[Cite as State v. Simmons,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109786 v. :

TERRANCE SIMMONS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 13, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613120-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

Gary H. Levine, for appellant.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Terrance Simmons appeals the trial court’s

“summary denial” of his postconviction motion for leave to withdraw his guilty pleas

pursuant to Crim.R. 32.1. Simmons contends that he was denied the effective assistance of trial counsel and that his motion and supporting affidavit were

sufficiently detailed to warrant an evidentiary hearing on the motion.

For the reasons that follow, we affirm the trial court.

Procedural History and Factual Background

On February 2, 2017, a Cuyahoga County Grand Jury indicted

Simmons on 25 counts, including counts of rape, kidnapping, telecommunications

harassment, burglary, criminal damaging, menacing by stalking, domestic violence,

robbery and disrupting public services. These charges arose out of multiple

incidents of alleged sexual assault and domestic violence involving two women with

whom Simmons had previously had relationships, A.M. and T.J.

In March 2018, Simmons pled guilty to 17 counts as follows:

● amended Count 1: attempted rape of A.M. in Simmons’ bedroom in July 2016, a second-degree felony;

● amended Count 3: sexual battery of A.M. in Simmons’ bedroom in September 2016, a third-degree felony;

● Count 5: telecommunications harassment of A.M. on or about October 1, 2016, a first-degree misdemeanor;

● amended Count 6: attempted rape of A.M. in the Cleveland Metroparks on or about October 29, 2016, a second-degree felony;

● amended Count 7: attempted kidnapping of A.M. in connection with an incident in the Cleveland Metroparks on or about October 29, 2016, a second-degree felony;

● amended Count 10: burglary (when trying to reach or grab A.M. through a broken window at her grandparents’ house) on or about November 30, 2016, a third-degree felony; ● Count 11: criminal damaging or endangering (involving property damage to a bay window when a brick was thrown at the home of A.M.’s grandparents) on or about December 1, 2016, a second-degree misdemeanor;

● Count 12: menacing by stalking of A.M. from on or about July 20, 2016 through on or about December 1, 2016, a first- degree misdemeanor;

● Count 13: domestic violence against T.J. on a bus on or about May 21, 2015, a first-degree misdemeanor;

● amended Count 14: robbery of T.J. on a bus on or about May 21, 2015, a third-degree misdemeanor;

● amended Count 15: abduction of T.J. outside a Boys and Girls Club on or about July 15, 2015, a third-degree felony;

● Count 17: domestic violence against T.J. at a rapid station on or about August 26, 2015, a first-degree misdemeanor;

● amended Count 20: abduction of T.J. after they were at the movies on or about June 15, 2016, a third-degree felony;

● Count 21: domestic violence against T.J. after they were at the movies on or about June 15, 2016, a first-degree misdemeanor;

● Count 23: telecommunications harassment of T.J. on or about November 3, 2016, a first-degree misdemeanor;

● Count 24: violating a protection order obtained by T.J. on or about November 3, 2016, a first-degree misdemeanor; and

● Count 25: menacing by stalking of T.J. from on or about May 21, 2015 through on or about November 3, 2016.

In exchange for Simmons’ guilty pleas, the remaining counts were nolled. The trial court sentenced Simmons to an aggregate prison sentence of

11 years, six months.1 The trial court also imposed five years’ mandatory postrelease

control, designated Simmons a tier III sex offender and ordered that Simmons pay

restitution to two victims.

At the sentencing hearing, Simmons stated: “I take full responsibility

for my actions. And I’m very remorseful for the situations that led up to being in

here[.]” He apologized to A.M. and T.J. “for everything that I put you two through”

and stated he “agree[d]” with the trial judge, when the trial judge stated that it was

not “okay to treat these women the way that you did.”

Simmons appealed his convictions. Among his assignments of error,

Simmons claimed that the trial court did not comply with Crim.R. 11 and that his

guilty pleas were not knowing, intelligent and voluntary because he had entered his

pleas without full knowledge of the potential penalties and consequences of his

guilty pleas. Specifically, Simmons claimed that his guilty pleas were deficient

because: (1) the prosecutor had suggested, during plea negotiations, that two of the

counts to which Simmons pled guilty would merge but subsequently argued against

merger of those counts at the sentencing hearing and (2) he entered his guilty pleas

with the understanding that he would pay one victim (A.M.’s grandfather) $681 in

1 The trial court imposed a three-year sentence on each of Counts 1, 6 and 7, with the sentences on Counts 6 and 7 to be served concurrently; a one-year sentence on Count 3; an 18-month sentence on Counts 10, 14, 15 and 20, with the sentences on Counts 10 and 14 to be served concurrently, and a 90-day jail sentence on each of Counts 5, 11, 12, 13, 17, 21, 23, 24 and 25, all of which were to be served concurrently. The trial court ordered that the sentences on Counts 1, 3, 6, 14, 15 and 20 be served consecutively to each other and that the sentences on all remaining counts be served concurrently. restitution (for the property damage to his window) but, at sentencing, the trial court

also ordered restitution for a second victim.

On February 7, 2019, this court affirmed Simmons’ convictions and

sentences, except as to the amount of restitution ordered to A.M. The court

remanded the case for the trial court to order restitution in an amount that did not

exceed the amount of economic loss suffered by A.M. and for the issuance of a nunc

pro tunc order to correct certain typographical errors in the trial court’s sentencing

journal entry. State v. Simmons, 8th Dist. Cuyahoga No. 107144,

.

On April 22, 2020 — more than a year later and more than two years

after Simmons entered his guilty pleas — Simmons filed a motion for leave to

withdraw his guilty pleas pursuant to Crim.R. 32.1. He asserted that he was denied

the effective assistance of counsel because his trial counsel: (1) had failed to conduct

“any meaningful investigation of relevant background information,” (2) had failed

to “interview any crucial witnesses” and (3) “did not review any discovery materials”

with Simmons, including “statements made by the alleged victim or his own

statement to the investigating Cleveland Police Detective.” Simmons also asserted

that his guilty pleas were “a product of pressure by counsel” and “abject fear of

proceeding to trial with woefully unprepared counsel.” Simmons requested an

evidentiary hearing on his motion.

In support of his motion, Simmons attached an affidavit he had

executed. In his affidavit, Simmons described his relationship with one of the victims, A.M. He averred that he had known A.M. for several months, that he had

“engaged in sexual conduct” with A.M. “on several occasions,” including sexual

intercourse on October 29, 2016, and that A.M. was “upset” because Simmons “had

told her that he didn’t want to continue their relationship.” He averred that he had

provided the details of his relationship with A.M. to his trial counsel. He further

averred that his mother had spoken with Simmons and A.M. on the morning of

October 29, 2016, that his mother had told A.M. she should “go home” and that his

mother, at his request, had sent copies of text messages A.M. had sent to Simmons’

cell phone “by fax” to his trial counsel. Simmons averred that the messages

“constitute[d] documentary evidence that [t]he alleged rape did not happen” and

that they “confirmed that the sexual activity between them was only one among

numerous acts of consensual sexual conduct.” Simmons did not indicate when these

text messages were allegedly sent by A.M. to Simmons and he did not attach copies

of the fax or the text messages to his affidavit or set forth the content of the text

messages in his affidavit. Simmons averred that his trial counsel did not discuss the

text messages with him and that his trial counsel had failed to interview Simmons’

mother.

Simmons also averred that, on the morning of his scheduled trial, he

spoke with his trial counsel “in the small lockup room outside of the courtroom” in

the presence of two county deputies, that he was told by his trial counsel “with the

deputies[’] encouragement” that “it is better for you and your family to take the plea” and that he was then brought into the courtroom where trial counsel advised the

court that Simmons would plead guilty to several charges, including attempted rape.

Simmons claimed that his guilty pleas were “the product of several

factors,” including that: (1) he had been incarcerated for 16 months; (2) his trial

counsel had not acknowledged receipt of the text messages and Simmons did not

believe trial counsel had presented the text messages to the prosecutor; (3) his trial

counsel did not interview any witnesses, including Simmons’ mother; (4) Simmons

was not provided a copy of the statement he made to the Cleveland Police; (5) his

trial counsel “did not convey beyond a minimal understanding of the significant

favorable evidence that was readily available” and (6) his “total lack of confidence in

his counsel that was justified by his perception that counsel had not conducted

anything approaching a thorough investigation and pressure to enter a plea.”

Simmons averred that had he had not engaged in “any unlawful activity” with A.M.

at any time and that he was “not guilty of any criminal conduct as alleged in CR-17-

613120.”

On May 26, 2020, the trial court denied Simmons’ motion to

withdraw his guilty pleas without a hearing.

Simmons appealed, raising the following assignment of error for

review:

The trial court erred to the substantial prejudice of Appellant by its failure to conduct [a]n Evidentiary Hearing on the Motion for Leave to Withdraw Guilty Plea. Law and Analysis

Simmons’ sole argument on appeal is that the trial court abused its

discretion in denying his motion to withdraw his guilty pleas without holding an

evidentiary hearing. Simmons contends that his motion and supporting affidavit

were sufficiently detailed to warrant an evidentiary hearing on the motion based on

his claims of coercion and ineffective assistance of counsel.

The withdrawal of a guilty plea is governed by Crim.R. 32.1 which

states:

A motion to withdraw a plea of guilty * * * 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.

In his appellate brief, Simmons cites several cases involving

presentence motions to withdraw guilty pleas in support of his argument that the

trial court “committed prejudicial error” in denying his motion without a hearing.

Although, as a general matter, a presentence motion to withdraw a guilty plea

“should be freely and liberally granted” and requires a hearing “to determine

whether there is a reasonable and legitimate basis for the withdrawal of the plea,”

see, e.g., State v. Xie,

,

(1992); State v. Mason,

,

, ¶ 15-16 (8th Dist.), this case involves a

postsentence motion to withdraw a guilty plea.

In a postsentence motion to withdraw a guilty plea, the defendant

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

,

(1977), paragraph one of the syllabus. Manifest

injustice is “a clear or openly unjust act,” State ex rel. Schneider v. Kreiner,

,

(1998), “that is evidenced by ‘an extraordinary and

fundamental flaw in the plea proceeding,’” State v. McElroy, 8th Dist. Cuyahoga

Nos. 104639, 104640 and 104641,

, ¶ 30, quoting State v. Hamilton,

8th Dist. Cuyahoga No. 90141,

; see also State v. Vinson, 2016-

Ohio-7604,

, ¶ 41 (8th Dist.); State v. Stovall, 8th Dist. Cuyahoga No.

104787,

, ¶ 17 (‘“Manifest injustice relates to some fundamental flaw

in the proceedings which result[s] in a miscarriage of justice or is inconsistent with

the demands of due process.’”), quoting State v. Williams, 10th Dist. Franklin No.

03AP-1214,

.

A claim of manifest injustice must be supported by specific facts in

the record or through affidavits submitted with the motion. See, e.g., State v.

Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,

, ¶ 10.

Postsentence withdrawal of a guilty plea is permitted ‘“only in extraordinary cases.’”

McElroy at ¶ 30, quoting State v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-

Ohio-5239, ¶ 22. We review a trial court’s decision to deny a defendant’s

postsentence motion to withdraw a guilty plea under an abuse of discretion

standard. See, e.g., Vinson at ¶ 42, citing Smith,

,

,

at paragraph two of the syllabus.

We likewise review a trial court’s decision whether to hold a hearing

on a postsentence motion to withdraw a guilty plea for an abuse of discretion. See, e.g., State v. Grant, 8th Dist. Cuyahoga No. 107499,

, ¶ 13. A trial

court is not required to hold a hearing on every postsentence motion to withdraw a

guilty plea. See, e.g., State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-Ohio-

2929, ¶ 16; State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,

, ¶ 11.

“‘A hearing is required * * * if the facts alleged by the defendant, accepted as true,

would require that the defendant be allowed to withdraw the plea.’” Norman at ¶ 16,

quoting Vihtelic at ¶ 11; see also State v. Tringelof, 12th Dist. Clermont Nos. CA2017-

03-015 and CA2017-03-016,

(“‘A defendant must establish a

reasonable likelihood that a withdrawal of his plea is necessary to correct a manifest

injustice before a court must hold an evidentiary hearing on his motion.’”), quoting

State v. Williams, 12th Dist. Warren No. CA2009-03-032,

, ¶ 14.

We find no abuse of discretion by the trial court in denying Simmons’

motion to withdraw his guilty pleas without a hearing because a trial court has no

jurisdiction to consider a defendant’s motion to withdraw his or her guilty pleas

under Crim.R. 32.1 after a court of appeals has affirmed the defendant’s convictions.

See State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common

Pleas Judges,

,

(1978). As the Ohio Supreme

Court explained in Special Prosecutors:

Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal and an affirmance by the appellate court. While Crim.R. 32.1 apparently enlarges the power of the trial court over its judgments without respect to the running of the court term, it does not confer upon the trial court the power to vacate a judgment which has been affirmed by the appellate court, for this action would affect the decision of the reviewing court, which is not within the power of the trial court to do.

Id.; see also State v. Ketterer,

,

,

(trial court lacked authority to consider motion to withdraw guilty plea

where convictions were affirmed but case was remanded for limited purpose of

resentencing on noncapital offenses); State v. Mitchell, 8th Dist. Cuyahoga No.

109178,

; State v. Jones, 8th Dist. Cuyahoga No. 108226,

; Grant at ¶ 14.

In this case, Simmons appealed the trial court’s judgment, and this

court affirmed his convictions. Simmons,

, ¶ at 23-24. Thus, after

this court affirmed Simmons’ convictions, the trial court had no jurisdiction to

consider his subsequent motion to withdraw his guilty pleas. Accordingly, the trial

court did not abuse its discretion in denying Simmons’ motion to withdraw his guilty

pleas. Simmons’ assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___ EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR