State v. Greene , 2012 Ohio 791 ( 2012 )

[Cite as State v. Greene, 2012-Ohio-791.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25773
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROLAND L. GREENE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2003-06-1859(B)
DECISION AND JOURNAL ENTRY
Dated: February 29, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Roland Greene pleaded guilty to five counts of aggravated robbery and two
firearm specifications, and the trial court sentenced him to 15 years in prison. In January 2010,
the court resentenced Mr. Greene because it had failed to correctly impose post-release control.
Mr. Greene appealed, but this Court dismissed the appeal because Mr. Greene did not pay or
request a waiver of the deposit required under our local rules. In August 2010, Mr. Greene
moved to withdraw his guilty plea, arguing that he did not know that post-release control would
be part of his sentence before entering his plea. The trial court denied Mr. Greene’s motion
without holding a hearing. Mr. Greene has appealed, arguing that the trial court incorrectly
denied his motion to withdraw his guilty plea without allowing him a hearing. We affirm
because the argument Mr. Greene made in his motion to withdraw was barred under the doctrine
of res judicata.
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RES JUDICATA
{¶2} Mr. Greene’s assignment of error is that the trial court incorrectly denied him a
hearing on his motion to withdraw his guilty plea. In his motion, Mr. Greene asserted that,
before he entered his plea, he reached an agreement with the prosecutor that his sentence would
be 15 years. He also asserted that he did not know that, in addition to the prison term, his
sentence would include a mandatory five-year term of post-release control. According to Mr.
Greene, the post-release control term effectively lengthened his sentence to 20 years, in violation
of the plea agreement. He, therefore, argued that he should be allowed to withdraw his plea.
{¶3} Mr. Greene’s argument was barred by the doctrine of res judicata. The doctrine
of res judicata “bars the assertion of claims against a valid, final judgment of conviction that
have been raised or could have been raised on appeal.” State v. Ketterer, 126 Ohio St. 3d 448,
2010–Ohio–3831, ¶ 59 (citing State v. Perry, 10 Ohio St. 2d 175, paragraph nine of the syllabus
(1967)). The bar extends to claims made in support of a motion to withdraw plea under Rule
32.1 of the Ohio Rules of Criminal Procedure. Id. at ¶ 59-60; State v. Molnar, 9th Dist. No.
25267, 2011-Ohio-3799, at ¶ 9.
{¶4} In its original sentencing entry, the trial court wrote that, “[a]fter release from
prison, [Mr. Greene] is ordered subject to post-release control to the extent the parole board may
determine as provided by law.” Mr. Greene, therefore, knew or should have known at that time
that his sentence included more than just his 15-year prison term. He could have appealed the
trial court’s judgment and argued that the imposition of a sentence that included post-release
control violated his plea agreement, but did not. Furthermore, in January 2010, the trial court
resentenced Mr. Greene to correctly impose post-release control. In its corrected sentencing
entry, the court explicitly told Mr. Greene that, “[u]pon release from prison [he] is ordered
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subject to five (5) years of mandatory post-release control.” Once again, Mr. Greene failed to
properly appeal the court’s judgment.
{¶5} Res judicata bars not only claims that were raised in a previous appeal, but also
those that could have been raised. State v. Ketterer, 126 Ohio St. 3d 448, 2010–Ohio–3831, ¶
59. Accordingly, the fact that Mr. Greene failed to properly appeal his original or corrected
sentence does not prevent the application of the doctrine of res judicata to his motion to
withdraw his guilty plea. State v. Thomas, 9th Dist. No. 25590, 2011-Ohio-4226, at ¶ 5; State v.
Rexroad, 9th Dist. No. 22214, 2004–Ohio–6271, at ¶ 8) (“That a defendant failed to directly
appeal from his conviction and sentence does not prevent the application of the doctrine of res
judicata.”).
{¶6} Because the argument Mr. Greene made in support of his motion to withdraw his
guilty plea was barred under the doctrine of res judicata, it was appropriate for the trial court to
deny the motion without holding a hearing. State v. Seals, 8th Dist. No. 93198, 2010-Ohio-1980,
at ¶ 12; State v. McFarland, 7th Dist. No. 08 JE 25, 2009-Ohio-4391, at ¶ 23; State v. Roberson,
5th Dist. No. 2003CA00227, 2004-Ohio-695, at ¶17; State v. Vincent, 4th Dist. No. 03CA2713,
2003-Ohio-3998, at ¶ 12. Mr. Greene’s assignment of error is overruled.
CONCLUSION
{¶7} The trial court did not have to hold a hearing on Mr. Greene’s post-sentence
motion to withdraw his guilty plea because his argument was barred by res judicata. The
judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
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_____
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
__________________________________
CLAIR E. DICKINSON
FOR THE COURT
MOORE, P.J.
CONCURS
BELFANCE, J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶9} While I do not agree with the analysis of the majority, see State v. Molnar,
9th Dist. No. 25267, 2011-Ohio-3799, ¶ 16-37 (Belfance, J., concurring in judgment
only), I concur in its judgment. The trial court did not err in denying Mr. Greene’s
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motion to withdraw his plea without holding a hearing, as Mr. Greene did not submit
sufficient evidentiary materials in support of his motion.
APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.