Ohio Cases August 08, 2023: State v. Stevens

Case Description

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Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0588

For Plaintiff-Appellee

RONALD L. WELCH

Prosecuting Attorney

BY JOHN CONNOR DEVER

Assistant Prosecutor

For Defendant-Appellant

TRENT STEVENS PRO SE

Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.

OPINION

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Gwin, P.J.

{¶1} Defendant-appellant Trent Stevens appeals from the decision of the Muskingum County Court of Common Pleas denying his motion for a new trial/ withdrawal of his guilty plea.

Facts and Procedural History

{¶2} On October 9, 2019, the Muskingum County Grand Jury indicted Stevens on one count of aggravated burglary with a repeat violent offender specification, a first-degree felony in violation of R.C. 2911.11(A)(1) and R.C. 2941.149, and one count of possession of drugs (methamphetamine), a second-degree felony in violation of R.C. 2925.11(A).

{¶3} In the case at bar, a jury trial commenced on January 21, 2020. On January 22, 2020, the parties appeared before the trial court stating that Stevens had chosen to withdraw his not guilty plea and instead plead guilty to an amended charge of aggravated robbery, a first-degree felony in violation of R.C. 2911.11(A)(1) and possession of drugs (methamphetamine), a second-degree felony in violation of R.C. 2925.11(A). (T. 272). State v. Stevens, 5 Dist. Muskingum No. CT2020-0010, 2021-Ohio-1156, ¶ 11. ["Stevens I"].

{¶4} The trial court conducted the plea colloquy. The state recited the facts giving rise to the charges. In 2019, Stevens was serving a prison sentence and while he was in prison, Stevens' brother, Ri.S. liquidated some of Stevens' property. (T. 284). The liquidation of the property and a conflict over drug distribution caused a dispute between Stevens and Ri.S. When Stevens got out of prison, it was known he was angry with Ri.S. and Rh.S. On August 1, 2019, Ri.S. and Rh.S. were staying with J.U. to hide from

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Stevens. After a night drinking with cohorts, Stevens learned where Ri.S. and his wife were staying. At 3:00 a.m., Stevens and his cohorts drove to J.U.'s home in a minivan. They kicked in the door to the home and found Ri.S. and Rh.S. sleeping in an upstairs bedroom. Rh.S. ran out of the house. Stevens and his other brother, S.S. started beating Ri.S. in the closet of the bedroom. Ri.S. escaped the closet and Stevens chased him out of the house. (T. 285). Stevens I , ¶12.

{¶5} After Stevens left, J.U. closed the door to the home and called 911. Stevens came back into the home and yelled at J.U. to find out the location of Rh.S. S.S. convinced Stevens to leave the home and return to the minivan. When Stevens got into the van, he had a white plastic bag that contained two bags of methamphetamine. He gave the bag to D.H. and D.H. shoved the two bags of drugs into the seats of the minivan. The police arrived on the scene and apprehended the minivan. (T. 287). Stevens I , ¶13.

{¶6} After the plea colloquy, the trial court accepted Stevens' plea of guilty. (T. 289). The trial court followed the joint recommendation of the parties and imposed a minimum mandatory six-year prison term and an aggregate indefinite maximum prison term of nine years. The trial court also imposed a mandatory fine of $7,500.00. The sentencing entry was filed on January 23, 2020. Stevens I , ¶13. Stevens appealed raising four assignments of error,

"I. STEVENS WAS DENIED HIS RIGHT TO BE REPRESENTED BY PRIVATE COUNSEL, IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

"II. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST- AND SECOND-DEGREE

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QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO.

"III. TRENT STEVENS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION .

"IV. THE TRIAL COURT ERRED IN DENYING STEVENS' MOTION TO WAIVE THE MANDATORY FINE."

{¶7} In Stevens I this Court affirmed the decision of the trial court.

{¶8} On February 21, 2023, Stevens filed a pro se Motion for a New Trial. [Docket Entry No. 61]. In that motion he references an affidavit from J. U. that claims prosecutorial misconduct, but he did not attach the affidavit. The trial court denied the motion for a new trial because Stevens pleaded guilty. Judgment Entry, filed Mar 2, 2023. [Docket Entry No. 63].

{¶9} On March 7, 2023, Stevens filed an Amended Motion for a New Trial. [Docket Entry No. 64]. In this motion, Stevens asked the trial court for the alternative relief of withdrawing his guilty plea. Stevens attached J.U.'s affidavit, which claims that the prosecutor threatened her and her husband to lie that they saw Stevens break into their home. The state filed a response memorandum to Steven's motion for a new trial / motion to withdraw his guilty plea on March 22, 2023. [Docket Entry No. 67].

{¶10} On March 24, Stevens filed a Motion to Withdraw his Guilty Plea. [Docket Entry No. 68].

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{¶11} By Judgment Entry filed March 28, 2023 the trial court denied Stevens' Motion for a new trial finding it to be improper because he had pleaded guilty. The trial court overruled Stevens' motion to withdraw his guilty plea finding the affidavits attached to the motion "are unreliable and are contradicted by this matter's established history."

Assignments of Error

{¶12} Stevens, pro se, raises two Assignments of Error, {¶13} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENING [sic] STEVENS' MOTION FOR A NEW TRIAL, WHERE APPELLANT DEMONSTRATED THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING NEW EVIDENCE IN THE TIME PRESCRIBED BY CRIM. RULE 33.

{¶14} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENING [sic] APPELLANT'S MOTION FOR A NEW TRIAL WHERE IT SHOULD HAVE CONSTRUED THE MOTION AS A MOTION TO WITHDRAW GUILTY PLEA, AND WEIGHED FOR MANIFEST INJUSTICE."

Pro se litigants

{¶15} We understand that Stevens has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶ 11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶ 4 (internal quotation omitted). We realize that an incarcerated litigant is subject to restrictions and has limited access to research materials,

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making it more difficult to timely comply with certain appellate rules. See, Karmasu v. Tate, 4 Dist. Scioto No 94 CA 2217, 1994 WL 521235. Although in a pro se action the court allows latitude to the unrepresented defendant in the presentation of his case, the court is not required to totally throw the Rules out the window. See, Wellington v. Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 554, ¶18. (A substantial disregard for the rules cannot be tolerated).

{¶16} One area where this Court does not have discretion to overlook, is where facts, argument or evidence has been presented in the appellate brief that were not presented to the trial court during the proceedings in the lower court. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16. Therefore, we have disregarded facts and documents in the parties brief that are outside of the record.

{¶17} In the interests of justice, we shall attempt to consider Stevens' assignments of error.

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I. & II.

{¶18} Stevens' two Assignments of Error challenge the trial court's denial of his post-sentence motion to withdraw his guilty plea. After reviewing Stevens' brief including his contentions, we have interpreted Stevens' two assignments of error in the following manner: "the trial judge abused his discretion in denying his post-sentence motion to withdraw his negotiated guilty plea on the basis of newly discovered evidence."

Standard of Appellate Review

{¶19} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and states: "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." In the case at bar, because Stevens request was made three years after the sentence was imposed, the standard by which the motion was to be considered was "to correct manifest injustice."

{¶20} The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977), paragraph one of the syllabus. A 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). "'Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.'" State v. Ruby, 9th Dist. No. 23219, 2007-Ohio-244, ¶ 11, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Accordingly, under the

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manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264.

{¶21} In the case at bar, however, we note that Stevens filed a direct appeal in his case. On appeal this Court affirmed Stevens' convictions and sentences. Stevens I.

{¶22} In State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978), the Supreme Court of Ohio explained that:

Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal and an affirmance by the appellate court. While Crim.R. 32.1 apparently enlarges the power of the trial court over its judgments without respect to the running of the court term, it does not confer upon the trial court the power to vacate a judgment which has been affirmed by the appellate court, for this action would affect the decision of the reviewing court, which is not within the power of the trial court to do.

Id. at 97-98, 378 N.E.2d 162 (emphasis added).

{¶23} The defendant in Special Prosecutors pled guilty to murder, the court of appeals affirmed his conviction, and the defendant thereafter moved to withdraw his plea, which the trial court granted. Id. at 94, 378 N.E.2d 162. The state did not appeal, but, before the defendant's case could proceed to trial, it filed a complaint for a writ of prohibition, seeking to prevent the trial from taking place. Id. The state argued that the trial court did not have jurisdiction to let the defendant withdraw his plea. The Supreme Court granted the writ because it concluded that a trial court does not have jurisdiction to consider a motion to withdraw a plea after an appellate court has affirmed the defendant's

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conviction. Id. at 98, 378 N.E.2d 162. Specifically, the Supreme Court noted that "the trial court lost its jurisdiction when the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals' decision." Id. at 97, 378 N.E.2d 162. Accord, State ex rel. Corday v Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶33; State v. Baldwin, 5 Dist., Stark No. 2010-CA-00223, 2011-Ohio-495, ¶15.

{¶24} Subsequently, in State v. Davis, the Ohio Supreme Court modified the holding in Special Prosecutors as follows,

[W]e hold that a trial court retains jurisdiction to decide a motion for a new trial based on newly discovered evidence when the specific issue has not been decided upon direct appeal.

131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶37 (emphasis added).

{¶25} An appellate court reviews a trial court's decision on a motion to withdraw a plea under an abuse-of-discretion standard. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977) at paragraph two of the syllabus; State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.

{¶26} For a court of appeals to reach an abuse-of-discretion determination, the trial court's judgment must be so profoundly and wholly violative of fact and reason that "'it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.'". State v. Weaver, Slip Op. 2022-Ohio-4371, ¶24 (Dec. 8, 2022), quoting Spalding v. Spalding, 355 Mich. 382, 94 N.W.2d 810 (1959) at 384-385, rejected in part by Maldonado v. Ford Motor Co.,

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476 Mich. 372, 388, 719 N.W.2d 809 (2006) ("we prefer the articulation of the abuse of discretion standard in [People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003)"].

{¶27} This Court has recognized that an abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, ¶54.

Issue for appellate review: Whether the trial judge abused his discretion in denying Stevens' motion to withdraw his guilty plea claiming newly discovered evidence.

{¶28} As detailed in the plea colloquy as set forth in Stevens I it was alleged that "Stevens and his cohorts kicked in the door to the apartment." Stevens did not object, correct or dispute the recitation of facts as they were read in open court. Stevens told the trial judge that he understood the charges and that he was satisfied with the representation by his attorney. Stevens I at ¶11.

{¶29} In support of his motion, Stevens submitted the affidavit of J.U. which he contends demonstrate that the prosecutor suborned perjury. In her affidavit, J.U. claims the prosecutor "told me to testify falsely and state that I saw Trent Stevens break in the door of my apartment." She claims that she and her husband were threatened with jail if they did not lie "and testify in court and state that we supposedly saw our roommates' brother, Trent Stevens, broke into our apartment."

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{¶30} We note that J.U.'s affidavit further states,

My truth and fact is that I honestly did not see how the individual Trent Stevens or anyone else got into the house. The only door to get into the apartment is down stairs. I and my husband were upstairs in our bedroom sleeping… I heard a noise that awaken me, I went in the hallway, and looked in Ricky and Rhondas' bedroom and saw two (2) guys and a girl all yelling. I wanted them to leave so I called 911. I truefully [sic] did not see, or know how the other two individual [sic] Trent Stevens got into the apartment when I came out of my bedroom, they were already there in the bed room of my roommates.

Emphasis added. Thus, J.U. does not exonerate Stevens; rather she simply indicates she did not see how the individuals entered the home. J.U. states in her affidavit that Stevens was inside her apartment in the bedroom of her roommates. She does say that she called 9-1-1 because she wanted the individuals to leave.

{¶31} Neither Stevens nor J.U. have explained why J.U. waited nearly three years to come forward with her accusations of prosecutorial misconduct. Although Crim.R. 32.1 does not provide a time limit for moving to withdraw after a sentence is imposed, "an undue delay between the occurrence of the alleged cause for withdrawal and the filing of the motion is a factor adversely affecting the credibility of the movant and mitigating against the granting of the motion." State v. Smith, 49 Ohio St.2d 264, 361 N.E.2d 1324 (1977), citing Oksanen v. United States, 362 F.2d 74, 79 (8th Cir. 1966).

{¶32} Courts have noted, "'[recantation by a significant witness does not, as a matter of law, entitle the defendant to a new trial.'" Hysler v. Florida, 315 U.S. 411, 413, 62 S.Ct. 688, 86 L.Ed. 932(1942)

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("In this collateral attack upon the judgment of conviction, the petitioner bases his claim on the recantation of one of the witnesses against him. He cannot, of course, contend that mere recantation of testimony is in itself ground for invoking the Due Process Clause against a conviction."); See also, State v. Covender, 9th Dist. Lorain No. 07CA009228, 2008-Ohio-1453, ¶ 12, quoting State v. Walker, 101 Ohio App.3d 433, 435, 655 N.E.2d 823 (8th Dist. 1995). Implicit in these standards is the fact that trial courts must evaluate credibility in deciding the motion. If trial courts could not evaluate the credibility of recanted testimony, every recantation after trial would result in a new trial. The United States Supreme Court has observed,

Recantation testimony is properly viewed with great suspicion. It upsets society's interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. For these reasons, a witness' recantation of trial testimony typically will justify a new trial only where the reviewing judge after analyzing the recantation is satisfied that it is true and that it will "render probable a different verdict."

Dobbert v. Wainwright, 468 U.S. 1231, 1233-34, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984) (Brennan, J ., dissenting from denial of certiorari). Recanting witnesses are viewed with extreme suspicion. United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001).

{¶33} J.U.'s affidavit places Stevens inside the home. It further corroborates her calling 9-1 -1. As her claim to have not seen how the individual got inside the home would

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not render it probable that a jury would have acquitted Stevens, the trial judge had a reasonable basis to reject J.U.'s affidavit.

{¶34} Further, we fail to see how these facts create a manifest injustice such that a fundamental flaw occurred in the proceedings resulting in a miscarriage of justice, or is inconsistent with the demands of due process. See, State v. Walsh, 5th Dist. Licking No. 14-CA-110, 2015-Ohio-4135, at ¶ 16. J.U.'s affidavit places Stevens inside the home. The recitation of facts established that Stevens and others forced their way into the apartment and assaulted at least one resident. Whether anyone actually saw the individuals force their way inside is not dispositive. The record contains no evidence that Stevens or anyone else was invited inside to assault the occupants of the apartment. Although Stevens was indicted for aggravated burglary, which requires the state to prove a trespass by force, stealth, or deception into an occupied structure, Stevens pleaded guilty to aggravated robbery, thereby rendering how Stevens and the others entered the apartment moot. Stevens did not challenge his guilty plea in his direct appeal. See , Stevens I.

{¶35} Because Stevens cannot show that there was a manifest miscarriage of justice, the trial court did not abuse its discretion in denying Stevens' post-sentence motion to withdraw his guilty plea.

{¶36} Stevens' First and Second Assignments of Error are overruled.

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{¶37} The judgment of the Muskingum County Court of Common Pleas is affirmed.

Gwin, P.J., Hoffman, J., and Wise, J., concur