State v. Patrick , 2013 Ohio 5020 ( 2013 )

[Cite as State v. Patrick, 2013-Ohio-5020.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99418
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALONZO PATRICK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-548888
BEFORE: Stewart, A.J., Keough, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 14, 2013
FOR APPELLANT
Alonzo Patrick, pro se
Inmate No. 602-669
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301
ATTORNEYS FOR APPELLEE
Sherin Bevan Walsh
Prosecuting Attorney
BY: Heaven Dimartino
Assistant Prosecuting Attorney
Appellate Division
Summit County Safety Building
53 University Avenue, 6th Floor
Akron, OH 44308
MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Alonzo Patrick appeals the trial court’s decision
denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm
the decision of the trial court.
{¶2} On June 3, 2011, Patrick pled guilty to aggravated burglary in violation of
R.C. 2911.11(A)(1), a first-degree felony with a one-year firearm specification; abduction
in violation of R.C. 2905.02(A)(2), a third-degree felony; and having weapons while
under disability in violation of R.C. 2923.13(A)(2), a third-degree felony. He was
sentenced to a total of seven years imprisonment.
{¶3} On October 31, 2012, Patrick filed an appeal, but it was dismissed as
untimely and the decision was upheld on reconsideration. On November 30, 2012,
Patrick filed a motion to withdraw his guilty plea that was denied by the trial court on
December 18, 2012, and is the subject of this appeal.
{¶4} We review a trial court’s decision to deny a postsentence motion to withdraw
a guilty plea under an abuse of discretion standard. State v. Britton, 8th Dist. Cuyahoga
No. 98158, 2013-Ohio-99, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977), paragraph two of the syllabus.
{¶5} Crim.R. 32.1 states:
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.
{¶6} In this case, Patrick does not attempt to argue that a manifest injustice has
taken place. Instead, in 12 assignments of error, Patrick makes various arguments with
regard to the effectiveness of his trial counsel and alleged errors made by the trial court.
Of Patrick’s 12 assignments of error, four assignments argue that: the trial court abused
its discretion by entering an incorrect journal entry, the trial court failed to comply with
felony sentencing guidelines under R.C. 2929.11 and R.C. 2929.12, the trial court
improperly imposed postrelease control sanctions, and the trial court failed to properly
advise Patrick on his right to appeal. The remaining eight assignments of error asserted
by Patrick are claims based on ineffective assistance of counsel. We find, however, that
the doctrine of res judicata precludes us from considering all but one of Patrick’s 12
assigned errors.
{¶7} Under the doctrine of res judicata, “a valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp.,
73 Ohio St.3d 379, 382, 1995-Ohio-331, 653 N.E.2d 226. In a motion to withdraw a
guilty plea, res judicata bars the assertion of claims that were or could have been raised at
trial or on appeal. State v. Ford, 8th Dist. Cuyahoga No. 98049, 2012-Ohio-4597,  2.
{¶8} Patrick argues in his first assignment of error that the trial court abused its
discretion by entering an incorrect journal entry. He asserts that the trial court failed to
consider “all required factors of law” for sentencing purposes. In particular, Patrick feels
the court did not take into account the seriousness of the crime and recidivism factors set
forth under R.C. 2929.12. Next, in Patrick’s second assignment of error, he claims that
the court failed to comply with purposes of felony sentencing under R.C. 2929.11, as well
as R.C. 2929.12. Both of these two arguments are barred by res judicata because Patrick
needed to present these issues in a timely appeal.
{¶9} Patrick’s eight assignments of error based on various claims of ineffective
assistance of counsel are also barred as res judicata. These claims include three assigned
errors stating that Patrick’s trial counsel was deficient in matters relating to Patrick’s
arrest and a motion to suppress evidence filed with the trial court. Two assignments of
error are with regard to gun specifications sentencing and allied offenses. The remaining
three assigned errors claim that the court failed to comply with Crim.R. 11 and plea
negotiations. Also, however, since Patrick filed no transcript of the plea proceedings as
part of his appellate record, it would be impossible to address the merits of these claims.
The same is true of the argument that the court failed to inform Patrick of his right to
appeal. Without a transcript, this argument fails.
{¶10} When an appeal is filed without a transcript, reviewing courts generally
presume the regularity of that proceeding. State ex rel. Bardwell v. Cuyahoga Cty. Bd. of
Commrs., 127 Ohio St.3d 202, 2010-Ohio-5073, 937 N.E.2d 1274,  14. Patrick filed a
motion for preparation of a complete transcript of the proceedings at the state’s expense
on January 13, 2012. However, the motion was denied on January 31, 2012, because
Patrick had yet to file an appeal or any comparable postconviction motion. Reviewing
courts have held that where the appellant failed to support his claim of ineffective
assistance of counsel with any evidence outside the record, the claims could have been
raised on direct appeal and are res judicata. State v. Cassano, 5th Dist. Richland No.
12CA55, 2013-Ohio-1783,  55.
{¶11} In Patrick’s third assignment of error, he argues that the trial court failed to
properly inform him of the mandatory term of postrelease control. In State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Supreme Court held that a
sentence that does not include the statutorily mandated term of postrelease control is void
and not precluded from appellate review by principles of res judicata. Id. at  40. See
also State v. Jordan, 5th Dist. Richland No. 12CA17, 2012-Ohio-5350,  17. While res
judicata does not bar consideration of this argument, again without a transcript, we must
presume that the trial court properly informed Patrick of postrelease control. The journal
entry dated June 3, 2011, reflects that Patrick was given five years mandatory postrelease
control and advised of the consequences for violating the conditions of his postrelease
control.
{¶12} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR