State v. Alsip , 2014 Ohio 4180 ( 2014 )

[Cite as State v. Alsip, 2014-Ohio-4180.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130699
TRIAL NO. B-1205436
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DENNIS ALSIP, JR., :
Defendant-Appellant. :
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.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
F ISCHER , 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 second-
degree 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-Ohio-
324, 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-Ohio-
5308, ¶ 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
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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.
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