State v. Kennedy

[Cite as State v. Kennedy, 2026-Ohio-4364.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No. 31900 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE ANTHONY D. KENNEDY, SR. AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 00CRB14514 DECISION AND JOURNAL ENTRY Dated: November 4, 2026 FLAGG LANZINGER, Judge. {¶1} Defendant-Appellant Anthony Kennedy, Sr. appeals, pro se, from the judgment of the Akron Municipal Court, denying his post-sentence motion to withdraw his guilty plea. This Court affirms. I. {¶2} In 2000, Kennedy pleaded guilty to sexual imposition, a misdemeanor of the third degree. He was sentenced to 120 days in a misdemeanant facility. There is nothing in the record that evidences he ever appealed the conviction. {¶3} In 2026, Kennedy filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. Therein, Kennedy asserted that the destruction and/or loss of the record in the case prevented meaningful review of whether his plea was entered knowingly, voluntarily, and intelligently. Kennedy contended that, without that record, there was no evidence that the trial court complied with the law during the plea colloquy. Thus, Kennedy maintained he was entitled to withdraw his  2 plea. Kennedy requested a hearing. Kennedy submitted an affidavit in support of his motion detailing the lack of a record, describing his attempts to obtain the record, and providing his version of the facts surrounding the incident that led to his conviction. Kennedy did not offer any facts pertaining to his plea hearing or the surrounding proceedings. The trial court summarily denied the motion the following day. {¶4} Kennedy has appealed, raising three assignments of error for our review. II. ASSIGNMENT OF ERROR I THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT’S CRIM.R. 32.1 MOTION WHERE MATERIAL PLEA RECORDS NO LONGER EXIST. {¶5} Kennedy argues in his first assignment of error, in a conclusory fashion, that the trial court abused its discretion by denying his motion to withdraw his plea when the records pertaining to his plea no longer exist thereby impairing meaningful review. {¶6} Crim.R. 32.1 governs the withdrawal of a guilty plea, providing that, “[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 plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. “The term ‘manifest injustice’ has been described as a clear or openly unjust act.” (Internal quotations and citations omitted.) State v. Cottrell, 2026-Ohio-2228, ¶ 13 (9th Dist.). “A post-sentence withdrawal of a plea is only permissible under extraordinary cases where a defendant has established that a fundamental flaw in the proceedings caused a miscarriage of justice or resulted  3 in proceedings that did not comport with the constitutional demands of due process.” State v. Gordon, 2023-Ohio-2754, ¶ 12 (9th Dist.). “An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” Smith at paragraph three of the syllabus. {¶7} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by that court.” Smith at paragraph two of the syllabus. An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶8} Here, Kennedy has not met his burden on appeal to demonstrate that the trial court abused its discretion in denying his post-sentence motion to withdraw his guilty plea. While it is true that there are no filings in the record explaining the absence of almost all of the record from the time of the plea and sentencing, given that over 25 years passed from the date of Kennedy’s sentence to the date when he filed his motion to withdraw his guilty plea, it is reasonable to assume that the records were destroyed pursuant to a records retention policy.1 See Akron Mun. Court, Loc.R. 11 and Appendix E. This is particularly likely given that the same is insinuated in a document from the court reporter attached to Kennedy’s affidavit filed in the trial court in support of his motion. Accordingly, it is also reasonable to conclude that, had Kennedy filed his motion to withdraw his guilty plea within a reasonable time, he would not be in this situation. See Smith at paragraph three of the syllabus. 1 We note that Kennedy did not argue below or on appeal that there was a failure to comply with the records retention policy or that the policy was unlawful.  4 {¶9} In the trial court, Kennedy developed no argument detailing any flaws in the plea proceedings, let alone any that would rise to the level of demonstrating a manifest injustice. Kennedy appeared to argue that the mere fact that the record was no longer available warranted the conclusion that the trial court’s compliance with the relevant law could not be demonstrated, and, thus, vacation of his plea was required. Essentially, Kennedy attempted to have the trial court, and this Court, presume the existence of a manifest injustice. See City of Shaker Heights v. Thompson, 2026-Ohio-1871, ¶ 21 (8th Dist.). Such is not permitted. See id.; see also Smith, 49 Ohio St.2d 261 at paragraph one of the syllabus. Instead, “[a] presumption of regularity attaches to all judicial proceedings.” State v. Raber, 2012-Ohio-5636, ¶ 19. The law required Kennedy to demonstrate a flaw in the plea proceedings significant enough to constitute a manifest injustice, and he did not do so. Smith, 49 Ohio St.2d 261 at paragraph one of the syllabus. {¶10} Kennedy’s first assignment of error is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING. {¶11} Kennedy asserts in his second assignment of error that the trial court erred by failing to hold a hearing on his motion to withdraw his guilty plea. {¶12} This Court notes that “a hearing on a post-sentence motion to withdraw a plea is not always required.” State v. Brundage, 2025-Ohio-2310, ¶ 10 (9th Dist.), quoting State v. Long, 2022-Ohio-3096, ¶ 15 (9th Dist.), quoting State v. West, 2018-Ohio-1176, ¶ 6 (9th Dist.). “An evidentiary hearing on a post-sentence motion to withdraw a guilty plea is not required if the record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice.” (Internal quotations omitted.) State v.  5 Cargill, 2015-Ohio-661, ¶ 11 (9th Dist.), quoting State v. Razo, 2005-Ohio-3793, ¶ 20 (9th Dist.), quoting State v. Russ, 2003-Ohio-1001, ¶ 12 (8th Dist.). {¶13} Here, Kennedy has not established on appeal that he satisfied the foregoing standard in the trial court. As discussed above, the record before this Court does not contain the documents from Kennedy’s plea proceedings, due, almost certainly, to his long delay in filing his motion. Kennedy has not explained how the materials he presented in the trial court were sufficient to demonstrate a manifest injustice. Instead, Kennedy again seems to assert that the absence of the records can lead this Court to presume the existence of a manifest injustice; a notion this Court rejected above. {¶14} Kennedy’s second assignment of error is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED BY SUMMARILY DENYING APPELLANT’S MOTION WITHOUT SUFFICIENT FINDINGS TO PERMIT MEANINGFUL APPELLATE REVIEW. {¶15} Kennedy maintains in his third assignment of error that the trial court erred in failing to issue a decision explaining why the trial court denied his motion to withdraw his guilty plea. However, “[i]t is well settled that Crim.R. 32.1 does not require the trial court to issue findings of fact and conclusions of law when ruling on a motion to withdraw a plea.” State v. Elswick, 2004-Ohio-4324, ¶ 5 (9th Dist.), citing State ex rel. Chavis v. Griffin, 91 Ohio St.3d 50, 51 (2001). {¶16} Kennedy’s third assignment of error is overruled. III. {¶17} Kennedy’s assignments of error are overruled. The judgment of the Akron Municipal Court is affirmed.  6 Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Akron Municipal Court, 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. JILL FLAGG LANZINGER FOR THE COURT HENSAL, P. J. MANNING, J. CONCUR. APPEARANCES: ANTHONY D. KENNEDY, SR., pro se, Appellant. BRIAN T. ANGELONI, Director of Law, and JACQUENETTE S. CORGAN, Assistant Director of Law, for Appellee.