State v. Mulkey ( 2020 )

[Cite as State v. Mulkey, 2020-Ohio-3531.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29380
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRIAN MULKEY AKRON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 93 CRB 4472
DECISION AND JOURNAL ENTRY
Dated: June 30, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellant, Brian Mulkey, appeals an order of the Akron Municipal Court that
denied his post-sentence motion to withdraw a no-contest plea. This Court affirms.
I.
{¶2} Mr. Mulkey pleaded no contest to a domestic violence charge in 1993, and the trial
court sentenced him to six months of probation. Mr. Mulkey did not file an appeal. Twenty-six
years later, Mr. Mulkey moved the trial court to withdraw that plea, arguing, in part, that he “did
not understand the nature of the disabling and [enhanceability] [e]ffect of a Guilty finding in a
Domestic Violence case.” The only evidence that Mr. Mulkey submitted in support of his motion
was his own one-page affidavit. The trial court denied the motion without a hearing, concluding
that Mr. Mulkey’s arguments were barred by application of res judicata and, in the alternative, that
he had not demonstrated that he suffered a manifest injustice. Mr. Mulkey appealed.
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II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR BY DENYING DEFENDANT’S MOTION TO
WITHDRAW HIS PLEA OF NO CONTEST[.]
{¶3} Mr. Mulkey’s first assignment of error is that the trial court abused its discretion by
denying his post-sentence motion to withdraw his no-contest plea. This Court does not agree.
{¶4} “A motion to withdraw a plea of * * * 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.” Crim.R. 32.1. Post-sentence
relief under Crim.R. 32.1 is only available in extraordinary cases characterized by “a fundamental
flaw in the plea proceedings resulting in a miscarriage of justice.” State v. Straley, Slip Opinion
No. 2019-Ohio-5206, ¶ 14. Res judicata bars the assertion of claims against a judgment of
conviction in a motion under Crim.R. 32.1 when those claims were or could have been raised on
direct appeal. Straley at ¶ 15, 23; State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59.
This Court reviews a decision to grant or deny a motion to withdraw a plea for an abuse of
discretion. See State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus.
{¶5} In support of his motion to withdraw his no-contest plea, Mr. Mulkey argued that
his plea was not knowingly, voluntarily, and intelligently made because the trial court did not
comply with Crim.R. 11(D). Mr. Mulkey could have raised this argument in a direct appeal. See
Straley at ¶ 23, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, paragraph one of the
syllabus; Ketterer at ¶ 59-60. See also State v. Cagle, 9th Dist. Medina No. 19CA0058-M, 2020-
Ohio-316, ¶ 5. Accordingly, the trial court did not abuse its discretion by denying his motion to
withdraw his no-contest plea.
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{¶6} Mr. Mulkey’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD A
HEARING[.]
{¶7} In his second assignment of error, Mr. Mulkey argues that the trial court erred by
failing to hold a hearing on his motion to withdraw his no-contest plea. This Court disagrees.
{¶8} When a defendant moves to withdraw a plea before sentencing, the trial court must
conduct a hearing in order to determine whether there is “a reasonable and legitimate basis” for
the motion. State v. Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. On the other
hand, when a defendant moves to withdraw a plea after sentencing, a hearing is not required when
the record indicates that the defendant is not entitled to relief and the defendant fails to submit
evidentiary materials demonstrating a manifest injustice. State v. Razo, 9th Dist. Lorain No.
05CA008639, 2005-Ohio-3793, ¶ 20, citing State v. Russ, 8th Dist. Cuyahoga No. 81580, 2003-
Ohio-1001, ¶ 15. A trial court need not conduct an evidentiary hearing when the record
demonstrates that arguments in support of a post-sentence motion to withdraw a plea are barred
by application of res judicata. See State v. Brown, 9th Dist. Summit No. 27749, 2016-Ohio-1066,
¶ 9; State v. Sebestyen, 9th Dist. Medina No. 12CA0055–M, 2013-Ohio-2606, ¶ 10.
{¶9} The record in this case demonstrated that Mr. Mulkey’s claims were barred by
application of res judicata, and the trial court did not err by denying his motion to withdraw his
no-contest plea without a hearing. Mr. Mulkey’s second assignment of error is, therefore,
overruled.
III.
{¶10} Mr. Mulkey’s assignments of error are overruled. The judgment of the Akron
Municipal Court is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal
Court, 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.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
CHARLES W. OLMINSKY, Attorney at Law, for Appellant.
EVE V. BELFANCE, Director of Law, and GERTRUDE E. WILMS, Assistant Director of Law,
for Appellee.