State v. Lowe

[Cite as State v. Lowe, 2015-Ohio-382.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-481
v. : (C.P.C. No. 07CR-4388)
Louis N. Lowe, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 3, 2015
Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond,
for appellee.
Louis N. Lowe, pro se.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Louis N. Lowe, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion to withdraw his guilty plea.
For the reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 21, 2007, a Franklin County Grand Jury indicted appellant on one
count of aggravated murder with a firearm specification and one count of having a
weapon under disability. On May 15, 2009, appellant entered a plea of guilty to murder,
in violation of R.C. 2903.02, with a three-year firearm specification. The trial court
dismissed the weapon under disability charge. The parties jointly recommended a
sentence of 15 years to life, consecutive to the three-year firearm specification. The trial
No. 14AP-481 2
court followed the recommendation and journalized a judgment of conviction and
sentence on that same date.
{¶ 3} Appellant did not file a direct appeal from that judgment. Appellant,
however, did seek postconviction relief pursuant to R.C. 2953.21. On March 9, 2010,
appellant filed an amended postconviction petition in the trial court setting forth ten
grounds on which appellant claimed he was entitled to relief. The trial court dismissed
appellant's petition without a hearing. This court affirmed the decision of the trial court
in State v. Lowe, 10th Dist. No. 10AP-584, 2011-Ohio-3996.
{¶ 4} Thereafter, on April 1, 2014, appellant filed a motion to withdraw his guilty
plea pursuant to Crim.R. 32.1. On June 16, 2014, the trial court denied appellant's motion
for the stated reason that appellant "failed to raise the alleged error on direct appeal and it
is, therefore, now barred by res judicata." Appellant filed a timely notice of appeal to this
court on June 24, 2014.
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant's assignments of error are as follows:
[I.] The Trial Court failed during the change of plea hearing to
inform Appellant of the right to confront his accusers and to
have his attorney cross examine them, and the right to testify
on his behalf.
[II.] The Trial Court erred and abused its discretion when it
denied Appellant's Motion to Withdraw his Guilty Plea as
being barred by res judicata.
[III.] The Trial Court erred when it denied Appellant's Motion
to Withdraw His Guilty Plea after a review of the record
(transcripts), thus Appellant was not informed about Post
Release Control or the consequence for a violation of Post
Release Control rendering guilty plea void, thus not entering
in a knowingly, voluntarily, or intelligently manner.
III. STANDARD OF REVIEW
{¶ 6} Crim.R. 32.1 permits a motion to withdraw a guilty plea "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."
State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. "Manifest injustice
No. 14AP-481 3
relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of
justice or is inconsistent with the demands of due process." Id.{¶ 7} A motion made pursuant to Crim.R. 32.1 is generally addressed to the sound
discretion of the trial court. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of
the syllabus. Accordingly, an appellate court will ordinarily not reverse a trial court's
denial of a motion to withdraw a plea absent an abuse of discretion. State v. Totten, 10th
Dist. No. 05AP-278, 2005-Ohio-6210, ¶ 5. However, the question whether res judicata
bars claims raised in a motion to withdraw a guilty plea is a question of law. State v.
Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 11. We review questions of law
under a de novo standard. Id., citing EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240,
2005-Ohio-5799, ¶ 15 (10th Dist.); Prairie Twp. Bd. of Trustees v. Ross, 10th Dist. No.
03AP-509, 2004-Ohio-838, ¶ 12.
IV. LEGAL ANALYSIS
A. First and Second Assignments of Error
{¶ 8} The arguments made by appellant in his first and second assignments of
error are closely related. Accordingly, we will consider appellant's first and second
assignments of error together.
{¶ 9} In appellant's first assignment of error, appellant claims the trial court erred
when it denied his motion to withdraw his guilty plea inasmuch as the trial court failed to
inform him that he was waiving certain constitutional rights by pleading guilty. More
specifically, appellant claims that the sentencing judge failed to orally inform him that a
guilty plea constitutes a waiver of his right to confront his accusers and his right to testify
in his own defense. In his second assignment of error, appellant contends the trial court
erred when it ruled that res judicata barred each of the claims raised in appellant's motion
to withdraw his guilty plea.
{¶ 10} "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 on an appeal from that judgment." (Emphasis
sic.) State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. This court
No. 14AP-481 4
has consistently held that res judicata bars a defendant from raising claims in a post-
sentence motion to withdraw his guilty plea that were either raised or could have been
raised in a direct appeal from the judgment of conviction and sentence. State v. Nooks,
10th Dist. No. 14AP-344, 2014-Ohio-4828, citing Muhumed. See also State v. Oluoch,
10th Dist. No. 07AP-45, 2007-Ohio-5560, ¶ 28; State v. Conteh, 10th Dist. No. 09AP-490,
2009-Ohio-6780, ¶ 6.
{¶ 11} When a trial judge fails to explain the constitutional rights set forth in
Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid under a presumption that it
was entered involuntarily and unknowingly. State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748. Had appellant filed a timely notice of appeal to this court from the 2009
judgment of conviction and sentence, this court would have been required to review the
trial transcript to determine whether the trial court complied with Crim.R. 11(C)(2)(c) in
accepting appellant's guilty plea. See Clark; Muhumed. Because appellant failed to
appeal the judgment of conviction and sentence, the judgment became final, and res
judicata barred appellant from subsequently raising the alleged errors in a Crim.R. 32.1
motion to withdraw his guilty plea. Nooks; Muhumed. For this reason, appellant's first
and second assignments of error are overruled.
B. Third Assignment of Error
{¶ 12} In his third assignment of error, appellant contends the trial court erred
when it denied his motion to withdraw his guilty plea inasmuch as the sentencing judge
failed to personally inform him that he was subject to a mandatory term of post-release
control.1 Our review of the May 19, 2009 sentencing entry reveals that the sentencing
court did not impose a term of post-release control.
{¶ 13} An individual sentenced for murder is not subject to post-release control
because that crime is an unclassified felony to which the post-release control statute does
not apply. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 10; R.C. 2967.28.
While the doctrine of res judicata may not bar a claim that the sentencing court failed to
provide proper notice of post-release control, we need not address the merits of that claim
because post-release control was not imposed on appellant. In short, the record here does
1 A certified transcript of appellant's May 2009 plea hearing is not part of the record in this appeal.
No. 14AP-481 5
not support the claimed error. Accordingly, appellant's third assignment of error is
overruled.
V. CONCLUSION
{¶ 14} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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