[Cite as State v. Dunlap , 2020-Ohio-4375.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsKYLE J. DUNLAP Defendant-Appellant JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. Case No. 2020 CA 00029

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 2018 CR 00710

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 9, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant WILLIAM C. HAYES SAMUEL H. SHAMANSKY PROSECUTING ATTORNEY DONALD L. REGENSBURGER PAULA M. SAWYERS COLIN E. PETERS ASSISTANT PROSECUTOR ASHTON C. GAITANOS 20 South Second Street, Fourth Floor 523 South Third Street Newark, Ohio 43055 Columbus, Ohio 43215Licking County, Case No. 2020 CA 00029 2
Wise, John, J. {¶1} Appellant, Kyle J. Dunlap, appeals his conviction and sentence after a negotiated guilty plea in the Licking County Court of Common Pl eas. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. STATEMENT OF THE FACTS AND CASE {¶2} On October 4, 2018, Appellant was indicted with one count of Il legal Assembly or Possession of Chemica ls for the Manufacture of Drug s, in violation of R.C. 2925.041, a felony in the second degree, and two counts of Ille gal Manufacture of Drugs; Illegal Cultivation of Marihuana, in violation of R.C. 2 925.04, both felonies of the second degree. {¶3} On April 18, 2019, the State of Ohio and the Appellant reached a negotiated plea agreement. In exchange for the Appellant pleadi ng guilty to all three charges of the indictment, the State would defer at sentencing and not argue that the applicable presumption in favor of a prison term should apply. {¶4} On August 13, 2019, Appellant entered a plea of guilty to Count s One, Two, and Three to the indictment. After accepting Appellant’s g uilty plea, the trial court proceeded to sentencing. Trial counsel for Appellant referenced Appellant’s efforts to assist investigators by proffering information to the Central O hio Drug Enforcement Task Force (“CODE”) in hopes to mitigate the sentence. {¶5} When asked fo r a recommendation, the p rosecuting attorney state d he didn’t “believe that there was any cooperation with the Central Ohio Drug Enforcement Task Force. I don’t believe that the individual that he mention s being in the county jail had anything to do with anything that was provided by this Defe ndant.”Licking County, Case No. 2020 CA 00029 3 {¶6} The trial court then sentenced Appellant to an eight-year manda tory prison
term. {¶7} Thereafter, Appellant filed Appellant’s Motion to Withdraw Plea . In an Affidavit to support the motion, Appellant asserts that his tri al counsel assured him it was overwhelmingly likely that he would be placed on probation if he entered a plea of guilty to the original indictment. Counsel predicted there was a 99% likelihood that Appellant would be placed on probation and that any period of i ncarceration would not exceed sixty days of local jail time. Affidavit further asserts trial counsel told Appellant he had spoken to the judge the previous day, who had remarked t hat trial counsel must have been pleased that the case was resolving in the manner he hoped it would. {¶8} The trial court denied Appellant’s Motion to Withdraw Plea, fin ding that the Appellee’s statements at sentencing were made to correct the re cord, and there was no breach of the parties’ plea agreement. The court also noted tha t the comments did not affect the sentence imposed. The trial court found the Appellan t failed to demonstrate that a plea withdrawal was necessary to prevent manifest injust ice, and that Appellant failed to provide sufficient evidentiary support to justify con ducting an evidentiary hearing. ASSIGNMENT OF ERROR {¶9} On March 19, 2020, Appellant filed a notice of appeal. He herei n raises the following three Assignments of Error: {¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO BREACH OF THE PLEA AGREEMENT BETWEEN THE PARTIES AND THAT APPELLANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OF THELicking County, Case No. 2020 CA 00029 4
PARTIES’ AGREEMENT OR WITHDRAWAL OF HIS GUILTY PLEA, IN VIOLATI ON OF HIS RIGHTS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS. {¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DENYING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE SA ID PLEA WAS ENTERED INVOLUNTARILY AND IN REASONABLE RELIANCE ON HI S FORMER ATTORNEY’S ASSURANCES THAT A GUILTY PLEA WOULD RESULT IN A SENTENCE MORE LENIENT THAT THE SENTENCE IMPOSED. {¶12} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST FOR AN EVIDENTIARY HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA, IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.” I. {¶13} In Appellant’s First Assignment of Error, Appellant argues that Appellee’s comments during sentencing breached his plea agreement with the State, and the trial court must either grant the withdrawal of the plea or require s pecific performance of the agreement and be resentenced by a different judge. We disagree. {¶14} Plea agreements are subject to contract-law principles. State v. Felder , 5 th Dist. Muskingum No. CT2017-0037, 2018-Ohio-826, ¶16. They shoul d be construed strictly against the government. State v. Walsh , 5 th Dist. Licking No. 14-CA-110, 2015- Ohio-4135, ¶17. The prosecutor must fulfill any promise made in a plea agreemen t which induced the defendant to plea. Id. To show the plea agreement was broken, the defendant must show the prosecutor did not fulfill the promise. Id . A prosecutor’s failureLicking County, Case No. 2020 CA 00029 5 to fulfill the terms of the plea agreement may “render a defend ant’s plea involuntary and undermine the constitutionality of a conviction based upon that plea.” Id

. {¶15} An agreement for the prosecution to defer on sentencing does no t preclude the government’s participation at the sentencing heari ng. State v. Shrider , 5 th Dist. Muskingum No. CT2017-0089, 2018-Ohio-3539, ¶21. Such agre ement only restricts the government’s attempts to influence the sentence b y presenting the court with conjecture, opinion, or disparaging information already in the court’s possession. Id . The government’s disclosure of relevant factual information o r efforts to correct misstatements do not rise to the level of taking a position on the sentence and does not violate the plea agreement. Id

. {¶16} In State v. Shrider , the State agreed to make no recommendation as to sentencing. Id . at ¶22. At the sentencing hearing, the State disclosed to the court that the defendant failed a drug screen while on bond. Id . The State also referred the letters from the victim’s family to the trial court. Id . The trial court in Shrider held this level of participation by the government in the sentencing hearing is no t tantamount to taking a position at sentencing. Id . at ¶24. {¶17} In this case, the State agreed to defer at sentencing and refra in from arguing that the presumption in favor of a prison term should a pply. At the sentencing hearing, the trial court asked if the prosecution wished to mak e a sentencing recommendation. Appellee stated he had “one correction of recor d.” T. 26. Appellee continued stating, “I don’t believe that there was any cooperat ion with the Central Ohio Drug Enforcement Task Force. I don’t believe that the individua l that he mentions being in the county jail had anything to do with anything that was pr ovided by the Defendant.”Licking County, Case No. 2020 CA 00029 6 T. 26-27. We find Appellee was correcting the record regarding the State’s understanding of the level of cooperation Appellant provided to CODE as is permissible under Shrider

. {¶18} Appellant’s First Assignment of Error is overruled. II. {¶19} In Appellant’s Second Assignment of Error, Appellant argues the trial court abused its discretion in denying Appellant’s motion to withdraw his guilty plea. Appellant contends the plea was entered involuntarily as Appellant reason ably relied on his former attorney’s assurances that a guilty plea would result in a sent ence more lenient than the sentence imposed. We disagree. {¶20} Crim.R. 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 injust ice the court after sentence may set aside the judgment of conviction and per mit the defendant to withdraw his or her plea. {¶21} This Court’s review of the trial court’s ruling on a post-sente nce motion to withdraw plea is “limited to a determination of whether the tri al court abused its discretion. State v. Wallace , 5 th Dist. Perry No.18-CA00015, 2020-Ohio-565, ¶20. As an appellate court may not substitute its judgment for that of the trial court, a post-sentence withdrawal motion should only be granted in extraordinary cases

. Id . Appellant has the burden of establishing a manifest injustice warranting the with drawal of a guilty plea. Id

. {¶22} A manifest injustice may occur if counsel provides erroneous ad vice of counsel regarding the sentence to be imposed. State v. Radel , 5 th Dist. Stark No. 2009-Licking County, Case No. 2020 CA 00029 7 CA-00021, 2009-Ohio-3543, ¶13. Manifest injustice under Crim.R. 32.1 does not automatically result from trial counsel’s erroneous advice or i ncorrect speculation regarding the sentence to be imposed. Id . “[A] defendant’s mistaken belief or impression regarding the consequences of his plea is not sufficient to est ablish that such plea was not knowingly and voluntarily made.” Id . However, a guilty plea entered into because of a “counsel’s representation, as opposed to counsel’s likely pre diction, that such a plea would result in a lesser sentence than the sentence actually re ceived” the trial court must permit post-sentence withdrawal of a guilty plea to preven t manifest injustice. State v. Blatnik , 17 Ohio App.3d 201, 203, 478 N.E.2d 1016, 1020 (6 th Dist. 1984). {¶23} In Blatnik , the record indicated the defendant pled guilty and was then sentenced. Id . at 204. The defendant does not assert any plea arrangement ha d been made concerning the length of his sentence. Id . The defendant also does not assert his counsel represented to him a sentence the state had promised. Id . The defendant only asserts counsel speculated, incorrectly, on the length of the s entence. Id . The Sixth District Court of Appeals found “[a]ccording to the overwhelmin g weight of authority, this bare assertion does not, in and of itself, constitute manifest injustice.” Id

. {¶24} In this case, Appellant asserts trial counsel predicted a 99% l ikelihood he would be placed on probation and that any period of incarcerati on would not exceed sixty days of jail time. Appellant contends these assurances by trial counsel led Appellant to believe an arrangement had been made with respect to his sentence. However, nothing in the record shows that trial counsel told Ap pellant an agreement regarding sentencing had been reached, nor did trial counsel sa y with a certainty that aLicking County, Case No. 2020 CA 00029 8 specific sentence would occur. Trial counsel merely predicted, albeit inaccurately, what he thought the sentence might be. {¶25} Appellant also asserts his trial counsel informed him the day b efore sentencing he conversed with the sentencing judge who commented about counsel being pleased that the case was concluding in the manner that h e hoped it would. However, no representation from the trial counsel to Appellant that an agreement to the length of sentencing had been made, only inaccurate speculation by the trial counsel that due to the trial court’s comments the sentencing would be more lenient than that imposed. {¶26} Therefore, according to the overwhelming weight of authority, t he bare assertion of the attorney’s prediction of the sentence does not , in and of itself, constitute manifest injustice. {¶27} Appellant’s Second Assignment of Error is overruled. III. {¶28} In the Appellant’s Third Assignment of Error, Appellant argues the trial court erred in denying Appellant’s request for an evidentiary h earing on his motion to withdraw his guilty plea. We disagree. {¶29} As noted above, Crim.R. 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 injust ice the court after sentence may set aside the judgment of conviction a nd permit the defendant to withdraw his or her plea.Licking County, Case No. 2020 CA 00029 9 {¶30} Though Crim.R. 32.1 does not expressly require an evidentiary h earing, a hearing is only required if the facts alleged in the motion are accepted as true by the trial court, and those facts would require that the plea be wit hdrawn. State v. Smith , 1 st Dist. Hamilton No. C-180081, 2019-Ohio-3642, ¶34. The decision to hold a hearing is discretionary and may be reversed only if the court abused its discretion. Id . In Smith , the defendant, as well as his attorney, submitted affidavits de monstrating that, because of defendant’s counsel’s drug addiction, he was incapable of fu nctioning as counsel under the Sixth Amendment. Id . at ¶42. {¶31} The defendant must support the allegations made in their motion to withdraw a guilty plea with affidavits and/or the record. State v. Hutchinson , 5 th Dist. No. 16-CA-108, 2018-Ohio-200, 104 N.E.3d 91, ¶43. The defendant is “not entitled to a hearing where he or she failed to provide evidentiary-quality m aterials raising sufficient operative facts which would entitle the defendant to the reques ted relief.” Id . The defendant must present evidence which meets a minimum level of cogency to support his or her motion. Id

. {¶32} In Hutchinson , on October 18, 2016, the defendant pleaded guilty to: felonious assault of a police officer and the second accompanyi ng firearm specification; improper handling of a firearm in a motor vehicle; violation of a protection order; forgery; and possession of criminal tools. Id . at ¶19. Appellant entered an Alford plea to Count II, which was amended to attempted felonious assault and the accomp anying firearm specification. Id

.Licking County, Case No. 2020 CA 00029 10 {¶33} Between October 31, 2016, and November 15, 2016, the defendant filed a series of motions to withdraw his guilty plea, arguing he black ed out and had no memory of telling his trial counsel he agreed to the plea agree ment. Id . at ¶20-21. {¶34} Appellee responded to these motion on November 3, 2016, and November 17, 2016. Id . at ¶21-22. {¶35} On November 29, 2016, the trial court entered a “Decision and O rder Denying Defendant’s Motions to Withdraw Guilty Pleas.” Id . at ¶24. {¶36} This Court held a petitioner’s self-serving affidavit does not meet the minimum level of cogency. Id . at ¶43. “[A] trial court may assess the credibility of a movant’s assertions.” Id . at 44. {¶37} In this case, Appellant submitted a self-serving affidavit, as well as a recorded telephone conversation allegedly between Appellant’s t rial counsel and “John,” an acquaintance of the Appellant, with no accompanying authenti cation. {¶38} Ohio Evid.R. 901 states: (A) General Provision: The requirement of authentication as a condition precedent to admissibility is satisfied by evidence s ufficient to support a finding that the matter in question is what its propo nent claims. {¶39} The recording of the telephone conversation was not accompanied by any authentication, making it inadmissible under Ohio Evid.R. 901 a nd not “evidentiaryquality material.” As such, the only remaining affidavit is App ellant’s self-serving affidavit, which does not meet the minimum level of cogency to support Appellant’s claims of manifest injustice.Licking County, Case No. 2020 CA 00029 11 {¶40} Appellant’s Third Assignment of Error is overruled. {¶41} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is hereby affirmed.

By: Wise, John, J. Gwin, P. J., and Wise, Earle, J., concur.

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