[Cite as State v. Montgomery,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103398

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KENNY MONTGOMERY, JR. DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-584761-A

BEFORE: Keough, P.J., McCormack, J., and Stewart, J.

RELEASED AND JOURNALIZED: May 12, 2016 ATTORNEY FOR APPELLANT

Thomas E. Conway 55 Public Square, Suite 2100 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Anthony Thomas Miranda Jonathan Block Frank Romeo Zeleznikar Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} In this delayed appeal, defendant-appellant, Kenny Montgomery, Jr., appeals

the trial court’s denial of his postsentence motion to withdraw his plea. For the reasons

that follow, we affirm.

{¶2} In May 2014, Montgomery was charged with one count of aggravated

burglary and two counts of felonious assault. In September 2014, Montgomery entered

into a plea agreement with the state where he agreed to plead guilty to an amended charge

of burglary and one amended charge of attempted felonious assault. The offenses

merged for sentencing, and the state elected to proceed with sentencing on the attempted

felonious assault charge, a third-degree felony. Montgomery was sentenced to 12

months in prison, ordered to run concurrently with a three-year prison sentence in an

unrelated case.

{¶3} After being sentenced, Montgomery moved to withdraw his plea pursuant to

Crim.R. 32.1, contending that he did not receive effective assistance of counsel, he pled

guilty because he felt pressured by his counsel, and he was actually innocent. The trial

court summarily denied his motion. Montgomery appeals from this order, raising as his

sole assignment of error that the trial court erred when, without hearing, it refused to

allow him to withdraw his guilty plea.

{¶4} A Crim.R. 32.1 postsentence motion to withdraw a guilty plea is subject to a

manifest injustice standard. State v. Xie,

,

(1992). A “manifest injustice” has been defined as a “clear or openly unjust act,” State ex rel. Schneider v. Kreiner,

,

(1998), that is

viewed as a “an extraordinary and fundamental flaw in the plea proceeding.” State v.

Hamilton, 8th Dist. Cuyahoga No. 90141,

. Ineffective assistance of

counsel can constitute a manifest injustice constituting a withdrawal of a guilty plea.

State v. Ayesta, 8th Dist. Cuyahoga No. 101383,

, ¶ 8, citing State v.

Dalton,

,

,

(10th Dist.).

{¶5} The individual seeking withdrawal of the plea bears the burden of

establishing the existence of a “manifest injustice.” State v. Smith,

,

(1977), paragraph one of syllabus. A determination of whether that

burden is satisfied is within the sound discretion of the trial court, and will not be

reversed by an appellate court absent an abuse of that discretion. State v. Steinke, 8th

Dist. Cuyahoga No. 100345,

, citing State v. Caver, 8th Dist.

Cuyahoga Nos. 90945 and 90946,

; Smith. An abuse of discretion

implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

,

(1983).

{¶6} A hearing on a Crim.R. 32.1 postsentence motion is only required if the facts

alleged by the defendant, accepted as true, would require that the defendant be allowed to

withdraw the plea. State v. Legree,

,

(6th

Dist. 1988). “A hearing is not required where the record, on its face, conclusively and

irrefutably contradicts the allegations in support of withdrawal.”

{¶7} In this case, Montgomery attached two affidavits to his motion in support of

his argument to withdraw his plea. In these affidavits, he expressed his actual innocence

and dissatisfaction with his assigned trial counsel. He alleged that he was pressured by

his trial counsel to plead guilty and that counsel failed to perform requested duties.

{¶8} However, the record conclusively refutes the allegations in Montgomery’s

affidavits. Part of the Crim.R. 11 colloquy included the trial court asking Montgomery

whether he was threatened or promised anything to induce his change of plea.

Montgomery denied that any threats or promises were made. He unequivocally stated

that he did not want a trial, that he knew and understood what he was doing at the time

the plea was made, and entered guilty pleas to both offenses. Moreover, he concedes on

appeal that the court substantially complied with Crim.R. 11 prior to accepting his guilty

pleas.

{¶9} Montgomery’s time to object or voice concern about counsel’s performance

was during the colloquy, rather than sit on his hands and later complain about counsel

after the sentence was imposed. The record shows that Montgomery was extremely

pleased with his counsel’s performance at the time of the plea and sentencing.

Montgomery stated to the court, “I want to thank my lawyer, * * *, for representing me to

the best of his ability. I didn’t really give him that much to work with by me not

testifying [in an unrelated case], but he still tried. I’m going to miss him coming to visit

me.” (Tr. 34.) When the trial court seemed shocked to hear this compliment due to

Montgomery’s pretrial attitude, Montgomery continued, “Once again, like I said, I want to thank [defense counsel]. I mean, he represented me. He gave me some good advice.

I appreciate all his hard work.” (Tr. 35.) Therefore, we can only conclude that the

motion to withdraw his guilty plea was merely a change of heart.

{¶10} Accordingly, Montgomery failed to demonstrate that a manifest injustice

occurred. The trial court did not abuse its discretion in denying Montgomery’s

postsentence motion to withdraw his plea without holding a hearing. The assignment of

error is overruled.

{¶11} Judgment affirmed.

It is ordered that appellee recover from appellant 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. 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR