State v. Price ( 2012 )

[Cite as State v. Price, 2012-Ohio-3068.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-11-45
v.
ARMOND PRICE, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 230
Judgment Affirmed
Date of Decision: July 2, 2012
APPEARANCES:
Armond Price, Appellant
Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-45
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Armond Price (“Price”), pro se, appeals the
judgment entry of the Hancock County Court of Common Pleas denying his
motion to withdraw his guilty plea. The motion was made nearly a year after his
sentencing. On appeal, Price contends that the trial court erred in denying his
motion because his conviction violated his due process rights, because he claims it
was based upon a substance that was not listed within the schedule of controlled
substances. He further asserts that he was denied effective assistance of counsel.
For the reasons set forth below, the judgment is affirmed.
{¶2} On November 17, 2009, Price was indicted for knowingly possessing
a Schedule I controlled substance in an amount equal to or exceeding five times
the bulk amount but less than fifty times the bulk amount, a violation of R.C.
2925.11(A), a felony of the second degree. The indictment listed the drugs as
(MDMA -- Methylenedioxymethamphetamine). Price and a co-defendant, Mack
Rodgers, were charged when the drugs (199 pills) were discovered after a traffic
stop on I-75. A plea agreement was eventually reached with Price, resulting in
him pleading guilty to a lesser included offense for a smaller amount of drugs and
thereby reducing the offense to a third degree felony. After entering his guilty
plea, the matter proceeded to sentencing on October 27, 2010. The trial court
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adopted the joint recommendation of the parties and sentenced Price to four years
in prison. (See Oct. 28, 2010 J.E)
{¶3} Price’s co-defendant, Rodgers, was found guilty after a jury trial and
he was sentenced to seven years in prison. See State v. Rodgers, 3d Dist. No. 5-
10-35, 2011-Ohio-3003 (affirming Rodgers’ conviction). Prior to Rodger’s trial,
the State learned that the substance found in the vehicle was not MDMA, but
actually N–Benzylpiperazine (otherwise known as “BZP”). The State notified
Rodgers' trial counsel and amended the indictment. The amendment did not
change the identity of the offense (it was still an aggravated possession of drugs),
nor did it change the level of offense (since both MDMA and BZP are Schedule I
drugs). See State v. Rodgers at ¶ 42.
{¶4} On July 27, 2011, Price filed a motion for judicial release. This was
opposed by the State, and on August 23, 2011, the trial court denied his motion.
{¶5} On September 23, 2011, Price filed a “Motion to Withdraw No
Contest Plea”1 pursuant to Crim.R. 32.1. Price claimed his plea was not knowing
and voluntary, as required by Crim.R. 11, and that his constitutional rights were
violated because of ineffective assistance of counsel. Price argued that the trial
court should allow Price to withdraw his plea to correct a “manifest injustice”
because the drug he possessed was not MDMA, as listed on the indictment, but
1
The record indicates that Price entered a plea of guilty according to the plea agreement, signed August 30,
2010, and the Judgment Entry from the change of plea hearing, stating that he entered a plea of guilty. (See
Sept. 10, 2010 J.E.) Price did not provide a transcript of the change of plea hearing for our review.
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rather BZP, as determined by the laboratory report in his co-defendant’s case.
Price further argued that BZP was not a Schedule I controlled substance listed
under R.C. 3719.41 and, therefore, he could not have possibly committed the
crime to which he pled guilty. He also contended that the amount of BZP listed in
the lab report was insufficient to support the indictment for the offense to which he
pled guilty. Related to this, he asserted that his counsel was ineffective for
allowing him to plead guilty to possession of a substance that was not specified in
the indictment and was not listed as a Schedule I controlled substance.
{¶6} On November 17, 2011, without holding a hearing, the trial court
denied Price’s motion to withdraw his plea. The trial court held that Price had
failed to set forth any facts that would justify the court setting an evidentiary
hearing and that he had failed to establish that a manifest injustice had occurred.
{¶7} The trial court found that his motion was barred by res judicata
because he had brought the motion after the time for direct appeal and post-
conviction relief had passed. Therefore, res judicata barred any subsequent
attempts that could have been raised. (Nov. 17, 2011 J.E.) Furthermore, the trial
court found that even if Price’s motion had not been barred by res judicata, it still
would have been denied because there was no basis for any of his claims that a
manifest injustice had occurred.
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{¶8} First, the trial court explained that BZP was a Schedule I controlled
substance, even if was not listed under R.C. 3719.41.
Ohio’s list of Schedule I controlled substances is automatically
altered when the federal government adds a particular drug on its list
of controlled substances. R.C. 3719.41. BZP (N-Benzylpiperazine)
is a Schedule I controlled substance under 21 C.F.R. Sec.
1308.11(f)(2). Furthermore BZP has been on the Schedule I list, on
a permanent basis, since March 18, 2004.2
(Nov. 17, 2011 J.E., p. 4) And, the trial court further explained that the amount of
the drug was sufficient to satisfy the quantity requirements for the offense, either
as listed in the indictment or for the offense to which he pled. At his co-
defendant’s trial, a criminalist testified as to the laboratory report’s accuracy and
further testified that the bulk amount for this particular drug was ten pills. This
testimony corresponded with R.C. 2925.01(D)(1)(C), which states that the bulk
amount for a Schedule I stimulant (such as BZP) is “thirty grams or ten unit
doses.” (J.E., p. 5) The lab report and testimony indicated that at least 199 pills –
or unit doses – of BZP were found in the vehicle.
{¶9} The trial court also explained that Price’s claim of ineffective
assistance of counsel failed because he could not show that he suffered any
prejudice. As the trial court stated above, BZP was a prohibited Schedule I
substance. See Rodgers, 2011-Ohio-3003, at ¶ 24. If the issue had been raised,
the trial court would have allowed for amendment of the indictment either prior to
2
See State v. Rodgers, Case No. 05-10-35, which issued a Judgment Entry on November 3, 2011, holding
that BZP is in fact listed as a Schedule I drug in the Controlled Substance Schedule in R.C. 3719.41(E)(2).
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the plea or to a trial, just as was done in the case of his co-defendant. See
Rodgers, supra.{¶10} The trial court did note that the laboratory report, listing the correct
substance, was provided to Price’s counsel on June 23, 2010, well before the plea
hearing, and that Price should have been informed of the discrepancy between the
controlled substance actually found in the vehicle and the controlled substance
listed in the indictment. However, because a motion to amend the indictment
would have been granted had the matter been raised, the outcome would have been
no different. (J.E., p. 7)
{¶11} Price now appeals the denial of his motion to withdraw his plea,
raising the following two assignments of error for our review.
First Assignment of Error
The trial court erred when it denied [Price’s] motion to
withdraw his guilty plea based upon the conviction being based
on a drug substance that was not listed within the schedule of
controlled substances pursuant to R.C. 3719.41(E)(2) thereby
violating his due process rights pursuant to the Sixth and
Fourteenth Amendments of the United States Constitution, and
Sections Five and Sixteen, Article One and Section Four, Article
IV of the Ohio Constitution.
Second Assignment of Error
The trial court erred when it denied [Price’s] motion to
withdraw his guilty plea based upon ineffective assistance of
counsel, thereby violating [Price’s] constitutional right to the
effective assistance of counsel pursuant to the United States
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Constitution Sixth Amendment, and the Ohio Constitution,
Article I, Section 10.
{¶12} Because both of Price’s assignments of error are closely related, we
shall address them together. They both allege that the trial court erred when it
denied his motion to withdraw his guilty plea.
{¶13} Appellate review of a trial court’s denial of a motion to withdraw
guilty pleas pursuant to Crim.R. 32.1 is for an abuse of discretion. State v. Nathan,
99 Ohio App.3d 722, 725 (3d Dist. 1995), citing State v. Smith, 49 Ohio St.2d 261(1977). A trial court will be found to have abused its discretion when its decision
is contrary to law, unreasonable, not supported by the evidence, or grossly
unsound. See State v. Boles, 2d Dist. No. 23037, 2010–Ohio–278, ¶¶ 17–18,
citing Black’s Law Dictionary (8 Ed.Rev .2004) 11.
{¶14} Price’s motion to withdraw his plea was filed more than a year after
he originally entered his guilty plea, and nearly eleven months after he was
sentenced, so it is considered a “postsentence” motion. Crim.R. 32.1 provides that
“[a] motion to withdraw a plea of guilty* * * 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.”
A manifest injustice is an exceptional defect in the plea proceedings, State v.
Vogelsong, 3d Dist. No. 5–06–60, 2007–Ohio–4935, ¶ 12, or a “‘clear or openly
unjust act.’” State v. Walling, 3d Dist. No. 17–04–12, 2005–Ohio–428, ¶ 6,
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quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998–Ohio–
271. Additionally, under the manifest injustice standard, “a postsentence
withdrawal motion is allowable only in extraordinary cases.” State v. Smith, 49
Ohio St.2d at 264. Crim.R. 32.1 requires a defendant making a postsentence
motion to withdraw a plea to demonstrate manifest injustice because it is designed
“to discourage a defendant from pleading guilty to test the weight of potential
reprisal, and later withdraw the plea if the sentence was unexpectedly severe.”
State v. Caraballo, 17 Ohio St.3d 66, 67 (1985).
{¶15} This Court has previously stated that “[t]rial courts and thereafter
reviewing courts, when presented with a motion to withdraw a guilty plea brought
after the time for direct appeal or post-conviction relief, should consider first
whether the claims raised in the motion are barred by res judicata. If the claim is
not barred, the court should then apply the manifest injustice standard in
accordance with Crim. R. 32.1.” State v. Reynolds, 3d Dist. No. 12-01-11, 2002-
Ohio-2823, ¶ 27. 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.
(Emphasis added.) State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, ¶ 59.
“Ohio courts of appeals have applied res judicata to bar the assertion of claims in a
motion to withdraw a guilty plea that were or could have been raised at trial or on
appeal.” Id., citing to State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, ¶ 9;
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State v. Totten, 10th App. No. 05AP-278 and 05AP-508, 2005-Ohio-6210, , ¶ 7
(collecting cases).
{¶16} Price did not file an appeal or motion for post-relief conviction
within the mandated time frames, even though all of the information that he claims
was the basis for his motion for withdrawal was available at those times and he
could have raised these issues then. Therefore, his motion is barred by res
judicata. The trial court did not abuse its discretion in denying Price’s motion.
{¶17} And further, as explained by the trial court, even if his plea
withdrawal would not have been barred by res judicata, Price failed to demonstrate
a manifest injustice. The BZP found in Price’s possession was a controlled
substance. See Rodgers, 2011-Ohio-3003, at ¶ 24. This information was a part of
the record long before Price entered his guilty plea. Price’s signed plea agreement
did not specify the type of controlled substance, but stated merely that he was
entering “a plea of GUILTY to a violation of Ohio Revised code, Section
2925.11(A), Aggravated Possession of Drugs, a felony of the third degree, and a
lesser included offense contained within the Indictment, charging a violation of
Ohio Revised code, Section 2925.11(A), Aggravated Possession of Drugs, a
felony of the second degree.” (Aug. 30, 2011 Plea of Guilty). R.C. 2925.11(A)
states, “No person shall knowingly obtain, possess, or use a controlled substance.”
The complained of error which Price alleges invalidated his guilty plea could have
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been easily resolved by the trial court and would not have affected the outcome of
his case.
{¶18} Price never asserts that he would not have pled guilty if the
indictment had been amended, as it was in his co-defendant’s case. Price pled
guilty to a lesser included offense and received a four-year sentence compared to
his co-defendant, who received a seven-year sentence after a jury returned a guilty
verdict to the amended charge. Price has not suffered any prejudice that would
have rendered his guilty plea invalid, or that would have constituted ineffective
assistance of counsel. Both of Price’s assignments of error are overruled.
{¶19} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and ROGERS, J.J., concur.
/jlr
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