State v. Feathers

[Cite as State v. Feathers, 2021-Ohio-4137.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0004
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
DAVID E. FEATHERS,
Trial Court No. 2004 CR 00424
Defendant-Appellant.
OPINION
Decided: November 22, 2021
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
David E. Feathers, pro se, PID# A763-828, Marion Correctional Institution, 940 Marion-
Williamsport Road, P.O. Box 57, Marion, OH 43302 (Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, David E. Feathers, appeals from the judgment of the
Portage County Court of Common Pleas, denying his request to withdraw his guilty plea.
For the following reasons, we affirm the judgment of the lower court.
{¶2} On November 4, 2004, Feathers was indicted for Aggravated Burglary, a
felony of the first degree, in violation of R.C. 2911.11(A)(1) and (2); Felonious Assault, a
felony of the second degree, in violation of R.C. 2903.11(A)(1) and (2); and Domestic
Violence, a felony of the fifth degree, in violation of R.C. 2919.25. He was convicted of these
offenses following a jury trial. On appeal, this court found reversible error relating to the
admission of evidence and remanded for a new trial. State v. Feathers, 11th Dist. Portage
No. 2005-P-0039, 2007-Ohio-3024.
{¶3} Feathers filed a supplemental motion to dismiss the indictment on January 28,
2008, arguing that the Domestic Violence offense arose from different circumstances than
the other two offenses and it should not be joined with those charges in the indictment. The
court denied the motion.
{¶4} On January 31, 2008, an amended indictment was issued, which, inter alia,
changed the level of offense for Domestic Violence to a fourth-degree felony. On May 28,
2008, Feathers entered a plea of guilty to the offenses as charged in the amended
indictment. He was sentenced to consecutive prison terms of eight years for Aggravated
Burglary, four years for Felonious Assault, and one year for Domestic Violence.
{¶5} After receiving judicial release in 2015, a motion to revoke was granted and
the trial court issued an October 23, 2019 judgment ordering Feathers to serve the
remainder of his prison term.
{¶6} Feathers filed a December 14, 2020 Motion to Withdraw Guilty Plea, asserting
his guilty plea was invalid because the indictment was void. The trial court denied this
motion.
{¶7} On appeal, Feathers raises the following assignments of error:
{¶8} “[1.] The trial court abused its discretion in not properly reviewing jurisdictional
defects addressed in the appellant’s motion to withdraw his guilty plea to a void offense to
the prejudice of appellant in failing to take corrective measures and to dismiss the indictment
after defendant successfully demonstrated that the original indictment was obtained on the
basis of false or misleading information and an abuse of grand jury by the prosecution, as
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well as prosecutorial misconduct during the course of the pre trial and trial adjudications, the
net effect of which permeated the entire course of the proceedings in the trial court including
but not limited to the following appeals on remand, and following the guilty plea, conviction
and sentence.
{¶9} “[2.] The appellant unknowingly entered a guilty plea to an invalid amended
indictment when the jurisdiction of the unrelated domestic violence offense was gone.”
(Typographical errors edited throughout for clarity.)
{¶10} We will consider Feathers’ assignments of error jointly since they both relate
to whether his guilty pleas were intelligently and voluntarily entered when there was an
allegedly invalid indictment. Feathers argues that the date and time of the Domestic
Violence offense differed from that of the other two offenses and, thus, should have been
charged in a separate indictment. He further questions whether the facts presented to the
grand jury regarding the date and location of the Domestic Violence offense were accurate
given testimony presented at the trial.
{¶11} Criminal Rule 32.1 provides that “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. Smith,
49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. “This term has
been variously defined, but it is clear that under such standard, a postsentence withdrawal
motion is allowable only in extraordinary cases.” Id. at 264. Appellate review of the present
matter “is somewhat limited as a motion made pursuant to Crim.R. 32.1 is left to the sound
discretion of the trial court.” State v. Carabello, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).
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{¶12} “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. “[I]t is well-established
that claims raised in a post-sentence motion to withdraw a guilty plea that were raised or
could have been raised in a direct appeal may be barred by res judicata.” State v. Carnes,
11th Dist. Trumbull No. 2020-T-0004, 2020-Ohio-3566, ¶ 14; Ketterer at ¶ 59.
{¶13} Feathers raises concerns with the indictment, specifically asserting that he
believes Domestic Violence should not have been indicted together with the other offenses
due to the difference in time and location of the crimes. This is an issue that should have
been properly raised in a prior appeal. See State v. Carnes, 11th Dist. Trumbull No. 2017-
T-0088, 2018-Ohio-2075, ¶ 13 (appellant’s “argument could have been raised in his direct
appeal, as he relies on information that was known or available at that time, to wit: the
allegations on the face of his indictment”). Of note, Feathers did raise the related issue of
whether the offenses could be joined in one trial in a prior appeal, which issue this court
found had been waived since he failed to renew his motion for severance. Feathers, 2007-
Ohio-3024, at ¶ 134-135. Further, it has been held that issues relating to the validity of the
indictment, including the severance of offenses, are waived when a defendant enters a plea
of guilty to the indictment. State v. Patterson, 5th Dist. Stark No. 2003CA00135, 2004-Ohio-
1569, ¶ 13; see also State v. Heise, 8th Dist. Cuyahoga Nos. 108286 and 108776, 2020-
Ohio-662, ¶ 13 (“by failing to timely object to the indictment and by pleading guilty to
aggravated burglary pursuant to a negotiated plea agreement, we find [the defendant] has
waived his right to challenge any alleged defect in the indictment”). Thus, Feathers’
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arguments relating to the indictment have been waived and are barred by the doctrine of res
judicata.
{¶14} Feathers argues that the doctrine of res judicata does not apply because the
indictment was void. “A judgment of conviction based on an indictment which does not
charge an offense is void for lack of jurisdiction of the subject matter and may be successfully
attacked either on direct appeal to a reviewing court or by a collateral proceeding.” State v.
Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416 (1953), paragraph six of the syllabus. However,
“[a] defective indictment renders the charge voidable, not void,” which “does not deprive the
trial court of subject-matter jurisdiction.” (Citations omitted.) State v. Snowden, 11th Dist.
Trumbull No. 2021-T-0008, 2021-Ohio-2885, ¶ 14; State ex rel. Rackley v. Sloan, 150 Ohio
St.3d 11, 2016-Ohio-3416, 78 N.E.3d 819, ¶ 9 (challenges to the validity or sufficiency of an
indictment are “nonjurisdictional in nature”) (citation omitted). A void indictment has been
described as one “setting forth facts which in no conceivable form can constitute a criminal
offense; or if they might constitute an offense, the court issuing the process had no
jurisdiction over such offense or the person charged with the offense.” Id. at ¶ 16, citing
Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918), syllabus. In contrast, a
voidable indictment is one where “a bona fide attempt has been made to charge a possible
offense under the statute, but by reason of some defect or irregularity such charge is per se
insufficient in law.” Id.{¶15} Here, there is no question the offense of Domestic Violence as charged in the
indictment was a valid offense and Feathers has made no demonstration that the court
lacked jurisdiction. The fact that Feathers believed this offense should have been severed
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from the others does not render the indictment void. Thus, the doctrine of res judicata
applies.
{¶16} Feathers also contends the domestic violence offense “was not presented to
the grand jury with the facts that were based on the alleged charges.” This appears to be
based on his assertion that facts presented at his 2005 trial established a different location
of the offenses than the indictment. This argument is somewhat unclear since the indictment
does not state the specific location of the domestic violence offense except to indicate that
it occurred in Portage County. Nonetheless, to the extent that Feathers attempts to raise
issues with the evidence presented at trial, we emphasize that the convictions resulting from
that trial were reversed and Feathers chose to enter a guilty plea to each of the charges in
the amended indictment. There are no grounds to compare the facts presented at a trial to
those presented to the grand jury. Similarly, to the extent Feathers appears to raise an issue
with venue and jurisdiction relating to the location of the offenses, as noted above, the
indictment alleged that the offenses occurred in Portage County and Feathers entered a
plea of guilty under this indictment in the proper venue of the Portage County Court of
Common Pleas.
{¶17} Feathers’ first and second assignments of error are without merit.
{¶18} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, denying Feathers’ request to withdraw his guilty plea, is affirmed. Costs to
be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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