State v. Boware , 2014 Ohio 5779 ( 2014 )

[Cite as State v. Boware, 2014-Ohio-5779.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27446
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MELVIN L. BOWARE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1993-06-1412
DECISION AND JOURNAL ENTRY
Dated: December 31, 2014
HENSAL, Presiding Judge.
{¶1} Melvin Boware appeals from a judgment of the Summit County Court of
Common Pleas that denied his motions to vacate his plea agreement. For the following reasons,
this Court affirms.
I.
{¶2} In August 1993, Mr. Boware pleaded guilty to one count of gross sexual
imposition. The trial court sentenced him to one year in prison, which it suspended, pending his
completion of two years of probation. Mr. Boware did not appeal the court’s judgment. The
following year, the court granted him early termination of his probation.
{¶3} In 2013, Mr. Boware petitioned for post-conviction relief. He also filed a motion
to vacate his conviction or for the trial court to order a new trial. Among his allegations was that
the State failed to reveal the identity of his accuser. According to Mr. Boware, on the day in
question, he had intimate contact with a prostitute named Patricia. When he was arrested, the
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officers told him that his accuser’s name was Patricia, so he assumed they were referring to the
prostitute. He did not discover until years later, however, that the Patricia who filed charges
against him was not the prostitute with whom he had engaged in sexual contact. He alleged that,
if the State had properly identified his accuser, he would not have pleaded guilty.
{¶4} The trial court denied Mr. Boware’s petition and motions. This Court affirmed its
judgment on appeal. Mr. Boware subsequently filed a new motion for post-conviction relief and
an application for DNA testing. The trial court denied his filings. On May 1, 2014, Mr. Boware
filed two new motions to vacate his plea, a motion to compel DNA evidence, and a motion to
have the court rule on newly discovered evidence. A month later, he filed another motion to
vacate his plea agreement and a motion for discovery of information. On July 9, 2014, the trial
court denied all of his pending motions. Mr. Boware has appealed the denial of his motions to
vacate his plea agreement.
ASSIGNMENT OF ERROR
THE COMMON PLEAS JUDGE ABUSED HIS DISCRETION AS THE
APPELLANT[’S] CONVICTION WAS A MANIFEST INJUSTICE AS IT WAS
[AN] UNJUST ACT.
{¶5} Mr. Boware argues that he would not have pleaded guilty to gross sexual
imposition if the State had told him which Patricia had made a sexual assault complaint against
him. He, therefore, argues that the trial court incorrectly determined that he has not established
manifest injustice under Criminal Rule 32.1. The State argues in response that Mr. Boware’s
arguments are barred as res judicata and that he failed to submit any evidence in support of them.
{¶6} 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. It extends to argument “made in support of
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a motion to withdraw a plea under Crim.R. 32.1.” State v. Sebestyen, 9th Dist. Medina No.
12CA0055-M, 2013-Ohio-2606, ¶ 9, quoting State v. Molnar, 9th Dist. Summit No. 25267,
2011-Ohio-3799, ¶ 9. Accordingly, a defendant may not raise issues in a successive motion to
withdraw a guilty plea that were raised or could have been raised in his initial motion. State v.
Kimbro, 9th Dist. Lorain No. 13CA010506, 2014-Ohio-4869, ¶ 7.
{¶7} In his prior motions to vacate, Mr. Boware made the same argument about his
misidentified accuser as he did in the motions to vacate that are the subject of this appeal.
Because Mr. Boware has previously litigated this issue, we conclude that his argument is barred
under the doctrine of res judicata. Id. at ¶ 8. Mr. Boware’s assignment of error is overruled.
III.
{¶8} The trial court correctly denied Mr. Boware’s motions to vacate his plea
agreement. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
MELVIN L. BOWARE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.