Opinion
No. 108847
03-05-2020
STATE OF OHIO, Plaintiff-Appellee, v. JAMES WESTLEY, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee. James Westley, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-11-549221-A Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee. James Westley, pro se. RAYMOND C. HEADEN, J.:
{¶ 1} Defendant-appellant James Westley ("Westley") appeals, pro se, from the trial court's denial of his postsentence motion to withdraw his guilty plea and vacate his conviction ("postsentence motion"). For the reasons that follow, we affirm the trial court's judgment.
I. Factual and Procedural History
{¶ 2} On April 19, 2011, Westley was charged with one count of murder, one count of having a weapon while under disability, and one count of carrying a concealed weapon. The murder count carried one- and three-year firearm specifications.
{¶ 3} On October 4, 2011, Westley pleaded guilty to one count of involuntary manslaughter with the firearm specifications. The state nolled the remaining weapons counts. The court strictly complied with Crim.R. 11 during the plea colloquy.
{¶ 4} The court scheduled a sentencing hearing on November 8, 2011. Prior to that hearing, Westley filed a pro se motion to withdraw his guilty plea. Westley's motion was adopted and argued by his defense counsel. The trial court reviewed Westley's plea hearing proceedings and denied his motion. The court sentenced Westley to 11 years in prison.
{¶ 5} Westley appealed on December 5, 2011, challenging the court's denial of his presentence motion to withdraw his plea. See State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 5. This court fully reviewed Westley's arguments and found the trial court did not abuse its discretion when it denied Westley's motion. Id.
{¶ 6} Westley's discretionary appeal was not allowed. State v. Westley, 134 Ohio St.3d 1419, 2013-Ohio-158, 981 N.E.2d 885. Westley's reopening of his appeal was denied in State v. Westley, 8th Dist. Cuyahoga No. 97650, 2013-Ohio-1654, motion No. 460023, and his writ of habeas corpus was denied, dismissed, and certificate of appealability denied in Westley v. Lazaroff, N.D. Ohio No. 1:14 CV 932, 2014 U.S. Dist. LEXIS 129688 (Sept. 15, 2014).
{¶ 7} On May 14, 2019, Westley filed a postsentence motion to withdraw his guilty plea and vacate his conviction that was denied on June 27, 2019. Westley now appeals from the trial court's ruling.
{¶ 8} On July 25, 2019, Westley filed a timely notice of appeal, presenting verbatim the following assignments of error for our review:
[Assignment of Error #1]: The Trial Court Judge abused its discretion in denying the Defendant-Appellant's Postsentence Motion to Withdraw Plea of guilty and vacate conviction where such request was made before the imposition of sentence is suspended to correct a Manifest Injustice.
[Assignment of Error #2]: The Appellant was denied the effective assistance of Counsel in violation of his rights under the Sixth, and Fourteenth Amendment of the United States Constitution, and Article 1, Section 10 of the Ohio State Constitution.
II. Law and Analysis
A. Standard of Review
{¶ 9} We apply an abuse of discretion standard in reviewing a trial court's determination of whether a defendant demonstrated a manifest injustice. State v. Jones, 8th Dist. Cuyahoga Nos. 108073 and 108089, 2019-Ohio-4355, ¶ 13. An abuse of discretion is more than simply an error of law or judgment, and occurs when the court is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
B. Res Judicata
{¶ 10} It is difficult to distinguish Westley's case law and factual evidence presented in support of each assignment of error because Westley does not separately address the two issues but intertwines the arguments throughout his brief. Westley's first assignment of error appears to argue that the trial court abused its discretion when it denied his postconviction motion because a manifest injustice occurred. Specifically, Westley argues that he is innocent; the trial court was prejudiced against him; Westley was pressured and coerced by his attorney to enter a guilty plea; and a manifest injustice occurred when defense and state's counsel as well as the trial judge maliciously concealed exculpatory evidence from Westley. In his second assignment of error, Westley argues that he was denied the effective assistance of counsel when his attorney, acting "as an agent of the state," withheld the victim's statement and then pressured and coerced Westley to enter a guilty plea.
{¶ 11} "Res judicata generally bars a defendant from raising claims in a Crim.R. 32.1 post-sentencing motion to withdraw a guilty plea that he raised or could have raised on direct appeal." State v. Straley, Slip Opinion No. 2019-Ohio-5206, ¶ 23. Accord State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59. Further, res judicata bars claims of ineffective assistance of counsel that were based on facts in the record and were raised or could have been raised on a prior appeal. State v. Hodges, 2017-Ohio-9025, 101 N.E.3d 1045, ¶ 15 (8th Dist.). Arguments of ineffective assistance that rely on evidence outside the record — such as threats or promises made by an attorney — typically are not barred by res judicata. Jones at ¶ 20.
{¶ 12} During his direct appeal, Westley challenged the trial court's denial of his presentence motion to withdraw his plea. Westley argued he was innocent of the charges; "that he entered the plea under coercion and duress caused by family and defense counsel"; and his plea was not knowingly, intelligently, and voluntarily entered. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, at ¶ 11. Westley did not argue ineffective assistance of counsel in his initial appeal.
{¶ 13} Westley's current arguments that he is innocent, and his plea was entered under the pressure and coercion of his attorney, were raised in his initial appeal, and therefore, are barred by res judicata. Likewise, Westley's claim that the trial court was prejudiced against him could have been argued in Westley's initial appeal and is now barred by res judicata.
{¶ 14} The remaining issues — that are not barred by res judicata — are Westley's arguments that manifest injustice and ineffective assistance of counsel occurred when the trial judge, state's attorney, and defense counsel conspired to conceal the victim's statement from Westley. These arguments are addressed below.
C. Manifest Injustice
{¶ 15} Pursuant to Crim.R. 32.1, a trial court may grant a defendant's postsentence motion to withdraw a guilty plea to correct manifest injustice. The moving party has the burden of establishing the existence of manifest injustice. State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 8. Manifest injustice has been defined as:
a "clear or openly unjust act," State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 N.E.2d 83 (1998), and relates to a fundamental flaw in the plea proceedings resulting in a miscarriage of justice, State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 7 (1st Dist.), citing Kreiner at 208 and Smith at 264.Straley, Slip Opinion No. 2019-Ohio-5206, at ¶ 14. Because manifest injustice represents an extremely high standard, a defendant's guilty plea may be withdrawn only in extraordinary cases. Geraci at ¶ 10. Manifest injustice is shown through specific facts contained in the record or provided through affidavits affixed to the defendant's motion. Id.
{¶ 16} Westley argues that at trial his attorney, the state's attorney, and the trial judge conspired to withhold from Westley the victim's statement that the police obtained prior to the victim's death. Westley challenges that the victim's statement is material and exculpatory and he would not have pleaded guilty had he known about its existence. Westley concedes that the alleged exculpatory evidence — the victim's statement — was exchanged at trial, but suggests a conspiracy between his attorney, the state's attorney, and the trial judge prevented disclosure of the statement to him personally. Reply brief at 3.
{¶ 17} Westley did not satisfy his burden to show the alleged concealment of the victim's statement constituted a manifest injustice. The victim's statement was exchanged between counsel. Reply brief at 3. Westley provided no specific facts from the record or affidavits in support of the alleged conspiracy. Further, Westley provided no case law to demonstrate an obligation or duty of the trial judge and the state's attorney to present the victim's statement to Westley or ensure he reviewed the statement prior to entering a plea. Lacking requisite evidence to support his claim of manifest injustice, the trial court did not abuse its discretion when it denied Westley's postsentence motion.
D. Ineffective Assistance of Counsel
{¶ 18} Claims of ineffective assistance of counsel can constitute a manifest injustice validating a withdrawal of a guilty plea. Jones, 8th Dist. Cuyahoga Nos. 108073 and 108089, 2019-Ohio-4355, at ¶ 16. However, where a defendant previously entered a guilty plea, his ineffective assistance of counsel claim is limited to a challenge that the ineffective assistance of counsel caused his plea to be less than knowing, intelligent, and voluntary. State v. Austin, 8th Dist. Cuyahoga No. 107872, 2019-Ohio-3101, ¶ 32.
A defendant who has entered a guilty plea can prevail on a claim of ineffective assistance of counsel only by demonstrating (1) deficient performance by counsel, i.e., that counsel's performance fell below an objective standard of reasonable representation, that caused the defendant's guilty plea to be less than knowing, intelligent, and voluntary; and (2) that there is a reasonable probability that, but for counsel's deficient performance, the defendant would not have pled guilty to the offenses at issue and would have, instead, insisted on going to trial. Williams at id., citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Strickland at 694.Jones at ¶ 16.
{¶ 19} In a postconviction motion challenging ineffective assistance of counsel — based upon evidence outside the record — the petitioner must submit evidentiary documents presenting sufficient operative facts that demonstrate the deficiency of counsel's performance and the prejudice caused by counsel's ineffectiveness. Austin at ¶ 32.
{¶ 20} Westley contends his attorney was ineffective because he failed to disclose the victim's statement to him. Westley argues he would not have pleaded guilty if knew of the victim's alleged exculpatory statement.
{¶ 21} However, Westley has introduced no evidence to support a claim that his attorney conspired with the trial judge and state's counsel to withhold the victim's statement from his review. Westley attached to his postsentence motion a copy of this court's opinion in his first appeal — Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571 — as well as copies of police reports and a witness statement that were exchanged by the parties at trial. The trial transcript is also part of the record.
We cannot consider any documents attached to Westley's reply brief since those records were not part of the record on appeal. State v. Jones, 8th Dist. Cuyahoga No. 63836, 1993 Ohio App. LEXIS 4659, 6-7 (Sept. 30, 1993).
{¶ 22} None of the documents that are part of the appellate record support Westley's allegations of a conspiracy between the attorneys and trial judge that prevented Westley's receipt of the victim's statement. Absent evidence to support his claims, Westley failed to establish his counsel's performance rendered Westley's plea to be less than knowing, intelligent, and voluntary and resulted in a manifest injustice.
{¶ 23} The trial court did not abuse its discretion in denying Westley's postsentence motion to withdraw his guilty plea and his first and second assignments of error are overruled.
{¶ 24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
RAYMOND C. HEADEN, JUDGE SEAN C. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR