[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 Huron 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, and 
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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-count 

indictment against appellant, charging him with one count of rape in violation of R.C. 

2907.02(A)(1)(b) and (B), a felony of the first degree; one count 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 felony of the second degree; 

and one count of gross sexual imposition in violation of R.C. 2907.05(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 not guilty, and 

entered a plea of guilty to the count of rape, with an amendment 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 remaining 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 served 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 was 
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waiving any further presentence investigation. Trial counsel responded in the 

affirmative. The court then proceeded to impose the recommended sentence. 

{¶ 5} Thereafter, on December 16, 2019, appellant moved to withdraw his guilty 

plea, and requested a hearing on his motion. In the motion, appellant 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 Asperger’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 to withdraw his 

guilty plea without a hearing. The trial court found that appellant agreed to the state’s 

recitation that the sexual assault examination of the victim revealed 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 had stuck his finger in her 

vagina, and that there were two incidents of sexual conduct each 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 well as the 

denial of his motion to withdraw his guilty plea, and now asserts three assignments of 

error for our review: 
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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 trial court erred 

when it asked his trial counsel instead of him whether there was 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 is 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 has been determined that 

a defendant is not eligible for community control, the trial court 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 investigation report, the court 

shall, in felony cases, order a presentence investigation and report before imposing 

community control sanctions or granting probation.” (Emphasis added.)). Here, the 
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parties agreed that appellant was not eligible for community control. Thus, he did not 

have a right to a presentence investigation report that he could waive, and the trial court 

did not err in failing to ask him to waive that nonexistent right. 

{¶ 9} Accordingly, appellant’s first assignment of error is not well-taken. 

{¶ 10} In his second assignment of error, appellant argues that the trial court 

abused its discretion in denying his post-sentence motion to withdraw 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 court after 

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

to withdraw his or her plea.” Crim.R. 32.1. “A manifest injustice is 

defined as a ‘clear or openly unjust act.’ * * * Manifest injustice 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]ecause a 

motion to withdraw a guilty plea is addressed to the sound discretion of the 

trial court, we review a trial court’s judgment on such a motion 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 guilty plea if 

the court’s attitude in reaching its judgment was unreasonable, arbitrary, or 
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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-serving 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 determine 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, appellant 

cursorily alleged that he had a medical diagnosis of “ADHD borderline 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 understand the 

plea proceedings is dramatically contradicted by the record. Appellant 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 been 
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diagnosed mentally ill or incompetent, and that he understood the 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 insightful questions about 

the community notification requirement and judicial early release. 

{¶ 14} In support of his argument on appeal that it was questionable whether he 

could understand the plea, appellant points to only one exchange wherein the trial court 

asked appellant if he had a full opportunity to discuss the charges with his trial counsel 

and appellant replied, “Yes, best we could.” Appellant indirectly 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 appellant 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 regard to what they intend to 

prove?”; “Have you had a chance to discuss with her any possible 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 counsel]?”; “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 allegation that 

he was unable to understand the plea agreement or was incompetent, and we hold that the 

trial court did not abuse its discretion when it denied appellant’s post-sentence motion to 

withdraw his guilty plea without a hearing. 

{¶ 16} Accordingly, appellant’s second assignment of error is not well-taken. 
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{¶ 17} Finally, in his third assignment of error, appellant argues that his trial 

counsel was ineffective for failing to raise the issue of competency, and for failing to 

have the DNA investigated. 

{¶ 18} To prevail on a claim of ineffective assistance of counsel, appellant 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 demonstrate 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 not 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 often be so, that course 

should be followed.” Id. at 697. 

{¶ 19} Regarding counsel’s failure to raise the issue of competency, as 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 guilty 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 shows that the 

state provided evidence, including laboratory reports, in response to appellant’s request 

for discovery. While the record does not include the laboratory reports themselves, 

appellant does not identify anything in the record that would call into question the DNA 

evidence. In fact, during the plea hearing, appellant agreed that it was true that DNA 
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from his sperm was found inside the victim’s underwear. Thus, appellant has failed to 

demonstrate that a reasonable probability exists that any further investigation of the DNA 

evidence would have resulted in a different outcome in the proceedings. 

{¶ 21} Therefore, because appellant has failed to demonstrate any prejudice from 

trial counsel’s performance, his claim of ineffective assistance 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 of 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 pursuant 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 Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.