[Cite as State v. Newkirk , 2020-Ohio-5554.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
State of Ohio Court of Appeals No. H-19-024 Appellee Trial Court No. CRI 2019 0589

v. Lee Michael Newkirk DECISION AND JUDGMENT Appellant Decided: December 4, 2020 * * * * * James Joel Sitterly, Huron County Prosecuting Attorney, and Melissa A. Angst, Assistant Prosecuting Attorney, for appellee

. Danielle C. Kulik, for appellant. * * * * * PIETRYKOWSKI, J. {¶ 1} Appellant, Lee Michael Newkirk, appeals the judgment of the Hur on County Court of Common Pleas, convicting him, following a guilty plea, of one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, and one count of sexual battery in violation of R.C. 2907.03(A)(2) and (B), a felony of the second degree, and2. sentencing him to an agreed upon prison term of 15 years. For the reasons that follow, we affirm. I. Facts and Procedural Background {¶ 2} On July 19, 2019, the Huron County Grand Jury returned a four-c ount indictment against appellant, charging him with one count of ra pe in violation of R.C. 2907.02(A)(1)(b) and (B), a felony of the first degree; one cou nt of sexual battery in violation of R.C. 2907.03(A)(2) and (B), a felony of the second degree; one count of sexual battery in violation of R.C. 2907.03(A)(1) and (B), a fe lony of the second degree; and one count of gross sexual imposition in violation of R.C. 2 907.05(A)(4) and (C)(2), a felony of the third degree. The charges stemmed from appellant ’s sexual assault of a three-year-old child. {¶ 3} On November 19, 2019, appellant withdrew his initial plea of no t guilty, and entered a plea of guilty to the count of rape, with an amendmen t removing the allegation that the victim was under the age of ten, and a plea of guilty to one count of sexual battery. In exchange, the state agreed to dismiss the remainin g counts. Additionally, the parties agreed to a recommended prison sentence of eight years on the count of rape, and a mandatory seven years on the count of sexual battery, to be s erved consecutively for a total prison term of 15 years. {¶ 4} At the hearing, the trial court conducted a detailed Crim.R. 11 plea colloquy and accepted appellant’s guilty plea. The court noted that the parties jointly agreed to proceed immediately to sentencing, and asked appellant’s trial counsel if appellant was3. waiving any further presentence investigation. Trial counsel r esponded in the affirmative. The court then proceeded to impose the recommende d sentence. {¶ 5} Thereafter, on December 16, 2019, appellant moved to withdraw h is guilty plea, and requested a hearing on his motion. In the motion, ap pellant alleged that the DNA evidence provided in discovery was not dispositive of guilt , and that appellant’s former trial counsel never requested the epithelial DNA testing . Furthermore, appellant alleged that he has a medical diagnosis of “ADHD borderline Asp erger’s Syndrome,” and that he was on an Individualized Education Plan (IEP) in school . Thus, he contended that his ability to understand the plea was also an issue. {¶ 6} On January 7, 2020, the trial court denied appellant’s motion t o withdraw his guilty plea without a hearing. The trial court found that appe llant agreed to the state’s recitation that the sexual assault examination of the victim re vealed penetration, that appellant’s DNA was found in sperm fractions from the victim’s underwear, that the victim told her mother that her vagina hurt because appellant h ad stuck his finger in her vagina, and that there were two incidents of sexual conduct eac h committed with a separate animus. Further, the trial court found that appellant was fully advised of his rights, and made a knowing, intelligent, and voluntary decision to plead guilty. II. Assignments of Error {¶ 7} Appellant has timely appealed his judgment of conviction as wel l as the denial of his motion to withdraw his guilty plea, and now asser ts three assignments of error for our review:4. 1. THE COURT FAILED TO ADVISE THE DEFENDANT
ABOUT WAIVING A PRESENTENCE INVESTIGATION AND DID NOT ASK THE DEFENDANT ANY QUESTIONS IN REGARDS TO
THE WAIVER.
2. THE COURT ABUSED ITS DISCRETION BY NOT
ALLOWING A HEARING ON COMPETENCY AFTER IT WAS
RAISED IN A MOTION TO WITHDRAW A PLEA.
3. THE DEFENDANT DID NOT HAVE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN NO MOTIONS WERE FILED
AND INCARCERATION PRECEDED A PLEA. III. Analysis {¶ 8} In his first assignment of error, appellant argues that the tri al court erred when it asked his trial counsel instead of him whether there wa s a waiver of a presentence investigation report. However, a trial court does not need to order a presentence investigation report in a felony case where community control i s not being imposed. State v. Cyrus , 63 Ohio St.3d 164, 586 N.E.2d 94 (1992), syllabus; State v. Scott , 6th Dist. Sandusky No. S-15-012, 2016-Ohio-1480, ¶ 42 (“Where it ha s been determined that a defendant is not eligible for community control, the trial co urt does not err in refusing to order a presentence investigation report.”); Crim.R. 32.2 (“ Unless the defendant and the prosecutor in the case agree to waive the presentence inves tigation report, the court shall, in felony cases, order a presentence investigation and r eport before imposing community control sanctions or granting probation .” (Emphasis added.)). Here, the5. parties agreed that appellant was not eligible for community co ntrol. Thus, he did not have a right to a presentence investigation report that he coul d waive, and the trial court did not err in failing to ask him to waive that nonexistent rig ht. {¶ 9} Accordingly, appellant’s first assignment of error is not well- taken. {¶ 10} In his second assignment of error, appellant argues that the tr ial court abused its discretion in denying his post-sentence motion to wi thdraw his guilty plea without a hearing on the issue of appellant’s competency. A motion to withdraw a guilty plea “may be made only before sentence is imposed; but to correct manifest injustice the cour t after sentence may set aside the judgment of conviction and permit th e defendant to withdraw his or her plea.” Crim.R. 32.1. “A manifest injus tice is defined as a ‘clear or openly unjust act.’ * * * Manifest inju stice is an extremely high standard, and a defendant may only withdraw his guilty pleas in extraordinary cases.” State v. Harmon , 6th Dist. Lucas No. L-10- 1195, 2011-Ohio-5035, ¶ 12. The burden is on the defendant to establish the existence of such injustice. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. * * * [B]ec ause a motion to withdraw a guilty plea is addressed to the sound disc retion of the trial court, we review a trial court’s judgment on such a motio n under an abuse of discretion standard. Smith , supra , at 264. Accordingly, we will only reverse a trial court’s denial of a motion to withdraw a g uilty plea if the court’s attitude in reaching its judgment was unreasonable, arbitrary, or6. unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
State v. Adams , 6th Dist. Lucas No. L-13-1169, 2014-Ohio-4110, ¶ 7. {¶ 11} “An evidentiary hearing on a post-sentence motion to withdraw a guilty plea ‘is not required if the facts as alleged by the defendant, and accepted as true by the court, would not require that the guilty plea be withdrawn.’” State v. Skaggs , 6th Dist. Wood No. WD-04-002, 2004-Ohio-6653, ¶ 7, quoting State v. Patterson , 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, ¶ 18. “Generally, a self-serv ing affidavit or statement is insufficient to demonstrate manifest injustice.” Id. In deciding a motion to withdraw a guilty plea, the trial court has the discretion to d etermine the “good faith, credibility and weight of the movant’s assertions.” State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus; State v. Hutchison , 2018-Ohio-200, 104 N.E.3d 91, ¶ 38 (5th Dist.). {¶ 12} Here, in support of his motion to withdraw his guilty plea, app ellant cursorily alleged that he had a medical diagnosis of “ADHD bord erline Asperger’s Syndrome,” and that he was on an Individualized Education Plan (IEP) in school, and thus he may have been unable to understand the plea. Appellant provided no documentary or affidavit evidence to support his assertions. {¶ 13} More importantly, appellant’s assertion of an inability to unde rstand the plea proceedings is dramatically contradicted by the record. A ppellant stated at the hearing that he has a high school education, that he was not on any medication that affected his ability to think clearly about entering his plea, that he had never been7. diagnosed mentally ill or incompetent, and that he understood t he charges to which he was pleading guilty. Furthermore, appellant’s responses to the trial court’s questions were clear and contextually appropriate, and appellant asked in sightful questions about the community notification requirement and judicial early relea se. {¶ 14} In support of his argument on appeal that it was questionable w hether he could understand the plea, appellant points to only one exchang e wherein the trial court asked appellant if he had a full opportunity to discuss the cha rges with his trial counsel and appellant replied, “Yes, best we could.” Appellant indirec tly suggests that the phrase “best we could” indicates that he was incapable of meaningfully discussing the charges. Immediately after that exchange though, the trial court asked a ppellant a series of questions to which he responded in the affirmative: “Have you shared with her all the information that you know that’s relevant to these charges?”; “ Has she provided you with the information the State gave with regard to their -- with reg ard to what they intend to prove?”; “Have you had a chance to discuss with her any possibl e defenses you might have to these charges?”; “Are you satisfied with her advice and competence?”; “Have you had a chance to review [the plea agreement] with [trial cou nsel]?”; “Do you believe you understand all the terms and conditions that are set out in that document?”. {¶ 15} Therefore, we find no support in the record for appellant’s all egation that he was unable to understand the plea agreement or was incompete nt, and we hold that the trial court did not abuse its discretion when it denied appella nt’s post-sentence motion to withdraw his guilty plea without a hearing. {¶ 16} Accordingly, appellant’s second assignment of error is not well -taken.8. {¶ 17} Finally, in his third assignment of error, appellant argues tha t his trial counsel was ineffective for failing to raise the issue of compe tency, and for failing to have the DNA investigated. {¶ 18} To prevail on a claim of ineffective assistance of counsel, app ellant must satisfy the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must dem onstrate that counsel’s performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel’s error, the result of the proceedings would have been different. Id. at 687-688, 694. “The object of an ineffectiveness claim is n ot to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will of ten be so, that course should be followed.” Id. at 697. {¶ 19} Regarding counsel’s failure to raise the issue of competency, a s we discussed above, there is nothing in the record to suggest that appellant was incompetent or incapable of understanding the nature and effect of his guil ty plea. Thus, appellant has not demonstrated that a reasonable probability exists that any motion on the issue of competency would have been successful. {¶ 20} As to the failure to investigate the DNA evidence, the record s hows that the state provided evidence, including laboratory reports, in respo nse to appellant’s request for discovery. While the record does not include the laborator y reports themselves, appellant does not identify anything in the record that would c all into question the DNA evidence. In fact, during the plea hearing, appellant agreed t hat it was true that DNA9. from his sperm was found inside the victim’s underwear. Thus, appellant has failed to demonstrate that a reasonable probability exists that any furth er investigation of the DNA evidence would have resulted in a different outcome in the proc eedings. {¶ 21} Therefore, because appellant has failed to demonstrate any prej udice from trial counsel’s performance, his claim of ineffective assistanc e of counsel is without merit. {¶ 22} Accordingly, appellant’s third assignment of error is not well- taken.
IV. Conclusion {¶ 23} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Huron County Court o f Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.
A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________ _______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.