[Cite as State v. West, 2017-Ohio-8474.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28668
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JASON WEST COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2014-10-3052
DECISION AND JOURNAL ENTRY
Dated: November 8, 2017
HENSAL, Presiding Judge.
{¶1} Jason West appeals a judgment of the Summit County Court of Common Pleas
that dismissed his petition for post-conviction relief. For the following reasons, this Court
affirms.
I.
{¶2} Mr. West pleaded guilty to 17 counts of telecommunications harassment, one
count of menacing by stalking, one count of obstruction of official business, two counts of
intimidation of a crime victim or witness, and one count of intimidation. The trial court
sentenced him to a total of 10 years imprisonment. This Court upheld his convictions on appeal,
but vacated his sentence in part and remanded the matter so that the trial court could properly
impose post-release control. Meanwhile, Mr. West petitioned for post-conviction relief, arguing
that his trial counsel were ineffective, that he should be allowed to withdraw his guilty pleas, that
he was deprived of the right to a fair and unbiased trial, and that a certain investigator should not
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have been allowed to work on his case. The trial court dismissed Mr. West’s petition,
concluding that his claims were without merit and barred under the doctrine of res judicata. Mr.
West has appealed, assigning five errors. We have rearranged and combined some of the
assignments of error for ease of discussion.
II.
ASSIGNMENT OF ERROR II
COURT ERRED IN DENYING POST-CONVICTION RELIEF CLAIM FOR
WITHDRAWAL OF GUILTY PLEA.
{¶3} Mr. West argues that his trial counsel’s ineffectiveness deprived him of the
opportunity to withdraw his plea before sentencing. He, therefore, argues that his petition for
post-conviction relief should be granted and that he be allowed to withdraw his plea. “[A] trial
court’s decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21
should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial
court’s finding on a petition for postconviction relief that is supported by competent and credible
evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.
{¶4} To prevail on a claim of ineffective assistance of counsel, Mr. West must
establish (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but
for his counsel’s deficient performance the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls
below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136
(1989), paragraph two of the syllabus. A court, however, “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the challenged
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action ‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955). In addition, to establish prejudice, Mr. West must show that
there existed a reasonable probability that, but for counsel’s errors, the outcome of the
proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶
138.
{¶5} According to Mr. West, before his sentencing hearing, he told his attorney that he
wanted to withdraw his plea. His attorney allegedly spoke to the trial judge about it in chambers
and was told that the request was denied and that Mr. West would have to raise the issue on
appeal. Mr. West contends that, when he attempted to speak during the sentencing hearing, his
attorney silenced him. He also contends that his appellate counsel refused to argue the issue on
appeal because there was no record of the conversation in chambers and no motion to withdraw
was made during the sentencing hearing. In support of his argument, Mr. West submitted an
affidavit from his wife that corroborated Mr. West’s recounting of his conversation with his
attorney after the attorney spoke to the trial judge in chambers.
{¶6} We will begin by examining whether Mr. West was prejudiced by his counsel’s
representation because it is dispositive. Criminal Rule 32.1 provides that “[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.” “A motion made pursuant to Crim.R. 32.1 is
addressed to the sound discretion of the trial court * * *.” State v. Smith, 49 Ohio St.2d 261
(1977), paragraph two of the syllabus. “At the same time, the extent of the trial court’s exercise
of discretion * * * is determined by the particular provisions that govern the motion the
defendant is proceeding under * * *.” State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶
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33. “[A] presentence motion to withdraw a guilty plea should be freely and liberally granted.”
State v. Xie, 62 Ohio St.3d 521, 527 (1992). “Nevertheless, * * * a defendant does not have an
absolute right to withdraw a plea prior to sentencing.” Id. He must demonstrate that he has “a
reasonable and legitimate basis for the withdrawal of the plea.” Id.
{¶7} In his petition and appellate brief, Mr. West has not provided any explanation of
the reason he wanted to withdraw his plea before the sentencing hearing. He has not alleged that
he discovered some new information following his plea hearing or that the trial court did not
comply with Criminal Rule 11(C) at that hearing. A mere change of heart is not a legitimate
basis for the withdrawal of a guilty plea. State v. Brown, 9th Dist. Summit No. 23759, 2007-
Ohio-7028, ¶ 23. Upon review of the record, we conclude that Mr. West has not established that
there is a reasonable probability that the outcome of his proceeding would have been different if
his lawyer had moved to withdraw his plea at the sentencing hearing. The trial court, therefore,
did not abuse its discretion when it dismissed that part of his petition for post-conviction relief.
Mr. West’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
COURT ERRED IN DENYING POST-CONVICTION RELIEF USING THE
DOCTRINE OF RES JUDICATA.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT DENIED POST CONVICTION
RELIEF MOTION IN REGARDS TO THE VIOLATION OF THE RIGHT TO A
FAIR AND UNBIASED TRIAL BASED ON THE FACT THAT A VICTIM
WAS ALLOWED TO REMAIN AS THE CHIEF INVESTIGATOR AND THE
INVESTIGATOR WAS ALLOWED TO REMAIN AFTER THE OFFICE HE
WAS EMPLOYED BY WAS REMOVED.
{¶8} In his first assignment of error, Mr. West argues that the trial court incorrectly
determined that his arguments were barred under the doctrine of res judicata. Specifically, he
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asserts that he could not have argued whether his trial counsel was ineffective for not moving to
withdraw his plea on direct appeal because it relied on evidence that was outside the record. He
also asserts that his argument regarding one of the investigators who worked on his case was not
barred by res judicata. In his third assignment of error, Mr. West argues that the investigator
should have been removed from his case because he was one of the victims of the alleged
offenses and because he worked for the Summit County Prosecutor’s Office, which had been
ordered to recuse itself from the case.
{¶9} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of due process
that was raised or could have been raised * * * on an appeal from that judgment.” State v.
Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Regarding Mr. West’s ineffective-assistance-of-
counsel argument, we conclude that, because his argument was without merit for the reasons
explained earlier, any error in the trial court’s res judicata determination was harmless. See
Civ.R. 61.
{¶10} Regarding Mr. West’s investigator-recusal argument, Mr. West has not explained
why he could not have made this argument on direct appeal. To the contrary, he acknowledges
that “this was addressed with the recusal of the Summit County Prosecutors Office.” He also
acknowledges that “the matter of [the investigator] being a victim * * * was brought up in the
direct appeal.” Upon review of the record, we conclude that Mr. West has failed to establish that
the trial court incorrectly determined that his argument that the investigator should have been
removed was not barred under the doctrine of res judicata. The trial court, therefore, did not
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abuse its discretion when it dismissed those parts of his petition for post-conviction relief. Mr.
West’s first and third assignments of error are overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT DENIED MOTION FOR POST
CONVICTION RELIEF IN REGARDS TO THE VIOLATION OF RIGHTS
THROUGH INEFFECTIVE ASSISTANCE OF BOTH COUNSELS.
{¶11} In his fifth assignment of error, Mr. West argues that both his first and second
trial counsel were ineffective. Regarding his first attorney, Mr. West argues that, if the attorney
had performed better, he would not have moved to withdraw his first guilty plea. His attorney,
however, allegedly was unprepared for the size of the audience that was at his sentencing
hearing, causing Mr. West to move to withdraw his plea. According to Mr. West, if he had not
withdrawn his guilty plea at that time, he would not have faced the additional charges that were
filed against him after he withdrew the plea. Regarding his second attorney, Mr. West argues
that he failed to file a motion for change of venue because a fair trial was not possible in Summit
County. He also argues that his attorney should have moved to have the lead investigator
removed from his case. He further argues that his second attorney failed to go over discovery
with him, failed to develop a defense, and failed to move to withdraw his plea at the sentencing
hearing.
{¶12} Although Mr. West alleges that his attorney should have filed additional motions
on his behalf, he has not demonstrated that there is a reasonable probability that any of them
would have been granted. He has also not alleged that, but for his attorneys’ deficient conduct,
he would not have pleaded guilty to the charges filed against him. He also has not pointed to
anything in the record that suggests that additional charges would not have been filed against
him if he had not withdrawn his initial guilty plea. Even if those offenses had not been added to
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this case in a supplemental indictment, they could have been filed against him in a separate
action. Accordingly, upon review of the record, we conclude that Mr. West has not established
that he was prejudiced by his attorneys’ alleged deficiencies. The trial court did not abuse its
discretion when it dismissed his petition for post-conviction relief with respect to any of these
claims. Mr. West’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY DENYING A MOTION FOR POST
CONVICTION RELIEF WHICH CONTAINED SUFFICIENT EVIDENCE OF
SUBSTANTIVE GROUNDS FOR THAT RELIEF WITHOUT HOLDING A
HEARING.
{¶13} Mr. West also argues that the trial court should have held a hearing on his petition
before dismissing it, citing Section 2953.21(C). Interpreting that section, the Ohio Supreme
Court has explained that “[a]n evidentiary hearing is not automatically guaranteed each time a
defendant files a petition for postconviction relief.” State v. Broom, 146 Ohio St.3d 60, 2016-
Ohio-1028, ¶ 29. “A trial court has the discretion to deny a postconviction petition without
discovery or an evidentiary hearing if the petition, supporting affidavits, documentary evidence,
and trial record do not demonstrate ‘sufficient operative facts to establish substantive grounds for
relief.’” Id., quoting State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the syllabus.
“To warrant an evidentiary hearing in a postconviction proceeding, a petitioner must submit
evidence outside the record that sufficiently establishes that the petitioner is entitled to relief on
one or more asserted constitutional grounds.” Id.
{¶14} In support of his argument that the trial court should have held a hearing, Mr.
West points to his ineffective assistance of counsel arguments and his argument about the
investigator of his case. This Court has already determined that those arguments were either
barred by res judicata or without merit. We, therefore, conclude that the trial court exercised
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appropriate discretion when it declined to hold an evidentiary hearing on Mr. West’s petition.
Mr. West’s fourth assignment of error is overruled.
III.
{¶15} Mr. West’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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SCHAFER, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JASON WEST, pro se, Appellant.
MIKE DEWINE, Attorney General, and MICAH R. AULT, Assistant Attorney General, for
Appellee.