City of Shaker Heights v. Thompson (2026)

Case details
Full caption
City of Shaker Heights v. Andre D. Thompson
Country
United States
Jurisdiction
Ohio (OH)
Court
Ohio Supreme Court
Decided
2026
Disposition
Vacated
Majority
Deena R. Calabrese (J.) (unanimous Court)
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1434248CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF LEGALAUTHORITY.Court of Appeals of Ohio, EighthDistrict, Cuyahoga County.CITY OF SHAKERHEIGHTS, Plaintiff-Appellee,v.ANDRE D. THOMPSON,Defendant-Appellant.No. 115785|RELEASED AND JOURNALIZED: May 21, 2026JUDGMENT: AFFIRMEDCriminal Appeal from the Shaker Heights Municipal CourtCase No. 02CRB00557Attorneys and Law FirmsAppearances: C. Randolph Keller, City of Shaker HeightsChief Prosecutor, for appellee.Andre D. Thompson, pro se.JOURNAL ENTRY AND OPINIONDEENA R. CALABRESE, JUDGE*1{¶ 1} Defendant-appellant Andre D. Thompson appealsthe trial court's judgment denying his renewed motion towithdraw plea and vacate conviction pursuant to Crim.R.32.1. Finding no merit to the appeal, we affirm.I. Facts and Procedural HistoryA. Original Proceedings in 2002 and 2003{¶ 2} On or about July 1, 2002, appellant struck M.L. twicein the head with an open hand, knocking her to the ground.M.L. sustained two scratches to her left shoulder. Appellantwas issued a criminal citation alleging that he had causedor attempted to cause physical harm to M.L., a family orhousehold member, in violation of Shaker Heights’ domesticviolence ordinance.{¶ 3} According to the record, appellant appeared in ShakerHeights Municipal Court on February 25, 2003. He executeda plea form indicating that he had been informed ofand understood his constitutional rights, that he thereafter“knowingly, intelligently, and voluntarily” chose to proceedin pleading either guilty or no contest, that he waived his rightto trial by jury, and that he waived his right to be representedby an attorney. Under the section captioned “Pleading,”which includes a check box labeled “Guilty” and anotherlabeled “No Contest,” appellant checked the box labeled “NoContest.” The form bears appellant's signature as well as thesignature of a witness.1{¶ 4} The trial judge, the Honorable K.J. Montgomery,entered judgment the same day.2 The trial court's journalentry, also completed on a form and signed by JudgeMontgomery, indicated that appellant appeared on February25, 2003, “without counsel, counsel having been waived inwriting[.]” It noted that appellant entered a plea of no contestto the charge of domestic violence. The trial court did notcheck the box indicating “Consent to a finding of guilty.”Instead, it selected the box labeled “Evidence heard.” Thetrial court found appellant guilty of domestic violence andimposed a sentence.B. Appellant's 2019 Motion to Vacate Conviction*2{¶ 5} On December 23, 2019, appellant filed a pleadingcaptioned “Motion to Vacate Conviction for Lack of FullyKnowing and Intelligent Plea.” In his motion, appellantstated that he had been indicted in a federal drug caseand was “facing a greatly enhanced sentence because ofpotential classification as a career offender” because of his2003 domestic-violence conviction. In arguing that his 2003plea of no contest was not entered into knowingly andintelligently, appellant claimed he had not been informed thathis domestic-violence conviction “could have future adverselegal consequences” and that “fundamental fairness dictatesthat this conviction be vacated.” In an accompanying swornstatement — not an affidavit — appellant stated that had heknown of the potential enhancement of a future sentence he“would NOT have pled.”{¶ 6} In a journal entry dated January 7, 2020, the trial courtentered an order stating that appellant's “[m]otion can not beconsidered as prosecutor was not served.”
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2C. Appellant's 2020 Motion to Vacate Conviction{¶ 7} The record does not indicate that any further actionwas taken on appellant's December 23, 2019 motion. Instead,appellant filed what appears to be an identical copy of hismotion to vacate conviction, along with an identical swornstatement, on February 7, 2020. On March 3, 2020, the trialcourt journalized an entry denying the motion. No appealfollowed.D. Appellant's 2025 Motion to Withdraw Plea{¶ 8} On October 20, 2025, appellant filed the pleading thatis the subject of this appeal, captioned “Renewed Motion toWithdraw Plea and Vacate Conviction Pursuant to Crim.R.32.1.” By the time appellant filed his renewed motion, thetrial court judge who presided over his plea hearing hadpassed away. Appellant argued that his renewed motion was“supported by new and material grounds that were not presentor available at the time of the prior filing[.]” Appellantprovided no supporting affidavits. He nevertheless arguedthat he was unable to obtain a transcript or audio recordingof the 2003 plea colloquy “despite due diligence[,]” whichrendered him unable “to confirm that the court advised [him]of essential rights and consequences.” He further relied uponthe aforementioned collateral consequences of the conviction,including “federal sentencing enhancement and firearmsdisability” and “employment and housing barriers” not fullyunderstood or explained to him at the time of the plea and“enduring mental-health and stability impacts.” Even puttingaside the lack of affidavits, appellant did not explain how anyof this was “new.”{¶ 9} In short, appellant contended that the lack of a transcriptor audio recording of the 2003 plea colloquy preventedverification that his plea was made knowingly, intelligently,and voluntarily. Appellant contended that he entered hisplea of no contest “without a full appreciation of substantialcollateral effects,” rendering the plea “not truly knowing andintelligent.”{¶ 10} Appellant also advanced arguments grounded in“[e]quity and interests of justice,” including the ageof the conviction and his “demonstrated rehabilitation.”He also pointed to continuing “psychological and socialconsequences” because of his criminal record.{¶ 11} Appellant attached two exhibits to his motion. ExhibitA purports to be an October 10, 2025 email from a ShakerHeights Municipal Court deputy clerk, albeit in what appearsto be a copy-and-paste by appellant rather than a printout. Theemail indicates that “audio recordings would not be available”for appellant's February 25, 2003 hearing because Sup.R.26.05(C) requires recordings to be retained for only five yearsafter final judgment. Exhibit B is a list of authorities.{¶ 12} The trial court denied the motion to withdraw plea,without opinion, on October 21, 2025. This timely appealfollowed.II. Assignments of Error*3{¶ 13} Appellant presents four assignments of error forour review:Assignment of Error IThe trial court erred by entering a conviction based ona no-contest plea when no record exists demonstratingcompliance with Crim.R. 11 and Boykin v. Alabama.Assignment of Error IIThe trial court abused its discretion by failing to considerthe substantial and ongoing collateral consequences of theconviction, in violation of State v. Sarkozy and State v.Sanders.Assignment of Error IIIThe trial court abused its discretion by denying Appellant'sCrim.R. 32.1 post-sentence motion to withdraw the pleawithout holding a hearing, despite the presentation ofoperative facts requiring factual development under Statev. Xie and State v. Jones.Assignment of Error IVThe trial court erred by failing to correct or reconstructthe destroyed plea record under App.R. 9(E), leaving therecord structurally defective and preventing meaningfulappellate review.{¶ 14} We find no merit to any of appellant's assigned errors.Accordingly, we affirm the trial court's judgment denying hismotion to withdraw his plea.III. AnalysisA. Standard of Review
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3{¶ 15}Crim.R. 32.1, which governs motions to withdrawguilty or no contest pleas, provides that “a motion to withdrawa plea of guilty or no contest may be made only beforesentence is imposed; but to correct manifest injustice the courtafter sentence may set aside the judgment of conviction andpermit the defendant to withdraw his or her plea.” (Emphasisadded.) See State v. Williamson, 2007-Ohio-6812, 4 (8thDist.). The rule therefore permits a postsentence motion towithdraw guilty or no contest pleas “only to correct a manifestinjustice.” Id., citing State v. Xie, 62 Ohio St.3d 521, 526(1992), and State v. Grigsby, 80 Ohio App.3d 291, 299 (8thDist. 1992). Moreover, “[a] defendant seeking to withdraw aplea of guilty after sentence has the burden of establishing theexistence of manifest injustice.” State v. Smith, 49 Ohio St.2d261, 264 (1977), citing United States v. Mainer, 383 F.2d 444,445 (3d Cir. 1967). See also Williamson at 4.{¶ 16} By its terms, Crim.R. 32.1’s requirement todemonstrate “manifest injustice” in a postsentence motionapplies to both guilty pleas and pleas of no contest.Accordingly, we have evaluated motions to withdraw guiltyand no contest pleas under the same standard. See, e.g., Statev. Knox, 2015-Ohio-424, 3-11 (8th Dist.) (no contest plea);Williamson at 1-4 (same).{¶ 17} “Manifest injustice” has been defined as a “clearor openly unjust act.” State ex rel. Schneider v. Kreiner,83 Ohio St.3d 203, 208 (1998), citing Webster's Third NewInternational Dictionary (1986). In this context, such a “clearor openly unjust act” is evidenced by “an extraordinary andfundamental flaw in the plea proceeding.” State v. Hamilton,2008-Ohio-455, 8 (8th Dist.), citing State v. Lintner, 2001-Ohio-3360 (7th Dist.), and State v. Wheeler, 2002-Ohio-284(2d Dist.). See also State v. Morris, 2026-Ohio-37, 8 (8thDist.). “[I]t is clear that under such standard, a postsentencewithdrawal motion is allowable only in extraordinary cases.”Smith at 264, citing United States v. Semel, 347 F.2d 228,229 (4th Cir. 1965). See also Morris at 8. This is because“[a] manifest injustice ‘comprehends a fundamental flaw inthe path of justice so extraordinary that the defendant couldnot have sought redress from the resulting prejudice throughanother form of application reasonably available to him orher.’ ” State v. Hubbard, 2025-Ohio-2150, 10 (8th Dist.),quoting State v. Sneed, 2002-Ohio-6502, 13 (8th Dist.).*4{¶ 18} “The determination of whether a defendanthas demonstrated a manifest injustice is left to the sounddiscretion of the trial court.” State v. Jones, 2019-Ohio-4355, 13 (8th Dist.). We therefore “review a trial court'sdetermination of whether a defendant demonstrated amanifest injustice for an abuse of discretion.” Id. A trial court“abuses its discretion when it exercises its judgment in anunwarranted way with respect to a matter over which it hasdiscretionary authority.” Hunter v. Troutman, 2025-Ohio-366, 64 (8th Dist.), citing Johnson v. Abdullah, 2021-Ohio-3304, 35. “The term abuse of discretion implies that the court'sattitude is unreasonable, arbitrary, or unconscionable.”Hunterat 64, citing Blakemore v. Blakemore, 5 Ohio St.3d 217(1983). See also State v. McAlpin, 2026-Ohio-148, 14.{¶ 19} Furthermore, a trial court “is not required to hold ahearing on every postsentence motion to withdraw a guiltyplea.” Jones at 14, citing State v. Vihtelic, 2017-Ohio-5818, 11 (8th Dist.), citing State v. Chandler, 2013-Ohio-4671, 7 (10th Dist.). “ ‘A hearing is required only if the factsalleged by the defendant, accepted as true, would require thatthe defendant be allowed to withdraw the plea.’ ” Jones at 14, quoting Vihtelic at 11. We review the trial court'sdecision whether to hold a hearing on a postsentence motionto withdraw a plea for an abuse of discretion. Jones at 14,citing Vihtelic at 11.B. The Lost Record of the Plea Proceeding and thePresumption of Regularity{¶ 20} In his first assignment of error, appellant essentiallyargues that because no record of the 2003 plea hearingnow exists, Shaker Heights cannot demonstrate that hisplea was made knowingly, voluntarily, and intelligently.Ipso facto, he wins: The trial court must permit him towithdraw his plea, and his conviction must be vacated. Suchan argument, however, ignores which party is at fault forthe unavailability of the transcript or audio recording of theplea. It also impermissibly shifts the burden from appellant toShaker Heights, conveniently eliminating appellant's burdenof demonstrating manifest injustice, i.e., that there was anextraordinary and fundamental flaw in the plea proceeding.{¶ 21} “To invalidate a plea, the record must affirmativelyshow that the defendant was not informed of his rightsor that the plea was otherwise defective.” Olmsted Twp. v.Campanalie, 2025-Ohio-5851, 14 (8th Dist.), citing Boykinv. Alabama, 395 U.S. 238 (1969), and State v. Nero, 56 OhioSt.3d 106 (1990). Here, there is no transcript or recordingof the plea. Shaker Heights cites the five-year retentionrequirement of Sup.R. 26.05(C) and, without directly statingthat any recording or transcript of the February 25, 2003plea hearing was destroyed pursuant to the rule, concedesthat there is no existing transcript or audio recording of
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4the hearing. As Shaker Heights notes, however, appellant'sargument “that the lawful destruction of a decades-old pleaproceeding transcript delegitimizes the plea” actually “invertsstate law.” (Appellee's brief at p. 5.) Appellant would haveus presume manifest injustice. But that is not the law.Rather, “[a] presumption of regularity attaches to all judicialproceedings.” State v. Raber, 2012-Ohio-5636, 19. Thatpresumption applies in cases where a record of the underlyingtrial court proceedings is unavailable. As the Ohio SupremeCourt wrote:When portions of the transcript necessary for resolution ofassigned errors are omitted from the record, the reviewingcourt has nothing to pass upon and thus, as to those assignederrors, the court has no choice but to presume the validityof the lower court's proceedings, and affirm.*5Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199(1980).{¶ 22} In other words, where there is no transcript or audiorecording, as in this case, “[t]here is no showing of irregularityto contradict the presumption of regularity accorded alljudicial proceedings.” Raber at 19, quoting State v. Sweet,72 Ohio St.3d 375, 376 (1995). See also State v. Ward, 2017-Ohio-933, 17 (8th Dist.) (“[A] silent record” means thereis no showing of irregularity to contradict the presumption ofregularity.).{¶ 23} The rule announced in Knapp is not without limits.Indeed, in that case the Ohio Supreme Court remanded thematter because even though the plaintiffs could have exploredthe options of an App.R. 9(C) proposed statement or anApp.R. 9(D) agreed statement, the plaintiffs were not at faultin their inability to provide a verbatim trial transcript: It hadbeen delayed because of the court reporter's health. Id. at199-200.{¶ 24} This court directly addressed the question of fault inState v. Hunt, 2019-Ohio-1982 (8th Dist.). Sitting en banc,this court posed and answered the following question: “Whena criminal defendant alleges a violation of Crim.R. 11, thetranscript of the plea hearing is unavailable, and the trialjudge lacks a specific recollection of the plea, under whatcircumstances can our court presume regularity in the pleaproceedings?” Id. at 2.{¶ 25}Hunt, like the present action, involved a trial courtrecord in which the transcript of the plea proceeding had beenlawfully destroyed under governing records-retention law. Inthat case, Hunt filed a delayed appeal challenging “differentaspects of the guilty plea process, the general crux of whichcenters on the knowing, voluntary, or intelligent nature ofHunt's guilty pleas or the trial court's adherence to the guiltyplea process in capital cases[.]” (Emphasis added.) Hunt at 8. As in the present action, the transcript of proceedings hadnot been preserved, a fact the clerk of courts confirmed:[R]eview ... is hampered by the lack of a record fromthe 1994 convictions. The transcript of proceedings wasnot indefinitely preserved, and as permitted under R.C.2301.20(B), the transcripts are no longer available. One ofthe exhibits attached to a motion filed with the trial courtdealing with the App.R. 9(C) statement is a letter fromthe Cuyahoga County Clerk of Courts confirming that thetranscript from Hunt's plea hearing was no longer availablebecause ten years had elapsed after his final conviction.Id. at 8.{¶ 26} The trial court also “tacitly indicated the lack ofan independent recollection of the proceedings necessary tosettling the record through App.R. 9. In other words, the trialcourt was unable to settle the record given the age of theconviction.” Id. at 10.{¶ 27} This court noted that the Ohio Supreme Courthad held that “ ‘[a] criminal defendant must suffer theconsequences of nonproduction of an appellate record wheresuch nonproduction is caused by his or her own actions.’ ” Id.at 2, quoting State v. Jones, 71 Ohio St.3d 293, 297 (1994).More specifically, where “the record is not kept beyond theperiod prescribed by [law], the defendant is considered tobe ‘at fault’ as contemplated under Jones for nonproductionof the record. In such cases, the presumption of regularityapplies.” Hunt at 5, citing State v. Frazier, 1990 Ohio App.LEXIS 1457 (8th Dist. Apr. 12, 1990). See also Hunt at 3(“[A]fter the transcript of proceedings becomes unavailablethrough time and as permitted [by law], the defendant isconsidered to be at fault for the lack of a record.”).*6{¶ 28} Before continuing our discussion of Hunt, weobserve that “ ‘[i]f a transcript is “unavailable” an appellanthas an obligation to provide a complete record pursuant toApp.R. 9(C), (D) or (E).’ ” Campanalie, 2025-Ohio-5851, 9 (8th Dist.), quoting State v. Davis, 1992 Ohio App. LEXIS338, *11 (8th Dist. Jan. 30, 1992). We note that Campanalieis procedurally distinct from the present case. Campanalie,a direct appeal, involved a presentence motion to withdrawa plea. In addition, the gap in the record was not the faultof the defendant. Rather, “the audio recording of the ... pleahearing was unavailable because of a technical failure.” Id.
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5at 5. Even though the trial judge was no longer available,the parties submitted competing App.R. 9(C) statements, andthe trial court's administrative judge settled and approved therecord. Id. at 5-6. This court found an adequate basis to settlethe record and that appellant had not affirmatively stated thatthe trial court failed to comply with Crim.R. 11. Id. at 11 and17. It held that “[i]n the absence of evidence demonstratinga defect in the plea process, the presumption of regularityapplies.” Id. at 19.{¶ 29} Here, appellant did not submit a proposed App.R.9(C) statement to the court or attempt to secure an agreedstatement from Shaker Heights under App.R. 9(D).3 Hecould have made some effort, despite the death of the trialjudge. Appellant nevertheless made no documented efforts toprepare a narrative account of the plea proceedings.{¶ 30} This returns us to Hunt, 2019-Ohio-1982 (8th Dist.).We are skeptical that any narrative account of the plea hearingfiled solely by appellant and alleging a violation of Crim.R.11 would suffice to overcome the presumption of regularity.Hunt had “filed a document containing his recollections of theproceedings[.]” Id. at 10. This court, however, found thatsuch a document is insufficient against the presumptionof regularity that may be applied in light of Hunt's failureto timely prosecute this delayed appeal. Frazier. Huntcannot profit from self-serving statements that cannot becontested because of his dilatory behavior. Because Huntis responsible for the nonproduction of the factual record,this appeal can only proceed on those issues for which afactual record is unnecessary. Jones.Hunt at 10.{¶ 31} While Hunt involved a delayed appeal rather than apostconviction motion, we view that distinction as irrelevant.Here, similar to Hunt, “[t]he failure to produce the transcriptwas directly caused by the defendant's failure to prosecute”his postconviction motion “in a more timely fashion.” Id. at 9, citing Frazier, 1990 Ohio App. LEXIS 1457 (8th Dist.). “Inother words, the presumption of regularity applies in instancesin which the defendant” delays filing until “after the recordis no longer available” because of its lawful destruction. Id.The Hunt Court stated:Hunt's claims that his plea was not knowingly, voluntarily,or intelligently entered or that the trial court failed tocomply with the dictates of Green, all of which aredependent on the nonexistent transcript, are without merit.We must presume regularity in the proceedings and thatthe three-judge panel complied with Green and Crim.R. 11.Further, the final entry of conviction indicates that Huntwas notified of his constitutional rights during the pleaprocess and Hunt has not demonstrated any other legalerror from the available record of the proceedings.(Emphasis added.) Hunt at 10-11.{¶ 32} Here, appellant waited nearly two decades to filehis first two motions to vacate his conviction and morethan two decades to file the motion to withdraw his plea.By that time, any audio recording or transcript of the pleaproceedings had long since been lawfully destroyed pursuantto Sup.R. 26.05(C). Appellant, therefore, is at fault withrespect to nonproduction of a transcript or recording ofthe plea proceedings. Hunt and other cases require that wepresume regularity, i.e., compliance with Crim.R. 11.*7{¶ 33} Furthermore, and similar to Hunt, the recordcontains a plea form confirming that appellant had beenadvised of his constitutional rights and that his plea wasbeing entered knowingly, intelligently, and voluntarily. Asdiscussed in Campanalie, 2025-Ohio-5851 (8th Dist.), thisaspect of the case further disposes of appellant's argumentpremised on Boykin, i.e., that we cannot presume regularity ofthe trial court's plea proceedings because of a “silent record.”In Boykin, “the United States Supreme Court reverseda conviction where the record was entirely silent as towhether the defendant knowingly and voluntarily waivedhis constitutional rights.” (Emphasis added.) Campanalie at 16. The record in Boykin featured “no plea colloquy, nojournal entry reflecting advisement of rights, and no substituterecord.” Id. at 16. The Campanalie Court found not onlythat an adequate App.R. 9(C) statement had been constructedbut also that there were contemporaneous entries in the recordreflecting that appellant was advised of his rights and entereda knowing, voluntary, and intelligent plea. Id. at 16-17.{¶ 34} Here, as in Campanalie, the contemporaneous recordcontains the plea form that appellant signed acknowledgingthat he had been informed of his rights and that he thereafter“knowingly, intelligently, and voluntarily” chose to enter aplea of no contest.{¶ 35}Boykin is further distinguishable because there was nosuggestion in that case that the lack of a plea colloquy was thedefendant's own fault. As a result, Hunt remains directly onpoint. This appeal would “be easily resolved upon reviewingthe transcript of the proceedings.” Hunt at 8. Appellant'sargument that his plea was not knowingly, voluntarily, or
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6intelligently entered rests not on any allegation that the trialcourt failed to comply with a specific portion of Crim.R. 11but rather on the nonexistence of a transcript. Appellant is toblame for its loss. We are required, in this context, to presumeregularity with respect to the trial court's adherence to itsobligations under Crim.R. 11.{¶ 36} Appellant's cases to the contrary either do not supportthe propositions for which they are cited or are apparentfabrications (or very possibly hallucinated cases generated byone or more artificial intelligence services). In Nero, 56 OhioSt.3d 106 (1990), which actually exists, the Ohio SupremeCourt reviewed the record and held that under the totality ofthe circumstances the trial court had substantially compliedwith Crim.R. 11(C)(2)(a) when it “accepted a guilty plea forthe nonprobationable crime of rape without informing thedefendant that he was not eligible for probation.” Id. at 107.Nero did not involve an unavailable trial court transcript andcontains no discussion of the presumption of regularity.{¶ 37} Appellant's citation to State v. Stewart, 51 OhioSt.2d 86 (1977), is no more helpful than his reference toNero. In Stewart, the defendant argued that the “trial courtfailed to advise him that in pleading guilty to murder (R.C.2903.02), he would not be eligible for probation.” (Footnotesomitted.) Id. at 87. The Ohio Supreme Court reviewed therecord and found substantial compliance with Crim.R. 11and lack of prejudice to the defendant. Once again, that casedid not feature a missing or destroyed plea transcript or thepresumption of regularity.{¶ 38} We agree with Shaker Heights that the remainingcases cited by appellant in support of this assignment oferror appear to be fabrications or hallucinations. We thereforedecline to consider any of the propositions for which hecites them. We further note that appellant's reply brief, whichfocuses exclusively on the presumption of regularity, cites nocases whatsoever. It is limited to rhetorical propositions that,without any discussion of actual law, directly contradict thiscourt's holding in Hunt.{¶ 39} Appellant's first assignment of error is overruled.4C. Alleged Failure to Consider Collateral Consequences*8{¶ 40} In his second assignment of error, appellantargues that the “trial court abused its discretion by failing toconsider the substantial and ongoing collateral consequencesof the conviction[.]” Appellant appears to be arguing thatthe trial court, when issuing its decision on his motionto withdraw, was required to specifically address certain“collateral consequences” that he deems “legally relevant,”such as “housing denial, employment barriers, firearmdisability, reputational stigma, and enhanced sentencingexposure[.]” (Appellant's brief at p. 8.){¶ 41} To the extent appellant is suggesting the trial court wasrequired to issue an opinion or otherwise explain its rationalefor denying his motion to withdraw, that is incorrect as amatter of law. “Crim.R. 32.1 does not require a trial court toissue findings of fact and conclusions of law in denying amotion to withdraw a plea.” State v. Said, 2021-Ohio-3360, 35 (8th Dist.), citing State v. Mitchell, 2020-Ohio-3726, 11 (8th Dist.), State v. Skipworth, 2016-Ohio-3069, 15 (8thDist.), and State v. Linder, 2013-Ohio-5018, 9 (8th Dist.).Accordingly, there is no merit to appellant's argument “thatthe trial court erred or abused its discretion in denying hismotion without explanation.” Said at 35.{¶ 42} Notably, appellant again cites cases that either donot stand for the propositions for which he offers themor that appear to be fabricated or hallucinated. State v.Francis, 2004-Ohio-6894, a real case, involved the interplayof Crim.R. 32.1 and R.C. 2943.031. The latter requirescertain advisements as to the effect of a plea on possibledeportation, denial of admission to the United States, or denialof naturalization. The Ohio Supreme Court determined thatthe statute “makes apparent the General Assembly's intentto free a noncitizen criminal defendant from the ‘manifestinjustice’ requirement of Crim.R. 32.1 and to substitute R.C.2943.031(D)’s standards in its place.” Id. at 26. The OhioSupreme Court explained:The General Assembly has apparently determined that dueto the serious consequences of a criminal conviction ona noncitizen's status in this country, a trial court shouldgive the R.C. 2943.031(A) warning, and that failure to doso should not be subject to the manifest-injustice standardeven if sentencing has already occurred.Id. at 26. In other words, the General Assembly “createda substantive statutory right for certain criminal defendantsand ... this right therefore prevails over the general proceduralprovisions of Crim.R. 32.1.” Id. at 27. Francis, by its terms,was limited to this substantive statutory right. Appellant hasnot argued that any items on his list of collateral consequencesfit within any such exceptions.{¶ 43} In State v. Sarkozy, 2008-Ohio-509, the Ohio SupremeCourt held that the trial court had “completely failed” to
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.7comply with a portion of Crim.R. 11 where it “failed, beforeit accepted the guilty plea, to inform the defendant of themandatory term of postrelease control, which was a part ofthe maximum penalty[.]”Id. at 22. As this very sentenceillustrates, the key to Sarkozy was the Ohio Supreme Court'sfinding that a “mandatory term of postrelease control” is “partof the maximum penalty” attendant to a plea for purposes ofCrim.R. 11(C)(2)(a), which requires a trial court to informa defendant of, inter alia, “the maximum penalty involved.”Appellant has not suggested that the collateral consequenceshe complains of could be considered part of his potentialsentence at all, much less part of the maximum penalty for hisdomestic-violence conviction.*9{¶ 44} In short, we fail to see how Francis andSarkozy aid appellant's argument that the trial court wasrequired to specifically advise him of a panoply of collateralconsequences at the time of the plea or that the trial court wasrequired to issue findings of fact and conclusions of law (orany written opinion whatsoever) in ruling on his Crim.R. 32.1motion. Neither case stands for either proposition.{¶ 45} As noted above, the remaining cases appellantcites in support of his second assignment of error areeither hallucinated or fabricated. We decline to address anyassociated statements of law.{¶ 46} Appellant's second assignment of error is overruled.D. Denial of Crim.R. 32.1 Motion Without a Hearing{¶ 47} In his third assignment of error, appellant argues thatthe trial court “abused its discretion by denying [his] Crim.R.32.1 post-sentence motion to withdraw the plea withoutholding a hearing, despite the presentation of operativefacts requiring factual development[.]” Appellant argues thatbecause there is no record of the hearing, “[n]one of therelevant facts can be resolved without testimony” regardingseveral topics. (Appellant's brief at p. 9.) Appellant liststhese topics as “what the court advised during the plea”;“whether constitutional rights were explained”; “whether[a]ppellant understood the consequences”; and “what theState represented about the missing witness.”{¶ 48} As we discussed in outlining the standard of review,in the context of a postsentence motion to withdraw a plea“ ‘a hearing is required only if the facts alleged by thedefendant, accepted as true, would require that the defendantbe allowed to withdraw the plea[,]’ ” and we review for anabuse of discretion. State v. Hubbard, 2025-Ohio-2150, 11(8th Dist.), quoting Vihtelic, 2017-Ohio-5818, at 11 (8thDist.). “Furthermore, a postsentence motion to withdraw aguilty plea is subject to denial without a hearing ‘when therecord indicates that the movant is not entitled to relief and themovant has failed to submit evidentiary documents sufficientto demonstrate a manifest injustice.’ ” State v. Knowles, 2011-Ohio-1685, 22 (8th Dist.), quoting State v. Russ, 2003-Ohio-1001, 12 (8th Dist.).{¶ 49} Our resolution of appellant's first assignment of errorlargely moots his third assignment of error. We must presumethe regularity of proceedings in the trial court, including itsadvisements to appellant regarding his constitutional rightsand his contemporaneous understanding of those rights, aswell as the consequences of his plea.{¶ 50} In addition, however, appellant failed to submitany “evidentiary documents” to demonstrate a manifestinjustice entitling him to extraordinary relief. Appellant'smotion was not accompanied by an affidavit from him orfrom anyone else. Moreover, the only “facts” alleged bydefendant are his claims that the trial court did not advisehim of certain collateral consequences that have allegedlyflowed from his conviction, including difficulties obtaininghousing, social stigma, enhanced sentencing in unrelatedcriminal proceedings, and federal firearm disabilities. Onceagain, appellant supplied no affidavits to establish thesupposed collateral consequences that are tangible andsubject to verification (for example, an applied sentencingenhancement).{¶ 51} Moreover, this court has held that “a trial court is notrequired to inform an accused about collateral consequencesto a plea, including potential outcomes that do not have aneffect on the sentence when the judge accepts the plea.” Statev. Resto, 2020-Ohio-4299, 26 (8th Dist.), citing State v.Moore, 1998 Ohio App. LEXIS 3293, *4 (8th Dist. Aug. 27,1998), and State v. Beatty, 2000 Ohio App. LEXIS 5821,*10 (8th Dist. Dec. 14, 2000). “ ‘[I]n order for a plea to beknowing, voluntary, and intelligent, a defendant must onlybe made aware of the direct consequences of the plea, andthe trial court is not required to inform the defendant of allpossible collateral consequences.’ ” (Emphasis added.) Statev. Radovanic, 2013-Ohio-4157, 15 (10th Dist.), quotingState v. Dumas, 2008-Ohio-4896, 14 (8th Dist.). A directconsequence of a plea is “an immediate and automaticconsequence.” (Cleaned up.) Radovanic at 15.
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.8*10{¶ 52} We agree with Shaker Heights that all of theconsequences appellant lists, with the possible exception ofthe federal firearms disability, are collateral rather than directconsequences of his plea. This includes the potential forsentencing enhancement. See, e.g., King v. Dutton, 17 F.3d151, 153 (6th Cir. 1994) (“A conviction's possible enhancingeffect on subsequent sentences has been held to be merelya collateral consequence of a guilty plea, about which adefendant need not be advised, even when there was a pendinginvestigation into the charge upon which the subsequentsentence was based.”).{¶ 53} As for the firearms disability, appellant's argumentsare foreclosed by R.C. 2943.033(C). That statute provides,in pertinent part, that a “plea may not be vacated based ona failure to inform the person so charged regarding” federalfirearm restrictions.{¶ 54} In what has clearly become a pattern, appellantcites one real case that does not stand for the propositionoffered, State v. Xie, 62 Ohio St.3d 521 (1992). Xie, however,addressed “guidelines for a trial court to use when ruling ona presentence motion to withdraw a guilty plea.” (Emphasisadded.) Id. at 526. The Ohio Supreme Court remarked that“a presentence motion to withdraw a guilty plea shouldbe freely and liberally granted ... and [t]herefore, the trialcourt must conduct a hearing to determine whether there isa reasonable and legitimate basis for the withdrawal of theplea.” (Emphasis added). Id. at 527. Xie has no bearing onappellant's right to a hearing on his postsentence motion.{¶ 55} The two additional cases appellant cites appear tobe hallucinations or fabrications. We decline to address theassociated propositions of law.{¶ 56} The trial court did not abuse its discretion indenying appellant's postsentence motion to withdraw withouta hearing. Appellant's third assignment of error is overruled.E. Application of App.R. 9(E){¶ 57} In his fourth assignment of error, appellant contendsthat the trial court “erred by failing to correct or reconstructthe destroyed plea record under App.R. 9(E), leaving therecord structurally defective and preventing meaningfulappellate review.”{¶ 58} This assignment of error is likewise resolved in largepart by our disposition of appellant's first assignment oferror. Thanks to a delay of more than 20 years, occasionedexclusively by appellant's lack of diligence, he alone was toblame for the loss of any transcript or recording of the pleaproceedings.{¶ 59} In addition, as discussed above, appellant took no stepsto resolve the record deficiency through either App.R. 9(C)or 9(D). Instead he cites a purported Eighth District case andclaims that this court “held that when a trial court fails toreconstruct a destroyed plea record ... reversal is required.”He also cites a case in which the Third District allegedly“reversed where the trial court failed to reconstruct a losttranscript.” (Appellant's brief at p. 9.) We are unable to locateeither of the cases appellant cites for these propositions. Onceagain they appear to be hallucinations or fabrications.5*11{¶ 6o} Finally, appellant's argument regarding the trialcourt's compliance with App.R. 9(E) is mooted by this court'sjournal entry of December 8, 2025. In a motion filed in thiscourt on December 2, 2025, appellant contended that thetrial court had not ruled on his pending App.R. 9(E) motionfiled November 21, 2025. He therefore asked this court toclarify the record to reflect that the complaining witness inhis domestic-violence case had twice failed to appear despitebeing subpoenaed.{¶ 61} This court denied appellant's App.R. 9(E) motion. Itstated not only that “the record sufficiently establishes that thevictim failed to appear twice” but also that “the motion thatappellant filed in the trial court to vacate his guilty plea doesnot rely on the fact that the victim failed to appear as groundsfor vacating the plea.” Accordingly, citing Lycan v. Cleveland,2019-Ohio-3510, 32-33 (8th Dist.), this court stated thatappellant had waived that argument and rejected appellant'sattempt to raise new issues or arguments for the first time onappeal. See also State v. Mosby, 2024-Ohio-5210, 58 (8thDist.) (“[A] party cannot raise new arguments and legal issuesfor the first time on appeal, and the failure to raise an issue orlegal argument before the trial court waives that issue or legalargument for appellate purposes.”); State v. Almazan, 2021-Ohio-1718, 8 (8th Dist.).{¶ 62} Appellant's fourth assignment of error is overruled.{¶ 63} Judgment affirmed.It is ordered that appelslee recover from appellant costs hereintaxed.The court finds there were reasonable grounds for this appeal.
CITY OF SHAKER HEIGHTS, Plaintiff-Appellee, v. ANDRE D...., Slip Copy (2026)2026-Ohio-1871 WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.9It is ordered that a special mandate issue out of this courtdirecting the Shaker Heights Municipal Court to carry thisjudgment into execution.A certified copy of this entry shall constitute the mandatepursuant to Rule 27 of the Rules of Appellate Procedure.MARY J. BOYLE, P.J., and MICHAEL JOHN RYAN, J.,CONCURAll CitationsSlip Copy, 2026 WL 1434248, 2026-Ohio-1871Footnotes1The witness's name is not printed and cannot be discerned from the signature alone.2Pursuant to Loc.App.R. 22(C), we avoid identifying the trial judge by proper name “unless such reference is essential toclarify or explain the role of such person in the course of said proceedings.” In this case the identity of the judge whopresided over appellant's plea hearing is relevant to the issue of whether the trial court could possess “an independentrecollection of the proceedings” for purposes of settling any proposed App.R. 9(C) statement. State v. Hunt, 2019-Ohio-1982, 2 (8th Dist.). We take judicial notice of the fact — generally known and readily verifiable — that JudgeMontgomery passed away on January 17, 2023. Evid.R. 201(B). See, e.g., Lanier v. Battle, 2020-Ohio-1251, 1 (10thDist.) (taking judicial notice of death of appellee as reported in local news publication); State ex rel. Cincinnati Enquirer v.Heath, 2009-Ohio-3415, 1, fn. 1 (12th Dist.) (taking judicial notice of death of respondent judge). Furthermore, “pursuantto Evid.R. 201(F), judicial notice may be taken at any stage of the proceeding, including on appeal.” In re Affidavits forProbable Cause, 2016-Ohio-856, 7 (8th Dist.), citing State v. Mays, 83 Ohio App.3d 610, 614 (4th Dist. 1992).3Appellant's only attempt to clarify the record appears to be his App.R. 9(E) motions filed in the trial court on November21, 2025, and with this court on December 2, 2025. Those motions are addressed in our discussion of appellant's fourthassignment of error.4We note in passing that “[t]his court has recognized that the doctrine of res judicata bars all claims raised in a Crim.R.32.1 motion that were raised or could have been raised in a prior proceeding, including a direct appeal.” State v. Poole,2012-Ohio-2622, 7 (8th Dist.). See also State ex rel. Carr v. Saffold, 2015-Ohio-531 (8th Dist.) (applying res judicatato bar a second Crim.R. 32.1 motion). Putting aside the issue of a direct appeal, appellant filed a motion to vacate hisconviction in February 2020 arguing that his plea was not knowing, intelligent, and voluntary because of the trial court'spurported failure to inform him of potential “future adverse legal consequences.” The trial court denied that motion on themerits, and no appeal followed. We decline to apply or further discuss the doctrine of res judicata, however, pursuant tothe principle of party presentation. See Snyder v. Old World Classics, L.L.C., 2025-Ohio-1875, 4 (“Under the principleof party presentation, ‘we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiterof matters the parties present.’ ”), quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008).5Appellant's citation to the purported Eighth District case of State v. Banks corresponds to Toledo v. Heron Arizona Fund1, LLC, 2024-Ohio-1510 (6th Dist.), a Sixth District zoning case. We are unable to locate an Ohio case captioned “Statev. Banks” that touches on the issue of reconstructing a destroyed plea record. Similarly, appellant's citation to State v.Stuart, which he contends is a Third District case, points instead to State v. Hunter, 2021-Ohio-2020 (9th Dist.). WhileHunter is a criminal case, that Ninth District opinion did not involve a plea of guilty or no contest, much less a lost transcript.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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