[Cite as State v. Blaylock,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24475 Plaintiff-Appellee : : Trial Court Case No. 05-CR-289 v. : : (Criminal Appeal from SCOTT A. BLAYLOCK : (Common Pleas Court) : Defendant-Appellant : : ...........

OPINION

Rendered on the 23rd day of September, 2011.

...........

MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. #0005031, 108 Dayton Street, Yellow Springs, Ohio 45387 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Scott A. Blaylock appeals from an order overruling his

motion to withdraw his plea of guilty to Unlawful Sexual Conduct with a Minor, in violation 2

of R.C. 2907.04(A). Blaylock contends that the trial court erred in applying a

manifest-injustice test for his motion. Blaylock argues that an omission of a fact in the

probable-cause affidavit in support of the search warrant is a fundamental flaw in the path of

justice and, therefore, he should have been able freely to withdraw his plea. Blaylock also

argues that his trial counsel’s failure to have made him aware of that omission before he pled

guilty constituted ineffective assistance of counsel.

{¶ 2} We conclude that the trial court complied with Crim. R. 32.1 in overruling his

motion to withdraw his plea. We further conclude, as we have before, that Blaylock’s trial

counsel was not constitutionally ineffective.

I

{¶ 3} We adopt the facts set forth in our opinion deciding Blaylock’s appeal from the

trial court’s 2008 denial of Blaylock’s previous motion to withdraw his plea:

{¶ 4} “In January 2005, Defendant was arrested on a complaint filed in Kettering

Municipal Court charging him with one count of forcible rape, a first degree felony, and two

counts of unlawful sexual conduct with a minor, third degree felonies. Prior to any indictment

being issued, Defendant's counsel, Steve Pierson, engaged in successful plea negotiations with

the State which resulted in a plea agreement, whereby Defendant agreed to plead guilty to a

bill of information charging a single count of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A), a felony of the third degree. There were no agreements or

promises as to Defendant's sentence or his sexual offender classification. On February 11,

2005, the trial court accepted Defendant's guilty plea to one count of unlawful sexual conduct 3

with a minor. On April 15, 2005, the trial court sentenced Defendant to the minimum prison

term, one year, and classified him as a sexually oriented offender.

{¶ 5} “Defendant completed his one year sentence and was released from prison on

or about January 15, 2006. On November 26, 2007, Defendant filed a motion to withdraw his

guilty plea. As grounds for his motion, Defendant alleged that he received ineffective

assistance of counsel in entering his guilty plea, and that a conflict of interest existed on the

part of the judge who accepted his plea and imposed a sentence, the Honorable Dennis Langer,

who had personal knowledge about Defendant's previous conviction for telephone harassment

and improperly used that information and the prior conviction as an aggravating factor in

sentencing Defendant in this case. Following an evidentiary hearing, on April 21, 2008, the

trial court overruled Defendant's motion to withdraw his guilty plea. The trial court concluded

that Defendant had been represented by a highly experienced, competent counsel, that

Defendant knowingly, intelligently and voluntarily entered his guilty plea, and that Defendant

failed to demonstrate any conflict of interest on the part of Judge Langer.” State v. Blaylock,

Montgomery App. No. 22761,

, at ¶ 2-3.

{¶ 6} In the previous appeal, we ruled that the “Defendant [had] failed to

demonstrate any deficient performance by his counsel, much less any resulting from

prejudice.” Id., at ¶ 19. Furthermore, we held that “Defendant [had] failed to demonstrate

any conflict of interest or impropriety on Judge Langer’s part, or that Defendant’s previous

employment in the prosecutor’s office had any impact on his sentence in this case.” Id., at ¶

23.

{¶ 7} In 2010, Blaylock filed another motion to withdraw his plea. This motion was 4

overruled, without a hearing. From the order overruling his 2010 motion to withdraw his

plea, Blaylock appeals.

II.

{¶ 8} Blaylock’s First Assignment of Error is as follows:

{¶ 9} “THE TRIAL COURT ERRED IN DENYING THE APPELLANT A

HEARING ON HIS MOTION TO WITHDRAW PLEA SINCE HIS PLEA WAS NOT

KNOWING, INTELLIGENT OR VOLUNTARY.”

{¶ 10} “The Rules of Criminal Procedure permit a defendant to withdraw a guilty plea.

‘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.’ Crim.R. 32.1. The rule

distinguishes motions to withdraw based on timing-those filed before sentence and those filed

after sentence. This is so principally for policy reasons. ‘This distinction rests upon

practical considerations important to the proper administration of justice. Before sentencing,

the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight

as compared with the public interest in protecting the right of the accused to trial by jury. But

if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged

to plead guilty to test the weight of potential punishment, and withdraw the plea if the

sentence were unexpectedly severe.’ Kadwell v. U.S. (C.A.9, 1963),

; see,

also, State v. Long (May 13, 1993), Montgomery App. No. 13285,

, at *17.”

State v. McComb, Montgomery App. Nos. 22570, 22571,

. 5

{¶ 11} The movant seeking to withdraw a guilty plea after sentence is imposed has the

burden to demonstrate that a manifest injustice occurred. State v. Powell (2010),

; see Crim. R. 32.1. Manifest injustice is a flexible concept and depends on

the facts and circumstances in each case. State v. Smith (1977),

,

. Withdrawal of a guilty plea after sentencing is permitted only in extraordinary

cases.

The decision of whether to grant a motion to withdraw a plea is confided to the

trial court’s discretion and will not be disturbed on appeal absent abuse of that discretion.

McComb, supra.

{¶ 12} Blaylock argues he should be able to withdraw his guilty plea because he was

unaware of an omission in the affidavit in support of the search warrant in this case. Blaylock

argues that these omissions indicate that the police officer affiant did not believe all of the

statements made by the victim. This, argues Blaylock, is a violation of Franks v. Delaware

(1978),

,

,

.

{¶ 13} In Mays v. City of Dayton (1998),

, the United States Court of

Appeals for the Sixth Circuit dealt with a similar issue. A Dayton, Ohio, police detective had

received information regarding a physician who was trafficking pills and drug prescriptions.

. At that time, the detective was made aware of a similar, simultaneous

investigation being conducted by federal authorities involving Medicare fraud. The physician

was arrested and explained to the police that his father was also involved.

. As a

basis for a finding of probable cause for a second search warrant, the detective recounted a

number of pertinent facts in his affidavit supporting the second search warrant. Pursuant to

the second search, the police searched the father’s residence and found, among other things, 6

patient files listed in the affidavit and illegal drugs. But the affidavit contained no

information concerning the nature of the illegal drugs, the probability that all 502 seized files

contained evidence of Medicare fraud, or whether the files had any connection to the

physician.

.

{¶ 14} The father, also a doctor, sued the police officer who conducted the search, the

former chief of police, and the City of Dayton, contending that the search violated his civil

rights. The trial court denied the defendants’ motion for summary judgment, holding, in the

alternative, that the police officer’s omission, in the affidavit in support of the search warrant,

of the fact that he had attempted unsuccessfully to get the father to write a prescription for the

officer and his wife “raised the potential of a Franks violation.”

.

{¶ 15} The Sixth Circuit held that a Franks hearing based on omissions from an

affidavit in support of a search warrant is merited “only in rare instances” because “affidavits

with potentially material omissions, while not immune from Franks inquiry, are much less

likely to merit a Franks hearing than are affidavits including allegedly false statements.”

Because affidavits are drafted in the middle and during the rush of a police investigation, the

Sixth Circuit noted, “an affiant cannot be expected to include every piece of information

gathered in the course of an investigation.”

In determining that no violation occurred,

the court set forth a test for omissions triggering a Franks inquiry: “[E]xcept in the very rare

case where the defendant makes a strong preliminary showing that the affiant with an

intention to mislead excluded critical information from the affidavit, and the omission is

critical to the finding of probable cause, Franks is inapplicable to the omission of disputed

facts.”

. (Emphasis in original.) 7

{¶ 16} We adopt this test for whether the omission of facts from an affidavit in

support of a search warrant triggers a duty on the part of the trial court to conduct a Franks v.

Delaware inquiry. In applying this test, we must first analyze whether Blaylock has shown

that the affiant omitted facts with an intent to mislead the magistrate who issued the search

warrant. Blaylock argues only that the facts omitted “would have negatively impacted the

decision to issue a warrant”; he does not argue that the facts were omitted with an intent to

mislead.

{¶ 17} The police report in the record shows only that Detective Stewart, the police

officer who executed the search warrant affidavit, did not believe the complainant’s initial

version of the events that led to his having come into contact with Blaylock. According to

this version, the complainant began receiving prank phone calls to his house. “The calls

started off as hang ups and when [the complainant] asked the person to stop calling[,] the

person told him he would hurt his family. The person then said that [the complainant] had to

meet him or he would hurt his family.” This led to the meeting that resulted in the sexual

assault.

{¶ 18} The complainant told Detective Stewart that after the assault, he began

receiving phone calls at home, and that his sister began receiving phone calls on her cell

phone. This led Detective Stewart to become skeptical concerning the complainant’s version

of how he and Blaylock met:

{¶ 19} “I told [the juvenile complainant] that there is no way that Scott [Blaylock]

could have known his sister[’]s cell phone [number] without [the complainant] or someone

else giving him the number. I told [the complainant] that I did not think he was telling the 8

truth on how he met this Scott. [The complainant] paused for a moment[,] started to tear up[,]

and said[, ‘] I will tell you the truth. I am just afraid I will be judged. I go to church and I

am a Christian.[’] I asked that he tell me the truth.

{¶ 20} “[The complainant] then proceeded to advise that he was watching the WB

(Warner Brothers Television). He saw an advertisement for Interactive Personals. He called

the number[,] set up a free account with a message that he wanted to meet people in the

Kettering/Centerville area. Around 2 pm on 11-16-05 he was checking his messages and he

was asked if he wanted to be directly connected to someone. He was connected to Scott.

They talked for a while and [the complainant] was curious about gay sex. He agreed to meet

with Scott at the Meijer. They gave descriptions of each other, met and the above described

incident happened. Once it started happening [the complainant] was scared and did not want

to continue and told him to stop and that’s when Scott forced him down to suck his penis.

Scott did threaten to hurt [the complainant’s] family.

{¶ 21} “Once [the complainant] got home he started receiving hang up phone calls

from Scott and even spoke to him one time. During the conversations Scott said ‘Ben [an

assumed name the complainant had given Blaylock] you really did someone dirty it’s all your

fault.’ [The complainant] called Scott on his sister’s * * * cell phone XXX-XXXX and told

Scott to quit calling. Scott then started calling [complainant’s sister’s] cell phone.”

{¶ 22} We find nothing in the police report, or anywhere else in the record, to indicate

that Detective Stewart was skeptical of any aspect of the complainant’s version of events other

than the complainant’s initial version of how he and Blaylock had come into contact with one

another. That limited skepticism on Detective Stewart’s part did not concern the crux of the 9

complainant’s relation of the offense, which was set forth in the affidavit for the search

warrant, and was material to the finding of probable cause for the search.

{¶ 23} We find it unlikely that Detective Stewart intended to mislead the issuing

magistrate by omitting his skepticism concerning the complainant’s initial version of the

events that brought the complainant into contact with Blaylock. Detective Stewart had nine

years of experience as a police officer, had investigated similar crimes numerous times, had

attended seminars regarding criminal investigation techniques and interview methods, and had

two years of experience, at the time of his affidavit, investigating sexual crimes involving

juveniles. More importantly, Detective Stewart had no incentive to mislead the issuing

magistrate – if the omission had been included in the affidavit, there would still have been

abundant probable cause for a search.

{¶ 24} We also find that the omitted facts were not critical to the finding of probable

cause. Detective Stewart’s skepticism extended only to the complainant’s version of how he

came to meet Blaylock. That skepticism did not extend to the complainant’s recounting of

Blaylock’s sexual assault.

{¶ 25} We conclude that no Franks v. Delaware violation occurred; there was no

manifest injustice; and the trial court did not err when it overruled Blaylock’s motion to

withdraw his guilty plea without a hearing. Blaylock’s First Assignment of Error is

overruled.

III

{¶ 26} Blaylock’s Second Assignment of Error is as follows: 10

{¶ 27} “A PLEA MUST BE VACATED WHERE BUT FOR THE INEFFECTIVE

ASSISTANCE OF COUNSEL THE PLEA WOULD NOT HAVE BEEN ENTERED.”

{¶ 28} Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is shown to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance. Strickland v.

Washington (1984),

,

,

. To show that a

defendant has been prejudiced by counsel’s deficient performance, the defendant must

demonstrate that were it not for counsel’s errors, the result of the trial would have been

different. Id.; State v. Bradley (1989),

.

{¶ 29} Blaylock argues that his counsel was ineffective because he did not show him

the police record containing the statements omitted from the affidavit in support of the search

warrant. We considered a claim of ineffective assistance of trial counsel in our opinion in the

first appeal in this case:

{¶ 30} “We agree with the trial court that Defendant's counsel, * * *, is a very

experienced criminal defense attorney. At the hearing on Defendant's motion to withdraw his

plea, [defense counsel] testified that he discussed the strengths and weaknesses of this case

and possible defenses to the charges with Defendant. The original charges were rape, a first

degree felony carrying three to ten years imprisonment, plus two counts of unlawful sexual

conduct with a minor, both third degree felonies each carrying a one to five year sentence. As

a result of defense counsel's successful negotiation, Defendant was offered a favorable deal to

plead guilty to just one count of unlawful sexual conduct with a minor, rather than face

indictment on the original greater charges. [Defense counsel] testified that Defendant desired 11

to pursue a plea to offenses less serious than rape.” State v. Blaylock,

, ¶ 15.

{¶ 31} For the reasons set forth in Part II, above, we conclude that Detective Stewart’s

skepticism concerning the victim’s initial account of the manner in which he and Blaylock

came into contact, which was omitted from the affidavit in support of the search warrant, was

neither material to the magistrate’s finding of probable cause, nor intentionally omitted.

Accordingly, Blaylock’s trial counsel’s failure to have communicated that skepticism to his

client was neither ineffective assistance, nor prejudicial. It did not constitute manifest

injustice upon which the post-sentence withdrawal of a plea must be predicated.

{¶ 32} Blaylock’s Second Assignment of Error is overruled.

IV

{¶ 33} Both of Blaylock’s assignments of error having been overruled, the order of the

trial court overruling his 2010 motion to withdraw his plea is Affirmed.

.............

GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck Laura M. Woodruff George A Katchmer Hon. Dennis J. Adkins