State v. Cartlidge , 2021 Ohio 3787 ( 2021 )

[Cite as State v. Cartlidge, 2021-Ohio-3787.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-21-06
v.
LAMAR L. CARTLIDGE, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 17 CR 0166
Judgment Affirmed
Date of Decision: October 25, 2021
APPEARANCES:
Lamar L. Cartlidge, Appellant
Stephanie J. Kiser for Appellee
Case No. 13-21-06
SHAW, J.
{¶1} Defendant-Appellant, Lamar L. Cartlidge (“Cartlidge”), pro se, appeals
the March 11, 2021 judgment of the Seneca County Court of Common Pleas
denying his motion to withdraw his guilty plea. We affirm.
Relevant Facts and Procedural History
{¶2} Cartlidge was charged in a superceding indictment with aggravated
trafficking in drugs, a fourth-degree felony (Count One); trafficking in cocaine, a
fifth-degree felony (Count Two); failure to comply with an order or signal of a
police officer, a third-degree felony (Count Three); tampering with evidence, a
third-degree felony (Count Four); possession of cocaine, a fifth-degree felony
(Count Five); aggravated trafficking in drugs, a fourth-degree felony (Count Six);
and aggravated possession of drugs, a fifth-degree felony (Count Seven). Cartlidge
ultimately pled guilty to all counts of the superceding indictment.
{¶3} On September 13, 2018, the trial court sentenced Cartlidge to the
maximum sentence on all counts. The trial court ordered that all of the sentences
be served consecutively, for an aggregate term of 144 months in prison, and that
they also be served consecutively to the days Cartlidge had remaining on post-
release control.
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{¶4} Cartlidge filed a direct appeal to this Court of the September 13, 2018
Judgment Entry of Sentence. We affirmed this judgment on April 8, 2019. See
State v. Cartlidge, 3d Dist. Seneca No. 13-18-33, 2019-Ohio-1283.
{¶5} On January 12, 2021, Cartlidge filed a motion in the trial court to
withdraw his guilty plea pursuant to Crim.R. 32.1. The State opposed Cartlidge’s
motion, and on March 11, 2021, the trial court issued a judgment denying
Cartlidge’s motion to withdraw his guilty plea. The trial court found that his motion
was not predicated on new evidence. The trial court also determined that the proper
venue for raising Cartlidge’s claims was during his direct appeal.
{¶6} It is from this judgment that Cartlidge now appeals, asserting three
assignments of error. For ease of discussion, we will address all of the assignments
of error together.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSE [SIC] ITS DISCRETION WHEN
IT DENIED APPELLANT’S POST-SENTENCE CRIM. R. 32.1
MOTION BASED ON NEW EVIDENCE THAT WAS
ATTACHED TO THE MOTION IN VIOLATION OF 5TH AND
14TH AMENDMENTS DUE PROCESS.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT FAILED TO NOTIFY
THE APPELLANT BEFORE ACCEPTING HIS GUILTY
PLEA TO AN OFFENSE HE COMMITTED WHILE ON POST-
RELEASE CONTROL THAT PURSUANT TO R.C. 2929.141
THAT A PRISON TERM FOR A POST-RELEASE CONTROL
VIOLATION MUST BE SERVED CONSECUTIVELY TO ANY
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PRISON TERM FOR THE NEWLY COMMITTED OFFENSE
IN VIOLATION OF DUE PROCESS UNDER THE 5TH
AMENDMENT.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN IT FAILED TO NOTIFY
THE APPELLANT THAT ANY PRISON SENTENCE
IMPOSED FOR A VIOLATION OF R.C. 2921.331 MUST BE
SERVED CONSECUTIVELY TO ANY PRISON TERM FOR
ANY OTHER OFFENSES BEFORE ACCEPTING HIS
GUILTY PLEA IN VIOLATION OF 5TH AND 14TH
AMENDMENTS UNDER THE U.S. CONSTITUTION.
{¶7} Cartlidge first argues that the trial court abused its discretion when it
denied his post-sentence motion to withdraw his guilty plea based on newly
discovered evidence. Specifically, Cartlidge argues that he submitted evidence to
support his motion that is purportedly outside the record, namely, a transcript of the
plea hearing. Cartlidge maintains that this is evidence which is “dehors the record”
because it was not made a part of the record for his direct appeal. Cartlidge further
argues because of the trial court’s alleged errors during the plea hearing--that the
trial court erred when it failed to notify him of the potential R.C. 2929.141
consecutive sentence and the consecutive sentence pursuant to R.C. 2921.331--that
he entered his guilty plea involuntarily, unintelligently and unknowingly. The State
responds that res judicata bars Cartlidge’s arguments.
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Standard of Review
{¶8} Appellate review of the trial court’s denial of a Crim.R. 32.1 motion to
withdraw a guilty plea is limited to whether the trial court abused its discretion.
State v. Artis, 3d Dist. Logan Nos. 8-19-52 and 8-19-53, 2020-Ohio-4018, ¶ 10; see
State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. An abuse
of discretion suggests the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Artis at ¶ 10, citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Analysis
{¶9} Crim.R. 32.1 provides, “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.” “ ‘A defendant who seeks to
withdraw a plea of guilty after the imposition of sentence has the burden of
establishing the existence of manifest injustice.’ ” State v. Straley, 159 Ohio St.3d
82, 2019-Ohio-5206, ¶ 14, quoting Smith at paragraph one of the syllabus. Under
the manifest injustice standard, a post-sentence withdrawal motion is allowable only
in extraordinary cases. Id. Res judicata bars a defendant from raising claims in a
Crim.R. 32.1 post-sentence motion when those claims were or could have been
raised on direct appeal. Straley at ¶¶ 15, 23; see also Artis at ¶ 11. An exception to
the res judicata bar is when the defendant raises claims that were not available on
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appeal because they are based on evidence outside the record. State v. Brown, 7th
Dist. Columbiana No. 18 CO 0025, 2019-Ohio-2717, ¶ 12; State v. Helton, 3d Dist.
Logan No. 8-08-06, 2008-Ohio-3601, ¶ 13; State v. Fontes, 3d Dist. Union No. 14-
99-03, 1999-Ohio-834, *2. To overcome the res judicata bar, the defendant must
provide new evidence that was not a part of the original record in order to overcome
res judicata. Id.{¶10} Here, Cartlidge asserts that he discovered evidence of the trial court’s
alleged consecutive sentence notification errors in the plea hearing transcript. These
alleged errors regarding what happened at the plea hearing were clearly available as
part of the original trial court record. The transcript of Cartlidge’s plea hearing is
not new facts or evidence, and as such Cartlidge cannot overcome res judicata under
the exception for new evidence, outside the record. Therefore, we find that the trial
court did not err in finding Cartlidge did not present “new evidence” in his motion
to withdraw his guilty plea.
{¶11} Moreover, Cartlidge could have challenged that the trial court’s
alleged consecutive sentence notification errors prevented him from making a
knowing, intelligent, and voluntary guilty plea on direct appeal, but did not do so.
See Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, at ¶23 (“Straley could have
challenged his guilty plea on direct appeal.”), citing State v. Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509, paragraph one of the syllabus. He did argue on direct appeal
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that the trial court erred in ordering him to serve consecutive sentences. See
Cartlidge, 3d Dist. Seneca No. 13-18-33, 2019-Ohio-1283. However, because
Cartlidge’s specific sentence notification arguments could have been but were not
raised on direct appeal, his arguments are barred by the doctrine of res judicata and
he cannot now raise them in a post-sentence motion to withdraw his guilty plea. See
Artis, 3d Dist. Logan Nos. 8-19-52 and 8-19-53, 2020-Ohio-4018. Therefore, the
trial court did not abuse its discretion by denying Cartlidge’s motion to withdraw
his guilty plea. See State v. Mulkey, 9th Dist. Summit No. 29380, 2020-Ohio-3531,
¶ 5 (concluding that “the trial court did not abuse its discretion by denying
[Mulkey’s] motion to withdraw his no-contest plea” since “Mulkey could have
raised this argument” “that his plea was not knowingly, voluntarily, and intelligently
made” “in a direct appeal”); Straley at ¶ 23 (concluding that “the trial court did not
abuse its discretion in finding that res judicata barred Straley’s motion to withdraw
his guilty plea”).
{¶12} For the foregoing reasons, Cartlidge’s three assignments of error are
overruled and the judgment of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlr
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