[Cite as State v. Jain, 2010-Ohio-1712.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-09-25 

 v. 

ABHISHEK JAIN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2003-CR-110 

Judgment Affirmed 

Date of Decision: April 19, 2010 

 

APPEARANCES: 

Dean Boland for Appellant 

Edwin A. Pierce for Appellee 
Case No. 2-09-25 

-2-

SHAW, J.

{¶1} Defendant-appellant, Abhishek Jain, appeals the August 20, 2009 

judgment of the Common Pleas Court of Auglaize County, Ohio, denying his 

motion to withdraw his guilty plea. 

{¶2} The record in this case reveals the facts relevant to this appeal are as 

follows. On September 5, 2003, Jain was indicted by the Auglaize County Grand 

Jury on one count of importuning in violation of R.C. 2907.07(E)(2), a fifth degree 

felony. Initially, Jain pled not guilty to the offense. However, on November 18, 

2003, Jain and the State of Ohio entered into a negotiated plea agreement. 

Pursuant to the plea agreement, the State of Ohio amended the sole count in the 

indictment to attempted importuning in violation of R.C. 2923.02(A) and R.C. 

2907.07(E)(2), reducing the offense to a misdemeanor of the first degree. Jain 

then withdrew his previously tendered plea of not guilty to that of guilty as to the 

amended count. The trial court accepted Jain’s change of plea, which it 

journalized on November 20, 2003. On January 6, 2004, Jain was classified under 

the law in effect at the time as a sexually oriented offender and notified of his 

registration requirements. He was also sentenced to, inter alia, six months of 

incarceration in the local jail, which was suspended on the condition that he abide 

by the terms of a three-year term of probation. On September 30, 2005, the court 

terminated Jain’s probation supervision. 
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{¶3} On April 13, 2009, Jain filed a motion to withdraw his plea and 

requested a hearing on the matter. He filed a supplement to this motion on May 4, 

2009, which included his personal affidavit. On May 19, 2009, Jain filed a 

supplement to his motion to withdraw his plea, withdrawing one of his arguments 

in support of his motion to withdraw his plea regarding the court’s failure to 

properly advise him of the potential effect of his plea on his immigration status. 

{¶4} According to the affidavits filed by Jain, a citizen of India who was 

here on a student visa, he was being detained out-of-state by the federal 

Immigration and Customs Enforcement (“ICE”) for possible deportation at the 

time he filed his motion to withdraw his guilty plea. Therefore, he filed a motion 

asking the trial court to order the federal government to transport him to his 

hearing on his motion to withdraw his plea. The trial court denied this request, 

stating that it was unaware of any authority it had under the Supremacy Clause of 

the United States Constitution to order the federal government to transport a 

person who was being detained by the federal government. Jain then requested 

that the court permit him to appear at this hearing via video conference. The court 

also denied this motion, citing concerns regarding jurisdiction over potential 

perjury and noting that Jain provided no citations to authority for such attendance. 
Case No. 2-09-25 

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{¶5} On July 24, 2009, Jain filed a second motion to withdraw his guilty 

plea.1

 A hearing on this motion was scheduled for August 19, 2009. On that date, 

counsel for Jain filed a document, bearing Jain’s signature, which stated that Jain 

waived any right he had to be present at the hearing because he was being detained 

by the ICE in a facility in Mount Vernon, Illinois, and also authorized his counsel 

to proceed on his behalf at the hearing on his motion to withdraw his plea in his 

absence. The following day, the trial court filed its ruling on Jain’s motion to 

withdraw his plea.2

 The court found that Jain had failed to sustain his burden of 

proof in attempting to withdraw his guilty plea pursuant to Crim.R. 32.1, 

specifically having failed to demonstrate that the offense to which he pled guilty 

was not a cognizable offense as he alleged in his motion and/or that he was 

provided with ineffective assistance of legal counsel at the time of his plea. 

Therefore, the court denied Jain’s motion. This appeal followed, and Jain now 

asserts four assignments of error. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED AN ERROR OF LAW 

WHEN IT DID NOT GRANT MR. JAIN’S MOTION TO 

WITHDRAW HIS GUILTY PLEA AS HE PLEAD GUILTY 

TO AN ACT WHICH IS NOT A COGNIZABLE OFFENSE. 

 

1

 In this second motion, Jain states that the trial court dismissed his original motion to withdraw his guilty 

plea. However, the record is devoid of any entry reflecting a dismissal of this motion by the trial court. 

2

 Presumably, a hearing on this matter was held on August 19, 2009. The record before this Court contains 

a stenographer’s bill in this case for that date. In addition, the brief of the appellee, the State of Ohio, states 

that a hearing on this motion was held on August 19, 2009. However, a transcript of that proceeding was 

not provided to this Court, and the court’s judgment on this motion does not reference a hearing date. 
Case No. 2-09-25 

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ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED AN ERROR OF LAW 

WHEN IT DID NOT GRANT MR. JAIN’S MOTION TO 

WITHDRAW HIS GUILTY PLEA DESPITE NOT HAVING 

VIOLATED R.C. 2907.07. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED AN ERROR OF LAW 

WHEN IT DID NOT GRANT MR. JAIN’S MOTION TO 

WITHDRAW HIS GUILTY PLEA BECAUSE HE RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING 

HIS ADVICE TO PLEAD GUILTY IN THIS MATTER. 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED AN ERROR OF LAW 

WHEN IT FAILED TO GRANT MR. JAIN’S MOTION TO 

WITHDRAW HIS GUILTY PLEA BECAUSE HE RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING 

HIS ADVICE TO PLEAD GUILTY IN THIS MATTER AS 

MR. JAIN WAS ENTRAPPED.

Requirements of Criminal Rule 32.1

{¶6} Each of Jain’s four assignments of error challenges the trial court’s 

decision to overrule his motion to withdraw his guilty plea. An appellate court 

will not disturb a trial court’s denial of a motion to withdraw a guilty plea absent 

an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d 722, 725, 651 

N.E.2d 1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. 

Abuse of discretion “connotes more than an error of law or judgment; it implies 

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore 
Case No. 2-09-25 

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v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Thus, a reviewing 

court may not simply substitute its judgment for that of the trial court but must 

afford deference to the trial court’s decision. Id. 

{¶7} Criminal Rule 32.1 states: “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 motion to withdraw a plea 

filed after a defendant is sentenced will be granted only to correct a manifest 

injustice with the burden of establishing the existence of a manifest injustice being 

placed upon the individual seeking vacation of the plea. Crim.R. 32.1; Smith, 49 

Ohio St.2d at 264, 361 N.E.2d 1324. A manifest injustice is an exceptional defect 

in the plea proceedings, State v. Vogelsong, 3rd Dist. No. 5-06-60, 2007-Ohio4935, ¶ 12, or a “‘clear or openly unjust act,’” State v. Walling, 3rd Dist. No. 17-

04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio 

St.3d 203, 208, 699 N.E.2d 83, 1998-Ohio-271. “Accordingly, a post-sentence 

motion to withdraw a guilty plea is only granted in ‘extraordinary cases.’” State v. 

Driskill, 3rd Dist. Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶ 32, quoting Smith, 

supra. 

First Assignment of Error
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{¶8} In his first assignment of error, Jain maintains that the trial court 

erred in denying his motion to withdraw his plea because the offense to which he 

pled guilty, attempted importuning, was not a cognizable offense. More 

specifically, Jain asserts that the offense of importuning is completed when the 

offender asks the underage person, or in his case, a law enforcement officer posing 

as an underage person, to engage in sexual activity and that one cannot attempt to 

ask a question. Thus, he contends that committing the offense of attempted 

importuning is legally impossible, similar to our decision in State v. Harper, 3rd

Dist. No. 1-05-79, 2007-Ohio-109. 

{¶9} The attempt statute makes it unlawful for a person to purposely or 

knowingly “engage in conduct that, if successful, would constitute or result in [an] 

offense.” R.C. 2923.02(A). As we noted in Harper, the Committee Comment to 

the attempt statute states: 

This section is a general attempt statute which consolidates 

several specific attempt provisions in former law, and, with three 

exceptions, establishes an attempt to commit any offense as an 

offense in itself. The exceptions are an attempt to commit 

conspiracy, an attempt to commit a minor misdemeanor, and an 

attempt to commit any offense which in itself is defined as an 

attempt-in these cases, attempt is not an offense. 

Harper, 2007-Ohio-109, at ¶ 12, citing State v. Phillips (1998), 6th Dist. No. L-97-

1217, 1998 WL 290233 (vacating guilty plea and conviction because felonious 
Case No. 2-09-25 

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assault statute includes attempt and therefore felonious assault could not be 

predicate crime for attempt statute) (emphasis in original.) 

{¶10} In Harper, the defendant was charged with intimidation of a witness 

in violation of R.C. 2921.04(B), a felony of the third degree, but negotiated with 

the State to plead guilty to attempted intimidation of a witness, reducing the 

degree of felony to that of a fourth degree felony. Harper, 2007-Ohio-109, at ¶¶ 

9-10. However, the statute that Harper was charged with violating contained the 

following language: “No person, knowingly and by force or by unlawful threat of 

harm to any person or property, shall attempt to influence, intimidate, or hinder * 

* * [a] witness involved in a criminal action or proceeding in the discharge of the 

duties of the * * * witness.” R.C. 2921.04(B). Thus, we found that the “coupling 

of R.C. 2923.02 with R.C. 2921.04(B) in Harper’s plea agreement resulted in his 

pleading guilty to an attempt to attempt to intimidate, which is not a cognizable 

crime under Ohio’s statutory scheme[,]” and we vacated his plea and conviction in 

their entirety. Id. at ¶ 13. (citations omitted.) 

{¶11} In the case sub judice, Jain was charged with importuning, a felony 

of the fifth degree. The relevant portion of the statute with which Jain was 

charged provides: 

No person shall solicit another by means of a 

telecommunications device * * * to engage in sexual activity with 

the offender when the offender is eighteen years of age or older 

and * * * (2) The other person is a law enforcement officer 
Case No. 2-09-25 

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posing as a person who is thirteen years of age or older but less 

than sixteen years of age * * * and the offender is four or more 

years older than the age the law enforcement officer assumes in 

posing as the person who is thirteen years of age or older but less 

than sixteen years of age.

R.C. 2907.07(E)(2). Unlike the statute at issue in Harper, this statute does not, in 

and of itself, prohibit an attempt to solicit another. Therefore, R.C. 2923.02(A) 

allows the establishment of attempted importuning as an offense in itself. 

Nevertheless, Jain asserts that the term “solicit” as used in this statute means “to 

ask.” Thus, he maintains that, similar to the amended offense at issue in Harper, 

no cognizable crime exists for attempting to ask because such activity can occur 

solely in one’s mind and the State cannot criminalize one’s mere thoughts. 

{¶12} However, solicit does not simply mean to ask. It “means to seek, to 

ask, to influence, to invite, to tempt, to lead on, to bring pressure to bear.” State v. 

Skatzes, 104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio-6391, at ¶ 68, citing 4 

Ohio Jury Instructions (2001) 573, Section 523.03(6) (this same language was 

incorporated into the 2009 revision of the Ohio Jury Instructions, see CR 

523.03(6)). A person can attempt to influence another to engage in sexual activity, 

attempt to tempt another to engage in sexual activity, attempt to lead on another, 

and attempt to bring pressure to bear on another. Whether the person is successful 

in his attempts is another question, but one can most certainly try rather than 

merely think about it. Given the much broader definition of solicit than the one 
Case No. 2-09-25 

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verb upon which Jain relies, we find that attempted importuning is a cognizable 

crime under Ohio’s statutory scheme.3

 Accordingly, Jain’s first assignment of 

error is overruled. 

Second Assignment of Error

{¶13} Jain next asserts that the trial court erred in not allowing him to 

withdraw his guilty plea because he did not commit the offense of importuning. 

More specifically, Jain alleges that the law enforcement officer with whom he was 

“chatting” via the internet never purported to be a minor under the age of sixteen 

but over the age of thirteen during their discussions. In support of this allegation, 

Jain cites this Court to what he purports is a printout of the online chat he had with 

the officer, marked “Exhibit C” and attached to his motion to withdraw his plea, 

which contains no reference to the parties’ respective ages. 

{¶14} As previously noted, the burden to establish the existence of 

manifest injustice is on the defendant. Smith, 49 Ohio St.2d at paragraph one of 

the syllabus. Further, 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. Id. at paragraph two of the syllabus. 

 

3

 Jain also relies on State v. Tarbay, 157 Ohio App.3d 261, 810 N.E.2d 979, 2004 -Ohio-2721 in support of 

his argument. However, Tarbay involved the constitutionality of R.C. 2907.07(E)(2), and the point of law 

upon which Jain relies in this case is taken out of context and in no way meant to limit the term “solicit” 

solely to asking. 
Case No. 2-09-25 

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{¶15} Jain has not provided this court with a transcript of the evidentiary 

hearing on his motion to withdraw his plea. Therefore, we do not know if Exhibit 

C was admitted into evidence, if it was a complete copy of all conversations, 

online or otherwise, that occurred between Jain and the undercover officer, or if 

any other exhibits were admitted or testimony provided to the trial court at this 

hearing regarding Jain’s knowledge of the circumstances surrounding the offense. 

Moreover, Jain has not provided us with the transcript of his plea hearing in order 

for us to examine what exactly occurred during that hearing either. 

{¶16} The duty to provide a transcript for appellate review falls upon the 

appellant. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 

N.E.2d 384; see, also, App.R. 16(A)(7). Where 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 has no choice but to presume 

the validity of the lower court’s proceedings and affirm. Knapp, supra. Without 

the ability to examine what was before the trial court in reaching its decision to 

deny Jain’s motion, we cannot find that the trial court abused in discretion in 

finding that Jain “acknowledged in open court that he indeed did attempt to solicit 

what he thought was a 14-year-old girl, who was really an adult officer, through 

his efforts electronically via the computer and then telephone” and that Jain failed 
Case No. 2-09-25 

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to meet his burden with respect to his Crim.R. 32.1 motion. Therefore, the second 

assignment of error is overruled. 

Third Assignment of Error

{¶17} In his third assignment of error, Jain contends that the trial court 

erred in denying his motion because he received ineffective assistance of counsel. 

In support of this assertion, Jain maintains that counsel did not provide him with a 

real understanding of the conduct that constitutes the crime under the statute. 

{¶18} “In order to prevail on a post-sentence motion to vacate that alleges 

ineffective assistance of counsel, a defendant is required to show that (1) his 

counsel’s performance was, in fact, deficient, and (2) there is a reasonable 

probability that, but for counsel’s errors, the defendant would not have pleaded 

guilty and instead, would have insisted on going to trial.” State v. Wynn (1998), 

131 Ohio App.3d 725, 729, 723 N.E.2d 627. 

{¶19} Once again, this Court does not have a transcript from any of the 

hearings in this case. Therefore, we have no evidence to review in order to 

determine whether Jain’s original counsel’s performance was deficient and/or 

whether there was a reasonable probability that, but for these perceived errors, Jain 

would not have pleaded guilty. Thus, we presume regularity in the trial court’s 

proceedings and find that the trial court did not abuse its discretion in denying 
Case No. 2-09-25 

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Jain’s motion to withdraw. Accordingly, the third assignment of error is 

overruled. 

Fourth Assignment of Error 

{¶20} Jain asserts in his fourth assignment of error that the trial court erred 

in overruling his motion to withdraw his guilty plea because he received 

ineffective assistance of counsel in advising him to plead to this offense when he 

was entrapped by law enforcement into committing the offense. However, the 

State maintains in its brief to this Court that Jain did not raise this issue in the trial 

court and is precluded from doing so for the first time on appeal. 

{¶21} In his brief to this Court, Jain does not state that he raised and argued 

this issue before the trial court.4

 Further, he has failed to reference where in the 

record he raised this issue as required by App. R. 16(A)(3), (7). In addition, our 

review of Jain’s motions to withdraw his guilty plea and supplements thereto 

reveals that the defense of entrapment was never raised as a basis for claiming 

ineffective assistance of counsel to support Jain’s motion to withdraw. Rather, the 

grounds provided by Jain to support his motion to withdraw were that attempted 

importuning was not a cognizable offense and that defense counsel was ineffective 

for recommending that he plead guilty when there was no evidence regarding the 

 

4

 Jain also did not file a reply brief in the case sub judice rebutting this assertion by the State. 
Case No. 2-09-25 

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law enforcement officer’s purported age during their internet conversations, which 

was addressed in the second assignment of error. 

{¶22} We have previously held “that a defendant may not bring up an issue 

for the first time on appeal.” State v. Harmon, 3rd Dist. No. 8-04-01, 2004-Ohio4012, ¶ 16. Thus, a defendant’s failure to raise an issue before the trial court 

“operates as a waiver of his right to assert it for the first time on appeal.” 

Hypabyssal, Ltd. v. Akron Hous. Appeals Bd. (2000), 9th Dist. No. 20000, 2000 

WL 1729471, citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 

611 N.E. 830, 1993-Ohio-49. See also App.R. 12(A)(2); App.R. 16(A)(7). 

{¶23} Again, this Court does not have a transcript from any of the hearings 

in this case. As such, we have no way of knowing whether this issue was raised in 

the trial court at the hearing on the motion to withdraw. Accordingly, we may 

disregard this assignment of error pursuant to App.R. 12(A)(2). Nevertheless, 

even if the issue were raised in the trial court, we have no evidence to review in 

order to determine whether Jain’s original counsel’s performance was deficient 

and/or whether there was a reasonable probability that, but for these perceived 

errors, Jain would not have pleaded guilty. Thus, we presume regularity in the 

trial court’s proceedings and overrule the fourth assignment of error. 
Case No. 2-09-25 

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{¶24} For these reasons, the judgment of the Common Pleas Court of 

Auglaize County, Ohio, is affirmed. 

 Judgment Affirmed 

PRESTON, J., concurs. 

/jlr 

ROGERS, J., concurring separately. 

{¶26} I concur with the majority on assignments of error numbers two, 

three, and four. As to assignment of error number one, I concur with the result, 

but not the logic. I think the majority has failed to strictly interpret the statute 

against the state as required by R.C. 2901.04(A). I would find that “solicit” 

equates with an attempt to influence, persuade or convince another to do an act or 

to engage in criminal activity. 

{¶27} However, under the facts of this case I would find that the perceived 

manifest injustice is outweighed by the doctrine of finality of judgments. The 

Ohio Supreme Court has addressed this doctrine in civil cases. 

A claim under Civ.R. 60(B) requires the court to carefully 

consider the two conflicting principles of finality and perfection. 

In Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144-145, 24 OBR 

362, 364, 493 N.E.2d 1353, 1356, this court declared, “[f]inality 

requires that there be some end to every lawsuit, thus producing 

certainty in the law and public confidence in the system's ability 

to resolve disputes. Perfection requires that every case be 
Case No. 2-09-25 

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litigated until a perfect result is achieved. For obvious reasons, 

courts have typically placed finality above perfection in the 

hierarchy of values.” Finality is particularly compelling in a 

case involving determinations of parentage, visitation and 

support of a minor child. 

Strack v. Pelton (1994), 70 Ohio St.3d 172, 175. 

{¶28} It is reasonable that the same principle apply in criminal cases, 

especially when a great deal of time has passed since the alleged injustice and 

where the defendant knowingly accepts a negotiated plea deal to avoid a felony 

conviction. See State v. Reynolds, 79 Ohio St.3d 158, 162, 1997-Ohio-304; State 

v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, ¶12; State v. Hall, 8th Dist. No. 

90972, 2008-Ohio-5351, ¶13 (discussing the need for finality in criminal cases). 

Here, the Appellant has been satisfied with the result reached in his criminal case 

for five and one-half years. Now he apparently finds himself confronted with an 

unintended result, at least from his perspective; his immigration status is at risk. 

However, I note that he withdrew the argument that the trial court had failed to 

advise him at the time of his plea of the potential effect on his immigration status. 

Therefore, the Appellant was aware of the possibility of this happening and 

accepted that risk at the time of the plea. Had this motion come before the trial 

court within a more reasonable time, I might reach a different result, but, under the 

circumstances of this case, I find the motion to be untimely in view of the doctrine 
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of finality of judgments. Accordingly, I concur with the majority’s disposition 

affirming the decision of the trial court for the foregoing reasons. 

/jlr