[Cite as State v. Clark , 2021-Ohio-2531.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. WILLIAM H. CLARK Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-1

Trial Court Case No. 2014-CR-288 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 23rd day of July, 2021.

. . . . . . . . . . . R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Prosecuting Attor ney, Darke County Prosecutor’s Office, 504 South Broadway, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee WILLIAM H. CLARK, #A713-258, P .O. Box 5500 Chillicothe, Ohio 45 601 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .-2-

EPLEY, J. {¶ 1} Defendant-Appellant William H. Cla rk appeals from a judgment of the Darke County Court of Common Pleas, which overruled his motion to wit hdraw his guilty plea without a hearing. For the reasons that follow, the trial court ’s judgment will be affirmed. I. Facts and Procedural History {¶ 2} In November 2014, Clark was indicted on 11 counts of rape of a person less than 13 years of age in violation of R.C. 2907.02(A)(1)(b). The charges stemmed from allegations that Clark had sexually abused his minor stepdaught er from July 2011 until August 2014 at various residences in and around Greenville. {¶ 3} In February 2015, Clark agreed to enter an Alford guilty plea, and in exchange, the State agreed to dismiss six rape counts and amend the other five to sexual battery, in violation of R.C. 2907.03(A). As part of the plea, the parties agreed to a jointlyrecommended sentence of 25 years in prison. It was also agreed that Clark would be designated as a Tier III sex offender. {¶ 4} At the plea hearing, the court conducted a full Crim.R. 11 plea colloquy and accepted Clark’s Alford plea to the five counts of sexual battery, finding that his pl ea was entered in a knowing, intelligent, and voluntary fashion. The t rial court proceeded directly to disposition and imposed the agreed-upon mandatory 25-year se ntence. {¶ 5} Clark did not file a direct appeal; instead, he filed a series of post-conviction motions. In August 2015, he filed a pro se motion for a new tri al despite not having a trial. Clark claimed that he had discovered, through correspondence wi th his wife, that the victim had recanted her story. Further, he alleged that the Sta te became aware of this information before trial, but neither he nor his counsel was ma de aware of it. In the-3- alternative, Clark requested that the court review his motion f or a new trial as a postconviction relief petition under R.C. 2953.21(A). {¶ 6} The trial court denied the motion without a hearing, reasoning that a motion for a new trial was improper when there was, in fact, no trial. It did not address Clark’s post-conviction alternative. Clark appealed, and we remanded fo r the trial court to review the motion as a post-conviction relief petition under R.C. 2953 .21 and to issue a ruling on the petition in accordance with Crim.R. 35. State v. Clark , 2017-Ohio-120, 80 N.E.3d 1251 (2d Dist.). {¶ 7} Clark moved for the appointment of counsel to assist him in his postconviction pursuit. His request was granted, and new counsel fi led several motions, including a request that the State provide copies of all discov ery turned over to Clark’s original trial counsel. The State complied, and afterward, coun sel filed a supplement to Clark’s original pro se petition for post-conviction relief. Ul timately, the trial court denied the petition, and Clark again appealed to this court. We affirm ed the trial courts judgment and held that Clark was not prejudiced by ineffective assistanc e of counsel and that his claim was barred by res judicata. State v. Clark , 2d Dist. Darke No. 2017-CA-14, 2018-

Ohio-4042. {¶ 8} In June 2020, Clark filed a motion with the trial court to with draw his guilty plea pursuant to Crim.R. 32.1, alleging newly discovered eviden ce. Clark claims that he became aware of medical records in May 2020 that were “not incl uded in the original discovery package.” These records, Clark averred, contradicted statements made by the victim, and had he known about them at the time, he would not h ave pled guilty. In fact, he declared that the documents proved his actual innocence.-4- {¶ 9} In response, the State asserted that all the documents were tur ned over to defense counsel in 2015 prior to Clark’s plea. Clark insisted, however, that his original

trial counsel “withheld this valuable and vital information” fr om him. To settle the discrepancy, the trial court ordered that counsel provide “copi es of any communications or other writings which describe or identify which documents an d tangible evidence were provided to the Defendant. Copies of the documents and tangible evidence shall also be provided.” The items were disclosed under seal. {¶ 10} In December 2020, the trial court denied Clark’s motion to with draw his plea. It found that the motion was “both untimely and an impermissibl e use of Criminal Rule 32.1,” and therefore considered Clark’s motion “as one for post -conviction relief pursuant to R.C. 2953.21.” The court concluded that there was not any ne wly discovered evidence and that Clark had “failed to establish any manifest injustice in [his] conviction.” {¶ 11} Clark has filed a timely appeal.

II. The trial court did not abuse its discretion and counsel wa s not

ineffective {¶ 12} Clark now argues that the trial court abused its discretion whe n it “recharacterized or converted” his motion to withdraw his plea into a post-conviction relief petition. He also alleges that his trial counsel was ineffectiv e for allegedly failing to inform him about favorable evidence, making his plea less than knowing , intelligent, and voluntary. {¶ 13} Crim.R. 32.1 states that “[a] motion to withdraw a plea of guil ty or no contest may be made only before sentence is imposed; but to correct a m anifest injustice the court after sentence may set aside the judgment of conviction a nd permit the defendant-5- to withdraw his or her plea.” The Supreme Court of Ohio has hel d that a pre-sentence motion to withdraw a plea “should be freely and liberally grant ed.” State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). {¶ 14} Post-sentence motions to withdraw a guilty plea, on the other h and, may only be made to correct a manifest injustice. Crim.R. 32.1. “Ma nifest injustice relates to some fundamental flaw in the proceedings which result[s] in a m iscarriage of justice or is inconsistent with the demands of due process.” State v. Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5

. “Under the standard of manifest injustice, a postsentence withdrawal motion is allowable only in extraordina ry cases.” State v. Day , 2d Dist. Greene No. 2015-CA-15, 2016-Ohio-36, ¶ 18. The moving party has the burden of showing manifest injustice. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. {¶ 15} Appellate courts review motions to withdraw guilty plea decisio ns for abuse

of discretion. State v. Rozell , 2018-Ohio-1722, 111 N.E.3d 861, ¶ 25 (2d Dist.). Abuse of

discretion has been defined as an attitude that is “unreasonabl e, arbitrary or

unconscionable.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be expected that most

instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that would support that decision.” Id. {¶ 16} While Crim.R. 32.1 does not set out a time limitation to file a motion to withdraw, some courts have recognized one. The Third District, for example, has held that “a trial court has no authority to even consider a motion to withdraw a plea after a-6- conviction has been affirmed on appeal; or if there was no appe al, after the time for filing the original appeal has passed.” State v. Carter, 3d Dist. Allen No. 1-11-36, 2011-Ohio6104, ¶ 11. See also State v. Caston , 6th Dist. Erie No. E-11-077, 2012-Ohio-5260. {¶ 17} Other courts of appeals, such as this one, have held that an “u ndue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” (Citations omitted.) State v. Cardenas , 2016-Ohio-5537, 61 N.E.3d 20, ¶ 29 (2d Dist.). {¶ 18} In this case, the trial court, using the logic from the Third a nd Sixth Districts, determined that because the time for filing the original appeal had passed, Clark’s motion to withdraw his plea was untimely, and it no longer had the abi lity to decide the motion as filed. Instead, the court recast the motion as one for post-con viction relief pursuant to R.C. 2953.21. Converting the motion to withdraw the plea into a post -conviction relief petition, however, was an error. {¶ 19} Generally, courts have the abilit y to “recast irregular motions into whatever category [is] necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. Some motions, however, may not be changed by the trial court, a nd this is one of those cases. The Ohio Supreme Court has held that “R.C. 2953.21 and 2 953.23 do not govern a Crim.R. 32.1 postsentence motion to withdraw a guilty plea. P ostsentence motions to withdraw guilty or no contest pleas and postconviction relief p etitions exist independently.”

State v. Bush , 96 Ohio St.3d 235, 239, 2002-Ohio-3993, 773 N.E.2d 522. See also Schlee at ¶ 13.-7- {¶ 20} While the trial court erred in recasting the motion, the analys is does not end there. We must determine, pursuant to Crim.R. 32.1, if denying Clark’s motion to withdraw his plea after sentencing created a manifest injustice. As stat ed above, to rise to the level of manifest injustice, the denial must equate to a miscarriage of justice or be inconsistent with the demands of due process. Williams at ¶ 5

. We do not find that here. {¶ 21} Clark first claims that he did not have access to some “favorab le evidence” (in the form of medical records of both him and the victim) bef ore his plea – going as far as to say that counsel “deliberately withheld evidence from [hi m] which was in [his] favor,” and accusing counsel and the State of conspiring against him to facilitate a guilty plea. {¶ 22} The trial court addressed this contention below, ordering Clark ’s trial attorney to demonstrate that all the medical records were not j ust turned over by the prosecution prior to the plea hearing, but shared with Clark. A fter considering the evidence received from Clark’s counsel in response to the order , the trial court specifically found that there was no newly discovered evidence and that “[t] he Defendant’s attorney reviewed [the medical records] with the Defendant.” Judgment En try at 3. {¶ 23} Taking the facts as relayed by the trial court as true, we cann ot say that denying Clark’s request to withdraw his guilty plea resulted in a manifest injustice in this case. The court considered Clark’s claim, investigated the tria l attorney’s conduct, received documents from the attorney, and then after reviewing them, made a reasonable decision to deny Clark’s motion to withdraw his guilty plea. It appears that Clark had all the State’s evidence against him and chose to take the substant ial benefit offered by pleading guilty – the dismissal of numerous charges and a drama tic reduction in possible prison time.-8- {¶ 24} We now turn to Clark’s next claim that he was a victim of ineff ective assistance of counsel because, he alleges, trial counsel did no t make him aware of the medical records before his plea. {¶ 25} It is well established that ineffective assistance of counsel c an constitute the manifest injustice required to permit the post-sentence withdra wal of a guilty plea. State

v. Banks , 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9. To establ ish an ineffective assistance of counsel claim, a defendant must sa tisfy the two-pronged test

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must demonstrate that (1) defense counsel’s perfo rmance was so poor that he or she was not functioning as the counsel guaranteed by the Sixth Amendment, and (2) the defendant was prejudiced by counsel’s errors. Id . To demonstrate prejudice, “the defendant must prove that there exists a reasonable probab ility that, were it not for counsel’s errors, the result of the trial would have been diffe rent.” State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1998), first paragraph of the s yllabus. {¶ 26} A guilty plea, including an Alford plea, waives all appealable errors, including claims of ineffective assistance of counsel, except t o the extent that the errors precluded the defendant from knowingly, intelligently, and volu ntarily entering his or her guilty plea. State v. Riddle , 2017-Ohio-1199, 88 N.E.3d 475, ¶ 26 (2d Dist.). {¶ 27} Here, the record establishes that counsel did not act deficient ly, and the analysis can stop at the first prong. Despite Clark’s contentio n to the contrary, the trial court found that his trial attorney shared the required medical records with him during the discovery process, prior to his pleading guilty. With that, Cla rk had the information he stated he needed to make a knowing, intelligent, and voluntary plea. Any other potential-9- argument is negated by the Alford plea. {¶ 28} One final argument is weaved throughout Clark’s brief: that the State was in possession of his medical records and purposely concealed them from him. For its part,

the State concedes that while it turned over other medical reco rds, it did not provide Clark with a copy of his own records prior to the guilty plea. Provid ing Clark with his own records, however, was not the State’s responsibility. See Shank v. Mitchell , S.D. Ohio No. 2:00-cv-17, 2009 WL 3210350, *9 (Sept. 30, 2009) (the State has no duty to disclose information that is readily available to the defense through ex ercise of its own diligence); LeCroy v. Secretary, Florida Dept. of Corr. , 421 F.3d 1237, 1268 (11th Cir.2005) (“In this case, defense counsel obviously could have obtained the defenda nt’s own medical and school records by exercising reasonable diligence. Consequently , there is no Brady violation.”); State v. Heisey , 2015-Ohio-4610, 48 N.E.3d 157, ¶ 32-33 (2d Dist.) (the State is not obligated to conduct the defendant’s investigation for h im when the defendant could have obtained the requested information himself). {¶ 29} Like the cases just cited, the State was under no obligation to provide Clark with his own medical records. The purpose of discovery is to ev en the playing field, avoid surprise, and in a criminal case, to allow the accused to intel ligently defend him or herself. Its purpose is not for the State to do the work of the defense attorney. Clark and/or his attorney was certainly capable of obtaining his own medical rec ords. Clark’s argument that it was the State’s duty to provide him with his own record s is without merit. {¶ 30} Finally, it should be noted that even though the trial court re classified the motion as a post-conviction relief petition, it properly used t he “manifest injustice” language associated with motions to withdraw guilty pleas. The ultimate result was-10- correct, and as we have previously held, “[a] decision that ach ieves the right result must be affirmed, even if the wrong reasoning is used to justify the decision, because an error in reasoning is not prejudicial.” John A. Baker Co., v. Jedson Eng., Inc ., 2018-Ohio-3924, 121 N.E.3d 788, ¶ 19 (2d Dist.). See City of Toledo v. Schmiedebusch , 192 Ohio App.3d 402, 2011-Ohio-284, 949 N.E.2d 504 (6th Dist.) (an appeals cour t will not reverse a trial court’s decision that achieves the right result for the wrong r eason because the error is not prejudicial). {¶ 31} The trial court did not abuse its discretion when it denied Cla rk’s motion to withdraw his guilty plea, and his trial counsel was not deficie nt. The assignment of error

is overruled.

III. Conclusion {¶ 32} The trial court’s judgment denying Clark’s motion to withdraw h is guilty plea

will be affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and HALL, J., concur.

Copies sent to: R. Kelly Ormsby, III William H. Clark Hon. Jonathan P. Hein