State v. Longworth

[Cite as State v. Longworth, 2021-Ohio-4538.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO/CITY OF HAMILTON, :

Appellee, : CASE NO. CA2021-02-015

: OPINION
- vs - 12/27/2021
:

MARC A. LONGWORTH, :

Appellant. :

CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. 21CRB01240

Laura R. Gibson, City of Hamilton Prosecuting Attorney, for appellee.

Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Marc A. Longworth, appeals the decision of the Hamilton Municipal

Court overruling his Crim.R. 32.1 motion to withdraw his guilty plea to one count of second-

degree misdemeanor attempted assault. For the reasons outlined below, we reverse the

trial court's decision denying Longworth's motion and remand this matter to the trial court

for further proceedings consistent with this opinion.
 Butler CA2021-02-015

Facts and Procedural History

{¶ 2} On March 23, 2010, a complaint was issued charging Longworth with one

count of first-degree misdemeanor domestic violence in violation of R.C. 2919.25(A).

Pursuant to that statute, it shall be unlawful for any person to "knowingly cause or attempt

to cause physical harm to a family or household member." R.C. 2901.01(3) defines the

phrase "physical harm to persons" to mean "any injury, illness, or other physiological

impairment, regardless of its gravity or duration." As stated in the complaint, the charge

arose after it was alleged Longworth "smacked" his then wife, Alyssa Longworth nka

Fernbach, "across the right side of her face" on the evening of March 16, 2010.

{¶ 3} On September 14, 2010, Longworth entered into a plea agreement and pled

guilty to a reduced charge of second-degree misdemeanor attempted assault in violation of

R.C. 2923.02(A) and 2903.13(A). These statutes make it unlawful for any person to

"knowingly cause or attempt to cause physical harm to another or to another’s unborn."

After accepting Longworth's guilty plea, the trial court sentenced Longworth to a suspended

30-day jail sentence. The trial court also ordered Longworth to pay a $200 fine and placed

Longworth on a two-year community control term. There is no dispute that Longworth

thereafter paid his fine and successfully completed his two-year community control term

without incident.

{¶ 4} In 2015, several years after he was discharged from his two-year community

control term, Longworth filed an application to seal the record of his attempted assault

conviction. Longworth filed this application under the now former R.C. 2953.32(A).

Pursuant to that statute, an "eligible offender" convicted of a misdemeanor could file an

application to seal the record of his or her conviction one year after the offender's final

discharge. The trial court issued an entry sealing the record of Longworth's attempted

assault conviction on August 14, 2015.

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{¶ 5} On December 29, 2015, Longworth and Fernbach were divorced. The record

indicates that Longworth and Fernbach owned a significant number of firearms during their

marriage. The record also indicates that four of those firearms were purchased by Fernbach

and purportedly given to Longworth as gifts in the years 2011, 2012, 2013, and 2014. The

ownership of these four firearms later became a part of Longworth and Fernbach's divorce

negotiations and eventual divorce settlement. As a part of the final divorce decree,

Fernbach agreed to transfer her ownership interest in the four firearms she purportedly

purchased for Longworth.

{¶ 6} On September 2, 2016, Longworth and Fernbach met at a local firearms

dealer to complete the necessary paperwork to have those four firearms transferred to

Longworth. Five days later, on September 7, 2016, Longworth received a notice informing

him that the transfer had been denied due to his prior attempted assault conviction.

{¶ 7} On September 20, 2016, Longworth received a letter from the United States

Department of Justice ("DOJ") requesting additional information related to his attempted

assault conviction. The following month, in October of 2016, Longworth responded with the

requested information. The record indicates that over the next two years Longworth

corresponded with the DOJ on multiple occasions in hopes of convincing the DOJ to permit

the transfer of the four firearms to go forward.

{¶ 8} On December 27, 2018, Longworth received a letter from the DOJ setting

forth the DOJ's final decision finding Longworth's prior attempted assault conviction

subjected him to the federal firearm disability imposed under 18 U.S.C. 922(g)(9). Pursuant

to that statute, it is unlawful for any person "who has been convicted in any court of a

misdemeanor crime of domestic violence" to ship, transport, possess, or receive "any

firearm or ammunition" in or affecting commerce. For purposes of this statute, the term

"misdemeanor crime of domestic violence" means an offense that is a misdemeanor under

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federal, state, or tribal law that has, as an element, "the use or attempted use of physical

force" that was "committed by a current or former spouse" of the victim. 18 U.S.C.

921(33)(A). Therefore, as explained by the DOJ within its December 27, 2018 letter:

[T]he crime does not have to be called "domestic violence" or
"family violence" by name [for the federal firearm disability
imposed under 18 U.S.C. 922(g)(9) to apply]; so long as the
convicted person used or attempted to use physical force or
threatened to use a deadly weapon against someone with whom
he or she was in a qualifying relationship, the standard is met.

{¶ 9} The DOJ also explained within its December 27, 2018 letter:

Based on the documentation submitted, and further review, your
prohibition resulted from an arrest from the Butler County
Sheriff's Office on March 17, 2010, for Domestic Violence. This
arrest resulted in a misdemeanor conviction under Ohio
Revised Code, §2923.02/§2903.13, for Attempted Assault,
which contains as an element of the crime the use of physical
force or the attempted use of physical force. Finally, at the time
the offense was committed, the victim was a person with whom
you were cohabitating with as a spouse, parent or guardian.

{¶ 10} The DOJ further explained that Longworth's attempted assault conviction

subjected him to the federal firearms disability despite Longworth having had the record of

his attempted assault conviction sealed. As explained by the DOJ, this is because "a

sealed/expunged record from the state of Ohio does not remove the federal prohibition for

misdemeanor crimes of domestic violence."

{¶ 11} On January 24, 2019, Longworth responded to the DOJ by letter requesting

it reconsider its decision and instead confirm that he was "not prohibited from purchasing,

possessing or otherwise using firearms in the future based on his previously expunged

conviction." The record indicates that the DOJ rejected Longworth's request to reconsider

its decision shortly thereafter in March of 2019.

{¶ 12} On April 20, 2020, Longworth filed a motion requesting the trial court unseal

the record of his attempted assault conviction so that he could obtain a transcript of his

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arraignment, plea, and sentencing hearings. This, according to Longworth's motion, was

to assist him in "exploring relief" from the DOJ's final decision set forth in its December 27,

2018 letter finding his prior attempted assault conviction subjected him to the federal firearm

disability. The trial court issued an entry granting Longworth's motion to unseal the record

of his attempted assault conviction on April 30, 2020.

{¶ 13} On August 3, 2020, Longworth filed a Crim.R. 32.1 motion to withdraw the

guilty plea he entered on September 14, 2010. Longworth argued that he should be entitled

to withdraw his plea because he received ineffective assistance of counsel when his trial

counsel erroneously advised him "that a plea to attempted assault would avoid the firearm

disability under federal law." Longworth also argued that a manifest injustice occurred when

his trial counsel "provided defective advice that his plea to attempted assault would avoid a

federal firearm disability." Longworth argued that this was because he "would have rejected

the plea to attempted assault had he known it would result in disability" imposed under 18

U.S.C. 922(g)(9).

{¶ 14} On October 21, 2020, the trial court held a hearing on Longworth's Crim.R.

32.1 motion to withdraw guilty plea. During this hearing, the trial court heard testimony from

a total of six witnesses. This includes testimony from one of Longworth's former attorneys,

Longworth, and Longworth's ex-wife, Fernbach.

Longworth's Former Counsel's Testimony

{¶ 15} One of Longworth's former attorneys testified that he and his former partner

were hired in March of 2010 to defend Longworth against the first-degree misdemeanor

domestic violence charge. Longworth's counsel testified that this representation included

consulting with Longworth and presenting Longworth with the state's plea offer to the

reduced charge of second-degree misdemeanor attempted assault. Longworth's counsel

testified that he thought the state's plea offer was a good offer because Fernback, the

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alleged victim, Fernbach, was an adult, and because it was his belief that an attempted

assault conviction "would be something that would secure [Longworth's] gun rights and not

affect his gun rights, because that was the major emphasis of our representation."

{¶ 16} Longworth's counsel also testified that he had advised Longworth that

entering a guilty plea to attempted assault would preserve Longworth's rights to own and

possess firearms, something that would not have been the case if Longworth had been

found guilty of domestic violence following a trial. Longworth's counsel further testified that

had he known "all this stuff was going to happen" that he believed Longworth would not

have agreed to the state's plea offer "and we would have set it for trial and went from there."

Longworth's counsel additionally testified that he believed Longworth "took the plea

because we didn't want to have to go through the trial part of it, because I assumed that

this would do the trick. And, you know, so I feel bad about that."

Longworth's Testimony

{¶ 17} Longworth testified that he hired two attorneys in March of 2010 to defend him

against the domestic violence charge. Longworth testified that upon meeting with his

attorneys, who Longworth testified "were, you know, the best in the business," that he was

"adamant" that he wanted "to take it to trial." Longworth testified that one of his attorneys

responded to this and told him "why take the risk, * * * you and [Fernbach] don't belong in

this," "don't drain the Court system, don't take the time. The courts don't have the time for

this." Longworth also testified that his attorneys told him to "take your medicine, you know,

do your two years non-reporting probation and move on and save yourself money, blah,

blah, blah, blah, so on and so forth." Longworth further testified that his attorneys advised

him that accepting the state's plea offer to a reduced charge of second-degree

misdemeanor attempted assault would "preserve [his] gun rights without having to weigh

down the Court system and taking something to a trial," advice that Longworth testified

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"they thought was true."

{¶ 18} Continuing, Longworth testified that he would have "[a]bsolutely not" accepted

the state's plea offer if he had known a conviction for attempted assault would subject him

to the federal firearm disability imposed under 18 U.S.C. 922(g)(9). Longworth testified that

he would have instead gone to trial and defended against the charge of domestic violence.

Longworth testified that this is because he was innocent and because he would have "done

anything" to preserve his right to possess and own firearms because he was "raised around

it," because he wanted his children to "enjoy the same things that [he] enjoyed as a child,"

and because "the ability to protect [himself] within [his] own house is very important to [him]."

Longworth also testified that the outdoors, hunting, fishing, and target practicing has

"always been a big part of [his] life," "it always will be," and that "besides [his] children, it's

the most important thing, you know, one of the most important things in [his] life."

{¶ 19} Longworth further testified that when he accepted the state's plea offer that

he did not think his right to own and possess firearms would be impaired in any way given

the advice that he had received from his two attorneys. However, upon first learning that

his right to own and possess firearms was, in fact, impaired by his attempted assault

conviction, Longworth testified that he contacted his divorce attorney and said "they got this

all wrong, you got to make this transfer happen, you know, XYZ, so within ten days, I think

we sent a response back to the DOJ." Longworth testified that he has since retained the

services of various other attorneys "without stop and interruption" in order to restore his

right to own and possess firearms. According to Longworth, this has cost him over $25,000

in legal fees. Longworth also testified that he had been "diligently" working on this issue

"[e]very day" to the point where he goes to bed "thinking about it" and wakes up in the

morning "thinking about it," but that it has been "a tiring process, a very tiring process."

{¶ 20} Concluding, Longworth testified that he would have "absolutely one-thousand

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percent" taken the case to trial if he had been correctly advised by his two former attorneys

that a guilty plea to a reduced charge of second-degree misdemeanor attempted assault

would have the same effect on his right to own and possess firearms as being found guilty

of first-degree misdemeanor domestic violence.

Fernbach's Testimony

{¶ 21} Fernbach testified that she did not want the trial court to grant Longworth's

Crim.R. 32.1 motion to withdraw his guilty plea. Fernbach testified that this was because

of her general concerns about firearms and more specifically Longworth's interactions with

their two children. Fernbach then testified about the incident that led to Longworth being

charged with domestic violence. Fernbach testified that she remembered the incident "like

yesterday" and wished that she "could turn back time and make it a domestic violence case,

but at that time [she] wasn't in the position to – to do anything on [her] own." Fernbach also

testified that the only reason she agreed to a reduced charge of attempted assault was

because Longworth had threatened her and told her not to cry or let the trial court know that

"this wasn't really what [she] wanted." Fernbach further testified that Longworth was "very

convincing" in telling her that he was "very good friends" with the prosecutor, that she "was

never going to get away with a domestic violence plea," and that "essentially [she] had to

go along with whatever he wanted."

The Trial Court's Decision and Longworth's Appeal

{¶ 22} On January 8, 2021, the trial court issued a decision denying Longworth's

Crim.R. 32.1 motion to withdraw his guilty plea. Longworth now appeals that decision,

raising the following single assignment of error for review.

{¶ 23} THE COURT ERRED IN OVERRULING LONGWORTH'S RULE 32.1

MOTION TO WITHDRAW HIS PLEA.

{¶ 24} Longworth argues the trial court erred by denying his Crim.R. 32.1 motion to

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withdraw his guilty plea. Upon review of the record, and for the reasons outlined below, we

agree that the trial court erred by denying Longworth's Crim.R. 32.1 motion to withdraw his

guilty plea given his two former attorneys provided Longworth with ineffective assistance of

counsel. Longworth, therefore, has established that a manifest injustice would occur if

Longworth was not permitted to withdraw his guilty plea to second-degree misdemeanor

attempted assault.

Crim.R. 32.1 Motion to Withdraw Guilty Plea

{¶ 25} Pursuant to 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 defendant who seeks to withdraw a guilty plea after the

imposition of a sentence has the burden of establishing the existence of a manifest injustice.

State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing

State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. "Manifest injustice

is defined as a 'clear or openly unjust act.'" State v. Bryant, 12th Dist. Butler Nos. CA2005-

02-025 and CA2005-04-086, 2005-Ohio-6855, ¶ 16, quoting State ex rel. Schneider v.

Kreiner, 83 Ohio St.3d 203, 208 (1998). "To prove a manifest injustice, the defendant must

show a 'fundamental flaw in the proceedings that results in a miscarriage of justice or is

inconsistent with the demands of due process.'" State v. Tringelof, 12th Dist. Clermont Nos.

CA2017-03-015 and CA2017-03-016, 2017-Ohio-7657, ¶ 10, quoting State v. Hobbs, 12th

Dist. Warren No. CA2012-11-117, 2013-Ohio-3089, ¶ 9. This requirement "is designed to

discourage a defendant from pleading guilty to test the weight of the potential reprisal, and

later attempting to withdraw the plea if the sentence was unexpectedly severe." Williams

at ¶ 13. This sets forth an "an extremely high standard that is allowable only in extraordinary

cases." State v. Miller, 12th Dist. Clermont No. CA2016-08-057, 2017-Ohio-2801, ¶ 15.

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{¶ 26} "A trial court's decision regarding a post-sentence motion to withdraw a guilty

plea is reviewed on appeal under an abuse of discretion standard." State v. Rose, 12th

Dist. Butler No. CA2010-03-059, 2010-Ohio-5669, ¶ 15; State v. Johnson, 12th Dist. Butler

No. CA2016-07-128, 2017-Ohio-4116, ¶ 10 ("[w]e review a trial court's decision on a post-

sentence motion to withdraw a plea for an abuse of discretion"). An abuse of discretion

connotes more than an error of law or judgment; it implies that the trial court's attitude was

arbitrary, unreasonable, or unconscionable. State v. Robinson, 12th Dist. Butler No.

CA2013-05-085, 2013-Ohio-5672, ¶ 14. "[A]n 'arbitrary' decision is one made 'without

consideration of or regard for facts [or] circumstances.'" State v. Beasley, 152 Ohio St.3d

470, 2018-Ohio-16, ¶ 12, quoting Black's Law Dictionary 125 (10th Ed.2014). "A decision

is unreasonable where a sound reasoning process does not support it." State v. Miller, 12th

Dist. Butler No. CA2016-01-007, 2016-Ohio-7360, ¶ 7, citing AAAA Ents., Inc. v. River Place

Community Urban Redev. Corp., 50 Ohio St.3d 157, 161 (1990). "'An unconscionable

decision may be defined as one that affronts the sense of justice, decency, or

reasonableness.'" State v. Wane, 12th Dist. Butler Nos. CA2020-01-010, CA2020-01-011,

CA2020-01-014, and CA2020-01-015, 2020-Ohio-4874, ¶ 22, quoting Campbell v. 1 Spring,

LLC, 10th Dist. Franklin No. 19AP-368, 2020-Ohio-3190, ¶ 9.

Ineffective Assistance of Counsel

{¶ 27} Ineffective assistance of counsel is a proper basis for a defendant to raise

when seeking a post-sentence withdrawal of a guilty plea under Crim.R. 32.1. State v.

Worthington, 12th Dist. Brown No. CA2014-12-022, 2015-Ohio-3173, ¶ 16. To that end,

"[w]hen an alleged error underlying a motion to withdraw a guilty plea is the ineffective

assistance of counsel," such as the case here, "the defendant must show (1) his counsel's

performance was deficient and (2) that there is a reasonable probability that, but for

counsel's errors, he would not have pled guilty." State v. Murray, 12th Dist. Brown No.

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CA2015-12-029, 2016-Ohio-4994, ¶ 26. This requires the reviewing court to "determine

whether the totality of circumstances supports a finding that counsel's performance was

deficient, and if so, whether the deficient performance was prejudicial to the defendant."

State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, ¶ 34. "The proponent of an

ineffective assistance claim must establish both elements to warrant relief." State v.

Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 48. Therefore,

because the proponent must establish both elements to warrant relief, "[a] reviewing court

may approach the ineffective assistance analysis starting with either prong of the test, and

a defendant's failure to satisfy one prong obviates the court's need to review the other."

State v. Napier, 12th Dist. Clermont Nos. CA2014-06-039 and CA2014-06-046, 2015-Ohio-

1413, ¶ 12.

Was Longworth's Trial Counsel Deficient in Their Performance?

{¶ 28} To support his single assignment of error, Longworth has set forth three

issues for review. In his first issue, Longworth argues the trial court erred by finding his two

former attorneys' assistance did not fall below an objective standard of reasonable

representation given that they misadvised him about the impact a guilty plea to a reduced

charge of second-degree misdemeanor attempted assault would have on his right to own

and possess firearms. To support this argument, Longworth claims the trial court erred by

finding it was reasonable for his two former attorneys "to be ignorant of the federal

disability's scope and to misadvise him about it." Longworth also claims the trial court erred

by finding there was no defective performance because the definition of what constitutes a

"misdemeanor crime of domestic violence" as that term is used in 18 U.S.C. 922(g)(9) was

"unclear" or that the DOJ's position was subject to "unforeseen change." We agree with

Longworth's claims.

{¶ 29} "The issue regarding counsel's performance for any ineffective-assistance-of-

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counsel claim is whether counsel's assistance was reasonable considering all the relevant

circumstances." State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, ¶ 95, citing

Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052 (1984). That is, stated

differently, it is only where counsel's assistance falls below "an objective standard of

reasonable representation" that a claim of ineffective assistance of counsel can be had.

State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, ¶ 78. Unlike the constitutional

guarantee of due process that places a duty on the trial court to ensure a defendant's guilty

plea is knowingly, intelligently, and voluntarily entered, "counsel's duty to provide competent

advice during plea proceedings arises from a separate constitutional guarantee – the Sixth

Amendment right to counsel." State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839, ¶

18, citing Missouri v. Frye, 566 U.S. 134, 141, 132 S.Ct. 1399 (2012). Therefore, in order

to maintain a successful ineffective assistance of counsel claim, Longworth was required to

show "'that counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed [to him] by the Sixth Amendment.'" State v. Bates, 159 Ohio St.3d 156, 2020-

Ohio-634, ¶ 24, quoting Strickland at 687.

{¶ 30} Applying this "defective-performance standard" to the case at bar, the trial

court found Longworth had failed to prove his two former attorneys were deficient in their

performance even though they had incorrectly advised Longworth that he would not be

subject to the federal firearm disability imposed under 18 U.S.C. 922(g)(9) by accepting the

state's plea offer to a reduced charge of second-degree misdemeanor attempted assault.

This is because, as the trial court found, it is "difficult to say they performed deficiently" even

though they were incorrect in their interpretation of the law, as well as in their advisement

of how that law would be applied to Longworth, given that both attorneys were then, and

still are, "qualified and experienced attorneys." What the trial court found, therefore, was

that it "would question" whether Longworth's two former attorneys were deficient given the

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law they were tasked with interpreting, 18 U.S.C. 922(g)(9), was not succinct and

straightforward, thereby providing them with no clear answer as to how that statute would

(or could) be applied to Longworth if he were to accept the state's plea offer.

{¶ 31} However, despite the trial court's finding, we find the law that Longworth's two

former attorneys were tasked with interpreting, 18 U.S.C. 922(g)(9), was then, and is still

now, succinct and straightforward when considering the underlying facts of this case. As

noted above, pursuant to 18 U.S.C. 922(g)(9), it is unlawful for any person "who has been

convicted in any court of a misdemeanor crime of domestic violence" to ship, transport,

possess, or receive "any firearm or ammunition" in or affecting commerce. The phrase

"misdemeanor crime of domestic violence" is defined by 18 U.S.C. 921(33)(A)(ii) to mean

an offense that has, as an element, "the use or attempted use of physical force" that was

"committed by a current or former spouse" of the victim. This is the same statutory language

used today as it was when Longworth entered his guilty plea. Therefore, just as the DOJ

stated within in its December 27, 2018 letter, the phrase "misdemeanor crime of domestic

violence" is not limited to crimes that fall under this state's domestic violence statute, R.C.

2919.25, so long as the offender used or attempted to use physical force against someone

with whom he or she was in a qualifying relationship. This language was used to "close [a]

dangerous loophole" in the gun control laws when, around the time of its passage, only

about one-third of the states had a criminal statute that specifically proscribed "domestic

violence" as a crime. Voisine v. United States, __ U.S. __, 136 S.Ct. 2272, 2276 (2016);

and United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079 (2009).

{¶ 32} Turning then to the facts of this case, Longworth pled guilty to second-degree

misdemeanor attempted assault in violation of R.C. 2923.02(A) and 2903.13(A). As

previously stated, these statutes make it unlawful for any person to "knowingly cause or

attempt to cause physical harm to another or to another’s unborn." The offense of

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attempted assault, therefore, has, as an element, the use or attempted use of physical force.

There is also no dispute that Longworth and Fernbach were married at the time the alleged

incident occurred. This means "the use or attempted use of physical force" element was

undoubtedly "committed by a current or former spouse" of the victim. Thus, when

considering the underlying facts of this case, that a conviction for attempted assault would

qualify as a "misdemeanor crime of domestic violence" is not now, nor was it then, difficult

to discern. There was, in fact, at least one court that had already determined that the crime

of attempted assault qualified as a "misdemeanor crime of domestic violence" as that term

is defined by 18 U.S.C. 921(33)(A)(ii). See People v. Adams, 193 Misc.2d 78, 87 (S.P.N.Y.,

2002) (applying a substantially similar attempted assault statutes when finding "[a]ttempted

assault in the third degree would qualify under the federal statute as a domestic violence

misdemeanor"). Accordingly, because the law being applied was both succinct and

straightforward when considering the facts of this case, Longworth's trial counsel should

have known that 18 U.S.C. 922(g)(9) would apply to Longworth if he were to accept the

state's plea offer to second-degree misdemeanor attempted assault.

{¶ 33} In so holding, and when considering the unique facts of this case, we find it

necessary to explicitly reject the trial court's decision finding it "difficult to say" whether

Longworth's two former attorneys "performed deficiently" given that both attorneys were

then, and are still now, "qualified and experienced attorneys." Although a relevant factor to

consider, whether Longworth's two former attorneys were good attorneys who were

qualified and experienced in matters of criminal law when Longworth hired them in 2010 is

not dispositive of the issue of whether they performed deficiently in their representation of

Longworth. The same is true as it relates to whether they are still good attorneys who are

qualified and experienced in matters of criminal law now, today in 2021. No attorney, nor

any court, is infallible. There is also no attorney who is incapable of ever providing

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assistance that falls below an objective standard of reasonable representation. "An

attorney's ignorance of a point of law that is fundamental to his case combined with his

failure to perform basic research on that point is a quintessential example of unreasonable

performance under Strickland." Hinton v. Alabama, __ U.S. __ , 134 S.Ct. 1081, 1088-1089

(2014). Therefore, because Longworth's two former attorneys' assistance fell below an

objective standard of reasonable representation when they misadvised Longworth about

the impact a guilty plea to a reduced charge of second-degree misdemeanor attempted

assault would have on his right to own and possess firearms, we find the trial court erred

by finding both attorneys performance was not deficient.

Was Longworth Prejudiced by his Trial Counsel's Deficient Performance?

{¶ 34} In his second issue presented for review, Longworth argues the trial court also

erred by finding he had failed to prove he was prejudiced by his two former attorneys'

misadvice about the impact a guilty plea to attempted assault would have on his right to

own and possess firearms. That is to say, Longworth argues the trial court erred by finding

there was no reasonable probability that, but for his two former attorneys' misadvice, that

he would have rejected the state's plea offer and instead taken the matter to trial. To

support this claim, Longworth argues the trial court applied a "rejected prejudice standard,"

overlooked his "perspective and his determinative issue – safeguarding his firearm rights,"

ignored "unrebutted, legally significant evidence," and considered issues that "do not

follow." We again agree with Longworth's claims.

{¶ 35} To show prejudice, the appellant must prove there exists "'a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different.'" State v. Deck, 12th Dist. Warren No. CA2020-10-066, 2021-Ohio-

315, ¶ 25, quoting Strickland, 466 U.S. at 694. When applied in the context of a guilty plea,

this means the appellant must "demonstrate that there is a reasonable probability that, but

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for his counsel's errors, he would not have pled guilty and would have insisted on going to

trial." State v. Parker, 12th Dist. Butler CA2018-12-229, 2020-Ohio-414, ¶ 10. A

"reasonable probability" is a probability that is sufficient to undermine confidence in the

outcome. State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 54,

citing State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 6. "Prejudice owing to ineffective

assistance of counsel cannot be demonstrated by means of conjecture or speculation."

State v. Brown, 9th Dist. Lorain No. 20CA011618, 2021-Ohio-2540, ¶ 63; State v. Behrle,

4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 40 ("speculation is insufficient to

establish the prejudice component of an ineffective assistance of counsel claim").

Therefore, "[c]onclusory statements that the outcome would have been different, without

more, are not enough to carry a defendant's burden on the issue of prejudice." State v.

Williams, 1st Dist. Hamilton No. C-180588, 2020-Ohio-1368, ¶ 22.

{¶ 36} After a thorough review of the record, we find the trial court erred by finding

Longworth had not proven he was prejudiced by his two former attorneys' misadvice. In

other words, we find error in the trial court's decision finding there existed no reasonable

probability that Longworth would have rejected the state's plea offer and instead taken the

matter to trial but for his two former attorneys' misadvice that a guilty plea to a reduced

charge of second-degree misdemeanor attempted assault would not subject him to the

federal firearms disability imposed under 18 U.S.C. 922(g)(9). This is because, despite the

trial court's findings, the only relevant, material evidence on this issue presented at the

hearing on Longworth's Crim.R. 32.1 motion to withdraw his guilty plea came from one of

Longworth's former attorneys and from Longworth himself.

{¶ 37} Both Longworth and Longworth's former attorney unequivocally testified that

Longworth would have rejected the state's plea offer and taken the matter to trial had

Longworth not been misadvised about the impact a guilty plea would have on his right to

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own and possess firearms. Longworth's testimony, which was uncontradicted, makes clear

that this would have been the case regardless of any other considerations that may have

been at play. This includes, among other things, the legal fees Longworth would have

incurred by taking the matter to trial, the impact that taking the matter to trial could have

had on Longworth's family, as well as the risk of subjecting his then wife, Fernbach, to

criminal liability if she had falsely accused him of domestic violence.

{¶ 38} In reaching this decision, we note that the time between when Longworth was

first made aware that his conviction subjected him to the federal firearms disability imposed

under 18 U.S.C. 922(g)(9) and when he eventually moved to withdraw his guilty plea is

troubling. The record, however, indicates that Longworth was attempting to reinstate his

right to own and possess firearms through other available means. The fact that Longworth's

efforts took several years to run their course should not be surprising given the significant

backlog the DOJ faced in addressing administrative appeals like Longworth's, nor should

Longworth be penalized for seeking redress via alternative means outside the courtroom.

Parties are, in fact, encouraged to seek out alternate avenues of redress when possible to

avoid overtaxing the state's legal system. Therefore, while the trial court considered this

delay significant in that it raised a question as to whether Longworth's "claim now that he

would have never entered the plea in the first place" was "just one of a number of strategies

he is trying," we take no issue with the fact Longworth did not immediately file a Crim.R.

32.1 motion to withdraw his guilty plea when advised by counsel that there were other

potential methods that could be pursued.

{¶ 39} We also take exception with the trial court finding both "the evidence that

would have been available to present" against Longworth at a trial on the domestic violence

charge, and Longworth's "situation" leading up to a potential trial on that charge, belied

Longworth's claim that maintaining his right to own and possess firearms was of "ultimate

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importance" to him. The same is true as it relates to the trial court's decision finding it

relevant that there was no mention made at Longworth's plea hearing that he was "pleading

to maintain eligibility for access to firearms." What Longworth may consider to be of

"ultimate importance" to him is not necessarily the same as someone else in the same or

similar situation. This holds true even in circumstances such as these where the evidence,

when viewed in a light most favorable to the state, would be more than sufficient to secure

a domestic violence conviction. And, while it is true that there was no reference made to

the underlying reason behind why Longworth agreed to accept the state's plea offer at

Longworth's plea hearing, rarely, if ever, is that information placed on the record. This is

particularly true in circumstances where, like here, discussions as to whether a defendant

is willing to accept the state's plea offer are done confidentially, off the record, and behind

closed doors between the defendant and his or her trial counsel.

Did Longworth Establish the Existence of a Manifest Injustice?

{¶ 40} In light of the foregoing, and because the trial court erred by finding Longworth

was not prejudiced by his former counsels' deficient performance, thereby establishing a

meritorious ineffective assistance of counsel claim, we find Longworth has also established

that a miscarriage of justice would occur if he was not permitted to withdraw his guilty plea

to second-degree misdemeanor attempted assault. That is to say, Longworth has

established the existence of a manifest injustice if he was not permitted to withdraw his

guilty plea. Therefore, under the facts and circumstances of this case, and because we find

Longworth has established the existence of a manifest injustice, the trial court erred by

denying Longworth's Crim.R. 32.1 motion to withdraw his guilty plea.

Did the Trial Court Err by Allowing Fernbach to Testify?

{¶ 41} In his third issue presented for review, Longworth initially argues the trial court

erred by allowing Fernbach "to testify about her opposition to Longworth's restored firearm

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rights." However, as the record indicates, the trial court permitted Fernbach to testify in

accordance with Marsy's Law, Article I, Section 10a of the Ohio Constitution. Marsy's Law

expanded the rights afforded to crime victims. State ex rel. Suwalski v. Peeler, 12th Dist.

Warren No. CA2019-05-053, 2020-Ohio-3233, ¶ 10. This includes a crime victim's right "to

be heard in any public proceeding involving release, plea, sentencing, disposition, or parole,

or in any public proceeding in which a right of the victim is implicated[.]" Ohio Constitution,

Article I, Section 10a(A)(3); see State ex rel. Suwalski v. Peeler, Slip Opinion No. 2021-

Ohio-4061, ¶ 19-21. Therefore, while we agree that Marsy's Law should not be considered

an "open spigot," the Rules of Evidence should also not be interpreted to supersede the

rights afforded to crime victims under the Ohio Constitution. To hold otherwise would

effectively eliminate the expanded rights afforded to crime victims through Marsy's Law.

Accordingly, we find no error in the trial court's decision allowing Fernbach "to testify about

her opposition to Longworth's restored firearm rights."

Did the Trial Court Err by Denying Longworth the Opportunity to Present a Rebuttal
Witness?

{¶ 42} Also in his third issue presented for review, Longworth argues the trial court

erred by denying him the opportunity to rebut Fernbach's testimony by continuing the matter

to another date so that he could call a rebuttal witness. Longworth, however, had already

conducted a stringent cross-examination of Fernbach prior to making this request. This

cross-examination provided Longworth with ample opportunity to impeach Fernbach's

testimony and call into question Fernbach's credibility without the need to call a rebuttal

witness. Therefore, contrary to Longworth's claim, we find no error in the trial court's

decision denying his request to continue the matter to another date so that he could call a

rebuttal witness to the stand. This is particularly true here when considering the matters

that would have been testified to on rebuttal were not central to the case. Accordingly, we

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find no error in the trial court's decision denying Longworth's request to continue the matter

to another date so that he could call a rebuttal witness to the stand.

Conclusion

{¶ 43} For the reasons outlined above, and finding merit to Longworth's arguments

contained within his first and second issues presented for review, Longworth's single

assignment of error is sustained. Accordingly, finding merit to Longworth's single

assignment of error, the trial court's decision denying Longworth's Crim.R. 32.1 motion to

withdraw his guilty plea is reversed and this matter is remanded to the trial court for further

proceedings consistent with this Opinion.

{¶ 44} Judgment reversed and remanded.

HENDRICKSON and BYRNE, JJ., concur.

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