear of the consequences of a jury trial, or both. See, State v. Piacella, 27 Ohio St.2d 92,

217 N.E.2d 852(1971), syllabus.

{¶34} Thus, any inference that Wise did not make his Alford plea voluntarily is not

well taken.

3. The trial court proceeded directly to sentencing without ordering a pre-

sentence investigation report.

{¶35} Nothing in the negotiated plea agreement promised Wise that the trial court

would defer sentencing and order a pre-sentence investigation report. Further, Wise was

informed before entering his plea that “the effect of a plea of guilty is one of complete

admission of your guilt and that the court upon acceptance of your plea of guilty may

chose [sic.] to proceed immediately with judgment and sentencing.” Change of Plea
Coshocton County, Case No. 2021CA0001 15

Transcript, Sept. 20, 2019 at 8. Wise expressed no confusion, asked no questions an

agreed that he understood what the trial judge was telling him. Id.

{¶36} Nothing within Crim. R. 11 requires a trial court inform a defendant that it

either will or will not defer sentencing and order a pre-sentence investigation report. As

the rule itself indicates, Crim.R. 32.2 requires a pre-sentence investigation only before

granting probation or community control sanctions. State v. Cyrus, 63 Ohio St.3d 164,

166, 586 N.E.2d 94(1992). If probation or community control sanctions are not at issue,

the rule does not apply. Id.

{¶37} When reviewing a post-sentence motion to withdraw a plea, a trial court

may assess the credibility of a movant’s assertions. See, State v. Allison, 4th Dist.

Pickaway No. 06CA9, 2007-Ohio-789, ¶ 9, citing State v. Smith, 49 Ohio St.2d 261, 264,

361 N.E.2d 1324 (1977); State v. Yost, 4th Dist. Meigs No. 03CA13, 2004-Ohio-4687,

2004 WL 1949367; State v. Boyd, 2nd Dist. Montgomery No. 18873, 2002 WL 360333;

State v. Cross, 10th Dist. Franklin No. 03AP-1129, 2004-Ohio-7194, 2004 WL 3090242

[appellant’s allegations in his Crim.R. 32.1 motions “are directly contradicted by the

record, general and conclusory in substance, or, even if true, insufficient to necessitate

an evidentiary hearing on his motion to withdraw his guilty plea.”].

{¶38} Nowhere in the record before this Court does there appear any evidence

that a presentence investigation report would be favorable to Wise.

{¶39} Accordingly, under the circumstances of the case sub judice, the trial court

did not abuse its discretion in finding no manifest injustice which would warrant the

extraordinary step of withdrawing Wise’s guilty pleas. Further, the trial court did not abuse
Coshocton County, Case No. 2021CA0001 16

its discretion in failing to hold an evidentiary hearing on Wise’s motion to withdraw his

guilty pleas.

{¶40} Wise’s First and Third Assignments of Error are overruled.

II.

{¶41} In his Second Assignment of Error, Wise argues that he received ineffective

assistance of counsel.

Standard of Appellate Review.

{¶42} When a defendant enters a plea of guilty as a part of a plea bargain he

waives all appealable errors which may have occurred at trial, unless such errors are

shown to have precluded the defendant from entering a knowing and voluntary plea.

State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658(1991).

{¶43} In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203(1985) the

Court noted:

The longstanding test for determining the validity of a guilty plea is

“whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” North Carolina v.

Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); see

Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d

274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510,

513, 7 L.Ed.2d 473 (1962)...Where, as here, a defendant is represented by

counsel during the plea process and enters his plea upon the advice of

counsel, the voluntariness of the plea depends on whether counsel's advice

“was within the range of competence demanded of attorneys in criminal
Coshocton County, Case No. 2021CA0001 17

cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449,

25 L.Ed.2d 763 (1970). As we explained in Tollett v. Henderson, 411 U.S.

258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a defendant who pleads guilty

upon the advice of counsel “may only attack the voluntary and intelligent

character of the guilty plea by showing that the advice he received from

counsel was not within the standards set forth in McMann” Id., at 267, 93

S.Ct., at 1608.

Hill, 474 U.S. at 56-57, 106 S.Ct. at 369.

{¶44} The Court in Hill, supra, held that the two-part Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984) test applies to challenges to guilty pleas

based on ineffective assistance of counsel. 474 U.S. at 58, 106 S.Ct. 366, 88 L.Ed.2d

203.

{¶45} To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel’s performance was deficient and that

his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must

show that “counsel’s representation fell below an objective standard of reasonableness.”

Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas,

590 U.S. __, 140 S.Ct. 1875, 1881 (June 15, 2020). However, a different outcome at the

plea stage but for counsel's errors is constitutionally insignificant if the ultimate result that
Coshocton County, Case No. 2021CA0001 18

was reached was neither unfair nor unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369,

113 S.Ct.838, 842(1993).

{¶46} The right to competent counsel does not require that a criminal defendant

develop and share a "meaningful relationship" with his attorney. Morris v. Slappy, 461

U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610(1983); State v. Blankenship, 102 Ohio

App.3d 534, 657 N.E.2d 559(12th Dist. 1995); State v. Burroughs, 5th Dist. No.

04CAC03018, 2004-Ohio-4769 at ¶ 11.

{¶47} .In a case in which the defendant asked the trial court to discharge his court

appointed attorney, the court in State v. Cowans, 87 Ohio St.3d 68, 1999-Ohio-250, 717

N.E.2d 298(1999) Court noted:

Even if counsel had explored plea options based on a belief that

Cowans might be guilty, counsel's belief in their client's guilt is not good

cause for substitution. “‘A lawyer has a duty to give the accused an honest

appraisal of his case. * * * Counsel has a duty to be candid; he has no duty

to be optimistic when the facts do not warrant optimism.' “Brown v. United

States (D.C.1959), 264 F.2d 363, 369(U.S.App.D.C. 1959) (en banc), cert.

denied 360 U.S. 911, 79 S.Ct.1299, 3 L.Ed.2d 1262(1959), quoted in

McKee v. Harris, 649 F.2d 927, 932(2nd Cir. 1981). “‘If the rule were

otherwise, appointed counsel could be replaced for doing little more than

giving their clients honest advice.'" McKee, 649 F.2d at 932, quoting McKee

v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869.

Cowans 87 Ohio St.3d at 73, 717 N.E.2d at 304-305.
Coshocton County, Case No. 2021CA0001 19

Issue for Appellate Review: Whether Wise was prejudiced by trial counsels’

representation during his Alford plea

{¶48} Wise replaced his original trial counsel with two new attorneys of his own

choosing. To the extent Wise contends original counsel was ineffective we reject his

arguments.

{¶49} Many of Wise’s allegations concern matters not reflected in the trial court

record. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the

Court noted: “[h]owever, a reviewing court cannot add matter to the record before it that

was not a part of the trial court's proceedings, and then decide the appeal on the basis of

the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d

500(1978); North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E. 2d 386, ¶

7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202,

¶ 16.

{¶50} Wise did not attach his own affidavit or the affidavit of any of his previous

attorneys to the motion to vacate. The sole affidavit Wise submitted was that of his

mother, Carolyn Shustar.

{¶51} Shustar indicated that Wise’s attorneys’ attitude toward a jury trial

diminished after the amended indictment containing four new charges was filed. At that

time, the attorneys began to discuss the possibility of a plea bargain. Shustar represents

what Wise believed the potential sentence to be ten years in exchange for a plea. She

claims she spoke to the “Law Firm” regarding the Alford plea and was told Wise would be

out within ten years. They also claimed a presentence investigation would be ordered
Coshocton County, Case No. 2021CA0001 20

because it would help when Wise was asking for parole. She further claims that “it was

obvious to me” during the plea hearing that Wise did not know what was going on.

{¶52} To the extent that we have found Wise’s Alford plea was (1) not the result

of coercion, deception or intimidation; (2) Wise’s attorney was present at the time of the

plea; (3) his advice was competent in light of the circumstances surrounding the plea (4)

the plea was made with the understanding of the nature of the charges; and, (5) the plea

was motivated either by a desire to seek a lesser penalty or a fear of the consequences

of a jury trial, or both, we reject Wise’s contentions and those contained in his mother’s

affidavit.

{¶53} The inconsistencies contained within the affidavit render the allegations

made therein spurious. For example, while contending that Wise believed he would only

receive a ten-year sentence and would be out in ten years, Wise claims that he needed

a presentence investigation report to assist him when it came time to be considered for

parole. Shustar fails to attribute any statements or representations to any identifiable

individual with whom she had spoken; rather, she only refers to the law firm in general

terms.

{¶54} In the five-page Judgment Entry filed December 11, 2020 that overruled

Wise’s motion to vacate his negotiated Alford plea, the trial court found Shuster’s affidavit

to be unpersuasive and replete with hearsay. The trial court found lacking any claim of

actual innocence. When reviewing a post-sentence motion to withdraw a plea, a trial court

may assess the credibility of a movant’s assertions. See, State v. Allison, 4th Dist.

Pickaway No. 06CA9, 2007-Ohio-789, 2007 WL 576111, ¶ 9, citing Smith, supra, at 264,

361 N.E.2d 1324; State v. Yost, 4th Dist. Meigs No. 03CA13, 2004-Ohio-4687, 2004 WL
Coshocton County, Case No. 2021CA0001 21

1949367; State v. Boyd, 2nd Dist. Montgomery No. 18873, 2002 WL 360333; State v.

Cross, 10th Dist. Franklin No. 03AP-1129, 2004-Ohio-7194, 2004 WL 3090242

[appellant’s allegations in his Crim.R. 32.1 motions “are directly contradicted by the

record, general and conclusory in substance, or, even if true, insufficient to necessitate

an evidentiary hearing on his motion to withdraw his guilty plea.”].

{¶55} Wise’s assertions concerning promises that were made to him by his trial

counsel are discredited by a review of the plea colloquy. As we noted in our disposition

of Wise’s First and Third Assignments of Error, Wise informed the trial court that he

understood the effect of his plea and that it was being made voluntarily and knowingly

Change of Plea Transcript, Sept. 20, 2019 at 14. Wise signed the written plea of guilty

forms in open court. Change of Plea Transcript, Sept. 20, 2019 at 17.

{¶56} The trial court further inquired of Wise,

THE COURT: Do you have any evidence to present which would

raise doubt as to your guilt or might show that you are innocent of these

crimes?

THE DEFENDANT: No, sir.

Change of Plea Transcript, Sept. 20, 2019 at 11. Wise told the judge that he understood

everything that has gone on this far. Id. at 12. He further told the judge that complete

confidence in his two attorneys to represent him skillfully and diligently in this matter. Id.

at 11. In addition, Wise waited over thirteen months before filing his motion to vacate the

plea in the trial court. Finally, nothing in the record suggests that a presentence

investigation report would have been favorable to Wise. Therefore his claim that he
Coshocton County, Case No. 2021CA0001 22

needed a presentence investigation report to assist him in gaining parole is purely

speculative.

{¶57} In light of the thorough colloquy that took place in this case paired with the

clear terms of the plea agreement that was placed on the record, we find that Wise

entered his Alford plea with full awareness that he would be sentenced to prison for

concurrent ten year to life sentences. Therefore, Wise’s ineffective assistance claim must

fail.

{¶58} There is no evidence that indicates the result of the plea was unreliable or

the proceeding was fundamentally unfair as a result of defense counsels’ representation

of Wise during the Alford plea hearing. Wise received a benefit of having imprisonment

without the possibility of parole exchanged for concurrent ten year to life sentences.

{¶59} Wise’s Second Assignment of Error is overruled.

{¶60} The judgment of the Coshocton County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J. concur