State v. Wiesenborn

[Cite as State v. Wiesenborn, 2022-Ohio-3762.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29388
:
v. : Trial Court Case No. 2018-CR-864
:
ZAREN P. WIESENBORN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 21st day of October, 2022.

...........

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

CHARLYN BOHLAND, Atty. Reg. No. 0088080 and STEPHEN P. HARDWICK, Atty. Reg.
No. 0062931, Assistant Ohio Public Defenders, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
Attorneys for Defendant-Appellant

.............

TUCKER, P.J.
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{¶ 1} Zaren P. Wiesenborn appeals from the trial court’s decision, entry, and order

overruling his post-sentence motion to withdraw a no-contest plea or, in the alternative,

motion for a new sentencing hearing.

{¶ 2} Wiesenborn contends the trial court erred in relying on res judicata and the

law-of-the-case doctrine when overruling the motion to withdraw his plea. He also claims

the trial court erred in overruling the plea-withdrawal motion while acknowledging that it

disagreed with his aggregate sentence. Finally, he asserts that the trial court should have

held a new sentencing hearing in light of State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-

6803, 172 N.E.3d 952, and its discussion of youthfulness as a mitigating sentencing

factor.

{¶ 3} We conclude that the trial court did not improperly apply res judicata and the

law of the case. It only applied those doctrines to the extent that Wiesenborn’s plea-

withdrawal motion addressed things that previously were or could have been raised on

direct appeal. Insofar as Wiesenborn’s motion introduced evidence outside the record,

the trial court did not apply res judicata or the law of the case. The fact that the trial court

“may not have” imposed the sentence imposed by a prior judge did not establish a

manifest injustice warranting withdrawal of Wiesenborn’s plea. And the trial court had no

authority to hold a new sentencing hearing and modify Wiesenborn’s sentence based on

Patrick, which was decided after his appeals had been exhausted. Accordingly, the trial

court’s judgment will be affirmed.

I. Background

{¶ 4} In October 2018, Wiesenborn pled no contest to 13 counts of rape, seven
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counts of kidnapping, and 13 counts of gross sexual imposition. The charges involved his

engaging in sexual activity with his partially-disabled sister. The acts occurred over a

period of years when Wiesenborn was between the ages of 14 and 19 and his sister was

a couple of years younger. The trial court accepted the no-contest plea and made findings

of guilt. The trial court later imposed less-than-maximum but wholly consecutive

sentences totaling 78.5 years in prison.

{¶ 5} A few days after sentencing, on November 13, 2018, Wiesenborn filed a

motion to withdraw his no-contest plea. He argued that the aggregate sentence was

“excessive” and constituted cruel and unusual punishment. He also asserted that his

attorney never believed a 78.5-year sentence would be imposed. Wiesenborn then filed

a notice of appeal, thereby divesting the trial court of jurisdiction to rule on the plea-

withdrawal motion while the appeal was pending.

{¶ 6} On direct appeal, Wiesenborn challenged the imposition of consecutive

sentences, arguing that they were unsupported by the record. He cited his expression of

remorse, his lack of a criminal record, and the fact that he was only 19 years old at the

time of sentencing. He also stressed that 20 of his 33 offenses had occurred while he was

under age 18, including seven of the 13 rapes. Wiesenborn additionally raised an Eighth

Amendment argument.

{¶ 7} In a two-to-one ruling, this court did not find the consecutive sentences

clearly and convincingly unsupported by the record. State v. Wiesenborn, 2019-Ohio-

4487, 135 N.E.3d 812, ¶ 19-23 (2d Dist.). The majority also rejected the Eighth-

Amendment challenge and an assignment of error addressing the validity of
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Wiesenborn’s pleas. In overruling the assignment of error related to sentencing, we

observed that the trial court had “considered Wiesenborn’s age in imposing the sentence.”

Id. at ¶ 51. The majority noted that approximately 60 percent of his offenses had occurred

while he was a juvenile and that the trial court had imposed shorter sentences for those

than it did for the same offenses he had committed as an adult. Id.

{¶ 8} After the direct appeal was resolved, Wiesenborn filed a December 21, 2021

“supplement” to his earlier motion to withdraw his no-contest plea. His filing included an

alternative motion for new sentencing hearing. Wiesenborn claimed he did not understand

when he entered his plea that he effectively faced a life sentence for offenses partially

committed as a juvenile. He also asserted that he and his attorney had anticipated a

prison sentence of 10 to 20 years and that the aggregate sentence imposed was

“uncontemplated in the plea process.” Finally, Wiesenborn argued that the Ohio Supreme

Court’s decision in Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, which

was decided after his appeals were completed, required a more thorough consideration

of his youth to determine an appropriate sentence. Therefore, Wiesenborn sought

withdrawal of his no-contest plea or a new sentencing hearing.

{¶ 9} In a January 14, 2022, decision, order, and entry, the trial court overruled

Wiesenborn’s November 13, 2018 plea-withdrawal motion as well as his December 21,

2021 supplement and his alternative request for a new sentencing hearing. The trial court

held that res judicata and the law-of-the-case doctrine precluded consideration of issues

raised in the November 13, 2018 motion that were or could have been raised on direct

appeal. The trial court also found that Wiesenborn had not established a manifest injustice
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warranting withdrawal of his no-contest plea. With regard to the length of Wiesenborn’s

sentence, the trial court determined that at the time of his plea he held a mistaken belief

based on what turned out to be an erroneous prediction by his attorney. After reviewing

affidavits from Wiesenborn and his trial counsel, the trial court stated: “In this matter,

Defense counsel told Defendant his speculation on a sentence (the 60 year sentence the

State requested) [that] he ‘could not imagine’ * * * and was mistaken. * * * There is nothing

before the court to indicate that Defense counsel promised Defendant what the sentence

would be and thereafter resulted in a higher sentence.”

{¶ 10} Concerning the Ohio Supreme Court’s recent decision in Patrick, the trial

court found that the sentencing judge had considered the appropriate factors, including

Wiesenborn’s age, and that nothing in Patrick required withdrawal of the no-contest plea

or supported a new sentencing hearing. Finally, the trial court rejected arguments about

Wiesenborn’s 78.5-year prison term effectively being a life sentence and his no-contest

plea being invalid.

II. Analysis

{¶ 11} In his first assignment of error, Wiesenborn contends the trial court abused

its discretion in overruling his plea-withdrawal motion. He argues that it erred in relying

on res judicata and the law of the case. He also maintains that it acted unreasonably by

overruling his motion despite opining that it disagreed with his sentence.

{¶ 12} 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
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withdraw his or her plea.” We have characterized a “manifest injustice” as “a clear or

openly unjust act; an extraordinary and fundamental flaw in the plea proceeding.” State

v. Hawke, 2d Dist. Greene No. 2019-CA-24, 2020-Ohio-511, ¶ 13, quoting State v. Yapp,

2015-Ohio-1654, 32 N.E.3d 996 (8th Dist.), ¶ 8. “The manifest-injustice standard

demands a showing of extraordinary circumstances, and the defendant bears the burden

of proving the existence of a manifest injustice.” State v. Turner, 171 Ohio App.3d 82,

2007-Ohio-1346, 869 N.E.2d 708, ¶ 20 (2d Dist.).

{¶ 13} A Crim.R. 32.1 motion is addressed to the sound discretion of the trial

court, and its decision will not be reversed absent an abuse of that discretion. State v.

Johnson, 2d Dist. Montgomery No. 27372, 2017-Ohio-9227, ¶ 7. “Abuse of discretion”

has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is

unreasonable if there is no sound reasoning process that would support it. AAAA Ents.,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990); Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-

4621, ¶ 7.

{¶ 14} Wiesenborn first challenges the trial court’s invocation of res judicata and

the law-of-the-case doctrine to overrule his plea-withdrawal motion. But the trial court’s

ruling largely stated a truism. The trial court observed that res judicata bars any claims

that were or could have been raised on direct appeal and that our appellate decision was

the law of the case in the present matter. With regard to the law of the case, the trial court

simply stated that “any issues resolved [in our appellate decision on direct appeal] would
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apply to subsequent proceedings.” This is a true statement.

{¶ 15} With regard to res judicata, the trial court stated that “issues regarding the

sentence amounting to cruel and unusual punishment and any claims as to the knowing,

intelligent, and voluntary nature of Defendant’s plea raised in the motion are barred by

res judicata.” Although this statement appears to be a blanket prohibition against

Wiesenborn’s challenging his plea and sentence, the trial court did not apply res judicata

so broadly. Wiesenborn points out that his plea-withdrawal motion was predicated on

affidavits from himself and his trial counsel, as well as the Ohio Supreme Court’s recent

Patrick decision. Wiesenborn correctly notes that the affidavits and new case law could

not have been addressed on direct appeal because they were not part of the appellate

record. But the trial court did not actually apply res judicata to these aspects of

Wiesenborn’s plea-withdrawal motion. Instead, it addressed the substance of the

affidavits and found that they failed to establish a manifest injustice warranting withdrawal

of the no-contest plea. The trial court also examined Patrick and found that the sentencing

judge adequately had considered Wiesenborn’s youth. Because the trial court properly

considered the merits of Wiesenborn’s arguments insofar as they were predicated on

materials outside the record, it did not erroneously apply res judicata or the law of the

case to the plea-withdrawal motion or the alternative request for a new sentencing

hearing.

{¶ 16} Wiesenborn also contends the trial court abused its discretion by overruling

his plea-withdrawal motion despite opining that it disagreed with his sentence. He cites

the trial court’s observation that “while [a 78.5-year sentence] may not have been the
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sentence that this judge would have imposed, this judge must still follow the law and

cannot be led astray by emotion or personal conviction.” Wiesenborn argues that being

swayed by emotions or personal conviction is “exactly what the [manifest-injustice]

standard permits a trial court to do.” We disagree.

{¶ 17} It does not follow that a manifest injustice occurred simply because a

reviewing judge might have imposed a different sentence. Whether a manifest injustice

exists when a defendant is mistaken regarding the severity of his sentence depends on

the reason for his faulty belief:

The reason for the belief is key. If defense counsel caused the belief, what

counsel exactly said must be examined. A manifest injustice does not

necessarily arise merely because counsel is wrong about the sentence that

is actually imposed. Only if counsel promised the defendant that a guilty

plea will result in a lower sentence than is actually imposed would a

manifest injustice potentially result. * * * If counsel simply made a prediction,

there would be no manifest injustice. * * * In other words, counsel’s

erroneous advice and incorrect speculation regarding the sentence that is

likely to be imposed potentially results in a manifest injustice only if counsel

said that a guilty plea will result in a particular sentence, but not if counsel

said that it probably will result.

(Emphasis sic.) State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-

295, ¶ 9; see also State v. Jones, 2d Dist. Greene No. 2017-CA-27, 2018-Ohio-2219,

¶ 24, quoting McComb.
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{¶ 18} Here Wiesenborn averred as follows in support of his plea-withdrawal

motion:

3. In discussing my case with my attorney, I expected a sentence to be

between 10-20 years in prison. My attorney told me that he couldn’t envision

the court giving me an effective life sentence, so I didn’t think I could receive

a sentence of 78.5 years.

4. Had I understood that the ultimate 78.5-year sentence was a possibility,

I would have taken my case to trial.

(Wiesenborn affidavit at ¶ 3-4.)

{¶ 19} Wiesenborn’s attorney’s affidavit included the following averments:

5. I believed that Zaren had a good shot of receiving a 15-20-year prison

sentence given these mitigating factors: a) Zaren took responsibility, b) he

was engaged in counseling, c) most of the charges stemmed from a time

when Zaren was a juvenile, and d) he had no criminal history. In my

discussions with Zaren, I remember telling him that the State wanted him to

get a 60-year sentence, but I couldn’t imagine the court doing that and 60

years was unreasonable.

6. Additionally, at that time, I had represented individuals with murder and

child-rape charges and have not seen sentences exceeding 30-35 years on

a plea.

7. The ultimate 78.5-year sentence was not even close to the discussions

that I had with Zaren. In my explanations to Zaren, I told him that I could not

imagine the court giving him essentially a life sentence. It didn’t even cross
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my mind that Zaren would get that much time.

8. The 78.5-year sentence is effectively a death sentence for Zaren. It’s

unlike anything I’ve seen in my 20 years of practice.

(Wilder affidavit at ¶ 5-8.)1

{¶ 20} In his affidavit, Wiesenborn references what he and his attorney

“envisioned” and “expected” to happen at sentencing. Defense counsel states that he

“couldn’t imagine” even a 60-year sentence and that the 78.5-year sentence imposed was

“not even close” to what he and Wiesenborn had discussed and anticipated. Nowhere in

either affidavit, however, is there an averment about counsel promising a lower sentence

than actually imposed. Although defense counsel’s speculation and prediction were

inaccurate, Wiesenborn admitted at the plea hearing that he had not been promised

anything and that there was no agreement regarding sentencing. The two affidavits do

not demonstrate otherwise.

{¶ 21} Particularly in light of the deferential abuse-of-discretion standard that we

must apply, we cannot say the trial court acted unreasonably in finding no manifest

1 Although defense counsel now claims he never has seen a prison sentence exceeding
30-35 years following a plea to child-rape charges, he actively was participating in such
a case at the time of Wiesenborn’s own plea. In State v. Brady, 2d Dist. Montgomery No.
27763, 2019-Ohio-46, counsel represented a father accused of repeatedly raping his
teen-aged daughter. The defendant pled guilty to four counts of voyeurism, five counts of
pandering sexually oriented material involving a minor, and 14 counts of rape. The trial
court imposed an aggregate 77-year prison sentence. In June 2018, counsel filed an
appellate brief challenging the sentence. Then in October 2018, counsel participated in
oral argument in Brady, arguing that the prison sentence was inappropriate. That same
month, counsel participated in Wiesenborn’s plea hearing. Notably, counsel’s affidavit in
this case does not say he actually told Wiesenborn that he never had seen a sentence
exceeding 35 years. Therefore, we see no basis for an argument that Wiesenborn relied
on a misrepresentation.
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injustice warranting withdrawal of Wiesenborn’s no-contest plea. The first assignment of

error is overruled.

{¶ 22} In his second assignment of error, Wiesenborn challenges the trial court’s

denial of his alternative request for a new sentencing hearing. He argues that

resentencing is required by the Ohio Supreme Court’s late 2020 decision in Patrick, 164

Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952.

{¶ 23} Upon review, we find Wiesenborn’s argument to be unpersuasive. Prior to

Patrick, the Ohio Supreme Court had held in State v. Long, 138 Ohio St.3d 478, 2014-

Ohio-849, 8 N.E.3d 890, that a sentencing court “must separately consider the youth of a

juvenile offender as a mitigating factor before imposing a sentence of life without parole.”

Id. at paragraph one of the syllabus. In Patrick, the Ohio Supreme Court extended this

rule to a sentence involving life with parole eligibility. The majority held that in such a case

a trial court separately must consider on the record a juvenile offender’s youth as a

mitigating sentencing factor. Id. at ¶ 48.

{¶ 24} In Wiesenborn’s direct appeal, we noted that the trial court had “considered

[his] age in imposing the sentence” and that it had imposed shorter sentences for the

offenses he committed as a juvenile. Wiesenborn, 2019-Ohio-4487, 135 N.E.3d 812, at

¶ 51. Nevertheless, Wiesenborn maintains that Patrick should be extended to his 78.5-

year sentence by analogy and that the record does not adequately reflect the trial court’s

specific articulation of youthfulness as a mitigating factor.

{¶ 25} But whatever additional consideration of youthfulness Wiesenborn believes

Patrick mandates, he cannot invoke that decision to obtain a new sentencing hearing. We
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affirmed Wiesenborn’s conviction on direct appeal on November 1, 2019. The Ohio

Supreme Court denied review on March 11, 2020, and denied reconsideration on May

12, 2020. The Ohio Supreme Court decided Patrick on December 22, 2020, which

Wiesenborn acknowledges was after his appeals had been completed.

{¶ 26} “A new judicial ruling may be applied only to cases that are pending on the

announcement date. * * * The new judicial ruling may not be applied retroactively to a

conviction that has become final, i.e., where the accused has exhausted all of his

appellate remedies.” Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687,

¶ 6. Wiesenborn had no legal right to the application of Patrick to his case, even if we

assume purely arguendo that it had some benefit to him, because he had no appeal

pending when Patrick was decided. See State v. Hawkins, 2d Dist. Clark No. 2015-CA-

16 (Decision and Entry, March 2, 2022) (refusing to apply Patrick on delayed

reconsideration and holding that the rule of Patrick is procedural and does not apply

retroactively). 2 Furthermore, the trial court had no authority simply to vacate

Wiesenborn’s sentence, which was final, and to hold a new sentencing hearing.3 State v.

Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671. For these reasons, the

trial court did not err in denying Wiesenborn’s alternative request for a new sentencing

hearing. The second assignment of error is overruled.

2 We note that on July 5, 2022, the Ohio Supreme Court accepted jurisdiction in Hawkins
to decide whether “[t]he rule announced in State v. Patrick is substantive and must be
given retroactive effect.” See State v. Hawkins, 167 Ohio St.3d 1450, 2022-Ohio-2246,
189 N.E.3d 822.
3 Having found that Patrick did not entitle Wiesenborn to a new sentencing hearing, we
need not resolve the State’s alternative argument that Patrick effectively was overruled
by Jones v. Mississippi, __ U.S. __, 141 S.Ct. 1307, 209 L.Ed.2d 390 (2021).
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III. Conclusion

{¶ 27} The judgment of the Montgomery County Common Pleas Court is affirmed.

.............

WELBAUM, J., concurs.

DONOVAN, J., dissents:

{¶ 28} I would reverse the judgment of the trial court for a multitude of reasons.

First, I would find that Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952,

must be given retroactive effect to Wiesenborn’s case. As emphasized by the Ohio

Supreme Court, a new decision ordinarily “does not apply to convictions that were final

when the decision was announced. But ‘courts must give retroactive effect to new

substantive rules of constitutional law. Substantive rules include * * * rules prohibiting a

certain category of punishment for a class of defendants because of their status or

offense.’ ” State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 97,

quoting Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 193, L.E.2d 599 (2016). The

decision in Patrick is like the decision in Montgomery because it addresses the

consideration/factors that must be given to a defendant’s youth (offenses committed while

a juvenile) when sentencing that defendant to a term which is effectively life without

parole. Accordingly, I would find Patrick is substantive for retroactive purposes and

therefore apply it retroactively upon review of Wiesenborn’s request to withdraw his plea.

Indeed, his motion was pending in the trial court when we decided Wiesenborn’s direct

appeal.

{¶ 29} I would further find that Wiesenborn is minimally entitled to resentencing
 -14-

under Patrick. Significantly, in Patrick, the Ohio Supreme Court found that a trial court

must separately consider the youth of a juvenile offender as a mitigating factor before

imposing a life sentence (Wiesenborn’s sentence is effectively life), even if the sentence

includes eligibility for parole. I remain firmly convinced that Wiesenborn’s disposition fails

to reflect that the court specifically considered Wiesenborn’s youth at the time the majority

of his offenses were committed. Unquestionably, youth matters under both the United

States and Ohio Constitutions. I recognize finality is important, but “the benefits of finality

must be balanced with the principles of fairness.” Moore, 149 Ohio St.3d 557, 2016-Ohio-

8288, 76 N.E.3d 1127, at ¶ 122 (O’Connor, C.J., concurring.) In my view, Patrick only

cements the fact that Wiesenborn’s direct appeal was wrongly decided, as I emphasized

in my original dissent.

{¶ 30} Furthermore, the facts and circumstances of Wiesenborn’s plea and

disposition do rise to the level of manifest injustice warranting setting aside his pleas.

Wiesenborn’s lawyer’s characterization of the sentence as “unimaginable” equates with

a disposition that “shocks the conscience.” A sentence that “shocks the conscience”

fairly characterizes the manifest injustice standard, which is largely undefined. The trial

court completely failed to consider the relevant and mandatory factor of youth in

fashioning an appropriate sentence. I concede a lengthy sentence is justifiable, but not

one of 78.5 years which wholly fails to account for youth and the prospect of rehabilitation

after a period of punishment and deterrence. Wiesenborn was denied due process, which

is necessarily a manifest injustice as a matter of law. On this record, Wiesenborn has

established a fair and just reason to withdraw his plea.
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{¶ 31} I also reject the majority’s criticism of trial counsel’s affidavit. The majority

seeks to undermine counsel’s averments by reference to another appeal he handled in a

separate case. Significantly, he was not trial counsel in that case, and that defendant was

an adult male approaching 40 years of age. There is no legitimate comparison between

the two cases, and the affidavit addresses his advice as trial counsel, not his advice in an

appellate capacity.

{¶ 32} Finally, without question, Wiesenborn’s convictions were for reprehensible

offenses and warranted a lengthy period of incarceration to both deter and punish, but

there is nothing in this record to establish he was irredeemable. His sentence ran afoul of

the sea of case law on youthful offenders and the mandatory sentencing considerations

dictated by the Ohio legislature and the Ohio and United States Constitutions.

{¶ 33} I would reverse.

Copies sent to:

Mathias H. Heck, Jr.
Elizabeth A. Ellis
Charlyn Bohland
Stephen P. Hardwick
Hon. Gerald Parker