Full Opinion (html_with_citations)

[Cite as State v. Whitaker,
2011-Ohio-6923
.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                                     :       Case No. 10CA3349
                                                   :
        Plaintiff-Appellee,                        :
                                                   :       DECISION AND
        v.                                         :       JUDGMENT ENTRY
                                                   :
KEITH WHITAKER,                                    :
                                                   :       RELEASED 12/22/11

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Keith M. Whitaker, Sr., Toledo, Ohio, pro se appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Joseph L. Hale, Scioto County Assistant
Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}     Keith Whitaker appeals the trial court’s denial of his post-sentencing

motion to withdraw his guilty plea to one count of having weapons while under disability.

Whitaker contends that the court erred when it accepted his plea because he told the

court he was only pleading guilty out of duress. Because Whitaker did not submit a

transcript of the change of plea hearing for our review, we must presume regularity in

the proceedings and reject this argument.

        {¶2}     Next, Whitaker argues that trial counsel’s deficient performance prevented

his plea from being knowing, intelligent, or voluntary. He contends that counsel

pressured him to accept a plea bargain and refused to investigate certain aspects of the

case. However, these arguments rely on evidence outside the record, so the proper

vehicle to raise them is in a petition for post-conviction relief.
Scioto App. No. 10CA3349                                                                    2


       {¶3}   Whitaker also complains that the State and trial court erred by refusing to

give him certain discovery and that the trial court abused its discretion by not ordering

the disclosure of grand jury testimony to him. Because Whitaker does not argue that

these nonjurisdictional errors prevented him from entering a knowing, intelligent and

voluntary guilty plea, he has waived them.

       {¶4}   Finally, Whitaker argues that the assistant prosecutor wrongfully allowed

him to enter a guilty plea. He also complains that trial counsel gave him “false

information” about investigating an “alibi witness” and that counsel hindered him in

obtaining a certain police report. Because Whitaker did not raise these arguments in his

motion to withdraw, we reject them and affirm the trial court’s judgment.

                                         I. Facts

       {¶5}   In consolidated cases, a jury found Whitaker guilty of one count of failure

to appear and two counts of having weapons while under disability. State v. Whitaker,

Scioto App. No. 07CA3168,
2008-Ohio-4149, at ¶1
. Whitaker appealed, and we

reversed one of his convictions for having weapons while under disability and remanded

for a new trial on that charge. Id. at ¶4. On remand, Whitaker pleaded guilty to the

charge. After the trial court sentenced him, Whitaker filed a motion to withdraw his

guilty plea, which the court denied. This appeal followed.

                                 II. Assignments of Error

       {¶6}   Whitaker assigns seven errors for our review:

       The Trial Court Abused Its Discretion By Accepting Appellant’s Guilty Plea
       After Appellant Clearly Stated Only Minutes Prior That He Was Only
       Pleading Guilty Because He Was Under Duress Making The Guilty Plea In
       Violation Of Crim.R. 11.

       There Was Manifest Injustice Because Of Ineffective Assistance Of
Scioto App. No. 10CA3349                                                                      3


       Counsel For Counsel’s Continuous Pressure To Enter Guilty Plea When
       There Was No Overwhelming Evidence And Counsel’s Advice Was
       Faulty.

       There Was Manifest Injustice For Ineffective Assistance of Counsel For
       Kleha’s Faulty Legal Advise [sic] Regarding Possible Defences.

       There Was Manifest Injustice For Ineffective Assistance of Counsel For
       Kleha’s Failure To Investigate The Case.

       Assistant Prosecutor Joseph Hale Wrongfully Allowed Guilty Plea To Be
       Entered.

       Appellant Was Denied Due Process When He Was Denied Discovery
       That Could Have Proven To Be Exculpatory Evidence If It Had Not Been
       Withheld.

       The Trial Court Abused Its Discretion For Refusing To Give Appellant
       Disclosure Of Testimony Taken Before The Grand Jury

                        III. Motion to Withdraw Guilty Plea

       {¶7}   Whitaker’s notice of appeal states that he appeals “from the order denying

Defendant’s Motion to Withdraw Guilty Plea,” and in the “Statement of the Case” portion

of his appellate brief, Whitaker asserts that this order “is now before this Court on

appeal.” (Appellant’s Br. 1). However, when Whitaker framed his assignments of error

and analyzed them in his brief, he failed to specifically relate the assigned errors to the

denial of his motion. In fact, all of his assignments refer to purported errors that would

have occurred prior to any proceedings on his motion to withdraw his plea. Because

Whitaker has specifically appealed from the denial of that motion, we will treat his

assignments of error as arguments that support his general contention that the court’s

decision on the motion to withdraw was erroreous.

       {¶8}   Crim.R. 32.1 provides: “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
Scioto App. No. 10CA3349                                                                     4


court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.” A defendant seeking to withdraw a guilty plea after

sentencing has the burden to establish that a manifest injustice will occur if the plea

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

of the syllabus. A manifest injustice is “a clear or openly unjust act.” State v. Dotson,

Washington App. No. 03CA53,
2004-Ohio-2768, at ¶5
, citing State ex rel. Schneider v.

Kreiner,
83 Ohio St.3d 203, 208
,
1998-Ohio-271
,
699 N.E.2d 83
. This extremely high

standard permits a defendant to withdraw his guilty plea only in extraordinary cases.

State v. Allison, Pickaway App. No. 06CA9,
2007-Ohio-789, at ¶7
, citing
Smith at 264
.

        {¶9}   Ultimately, the decision to grant or deny a Crim.R. 32.1 motion is

committed 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. Appellate review of the denial of a

post-sentence motion to withdraw a guilty plea is therefore limited to a determination of

whether the trial court abused its discretion. The term “abuse of discretion” connotes an

attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. State

v. Adams (1980),
62 Ohio St.2d 151, 157
,
404 N.E.2d 144
. When applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its judgment for

that of the trial court. In re Jane Doe 1 (1991),
57 Ohio St.3d 135, 138
,
566 N.E.2d 1181
.

        {¶10} Whitaker contends that he did not knowingly, voluntarily, or intelligently

enter his plea for various reasons and (implicitly) that the court should have

subsequently allowed him to withdraw it. In his first assignment of error, Whitaker
Scioto App. No. 10CA3349                                                                      5


claims the court should have allowed him to withdraw his plea because at the change of

plea hearing, he told the court he was only entering it under duress. However, Whitaker

failed to provide a copy of the transcript from the change of plea hearing for our review.

Nor is there a transcript of an oral hearing on the motion to withdraw the plea. The

appellant has the duty to provide a transcript for appellate review. Knapp v. Edwards

Laboratories (1980),
61 Ohio St.2d 197, 199
,
400 N.E.2d 384
 (per curiam). “This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.”
Id.,
 citing State v. Skaggs (1978),
53 Ohio St.2d 162
,
372 N.E.2d 1355
; see, also, App.R. 9(B). “When portions of the transcript necessary for resolution

of assigned errors are omitted from the record, the reviewing court has nothing to pass

upon and thus, as to those assigned errors, the court has no choice but to presume the

validity of the lower court’s proceedings, and affirm.”
Id.
 Based on this state of the

record, we cannot find an abuse of discretion. Accordingly, we reject Whitaker’s first

“assignment of error.”

       {¶11} Whitaker also contends that he did not knowingly, voluntarily, or

intelligently enter his plea due to deficiencies in his trial counsel’s performance. In his

second “assignment of error,” Whitaker contends that trial counsel pressured him to

accept a plea bargain and “assur[ed] him he would definitely be retaliated against” if he

did not plead guilty. (Appellant’s Br. 16). In his fourth “assignment of error,” Whitaker

contends that trial counsel “refused to investigate” certain aspects of the case or file

certain motions and implies counsel’s deficient performance prevented his plea from

being knowing, intelligent, or voluntary. However, these arguments are based on

private communications between Whitaker and his attorney, i.e. they depend on
Scioto App. No. 10CA3349                                                                    6


evidence outside the record. Accordingly, these issues are not appropriate for review

on direct appeal; the proper vehicle for Whitaker to raise these arguments is in a petition

for post-conviction relief under R.C. 2953.21. State v. Cooperrider (1983),
4 Ohio St.3d 226, 228
,
448 N.E.2d 452
 (per curiam). Therefore, we reject them. Accordingly, we

overrule the second and fourth assignments of error.

       {¶12} In his sixth “assignment of error,” Whitaker contends that the State and

trial court violated his due process rights when they improperly refused to give him

certain discovery that would have “enable[d] him to challenge the indictment of the

instant case.” (Appellant’s Br. 19). In his seventh “assignment of error,” Whitaker

claims the trial court abused its discretion by not ordering the disclosure of grand jury

testimony to him. However, “a guilty plea waives all nonjurisdictional appealable errors,

except for those which preclude a knowing, intelligent and voluntary plea.” State v.

Mayes, Gallia App. No. 03CA9,
2004-Ohio-2027, at ¶13
, citing State v. Spates,
64 Ohio St.3d 269, 272-273
,
1992-Ohio-130
,
595 N.E.2d 351
. Although Whitaker raised these

alleged nonjurisdictional errors in his motion to withdraw, he does not argue that they

prevented him from making a knowing, intelligent or voluntary plea, so he has waived

them. We overrule his sixth and seventh assignments of error.

       {¶13} In his third assignment of error, Whitaker claims trial counsel gave him

“faulty legal advice” that induced him to plead guilty. He argues that counsel gave him

“false information” about what would happen if counsel interviewed and subpoenaed

Whitaker’s “alibi witness.” (Appellant’s Br. 16). He also complains that counsel gave

him an outdated set of “Rules of Court” to present during a pretrial hearing when

Whitaker was trying to obtain a certain police report and “did nothing further to help
Scioto App. No. 10CA3349                                                                     7


Appellant to obtain this needed document.” (Appellant’s Br. 16). In his fifth assignment

of error, Whitaker contends that the assistant prosecutor wrongfully allowed him to enter

a guilty plea. He specifically complains that the assistant prosecutor “never identified

the State[’]s evidence or what it would prove at trial before accepting Appellant’s guilty

plea.” (Appellant’s Br. 18). However, Whitaker did not raise these arguments in his

motion to withdraw his plea, and we will not consider them for the first time on appeal.

See State v. Seymour, Hocking App. No. 01CA6,
2001-Ohio-2561
,
2001 WL 1627986
,

at *3. We overrule the third and fifth assignments of error.

       {¶14} Having overruled each of the assignments of error, we affirm the trial

court’s judgment denying Whitaker’s motion to withdraw his guilty plea.

                                                                 JUDGMENT AFFIRMED.
Scioto App. No. 10CA3349                                                                      8


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court

                                            BY: ____________________________
                                                William H. Harsha, Presiding Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
.