[Cite as State v. Nicholson , 2018-Ohio-2932.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105958

STATE OF OHIO
PLAINTIFF-APPELLEE

vs. MIKE NICHOLSON
DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593304-A BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J. RELEASED AND JOURNALIZED: July 26, 2018ATTORNEY FOR APPELLANT Steve W. Canfil 55 Public Square, Suite 2100 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor Anthony Thomas Miranda Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113MELODY J. STEWART, P.J.: {¶1} Defendant-appellant Mike Nicholson pleaded guilty to drug trafficking and having a weapon while under disability. He did not file a direct appeal , but one year after conviction, filed a pro se motion to “vacate or set aside th e judgment of convicti on or sentence.” That petition claimed that retain ed trial counsel gave ineffective assistance of counsel by failing to conduct a reasonable investigation of the charges and that retain ed counsel coerced Nicholson into pleading guilty. The court denied the petiti on without a hearing. Nicholson then filed a pro se Crim.R. 32.1 motion to wit hdraw his guilty plea. The motion to withdraw the guilty plea contained four grounds, all of wh ich were related to the perform ance of retained counsel: that retained counsel failed to investigate the case, that retained counsel failed to consult with Nicholson, that the court failed to advise Nicholson that he had the right to appointed counsel when retained counsel sought to withdraw from the case, and that retained counsel failed to file a written motion to withdraw from the case. The c ourt denied this motion without a hearing. Nicholson appeals. {¶2} The motion to withdraw the guilty plea was filed postsentence, so it could only be granted to “correct manifest injustice.” See Crim.R. 32.1. The term “manifest injustice” is not defined by Crim.R. 32.1, but the most often c ited formulation of the phrase was given in State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 1998-Ohio-271, 699 N.E.2d 83, where the Ohio Supreme Court defined a “manifest injustice” as a “clear or openly unjust act.” 1 Id . at 208.

1 It is unclear why appellate courts cite State ex rel. Schneider as authority for what constitutes a “manifest injustice.” That case did not involve Crim.R. 32.1; it invo lved an application for a writ of mandamus under Ohio’s Sunshine Law and the application of former R.C. 2317.023(C) and its proscription against the disclosure of confidential communications made during court mediation unless “disclosure is necessary in the particular case to prevent a manifest injustice[.]” Id . at 207. The Supreme Court refused to issue the writ, rejecting the relator’s argument that he needed access to th e confidential mediation communicatio ns because he might face future litigation: “The mere possibility that the relator may be involved in future litigation cannot possibly establish the presence of a manifest injustice, as required by the st atutory exception.” The court then applied a dictionary{¶3} It may be better to say that the postsentence withdrawal of a guilty plea is allowed to prevent an obviously unfair result. This has b een defined as “some f undamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Hall , 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939. See also State v. Tekulve , 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st Dist.) (defining “manifest injustice” as an “ex traordinary and fundamental fl aw in a plea proceeding.”); State v.
Durrette , 8th Dist. Cuyahoga No. 104050, 2017-Ohio-7314, ¶ 22. {¶4} Regardless of what definition is used, it is well established that a postsentence withdrawal motion should be grante d only in extraordinary cases. State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). “A motion made pur suant to Crim.R. 32.1 is addressed to the sound discretion of the trial c ourt, and the good faith, credibility and weight of the movant’s assertions in support of the motion are ma tters to be resolved by that court.” Id . at paragraph two of the syllabus. We therefore review a trial court’s refusal to grant a postsentence motion to withdraw a guilty plea for an abuse of discretion. State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

definition defining “manifest injustice” as “a clear or openly unjust act.” Id. at 208. The Supreme Court’s use of the “clear or openly unjust act” definition was relevant to the issue presented in the application for a writ of mandamus; it has little applicability to Crim.R. 32.1 postsentence motions to withdraw guilty pleas.{¶5} In addition, postsentence motions to wit hdraw guilty pleas are, in essence, postconviction motions to which the doctrine of res judicata applies. Res judicata bars the assertion of claims in a motion to withdraw a guilty plea that were, or could have been, raised in a prior proceeding. State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. In this context, a prior proceeding consists of a direct appeal or any “postconviction proceedings in which an issue was or c ould have been raised.” State v. Montgomery , 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42 (8th Dist.). Thus, we have held th at res judicata bars “the assertion of claims in a motion to withdraw a guilty plea that were, or could have been, raised at trial or on direct appeal.” State v. McGee , 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374, ¶ 9. {¶6} Nicholson’s first basis for s eeking withdrawal of his guilty plea is that trial counsel “failed to conduct an ade quate pretrial investigation of the case, neglecting to request that the search warrant be unsealed and challenge the validity of the alleged search warrant prior to advising me to plead guilty.” This claim undeniably relied on facts outside the record on appeal, so it could not have b een raised on direct appeal. State v. Smith , 17 Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985), fn. 1. Neverthe less, this same claim was ra ised in Nicholson’s earlier motion to vacate his conviction. Attachment 9A to that petition claimed th at “trial counsel was ineffective and did not conduct a reasonable investigation of disc overy and neglected to request important documents that could have been beneficial in my defens e.” And Attachment 9B to the petition claimed that “I do not recall seeing any copy of the search warrant, my attorney told me that it doesn’t matter because I signed a ‘consent to search.’” This issue was thus raised in the motion to vacate the conviction, so the first basis for relief in the motion to withdraw the guilty plea is res judicata.{¶7} The second basis for seeking withdrawal of the guilty plea is that retained counsel “proved deficient where he failed to visit, return calls, and consult with me to learn my desires to obtain the search warrant and pursue a motion to s uppress, prior to making any plea agreement or proceed to trial.” This claim overlaps with the cl aims raised in Attachment 9A to the petition to vacate the conviction, where Nichol son alleged that “my trial atto rney never met with me to discuss my case or any plea before trial.” In addition, the second basis for relief contained the same argument raised in the motion to vacate th e conviction regarding reta ined counsel’s refusal to file a motion to suppress ba sed on Nicholson’s consent to search. We also note that Nicholson made this same compla int regarding retained counsel’s failure to file a motion to suppress to the trial judge before entering his guilty plea. Retained counsel told the court at the time of the guilty plea that he discussed at le ngth with Nicholson how a motion to suppress evidence based on a lack of consent had no viability. The record shows the issue was not newly discovered and was, in fact, raised prior to the motion to withdraw the guilty plea, so it could have been raised in the mo tion to vacate the conviction. {¶8} The third basis for seeking withdrawal of the guilty plea is that after orally seeking the removal of retained counsel, the court failed to a dvise Nicholson that he had the right to appointed counsel and further faile d to advise him that retained counsel had to file a written motion to withdraw. {¶9} The record gives no basis for Nicholson’s claim that the court was obligated to inform him of his right to appointed counsel. The record shows that at th e start of the case, the court assigned counsel for Nichol son. Nicholson then retained hi s own attorney, but at a later point told the court that “I decided that I want to retain new counsel.” The court replied:You know, [retained counsel] is noted on the file as being reta ined. You’re going to need to get new counsel. I can give you a relatively brief period of time to secure new counsel. This may result in y our case being set for trial in a period of time that’s going to allow your new couns el sufficient time to get trial scheduled for him. {¶10} The court told Nicholson that it would conti nue trial for one mont h in order to give him time to find another attorney. In response to retained counsel’s remark that “I thought I would be off the case today[,]” the court told re tained counsel to file a motion to withdraw. Retained counsel told the court that “I gave h im the card of at least one lawyer. I don’t know if he will use it, but I told him that I will turn hi s file over to his new la wyer and he should get a new lawyer as soon as possible.” When th e court convened one m onth later, Nicholson appeared with the same previously retained c ounsel, who had not filed a motion to withdraw. The court noted that retained counsel was a ppearing despite Nichol son having expressed concerns about retained counsel’s representation. Nicholson told the court that he had been trying to hire a new attorney, but one attorney turned the case down and several other attorneys did not show for scheduled appointments. {¶11} Nothing in the record indicates that from the time Nicholson retained counsel to the time that he sought to replace retained counsel, his financial situation had changed. Nicholson specifically told the court that he could not retain a new attorney because those attorneys he contacted expressed a lack of interest, either directly or indirectly by failing to show for scheduled appointments. Nichols on did not give the court any reason to think that he could not retain new counsel for want of ability to pay. With the seeming ability to pay for his own attorney, the court had no obligation to inform Nicholson of his right to appointed counsel. See Brown v. Maxwell , 2 Ohio St.2d 153, 154, 207 N.E.2d 374 (1965); State v. Scott , 7th Dist. Mahoning No. 13 MA 47, 2014-Ohio-2993, ¶ 21.{¶12} Even if the record could plausibly s upport an assertion that Nicholson should have been advised of his right to appointed counsel, he could have raised that issue on a direct appeal from the guilty plea. State v. Hacker , 12th Dist. Butler No. CA87-10-138, 1988 Ohio App. LEXIS 515, 3 (Feb. 15, 1988) (“A denial of an indigent criminal de fendant’s constitutional right to appointed counsel is reviewable on dir ect appeal in Ohio.”). In addition, Nicholson could have raised the same cla im in his petition to vacate his conviction. In Attachment 10B to the petition to vacate the conviction, Nicholson stated that he want ed retained counsel withdrawn “after disagreements and feeling that he was ine ffective.” Nicholson conceded that the court gave him additional time to retain new counsel and that th e court specifically found Nicholson stated, “I was unable to contact and retain new counsel” and was told that retained counsel was “technically” still his attorney. These facts would have been sufficient to permit review on direct appeal to the same extent as argued in the motion to withdraw the guilty plea. {¶13} The fourth basis for seeking withdrawal of the guilty plea is that retained counsel “failed to file a motion to wit hdraw as counsel after agreeing to be off the case and being instructed by the trial court to do so,” and that Nicholson was “later i nduced to continue with counsel.” Even if this claim ra ised matters outside the record on direct appeal, it was raised in Attachment 10B of the petition to vacate the convi ction based on Nicholson’ s assertion that after seeking to retain new counsel, he next appeared in court and was told th at retained counsel was “technically” still his attorney. It is res judicata.{¶14} Even if we were to reach the merits of Ni cholson’s fourth claim, we would reject it. While it is true that retained counsel did not file a motion to w ithdraw, it is equally true that retained counsel continued to represent Nicholson. As ex plained by retained counsel, Nicholson’s conversations with ot her attorneys yielded him nothing . In the interim, retained counsel went over court records with Nicholson and explained th at Nicholson “had been given some wrong information by record s he obtained and attorneys he ma y have talked to with regard to the search warrant.” Retained counsel told the court that “we ’re here today to take a plea, Judge. I will stand in for him. I’ve talked to him today, briefly. After our conversation, he does realize that I was correct, and maybe he wa s given some bad inform ation. So we’re going to take a plea.” The record shows that by agreei ng to have retained c ounsel represent him during the plea hearing, Nicholson waived any argument relating to retain ed counsel’s failure to file a request to withdraw. {¶15} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed. The court finds there were reas onable 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 Appella te Procedure.

______________________________________________ MELODY J. STEWART, PRESIDING JUDGE MARY J. BOYLE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR