State v. McCann

[Cite as State v. McCann, 2013-Ohio-2992.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA18
:
vs. :
: DECISION AND JUDGMENT
FLOYD C. MCCANN, : ENTRY
:
Defendant-Appellant. : Released: 07/02/13
_____________________________________________________________
APPEARANCES:
Mark J. Miller, Shaw & Miller, Columbus, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert
C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton,
Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from the Lawrence County Court of Common
Pleas’ denial of Floyd McCann’s post-sentence motion to withdraw his
guilty plea. On appeal, McCann (Appellant herein) raises two assignments
of error, arguing that 1) the trial court erred in denying his motion to
withdraw his guilty plea because evidence which was potentially
exculpatory was never disclosed to him; and 2) the trial court abused its
discretion in failing to hold a hearing on his motion to withdraw his guilty
plea.
Lawrence App. No. 12CA18 2
{¶2} Because we conclude that the arguments raised under
Appellant’s first assignment of error are barred by the doctrine of res
judicata, Appellant’s first assignment of error is overruled. Likewise,
because Appellant’s arguments are barred by the doctrine of res judicata, we
cannot conclude that the trial court erred in failing to hold a hearing on
Appellant’s motion and, therefore, his second assignment of error is also
overruled. Accordingly, the decision of the trial court is affirmed.
FACTS
{¶3} We recount the facts as set forth in our prior consideration of
this matter in State v. McCann, 4th Dist. No. 10CA12, 2011-Ohio-3339. On
January 7, 2009, Mark Robinson (“Robinson”) heard a loud noise, which he
assumed was an animal being struck by a vehicle on the road in front of his
home. Robinson went to locate the downed animal, but found nothing. As he
turned back toward his home, Robinson was struck in the back by a .22
caliber bullet.
{¶4} At that same time, Appellant had been shooting his .22 caliber
rifle at a box he had stationed on his front porch. The backdrop of
Appellant's target was Robinson's property. Though ballistics were
inconclusive, law enforcement was able to establish the trajectory of a bullet
Lawrence App. No. 12CA18 3
that had traveled from Appellant's porch to the location where Robinson had
been shot. Robinson is now paralyzed from the waist down.
{¶5} Law enforcement arrested Appellant and the Lawrence County
Grand Jury indicted him for felonious assault and having weapons under
disability. Appellant was also serving a term of community control, which
the state sought to revoke. Appellant waived his statutory speedy trial rights.
The grand jury subsequently indicted Appellant on a single count of
felonious assault, with a firearm specification. After consolidating the two
indictments, Appellant filed several pre-trial motions. Eventually, Appellant
waived his statutory speedy trial rights relating to the second indictment.
{¶6} In exchange for the state agreeing to dismiss the first indictment
and the pending motion to revoke Appellant's community control, Appellant
entered an Alford plea to the second indictment. Appellant stipulated to the
facts within the indictment, but contested that he had knowingly shot
Robinson. The trial court questioned Appellant on his motives for entering
such a plea, and ultimately accepted his plea, finding him guilty of felonious
assault with a firearm specification. The trial court sentenced Appellant to
10 years of incarceration, and Appellant filed a direct appeal of his
conviction and sentence.
Lawrence App. No. 12CA18 4
{¶7} In his direct appeal, Appellant raised two arguments, essentially
contending that 1) the trial court erred in accepting his Alford plea, claiming
there was no evidence that he intentionally shot the victim; and 2) he was
denied the effective assistance of counsel. We found no merit to the
assignments of error raised by Appellant and affirmed the decision of the
trial court in State v. McCann, supra. Subsequently, however, Appellant
filed an application for the reopening of his appeal, raising four assignments
of error therein.
{¶8} We found merit in only one of the assigned errors, which
asserted that the trial court failed to properly advise Appellant regarding
post-release control. Although Appellant argued that such error required
that his plea be vacated, we disagreed, stating that “the proper remedy would
not be to vacate McCann’s plea, as he requests, but rather to find that portion
of his sentence is void and remand the case to the trial court to resentence
him under R.C. 2929.191.” State v. McCann, 4th Dist. No. 10CA12, ¶ 26
(July 6, 2012) (Decision and Judgment Entry on Reopening). As such, the
matter was remanded for the limited purpose of properly imposing post
release control.
{¶9} After the matter was remanded, Appellant filed a motion in the
trial court in the form of a public records request, seeking disclosure of BCI
Lawrence App. No. 12CA18 5
evidence, which motion was denied by the trial court on August 8, 2012.1
Then, on August 9, 2012, Appellant filed another motion in the trial court
seeking to “invalidate his plea agreement as unconstitutional.” The trial
court denied Appellant’s motion without a hearing on August 14, 2012,
based upon the reasoning that “a defendant does not have a right to litigate
his claim indefinitely,” and that the motion was “outside Appellate
Procedures and Civil Rules.” It is from this decision that Appellant brings
his current appeal, assigning two errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO WITHDRAW GUILTY PLEA BECAUSE EVIDENCE
WHICH WAS POTENTIALLY EXCULPATORY WAS NEVER
DISCLOSED TO HIM.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
HOLD A HEARING ON APPELLANT’S MOTION TO
WITHDRAW HIS GUILTY PLEA.”
ASSIGNMENT OF ERROR I
{¶10} In his first assignment of error, Appellant contends that the
trial court erred in denying his motion to withdraw his guilty plea, in which
he asserted that potentially exculpatory evidence was never provided to him.
Specifically, Appellant claims that the following exculpatory evidence
1
Appellant filed an appeal from that matter, State v. McCann, Lawrence App. No. 12CA17, which this
Court dismissed as untimely filed on December 6, 2012.
Lawrence App. No. 12CA18 6
exists, but was not disclosed to him: 1) collection of data; 2) digital photos;
and 3) measurements and laser readings for bullet trajectory. He claims that
the existence of this evidence was alluded to in a search warrant
receipt/inventory, an investigative report, and also in testimony given at a
motion hearing prior to entering his plea.
{¶11} Crim.R. 32.1, which governs the withdrawal of guilty pleas,
provides as follows:
“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.”
{¶12} Under the rule, a trial court may grant a post-sentence motion
to withdraw a guilty plea only to correct a manifest injustice. This decision
lies within the sound discretion of the trial court. State v. Xie, 62 Ohio St.3d
521, 526, 584 N.E.2d 715 (1992). Accordingly, we review that decision
under the deferential abuse of discretion standard. An abuse of discretion
involves more than an error of judgment; it connotes an attitude on the part
of the court that is unreasonable, unconscionable, or arbitrary. State v.
Lessin, 67 Ohio St.3d 487, 494, 620 N.E.2d 72 (1993); Rock v. Cabral , 67
Lawrence App. No. 12CA18 7
Ohio St.3d 108, 112, 616 N.E.2d 218 (1993). An abuse of discretion
involves far more than a difference in opinion. The term discretion itself
involves the idea of choice, of an exercise of the will, of a determination
made between competing considerations. In order to have an “abuse” in
reaching such determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but
perversity of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias. State v. Jenkins, 15 Ohio
St.3d 164, 222, 473 N.E.2d 264, (1984), certiorari denied, 472 U.S. 1032(1985); Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248, 1252 (1985).
{¶13} As set forth above, the trial court’s stated reason for denying
Appellant’s motion was that “a defendant does not have a right to litigate his
claim indefinitely,” and that the motion was “outside Appellate Procedures
and Civil Rules.” We construe the trial court’s reasoning to be based upon
the principles of the doctrine of res judicata. The doctrine of res judicata
bars claims that the defendant raised or could have raised on direct appeal.
In re B.C.S., 4th Dist. No. 07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine
serves to preclude a defendant who has had his day in court from seeking a
second on that same issue. In so doing, res judicata promotes the principles
Lawrence App. No. 12CA18 8
of finality and judicial economy by preventing endless relitigation of an
issue on which a defendant has already received a full and fair opportunity to
be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, ¶ 18.
{¶14} In Appellant’s direct appeal of this matter after his initial
conviction and sentencing, as well his application for reopening of our
original decision in this matter, Appellant argued that his plea was not
knowing and voluntary, and also argued that the trial court erred in accepting
his plea. After a thorough review of the record, we concluded that the trial
court properly accepted Appellant’s plea, and therefore overruled these
arguments. In response to Appellant’s argument that his plea was not made
knowingly, voluntarily, and intelligently, in our decision and judgment entry
on reopening, we stated as follows:
“McCann has already argued this point from many different
angles. We have already determined there was a sufficient
factual basis for the trial court to accept McCann’s plea. We
have already decided his plea was knowing, voluntary, and
intelligent because the trial court complied with Crim.R. 11.
Thus, McCann’s argument is without merit.” State v. McCann,
Lawrence App. No. 12CA18 9
4th Dist. No. 10CA12, ¶ 32 (July 6, 2012) (Decision and
Judgment Entry on Reopening).
{¶15} Appellant again challenges the validity of his plea, from yet
another angle, this time claiming the existence of certain exculpatory
evidence that was not provided to him. We initially note that to the extent
Appellant’s claim relies upon exculpatory evidence, which is outside the
record and therefore not before this Court, Appellant’s motion would have
been more properly brought as a petition for post-conviction relief.
However, our review of the record indicates that a petition for post-
conviction relief pursuant to R.C. 2953.21 would have been time-barred at
the time Appellant filed the motion underlying the current appeal. Further,
the motion filed by Appellant below was entitled “Motion to Invalidate Plea
Agreement as Unconstitutional,” that was clearly brought pursuant to
Crim.R. 32.1, which governs withdrawals of guilty pleas, both pre and post
sentence. Thus, because the motion was clearly grounded in Crim.R. 32.1,
even if a petition for post-conviction had not been time-barred, the trial court
would not have been permitted to re-cast the motion as a petition for post-
conviction relief, which would have permitted consideration of the extrinsic
evidence Appellant urges us to now consider. State v. Bush, 96 Ohio St.3d
235, 2002-Ohio-3993, 773 N.E.2d 522, syllabus (“R.C. 2953.21 and 2953.23
Lawrence App. No. 12CA18 10
do not govern a CrimR. 32.1 postsentence motion to withdraw a guilty
plea.”); State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 13 (noting that “some motions may not be recast by a trial court[,]”
Crim.R. 32.1 motions in particular.)
{¶16} Just prior to the filing of his current appeal, Appellant filed
another, related appeal, State v. McCann, 4th Dist. No. 12CA17 (Dec. 6,
2012). In that appeal, Appellant challenged the trial court’s denial of a
public records request he made as an attempt to obtain actual physical
evidence which he alleged was exculpatory.2 Appellant claimed that this
physical evidence was alluded to in a search warrant receipt/inventory and
an investigative report, both of which the record indicates were provided to
him during the discovery phase of his underlying case. Appellant
additionally claimed that BCI agents testified that they gathered this
evidence, and that this testimony occurred at a motion hearing prior to his
plea. However, because Appellant failed to timely appeal the denial of his
public records request, we dismissed his appeal. Thus, Appellant was never
able to actually obtain the evidence which he now argues is exculpatory.
{¶17} In light of the denial of Appellant’s public records request and
our subsequent dismissal of that appeal, Appellant has failed to demonstrate
2
The exculpatory evidence sought in Appellant’s 12CA17 case is the same that is the subject of the present
case, which includes 1) collection of data; 2) digital photos; and 3) measurements and laser readings for
bullet trajectory.
Lawrence App. No. 12CA18 11
the existence of exculpatory evidence. Further, even if it did exist, the
search warrant inventory and investigative report which Appellant now
references in support of its existence were provided to Appellant during the
discovery phase of his underlying case. Moreover, the BCI agent testimony
which Appellant claims referenced the existence of this evidence, was given
in a motion hearing that occurred prior to Appellant’s plea. As a result, any
question regarding the existence or non-existence of this evidence was
discoverable to Appellant prior to entering his plea. Thus, the argument
could have been raised as part of his direct appeal of his conviction.
{¶18} Because this argument could have been raised in his earlier,
direct appeal of his conviction and sentence, it is now barred by the doctrine
of res judicata. As stated by the trial court, which is in accord with the
doctrine of res judicata, “a defendant does not have a right to litigate his
claim indefinitely.” Thus, we find no abuse of discretion on the part of the
trial court in denying Appellant’s motion to withdraw his guilty plea, based
upon the principles of res judicata. Accordingly, Appellant’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶19} In his second assignment of error, Appellant contends that the
trial court abused its discretion in failing to hold a hearing on his motion to
Lawrence App. No. 12CA18 12
withdraw his guilty plea. As we noted in State v. Pemberton, 4th Dist. No.
No. 10CA4, 2011-Ohio-373, at ¶ 26, “ ‘[a] trial court is not always required
to conduct an evidentiary hearing when presented with a post-sentence
motion to withdraw a guilty plea.’ ” Quoting State v. Vincent, 4th Dist. No.
03CA2713, 2003-Ohio-3998, at ¶ 10; citing State v. Nathan, 99 Ohio
App.3d 722, 651 N.E.2d 1044 (3rd Dist. 1995); State v. Woods, 8th Dist. No.
82120, 2003-Ohio-2475; State v. Jacobson, 4th Dist. No. 01CA730, 2003-
Ohio-1201; State v. Moore, 4th Dist. No. 01CA674, 2002-Ohio-5748.
Instead, a trial court must only hold a hearing on a Crim.R. 32.1 motion if
the “facts, as alleged by the defendant, indicate a manifest injustice would
occur if the plea was allowed to stand.” Id., citing Vincent, Nathan and
Jacobson.
{¶20} Here, the allegations Appellant set forth in his motion alleged
manifest injustice as the result of the existence of exculpatory evidence
which he claims was not disclosed to him prior to entering his plea. Because
we have already determined that res judicata bars the consideration of the
merits of that issue, the court was not required to hold a hearing. Pemberton
at ¶ 27. Accordingly, this assignment of error is meritless and is therefore
overruled.
Lawrence App. No. 12CA18 13
{¶21} Having failed to find merit in the assignments of error raised
by Appellant, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Lawrence App. No. 12CA18 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _______________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.