State v. Newsome , 2021 Ohio 4448 ( 2021 )

[Cite as State v. Newsome, 2021-Ohio-4448.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1137
Appellee Trial Court No. CR0201102959
v.
Darrick Newsome DECISION AND JUDGMENT
Appellant Decided: December 17, 2021
*****
Julie R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Darrick Nesome, Pro se.
*****
DUHART, J.
{¶ 1} Appellant, Darrick Newsome, pro se, appeals the judgment entered by the
Lucas County Court of Common Pleas, denying his motion to withdraw guilty plea. For
the reasons that follow, we affirm the judgment of the trial court.
Statement of the Case and Facts
{¶ 2} On December 2, 2011, appellant was indicted on two counts of aggravated
murder, felonies of the first degree, in violation of R.C. 2903.01(B) and (F), with gun
specifications; three counts of aggravated robbery, felonies of the first degree, in
violation of R.C. 2911.01(A)(1), with gun specifications; two counts of aggravated
burglary, felonies of the second degree, in violation of R.C. 2911.11 (A)(2), with gun
specifications; and two counts of felonious assault, felonies of the second degree, in
violation of R.C. 2903.11(A)(2), with gun specifications.
{¶ 3} On November 16, 2012, appellant entered pleas of guilty pursuant to North
Carolina v. Alford, to one count of involuntary manslaughter, a felony of the first degree,
in violation of R.C. 2903.04(A) and (C), with the attendant firearm specification, and to
two counts of robbery, each a violation of R.C. 2911.02(A)(1) and (B), and each a felony
of the second degree. The parties do not dispute that the robberies to which appellant
pleaded guilty were not directly related to, and, thus, did not constitute predicate offenses
to, the charge of involuntary manslaughter.
{¶ 4} Appellant was sentenced to prison for seven years on the charge for
involuntary manslaughter, for three years on the firearm specification, and for four years
on each count of robbery. All of the terms were ordered to be served consecutively, for
an aggregate sentence of 18 years in prison. No direct appeal from this conviction and
sentence was ever filed.
2.
{¶ 5} In March 2017, appellant filed his first motion to withdraw plea. The trial
court denied the motion on September 11, 2017. On May 6, 2021, some eight and one-
half years after his original plea and sentencing, appellant filed a successive motion to
withdraw guilty plea. In the motion, appellant argued that his plea of guilty to
involuntary manslaughter was contrary to law because he was never found guilty of a
predicate offense of either robbery or burglary. The trial court denied the motion, on
June 16, 2021. This appeal followed.
Assignment of Error
{¶ 6} Appellant asserts the following as his sole assignment of error:
The trial court erred by not reviewing appellant’s Alford plea as a
contractual instrument binding upon the state and by predicating appellant’s
involuntary manslaughter conviction upon nollied [sic] charges, violating
appellant’s Fifth and Fourteenth Amendment constitutional rights and
Article One Section Ten of the Ohio Constitution.
Analysis
{¶ 7} In his assignment of error, appellant argues that his plea agreement was
breached when he was sentenced on a charge of involuntary manslaughter in the absence
of a predicate offense, and that such breach resulted in violations of his “Fifth
Amendment right under the double jeopardy clause,” his “Fourteenth Amendment right
3.
to due process,” and his double jeopardy rights pursuant to Article 1, Section 10 of the
Ohio Constitution.
{¶ 8} Crim.R. 32.1 provides that “[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.”
{¶ 9} This court has recently held that the doctrine of res judicata applies to
motions filed pursuant to CrimR. 32.1. See State v. Hall, 6th Dist. Wood No. WD-19-
084, 2021-Ohio-983, ¶ 7. Under the doctrine of res judicata, “a final judgment of
conviction bars a convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have been raised by the defendant at
the trial, which resulted in that judgment of conviction, or an appeal from that
judgement.” Id. (quotations omitted). With respect to post-sentence motions made
pursuant to Crim.R. 32.1, this doctrine bars claims that were raised or could have been
raised in a prior proceeding. Id.{¶ 10} We review a trial court’s denial of a motion to withdraw a guilty plea under
an abuse of discretion standard. Id. at ¶ 8, citing State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992). To constitute an abuse of discretion, the trial court’s attitude
must have been unreasonable, arbitrary, or unconscionable. Id.
4.
{¶ 11} In considering a post-sentence motion to withdraw a guilty plea, this court
employs the following analytical framework. First, the court must determine whether the
defendant’s conviction was appealed and affirmed on appeal; if the answer is yes, the
trial court has no jurisdiction to consider the post-sentence motion, but if the answer is
no, the court proceeds to the next step. Hall at ¶ 11. In the next step, the court must
determine whether the defendant, in support of his post-sentence motion to withdraw,
relies upon evidence that is contained in the trial court record; if the answer is yes, the
motion is barred by res judicata. Id. at ¶ 12.
{¶ 12} Here, there is no question that appellant’s conviction was never previously
appealed. Thus, we move on to the second step of the analysis, where we must determine
whether appellant relies upon evidence that is contained in the trial record. Hall at ¶ 11-
12. In this appeal, appellant argues in his sole assignment of error that the state and the
trial court improperly predicated the involuntary manslaughter charge to which he
pleaded guilty on nolled charges, and that such impropriety resulted in violations of his
constitutional rights. We conclude that these arguments, and the information upon which
they rely, are based entirely on evidence that is contained in the record from the plea
hearing and from the sentencing hearing, and, thus, were available to him at the time of a
direct appeal. We further conclude that appellant’s failure to raise those arguments on
direct appeal precludes him from raising them—more than eight years later—in a post-
sentence motion to withdraw his guilty plea. See State v. Arab, 6th Dist. Lucas No. L-20-
5.
1119, 2021-Ohio-3378 (claims made in post-sentence motion to withdraw guilty plea that
appellant did not enter into plea and sentencing agreement knowingly, intelligently, and
voluntarily, because he did not understand the ramifications of his pleas, were barred by
res judicata); State v. Cain, 6th Dist. Lucas No. L-20-1126, 2021-Ohio-1841 (claims
made in post-sentence motion to withdraw guilty plea that appellant did not enter into
plea and sentencing agreement knowingly and voluntarily, because he was uninformed
and coerced into pleading guilty, were barred by res judicata); State v. Hall, 6th Dist.
Wood No. WD-19-084, 2021-Ohio-983 (claims made in post-sentence motion to
withdraw guilty plea that trial counsel’s failures led to the guilty plea were barred by res
judicata).
{¶ 13} Because res judicata fully bars consideration of appellant’s motion to
withdraw his plea, we find no abuse of discretion in the denial of appellant’s post-
sentence motion to withdraw his guilty plea. Therefore, appellant’s assignment of error
is found not well-taken.
{¶ 14} For all of the foregoing reasons, the judgment of the Lucas County
Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
6.
State of Ohio
v. Darrick Newsome
L-21-1137
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
7.