State v. Hill

[Cite as State v. Hill, 2023-Ohio-373.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111554
v. :

DEVONTA HILL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 9, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-619532-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.

Patituce & Associates, LLC, Mallorie A. Thomas, Megan
M. Patituce, and Joseph C. Patituce, for appellant.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant Devonta Hill appeals the judgment of the Cuyahoga County

Court of Common Pleas denying his motion to withdraw guilty plea. After a
thorough review of the applicable law and facts, we affirm the judgment of the trial

court.

I. Factual and Procedural History

The underlying procedural facts of this matter were outlined in State v.

Hill, 8th Dist. Cuyahoga No. 111288, 2019-Ohio-1647 (“Hill I”):

[Appellant] entered guilty pleas in Cuyahoga C.P. Nos. CR-17-620652-
A, CR-17-619532-A, CR-17-614209-A, and CR-17-615444-B. Appellant
was represented by retained counsel in all four cases.

After pretrial negotiations, appellant pled guilty to amended
indictments in all four cases on March 5, 2018. The trial court accepted
appellant’s guilty pleas to the four amended indictments, ordered a
presentence investigation report, and scheduled the matter for
sentencing on April 11, 2018. The sentencing hearing was rescheduled
a total of four times, in part because the trial court indulged appellant’s
attempts to rally witnesses on his behalf. According to appellant, these
witnesses were to provide evidence of appellant’s innocence in
Cuyahoga C.P. No. CR-17-619532-A (“619532”).

In 619532, on August 15, 2017, the Cuyahoga County Grand Jury
indicted appellant in a five-count indictment. The indictment included
Counts 1 and 2, rape, in violation of R.C. 2907.02(A)(2), first-degree
felonies, with firearm specifications in violation of R.C. 2941.141(A), a
notice of prior conviction specification in violation of R.C.
2929.13(F)(6), and a repeat violent offender specification in violation
of R.C. 2941.149(A); Count 3, kidnapping, in violation of R.C.
2905.01(A)(4), a first-degree felony, with a firearm specification in
violation of R.C. 2941.141(A), a sexual motivation specification in
violation of R.C. 2941.147(A), a notice of prior conviction specification
in violation of R.C. 2929.13(F)(6), and repeat violent offender
specification in violation of R.C. 2941.149(A); Count 4, gross sexual
imposition, in violation of R.C. 2907.05(A)(4), a third-degree felony;
and Count 5, having weapons while under a disability, in violation of
R.C. 2923.13(A)(2), a third-degree felony.

On May 9, 2018, after previously rescheduling the sentencing hearing
three times, appellant’s counsel addressed the trial court and stated
that appellant expressed to him that he wished to withdraw his guilty
plea in 619532.
 [APPELLANT’S COUNSEL]: [A]fter [appellant] entered
his plea we became aware of a situation that might allow
me to present a credible defense with regard to the rape
case based on —

THE COURT: That is 619532.

[APPELLANT’S COUNSEL]: That is correct. As soon as I
found out that that opportunity may have arisen in the
form of a witness that I needed to speak with, I was
informed by the county jail that that person had left jail
and was capiased. Not being able to put anything credible
before the [c]ourt with regard to a motion, I was prepared
and was talking to [appellant] today about going forward
with the sentencing.

When I found out for the first time that the gentleman in
question was picked up on his warrant and is capiased in
the state of Michigan and was returned to county jail as of
Saturday, I did not know he was in custody on Monday or
Tuesday. So I’m asking for one last opportunity to speak
with him, and it’s my understanding that — or my request
that I be given a very brief window in between my client,
his family, and the opportunity to mount a defense or put
together a motion in good faith that I can present before
this [c]ourt. I’m asking that we wrap this up and I be given
till Monday to have that happen.

***

The trial court then granted appellant’s counsel’s request for a
continuance, and the matter was again rescheduled for sentencing on
May 14, 2018.

Appellant was apparently unsuccessful in his attempts to locate these
witnesses. On May 14, 2018, the subject of appellant’s motion to
withdraw his plea was again discussed.

[APPELLANT’S COUNSEL]: I think at this moment the
record should reflect the [c]ourt’s patience and
understanding with regard to attempts by my client to
have me offer on his behalf a bona fide motion to withdraw
the plea on at least three occasions. The [c]ourt’s
continued the sentencing in order to accommodate
supposed witnesses that were to surface in jail, one who
was capiased for a while.

And most recently, I was given the date of Friday to file in
good faith to give the [s]tate of Ohio time to prepare,
should that discussion be pertinent to today. As the
docket reflects, and the [c]ourt is aware, I could not file
that motion in good faith so it was not offered, and we’re
here today.

That being said, on more than one occasion, each time in
getting ready for sentencing, I have reviewed the
presentence investigation. I find no major additions or
corrections. I’ve made every effort with regard to what I
can do from my perspective to find the supposed witnesses
that were to provide exculpatory testimony with regard to
at least the rape case.

That being said, my client, he’s here with family: Mom,
grandfather. I’ve known [appellant] for several years; this
isn’t the first case — cases that I’ve represented him on.
They’ve always been there for him. I believe the family
and I have done all that we can. I know that [appellant]
wants to be heard in mitigation. I’m really sorry that we’re
at this crossroads in his life and that he didn’t make better
choices. I guess the rest of what has to be said is best said
by him.

[APPELLANT]: Your Honor, well, I been thinkin’ for the
past couple court dates, I been tryin’ to withdraw my plea.
The most recent reason why I was tryin’ to withdraw my
plea, I had a witness or whatever and he got arrested, and
he said the detectives came to him and told him, basically
talk him into not comin’ into court, sayin’ he couldn’t
come and basically threaten him on his case that he had.

Also I feel that I’m not guilty, on none of the charges I
copped out to. Every sentencin’ date I been tryin’ to get in
here to withdraw my plea. The day I did cop out to my
plea, I couldn’t even really — I didn’t even really
comprehend, until I got back to my cell, look at my court
docket see all the charges I copped out to. It’s like I’m
throwin’ my life away. I feel this ain’t the right — this ain’t
the right way of me goin’ on about this case.
 I want to start trial. I got more witnesses on my behalf
that’s willin’ to come. That’s where I’m at right now.

THE COURT: [Prosecuting attorney]?

[PROSECUTING ATTORNEY]: Yes, your Honor. In
terms of the defendant’s what appears like his request to
withdraw his plea, your Honor, * * * the standard is
knowingly, intelligently, and voluntarily entered into,
[y]our [h]onor. At all points in time, this [c]ourt went
through a detailed colloquy with [appellant] to ensure that
he understood his change of plea, understood the charges
that he was changing his plea to, the potential penalties of
a plea, and I believe this [c]ourt also asked him if that
entering into a plea was voluntary. At that point in time,
[appellant] indicated that he understood.

This [c]ourt answered any questions that [appellant]
posed at that time, and [appellant] entered into the change
of plea, [y]our [h]onor. So the [s]tate would object to any
withdrawal of plea at this time.

Hill I at ¶ 2-6.

The trial court did not rule on appellant’s request to withdraw his plea

and proceeded to sentencing. The trial court sentenced appellant on all four cases

to an aggregate prison term of 13 years. Appellant appealed his conviction and

sentence, arguing as error that the trial court abused its discretion by failing to hold

a hearing on his oral motion to withdraw his guilty plea.

This court affirmed the judgment of the trial court, finding that the trial

court did not err in declining to hold a hearing on appellant’s motion. Appellant

made his request on his own, and his counsel did not join in the motion. The panel

determined that the trial court could not entertain his pro se motion while appellant

was represented by counsel and therefore properly denied the motion. Hill I at ¶ 14.
 Sometime after the disposition of appellant’s cases, appellant’s trial

counsel, Michael Cheselka (“Cheselka”), was suspended from the practice of law by

the Supreme Court of Ohio, based upon multiple instances of professional

misconduct during his representation of six clients. Disciplinary Counsel v.

Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d 534. Cheselka ultimately

resigned from the practice of law in 2021. In re Resignation of Cheselka, 164 Ohio

St.3d 1227, 2021-Ohio-236, 173 N.E.3d 518.

Nearly three years after Hill I was decided, appellant filed a new motion

to withdraw plea, arguing that he had newly discovered evidence that he was subject

to ineffective assistance of counsel with regard to his plea. Appellant asserted that

the suspension and later resignation of Cheselka for professional misconduct

constituted newly discovered evidence with regard to his case.

The state opposed the motion, and the trial court denied it without

analysis. Appellant then filed the instant appeal, raising two assignments of error

for our review:

1. The trial court abused its discretion in denying appellant’s motion to
withdraw plea pursuant to Crim.R. 32.1 based on the holding in State
ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio
St.2d 94, 378 N.E.2d 162 (1978), which directly conflicts with the 2011
Ohio Supreme Court decision in State v. Davis, 131 Ohio St.3d 1, 2011-
Ohio-5028, 959 N.E.2d 516, which clarified that the Special
Prosecutors does not apply to postconviction motions permitted
pursuant to the Ohio Rules of Criminal Procedure.

2. The trial court abused its discretion by denying appellant’s motion
to withdraw plea based on the ineffective assistance of counsel
supported by newly discovered evidence.
 II. Law and Analysis

Appellant’s assignments of error are intertwined; therefore, we shall

address them together. In his motion to withdraw plea, appellant asserted that his

counsel’s representation was “so procedurally deficient * * * that it resulted in the

inducement of his guilty plea based upon erroneous, deceiving, and wholly

inaccurate ‘legal advice.’” Specifically, appellant argued that Cheselka advised him

that appellant’s DNA had been found in the victim’s anal cavity but the DNA report

shows that there was no foreign DNA collected from the victim’s anal swabs.

Appellant maintains, albeit without any supporting evidence, that Cheselka showed

him a DNA report for an entirely different defendant. Appellant asserts that he

denied the veracity of the DNA results but because of his counsel’s advice, he felt he

had no choice but to plead guilty. He contends that his plea was consequently

involuntary because it was based upon Cheselka’s incompetent and materially false

legal advice.

In addition to the DNA report issue, appellant asserts that Cheselka

made further erroneous statements regarding his ability to go to trial on only one

case and failed to advise him that the other cases could have not been joined.

Appellant further argues that Cheselka was ineffective for failing to subpoena, or

even speak to, his alibi witnesses. Finally, appellant contends that Cheselka was

ineffective for failing to file a presentence motion to withdraw his plea.

We review a trial court’s decision regarding a defendant’s

postsentence motion to withdraw a guilty plea under an abuse-of-discretion
standard. State v. Simmons, 8th Dist. Cuyahoga No. 109786, 2021-Ohio-1656, ¶ 19.

An abuse of discretion occurs when a court exercises its judgment in an unwarranted

way regarding a matter over which it has discretionary authority. Johnson v.

Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Such an

abuse “‘“implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.”’” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135,

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

quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

A motion to withdraw a guilty plea is governed by Crim.R. 32.1. This

rule provides, “A motion to withdraw a plea of guilty * * * may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may

set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.” “The defendant bears the burden of establishing the existence of ‘manifest

injustice.’” State v. Hobbs, 8th Dist. Cuyahoga No. 109706, 2021-Ohio-852, ¶ 6,

citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of

the syllabus. “Manifest injustice is ‘a clear or openly unjust act,’” “that is evidenced

by ‘an extraordinary and fundamental flaw in the plea proceeding.’” Simmons at

¶ 20, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d

83 (1998); State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and 104641,

2017-Ohio-1049, ¶ 30.

In his first assignment of error, appellant appears to argue that the

trial court erred in denying his motion on the grounds that it lacked jurisdiction to
consider it. As noted above, the trial court denied appellant’s motion without

analysis and thus we do not know if the grounds for denial were jurisdictional or on

its merits. Regardless, we find that the trial court did not have jurisdiction to

consider the motion.

This court has consistently held that, pursuant to State ex rel. Special

Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162

(1978), a trial court has no jurisdiction to entertain a defendant’s motion to

withdraw the plea under Crim.R. 32.1 after an appellate court affirms the

defendant’s convictions. The Supreme Court of Ohio held in Special Prosecutors

that

Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw the guilty plea subsequent to an
appeal and an affirmance by the appellate court. While Crim.R. 32.1
apparently enlarges the power of the trial court over its judgments
without respect to the running of the court term, it does not confer
upon the trial court the power to vacate a judgment which has been
affirmed by the appellate court, for this action would affect the decision
of the reviewing court, which is not within the power of the trial court
to do.

Id. at 97.

Hill I was appellant’s direct appeal of his conviction and sentence.

While the only issue raised by appellant was whether the trial court failed to hold a

hearing on appellant’s oral motion to withdraw his guilty plea and failed to assert

any arguments regarding his plea, the opinion still constituted an affirmance of

appellant’s convictions and sentence. After this court affirmed appellant’s
convictions, the trial court had no jurisdiction to consider his subsequent motion to

withdraw plea.

Appellant argues that Special Prosecutors conflicts with State v.

Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, and encourages us to

follow Davis. We disagree that the cases conflict; this court has already held that

Davis only applies to motions for a new trial. See State v. Lawson, 8th Dist.

Cuyahoga No. 111288, 2022-Ohio-3332. As explained by this court in Lawson:

In [Davis], appellant filed a motion for a new trial under Crim.R. 33
based on newly discovered evidence, which consisted of the affidavit of
a DNA expert opining that the state’s DNA evidence was questionable.
The court of appeals, relying on Special Prosecutors, held that the trial
court did not have jurisdiction to entertain Davis’s motion for a new
trial after his conviction had been affirmed on appeal. The Supreme
Court of Ohio disagreed, explaining that “Special Prosecutors does not
bar the trial court’s jurisdiction over posttrial motions permitted by the
Ohio Rules of Criminal Procedure.” It held that “a trial court retains
jurisdiction to decide a motion for a new trial based on newly
discovered evidence when the specific issue has not been decided upon
direct appeal.” Id. at ¶ 37.

In the wake of Davis, the appellate courts were confronted with the
question of whether Davis, which concerns a motion for new trial,
could be applied to a motion to withdraw a guilty plea. Several districts,
including this district, found the word “posttrial” significant and
determined Davis only applied to a motion for a new trial. See, e.g.,
State v. Panning, 3d Dist. Van Wert No. 15-15-11, 2016-Ohio-3284;
State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550; State
v. Perry, 8th Dist. Cuyahoga No. 107596, 2019-Ohio-547; and State v.
Crangle, 9th Dist. Summit No. 25735, 2011-Ohio-5776.

Id. at ¶ 10-11.

Because the instant matter involved a motion to withdraw plea under

Crim.R. 32.1 rather than a motion for a new trial, Davis does not have any bearing

on this matter. As noted in Lawson, even if we were to apply Davis to the instant
matter, appellant must have presented “newly discovered evidence” where “the

specific issue was not decided upon direct appeal.” Id. at ¶ 17, quoting Davis at ¶ 37.

Appellant did not submit any “newly discovered evidence.” The only

evidence presented by appellant in support of his motion was his own self-serving

affidavit and a lab report. The allegations in appellant’s affidavit detailing his

complaints about Cheselka’s representation were known to him at the time of his

conviction and sentencing and certainly at the time for his direct appeal. While he

states that he learned “later” that his DNA was not found in the victim’s anal cavity,

as Cheselka had told him, appellant does not provide any further evidence in

support of this assertion. Moreover, appellant makes no showing as to how

Cheselka’s suspension and later resignation constituted “newly discovered

evidence” relating to his case. Appellant did not file a grievance against Cheselka,

and thus any of the disciplinary proceedings had no bearing on appellant’s case.

Both of appellant’s assignments of error are overruled, and the

judgment of the trial court is affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION)

MARY EILEEN KILBANE, J., DISSENTING:

I respectfully dissent from the majority opinion. I would find that the

suspension of Devonta Hill’s attorney, pursuant to Cheselka, 159 Ohio St.3d 3, 2019-

Ohio-5286, 146 N.E.3d 534, and his related resignation as addressed in In re

Resignation of Cheselka, 164 Ohio St.3d 1227, 2021-Ohio-236, 173 N.E.3d 518,

constituted “newly discovered evidence” “of an issue not determined in Hill’s direct

appeal.” Lawson, 8th Dist. Cuyahoga No. 111288, 2022-Ohio-3332, at ¶ 17.

Hill filed his first appeal on June 11, 2018, and argued the trial court

abused its discretion when it failed to hold a hearing on Hill’s oral motion to

withdraw his presentence guilty plea. The Cheselka decision, which was released on

December 24, 2019, found “Cheselka acted with a dishonest or selfish motive,

committed multiple offenses, engaged in a pattern of misconduct, failed to

cooperate in the disciplinary process, submitted false statements in the disciplinary

process, refused to acknowledge the wrongful nature of his conduct, caused harm to

vulnerable clients, and failed to make restitution.” Cheselka at ¶ 29.
 I would find that Cheselka’s pattern of misconduct amounted to “newly

discovered evidence,” and the trial court erred in denying Hill’s motion to withdraw

his postsentence guilty plea. For these reasons, I respectfully dissent.