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Date: 09-16-2020

Case Style:

STATE OF OHIO -vs- DAVID KENNETH DULL, JR.

Case Number: 2019CA00158

Judge: W. Scott Gwin

Court: COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: RONALD MARK CALDWEL

Defendant's Attorney:


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Description: Ashland, Ohio - Aggravated Robbery - Aggravated Murder











In 1993, Diane Patterson (“Patterson”), the manager of a Red Lobster
restaurant, died as a result of a gunshot wound to the head and stab wounds. $2,500
was taken from the safe in the restaurant. Appellant was a former employee at the
restaurant. During the investigation, Kenneth Souders (“Souders”) alleged that appellant
shot and killed Patterson, while appellant alleged that Souders shot and killed Patterson.
{¶3} The Stark County Grand Jury returned an indictment that charged appellant
and Souders with the following: aggravated murder (R.C. 2903.01(A)) with a death
penalty specification and firearm specification; aggravated murder (R.C. 2903.01(B)) with
a death penalty specification and firearm specification; aggravated robbery with a firearm
specification; and aggravated burglary with a firearm specification. Both appellant and
Souders were charged as principal offenders and as accomplices.
{¶4} Appellant opted to plead guilty to the charges and accepted a plea offer
from appellee that precluded the death penalty in exchange for a life sentence and for
appellant’s truthful testimony at Souders’ trial. The plea form that appellant signed on
April 11, 1994 provides that, pursuant to Criminal Rule 11(F), appellant and appellee
entered into the following agreement, “in exchange for my full and truthful cooperation
with the State of Ohio in the prosecution of the co-defendant, Kenneth G. Souders, I will
Stark County, Case No. 2019CA00158 3
receive a sentence other than death, specifically outlined below.” The specific sentence
for each count and specification was detailed in the plea form.
{¶5} Upon pleading guilty, appellant received the following sentence pursuant to
the plea agreement: aggravated murder – life imprisonment with parole eligibility after
serving 20 years; aggravated murder – life imprisonment with parole eligibility after 20
years; aggravated robbery – indeterminate term of imprisonment of 10 to 25 years;
aggravated burglary – indeterminate term of imprisonment of 10 to 25 years; and firearm
specifications – 3 years actual incarceration for each. The trial court imposed the
sentences concurrently with each other, and the four three-year terms for the firearm
specifications were imposed concurrently with each other, but consecutive to the
concurrent sentences for the other offenses. Appellant’s aggregate prison term was a
term of life imprisonment with parole eligibility after serving 23 years.
{¶6} A single judge accepted appellant’s plea and sentenced appellant.
{¶7} Appellant filed a pro se motion to withdraw guilty plea on October 10, 2018,
requesting the trial court allow him to withdraw his guilty plea “to correct a manifest
injustice.” Appellant argued in this motion that a manifest injustice exists in this case for
the following reasons: the trial court lacked jurisdiction to accept his plea of guilty because
there was not a three-judge panel as required by R.C. 2945.06 and Criminal Rule
11(C)(3); the trial court was improperly involved in the plea negotiations; there is newlydiscovered evidence that Souders confessed to another prisoner that he stabbed, shot,
and killed Patterson; and ineffective assistance of counsel.
{¶8} On May 23, 2019, appellant filed a motion to supplement his motion to
withdraw plea with his own affidavit. In his affidavit, appellant avers that no one advised
Stark County, Case No. 2019CA00158 4
him of his right to have his guilty pleas determined by a three-judge panel and thus his
plea was not knowingly, intelligently, and voluntarily made. Appellee filed a response to
the motion on July 12, 2019. Appellant filed a reply on August 23, 2019.
{¶9} On September 23, 2019, the trial court denied appellant’s motion to
withdraw plea. The trial court found that appellant, “fails to make the required showing of
manifest injustice under Crim.R. 32.1.” Specifically, the trial court overruled appellant’s
argument as to the three-judge panel and his associated ineffective assistance of counsel
claim, finding that: the guilty plea was entered into as part of a negotiated plea agreement
that spared appellant from facing the death penalty; pursuant to State v. Griffin, the
procedures pertaining to capital pleas were not applicable; and appellant’s remedy was
a direct appeal, which appellant never utilized. As to appellant’s remaining arguments,
the trial court found them to be without merit and based upon a misunderstanding of
accomplice liability in Ohio.
{¶10} Appellant appeals the September 23, 2019 judgment entry of the Stark
County Court of Common Pleas and assigns the following as error:
{¶11} “I. THE TRIAL COURT ERRED IN DENYING WITHOUT HEARING
APPELLANT’S RULE 32.1 MOTION TO WITHDRAW GUILTY PLEA WHERE
APPELLANT’S CLAIM, THAT INEFFECTIVE ASSISTANCE OF COUNSEL RENDERED
HIS GUILTY PLEA UNCONSTITUTIONAL AS NOT KNOWINGLY AND
INTELLIGENTLY ENTERED ACCEPTED AS TRUE, ENTITLED HIM TO VACATURE
OF HIS GUILTY PLEA AND CONVICTION.”
Stark County, Case No. 2019CA00158 5
I.
{¶12} In his assignment of error, appellant contends the trial court committed error
in denying his motion to withdraw plea without a hearing. Specifically, appellant contends
that since a manifest injustice may result where ineffective assistance of counsel renders
a defendant’s plea not knowingly and intelligently entered, the trial court erred in denying
his motion based upon his ineffective assistance claim. Appellant argues his trial counsel
was deficient in not advising him of his right to have his plea taken by a three-judge panel.
Criminal Rule 32.1
{¶13} Criminal Rule 32.1 governs the withdrawal of a guilty plea and states that,
“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.” “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. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977).
{¶14} The defendant bears the burden of proving “manifest injustice.” Id.
Whether the defendant has sustained that burden is within the sound discretion of the
trial court and we review the trial court’s decision for an abuse of discretion. Id. In order
to find an abuse of discretion, we must determine the trial court’s decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Further, an “undue
delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the
Stark County, Case No. 2019CA00158 6
filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the
movant and mitigating against the granting of the motion.” State v. Smith, 49 Ohio St.2d
261, 361 N.E.2d 1324 (1977).
{¶15} Under the manifest injustice standard, a post-sentence withdrawal motion
is allowable only in extraordinary cases. State v. Williams, 5th Dist. Tuscarawas No. 2013
AP 04 0020, 2014-Ohio-5727. A manifest injustice has been defined as a “clear or openly
unjust act.” State v. Congrove, 5th Dist. Delaware No. 09CA090080, 2010-Ohio-2933,
quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 699 N.E.2d 2983 (1998).
“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 any form of application reasonably available to him.” State v. Williams,
5th Dist. Tuscarawas No. 2013 AP 04 0020, 2014-Ohio-5727.
Ineffective Assistance of Counsel
{¶16} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel was ineffective, i.e., whether
counsel’s performance fell below an objective standard of reasonable representation and
violative of any of his or her essential duties to their client. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id.
{¶17} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test, whether the defense was
Stark County, Case No. 2019CA00158 7
actually prejudiced by counsel’s ineffectiveness such that the reliability of the outcome of
the trial is suspect. Id. This requires a showing that there is a reasonable probability that,
but for counsel’s unprofessional error, the outcome of the proceeding would have been
different. Id.
R.C. 2945.06 and Criminal Rule 11(C)(3)
{¶18} In order to determine whether the trial court committed error in denying his
motion to withdraw based upon his ineffective assistance of counsel claim, we must
examine R.C. 2945.06, Criminal Rule 11(C)(3), and the associated caselaw existing at
the time appellant entered his plea.
{¶19} R.C. 2945.06 provides, “if the accused pleads guilty of aggravated murder,
a court composed of three judges shall examine the witnesses, determine whether the
accused is guilty of aggravated murder or any other offense, and pronounce sentence
accordingly.” Pursuant to Criminal Rule 11(C)(3), with respect to aggravated murder,
If the indictment contains one or more specifications that are not dismissed
upon acceptance of a plea of guilty or no contest to the charge, or if pleas
of guilty or no contest to both the charge and one or more specifications are
accepted, a court composed of three judges shall: (a) determine whether
the offense was aggravated murder or a lesser offense; and (b) if the
offense is determined to have been a lesser offense, impose sentence
accordingly, or (c) if the offense is determined to have been aggravated
murder, proceed as provided by law to determine the presence or absence
of the specified aggravating circumstances and of mitigating circumstances,
and impose sentence accordingly.
Stark County, Case No. 2019CA00158 8
{¶20} Appellant contends that because the trial court failed to convene a threejudge panel in accordance with R.C. 2945.06 and Criminal Rule 11(C)(3), his plea was
not knowingly and intelligently made. Appellant argues that if the proper three-judge
panel procedure was utilized, it could have resulted in a finding of guilt of a lesser offense
than aggravated murder and may have resulted in a substantially different sentence.
{¶21} Appellant cites the Ohio Supreme Court’s case of State v. Parker in support
of his argument. 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846. In Parker, the
Ohio Supreme Court held that a defendant charged with a crime punishable by death who
has waived his right to a jury trial must, pursuant to R.C. 2945.06 and Criminal Rule
11(C)(3), have his case heard and decided by a three-judge panel even if the State agrees
that it will not seek the death penalty.
{¶22} However, at the time of appellant’s plea, Parker had not yet been decided
and the law in this district was established by State v. Griffin, 73 Ohio App.3d 546, 597
N.E.2d 1178 (5th Dist. 1992), in which we held that the trial court was not required to
follow death penalty procedures where the State of Ohio agreed not to request the death
penalty. At the time of appellant’s plea, the caselaw in this district established that when
a defendant agreed to forego his right to a jury trial in exchange for the prosecutor’s
agreement not to pursue the death penalty, the case could be heard by a single judge.
Id. The Griffin case was not overruled by Parker until 2002.
{¶23} Thus, based upon the caselaw at the time of appellant’s plea, and at the
time appellant would have appealed his sentence, the failure to convene a three-judge
panel was not reversible error and Ohio law provided that special procedural protections
associated with a capital offense were required only when the death penalty could be
Stark County, Case No. 2019CA00158 9
imposed. State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989; Ahart v.
Bradshaw, 122 Fed.Appx. 188 (6th Cir. 2005). “That this law may have changed a decade
or more later does not justify * * * abandoning the law in place and the convictions based
on it at the time of trial” and the fact that the law may have changed in 2002 does not
mean appellant had a valid ground for appeal in 1994. Id.
{¶24} With regard to appellant’s ineffective assistance of counsel argument, we
find that counsel’s performance did not fall below an objective standard of reasonable
representation and counsel did not violate any of their essential duties to appellant
because, as detailed above, at the time of appellant’s plea, the caselaw in this district
established that when a defendant agreed to forego his right to a jury trial in exchange for
the prosecutor’s agreement not to pursue the death penalty, the case could be heard by
a single judge. At the time appellant would have appealed his sentence, the failure to
convene a three-judge panel was not reversible error. This caselaw was not overruled
until eight years after appellant’s plea. The law presumes competence on trial counsel’s
part. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); State v. Hurt, 5th Dist.
Muskingum No. CT2019-0053, 2020-Ohio-2754. Trial counsel could not have predicted
the holding in Parker eight years before its issuance.
{¶25} The trial court additionally overruled appellant’s motion to withdraw because
the proper remedy for his claims was a direct appeal. We agree.
{¶26} Subsequent to Parker, the Supreme Court clarified that Parker does not
stand for the proposition that a court lacks subject-matter jurisdiction in a death penalty
case if it fails to convene a three-judge panel upon a defendant’s waiver of a jury. Pratts
v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.
Stark County, Case No. 2019CA00158 10
{¶27} Rather, the Ohio Supreme Court has held that the failure to convene a
three-judge panel to accept a guilty plea renders a judgment voidable, not void, and is
properly challenged on direct appeal. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio1980, 806 N.E.2d 992; State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio2053, 807 N.E.2d 344; State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543, 721 N.E.2d
1051 (2000). As stated in Pratts v. Hurley, the “failure to convene a three-judge panel to
accept a guilty plea did not constitute a lack of subject-matter jurisdiction rendering the
court’s judgment void ab initio and subject to collateral attack. It constitutes an error in
the court’s exercise of jurisdiction and must be raised on direct appeal.” Id. While the
Supreme Court recognized that statutes require strict compliance, strict compliance is
“reversible error on direct appeal; but after direct appeal, any error is, in effect, waived
and cannot be remedied through collateral attack.” Id. See also State v. Heddleson, 5th
Dist. Stark No. 2011CA0178, 2011-Ohio-6875; State v. Nooks, 10th Dist. Franklin No.
10AP-108, 2010-Ohio-2982; State v. Porterfield, 11th Dist. Trumbull No. 2008-T-0002,
2008-Ohio-5948; State v. Woods, 8th Dist. Cuyahoga No. 82120, 2003-Ohio-2475.
{¶28} In this case, it was obvious at the time appellant entered his plea of guilty
that a single judge accepted his plea and imposed sentence. Consequently, appellant’s
argument that his plea was not knowing and voluntary due to the lack of compliance with
R.C. 2945.06 and Crim.R. 11(C)(3) constitutes an error that must have been raised on
direct appeal. Though appellant pled guilty and was sentenced in 1994, he did not seek
a direct appeal of his sentence.
{¶29} We find this case analogous to State v. Mitchell, 5th Dist. Guernsey No. 07
CA 17 2008-Ohio-101. Like the appellant in this case, Mitchell was charged with
Stark County, Case No. 2019CA00158 11
aggravated murder. Id. Mitchell entered a negotiated plea and the trial court sentenced
him to life in prison without parole eligibility for forty years. Id. Mitchell did not file a direct
appeal from his sentence. Id. In his appeal of the trial court’s denial of his motion to
withdraw plea without holding a hearing, Mitchell argued the trial court’s failure to empanel
a three-judge panel to hear his plea in an aggravated murder case rendered his plea
involuntary. Id. Additionally, Mitchell asserted manifest injustice existed because his
guilty plea was not knowingly, voluntarily, or intelligently made as required by Criminal
Rule 11(C)(3) due to the alleged ineffective assistance of his trial counsel because his
trial counsel was deficient in not advising him of his right to have his plea taken by a threejudge panel. Id.
{¶30} We overruled Mitchell’s assignments of error, finding that his argument
“ignores the fact that the forty-year sentence imposed was part of his negotiated plea
agreement” and finding the proper way to challenge a plea predicated on an error under
R.C. 2545.06 is a direct appeal. Id. Additionally, as to Mitchell’s ineffective assistance
claim, we found Mitchell failed to demonstrate he suffered prejudice and thus did not meet
his burden of proving a manifest injustice. Id.
{¶31} Similar to our analysis in Mitchell, we find the trial court in this case did not
abuse its discretion in determining that appellant did not meet his burden to show manifest
injustice. While appellant argues that, had a three-judge panel evaluated the facts of the
case and found him guilty of an offense lesser than aggravated murder and the panel
may have sentenced him to a shorter prison term, his argument ignores the fact that the
sentence imposed by the trial court was part of his negotiated plea agreement. Id. As
we noted in Mitchell, without explicit agreement to the sentence, it is “pure conjecture that
Stark County, Case No. 2019CA00158 12
the State would have extended the plea offer at all.” Id.; State v. Woods, 8th Dist.
Cuyahoga No. 82120, 2003-Ohio-2475; State v Nelson, 10th Dist. Franklin No. 11AP720, 2012-Ohio-1918.
{¶32} We cannot say in hindsight that the plea agreement was a bad one, despite
the procedural violation of Criminal Rule 11(C)(3) and R.C. 2945.06. At the plea hearing
and in the plea form, the trial court fully apprised appellant of the constitutional rights he
was giving up in pleading guilty, and appellant unambiguously indicated the voluntary,
intelligent, and knowing nature of his plea. As to appellant’s ineffective assistance claim,
like in Mitchell, we find appellant failed to demonstrate he suffered prejudice and
counsel’s performance did not fall below an objective standard of reasonable
representation. Thus, there is no manifest injustice resulting from ineffective assistance
of counsel. Absent a showing of manifest injustice, the trial court did not abuse its
discretion in denying appellant’s motion to withdraw guilty plea.
{¶33} Based on the foregoing reasons, we find the trial court did not abuse its
discretion in denying the motion to withdraw plea. We find this case does not come within
the extraordinary category of cases for which vacating a guilty plea is made necessary by
manifest injustice in the results of the plea.
Hearing
{¶34} Appellant finally argues that the trial court committed error in not holding a
hearing on his motion to withdraw.
{¶35} A trial court is not automatically required to hold a hearing on a postsentence motion to withdraw guilty plea. State v. Bable, 5th Dist. Fairfield No. 18-CA-32,
2019-Ohio-1209. A hearing must only be held if the facts alleged by the defendant,
Stark County, Case No. 2019CA00158 13
accepted as true, would require that the defendant be allowed to withdraw the plea. State
v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633. Generally, a selfserving affidavit or statement is insufficient to demonstrate manifest injustice. State v.
Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16.
{¶36} The decision whether to hold a hearing on a post-sentence motion to
withdraw a guilty plea is left to the discretion of the trial court. State v. Smith, 49 Ohio
St.2d 261, 361 N.E.2d 1324 (1977). Therefore, this Court’s review of the trial court’s
decision not to hold a hearing is limited to a determination of whether the trial court abused
its discretion. State v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633. In
order to find an abuse of discretion, we must determine the trial court’s decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶37} Appellant’s motion to withdraw his guilty plea was filed almost 23 years after
his plea and sentencing. Although not dispositive on its own, “[a]n undue delay between
the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a
motion under Criminal Rule 32.1 is a factor adversely affecting the credibility of the
movant and mitigating against the granting of the motion.” State v. Martin, 5th Dist.
Richland No. 11CA0116, 2012-Ohio-4394.
{¶38} In this case, we find the trial court did not abuse its discretion in ruling on
appellant’s motion to withdraw without conducting a hearing on the motion. In appellant’s
affidavit attached to his motion, he avers that no one advised him of his right to have his
guilty pleas determined by a three-judge panel and thus his plea was not knowingly,
intelligently, and voluntarily made. As detailed above, the allegations contained in the
Stark County, Case No. 2019CA00158 14
motion concerning the lack of a three-judge panel are insufficient in this case to
demonstrate a manifest injustice. Further, appellant’s self-serving affidavit is insufficient
to demonstrate a manifest injustice. State v. Aleshire, 5th Dist. Licking No. 2011-CA-73,
2012-Ohio-16. Finally, appellant’s three-judge panel claim could have been raised on
direct appeal which appellant chose not to pursue.
{¶39} Based on the foregoing, appellant’s assignment of error is overruled.

Outcome: The September 23, 2019 judgment entry of the Stark County Court of
Common Pleas is affirmed.

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