Opinion

State v. Frisbie

2024 Ohio 5523

Court: Ohio Court of Appeals
Filed: Nov 22, 2024
Status: Published
On the bench: Mayle
Cited by: 4 cases
Authority: More cited than 57.0%

The opinion

[Cite as State v. Frisbie, 2024-Ohio-5523.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WILLIAMS COUNTY

State of Ohio Court of Appeals No. WM-23-017

Appellee Trial Court No. 98CR000013

Shane A. Frisbie DECISION AND JUDGMENT

Appellant Decided: November 22, 2024

*****

Katherine J. Zartman, Williams County Prosecuting Attorney,

for appellee.

Shane A. Frisbie, pro se.

*****

MAYLE, J.

{¶ 1} The defendant-appellant, Shane A. Frisbie, appeals an order of the Williams

County Court of Common Pleas, dated December 7, 2023, that denied his motion to withdraw

his guilty plea. For the following reasons, we affirm.

I. Background

{¶ 2} In February of 1998, Frisbie was indicted for the aggravated murder of his ex-

girlfriend and carrying a concealed weapon. A few months later, Frisbie pleaded guilty to

aggravated murder, in violation of R.C. 2903.01, and the state agreed to dismiss the concealed

weapon charge. On July 13, 1998, the court entered a journal entry that memorialized the terms

of the plea agreement—including an acknowledgment by Frisbie’s trial counsel that the

aggravated murder offense was punishable “by a mandatory sentence of life imprisonment with

parole eligibility after serving twenty (20) years of imprisonment, and a fine of up to

$25,000.00.” The entry also states that the court advised Frisbie that “[a]fter being released from

prison, [he] may have up to five (5) years of post-release control.”

{¶ 3} On August 19, 1998, the trial court sentenced Frisbie to life imprisonment with

parole eligibility after serving 20 years. The sentencing entry states that Frisbie was subject to

post release control “up to a maximum of five (5) years.” Frisbie did not appeal his conviction or

sentence.

{¶ 4} On September 2, 1998—i.e., two weeks after he was sentenced in this case—Frisbie

pled guilty to conspiracy to commit aggravated murder, in a different case in the same court (“the

conspiracy case”). In the conspiracy case, the trial court sentenced Frisbie to serve five years in

prison, to be served consecutively to the instant case, for an aggregate sentence of twenty-five

years to life in prison.

{¶ 5} Nearly twenty-five years later, on June 6, 2023, a hearing was held before the Ohio

Parole Board regarding Frisbie’s “first statutory eligibility” for parole. The board issued a

written decision that same day, finding that Frisbie “is not suitable for release at this time.”

Frisbie’s next opportunity for parole is in 2033.

{¶ 6} On October 12, 2023, Frisbie, acting pro se, moved to withdraw his guilty plea in

this case. Frisbie attached a number of exhibits to his motion, including a letter dated July 6,

2023 from the Williams County Clerk of Courts stating that a transcript from his 1998 change-

of-plea hearing could not be prepared because the “notes and recordings” from the case are no

longer available. Frisbie also attached the decision from the Ohio Parole Board, and the

September 2, 1998 “guilty plea and sentencing journal entry” from the conspiracy case.

{¶ 7} The trial court denied Frisbie’s motion, without holding an evidentiary hearing,

finding that “[a]ll of the issues” raised by Frisbie were barred by res judicata. Frisbie appealed.

II. Law and Analysis

{¶ 8} “[A] trial court may grant a defendant’s post-sentence motion to withdraw a guilty

plea to ‘correct a manifest injustice.’” State v. Straley, 2019-Ohio-5206, ¶ 13-14, citing Crim.R.

32.1. A “‘manifest injustice’ is a clear or openly unjust act, . . . and relates to a fundamental flaw

in the plea proceedings resulting in a miscarriage of justice.” (Citations omitted.) Id. The term

“has been variously defined, but it is clear that under such standard, a postsentence withdrawal

motion is allowable only in extraordinary cases.” Id., quoting State v. Smith, 49 Ohio St.2d 261,

264 (1977). A defendant who seeks to withdraw a plea of guilty after the imposition of sentence

has the burden of establishing the existence of manifest injustice. Id., citing Smith at paragraph

one of the syllabus.

{¶ 9} Crim.R. 32.1 does not provide a time limit for moving to withdraw after a sentence

is imposed. However, “an undue delay between the occurrence of the alleged cause for

withdrawal and the filing of the motion is a factor adversely affecting the credibility of the

movant and militating against the granting of the motion.” Id. at ¶ 15, citing Smith at 264.

Generally, res judicata bars a defendant from raising claims in a Crim.R. 32.1 post-sentencing

motion to withdraw a guilty plea that he raised, or could have raised, on direct appeal. Id., citing

State v. Ketterer, 2010-Ohio-3831, ¶ 59.

{¶ 10} An appellate court reviews a trial court’s decision on a motion to withdraw a plea

under an abuse-of-discretion standard. Smith at paragraph two of the syllabus. Id. The term

“abuse of discretion” implies that the court’s attitude is “unreasonable, arbitrary or

unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157 (1982).

{¶ 11} Frisbie failed to set forth a statement of assignments of error as required by App.R.

16(A)(3). Although App.R. 12(A)(2) authorizes a court of appeals to disregard any unassigned

error, we will address Frisbie’s arguments and consider them within the context of whether the

trial court abused its discretion in denying his motion. “Fairness and justice are best served when

a court disposes of a case on the merits.” Rothschild v. Humility of Mary Health Partners, 2005-

Ohio-5481, ¶ 5 (7th Dist.), quoting DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189 (1982).

A. Frisbie failed to show that his plea agreement was breached.

{¶ 12} The impetus for Frisbie’s October 2023 motion to withdraw his 1998 guilty plea

was the parole board’s decision to deny him parole in June 2023. Frisbie raised many claims in

support of his quest to withdraw his plea, but his principal argument is that “the State breached

the plea [agreement] by not releasing him after [serving] 25 years.”

{¶ 13} In its decision, the trial court found that there was “simply nothing in the record” to

support a finding that the state made “any such representation to [release Frisbie].” To the

contrary, under the terms of the plea agreement, Frisbie was sentenced to “life imprisonment,

with parole eligibility after serving [25] years of imprisonment.” (Emphasis added.) Frisbie’s

eligibility for parole did not guarantee that parole would be granted. State v. Threats, 2016-

Ohio-8478, ¶ 19 (7th Dist.), citing State v. Clark, 2008-Ohio-3748, ¶ 37. And, as noted by the

trial court, the prosecuting attorney—who was a party to the plea agreement—had “no control”

over the parole board’s future decision regarding parole. Here, the parole board denied release

due to Frisbie’s “brutal homicide of a defenseless female victim” and because he “contract[ed]”

from jail to have a witness “murdered.” In support of its decision, the parole board found that

Frisbie “exhibits limited remorse for his crimes and minimizes his role therein” and “lack[s] . . .

insight into his triggers to re-offend.”

{¶ 14} We find no evidence to support Frisbie’s claim that he was ever promised release

after serving 25 years in prison or that the plea agreement was otherwise “breached.”

B. Res judicata bars Frisbie’s arguments relating to the trial court’s incorrect

post-release control advisement.

{¶ 15} Next, Frisbie argues that the trial court incorrectly advised him during his change-

of-plea hearing that he would be subject to post-release control upon his release from prison.

Frisbie claims that due to this error, he entered his plea “less than” knowingly, intelligently, and

voluntarily.

{¶ 16} It is undisputed that the trial court provided misinformation on the issue of post

release control during Frisbie’s change-of-plea hearing. “[A]n individual sentenced for

aggravated murder . . . is not subject to post release control, because that crime is an unclassified

felony to which the postrelease statute does not apply.” Clark at ¶ 36; see also State v. Eggers,

2013-Ohio-3174, ¶ 25 (2d Dist.) (“[A]n unclassified felony [is] not subject to the dictates of R.C.

2967.28 [‘Post-release control’].”) In the journal entry memorializing the plea, however, the trial

court incorrectly advised Frisbie that he faced “up to five (5) years of post-release control” in

addition to “life imprisonment with parole eligibility after serving 20 years of imprisonment.”

(Emphasis added). The sentencing entry contains the same mistake.

{¶ 17} Frisbie could have appealed his sentencing judgment and raised the post-release

control issue at that time. He did not. “Res judicata generally bars a defendant from raising

claims in a Crim.R. 32.1 postsentencing motion to withdraw a guilty plea that he raised or could

have raised on direct appeal.” Straley, 2019-Ohio-5205, ¶ 23, citing State v. Ketterer, 2010-

Ohio-3831, ¶ 59. Thus, the trial court properly concluded that Frisbie’s arguments relating to

the supposed impact of the post-release control advisements on the voluntariness of his plea were

barred by res judicata. Accord State v. Pepper, 2023-Ohio-2611, ¶ 17-18 (“There is nothing in

the record to suggest that Pepper’s claims regarding the validity of his plea could not have been

raised in his direct appeal.”).

{¶ 18} Moreover, even if this claim was not barred by res judicata, the plea agreement in

the record reflects that the trial court correctly advised Frisbie that the aggravated murder offense

carried a mandatory prison sentence of 20 years to life, and Frisbie’s counsel acknowledged this

with his signature. The trial court’s misstatement regarding post-release control did not add to

the maximum penalty Frisbie faced—life imprisonment—nor did it suggest that Frisbie would be

released early. Although Frisbie claims to have been “induce[d]” to plea guilty based on his

supposed “misunderstanding” that he would be placed on post release control, there is simply

nothing “on the face of the record” to support Frisbie’s assertions that he would not have pled

guilty but for the trial court’s misstatement regarding post release control. See State v. Dangler,

2020-Ohio-276, ¶24. Accordingly, Frisbie’s arguments were properly rejected by the trial court

for this additional reason as well.

C. There is no evidence in the record that Frisbie’s counsel improperly induced him to

enter the guilty plea.

{¶ 19} Frisbie also argues that “promises” made by his counsel rendered his plea

involuntary. He claims that his trial counsel “promised” him, on the one hand, that if Frisbie

accepted the plea, he “would be released after 25 years of incarceration” and, on the other hand,

that he would “most likely” be sentenced to death if he did not plead guilty. Frisbie alleges—for

the first time on appeal—that evidence of those conflicting promises can be found by reviewing

“phone conversations” between trial counsel and himself “from when [Frisbie] was incarcerated

at CCNO [Corrections Center of Northwest Ohio].” Those recordings are not in the record, and

Frisbie “requests” that this court gather that evidence for him. The state counters that the death

penalty was “never an option” because “the only penalty available . . . at the time” was a

mandatory sentence of life imprisonment with parole eligibility after serving 20 years of

imprisonment, which Frisbie was advised of and acknowledged.

{¶ 20} As we have acknowledged, the plea agreement correctly stated the maximum

penalty for the offense to which Frisbie was pleading guilty. Thus, even if trial counsel

misadvised him regarding early release or the death penalty, that misinformation was corrected

by the time Frisbie pled guilty. Moreover, the alleged “phone conversations” between Frisbie

and his trial counsel are not part of the record, and “[a] party cannot introduce new evidence on

appeal.” State ex rel. Parker Bey v. Byrd, 2020-Ohio-2766, ¶ 20.

{¶ 21} Accordingly, we reject Frisbie’s claim that misinformation provided by trial

counsel created a manifest injustice warranting the withdrawal of his plea.

D. Frisbie fails to establish a claim of ineffective assistance of counsel.

{¶ 22} Frisbee complains that he received ineffective assistance of counsel when counsel

allowed him “to enter into an agreement” containing a post-release provision, which counsel

“either knew or should have known was not applicable to [him].”

{¶ 23} “To establish that trial counsel was ineffective, a defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced the

defendant.” State v. Bunch, 2022-Ohio-4723, ¶ 26, citing Strickland v. Washington, 466 U.S.

668, 687 (1984). The two-part test applies when a defendant claims that he received ineffective

assistance of counsel in relation to a guilty plea. Hill v. Lockhart, 474 U.S. 53, 58 (1985); State

v. Xie, 62 Ohio St.3d 521, 524 (1992), citing Strickland. To show prejudice in relation to a guilty

plea, “‘the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.’” Lockhart at

59; see also Ketterer, 2006-Ohio-5283, at ¶ 89. The failure to make either showing defeats a

claim of ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989),

quoting Strickland at 697.

{¶ 24} First, Frisbie cannot show that he was prejudiced by counsel’s failure to object to

the post-release control advisement. Frisbie is not subject to post-release control as to his

aggravated murder conviction because it is an unclassified felony. Indeed, “[t]he language in the

judgment entry referencing post-release control had no operative effect [and] [t]herefore,

[Frisbie] was not prejudiced in any way by its inclusion.” State v. Richardson, 2019-Ohio-3490,

¶ 23 (10th Dist.).

{¶ 25} Moreover, this claim could have been raised on direct appeal and is therefore

barred by res judicata. State v. Blanton, 2022-Ohio-3985, ¶ 2 (“[W]hen the petitioner had a new

attorney on appeal and the claim could have been litigated based on the trial record, res judicata

applies and the postconviction [ineffective assistance of counsel] claim is barred.”).

E. The timing of Frisbie’s motion supports the trial court’s determination.

{¶ 26} Finally, the fact that Frisbie waited 25 years to challenge his plea casts doubt on

the credibility of his claims. An “undue delay between the occurrence of the cause for

withdrawal of a guilty plea and the filing of the motion to withdraw ‘is a factor adversely

affecting the credibility of the movant and militating against granting the motion.’” (Citations

omitted.) Peppers at ¶ 16, quoting State v. Rogers, 2013-Ohio-3246, ¶ 38 (8th Dist.).

III. Conclusion

{¶ 27} For all the foregoing reasons, we find that the trial court did not abuse its discretion

in denying Frisbie’s motion to withdraw his plea. We find Frisbie’s arguments not well-taken,

and we affirm the trial court’s December 7, 2023 decision denying his motion.

{¶ 28} Pursuant to App.R. 24, Frisbie is ordered to pay the costs of this appeal. It is so

ordered.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.