State v. Conner

[Cite as State v. Conner, 2012-Ohio-3579.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98084
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE CONNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-521352
BEFORE: Jones, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: August 9, 2012
FOR APPELLANT
Andre Conner, Pro se
Inmate #570-939
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Andre Conner, appeals the trial court’s denial of his
motion to withdraw his guilty plea. We affirm.
{¶2} In 2009, Conner pleaded guilty to two counts of attempted murder with
five-year firearm specifications and was sentenced to a total of 12 years in prison. He
appealed, arguing that he had not been properly informed of postrelease control. We
affirmed his conviction, finding that the trial court substantially complied with Crim.R. 11
in informing Conner about the mandatory nature of postrelease control. State v. Conner,
8th Dist. No. 93953, 2010-Ohio-4353.
{¶3} In February 2012, Conner moved to withdraw his guilty pleas, which the state
opposed. The trial court denied his motion and Conner now appeals, pro se, raising the
following assignment of error for our review:
[I.] The trial court committed [an abuse of discretion] when it denied the
appellant’s motion to withdraw his [guilty] plea without holding a hearing
first and when it [applied] the doctrine of res judicata in violation of
appellant’s due process rights under the 14th and 6th Amendment[s] to the
U.S. Constitution and Article I, Section 10 & 16 of the Ohio Constitution.
{¶4} Conner argues that the trial court should have held a hearing on his motion to
withdraw his guilty pleas and erred by finding that res judicata applied.
{¶5} A post-sentence motion to withdraw a guilty plea is governed by the
“manifest injustice” standard. Crim.R. 32.1. A manifest injustice has been defined as
a “clear or openly unjust act,” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208,
1998-Ohio-271, 699 N.E.2d 83, meaning that a post-sentence withdrawal motion to
withdraw a guilty plea is allowable only in extraordinary cases. State v. Smith, 49 Ohio
St.2d 261, 264, 361 N.E.2d 1324 (1977). Because the decision of whether an injustice
exists requires an examination of the underlying facts asserted in the motion, we review a
trial court’s refusal to allow a post-sentence motion to withdraw a guilty plea for an abuse
of discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992); State v.
Bankston, 8th Dist. No. 92777, 2010-Ohio-4496, ¶ 50.
{¶6} The trial court must hold a hearing on a post-sentence motion to withdraw a
guilty plea only “if the facts alleged by the defendant, accepted as true, would require that
the defendant be allowed to withdraw the plea.” State v. Barrett, 10th Dist. No.
11AP-375, 2011-Ohio-4986, ¶ 9, citing State v. Williams, 10th Dist. No. 03AP-1214,
2004-Ohio-6123.
{¶7} We see no error in the trial court’s decision to deny Conner’s motion without
holding a hearing. Conner argued in his motion that he agreed to an 8-year prison
sentence so the court erred by sentencing him to 12 years in prison; he did not understand
that he would receive 5 years on the firearm specification; and he did not understand the
nature of his plea. But the doctrine of res judicata bars all claims raised in a Crim.R.
32.1 post-sentence motion to withdraw a guilty plea that were raised or could have been
raised on direct appeal. State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, 935
N.E.2d 9, ¶ 59; State v. Waite, 8th Dist. No. 96954, 2012-Ohio-489, ¶ 7. Each of
Conner’s claims could have been raised on direct appeal.
{¶8} Moreover, a trial court has no authority to consider a motion to withdraw a
guilty plea subsequent to an appeal and an affirmance by the appellate court, because
Crim.R. 32.1 “does not confer upon the trial court the power to vacate a judgment which
has been affirmed by the appellate court, for this action would affect the decision of the
reviewing court, which is not within the power of the trial court to do.” Waite at id.citing Ketterer at ¶ 61.
{¶9} Therefore, not only are Conner’s claims barred by res judicata, but the trial
court lacked authority to consider his motion. That being said, any error the trial court
committed by ruling on the motion was harmless; the trial court should have simply
dismissed the motion. Waite at ¶ 9.
{¶10} Conner had the opportunity to raise alleged errors regarding his plea hearing
on direct appeal. Because he did not, and we affirmed his conviction on appeal, he is
now barred by res judicata from raising such errors in a subsequent appeal.
{¶11} The sole assignment of error is overruled.
{¶12} Judgment 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. 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.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR