State v. Kimbro , 2014 Ohio 4869 ( 2014 )

[Cite as State v. Kimbro, 2014-Ohio-4869.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010506
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TERRANCE KIMBRO COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 06CR072505
DECISION AND JOURNAL ENTRY
Dated: November 3, 2014
CARR, Judge.
{¶1} Appellant, Terrance Kimbro, appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} On February 8, 2007, the Lorain County Grand Jury indicted Kimbro on a litany
of offenses including murder, felonious assault, and attempted murder, along with attendant
firearm and repeat violent offender specifications. After initially pleading not guilty at
arraignment, Kimbro entered a plea of guilty to the charges in the indictment. The trial court
imposed an aggregate sentence of 18 years to life imprisonment.
{¶3} More than four years after he was sentenced, Kimbro filed a pro se motion to
withdraw his plea. The trial court issued a journal entry denying the motion on October 5, 2012.
On January 7, 2013, Kimbro filed a motion for leave to file a delayed appeal from the October 5,
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2012 order. This Court denied Kimbro’s motion for leave to appeal on the basis that he had
provided insufficient reasons to justify the delay.
{¶4} Kimbro subsequently filed a second pro se motion to withdraw his plea. The trial
court denied the motion on November 12, 2013.
{¶5} Kimbro filed a timely notice of appeal, and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
APPELLANT CONTENDS THAT HIS SIXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED, WHEN
COUNSEL FAILED TO REQUEST A[N] EVIDENTIARY HEARING TO
QUESTION THE WHEREABOUTS OF EXCULPATORY EVIDENCE[.]
ASSIGNMENT OF ERROR II
APPELLANT CONTENDS [PROSECUTORIAL] MISCONDUCT, IN
VIOLATION OF APPELLANT’S FIFTH AMENDMENT [RIGHT] OF DUE
PROCESS BY NOT DISCLOSING EXCULPATORY EVIDENCE IN THE
DISCOVERY[.]
{¶6} In his two assignments of error, Kimbro argues that the trial court erred in
denying his second motion to withdraw his plea. This Court disagrees.
{¶7} This Court has recognized that a successive motion to withdraw a guilty plea filed
pursuant to Crim.R. 32.1 is subject to the doctrine of res judicata. State v. Miller, 9th Dist.
Lorain No. 03CA008259, 2003-Ohio-6580, ¶ 9. “Under the doctrine of res judicata, any issue
that was or should have been litigated in a prior action between the parties may not be
relitigated.” State v. Zhao, 9th Dist. Lorain No. 03CA008386, 2004-Ohio-3245, ¶ 7, citing State
v. Meek, 9th Dist. Lorain No. 03CA008315, 2004-Ohio-1981, ¶ 9. An offender may not raise
issues in a successive motion to withdraw a guilty plea that could have been raised in the initial
motion. Zhao at ¶ 7-8.
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{¶8} As noted above, Kimbro filed a motion to withdraw his guilty pleas in 2012.
After the trial court denied the motion, Kimbro did not file a timely notice of appeal, and his
motion for leave to file a delayed appeal was denied by this Court. Kimbro subsequently filed a
second motion to withdraw his guilty plea in 2013, which was also denied by the trial court.
Now on appeal from the trial court’s denial of that motion, Kimbro advances two arguments
pertaining to his inability to access allegedly exculpatory evidence during discovery. Kimbro
has failed to explain why he was prevented from raising those issues at the time he filed his first
motion to withdraw his guilty plea in 2012. See Zhao at ¶ 8 (“The doctrine of res judicata bars
appellant’s current challenge of the court’s denial of his motion to withdraw his guilty plea
because the issues he raises now could have been fully litigated on direct appeal [] or raised in
his initial motion to withdraw his guilty plea pursuant to Crim.R. 32.1.”). Under these
circumstances, the trial court properly denied the motion as the issues set forth therein were
barred under the doctrine of res judicata. Zhao at ¶ 7-8.
{¶9} Kimbro’s first and second assignments of error are overruled.
III.
{¶10} Kimbro’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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.
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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.
DONNA J. CARR
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
TERRANCE KIMBRO, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.