[Cite as State v. McGlosson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-03-057

: OPINION - vs - 3/4/2013 :

DAVID S. MCGLOSSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-12-1965

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

F. Harrison Green, Executive Park, Suite 230, 4015 Executive Park Drive, Cincinnati, Ohio 45241, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, David S. McGlosson, appeals a decision of the Butler

County Court of Common Pleas denying his post-sentence motion to withdraw his guilty plea.

For the reasons set forth below, we affirm the trial court's decision.

{¶ 2} On December 15, 2010, McGlosson pled guilty to a bill of information which

charged him with two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), Butler CA2012-03-057

both third-degree felonies. These charges arose out of McGlosson's inappropriate sexual

contact with one of his step-daughters, B.B., when she was under the age of 13. On January

26, 2011, the trial court sentenced McGlosson to four years on Count I, three years on Count

II, and ordered the sentences to be served consecutively for an aggregate sentence of seven

years. Appellant did not appeal his convictions or sentence.

{¶ 3} About a year later, on December 14, 2011, McGlosson filed a motion to

withdraw his guilty plea arguing that his trial attorneys were ineffective. McGlosson asserted

that his attorneys pressured him to accept the plea, assuring him that if he did plead guilty,

he would receive probation. He also alleged that his trial attorneys were ineffective for failing

to file a motion to suppress a confession he made to the Butler County Sheriff's Office. In

support of the motion, McGlosson attached his own affidavit and the affidavits of his step-

daughter, Heather McGlosson, and a friend of Heather McGlosson, Ben Baker.

{¶ 4} The court held a hearing on the motion on February 15, 2012. At the hearing,

McGlosson testified on his own behalf. The state then presented testimony from Detective

Melissa Gerhardt who was the lead investigator of the charges against McGlosson.

Detective Gerhardt was also one of the detectives who interviewed McGlosson. A DVD of

this interview was admitted into evidence. The state also presented testimony from one of 1 McGlosson's trial attorneys, Christopher Pagan. A copy of both trial attorneys' files were

also submitted to the court. After reviewing the evidence, the trial court denied McGlosson's

motion to withdraw his guilty plea.

{¶ 5} McGlosson appeals this decision and presents two assignments of error for our

review.

{¶ 6} Assignment of Error No. 1:

1. McGlosson was also represented by Fred Miller in the proceedings below. However, Miller did not testify at the hearing on McGlosson's motion to withdraw.

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{¶ 7} THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW DEFENDANT-

APPELLANT TO WITHDRAW HIS PLEA WHEN DEFENDANT-APPELLANT INDICATED

THAT HE WAS INNOCENT, THAT HE WAS MISLEAD [SIC] AS TO THE

CIRCUMSTANCES FOR HIS PLEA BY DEFENSE COUNSEL.

{¶ 8} On appeal, McGlosson contends the trial court abused its discretion in denying

his motion to withdraw his guilty plea.

{¶ 9} Crim.R. 32.1 provides that a trial court may permit a defendant to withdraw a

guilty plea only to correct a manifest injustice. State v. Degaro, 12th Dist. No. CA2008-09-

227,

, ¶ 10. A defendant who seeks to withdraw a guilty plea post-sentence

has the burden of establishing the existence of a manifest injustice. State v. Williams, 12th

Dist. No. CA2009-03-032,

, ¶ 10, citing State v. Smith,

(1977), paragraph one of the syllabus. A manifest injustice is a fundamental flaw in the

proceedings that results in a miscarriage of justice or is inconsistent with the requirements of

due process. State v. McMahon, 12th Dist. No. CA2009-06-008, 2010-Ohio- 2055, ¶ 6. A

post-sentence motion to withdraw a guilty plea is allowable only under extraordinary

circumstances and is left up to the discretion of the trial court.

; Williams at ¶ 13.

Accordingly, we review the trial court's decision on a motion to withdraw a guilty plea for an

abuse of discretion. McMahon at ¶ 9. An abuse of discretion implies that the trial court acted

unreasonably, arbitrarily, or unconscionably.

{¶ 10} McGlosson asserts that the trial court abused its discretion in denying his

motion to withdraw his guilty plea as there were several "factors that way [sic] heavily in favor

of granting the motion." These factors include that: (1) he is innocent, (2) he did not fully

understand the implications of his guilty plea, and (3) the state would not be unduly

prejudiced by the withdrawal of his guilty plea as it was never sent to the Grand Jury or

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scheduled for trial. After reviewing the record, we find McGlosson's arguments to be without

merit.

{¶ 11} First, contrary to McGlosson's assertions, the record indicates the trial court

carefully considered all arguments in support of his motion before rendering its decision. The

court held a full hearing, received evidence, and considered arguments from both the state

and McGlosson. Furthermore, the court placed on the record several factors it considered in

reaching its decision to deny the motion. Specifically, the court noted that: McGlosson was

represented by highly competent counsel at the time he entered his plea, he was afforded a

full Crim.R. 11 hearing, he waited about ten months after sentencing to file his motion to

withdraw, and did not challenge the fact that he confessed to inappropriately touching the

victim.

{¶ 12} Second, the lapse in time between sentencing and the filing of the motion to

withdraw affects McGlosson's credibility and also militates against the granting of the motion.

See State v. Bush,

,

, citing Smith at paragraph three

of the syllabus. As noted by the trial court, at least ten months had passed between

McGlosson's sentencing and his request to withdraw his guilty plea. Additionally, the

evidence McGlosson relied upon is insufficient to establish a manifest injustice. In his

affidavit, McGlosson proclaims his innocence and claims that he never intended to plead

guilty but did so "in part at the insistence of my attorney." This court has previously held that

a self-serving affidavit of the movant is insufficient to demonstrate manifest injustice. State v.

Heath, 12th Dist. No. CA2006-03-036,

. Accordingly, McGlosson's own

self-serving affidavit and testimony proclaiming his innocence is insufficient to establish a

manifest injustice. Moreover, Heather's and Baker's affidavits were of limited value and do

not demonstrate a manifest injustice. As noted by the trial court, Heather's statement that

she "never had any form of sexual contact" with McGlosson does not support granting the -4- Butler CA2012-03-057

motion to withdraw as Heather was not the victim. Baker's affidavit merely establishes that

he was not interviewed by the police regarding the charges against McGlosson. His affidavit

in no way supports McGlosson's claims of innocence.

{¶ 13} Finally, the record does not support McGlosson's claims that he is innocent or

that he did not understand the implications of his guilty plea. The record indicates that prior

to filing his motion to withdraw, McGlosson never informed the court of his innocence. To the

contrary, McGlosson admitted to the charges as presented in the bill of information. The bill

of information stated: "On or about January 01, 1998, through December 31, 2002, * * *

David S. McGlosson did have sexual contact with another * * * when the other person, * * * is

less than thirteen years of age." Further, the Entry of Plea of Guilty to an Information, signed

by McGlosson states: "By pleading guilty I admit committing the offense." Additionally, the

trial court noted that during the interview, "this defendant confessed to some sort of sexual

misconduct" and further noted that McGlosson was not challenging that he made these

statements.

{¶ 14} The record also indicates that McGlosson was aware of the nature of the

charges and the implications of his plea. First, McGlosson conceded in his brief that he

received a full Crim.R. 11 hearing. A Crim.R. 11 hearing necessarily requires the court to

determine that a defendant is "making the plea voluntarily, with understanding of the nature

of the charges and of the maximum penalty involved, and if applicable, that the defendant is

not eligible for probation." Crim.R. 11(C)(2)(a). See also State v. Manis, 12th Dist. No.

CA2011-03-059,

, ¶ 11. Moreover, the Entry of Plea of Guilty to an

Information, signed by McGlosson, also indicates that he understood the nature of the

charges and the consequences of his guilty plea. The entry states: "I understand the nature

of these charges and the possible defenses I might have. I am satisfied with my attorney's

advice and competence. * * * No threats have been made to me. No promises have been -5- Butler CA2012-03-057

made * * *."

{¶ 15} In sum, McGlosson's unsubstantiated claims that he is innocent and did not

understand the implications of his guilty plea are not sufficient to overcome the evidence in

the record as detailed above.

{¶ 16} McGlosson next claims that his motion should have been granted because the

state would not be prejudiced by the withdrawal of his guilty plea as the case against him was

not previously set for trial or presented to the grand jury. As noted by the trial court, no

evidence was presented as to this argument. Accordingly, we will not consider it on appeal.

See State v. McMahon,

at ¶ 32, fn. 2 (noting that an appellate court only

considers those issues raised before the trial court).

{¶ 17} After a thorough review of the record, we conclude that the trial court

considered all relevant factors presented by the motion and ultimately acted within its

direction when it denied McGlosson's motion to withdraw his guilty plea.

{¶ 18} McGlosson's first assignment of error is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT FAILED TO EXAMINE THE CONDUCT OF DEFENDANT-

APPELLANT'S DEFENSE ATTORNEYS' REPRESENTATION PRIOR TO THE PLEA

HEARING INCLUDING THE INVESTIGATION OF THE EVIDENCE BEING PRODUCED

AGAINST HIM.

{¶ 21} In his second assignment of error, McGlosson asserts the trial court erred by

denying his motion to withdraw his guilty plea because he received ineffective assistance of

counsel. McGlosson claims his attorneys were ineffective because they failed to file a motion

to suppress, failed to properly investigate the claims against him, and told him he would

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receive probation if he pled guilty.2 McGlosson contends the trial court solely relied upon its

finding regarding the motion to suppress in concluding he received effective assistance of

counsel. He claims that had the trial court considered this other conduct, it would have found

counsel was ineffective and granted the motion to withdraw his guilty plea. We disagree.

{¶ 22} Ineffective assistance of counsel is a proper basis for seeking a post-sentence

withdrawal of a guilty plea. State v. Eberle, 12th Dist. No. CA2009-10-065,

,

¶ 56. When the alleged error underlying a motion to withdraw a guilty plea is ineffective

assistance of counsel, the movant must show that (1) his counsel's performance was

deficient; and (2) there is a reasonable probability that, but for counsel's errors, he would not

have pled guilty. State v. Xie,

(1992), citing Strickland v. Washington,

,

(1984); State v. Heath, 12th Dist. No. CA2006-03-036,

. Counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. No. CA2012-05-109,

, citing

.

{¶ 23} We first note that McGlosson could have challenged his convictions and

sentence on direct appeal based upon counsels' performance. "It is well established by

pertinent Ohio case law that claims submitted in support of a Crim.R. 32.1 motion to withdraw

plea that could have been raised on direct appeal, but were not raised in direct appeal, are

barred by res judicata." Hendrix at ¶ 11, quoting State v. Madrigal, 6th Dist. Nos. L-10-1142,

L-10-1143,

, ¶ 16. Accordingly, as McGlosson could have raised the issues

relating to his trial attorneys' performance in a direct appeal of his sentence and convictions,

2. McGlosson also alleges that his attorneys were deficient for failing to consider the mens rea required to commit gross sexual imposition. In support of this argument, he claims that the type of touching he described during the interview with the Sheriff's Office did not establish the requisite mens rea for the offense of gross sexual imposition. He also argues that based on his confession, the appropriate offense would have been sexual imposition rather than gross sexual imposition. This court only considers those issues raised before the trial court in the motion to withdraw. See State v. McMahon,

, ¶ 32, fn. 2. McGlosson did not raise these issues to the trial court below, and therefore we will not consider them on appeal.

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those matters are now barred by res judicata. Even if res judicata was inapplicable to the

case at bar, McGlosson's argument that he received ineffective assistance of counsel is

without merit.

{¶ 24} The failure to file a motion to suppress does not constitute per se ineffective

assistance of counsel. State v. McMahon,

at ¶ 36, citing State v. Madrigal,

(2000). Rather, the failure to file such a motion amounts to

ineffective assistance of counsel only when the record demonstrates that the motion would

have been successful if made. State v. Brown, 12th Dist. No. CA2002-03-026, 2002-Ohio-

5455, ¶ 11. Even if some evidence in the record supports a motion to suppress, counsel is

still considered effective, "if defense counsel could reasonably have decided that filing a

motion to suppress would have been a futile act."

{¶ 25} McGlosson argues his attorneys should have filed a motion to suppress based

on a statement he made during the interview with the Sheriff's Office. During that interview,

McGlosson inquired: "If I say I want to talk to a lawyer, what does that do to this process."

The detective responded: "If you want to talk to a lawyer, we'll just move forward with what

we got. * * * Obviously you have that right. * * * We could get up right now Dave, all you got

to do is say you don't want to talk to us and we walk out the door." McGlosson chose to

continue the interview with the detectives. At the hearing on his motion to withdraw his guilty

plea, McGlosson testified that his attorneys never followed up on filing a motion to suppress

"because they just kept pushing for me to take the plea." He stated that he pled guilty to the

offenses based on his attorneys' assurances that he would receive probation in exchange for

the plea. Pagan, however, testified that he and his co-counsel considered filing a motion to

suppress, but based on his experience, such motions are rarely granted. He also noted that

McGlosson was provided Miranda warnings prior to the interview, and therefore he believed it

was "very or highly unlikely that it was going to get suppressed." -8- Butler CA2012-03-057

{¶ 26} When a suspect in custody expresses "his desire to deal with the police only

through counsel," the suspect "is not subject to further interrogation by the authorities until

counsel has been made available to him." State v. Voss, 12th Dist. No. CA2006-11-132,

, citing Edwards v. Arizona,

,

(1981). To invoke the right to have an attorney present during interrogation, a suspect must

unambiguously request counsel such that a reasonable officer in the circumstances could

understand the statement to be a request for an attorney. Voss at ¶ 66, quoting Davis v.

United States,

,

(1994). However, if the statement is not

clear that the person is requesting an attorney, then the officers are not required to stop

questioning the suspect. Id. Statements such as "I think I need a lawyer" have been found

not to be an unambiguous and unequivocal request for an attorney. See, e.g., Voss at ¶ 69;

State v. Henness,

(1997).

{¶ 27} In this case, even if trial counsel had filed a motion to suppress, it would have

been futile. McGlosson's inquiry, "If I say I want to talk to a lawyer; what's that do to this

process" was not a clear and unequivocal request for an attorney.3 Accordingly, a motion to

suppress the confession would have been denied on this basis. As a result, we find that

McGlosson failed to demonstrate that his attorneys were ineffective for failing to file a motion

to suppress.

{¶ 28} Next, McGlosson claims his attorneys' were ineffective because they told him

he would receive probation if he pled guilty. He also contends his trial attorneys were

ineffective as they "pressured" him into pleading guilty and failed to investigate the charges

against him. He essentially argues that had his attorneys conducted an appropriate

3. In reaching this conclusion, we are not making any determination as to whether McGlosson was in custody at the time of the statement as the fact that the statement was not an unequivocal request for an attorney is dispositive.

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investigation they would have discovered that the police did not have a statement from

Heather alleging McGlosson had raped her. He contends that the lack of a statement from

Heather would have affected his decision to plead guilty as he pled guilty in part to avoid

charges related to Heather. However, McGlosson did not complain about any of these

alleged deficiencies in his attorneys' performance until about a year after his conviction.

Again, this lapse in time adversely affects his credibility and militates against the granting of

the motion. See State v. Bush,

,

, citing Smith, 49

Ohio St.2d at paragraph three of the syllabus.

{¶ 29} Furthermore, the record does not support McGlosson's claims that his attorneys

were deficient. First, McGlosson was informed on numerous occasions that he faced

possible incarceration rather than probation. Pagan testified that he advised McGlosson that

the possible penalty for a conviction of gross sexual imposition was five years. Additionally,

while testifying at the hearing, McGlosson himself acknowledged that the judge informed him

that he faced a possible maximum prison term of five years on each count.4 Moreover, the

Entry of Plea of Guilty to Information, signed by McGlosson, also states that the maximum

penalty for each count of gross sexual imposition was five years.

{¶ 30} Additionally, there is no evidence in the record that McGlosson was pressured

into pleading guilty and the record indicates that the attorneys conducted an appropriate

investigation into the charges against McGlosson. McGlosson testified that during the

original plea hearing he advised the judge that no threats or promises had been made in

exchange for his guilty plea. He also testified during the plea hearing that he was satisfied

4. McGlosson failed to file a transcript of the plea hearing or dispositional hearing as required by App.R. 9(B). Accordingly, we must presume the validity of those proceedings. State v. Hendrix,

. However, McGlosson did file a transcript of the hearing on his motion to withdraw. At that hearing, McGlosson provided testimony regarding the plea hearing. Furthermore, it appears that the trial court reviewed "draft copies of the dispositional hearing and the plea hearing" when reaching its decision. However, because this court was not provided with official copies of these transcripts, we rely on the information attached to the motion to withdraw as well as the testimony from the hearing on the motion to withdraw.

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with his attorneys' assistance and advice. As to the investigation by the attorneys, Pagan

testified that in investigating the charges, he spoke with McGlosson and the prosecutor,

reviewed the DVD of McGlosson's interview with police, talked to other family members,

including Heather, and considered the legal consequences of McGlosson's statement.

{¶ 31} McGlosson's only evidence to support his claims that his attorneys were

ineffective is his own self-serving testimony and the affidavits of Heather and Baker.

McGlosson stated in his affidavit that he was promised he "would receive probation" if he

pled guilty. He also stated that he "relied upon the advice of my attorneys, believing that they

had fully investigated the allegations made against me including that my step-daughters had

given statements that I had raped them." Heather's affidavit in turn confirmed that she was

never interviewed by the Butler County Sheriff's Office. Baker also confirmed that he was

never interviewed by the Sheriff's Office.

{¶ 32} Generally, a self-serving affidavit of the movant is insufficient to demonstrate

manifest injustice. State v. Heath, 12th Dist. No. CA2006-03-036,

.

Moreover, the "good faith, credibility, and weight of the movant's assertions in support of the

motion are matters to be resolved" by the trial court. State v. Smith,

(1977). The trial court noted on the record that it "didn't put much weight" to the affidavits of

Baker or Heather as Heather was not a victim. We defer to the trial court's finding with

respect to the weight and credibility of Heather and Baker's affidavits. Accordingly, the

evidence presented in support of McGlosson's claims that his trial attorneys pressured him

into pleading guilty and failed to conduct a proper investigation is insufficient to overcome the

evidence to the contrary found in the record.

{¶ 33} Based on the foregoing, McGlosson failed to show that his trial attorneys were

deficient or that he would not have pled guilty, absent his trial attorneys' alleged

ineffectiveness. Accordingly, we do not find that the trial court abused its discretion in - 11 - Butler CA2012-03-057

denying McGlosson's motion to withdraw his guilty plea based on ineffective assistance of

counsel. McGlosson's second and final assignment of error is overruled.

{¶ 34} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

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