[Cite as State v. Turner, 2016-Ohio-3200.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

EDWARD L. TURNER 

Defendant-Appellant

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C.A. CASE NO. 26801 

T.C. NO. 14CR2504 

(Criminal appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the ___27th___ day of ___May___, 2016. 

. . . . . . . . . . . 

MEAGAN D. WOODALL, Atty, Reg. No. 0093466, Assistant Prosecuting Attorney, 301 

W. Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

EDWARD L. TURNER, #711-599, Madison Correctional Institution, P. O. Box 740, 

London, Ohio 43140 

Defendant-Appellant 

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DONOVAN, P.J. 

{¶ 1} Defendant-appellant, Edward L. Turner, acting pro se, appeals a decision of 

the Montgomery County Court of Common Pleas, Criminal Division, denying his motion 

to withdraw his guilty plea. Turner filed a timely notice of appeal with this Court on 

August 17, 2015. 

{¶ 2} On August 27, 2014, Turner was indicted for the following offenses, to wit: I) 
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felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of 

the second degree; II) felonious assault (deadly weapon), in violation of R.C. 

2903.11(A)(2), a felony of the second degree; III) having a weapon while under disability 

(prior offense of violence), in violation of 2929.13(A)(2), a felony of the third degree; IV) 

tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), a felony of the 

third degree; and V) having a weapon while under disability (prior drug conviction), in 

violation of R.C. 2929.13(A)(3), a felony of the third degree. Both counts of felonious 

assault were accompanied by mandatory three-year firearm specifications. At his 

arraignment on September 2, 2014, Turner pled not guilty to all of the charges in the 

indictment. 

{¶ 3} Thereafter, on November 26, 2014, Turner pled guilty to tampering with 

evidence (alter/destroy), as well as both counts of having a weapon while under disability. 

In return for his guilty plea, the State agreed to dismiss both counts of felonious assault 

and their attendant firearm specifications. Turner and the State also agreed that his 

aggregate sentence would range between three and five years for the three guilty pleas. 

The trial court accepted Turner’s pleas and found him guilty on all three counts. 

{¶ 4} On December 11, 2014, the trial court merged the two convictions for having 

a weapon while under disability. The trial court then sentenced Turner to 36 months in 

prison for the merged count of having a weapon while under disability and 24 months for 

tampering with evidence. The trial court ordered that the sentences be served 

consecutively for an aggregate prison term of five years (60 months). Turner’s judgment 

entry of conviction was filed on December 16, 2014. The record establishes that Turner 

did not file a direct appeal of his conviction and sentence. 
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{¶ 5} However, approximately seven months later on July 10, 2015, Turner filed a 

motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. In his motion to withdraw, 

Turner argued that his counsel was ineffective for not objecting when the trial court failed 

to make the requisite findings pursuant to R.C. 2929.14(C)(4) before imposing 

consecutive sentences. In a decision issued on July 22, 2015, the trial court denied 

Turner’s motion to withdraw. 

{¶ 6} It is from this judgment that Turner now appeals. 

{¶ 7} As they are all interrelated, Turner’s three assignments of error will be 

discussed together as follows: 

{¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTAPPELLANT IN GRANTING THE STATE OF OHIO A SUMMARY JUDGMENT IN 

VIOLATION OF HIS ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW 

AS GUARANTEED BY THE 14TH AMENDMENT, U.S. CONSTITUTION, AS WELL AS 

ARTICLE 1, S/S10, OHIO CONSTITUTION.” 

{¶ 9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTAPPELLANT IN NOT ORDER [sic] AND CONDUCTING AN EVIDENTIARY HEARING 

BEFORE ENTERING JUDGMENT IN THE CASE IN VIOLATION OF HIS ABSOLUTE 

RIGHT TO PROCEDURAL DUE PROCESS OF LAW AS GUARANTEED UNDER THE 

OHIO AND U.S. CONSTITUTION.” 

{¶ 10} “IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT NOT TO 

MODIFY DEFENDANT-APPELLANT’S FIVE (5) YEAR SENTENCE TO A JUDGMENT 

OF THREE (3) YEARS IN VIOLATION OF HIS ABSOULTE RIGHT TO PROCEDURAL 

PROCESS OF LAW.” 
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{¶ 11} In the instant appeal, Turner contends that the trial court erred when it 

denied his post-sentence motion to withdraw his guilty pleas. Specifically, Turner argues 

that his motion to withdraw should have been granted because his trial counsel failed to 

object when the trial court imposed consecutive sentences without first making the 

requisite statutory findings under R.C. 2929.14(C)(4). Turner also asserts that the trial 

court should have held an evidentiary hearing during which he could have presented 

documentation to support his motion to withdraw. Lastly, Turner argues that because 

the trial court failed to make the proper findings under R.C. 2929.14(C)(4), “he was 

presumed to be entitled to concurrent sentences that totaled no more than thirty-six (36) 

months rather than the sixty (60) months imposed.” 

{¶ 12} We review a trial court's decision on a post-sentence motion to withdraw a 

guilty plea and on a decision granting or denying a hearing on the motion for an abuse of 

discretion. Xenia v. Jones, 2d Dist. Greene No. 07–CA–104, 2008–Ohio–4733, ¶ 

6; State v. Perkins, 2d Dist. Montgomery No. 25808, 2014–Ohio–1863, ¶ 27. “An abuse 

of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal decisionmaking.’ ” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011–Ohio–5070, ¶ 16, 

quoting State v. Beechler, 2d Dist. Clark No. 09–CA–54, 2010–Ohio–1900, ¶ 62. (Other 

citation omitted.) “Absent an abuse of discretion on the part of the trial court in making 

the ruling, its decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 

715 (1992). 

{¶ 13} Crim.R. 32.1 provides that a trial court may grant a defendant's postsentence motion to withdraw a guilty plea only to correct a manifest injustice. 

Accordingly, a defendant who moves to withdraw his plea bears the burden of 
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establishing a manifest injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No. 

19013, 2002–Ohio–2278, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 

(1977), paragraph one of the syllabus. “A manifest injustice comprehends a fundamental 

flaw in the path of justice so extraordinary that the defendant could not have sought 

redress from the resulting prejudice through another form of application reasonably 

available to him or her.” State v. Brooks, 2d Dist. Montgomery No. 23385, 2010–Ohio–

1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 WL 957746, 

*2 (Aug. 20, 1999). Under this standard, a post sentence motion to withdraw is allowable 

only in extraordinary cases. Smith at 264. 

{¶ 14} “A hearing on a post-sentence motion to withdraw a guilty plea is not 

necessary if the facts alleged by the defendant, even if accepted as true, would not require 

the court to grant the motion to withdraw the guilty plea.” State v. Mogle, 2d Dist. Darke 

Nos. 2013–CA–4, 2013–CA–5, 2013–Ohio–5342, ¶ 17, quoting State v. Burkhart, 2d 

Dist. Champaign No. 07–CA–26, 2008–Ohio–4387, ¶ 12. In other words, “[t]o obtain a 

hearing, ‘a movant must establish a reasonable likelihood that the withdrawal is 

necessary to correct a manifest injustice[.]’ ” State v. Tunstall, 2d Dist. Montgomery No. 

23730, 2010–Ohio–4926, ¶ 9, quoting State v. Whitmore, 2d Dist. Clark No. 06–CA–50, 

2008–Ohio–2226, ¶ 11. “[W]e have held that no hearing is required on a post-sentence 

motion to withdraw a plea where the motion is supported only by the movant's own selfserving affidavit, at least when the claim is not supported by the record.” (Citations 

omitted.) State v. Stewart, 2d Dist. Greene No. 2003–CA–28, 2004–Ohio–3574, ¶ 6. 

{¶ 15} We recently addressed a strikingly similar situation in State v. Walz, 2d Dist. 

Montgomery No. 26131, 2014-Ohio-4712, wherein the defendant entered guilty pleas to 
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two counts of felonious assault and one count of failure to comply. Id. at ¶ 4. The trial 

court merged the felonious assault convictions. Id. It then imposed a five-year sentence 

for felonious assault and a consecutive one-year sentence for failure to comply. Id. The 

defendant did not appeal. Id. Approximately five months later, the defendant filed a pro 

se Crim.R. 32.1 motion to withdraw his guilty pleas. Id. at ¶ 5. Pertinent to the instant 

appeal, the defendant argued that his counsel was ineffective at sentencing for failing to 

object to a lack of consecutive-sentence findings on the felonious assault and failure-tocomply charges. Id. 

{¶ 16} Ultimately, we affirmed the judgment of the trial court denying the 

defendant’s motion to withdraw, stating as follows: 

Here the manifest injustice Walz alleged was ineffective assistance 

of trial counsel. Specifically, he alleged that his guilty pleas were not 

entered knowingly, intelligently, and voluntarily because he was deprived of 

effective assistance of counsel at sentencing. As set forth above, he 

claimed counsel, at sentencing, * * * failed to object to a lack of consecutivesentence findings * * *. 

The foregoing sentencing-related arguments have nothing to do with 

the guilty pleas that preceded sentencing. Even if we assume, arguendo, 

the existence of some error or ineffective assistance of counsel at 

sentencing, those issues fail to establish a manifest injustice 

warranting withdrawal of the guilty pleas themselves. Walz's arguments 

are not even directed toward the pleas, which were the only proper subject 

of his Crim.R. 32.1 motion. [State v. Ogletree, 2d Dist. Clark No. 2014–
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CA–16, 2014–Ohio–3431,] ¶ 19–20 (finding that the trial court's alleged 

failure to make consecutive-sentence findings did not constitute grounds 

for withdrawing a plea under Crim.R. 32.1). Because Walz has not 

demonstrated entitlement to withdraw his guilty pleas even if his allegations 

are true, the trial court was not required to hold an evidentiary hearing. 

Walz at ¶ 8-9. 

{¶ 17} Initially, we note that the transcript of the sentencing hearing clearly 

indicates that the trial court made the requisite findings pursuant to R.C. 2929.14(C)(4) 

before it imposed consecutive sentences. Additionally, on December 15, 2014, the trial 

court issued a “Supplemental Termination Entry: Findings in Support of Consecutive 

Sentences” in which it journalized its findings pursuant to R.C. 2929.14(C)(4) in support 

of its decision to impose consecutive sentences. Moreover, the parties agreed to a 

sentence within the range of three to five years. Nevertheless, Turner’s sentencing 

argument has nothing to do with whether he entered his guilty pleas knowingly, 

intelligently, or voluntarily. Walz at ¶ 10. Therefore, in accordance with our prior holding 

in Walz, we find that Turner has not demonstrated a manifest injustice 

warranting withdrawal of his guilty pleas, and the trial court did not err when it declined to 

hold an evidentiary hearing on his motion to withdraw. 

{¶ 18} Lastly, we reiterate that in Ogletree, we held that an argument about a lack 

of consecutive-sentence findings could not be raised in the context of a 

Crim.R. 32.1 motion to withdraw a guilty plea. We further opined that the issue could 

have been raised in a direct appeal and, therefore, that res judicata also precluded it from 

being raised in a post-judgment context. Ogletree at ¶ 21–22. In another recent case, 
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this court held that the absence of required consecutive-sentence findings renders the 

sentence imposed contrary to law and “not merely voidable, but void.” State v. 

Rammel, 2d Dist. Montgomery Nos. 24871, 24872, 2013–Ohio–3045, ¶ 19 (Rammel II). 

However, in State v. Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2014–Ohio–

1281 (Rammel III ), we further recognized, citing R.C. 2953.08(D)(1), that an agreed 

sentence is not reviewable on appeal. Id. at ¶ 10. And, we have recently held that 

findings to justify a consecutive sentence are unnecessary when the sentence is an 

agreed sentence. State v. Weese, 2d Dist. Clark No. 2013–CA–61, 2014–Ohio–3267, 

¶ 5; accord State v. Sergent, -- Ohio St.3d --, 2016-Ohio-2696 (a trial court judge is not 

required to make a separate consecutive-sentence finding if presented with a jointly 

recommended sentence that contains consecutive sentences). But regardless of 

whether res judicata would apply, we agree with Ogletree that a lack of consecutivesentence findings does not constitute grounds for withdrawing a plea under Crim.R. 32.1, 

which is the only issue before us. 

{¶ 19} Turner’s first, second, and third assignments of error are overruled. 

{¶ 20} All of Turner’s assignments of error having been overruled, the judgment of 

the trial court is affirmed. 

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HALL, J. and WELBAUM, J., concur. 

Copies mailed to: 

Meagan D. Woodall 

Edward L. Turner 

Hon. Mary L. Wiseman