2004 Ohio 5391 | Ohio Ct. App. | 2004
{¶ 2} On November 6, 2002, Dailey was arrested by Cleveland police and charged with domestic violence,1 endangering children,2 and criminal damaging,3 after he reportedly punched and kicked his girlfriend while she was holding their two-month-old child and then broke the windows of her car. He was also, apparently, separately charged with a number of traffic violations for a related incident.
{¶ 3} On February 24, 2003, Dailey pleaded no contest to an amended charge of domestic violence under R.C.
{¶ 4} On December 19, 2003, Dailey moved to withdraw his plea under Crim.R. 32.1. He contended that Judge Perk did not comply with Crim.R. 11 before accepting his plea, and attached a transcript of the plea hearing in support of the motion. On January 15, 2004, Judge Jones4 held a hearing on the motion and, after hearing the evidence and arguments, stated that he would grant the motion. On the same date, Judge Tarver signed a journal entry that granted the Crim.R. 32.1 motion and vacated Dailey's conviction.
{¶ 5} The City obtained leave to appeal under R.C.
{¶ 6} The City admits that the plea transcript shows a failure to comply with Crim.R. 11, but counters that Dailey failed to show manifest injustice because he did not submit an affidavit showing any subjective misunderstanding of the plea. It also claims the motion to withdraw is untimely because of the eleven-month delay between the conviction and the time the motion was filed. Although the City has not expressly argued res judicata, we find the claims of untimeliness and failure to supply evidence outside the record are sufficient to raise such a claim.
{¶ 7} A Crim.R. 32.1 motion is considered part of the criminal proceedings, and is distinguishable from a postconviction petition, which is a collateral attack on the judgment.6 But a motion to withdraw filed after the time for direct appeal has passed is subject to res judicata; if the motion asserts grounds for relief that were or should have been raised in direct appeal, then res judicata applies and the motion will be denied.7
{¶ 8} When Crim.R. 11 violations are apparent in the record, a post-appeal motion to withdraw based on such violations is barred by res judicata, because the error should have been raised on appeal.8 In addition, some courts have held that Crim.R. 11 violations in the record do not demonstrate manifest injustice because the defendant may still request leave to file a delayed appeal.9
{¶ 9} Dailey's motion to withdraw was based solely on evidence available in the original trial record, and not on any evidence outside that record. Therefore, the claims raised in his motion were barred by res judicata, and the City adequately raised this issue by arguing that he failed to present evidence outside the original record and that his motion was untimely. The first assignment is sustained.
{¶ 10} The judgment is reversed and remanded with instructions to reinstate the conviction.
It is ordered that the appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Celebrezze Jr., J., and Diane Karpinski, J., concur.