State v. Moore ( 2014 )

[Cite as State v. Moore, 2014-Ohio-5682.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100483 and 100484
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-09-521078-A and CR-09-525878
BEFORE: Keough, J., Jones, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: December 24, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
APPELLANT
Robert Moore, pro se
No. 572-298
Grafton Correctional Institution
2400 S. Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In this consolidated appeal, defendant-appellant, Robert Moore, appeals the trial
court’s decision denying his motion to withdraw his guilty plea and to vacate the plea agreement.
For the reasons that follow, we affirm the judgment of the trial court.
I. Procedural History
{¶2} In 2009, Moore was charged in a multi-count indictment under case number
CR-09-521078 with several codefendants relating to various drug-related activities that occurred
between February 13 and 15, 2009.
{¶3} During the course of the case, Moore filed multiple suppression motions, which
were denied after an evidentiary hearing. Approximately a week or two prior to trial, defense
counsel was made aware that another indictment was possibly going to be filed against Moore
stemming from a controlled buy from a confidential informant that also occurred on February 13,
2009. (Tr.1705-1706.) It was discussed between trial counsel and the prosecutor that if Moore
went to trial on the pending case, this second indictment would be filed against Moore. (Tr.
1706.) The trial court indicated to Moore that given the nature of the two cases and in the event
of guilty verdicts in both cases, the court would impose at the very least an aggregate 18-year
sentence. (Tr.12-18.) Moore exercised his right to go to trial, and the state filed the second
indictment — case number CR-09-525878, charging him with other drug-related offenses.
{¶4} Following a week-long jury trial, Moore was found guilty in CR-521078 of all
charges and was facing over 16 years in prison. Following the verdict but before sentencing, a
plea deal was reached in case number CR-525878 that also involved an agreed sentence in
CR-521078. The agreement provided that Moore would plead guilty to drug trafficking in
violation of R.C. 2925.03(A)(1), as charged in Count 1 of the indictment in CR-525878 and
waive any discovery and suppression issues, and appellate rights in that case. (Tr. 1610, 1628).
Moore would also waive his appellate rights on any suppression or trial issues in CR-521078 (tr.
1610) and agree to forfeit vehicles and money. (Tr. 1610). In exchange, the state would nolle
Counts 2 and 3 in CR-525878 and an agreed total sentence of 13 years in prison would be
imposed for both cases.
{¶5} During the beginning of the plea colloquy, the trial court asked Moore whether he
was threatened, promised, forced, or induced by anyone to accept the plea. (Tr. 1614). Moore
responded:
No. I was told by [my attorney] and basically by the prosecutor for me to get my
plea I have to give up my rights, the money that they took from me, drugs. If I
don’t, I’m going to get like 20 years, 20 some years, so basically I have to give up
everything. That’s what I was told to do.
{¶6} The trial court then explained that the court never indicated it was imposing a
20-year sentence. The court reminded Moore of the conversation they had prior to the start of
trial about the potential sentence he was facing — a minimum of 18-years total on both cases.
(Tr. 12-18; 1614-1616). The court then reiterated that it never discussed with anyone a 20-year
sentence. Moore stated he understood the court’s explanation and agreed about the earlier
conversation.
{¶7} The trial court accepted Moore’s plea as presented in case number CR-525878 and
sentenced him to an agreed sentence of nine-years incarceration to run concurrent with the agreed
13-year sentence imposed in case number CR-521078. As part of these agreed sentences, Moore
agreed to forfeiture of vehicles and money, and waived his appellate rights regarding discovery,
suppression, and any issues raised at trial.
{¶8} In September 2009, Moore filed timely notices of appeal in both cases. This court
subsequently dismissed the appeals because the trial court’s sentencing entry indicated that as
part of the agreed-upon sentences, Moore had waived his appellate rights. State v. Moore, 8th
Dist. Cuyahoga Nos. 93934 and 93935 (Sept. 21, 2009).
{¶9} In September 2010, Moore filed a “motion to vacate and void sentence” challenging
the court’s waiver of mandatory fines. He argued that because no affidavit of indigency was
filed prior to sentence, the court erred in waiving the fines; thus, his entire sentence should be
void. The trial court denied his motion. This court reversed the trial court’s decision, but
determined that only the waiver of fines was void; the other aspects of Moore’s sentence
remained intact and resentencing was limited to the imposition of the mandatory fine. State v.
Moore, 8th Dist. Cuyahoga Nos. 96111 and 96112, 2011-Ohio-4246, ¶ 18, aff’d State v. Moore,
135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432 (“Moore I”).
{¶10} A year later in September 2011, Moore filed two motions in CR-525878 —
“Presentencing Motion to Withdraw Guilty Plea” and an “Amended Motion Requesting to
Withdraw Guilty Plea Prior to Resentencing based on Double Jeopardy.” In October 2011, he
filed a “Motion to Amend Defendant’s Timely Presentencing Motion to Withdraw Guilty Plea.”
In these motions, Moore maintained that the firearm specifications were the same under both
indictments and therefore when he was convicted and sentenced in both cases on the firearm
specifications, he was put in jeopardy twice. Moore also moved to vacate and void his judgment
of conviction contending that he should not have been sentenced on the count of possessing
criminal tools in CR-521078 because the jury verdict forms indicated that he was found not
guilty.
{¶11} On November 8, 2011, the trial court filed two journal entries both under
CR-521078. The first journal entry denied Moore’s motion to withdraw his guilty plea
reasoning that Moore was “barred by res judicata as the issue before the court could have been
raised on direct appeal as it is a sentencing issue.” Under separate journal entry, the trial court
also denied Moore’s motion to vacate and void his judgment of conviction finding that “no
evidence has been presented by the defendant to support his claim that the jury found him not
guilty of possession of criminal tools.”
{¶12} Moore appealed these decisions under both case numbers. See State v. Moore, 8th
Dist. Cuyahoga Nos. 97654 and 97655. These appeals were subsequently dismissed. Case
number 97655 was dismissed in December 2011 for lack of a final appealable order — “the trial
court has not ruled on appellant’s motion to vacate. The appeal is premature.”1 Case number
97654 was dismissed in February 2012 for failing to file the record.
{¶13} In November 2011, Moore filed another post-judgment motion — “Motion for
Acquittal Pursuant to Crim.R. 29(C) after Verdict or Discharge of the Jury” contending that the
jury verdict forms were renumbered to his prejudice because Count 7 of the indictment was
changed to “Count 6” on the jury verdict forms when in fact, Count 6 of the indictment pertained
to a codefendant.
{¶14} The trial court denied his motion for acquittal finding that the jury verdict forms
were not renumbered to his prejudice. Moore appealed that decision. State v. Moore, 8th Dist.
1
It appears that the dismissal of this appeal may have been in error. See tr. 1661-1664. The trial court
denied Moore’s motions to withdraw his plea and vacate and void sentence on November 8, 2011. These journal
entries were only filed under CR-521078. Therefore, when Moore appealed the denial of his motion to withdraw
his plea under CR-525878, the docket did not reflect that the trial court ruled on the motion. But looking under
CR-521078, the entry was indeed filed prior to Moore’s appeal. The confusion exists because the trial court’s
journal entry contained the wrong case number. No correction of the record was requested.
Cuyahoga No. 97775, 2012-Ohio-2935. (“Moore II”). This court found that Moore’s appeal
was barred by res judicata because he could have raised this issue in his prior appeal in Moore I.
Id. at ¶ 14. This court nevertheless addressed the assignment of error and found that Moore’s
challenge to the jury verdict forms was untimely and the renumbering of the counts in the jury
verdict forms were to avoid confusion for the jurors, not to the prejudice Moore. Id. at ¶ 15-17.
{¶15} By January 2013, the Ohio Supreme Court had issued its decision affirming this
court’s decision rendered in Moore I. The trial court conducted a hearing for the limited
purpose of resentencing Moore regarding mandatory fines. Appointed counsel was present and
requested the court to continue the resentencing so that Moore could file the requisite affidavit of
indigency and accounting for the purpose of requesting the trial court to waive the mandatory
fines. The trial court agreed and the matter was continued.
{¶16} Subsequently, Moore filed two additional motions — a motion to withdraw his
plea and a motion for a hearing to determine allied offenses. In each motion, Moore contended
that his plea was not made knowingly, intelligently, and voluntarily because the offenses he was
indicted for under CR-525878 were allied to the offenses he was convicted of in CR-521078 and
he was not advised that this violated his right against double jeopardy.
{¶17} At the resentencing in March 2013, the trial court heard arguments from Moore’s
counsel regarding these pro se motions. Because the state had not responded to the arguments
raised by Moore in his motions, the court continued the matter again for resentencing and for a
motion hearing. In the interim, Moore’s counsel filed a formal motion to withdraw Moore’s
plea.
{¶18} Finally, in August 2013, the trial court resentenced Moore for the limited purpose
of accepting Moore’s affidavit of indigency and waiving the mandatory fines as directed by the
Ohio Supreme Court.
{¶19} On this date, the trial court also conducted a hearing on Moore’s motion to
withdraw his plea. Moore maintained in his motion that at the time he pleaded guilty, he did not
know that the offenses indicted for in CR-525878 were allied offenses and subject to merger with
the offenses he was convicted of in CR-521078. He also moved to withdraw his plea because he
was led to believe that he was facing the possibility of an additional 25-years in prison on the
second case; thus, he alleged he was induced into entering a plea on CR-525878. He stated had
he known that the offenses in the two cases would have likely merged for sentencing and he
would not face any additional time, he never would have entered into the plea, which included
waiving his right to appeal.
{¶20} The trial court heard testimony from both Moore and his trial counsel, and also
considered oral arguments from both the defense and the state. The trial court issued a written
decision concluding the issue of allied offenses can only be raised on direct appeal and that
because Moore waived his appellate rights, Moore’s motion was denied. However, the court
stated that even addressing the merits of the motion, Moore did not demonstrate a manifest
injustice as required by Crim.R. 32 to withdraw the plea. The court found that Moore received
the benefit of the bargain and was facing a higher sentence if he did not accept the plea
agreement. Furthermore, the court noted that trial counsel testified that he did not address the
issues of double jeopardy and allied offenses with Moore because in his opinion, those issues did
not exist — at the time of the plea, drug trafficking in violation of R.C. 2925.03(A)(1) was not
necessarily considered to be an allied offense with drug trafficking in violation of R.C.
2925.03(A)(2) or drug possession in violation of R.C. 2925.11(A). See State v. Cabrales, 118
Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 29-33.
{¶21} Moore now appeals, raising one assignment of error through counsel. Moore
raises three additional assignments of error, pro se, after obtaining leave from this court. Some
of the assignments of error will be addressed together.
II. Withdraw of Plea
{¶22} In the assignment of error raised by counsel, Moore contends that his “guilty plea
was neither knowing nor intelligent because it was prompted by misinformation about the
applicable law and the proper sentence that could be imposed.”
{¶23} Crim.R. 32.1 authorizes the postconviction withdrawal of a plea only to correct a
manifest injustice. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). The
defendant bears the burden of proving manifest injustice. Id. A defendant can only establish a
manifest injustice in “extraordinary cases.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977), paragraph one of the syllabus. “‘A manifest injustice has been defined by the Ohio
Supreme Court as a “clear or openly unjust act.”’” State v. Sage, 2d Dist. Montgomery No.
25453, 2013-Ohio-3048, ¶ 16, quoting State v. Moore, 2d Dist. Montgomery No. 24387,
2011-Ohio-4546, ¶ 9, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699
N.E.2d 83 (1998). “Although Crim.R. 32.1 does not prescribe a time limitation, an ‘undue delay
between the occurrence of the alleged cause for withdrawal of the guilty plea and the filing of a
motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and
militating against granting of the motion.’” Stage v. Nooks, 10th Dist. Franklin No. 10AP-108,
2010-Ohio-2982, ¶ 6, quoting Smith at paragraph three of the syllabus. The determination of
whether the defendant has sustained his burden is committed to the sound discretion of the trial
court and will not be disturbed on appeal, absent an abuse of discretion. State v. Caver, 8th Dist.
Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, citing Smith at paragraph two of the
syllabus.
{¶24} Reviewing the motion to withdraw filed with the trial court, the transcript of the
proceedings, and the brief on appeal, Moore appears to challenge that he was denied effective
assistance of counsel at the time of the plea in 2009. Moore contends that he was induced into
entering into the plea agreement based on his trial counsel’s failure to correctly advise him
regarding the penalty he was facing under the second indictment.
{¶25} Moore maintains that at the time he pleaded guilty, he did not know that the
offenses he allegedly committed on February 13, 2009 — both charged in CR-521078 and
525878 — were allied offenses; thus, under the Double Jeopardy Clauses of the State and
Federal Constitutions, and the law in the state of Ohio, the state is barred from obtaining
convictions on at least two of the three charges in the second indictment as well as the firearm
specifications related to all three charges. He argues that had he been correctly advised of the
Double Jeopardy and allied offense implications of the second indictment — that drug
possession and at least one of the drug trafficking counts were allied in the first indictment — he
would have never pled guilty in CR-525878 and forfeited his right to a direct appeal in
CR-521078.
{¶26} Ineffective assistance of counsel is a proper basis for seeking a postsentence
withdrawal of a guilty plea. State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d
607, ¶ 8 (8th Dist.), citing State v.Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d
509, ¶ 18 (10th Dist.). When an alleged error underlying a motion to withdraw a guilty plea is
the ineffective assistance of counsel the defendant is required to demonstrate that (1) his
counsel’s performance was seriously flawed and deficient and (2) that there is a reasonable
probability that, but for counsel’s errors, he would not have pled guilty. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Xie, 62 Ohio St.3d
at 524, 584 N.E.2d 715. “[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.”
Strickland at 690.
{¶27} After reviewing the pertinent law at the time of Moore’s plea and the transcript of
the proceedings, we conclude that the trial court did not abuse its discretion in denying Moore’s
motion to withdraw because (1) Moore’s motion is arguably barred by res judicata, (2) Moore is
attempting to appeal an agreed sentence, and (3) Moore has not demonstrated that counsel was
deficient; thus, unable to satisfy his burden of demonstrating that a manifest injustice has
occurred.
A. Res Judicata
{¶28} The trial court did not abuse its discretion in denying Moore’s motion to withdraw
his plea because the motion is arguably barred by res judicata. “Res judicata prevents repeated
attacks on a final judgment and applies to all issues that were or might have been litigated.”
State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 16, citing State v. Brown, 8th
Dist. Cuyahoga No. 84322, 2004-Ohio-6421.
{¶29} Moore waived his appeal rights in these cases regarding issues pertaining to
discovery, suppression, and trial. Nothing precluded Moore from filing an appeal challenging
whether he knowingly, voluntarily, and intelligently entered into the plea agreement in 2009.
Although we recognize that this court dismissed his direct appeal, the appeal should have only
been dismissed insofar as it challenged any pretrial or trial issues.
{¶30} Furthermore, res judicata would also prohibit Moore’s appeal because this is an
appeal from his fifth motion to either withdraw his plea or vacate a void sentence. “‘The doctrine
of res judicata is applicable to successive motions to withdraw a guilty plea under Crim.R.
32.1.’” State v. Steinke, 8th Dist. Cuyahoga No. 100345, 2014-Ohio-2059, ¶ 20, quoting State v.
Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, ¶ 13.
{¶31} Moore challenged the trial court’s imposition of court costs in 2010, but did not
make any argument challenging his plea. Again, in 2011, he filed multiple motions seeking to
withdraw his plea and vacate his sentence. Because we recognize that the appeal from the
November 8, 2011 journal entry denying his motion to withdraw his plea was possibly dismissed
erroneously, this court will not use the doctrine of res judicata to bar Moore’s appeal in this
matter. See, e.g., State v. Holmes, 8th Dist. Cuyahoga No. 100388, 2014-Ohio-3816, ¶ 23,
citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 25-27.
However, other reasons exist which require this court to affirm the trial court’s decision denying
his motion to withdraw his plea.
B. Agreed Sentence
{¶32} The underlying basis for which Moore requests his plea to be withdrawn is that the
offenses contained in CR-525878 are allied offenses with the offenses contained in CR-521078.
Moore contends, therefore, that he was not facing any additional sentence and the misinformation
about the potential additional 25-year jail sentence for the second indictment induced him into
taking the plea, which included waiving his appellate rights.
{¶33} The record demonstrates that the trial court expressly addressed this issue with
Moore at the beginning of the plea colloquy. See tr. 1614-1616. In fact, the court advised
Moore prior to the trial that if he was convicted of all charges in both cases, he faced a minimum
of 18 years. (Tr. 12-18.)
{¶34} Even if the offenses were allied, R.C. 2953.08(D) forecloses review of the actual
sentence imposed by the trial court pursuant to an agreed sentence upon entering a plea of guilty.
This court and other districts have concluded that agreed sentences, even those containing allied
offense issues, are not appealable. See State v. Stansell, 8th Dist. Cuyahoga No. 75889, 2000
Ohio App. LEXIS 1726, *12-13 (Apr. 20, 2000). Therefore, Moore could not have appealed his
sentence, raising these allied offense issues because it was an agreed sentence. The effect of the
agreed sentence also overrules Moore’s first pro se assignment of error challenging the court’s
discretion in sentencing him on duplicitous indictments that violate the double jeopardy clause.
C. Deficient Performance/Manifest Injustice
{¶35} Reaching the merits of the assignment of error, we find that the trial court did not
abuse its discretion in denying Moore’s postconviction motion to withdraw his plea. Moore has
not demonstrated that his trial counsel was seriously flawed or deficient in failing to address
double jeopardy and allied offense issues regarding the second indictment sufficient to withstand
his burden of proving that a manifest injustice occurred.
{¶36} The Double Jeopardy Clause is promulgated under the Fifth Amendment to the
United States Constitution and Article I, Section 10 of the Ohio Constitution and it “protect[s] a
defendant from successive prosecutions and multiple punishments for the same offense.” State
v. Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶ 12, citing State v. Kelly, 7th
Dist. Columbiana No. 08 CO 23, 2009-Ohio-1509, ¶ 18.
“[T]he successive prosecution branch of the Double Jeopardy Clause prohibits the
state from trying a defendant for a greater offense after a conviction of a lesser
included offense and from twice trying a defendant for the same offense.” State
v. Morton, Montgomery App. No. 20358, 2005-Ohio-308, ¶ 8 (internal quotations
and additional citations omitted). In comparison, “[u]nder the ‘cumulative
punishment’ prong, double jeopardy protections do ‘no more than prevent the
sentencing court from prescribing greater punishment than the legislature
intended.’” State v. Coe, Stark App. No. 2009 CA 00050, 2010-Ohio-1840, ¶
109, quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L. Ed.2d
535 (1983).
Mullins at ¶ 12.
{¶37} In this case, Moore contends that the second indictment falls under both prongs of
the double jeopardy clause; thus, trial counsel was deficient for failing to explain, address, or
argue these issues before the trial court. According to Moore, had trial counsel advised him
properly that the second indictment may not have subjected him to any additional sentence, he
would not have entered into the plea agreement and agreed sentence.
{¶38} First, we must determine whether the second indictment violated his right against
successive prosecutions. “To determine whether a subsequent prosecution is barred by the
Double Jeopardy Clause of the Fifth Amendment, a court must first apply the Blockburger [v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306] test.” State v. Tolbert, 60 Ohio
St.3d 89, 573 N.E.2d 617 (1991). “The applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger at 304. “If the application of the test reveals that the
offenses have identical statutory elements or that one is a lesser included offense of the other, the
subsequent prosecution is barred.” Tolbert at paragraph one of the syllabus.
{¶39} In support of his argument that the second indictment was barred, Moore relies on
State v. Edwards, 8th Dist. Cuyahoga Nos. 94568 and 94929, 2011-Ohio-95, and Rashad v. Burt,
108 F.3d 677 (6th Cir.1997), where the courts found that the double jeopardy clause prohibiting
successive prosecutions barred the prosecutions in subsequent indictments.
{¶40} In Rashad, the defendant was prosecuted for possession with intent to deliver
cocaine found in his automobile after he had been convicted for possession with intent to
distribute cocaine found in his house; both convictions stemmed from the execution of a single
search warrant. Id. at 678. Similarly, in Edwards, the defendants were charged with drug
trafficking, drug possession, and possession of criminal tools based on a search of one
defendant’s car. After the defendants had entered into a plea and were sentenced, a new
indictment was filed based on additional drugs that were subsequently located in the car. This
court held that the defendants in Edwards had a sense of finality when they entered into their
plea.
{¶41} In this case, and unlike Edwards and Rashad, both indictments were pending prior
to trial commencing. The parties, including Moore, were well aware of the facts and
circumstances surrounding each indictment. Therefore, there was no sense of finality after
Moore was found guilty of the first indictment. Furthermore, and as explained by Moore’s trial
counsel, the two events did not stem from one search warrant or arrest, but rather different events
involving different offenses, drug amounts, and locations.
{¶42} Applying the Blockburger test, the second indictment charged Moore with drug
trafficking in violation of R.C. 2925.03(A)(1), whereas he was charged under the first indictment
with drug trafficking in violation of R.C. 2925.03(A)(2). The former requires it to be proven
that the offender intends to sell the controlled substance, whereas trafficking under R.C.
2925.03(A)(2) does not. According to the Blockburger “same elements” test, Moore’s right
against successive prosecutions was not violated.
{¶43} Regarding the multiple punishment prong of the Double Jeopardy Clause, Moore
relies on State v. Johnson, 128 Ohio St.3d 153, 161-162, 2010-Ohio-6314, 942 N.E.2d 1061, in
maintaining that the drug trafficking offenses in CR-525878 are allied with the drug trafficking
and possession offenses in CR-521078. However, State v. Cabrales, 118 Ohio St.3d 54,
2008-Ohio-1625, 886 N.E.2d 181, governed allied offenses at the time these offenses occurred
and at the time of the plea and sentencing.
{¶44} Under Cabrales, the Ohio Supreme Court relaxed the previous standard by
providing that “[i]nstead, if, in comparing the elements of the offenses in the abstract, the
offenses are so similar that the commission of one offense will necessarily result in commission
of the other, then the offenses are allied offenses of similar import.” Id. at ¶ 26. In Cabrales,
the Ohio Supreme Court expressly addressed those offenses that Moore claims are allied in his
case. The court held that drug trafficking in violation of R.C. 2925.03(A)(1) was not necessarily
allied with drug trafficking in violation of R.C. 2925.03(A)(2), and that drug trafficking under
the (A)(1) section was not necessarily allied with drug possession in violation of R.C.
2925.11(A). Id. at ¶ 29-33. Accordingly, Moore’s offenses were not allied offenses under
Cabrales.
{¶45} Trial counsel testified that he did not discuss the issue of allied offenses or double
jeopardy with Moore because he did not think an issue existed and that the two offenses were not
subject to merger because, as he explained,
We did not discuss double jeopardy. We did not discuss allied offenses. After
careful analysis of the facts that I knew of the case, about the first and the second
case, given the separate dates, separate times, separate amounts, separate
witnesses, it was my analysis that those were separate incidents and they did not
qualify for merger, so I did not have that discussion.
(Tr. 1709-1710.)
{¶46} Trial counsel testified that he had approximately 23-years experience as an attorney
and primarily represented individuals charged with drug-related offenses. Given counsel’s
experience and explanation regarding why he did not believe the offenses were subject to merger,
considering his knowledge of the law as it existed at the time, counsel’s performance was not
deficient. Counsel was well aware of the effect of allied offenses and merger because various
counts in CR-521078 were merged for sentencing. Finally, Cabrales would have prevented the
trial court from merging the drug trafficking offense in CR-525878 with any of the other offenses
in CR-521078. Based on the foregoing, Moore has not demonstrated that his trial counsel was
deficient.
{¶47} Moreover, Moore has failed to meet his burden of demonstrating that a manifest
injustice occurred. Moore entered into an agreed sentence after being found guilty by a jury of
two counts of drug trafficking, drug possession, and one count of possessing criminal tools, with
each count containing firearm specifications. Moore was facing over 16 years in prison under
this indictment alone. The fact that he received an agreed 13-year sentence under both cases
demonstrates that Moore received the benefit of the bargain.
{¶48} Based on the foregoing reasons, including the delay in alleging that trial counsel
was deficient, the trial court did not abuse its discretion in denying Moore’s motion to withdraw
his plea based on a claim of ineffective assistance of counsel. Accordingly, Moore’s assignment
of error raised by counsel and his first assignment of error raised pro se are overruled.
III. Second and Third Pro Se Assignments of Error
{¶49} In his second assignment of error raised pro se, Moore contends that the prosecutor
committed “prosecutorial misconduct when she questioned Officer Todd Clark concerning
evidence containing [sic] to the case he had not actually been charge [sic] without being formal
[sic] charge [sic].” In his third assignment of error raised pro se, Moore contends that he was
denied “effective assistance in violation of his Sixth Amendment rights to the United States
Constitution due to trial counsel’s failure to move for a mistrial due to [the] prosecutor
present[ing] unindicted evidence before the court.”
{¶50} Moore’s second and third pro se assignments of error are summarily overruled
because the issues raised are defeated by the underlying plea agreement waiving his right to
appeal issues that arose at trial in case number CR-521078. Accordingly, the assignments of
error are overruled.
{¶51} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR