State v. Hughes , 2012 Ohio 706 ( 2012 )

[Cite as State v. Hughes, 2012-Ohio-706.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97311
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH HUGHES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-398499
BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 23, 2012
FOR APPELLANT
Kenneth Hughes, pro se
Inmate #A406-858
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Appellant, Kenneth Hughes, appeals from the judgment of the Cuyahoga Court
of Common Pleas denying his motion to withdraw his guilty plea. For the following reasons,
we affirm.
{¶2} Appellant was indicted on November 8, 2000 and charged with two counts of
aggravated murder pursuant to R.C. 2903.01, each including a mass murder specification and
firearm specifications; attempted aggravated murder pursuant to R.C. 2923.02/2903.01 with
firearm specifications; two counts of having a weapon while under disability pursuant to R.C.
2923.13 with two firearm specifications on Count 5 only; and two counts of carrying a
concealed weapon pursuant to R.C. 2923.12.
{¶3} On May 17, 2001, appellant waived his constitutional right to a jury trial, and in
accordance with R.C. 2945.06, a three-judge panel of the Cuyahoga Court of Common Pleas
was convened. Appellant entered pleas of guilty to aggravated murder with a mass murder
specification and a three-year firearm specification as amended in Count 1 and aggravated
murder with a mass murder specification as amended in Count 2. After hearing evidence, the
panel found appellant guilty. The court then heard evidence with respect to mitigation and
sentenced appellant, in accordance with his plea agreement, to a prison term of life without the
possibility of parole for 30 full years, with three years on the firearm specification to run
consecutively on Count 1 and life imprisonment without the possibility of parole for 30 years on
Count 2. The sentences on each of Counts 1 and 2 to be served consecutively. At no time did
the court not inform appellant that, pursuant to R.C. 2929.18(A)(3)(a), he could be fined up to
$25,000 for each felony to which he pled guilty. However, the court did not impose any such
fine.
{¶4} On January 16, 2003, appellant appealed his sentence to this court asserting,
among other arguments, that his guilty plea was not knowingly, intelligently, and voluntarily
entered. State v. Hughes, 8th Dist. No. 81019, 2003-Ohio-166, 2003 WL 125252, at ¶ 3
(“Hughes I”). This court affirmed the panel’s sentence, determining that “based on the totality
of the circumstances * * * the lower court succeeded in securing a knowing, intelligent, and
voluntary plea.” Id. at ¶ 23.
{¶5} On August 7, 2009, appellant filed a motion to withdraw his guilty plea as well
as a motion to vacate and/or set aside his guilty plea, claiming that the trial court did not
properly sentence him to postrelease control. The Cuyahoga County Court of Common Pleas
denied each motion.
{¶6} On August 22, 2011, appellant filed a second motion to withdraw his guilty plea,
pursuant to Crim.R. 32.1, which the trial court denied. Appellant brought the present appeal
advancing the following sole assignment of error:
{¶7} “The trial court erred when it denied appellant’s motion to vacate his guilty
plea.”
{¶8} In support of his assertion that the trial court erred by denying his Crim.R. 32.1
motion to withdraw his guilty plea, appellant claims that he did not knowingly, intelligently, or
voluntarily enter his guilty plea because the trial court did not substantially comply with Crim.
R. 11(C)(2)(a) during his plea hearing when it failed to inform him of the potential maximum
fines associated with the counts to which he pled guilty. Appellant further argues that his
counsel was ineffective during the hearing. Both of these arguments lack merit.
{¶9} 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. State v. Ketterer, 126
Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967), paragraph nine of the syllabus. “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 State v. McGee, 8th Dist. No. 91638,
2009-Ohio-3374, 2009 WL 1965292, ¶ 9. This court has consistently recognized that the
doctrine of res judicata bars all claims raised in a Crim.R. 32.1 motion that were raised, or could
have been raised, in a prior proceeding, including a direct appeal. State v. Grady, 8th Dist. No.
96523, 2011-Ohio-5503, 2011 WL 5118455, ¶ 9. In State v. Fountain, 8th Dist. Nos. 92772 and
92874, 2010-Ohio-1202, 2010 WL 1110568, ¶ 9, this court held that “Indeed, the right to
withdraw a plea is not absolute.” Fountain. Furthermore, “the application of res judicata to a
motion to withdraw is not impacted by a void sentence.” Fountain. Thus, res judicata will
apply when a defendant brings piecemeal claims in successive motions to withdraw a guilty plea
that could have been raised on direct appeal. See, e.g., Fountain at ¶ 10.
{¶10} In the case sub judice, on direct appeal of his sentence, appellant claimed that he
did not knowingly, intelligently, or voluntarily enter into his guilty plea because the court failed
to inform him of its statutory duties flowing from his guilty plea. Hughes I, 2003-Ohio-166, ¶
17-19. After finding that the trial court substantially complied with the nonconstitutional
requirements of Crim.R. 11(C)(2), this court denied appellant’s claim, holding that, “the lower
court succeeded in securing a knowing, intelligent, and voluntary plea.” Id. at ¶ 18-23.
Therefore, any claim involving facts that existed at the time of the decision regarding the trial
court’s failure to substantially comply with the requirements of Crim.R. 11(C)(2), such as its
omission of a maximum possible fine, is barred by res judicata. This court has repeatedly held
that claims concerning the effectiveness of counsel advanced after affirmance of a defendant’s
plea and sentence on direct appeal are also barred by res judicata for this same reason. State v.
Holmes, 8th Dist. No. 96479, 2011-Ohio-5848, 2011 WL 5509199, ¶ 8-11. See, e.g., State v.
Brown, 8th Dist. No. 84322, 2004-Ohio-6421, 2004 WL 2756273, ¶ 8-12 (“[Defendant’s]
claims of ineffective assistance of counsel are based on evidence in the record, [which] should
have been raised on direct appeal, and are barred by res judicata”). Appellant’s assignment of
error is overruled.
{¶11} Thus, for the foregoing reasons, the judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said lower court 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.
COLLEEN CONWAY COONEY, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR