[Cite as State v. Gilbreath, 2022-Ohio-3759.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-37
:
v. : Trial Court Case Nos. 2017-CR-753
:
CHRISTOPHER GILBREATH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of October, 2022.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0095950, 2290 Lakeview Drive, Suite A,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Christopher Gilbreath, appeals from a judgment of the
Clark County Court of Common Pleas denying his post-sentence motion to withdraw his
guilty plea. For the reasons outlined below, the judgment of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 2} On December 14, 2017, a Clark County grand jury returned an indictment
charging Gilbreath with single counts of failure to comply with the order or signal of a
police officer, vandalism, obstructing official business, and felonious assault of a peace
officer. The charges arose after Gilbreath engaged in a high speed chase with
Springfield police officers on the night of November 22, 2017, and caused damage to a
police cruiser.
{¶ 3} The police report prepared as a result of the incident indicated that on the
night in question, police officers were investigating a report of suspicious activity involving
a vehicle in the area of Sherman Avenue and Farlow Street in Springfield, Ohio. After
the investigating officers arrived at the scene, they observed the subject vehicle stopped
in front of a house on Sherman Avenue; the officers parked their police cruisers both at
the front and rear of the vehicle. When one of the officers attempted to exit his cruiser
to approach the vehicle, the driver, later identified as Gilbreath, put the vehicle into
reverse and hit the back of the cruiser, causing the officer to have to jump back into the
cruiser to avoid being hit. After hitting the police cruiser, Gilbreath drove away and led
the officers on a high-speed chase until he crashed into a vehicle parked on West Euclid
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Avenue. Gilbreath then exited the vehicle and attempted to flee on foot, but he was
apprehended and arrested by the officers.
{¶ 4} On June 14, 2018, Gilbreath, who was represented by counsel, entered a
guilty plea to a reduced charge of attempted felonious assault of a peace officer in
violation of R.C. 2903.11(A)(2) and R.C. 2923.02, a felony of the second degree. In
exchange for his guilty plea, the State agreed to dismiss the other charges and to have a
presentence investigation (“PSI”) conducted prior to sentencing. After conducting a plea
colloquy in compliance Crim.R. 11, the trial court accepted Gilbreath’s guilty plea and
found him guilty of attempted felonious assault of a peace officer. The trial court then
referred the case to the adult probation department for a PSI and scheduled the matter
for sentencing. On July 26, 2018, the trial court sentenced Gilbreath to eight years in
prison for the single count of attempted felonious assault of a peace officer. Gilbreath
appealed from his conviction, which this court affirmed in State v. Gilbreath, 2d Dist. Clark
No. 2018-CA-91, 2019-Ohio-642.
{¶ 5} Over a year later, on June 11, 2020, Gilbreath filed a pro se motion to
withdraw his guilty plea; a supporting affidavit and the police report were attached to the
motion. In the motion, Gilbreath argued that his guilty plea should be vacated based on
ineffective assistance of counsel. Specifically, Gilbreath argued that his trial counsel
provided ineffective assistance because counsel induced him to plead guilty to attempted
felonious assault of a peace officer, an offense which Gilbreath claimed he could not have
been convicted of at trial. Gilbreath claimed that he could not have been convicted of
attempted felonious assault because the police report showed that he was acting “under
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a sudden fit of rage or passion” during the incident in question due to his fear of being
apprehended by the police. Because of this, Gilbreath claimed that the evidence would
have established that he had committed the lesser offense of attempted aggravated
assault under R.C. 2903.12(A)(2) and R.C. 2923.02, and therefore he should not have
been advised to plead guilty to attempted felonious assault of a peace officer. The trial
court, however, found that Gilbreath had failed to demonstrate a manifest injustice
warranting the withdrawal of his guilty plea and denied Gilbreath’s motion without an
evidentiary hearing.
{¶ 6} Gilbreath now appeals from the trial court’s decision denying his post-
sentence motion to withdraw guilty plea, raising a single assignment of error for review.
Assignment of Error
{¶ 7} Gilbreath contends that the trial court erred by denying his post-sentence
motion to withdraw his guilty plea. We disagree.
{¶ 8} Appellate courts review a trial court’s ruling on a motion to withdraw a guilty
plea for abuse of discretion. State v. Rozell, 2018-Ohio-1722, 111 N.E.3d 861, ¶ 25 (2d
Dist.), citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977), paragraph
two of the syllabus. “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Most instances of abuse of
discretion occur when a trial court makes a decision that is unreasonable. AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
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N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process
that would support that decision.” Id. “ ‘Absent an abuse of discretion on the part of the
trial court * * *, its decision must be affirmed.’ ” State v. Ogletree, 2d Dist. Clark No.
2014-CA-16, 2014-Ohio-3431, ¶ 11, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992).
{¶ 9} “Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea
after imposition of sentence only to correct a manifest injustice.” (Citations omitted.)
State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-4769, ¶ 11. The burden
to prove the existence of a manifest injustice in a post-sentence motion to withdraw a plea
rests upon the defendant. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),
paragraph one of the syllabus; State v. Turner, 171 Ohio App.3d 82, 2007-Ohio-1346,
869 N.E.2d 708, ¶ 20 (2d Dist.). The defendant “ ‘must establish a reasonable likelihood
that withdrawal of his plea is necessary to correct a manifest injustice before a trial court
must hold a hearing on his motion.’ ” Ray at ¶ 14, quoting State v. Stewart, 2d Dist.
Greene No. 2003-CA-28, 2004-Ohio-3574, ¶ 6.
{¶ 10} A defendant may establish a manifest injustice “ ‘by showing that he did not
enter the guilty plea in a knowing, intelligent, or voluntary manner.’ ” State v. Leifheit, 2d
Dist. Clark No. 2019-CA-78, 2020-Ohio-5106, ¶ 16, quoting State v. Riley, 4th Dist.
Washington No. 16CA29, 2017-Ohio-5819, ¶ 18. (Other citations omitted.) “To ensure
that a defendant is entering a felony plea knowingly, intelligently, and voluntarily, the trial
court must engage the defendant personally and explain the rights set forth in Crim.R.
11(C)(2) before accepting the plea.” State v. Harris, 2d Dist. Clark No. 2020-CA-29,
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2021-Ohio-1431, ¶ 8, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 27.
{¶ 11} In this appeal, Gilbreath does not specifically argue that the trial court failed
to engage him personally and explain the rights set forth in Crim.R. 11(C)(2) during his
plea hearing. Indeed, the record of the plea hearing establishes that the trial court
complied with all the requirements under Crim.R. 11(C)(2). Gilbreath does, however,
attempt to analogize the holdings in United States v. Stubbs, 279 F.3d 402 (6th Cir.2002)
and Smith v. United States, 400 F.2d 860 (6th Cir.1968), wherein the Sixth Circuit Court
of Appeals held that the defendants’ guilty pleas were not knowingly, intelligently, and
voluntarily entered because, at the plea hearing, the trial court provided misinformation
about the defendant’s potential sentence and/or failed to correct the defendant’s mistaken
belief about his potential sentence. Stubbs and Smith are clearly distinguishable from
this case given that the trial court did not provide Gilbreath with any misinformation at the
plea hearing and fully complied with Crim.R. 11(C)(2). Accordingly, Gilbreath’s reliance
on the holdings in Stubbs and Smith is improper.
{¶ 12} Gilbreath also argues that his guilty plea should have been vacated due to
his trial counsel’s providing ineffective assistance. It is well established that
“ ‘[i]neffective assistance of counsel can constitute manifest injustice sufficient to allow
the post-sentence withdrawal of a guilty plea.’ ” State v. Banks, 2d Dist. Montgomery
No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton, 153 Ohio App.3d 286, 2003-
Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). As previously discussed, Gilbreath argued
in his motion to withdraw his guilty plea that his trial counsel was ineffective because
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counsel induced him to plead guilty to attempted felonious assault of a peace officer
when, according to Gilbreath, he could not have been convicted of that offense at a trial,
because the police report of the incident in question contained facts establishing that he
had acted under a sudden fit of rage or passion, which supported a charge for attempted
aggravated assault, not attempted felonious assault.
{¶ 13} It is true that “ ‘felonious assault is reduced to aggravated assault if the
offender is ‘under the influence of sudden passion or in a sudden fit of rage * * * brought
on by serious provocation occasioned by the victim.’ ” State v. Conley, 2015-Ohio-2553,
43 N.E.3d 775, ¶ 33 (2d Dist.) quoting R.C. 2903.12(A). (Other citation omitted.). The
term “serious provocation” has been described as provocation that is “reasonably
sufficient to bring on extreme stress and * * * to incite or to arouse the defendant into
using deadly force.” State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),
paragraph five of the syllabus. “Classic examples of serious provocation are assault and
battery, mutual combat, illegal arrest and discovering a spouse in the act of adultery.”
State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 60, citing State v.
Shane, 63 Ohio St.3d 630, 635, 590 N.E.2d 272 (1992).
{¶ 14} Contrary to Gilbreath’s claim otherwise, the content of the police report in
question did not support the offense of attempted aggravated assault; the police report
did not establish serious provocation on the part of the investigating officers, as nothing
in the police report indicated that the officers engaged in conduct that would have incited
an ordinary person to use deadly force against them. The police report merely
established that the officers parked their cruisers at the front and rear of Gilbreath’s
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vehicle and that Gilbreath attempted to hit an officer with his vehicle as he fled the scene.
{¶ 15} Furthermore, Gilbreath fails to consider the fact that he was originally
charged with felonious assault of a peace officer, not attempted felonious assault of a
peace officer, and that there were several other charges brought against him, including
failure to comply with the order or signal of a police officer, vandalism, and obstructing
official business, for which he could have been tried and possibly found guilty.
Gilbreath’s trial counsel, however, negotiated a favorable plea agreement that resulted in
the State’s dismissal of the charges for failure to comply, vandalism, and obstructing
official business and reduction of the original charge of felonious assault to attempted
felonious assault. In doing so, Gilbreath’s trial counsel significantly lessened Gilbreath’s
sentencing exposure. Accordingly, we fail to see how counsel was ineffective in
negotiating Gilbreath’s guilty plea to attempted felonious assault of a peace officer.
{¶ 16} We also note that the affidavit Gilbreath attached to his motion to withdraw
his guilty plea merely averred that he would not have pled guilty to attempted felonious
assault of a peace officer but for his counsel’s advice. By itself, such a self-serving
affidavit is insufficient to demonstrate a manifest injustice warranting the withdrawal of his
guilty plea. State v. Honaker, 10th Dist. Franklin No. 04AP-146, 2004-Ohio-6256, ¶ 9,
citing State v. Laster, 2d Dist. Montgomery No. 19387, 2003-Ohio-1564 (“generally, a
self-serving affidavit or statement is insufficient to demonstrate manifest injustice”).
{¶ 17} For his final argument, Gilbreath contends that the trial court should have
allowed him to withdraw his guilty plea, or, at the very least, should have held an
evidentiary hearing on his motion to withdraw his guilty plea, based on: (1) the number of
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court-appointed counsels he received during this appeal; (2) the long duration of this
appeal;1 (3) the fact that he was only 19 years old at the time he entered his guilty plea;
and (4) because he received the maximum possible prison sentence for his offense.
{¶ 18} With regard to Gilbreath’s age, at no point in time did Gilbreath ever argue
before the trial court that his young age caused an issue that prevented him from
knowingly, intelligently, and voluntarily entering his guilty plea. “ ‘It is settled law that
issues raised for the first time on appeal and not having been raised in the trial court are
not properly before this court and will not be addressed.’ ” State v. Luther, 2d Dist.
Montgomery No. 28908, 2021-Ohio-2697, ¶ 21, quoting State v. Schneider, 2d Dist.
Greene No. 1995-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995). Therefore, because the
trial court was not given the opportunity to consider the claim that Gilbreath’s young age
affected the knowing, intelligent, and voluntary nature of his guilty plea, it will not be
addressed for the first time in this appeal. See State v. Becraft, 2017-Ohio-1464, 89
1 The record indicates that the long duration of this appeal is attributable to several
factors. On October 5, 2020, Gilbreath filed a motion to file a delayed appeal from the
trial court’s judgment denying his motion to withdraw guilty plea, which this court granted.
Gilbreath was thereafter appointed an appellate counsel who requested multiple
extensions to file an appellate brief due to issues with receiving the transcripts of the
proceedings. Once counsel received the transcripts, counsel moved to withdraw from
representing Gilbreath due to a conflict of interest, as counsel had been contracted as a
part-time prosecuting attorney for a local municipality. As a result, this court granted
counsel’s motion to withdraw and appointed Gilbreath new counsel on June 3, 2021.
Gilbreath’s new counsel thereafter requested an extension of time to file an appellate brief
and eventually filed a brief on September 13, 2021. In the appellate brief, counsel did
not address the correct order appealed from, as the brief contained assignments of error
raising sentencing issues that pertained to the original judgment of conviction, which had
already been affirmed by this court. As a result, this court removed Gilbreath’s second
appointed counsel and appointed a third counsel to file a new appellate brief on
Gilbreath’s behalf. Gilbreath’s third counsel thereafter requested three extensions to file
a brief, which this court granted. Gilbreath’s third counsel then filed appellate brief on
June 27, 2022, and the State filed a response on August 3, 2022.
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N.E.3d 218, ¶ 58 (2d Dist.).
{¶ 19} All of the other circumstances argued by Gilbreath, i.e., the number of
appellate counsels appointed in his case, the long duration of this appeal, and the fact
that he received the maximum possible prison sentence, have no bearing on the validity
of his guilty plea, as those matters could not have affected the knowing, intelligent, and
voluntary nature of his plea. In fact, when ruling on Gilbreath’s motion to withdraw his
guilty plea, it would have been impossible for the trial court to even consider the number
of appellate counsels appointed to Gilbreath or the duration of this appeal, since the
appeal was not even in existence at the time the trial court ruled on Gilbreath’s motion.
{¶ 20} For the foregoing reasons, we find that the trial court did not abuse its
discretion in denying Gilbreath’s motion to withdraw his guilty plea. The record
establishes that the trial court reasonably determined that Gilbreath failed to demonstrate
a manifest injustice warranting the withdrawal of his plea. Accordingly, Gilbreath’s
assignment of error is overruled.
Conclusion
{¶ 21} Having overruled Gilbreath’s sole assignment of error, the judgment of the
trial court is affirmed.
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DONOVAN, J. and EPLEY, J., concur.
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Copies sent to:
Ian A. Richardson
Thomas M. Kollin
Hon. Douglas M. Rastatter