[Cite as State v. Leifheit,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-78 : v. : Trial Court Case No. 2017-TRC-3984 : MICHAEL J. LEIFHEIT : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

...........

OPINION

Rendered on the 30th day of October, 2020.

...........

MATTHEW B. DIBARTOLA, Atty. Reg. No. 0088702, Assistant Prosecuting Attorney, Clark County Municipal Court, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

JEFFREY D. SLYMAN, Atty. Reg. No. 0010098, 211 Kenbrook Drive, Suite 5, Vandalia, Ohio 45377 Attorney for Defendant-Appellant

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

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Michael J. Leifheit, appeals from a judgment of the

Clark County Municipal Court denying his motion to withdraw guilty plea. For the

reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 12, 2017, Leifheit pled guilty to operating a vehicle under the

influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a). After accepting

Leifheit’s guilty plea, the trial court issued an entry granting Leifheit limited driving

privileges from May 16, 2017 through July 23, 2017. The entry stated that Leifheit was

only permitted to drive for work-related purposes, and that he could “operate ONLY his

personal vehicle, as his CDL [commercial driver’s license] remains suspended.”

{¶ 3} On June 20, 2017, the matter proceeded to a sentencing hearing. During

the sentencing hearing, the trial court ordered Leifheit to pay a fine of $375 and court

costs. The trial court also ordered Leifheit to serve 13 days in jail, with ten days

suspended, and three days credited for Leifheit’s completing a three-day intervention

program. The trial court also suspended Leifheit’s operator’s license for one year.

{¶ 4} Two days after sentencing, the trial court issued a second entry granting

Leifheit limited driving privileges from June 22, 2017 to October 16, 2017. Like the first

entry, the second entry only permitted Leifheit to drive for work-related purposes. The

second entry, however, did not make any reference to Leifheit’s CDL suspension.

{¶ 5} Approximately two years later, on May 31, 2019, Leifheit filed a letter he

wrote to the trial court regarding his CDL. In the letter, Leifheit advised the trial court

that he had recently attempted to renew his CDL at the Bureau of Motor Vehicles (“BMV”), -3-

but was prohibited from doing so due to his OVI conviction. Because a CDL was

necessary for his employment, Leifheit requested the trial court to “drop [his OVI] to a

lesser charge” so that he could renew his CDL. Letter (May 31, 2019). Shortly

thereafter, on June 3, 2019, Leifheit filed a second letter in which he asked the trial court

to issue an order to renew his CDL.

{¶ 6} The trial court treated Leifheit’s letters as a motion to renew his operator’s

license and CDL. Following a hearing on the matter, on June 24, 2019, the trial court

issued an order permitting Leifheit to renew his operator’s license. However, with regard

to Leifheit’s CDL, the trial court found that Leifheit “has an indefinite suspension regarding

his CDL and that said disqualification shall remain even while [Leifheit] is renewing said

operator’s license.”

{¶ 7} After the trial court declined to issue an order to renew Leifheit’s CDL, on

August 12, 2019, Leifheit filed a motion to withdraw his guilty plea. In support of his

motion, Leifheit argued that he did not knowingly, intelligently, and voluntarily plead guilty

to the 2017 OVI offense because at the time he entered his plea, he was unaware that

an OVI conviction could cause his CDL to be suspended indefinitely. Leifheit argued

that the trial court should have notified him of the adverse effect his guilty plea could have

on his CDL by giving the following admonishment at the plea hearing:

For those of you that have a commercial driver’s license, convictions

of certain offenses may have an adverse effect on your ability to maintain

your commercial driver’s license—even if you were not in a commercial

vehicle at the time of the incident. Before you enter a plea you may wish

to seek legal advice as to the consequences of a conviction on your -4-

commercial driver’s license.

Motion to Withdraw Guilty Plea – Exhibit B.

{¶ 8} Leifheit also argued that his plea was not knowingly, intelligently, and

voluntarily entered due to his trial counsel’s providing ineffective assistance.

Specifically, Leifheit claimed that his trial counsel failed to advise him of the adverse

effects his guilty plea could have on his ability to maintain his CDL. Leifheit claimed this

failure prejudiced him since his CDL was suspended indefinitely and was required for his

employment.

{¶ 9} Leifheit offered no sworn testimony, affidavits, or other evidence in support

of the claims in his motion. Instead, Leifheit simply attached a February 2019 notice

from the BMV advising that his CDL was expiring on May 31, 2019, and a copy of the

judicial admonishment that Leifheit claimed the trial court should have given at his plea

hearing. See Motion to Withdraw Guilty Plea- Exhibits A and B.

{¶ 10} On October 23, 2019, the trial court held a hearing on Leifheit’s motion to

withdraw guilty plea. During the hearing, the trial court confirmed that Leifheit had two

prior OVI convictions, one from 2005 and one from 2011. Leifheit advised the trial court

that he only recalled the 2011 conviction, but that he had no reason to doubt the court’s

records indicating that he was also convicted in 2005. Although Leifheit told the trial

court that he had no idea his prior OVI convictions would impact his CDL, Leifheit’s trial

counsel later clarified that there was “no question that [Leifheit] knew that there was an

impact on his CDL license.” Motion Hearing Tr. (Oct. 23, 2019), p. 7. Rather, Leifheit’s

counsel explained that it was not until Leifheit received the trial court’s June 24, 2019

entry denying the motion to renew his CDL that Leifheit became aware of the indefinite -5-

suspension on his CDL. Therefore, Leifheit, through his counsel, claimed that he should

be able to withdraw his guilty plea because, prior to his plea, neither the trial court nor his

previous trial counsel had advised him that his CDL could be subject to an indefinite

suspension as a result of his OVI conviction.

{¶ 11} Following the hearing, the trial court denied Leifheit’s motion to withdraw

guilty plea. In so holding, the trial court found that Leifheit was not credible based on the

statements he made regarding his prior OVI convictions. The trial court also found that

Leifheit’s claim regarding his prior counsel’s failure to advise him of the possibility that his

CDL could be indefinitely suspended was insufficient by itself to demonstrate ineffective

assistance of counsel.

{¶ 12} With regard to the judicial admonishment, the trial court found that even if it

had given the admonishment attached to Leifheit’s motion, it would not have cured

Leifheit’s complaint since the admonishment did not provide notice of an indefinite CDL

suspension. Lastly, the trial court found that Leifheit failed to explain the 27-month delay

in filing the motion to withdraw his guilty plea, and that this undue delay mitigated against

granting the motion.

{¶ 13} Leifheit now appeals from the trial court’s order denying his motion to

withdraw guilty plea, raising a single assignment of error for review.

Assignment of Error

{¶ 14} Under his assignment of error, Leifheit contends that the trial court erred in

denying his motion to withdraw guilty plea because he did not knowingly, intelligently, and

voluntarily plead guilty to the OVI offense at issue. Leifheit claims that his guilty plea -6-

was not knowing, intelligent, and voluntary because neither the trial court nor his trial

counsel advised him that the resulting conviction could adversely affect his ability to

maintain his CDL. Leifheit asserts that he never would have pled guilty if he had known

that an indefinite suspension of his CDL was possible. According to Leifheit, the

resulting indefinite suspension of his CDL prejudiced him because maintaining a CDL

was necessary for his employment. For these reasons, Leifheit believes his plea and

sentence should be vacated. We disagree.

Crim.R. 32.1 – Standard of Review

{¶ 15} Under Crim.R. 32.1, a trial court may “permit a defendant to withdraw a

guilty plea after imposition of sentence only to correct a manifest injustice.” State v.

Wilson, 2d Dist. Montgomery No. 26354,

, ¶ 16; Crim.R. 32.1. (Other

citations omitted.) “ ‘A “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. Brooks, 2d Dist. Montgomery No. 23385,

, ¶ 8, quoting

State v. Hartzell, 2d Dist. Montgomery No. 17499,

, *2 (Aug. 20, 1999).

Therefore, “[w]ithdrawal of a plea after sentencing is permitted only in the most

extraordinary cases.” State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-

4769, ¶ 13, citing State v. Jefferson, 2d Dist. Montgomery No. 26022,

, citing State v. Smith,

,

(1977).

{¶ 16} “[A] defendant ordinarily may establish a manifest injustice within the

context of Crim.R. 32.1 by showing that he did not enter the guilty plea in a knowing, -7-

intelligent, or voluntary manner.” State v. Riley, 4th Dist. Washington No. 16CA29,

, ¶ 18, citing State v. Fry, 7th Dist. Mahoning No. 12 MA 156, 2013-Ohio-

5865, ¶ 12 (“A guilty plea that was not entered knowingly, intelligently, or voluntarily,

creates a manifest injustice that would entitle a defendant to withdraw a guilty plea.”);

State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705,

(“If a

defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of

due process and is void.”); State v. Hall, 4th Dist. Jackson No. 99CA847,

, *2 (Feb. 25, 2000) (“A trial court violates a defendant's due process rights, and

hence may produce a manifest injustice, if it accepts a guilty plea that the defendant did

not enter knowingly, intelligently, and voluntarily.”).

{¶ 17} “ ‘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.’ ” State v.

Hawke, 2d Dist. Greene Nos. 2019-CA-24 and 2019-CA-25,

,

quoting State v. Yapp,

,

, ¶ 9 (8th Dist.), citing Smith at

paragraph two of the syllabus. “ ‘Consequently, an appellate court’s review of a trial

court’s denial of a post[-]sentence motion to withdraw a guilty plea is limited to a

determination of whether the trial court abused its discretion.’ ” (Citations omitted.)

quoting

. An abuse of discretion occurs when a trial court’s decision is

“unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp.,

,

(1990). -8-

Trial Court Advisement at Plea Hearing

{¶ 18} In an attempt to establish manifest injustice, Leifheit first argues that his

guilty plea to the OVI offense at issue was less than knowing, intelligent, and voluntary

because the trial court failed to advise him at the plea hearing that the resulting OVI

conviction could adversely affect his ability to maintain a CDL. According to Leifheit,

such notification was necessary for purposes of advising him of the effect of his guilty

plea as required by Traf.R. 10(D) and Crim.R. 11(E). We find no merit to Leifheit’s claim.

{¶ 19} Traf.R. 10 governs pleas in traffic cases and section (D) of that rule provides

the following:

In misdemeanor cases involving petty offenses, except those

processed in a traffic violations bureau, the court may refuse to accept a

plea of guilty or no contest and shall not accept such pleas without first

informing the defendant of the effect of the plea of guilty, no contest, and

not guilty.

Traf.R. 10(D). See also Crim.R. 11(E).

{¶ 20} Pursuant to Traf.R. 10(D), the trial court is only required to inform the

defendant of the effect of his guilty plea before accepting it. State v. MacConnell, 2d

Dist. Montgomery No. 21109,

. “The Supreme Court of Ohio has

clarified that a trial court need only advise a defendant of the information contained in

Traf.R. 10(B) to satisfy Traf.R. 10(D)’s requirement of ‘informing the defendant of the

effect of the plea.’ ” State v. Clark, 2d Dist. Greene No. 2007-CA-33,

, quoting State v. Darden, 2d Dist. Greene No. 2005-CA-109,

,

citing State v. Watkins,

,

,

. -9-

{¶ 21} Traf.R. 10(B)(1) defines the effect of a guilty plea as being “a complete

admission of the defendant’s guilt.” See also Crim.R. 11(B)(1). Accordingly, when

informing a defendant of the effect of his guilty plea to a misdemeanor, petty offense, the

trial court is only required to advise the defendant that a guilty plea is a complete

admission of guilt. State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-

2059, ¶ 14; State v. Rush, 2d Dist. Greene No. 2015-CA-54,

; State

v. Martin, 2d Dist. Clark No. 2015-CA-107,

. “The trial court is not

required to advise a defendant of every conceivable consequence of his plea.” State v.

Rice, 5th Dist. Stark No. 2013CA00197,

, ¶ 20.

{¶ 22} In this case, it is undisputed that Leifheit’s OVI was a misdemeanor, petty

offense. See Traf.R. 2(D); R.C. 4511.19(G)(1)(b); Faulkner at ¶ 13-14. Therefore,

when accepting Leifheit’s guilty plea, the trial court was only required to advise Leifheit

that his guilty plea was a complete admission of his guilt. Leifheit does not argue that

the trial court failed to give such an advisement at the plea hearing. Leifheit instead

mistakenly claims that the trial court was required to inform him that his guilty plea could

adversely affect his ability to maintain a CDL, and more specifically, that it could result in

an indefinite suspension of his CDL. Such an advisement, however, was not required

by Traf.R. 10(D) or by the analogous provision in Crim.R. 11(E). Accordingly, any failure

on the part of the trial court to give such an advisement did not render Leifheit’s guilty

plea less than knowing, intelligent, and voluntary.

{¶ 23} As a further matter, the record on appeal contains no transcript of the plea

hearing. “It is well-established that ‘an appellate court cannot determine whether

manifest injustice occurred at a plea hearing, where the defendant fails to provide a -10-

transcript[.]’ ” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16,

,

quoting State v. Kerby, 2d Dist. Clark No. 2009-CA-39,

, ¶ 17. “In the

absence of a plea hearing transcript, we must presume the regularity of the proceedings

below.”

citing State v. Wright, 2d Dist. Montgomery Nos. 23330, 23403, 23404, and

23521,

, ¶ 14. Therefore, we must presume that the trial court properly

advised Leifheit regarding the effect of his guilty plea to the OVI offense at issue.

{¶ 24} Because there is nothing in the record indicating that the trial court failed to

give the required advisement at the plea hearing, we do not find that the trial court

engaged in any conduct that rendered Leifheit’s guilty plea less than knowing, intelligent,

and voluntary. Consequently, we find no manifest injustice in that regard.

Ineffective Assistance of Counsel

{¶ 25} Leifheit next contends that his guilty plea was less than knowing, intelligent,

and voluntary due to his trial counsel’s providing ineffective assistance. Specifically,

Leifheit claims that his trial counsel failed to advise him that pleading guilty to the OVI

offense at issue could result in an indefinite suspension of his CDL. Leifheit claims that

this failure prejudiced him because his CDL was indefinitely suspended following his plea,

which caused him to lose his employment. We again find no merit to Leifheit’s claim.

{¶ 26} It is well established that “[i]neffective assistance of counsel can provide a

basis for seeking a post-sentence withdrawal of a guilty plea.” State v. Griffin, 2d Dist.

Clark No. 2014-CA-123,

, citing Wilson, 2d Dist. Montgomery No.

26354,

at ¶ 17. “When the alleged error underlying a motion to

withdraw a guilty plea is ineffective assistance of counsel, the defendant must show that -11-

(1) trial counsel’s performance was deficient; and (2) there is a reasonable probability

that, but for counsel’s errors, the defendant would not have entered a plea.” Wilson at

¶ 17, citing Strickland v. Washington,

,

,

(1984).

{¶ 27} In attempting to establish deficient performance on the part of his trial

counsel, Leifheit merely provided a bare, unsworn assertion that his trial counsel failed to

advise him of the possibility that his CDL could be suspended indefinitely as a result of

pleading guilty to the OVI offense at issue. We addressed a similar situation in State v.

Laster, 2d Dist. Montgomery 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. Id. In this regard, we stated the following:

[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.

(Citations omitted.) Id. Accord State v. Armstrong, 2d Dist. Montgomery No. 27138,

; State v. Johnson, 2d Dist. Champaign No. 2018-CA-27, 2019-Ohio-

1259, ¶ 10. -12-

{¶ 28} Here, Leifheit’s bare assertion regarding his counsel’s advice, or lack

thereof, was insufficient to overcome the presumption that his guilty plea was valid. See

Ogletree, 2d Dist. Clark No. 2014-CA-16,

, citing State v.

Burkhart, 2d Dist. Champaign No. 07-CA-26,

. Therefore,

Leifheit’s claim by itself was insufficient to establish a manifest injustice warranting the

withdrawal of his guilty plea. Leifheit’s claim was also based on matters outside of the

record that should have been addressed in a petition for post-conviction relief. Laster at

¶ 8. Accord State v. Goney, 2d Dist. Greene No. 2017-CA-43,

.

A “ ‘manifest injustice,’ as is required to withdraw a guilty plea, 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.” Laster at ¶ 8, citing State v. Wheeler, 2d Dist.

Montgomery No. 18717,

, *1 (Jan. 25. 2002). Accord State v. Redavide,

,

, ¶ 11 (2d Dist.). “Thus[,] the 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.” Laster at ¶ 8; Goney

at ¶ 61.

{¶ 29} For all the foregoing reasons, we do not find that the trial court abused its

discretion in overruling Leifheit’s motion to withdraw guilty plea. Accordingly, Leifheit’s

sole assignment of error is overruled.

Conclusion

{¶ 30} Having overruled Leifheit’s assignment of error, the judgment of the trial -13-

court is affirmed.

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DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

Matthew B. DiBartola Jeffrey D. Slyman Hon. Denise L. Moody