[Cite as State v. Banks,

.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

DAVID E. BANKS

Defendant-Appellant

Appellate Case No. 25188

Trial Court Case No. 2010-CR-1284, 2010-CR-2935/1 (Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 24th day of May, 2013.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Assistant Prosecuting Attorney, 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

DAVID E. BANKS, Inmate No. 610-987, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant, pro se

............. 2

WELBAUM, J.

{¶ 1} Defendant-Appellant, David E. Banks, appeals pro se from the trial court’s

decision overruling his motion to withdraw his guilty plea under Crim.R. 32.1 and alternative

motion for post-conviction relief under R.C. 2953.21. The motions were based on a claim of

ineffective assistance of counsel.

{¶ 2} We conclude that the trial court did not err when it overruled Banks’s motion to

withdraw guilty plea and alternative motion for post-conviction relief. Banks’s claim of

ineffective assistance of counsel is grounded on matters outside of the record; therefore the claim

can only be addressed by a motion for post-conviction relief. A motion for post-conviction relief

must be supported by sufficient evidentiary documentation, which Banks failed to submit. Banks

also failed to submit a transcript of the plea hearing; therefore, the validity of the trial court’s

proceedings is presumed. Accordingly, the judgment of the trial court will be affirmed.

I. Facts & Course of Proceedings

{¶ 3} Defendant-Appellant, David E. Banks, was indicted for one count of Burglary,

one count of Obstructing Official Business, and one count of Possession of Criminal Tools in the

Montgomery County Court of Common Pleas, Case No. 2010 CR 1284. He was also indicted for

one count of Burglary, one count of Receiving Stolen Property, one count of Possession of

Criminal Tools, and one count of Escape in the Montgomery County Court of Common Pleas,

Case No. 2010 CR 2935/1. Banks was evaluated for competence to stand trial, and on March 31,

2011, the trial court found that he was competent.

{¶ 4} In Case No. 2010 CR 1284, Banks pled guilty to Burglary, Obstructing Official 3

Business, and Possession of Criminal Tools. In Case No. 2010 CR 2935/1, Banks pled guilty to

Burglary, Receiving Stolen Property, and Possession of Criminal Tools. Appellee, the State of

Ohio, dismissed the Escape count in Case No. 2010 CR 2935/1.

{¶ 5} On June 29, 2011, the trial court imposed an eight-year prison sentence in Case

No. 2010 CR 1284, and an eight-year prison sentence in Case No. 2010 CR 2935/1. The

sentences were ordered to run concurrently; therefore, Banks’s total prison sentence is eight years.

Banks did not directly appeal his sentence.

{¶ 6} On November 28, 2011, Banks filed a motion to withdraw his guilty plea under

Crim.R. 32.1, or, alternatively, for post-conviction relief under R.C. 2953.21. The alternative

motion claimed, in pertinent part, that Banks was denied effective assistance of counsel. In

support of his motions, Banks submitted his own affidavit stating the basis for his ineffective

assistance of counsel claim. On April 2, 2012, the trial court overruled the alternative motion,

and Banks subsequently filed an appeal.

{¶ 7} Banks did not set forth specific assignments of error in his appellate brief as

required by App.R. 16(A). However, upon reading the brief, we are able to surmise that Banks

argues that the trial court erred when it overruled his motion to withdraw guilty plea and

alternative motion for post-conviction relief. As discussed in State v. Peoples, 2d Dist. Miami

No. 2005 CA 20,

, the failure to set forth specific assignments of error is grounds

for dismissal. Id. at ¶ 24. However, in the interest of justice, we will review this matter to

determine whether the trial court erred. We will first address Banks’s motion to withdraw his

guilty plea. 4

II. Did the Trial Court Err in Overruling Appellant’s

Motion to Withdraw Guilty Plea?

{¶ 8} A motion to withdraw a guilty plea is governed by 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.” Accordingly, “ ‘Crim.R. 32.1

permits a court, upon motion, to set aside a defendant's conviction and permit the defendant to

withdraw his or her plea of guilty or no contest after sentence has been imposed in order “to

correct manifest injustice.” The manifest injustice standard demands a showing of extraordinary

circumstances.’ ” (Citations omitted.) State v. Reed, 2d Dist. Clark No. 01CA0028,

, *4 (Oct. 5, 2001).

{¶ 9} “Ineffective assistance of counsel can constitute manifest injustice sufficient to

allow the post-sentence withdrawal of a guilty plea.” (Citation omitted.) State v. Dalton,

,

,

(10th Dist.). “When arguing the

ineffective assistance of counsel in a motion to withdraw a plea, the defendant must show that

counsel's ineffectiveness affected whether the defendant made a knowing and voluntary plea.”

State v. Doak, 7th Dist. Columbiana Nos.

and

,

.

{¶ 10} In this case, Banks claims that he was denied effective assistance of counsel

because defense counsel failed to investigate his case, failed to communicate with him, and failed

to pursue an advantageous plea offer. Other than a self-serving affidavit, the record contains no

evidentiary documentation supporting Banks’s claims.

{¶ 11} This district addressed a similar situation in State v. Laster, 2d Dist. Montgomery 5

No. 19387,

. In Laster, the defendant filed a motion to withdraw a guilty plea,

arguing that he was “misled into a plea of guilty upon erroneous advice of counsel.” Id. at ¶ 8.

We explained that, if true, this “would possibly render [defendant’s] plea less than knowing and

voluntary and, therefore, he would be allowed to change his plea”. Id. However, because there

was nothing in the record supporting the defendant’s ineffective assistance claim, we found that

the trial court correctly overruled the motion to withdraw. In this regard, we stated:

[W]here nothing in the record supports a defendant's claim that his plea was not

knowingly and voluntarily made other than his own self-serving affidavit or

statement, the record is insufficient to overcome the presumption that the plea was

voluntary. An argument grounded on matters outside the record can only be

addressed by a post conviction relief motion. (Citation omitted.) Id.

{¶ 12} As explained in Laster, matters outside the record must be addressed in a

post-conviction relief motion. “[T]he availability of the post relief conviction route removes

claims based on matters outside the record from the form of extraordinary circumstances

demonstrating a manifest injustice.” Id. Accordingly, the trial court did not err in overruling

Banks’s motion to withdraw his guilty plea.

III. Did the Trial Court Err in Overruling Appellant’s Motion

for Post-Conviction Relief?

{¶ 13} Post-conviction relief is governed by R.C. 2953.21. The statute provides, in

pertinent part, that:

Any person who has been convicted of a criminal offense * * * and who 6

claims that there was such a denial or infringement of the person's rights as to

render the judgment void or voidable under the Ohio Constitution or the

Constitution of the United States, * * * may file a petition in the court that

imposed sentence, stating the grounds for relief relied upon, and asking the court to

vacate or set aside the judgment or sentence or to grant other appropriate relief.

The petitioner may file a supporting affidavit and other documentary evidence in

support of the claim for relief. R.C. 2953.21(A)(1)(a).

{¶ 14} “ ‘[I]n a petition for post-conviction relief, which asserts ineffective assistance of

counsel, the petitioner bears the initial burden to submit evidentiary documents containing

sufficient operative facts to demonstrate the lack of competent counsel and that the defense was

prejudiced by counsel's ineffectiveness.’ ” State v. Kapper,

,

(1983), quoting State v. Jackson,

,

(1980).

{¶ 15} As noted in R.C. 2953.21, affidavits may be submitted in support of

post-conviction relief motions. The Supreme Court of Ohio stated the following in State v.

Calhoun,

,

(1999) regarding such affidavits:

[I]n reviewing a petition for postconviction relief filed pursuant to R.C.

2953.21, a trial court should give due deference to affidavits sworn to under oath

and filed in support of the petition, but may, in the sound exercise of discretion,

judge their credibility in determining whether to accept the affidavits as true

statements of fact. * * * Because the statute clearly calls for discretion in

determining whether to grant a hearing, accepting all supporting affidavits as true is

certainly not what the statute intended. * * * 7

***

* * * However, not all affidavits accompanying a postconviction relief petition

demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness

of their contents. Thus, where a petitioner relies upon affidavit testimony as the

basis of entitlement to postconviction relief, and the information in the affidavit,

even if true, does not rise to the level of demonstrating a constitutional violation,

then the actual truth or falsity of the affidavit is inconsequential. (Citation

omitted.)

.

{¶ 16} In Calhoun, the defendant filed a motion for post-conviction relief on grounds of

ineffective assistance of counsel. Calhoun,

,

. In support of

his motion, the defendant attached his own affidavit, the affidavit of his mother, his plea hearing

transcript, and his sentencing hearing transcript.

The trial court reviewed the hearing

transcripts to determine whether the affidavits contradicted the record.

. The trial court

also analyzed whether the defendant had substantive grounds for post-conviction relief.

. The trial court found, and the Supreme Court of Ohio agreed, that nothing in the record

corroborated the defendant’s ineffective assistance of counsel claim, and that the evidence

submitted by the defendant did not demonstrate sufficient operative facts to establish such a

claim.

at 288 and 291.

{¶ 17} In this case, Banks submitted significantly less evidence than the defendant in

Calhoun. Banks only submitted a self-serving affidavit, which the trial court found was

insufficient to support his ineffective assistance of counsel claim. Banks offered no other

evidentiary documentation, and he also failed to file a transcript of the proceedings. 8

{¶ 18} “The duty to provide a transcript for appellate review falls upon the appellant. *

* * When portions of the transcript necessary for resolution of assigned errors are omitted from

the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the

court has no choice but to presume the validity of the lower court's proceedings, and affirm.”

Knapp v. Edwards Laboratories,

,

(1980).

{¶ 19} Because Banks failed to submit evidentiary documentation with sufficient

operative facts demonstrating ineffective assistance of counsel, and because we must presume the

validity of the trial court’s proceedings, we find that the trial court did not err when it overruled

Banks’s motion for post-conviction relief.

{¶ 20} Having found that the trial court appropriately overruled Banks’s motion to

withdraw his guilty plea and alternative motion for post-conviction relief, the judgment of the trial

court is affirmed.

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

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck R. Lynn Nothstine David E. Banks Hon. Barbara P. Gorman