[Cite as State v. Alsip, 2014-Ohio-4180.] 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: September 24, 2014 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. 

Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Ernst & Associates, LLC, and Matthew T. Ernst, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

DENNIS ALSIP, JR., 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-130699 

TRIAL NO. B-1205436 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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FISCHER, Judge. 

{¶1} Defendant-appellant Dennis Alsip appeals the decision of the trial 

court denying his postsentence motion to withdraw his no-contest plea. Alsip argues 

that a manifest injustice occurred when the trial court sentenced him to a maximum 

prison term following his plea because his attorney had promised him that he would 

not receive the maximum sentence upon pleading no contest. Because we determine 

that Alsip failed to present any evidence that he substantially relied on his counsel’s 

advice in entering his plea, we affirm the denial of his motion. 

{¶2} On July 16, 2012, a vehicle driven by Alsip travelled left of center on 

the roadway and struck a vehicle driven by Lisa Hasting head-on, killing her. A 

grand jury indicted Alsip on two counts of aggravated vehicular homicide under R.C. 

2903.06(A)(1) and 2903.06(A)(2). Alsip pleaded no contest to both counts. The 

trial court found Alsip guilty and merged the counts for sentencing. On August 12, 

2013, the trial court sentenced Alsip to the maximum prison term for a seconddegree felony—eight years—and imposed a lifetime driver’s license suspension. 

{¶3} On August 16, 2013, Alsip filed a motion to withdraw his no-contest 

plea and attached an affidavit in support from his counsel, Matthew Ernst. Ernst 

stated that he had discussed Alsip’s case off the record with the trial court and the 

prosecuting attorney. Ernst further stated “[i]t was related to me by [the judge] that 

Mr. Alsip would not receive the minimum sentence and not receive the maximum 

sentence upon entering a plea to the felony of the second degree.” Ernst then 

“informed Mr. Alsip that this deal would not be, and was not to be, discussed on the 

trial record.” On the basis of this evidence, Alsip argued that his plea was not 

voluntarily entered. 
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{¶4} In response to Alsip’s motion, the state filed a memorandum in 

opposition supported by an affidavit from Richard Gibson, the prosecuting attorney 

assigned to Alsip’s case. Gibson averred that he, Ernst, and the trial judge had 

discussed Alsip’s possible change of plea. Ernst had “asked [the judge] what 

sentence she would impose if Alsip changed his plea to guilty or no contest.” Before 

the trial judge had answered, Gibson had told the judge that he would seek the 

maximum sentence. The judge then had “refused to make a commitment on 

sentencing, saying only that she normally did not impose a maximum sentence 

where a plea of guilty or no contest was entered, but that she would look at 

everything before deciding on an appropriate sentence in this case.” 

{¶5} Without holding an evidentiary hearing, the trial court denied Alsip’s 

motion to withdraw his plea. Alsip now appeals. 

{¶6} In his first assignment of error, Alsip alleges that the trial court 

abused its discretion in denying his motion to withdraw his plea under Crim.R. 32.1. 

{¶7} A trial court may permit a defendant to withdraw a guilty plea after 

imposition of a sentence under Crim.R. 32.1 only where “manifest injustice” has 

occurred. State v. Shirley, 1st Dist. Hamilton No. C-130121, 2013-Ohio-5216, ¶ 8; 

State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the 

syllabus. A defendant is not entitled to an evidentiary hearing on a Crim.R. 32.1 

motion unless the facts as alleged in the motion merit withdrawal of the plea. State 

v. Dye, 1st Dist. Hamilton No. C-120483, 2013-Ohio-1626, ¶ 6. The defendant 

carries the burden to demonstrate that a manifest injustice occurred, and a trial 

court’s decision on the matter, as well as its decision whether to hold an evidentiary 

hearing, is reviewed for an abuse of discretion. State v. Kostyuchenko, 2014-Ohio324, 8 N.E.3d 353, ¶ 4 (1st Dist.), citing Smith. 
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{¶8} Alsip asserts that his counsel’s advice that the trial judge would not 

impose the maximum sentence upon a plea resulted in manifest injustice where Alsip 

received the statutory maximum. 

{¶9} Manifest injustice may result from counsel’s statements to a 

defendant regarding a promised sentence; however, “[m]anifest injustice does not 

ipso facto result” from such statements. State v. Testerman, 1st Dist. Hamilton No. 

C-010040, 2001 Ohio App. LEXIS 3605 (Aug. 17, 2001), quoting State v. Blatnik, 17 

Ohio App.3d 201, 203, 478 N.E.2d 1016 (6th Dist.1984). A defendant must have 

substantially relied upon counsel’s communications regarding a promised sentence 

to the defendant’s detriment to create a manifest injustice. See Testerman at *9; 

State v. Lagenkamp, 3d Dist. Shelby Nos. C-17-08-03 and C-17-08-04, 2008-Ohio5308, ¶ 27. 

{¶10} In his Crim.R. 32.1 motion, Alsip relies primarily on State v. Collins, 

1st Dist. Hamilton No. C-970138, 1998 Ohio App. LEXIS 476 (Feb. 13, 1998). In 

Collins, the court reversed a trial court’s decision denying a defendant’s motion to 

withdraw his plea postsentence where the defendant’s trial attorney had erroneously 

told the defendant that an agreement had been reached among himself, the trial 

court, and the prosecutor, to allow the defendant to plead guilty to reduced charges 

in exchange for “low end concurrent sentences,” and the trial court had imposed 

consecutive sentences. Id. at *7-8. In that case, the attorney averred that the 

defendant would not have pleaded guilty had the defendant known that consecutive 

sentences might be a possibility. State v. Collins, 1st Dist. Hamilton No. C-960170, 

1996 Ohio App. LEXIS 4553 (Oct. 16, 1996). Moreover, the defendant testified that 

he had pleaded guilty only because his attorney had told him he would receive 

concurrent sentences. Collins, 1st Dist. Hamilton No. C-970138, 1998 Ohio App. 
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LEXIS 476, at *9. In determining that a manifest injustice had occurred, the court 

reasoned that the defendant’s attorney had rendered ineffective assistance by 

conveying an inaccurate promise of a sentence to the defendant, and that the 

defendant had been induced to enter guilty pleas on that basis. 

{¶11} Even if we construe the factual allegations in Alsip’s motion as true, 

Alsip set forth no evidence to show that he had substantially relied on his attorney’s 

statements to him that he would not receive the maximum sentence upon pleading 

no contest. See Testerman at *11; Lagenkamp at ¶ 27. Unlike Collins, where the 

defendant and his counsel stated that the defendant would not have pleaded guilty 

absent the promised sentence, in this case, we do not have any evidence that Alsip 

would not have pleaded guilty if he thought the maximum sentence might have been 

imposed. Thus, Alsip failed to meet his burden under Crim.R. 32.1, and the trial 

court did not abuse its discretion in denying Alsip’s motion without an evidentiary 

hearing. See Dye, 1st Dist. Hamilton No. C-120483, 2013-Ohio-1626, at ¶ 6. We 

overrule Alsip’s first assignment of error. 

{¶12} In his second assignment of error, Alsip contends that the trial court 

erred in imposing the maximum prison sentence because he lacked a criminal 

record. The trial court entered its judgment of conviction on August 12, 2013, and 

Alsip did not appeal from that order within 30 days as required by App.R. 4(A)(1). 

Therefore, we have no jurisdiction to entertain this assignment of error. See State v. 

Blankenship, 4th Dist. Ross No. 13CA3364, 2013-Ohio-5261, ¶ 4. 

{¶13} In conclusion, we determine that Alsip failed to demonstrate in his 

Crim.R. 32.1 motion that a manifest injustice occurred when the trial court sentenced 

him to the maximum prison term on his no-contest plea, despite his attorney’s 

promise to him that he would not receive the maximum sentence, because Alsip did 
OHIO FIRST DISTRICT COURT OF APPEALS

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not come forth with any evidence indicating that he had substantially relied upon his 

counsel’s advice in choosing to plead. Therefore, we affirm the trial court’s judgment 

denying Alsip’s motion. 

Judgment affirmed. 

CUNNINGHAM, P.J., and DEWINE, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.