State v. Williams

[Cite as State v. Williams, 2016-Ohio-2629.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103144
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ADRIAN WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-576076-A
BEFORE: S. Gallagher, J., Stewart, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 21, 2016
ATTORNEYS FOR APPELLANT
Michael J. Cheselka, Jr.
Sarah R. Cofta
Michael J. Cheselka, Jr., L.L.C.
75 Public Square
Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Adrian Williams appeals the trial court’s decision denying his postsentence
motion to withdraw a guilty plea. For the following reasons, we affirm.
{¶2} Williams pleaded guilty to gross sexual imposition, a felony of the third
degree, and attempted kidnapping with a sexual motivation specification, a felony of the
second degree. The state agreed to a five-year aggregate sentence, as a product of the
plea negotiations, and conceded that the offenses were allied offenses of similar import.
The trial court acknowledged the plea agreement at the colloquy, but did not forewarn
Williams of the possibility of a longer prison term. At sentencing, after Williams
claimed innocence, the trial court sentenced him to an aggregate eight-year term of
imprisonment because of his criminal history. Williams timely appealed his sentence in
8th Dist. Cuyahoga No. 101217; however, he successfully obtained dismissal of the
appeal pursuant to App.R. 28 after obtaining two extensions of time to file a merit brief.
{¶3} Immediately after the dismissal entry, Williams filed a motion to withdraw
his plea with the trial court. The trial court did not rule upon that motion. Eight months
thereafter, Williams filed a renewed motion to withdraw his guilty plea. Both motions
were denied and are the subject of the current, timely appeal. We find no grounds to
reverse the trial court’s decision. The doctrine of res judicata precluded Williams from
seeking to withdraw his guilty plea.
{¶4} Crim.R. 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.” The defendant has the burden of proof, and the postsentence withdrawal
of a guilty plea is only available in extraordinary cases to correct a manifest injustice.
State v. Dent, 8th Dist. Cuyahoga No. 100605, 2014-Ohio-3141, ¶ 3-4; State v. Smith, 49
Ohio St. 2d 261, 264, 361 N.E.2d 1324 (1977); State v. Sneed, 8th Dist. Cuyahoga No.
80902, 2002-Ohio-6502. We review the trial court’s decision under an abuse of
discretion standard. Smith at 264; State v. Xie, 62 Ohio St. 3d 521, 527, 584 N.E.2d 715
(1992).
{¶5} However, the doctrine of res judicata precludes a defendant from raising
claims in a postsentence motion to withdraw a guilty plea that could have been raised on
direct appeal. Dent at ¶ 4; State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, 935
N.E.2d 9, ¶ 59; State v. Conner, 8th Dist. Cuyahoga No. 98084, 2012-Ohio-3579, ¶ 7.
This concept extends to situations involving defendants who failed to file the direct
appeal. Dent; State v. Aquino, 8th Dist. Cuyahoga No. 99971, 2014-Ohio-118, ¶ 12;
State v. Walters, 4th Dist. Scioto No. 12CA3482, 2013-Ohio-695, ¶ 14; State v.
Maggianetti, 7th Dist. Mahoning No. 10-MA-169, 2011-Ohio-6370, ¶ 15; State v. Wilson,
9th Dist. Summit No. 26511, 2013-Ohio-1529, ¶ 7; State v. Britford, 10th Dist. Franklin
No. 11AP-646, 2012-Ohio-1966, ¶ 13.
{¶6} In Dent, the defendant appealed the trial court’s denial of a postsentence
motion to withdraw a plea, advancing an argument that the trial court sentenced him to a
prison term that was greater than the plea agreement set forth. Id. at ¶ 2. The defendant
had not filed a direct appeal of his conviction. Id. A panel from this court affirmed the
denial of the postsentence motion to withdraw the guilty plea, holding that because the
defendant’s claims were immediately apparent upon the pronouncement of his sentence
and could have been raised on a direct appeal, he was precluded from seeking to
withdraw the plea in the trial court. Id. at ¶ 5; see also State v. Jones, 8th Dist. Cuyahoga
No. 93478, 2010-Ohio-1985, ¶ 7.
{¶7} The same result must follow in this case. Williams directly appealed his
conviction and could have included an assignment of error claiming the trial court erred
by imposing a prison term greater than the plea agreement provided, without first
notifying him of that possibility before accepting the guilty plea. See, e.g., State v.
Asberry, 173 Ohio App. 3d 443, 449, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dist.) (the
failure to forewarn the defendant of the trial court’s obligation to independently consider
the appropriate prison term could be reversible error). Such an error, if indeed it was
reversible error in this case, was immediately apparent upon the trial court’s
pronouncement of Williams’s sentence. Instead of prosecuting his direct appeal,
Williams successfully sought to have it dismissed. The doctrine of res judicata then
precludes him from advancing any arguments that could have been raised in that direct
appeal.
{¶8} Against the doctrine of res judicata, Williams argues that the trial court
possessed jurisdiction to consider his motion because no panel from this district affirmed
his conviction, referring to the principle espoused in State ex rel. Special Prosecutors v.
Judges, Court of Common Pleas, 55 Ohio St. 2d 94, 97-98, 378 N.E.2d 162 (1978), and its
progeny. In Special Prosecutors, the Ohio Supreme Court held that once a conviction is
affirmed by an appellate court, the trial court lacks jurisdiction to consider a postsentence
motion to withdraw a plea. Id. Williams is confusing a trial court’s lack of jurisdiction
with its consideration of the affirmative defense of res judicata. Nothing from the record
supports Williams’s claim that the trial court denied his motion for lack of jurisdiction.
In fact, the state’s sole argument in the brief in opposition was entirely based on the
doctrine of res judicata.
{¶9} In order to determine whether the doctrine of res judicata applies, a trial court
must have jurisdiction to consider the merits of the underlying motion. Res judicata is
not a jurisdictional concept. The doctrine is an affirmative defense to the merits of a
defendant’s motion that the state must timely raise. State v. Delgado, 8th Dist. Cuyahoga
No. 102653, 2015-Ohio-5256, ¶ 15 (res judicata is an affirmative defense), citing State v.
Walls, 8th Dist. Cuyahoga No. 79196, 2001 Ohio App. LEXIS 5188, *7 (Nov. 21, 2001),
and State v. Skoglund, 8th Dist. Cuyahoga No. 46988, 1983 Ohio App. LEXIS 15958, *4
(Nov. 3, 1983). For this reason, Williams’s attempt to distinguish his situation from that
presented in Dent, 8th Dist. Cuyahoga No. 100605, 2014-Ohio-3141, is misplaced.
{¶10} We affirm the trial court’s denial of Williams’s postsentence motion to
withdraw his guilty plea.
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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR