[Cite as State v. Nicholson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97873

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JOHNATHAN NICHOLSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-506069

BEFORE: Sweeney, J., Boyle, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: October 4, 2012 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender By: John Martin Assistant Public Defender 310 Lakeside Avenue, Suite 400 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Katherine Mullin Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:

{¶1} Defendant-appellant Johnathan Nicholson (“defendant”) appeals the court’s

denial of his motion to withdraw guilty plea. After reviewing the facts of the case and

pertinent law, we affirm.

{¶2} On September 8, 2007, defendant, who is mentally ill, and his cousin

Franco Stephens were walking on E. 114th St. when they came across a group of men

playing dice in a driveway. Stephens asked to join the game, but the group turned him

down. A fight broke out, and defendant fatally shot two of the men.

{¶3} Defendant and Stephens were indicted on multiple counts including

aggravated murder and aggravated robbery. On September 5, 2008, a jury found

Stephens guilty of two counts of murder and one count of attempted murder under an

aiding and abetting theory.

{¶4} On January 22, 2009, defendant pled guilty to two counts of aggravated

murder, four counts of aggravated robbery, and one count of attempted aggravated

murder. The court agreed to the recommended prison sentence of “an aggregate of life

to 50 years with no chance for parole.”

{¶5} On December 3, 2009, this court reversed Stephens’s convictions on appeal

for insufficient evidence. State v. Stephens, 8th Dist. No. 92430,

. In

short, this court held that “Stephens was either unconscious * * * or just dazed and

getting up * * * when [defendant] opened fire. There was no testimony of any

communication between [defendant] and Stephens” about the shootings. Id. at ¶ 16. Therefore, the court concluded, there was no evidence that Stephens aided and abetted

defendant.

{¶6} On April 4, 2011, defendant filed a pro se motion to withdraw his guilty

plea. In June 2011, defendant was assigned counsel and a pretrial was held. Two

supplemental briefs were filed in support of his plea withdrawal, an evidentiary hearing

was requested, and an additional pretrial was held in August 2011.

{¶7} The gist of defendant’s pro se motion is that because the trial court in

Stephens’s case granted a Crim.R. 29 dismissal as to “all matters having to do with

robbery,” it was a manifest miscarriage of justice for defendant to plead guilty to

aggravated robbery. Stephens, at ¶ 9.

{¶8} In defendant’s first supplemental brief in support of his motion to withdraw

his plea, he argues that since he has entered his plea, “new evidence has come to light.”

This “new evidence” is the Stephens court’s concurrence with the trial court that “the

record is utterly devoid of any evidence of a robbery.” Stephens, at ¶ 13.

{¶9} Additionally, defendant attached two of his own affidavits, the first of

which states the following, among other things: that he pled guilty based on counsel’s

advice to avoid the death penalty; that he did not plan the deaths of the victims; and that

he did not commit robbery.

{¶10} Defendant’s second affidavit contains the following information: After

Stephens’s request to join the dice game was refused, one of the men pistol-whipped

defendant in the face and then began beating Stephens. According to defendant, he shot this man because he feared “serious bodily harm or death to” Stephens, and he shot the

second victim because the man “pulled out a chrome pistol * * *.” This affidavit states

that what “occurred on the night in question [was] a spontaneous eruption of events.”

{¶11} In defendant’s second supplemental brief in support of his motion to

withdraw his guilty plea, he introduces Stephens’s affidavit, which confirms that

Stephens was kept out of the dice game, punched in the face, and knocked to the ground.

Stephens stated the following about what occurred next: “I am not sure what happened

immediately after I was knocked out, but I got up and ran from the driveway as quickly as

I could, and I heard gun shots.”

{¶12} On December 27, 2011, the court denied defendant’s motion to withdraw

his guilty plea without conducting a hearing, finding that defendant failed to establish a

manifest injustice. Specifically, the court found that the reversal of Stephens’s

convictions did not impact defendant’s plea, and Stephens’s affidavit was not compelling.

{¶13} Defendant appeals and raises two assignments of error for our review.

I.

The trial court, in violation of appellant’s rights under the United States and Ohio Constitutions, abused its discretion when it denied appellant’s motion to withdraw his guilty plea.

II.

The trial court, in violation of appellant’s rights under the United States and Ohio Constitutions, erred when it denied appellant’s motion to withdraw his guilty plea without holding a hearing. {¶14} A motion to withdraw a guilty plea is governed by the standards set forth

in Crim.R. 32.1, which 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.

{¶15} Accordingly, a defendant who attempts to withdraw a guilty plea after

sentence has been imposed bears the burden of demonstrating a manifest injustice. State

v. Smith,

,

(1977). This court has stated that

[a] manifest injustice is defined as a “clear or openly unjust act,” * * * “an extraordinary and fundamental flaw in the plea proceeding.” Again, “manifest injustice” comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.

State v. Sneed, 8th Dist. No. 80902,

.

{¶16} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant’s

assertions in support of the motion are matters to be resolved by that court.” Smith, at

paragraph two of the syllabus. Our review is limited such that we cannot reverse the trial

court’s denial of the motion unless we find that the ruling was an abuse of discretion.

{¶17} The trial court need not hold an evidentiary hearing on the post-sentence

motion to withdraw a guilty plea if the “record indicates that the movant is not entitled to

relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice.” State v. Russ, 8th Dist. No. 81580,

(citations omitted).

The courts have consistently held that a trial court need not hold an evidentiary hearing in a motion to withdraw a plea if the only evidence provided consists of affidavits from interested parties which conflict with the facts elicited at the plea hearing. * * * [Thus,] [t]he trial court cannot grant a motion to withdraw a plea based upon an affidavit which directly contradict[s] the record.

State v. Yearby, 8th Dist. No. 79000,

(Jan. 24, 2002), citing

State v. Winters, 5th Dist. No. 97CA144,

(July 20, 1998).

{¶18} In the instant case, when defendant pled guilty on January 22, 2009, he

was aware that Stephens’s motion for acquittal had been granted on the robbery charges

on September 5, 2008. Therefore, we cannot say this was newly discovered evidence

leading to a manifest miscarriage of justice. See State v. Kenney, 8th Dist. Nos. 81752

and 81879,

, ¶ 45 (newly discovered evidence “must not be evidence

which was in existence and available for use at the time of trial and which could and

should have been submitted at trial if the defendant wished to use it”).

{¶19} Turning to the aggravated and attempted aggravated murder charges,

defendant relies on three affidavits to support his argument that the deaths of the two

victims were not premeditated and that he acted spontaneously or in defense of Stephens

on the night in question. Ohio courts have consistently held that affidavits from

interested parties such as defendants, co-defendants, and family members are self-serving

and may be discounted. State v. Spencer, 8th Dist. No. 92992,

; State v.

Brown,

,

,

(10th Dist.) {¶20} Furthermore, Stephens’s affidavit states that he was “not sure what

happened immediately after [he] was knocked out,” but he “heard gun shots” as he was

running away. Despite admitting that he had no firsthand knowledge of “what

happened,” Stephens reaches the following conclusion: “I believe [defendant] may have

saved my life that night. I think he was defending me and himself in response to a

sudden attempt to assault me and take my money.” Stephens’s affidavit does not

support defendant’s argument that he was acting in defense of Stephens. Rather, the

affidavit is not inconsistent with the testimony at Stephens’s trial that defendant fired the

first shot while Stephens was either still knocked out or dazed and getting up. Newly

discovered evidence

must meet some threshold standard of cogency; * * * [it must be more than] simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner’s claim beyond mere hypothesis and a desire for further discovery.

State v. Coleman, 1st Dist. No. C-900811,

, *21 (Mar. 17,

1993).

{¶21} Accordingly, we cannot say that the court abused its discretion in denying

defendant’s motion to withdraw his guilty plea without conducting a hearing.

Defendant’s first and second assignments of error are overruled.

{¶22} Judgment affirmed.

It is ordered that appellee recover of appellant its 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR